Admin Law Outline: 1

I.

Separation of powers A. Bottom Line: Congress can shift any power anywhere, as long as it doesnt shift it to itself 1. History: a) separation of powers is a fallacy: (1) most legislation comes out of the administrati e agencies (!) most ad"udication ta#es place in the administrati e agencies ($) so legislation% ad"udication% and enforcement are all concentrated in one agency &) 'ew (eal: the switch)in time pa ed the way for the administrati e state (e*cept for the +,, and -.,% which were early e*ceptions) c) /eagan Administration 0ustice (epartment and (eregulation (1) 1st post 'ew (eal challenge to the administrati e state (!) concerned w1 &arriers placed &etween the president and the administrati e agencies ($) also concerned w1 e*cessi e delegation (2) lost: administrati e state sur i ed% &ut &ecame much more ulnera&le !. (elegation: a) ,ongress Agency (intelligible principles% 3istretta . 45) &) ,ourts Agency (Article III review: ,-., . 5chor) c) 6resident ,ongress ( ot !": 7uc#ley . 8aleo% 7owsher . 5ynar% 3yers . 45% +'5 . ,hadha) d) 6resident Agency (doesnt impede on the presidents ability to perform his constit#tional d#ty: Humphrey9s :*ecutor% 3orrison . Olson) $. Other 5eparation of 6owers ,onsiderations a) unitary e*ecuti e &) A6A re;uirements of separation at AL0 le el c) A6A does not re;uire separation at the agency head le el d) some control o er agencies &y e*ecuti e &ranch (1) O371O+/A (!) appointment ($) remo al (2) e* parte contacts in rulema#ing (<) ,he ron support for politics e) some control o er agencies &y ,ongress (1) purse strings (!) e* parte contacts% including hearings% etc. ($) legislation and amendments B. Congress Agency: $elegation of Legislative A#thority 1. =hy delegate> a) (alton . 5pecter (1??2% p. 1)@(efense 7ase ,losure and /ealignment ,ommission (1) e*pertise (!) representation of &roader interests ($) legitimiAation of the process (2) compromise to protect ,ongressional interests (a) ,ongress lac#s the political will to ma#e the decisions (&) &ut ha ing representati es on the commissions gets their interests in (c) since president9s can9t cherry)pic#% the process preser es the compromise% and also shields the president9s unpopular decisions &) 3istretta . 4nited 5tates (1?B?% p. <!)@5entencing ,ommission (independent agency w1in "udicial &ranch) (1) credit)claiming1 &lame)shifting (!) e*pertise (why more so than ,ongress>) (a) ongoing re iew (which ,ongress can9t do) de elops e*pertise (&) on scientific1technical ;uestions% the e*pertise argument is stronger ($) efficiency

Admin Law Outline: !

c)

(a) time constraint to do highly detailed wor# (&) fle*i&ility o er time (rather than amending legislation) e*ample: price controls on common carriers (1) legislati e power delegated from ,ourts to Administrati e agency% (!) under common law% reasona&leness was a "udicial determination ($) why delegate> (a) consistency (&) certainty (c) enforcement (a oid collecti e action pro&lems)

!.

+s there a constitutional limitation on delegation of legislati e powers to administrati e agencies> a% bottom line: (1) intelligi&le principle (!) almost no limit in practice (a) the ague intelligi&le principle doctrine lea es minimal role for courts to re iew (&) &ut the doctrine is still considered "usticia&le ($) possi&le limitations (a) delegation to an agency with no specific purpose (&) delegation with no attempt to pro ide guidance (i) &ut note: in the pu&lic interest and according to statute were considered OC (ii) note: also OC if agency limits its own discretion &y promulgating regulations% &ecause then the court can "udge (a) this ma#es no sense gi en the separation of powers concern% &ut it9s true (&) if the agency didn9t limit its own discretion could cause possi&le pro&lem (2) e*planation of cases finding the delegation unconstitutional: (a) the unofficial amendment of the ,onstitution that occurred w1 the 'ew (eal (&) 6anama: '+/A9s e*cessi e power to control the economy (c) 5checter: delegation to pri ate parties &) cases (1) 3istretta . 4nited 5tates (1?B?% p. <!) (a) 6age <2: 5o long as ,ongress shall lay down &y legislati e act an intelligible principle to which the person or &ody authoriAed to e*ercise the delegated authority is directed to conform . . . (&) intelligi&le principle: goals% purpose% factors to consider (!) 5outh (a#ota . 4nited 5tates (epartment of +nterior (1??<D in 1??E% 5, acated opinion without granting cert.% handout) (a) 5, acates Bth ,ircuit decision that the delegation was unconstitutional &ecause of a lac# of an intelligi&le principle (&) statute: .he 5ecretary of the +nterior is here&y authoriAed% in his discretion% to ac;uire . . . any interest in lands . . . within or without e*isting reser ations . . . for the purpose of pro iding land for +ndians. (c) lea es the open ;uestion of how much guidance is re;uired> ($) -,, case (1?22): in the pu&lic interest was upheld &y the 5upreme ,ourt (2) note: in ,he ron (1?B2% p. ?1)% the fact that the statutory am&iguity might ha e &een a result of ,ongress &eing una&le to decide an issue was not considered fatal to the delegation suggests that not e en an intelligi&le principle is re;uired

$.

5hould ,ourts ha e a role in re iewing delegation> a) ,onstitutional te*t inconclusi e: (1) 'ecessary and 6roper (a) pro)delegation: ,ongress can do what it needs to (&) con)delegation: Congress can do what it needs to (!) Art. +% 5ec. + (a) con)delegation: the legislati e power is ested in ,ongress

Admin Law Outline: $

(&) depends on how you define legislation (i) agencies aren9t legislating (ii) &ut (i.) turns the definition of legislation into a tautology (whate er ,ongress does . . .) &) chec#s and &alances: (1) con)delegation: not OC for ,ongress to gi e legislati e power o er to e*ecuti e &ranch (!) pro)delegation: &ut ,ongress has control o er the agencies &ecause it can amend% o ersee% etc. c) /ule of Law (1) necessity of firm legal structure &ecause there is no democratic control (!) "udges are theoretically still in ol edD delegation principle "ust changes the ;uestion. ($) &ut it is hard for courts to actually decide whether delegation is OC danger of courts inserting themsel es into the legal process (2) /ule of Law can ne ertheless &e ensured through regulation of the administrati e agencies d) assessment of ast delegation (1) con: (a) important policy trade)offs can9t &e made within single administrati e agencies (&) delegation lets ,ongress off the hoo#: ta#e credit without the &lame (!) pro: (a) comple*ity of programs demand the e*pertise and institutional structure of agencies (&) agencies remain under presidential and congressional control C. Co#rts Agency: $elegation of &#dicial 'owers 1. bottom line: a) traditional agency model of ad"udication (1) ,ongress may delegate ad"udication to non)Article +++ courts (!) so long as there is some re iew in the Art. +++ courts ($) under the standards of: (a) ,he ron deference on ;uestions of law (&) su&stantial e idence on ;uestions of fact &) ,rowell . 7enson ,-., . 5chor (1) model started with ,rowell . 7enson (a) 'orthern 6ipeline suggested that ,rowell . 7enson was too deferential (&) .homas . 4nion ,ar&ide created confusion &y suggesting that ,rowell . 7enson was not deferential enough (c) and finally the court seems to return full circle in ,-., . 5chor (!) remaining confusion (a) is consent an issue> O9,onnor9s opinion in ,-., did suggest that there might otherwise &e a pro&lem with insufficient Art. +++ control what does this mean> (&) what a&out common law claims that are not tied to non)common law claims> (c) what a&out self)enforcing "udgments> (d) unfortunately% the inconsistent analysis on pu&lic . pri ate could pose pro&lems for nontraditional agency models !. cases a) ,rowell . 7enson (1?$!% p. 11F)@esta&lishes framewor# (1) wor#ers9 compensation ad"udication scheme upheld (!) how is an agency different from a court> (a) usually agencies can &ring charges themsel es (74. not in this case) (&) no Art. +++ protections guaranteeing the independence of the "udiciary (is this simply a non)Art. +++ court>) (c) specialiAed "urisdiction (74. there are specialiAed courts) (d) usually agencies ha e other functions as well% while courts perform e*clusi ely "udicial functions (e) &ottom line: the agency in this case loo#s li#e a court ($) pri ate rights s. pu&lic rights (a) general ;uestions

Admin Law Outline: 2

(i) can ,ongress delegate ad"udicatory functions> (ii) if so% must there &e Art. $ re iew> (iii) if so% under what standard> (&) pri ate rights (i) definition: disputes &etween citiAen and citiAen (i.e.% this case% &ecause the real parties in interest are employer and employee) (ii) ,ongress can delegate ad"udication to agency% &ut they must pro ide for Art. +++ re iew (iii) standards (a) de no o re iew of the ;uestion of law now% gi en ,he ron9s enormous deference to agency interpretation% there is no longer full de no o re iew of ;uestions of law (&) su&stantial e idence re iew of ordinary facts still e*ists (c) in this case: de no o re iew of "urisdictional facts (did in"ury ta#e place on na iga&le waters> 3aster1ser ant relationship>) now: "urisdictional fact doctrine limited to these circumstances (c) pu&lic rights (i) definition: disputes &etween citiAen and go ernment (i.e.% ta*% social security% licensing) (ii) needn9t &e ad"udicated in court ,ongress could ma#e the whole decision% or delegate it% w1 or w1o Art. +++ re iew% &1c greater (sometimes) includes the lesser (d) pro&lems with this distinction (i) tautology> (efined &y ,ongress9s right to ma#e decision &y itself (ii) pri ate rights cases can &e recharacteriAed as ! pu&lic rights cases (e) note: ,ongress has ne er ta#en constitutional (ci il rights% criminal% etc.) issues out of the Art. +++ courts% so it is unclear as to whether they could (2) ,ourt upholds the scheme (which ad"udicates pri ate rights) &ecause they interpret the agency as if it were an ad"unct to the court (i.e. special master) &) 'orthern 6ipeline ,onstruction . 3arathon 6ipeline ,o. (1?B!% p. 1$G)@common law pri ate rights must &e ad"udicated (or at least re iewed) in Art. +++ courts (1) court stri#es the delegation to &an#ruptcy courts of Art. +++ powers% su&"ect to a clearly erroneous standard of re iew in Art. +++ court (!) 7rennan (plurality): pri ate rights cannot &e ad"udicated in non)Art. +++ courts (a) he is deciding the case with regard to all claims &rought in &an#ruptcy court (&) terri&le opinion% &ecause it contradicts e erything that had &een happening ($) /ehn;uist (concurrence: narrowest% thus go erning% holding): (a) decides only a&out the state court claims: only common law pri ate rights claims can not &e ad"udicated in non)Art +++ courts (&) clearly erroneous re iew is too deferential (/ehn;uist seems to thin# that clearly erroneous is a more deferential re iew than su&stantial e idence re iew wrong) (c) possi&le federalism argument: if the federal court is going to usurp state claims% it has to gi e them 1st class treatment (2) How to reconcile with ,rowell . 7enson> (a) different standards of re iew in ol ed (&) self)enforcing "udgment (>) (c) further &ifurcates pri ate rights (i) 6u&lic /ights@no Art. +++ re iew re;uired (ii) ,ongressionally created pri ate rights@agency OC% so long as there is Art. +++ re iew (,rowell . 7enson) (iii) 6ri ate /ights a aila&le at common law@strictest Art. +++ re;uirement (this case) c) .homas . 4nion ,ar&ide Agricultural 6roducts (1?B<% p. 1$!)@pri ate rights &ound up in regulatory scheme can &e ad"udicated &y agency

Admin Law Outline: <

(1) court upholds the delegation to an ar&itrator of the final decision &etween two pri ate litigants on the alue of data pro ided from one to the other% su&"ect to re iew in Art. +++ courts% only for fraud% etc. (!) should logically &e iewed as a pri ate rights case (a) under ,rowell . 7ensonstri#e it (&) under 'orthern 6ipeline (i) 7rennan rationale stri#e it (ii) /ehn;uist rationale stri#e it% &ecause the standard is e en more deferential ($) &ut court upholds% &ecause the pri ate rights are so &ound up with the pu&lic regulatory scheme that the court &asically treats it as a pu&lic right (a) H: does this completely destroy the pu&lic 1 pri ate distinction> (i) not completely: the right in ,rowell is still pri ate &ecause it stems from relationship that pre)e*isted the regulatory scheme (ii) &ut: wor#ers9 compensation scheme could &e reinterpreted as &ound up with a regulatory scheme designed to ser e the pu&lic purpose of a safer wor#place (&) another possi&le distinction: pri ate right is &ootstrapped to the pu&lic right and is dealt with under the agency for efficiency reasons this case doesn9t o er)rule 'orthern 6ipeline% &ecause it is sui generis d) ,-., . 5chor (1?BE% p. 1!G)@possi&le return to ,rowell . 7enson (1) court upholds the "urisdiction of agency (in addition to that of Art. +++ court) o er common law counterclaims to claims &rought &efore the agency% su&"ect to re iew in Art. +++ court (!) return to ,rowell . 7enson> (common law pri ate right ad"udicated in agency with re iew in Art. +++ courts) ($) 74.: the issue of consent differentiates this case from other cases (a) does this case "ust stand for the proposition that after consenting to ha e your case heard here% you can9t contest it (no two &ites at the apple) (&) how important is consent to the outcome of the case> (O9,onnor dwells on it in the ,ourt9s opinion% e en though under ,rowell% the "urisdiction might &e OC) (2) bottom line: (a) this case pro&a&ly o errules 'orthern 6ipeline% which was a &ad case (&) &ut issues still remain (i) consent (ii) purely common law claims (iii) self)enforcing "udgments $. 'resident Congress vs. 'resident Agency: Congressional Self(Aggrandi)ement vs. *ncroachment 1. bottom line: ,ongressional self)dealing is not OC a) ,ongressional tin#ering is usually OC (1) &alancing test: (oes the statute at issue pre ent the 6resident from accomplishing his constitutionally assigned functions> +s the e*tent of the intrusion "ustified &y an o erriding need to promote o&"ecti es within the constitutional authority of ,ongress> (a) note: where the ,onstitution &y specific te*t commits the power at issue to the e*clusi e control of the 6resident% no intrusion is allowed &y ,ongress (6u&lic ,itiAen . 45 (epartment of 0ustice) (i) 5ecretary of 5tate (ii) 5ecretary of the .reasury (&) note also: the 6resident must ha e some remo al role for anyone who does anything with legal significance (policy that &inds the nation) (c) 74. note: the discussion of functions is usually confusing and irrele ant (i) 3yers started the discussion% &ut in 3orrison . Olson it didn9t matter (ii) doesn9t ma#e sense &ecause ,ongress could always get around it &y adding legislati e1"udicial functions to position &) ,ongressional self)dealing is not OC

Admin Law Outline: E

!.

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(1) ,ongressional consent to remo al (!) ,ongressional appointment to agency ($) legislati e eto e*ecuti e power: a) unitary e*ecuti e>: administrati e law creates some strictures on how e*ecuti e power is carried out in the e*ecuti e &ranch &) general rules: (1) remo al (a) unitary head agencies: heads ser e at the pleasure of the president (remo a&le &y president at will) (&) multimem&er1commissions: remo a&le &y president for cause (i) president must ha e a reason to remo eremo al is challengea&le (ii) commission mem&ers ser e fi*ed% usually staggered% terms change of administration does not immediately change composition of commission lag in policy changes (iii) often must &e &i)partisan (i ) 74. president appoints the chair (!) appointment (a) superior officers: presidential appointment with ad ice and consent of 5enate (&) inferior officers: may &e ested &y ,ongress in other constitutionally accepta&le &odies (c) employees: hired &y agency (d) note: ,ongress has leeway in defining inferior offices and where appointment power ests ($) power to dictate policy (a) no role in formal ad"udication (&) some role in informal rule)ma#ing (c) power o er appointment and remo al lends power to dictate policy (d) note: e er since 'i*on1-ord% presidents ha e wanted more control o er agency rule) ma#ing (i) /eagan9s e*ecuti e order 1!!?! ,linton9s e*ecuti e order 1!BEE (a) any regulation with su&stantial impact on the economy had to &e re iewed &y O379s Office of +nformation and /egulatory Affairs (O+/A) (applies only to e*ecuti e agencies% not independent agencies) (&) got caught up in the process of cost1&enefit analysis so some statutes prohi&it cost1&enefit analysis (c) conflict &etween e*ecuti e agencies and O+/A (i) : ery president since /eagan has esta&lished a dispute mechanism within the e*ecuti e &ranch (ii) 7ush esta&lishes an appeal &ody: ,ouncil on ,ompetiti eness (headed &y Huayle) (d) ,ostly to the president to ma#e threats (ii) 6ro central control (a) pre ent different agencies wor#ing at cross)purposes (&) other actors might &e more efficient: no incenti e for agencies to defer to one another (iii) ,on central control (a) counterproducti e transfer of authority (&) pri ileges cost1&enefit analysis (c) procedural concerns: no records of interest groups meetings with O37% unli#e the A6A (d) massi e delay /emo al: a) definitions (1) +ndependent Agency head can &e remo a&le only for cause (!) :*ecuti e Agency head is remo a&le at will

Admin Law Outline: F

&) 3yers . 4nited 5tates (1?!E% p. 121)@aggrandiAement (1) ,ongressional attempt to condition postmaster9s remo al on 5enate consent not OC (!) presidential authority to remo e the postmaster (purely e*ecuti e functions) implicit in e*ecuti e power c) Humphrey9s :*ecutor (1?$<% p. 121)@encroachment (1) ,ongressional limitation on 6resident9s remo al power o er -., commissioners to for cause remo al OC (!) is a is 3yers (a) 3yers in ol ed aggrandiAement% whereas Humphrey9s :*ecutor only in ol ed encroachment 74. &oth acts entailed a shift of power away from the president (and to ,ongress% de facto) (&) 3yers in ol ed an office performing purely e*ecuti e functions% whereas the -., performs e*ecuti e% legislati e% and "udicial functions 74. if the fact that 3yers in ol ed a purely e*ecuti e role led to the conclusion that the president9s powers should &e unlimited% why shouldn9t his power &e e;ually unlimited o er agencies that e*ercised e*ecuti e I functions> ($) note: there is no caselaw as to what for cause means (a) it pro&a&ly doesn9t include policy disagreement% &ecause to interpret it otherwise conflicts with ,ongressional intent: (&) for cause was meant to gi e more protection than at will (c) fi*ed% staggered terms span more than one administration d) 7owsher . 5ynar (1?BE% p. 12E)@aggrandiAement (1) ,ongressional delegation of e*ecuti e powers to an officer remo a&le &y ,ongress iolates separation of powers% &ecause ,ongress can9t reser e a role for itself (!) ,omptroller Jeneral remo a&le (a) &y a "oint resolution (! houses I presentment) (&) for cause (c) almost impossi&le (and ,ongress has ne er tried to do it)% &ut seen to &e more possi&le than impeachment (which is ,ongress9s only permissi&le role) (i) Art ++% K 2: impeachment &y House% con iction for treason% &ri&ery% high crimes and misdemeanors (ii) impeachment re;uires !1$D for cause only re;uires !1$ if president etoes (iii) impeachment is time)consuming and dramatic ($) /eagan administration (a) argument: president needs to ha e at)will remo al power o er those e*ercising e*ecuti e functions to create a unitary e*ecuti e (&) &ut the decision was made on the rationale that ,ongress can9t reser e a role for itself e) 3orrison . Olson (1?BB% p. 1F1)@encroachment (1) independent counsel remo a&le for cause &y attorney general OC (!) &road reading: ,ongress can put o&stacles on presidential remo al of officers with purely e*ecuti e functions o er)rules 3yers . 45 ($) narrow1pragmatic reading: separation of powers pro&lem either way (a) if presidential remo al at will% then no one can in estigate the president 74. there is still impeachment of independent counsel% or president (&) if for cause remo al% then 3yers . 45 pro&lem 2. appointment: a) ,onstitution (1) president nomination I ad ice1consent of 5enate: (a) am&assadors% pu&lic ministers% consuls% 5upreme ,ourt "udges (&) all other (superior) officers (!) ,ongress can est to 6resident alone% in the ,ourts of Law% or in the Heads of (epartments: inferior officers ($) note: go ernment employees who do not constitute officers are hired &y the officers &) +nterpretation

Admin Law Outline: B

(1) =ho is a superior officer% and what power does ,ongress ha e to redefine a superior officer as an inferior officer> (!) .o what e*tent can there &e cross)&ranch appointments (i.e.% can the attorney general &e appointed &y the 5upreme ,ourt)> ($) =hat limits are there on what counts as a Head of (epartment% for the purposes of appointing inferior officers> (2) =hat limits are there on the appointment of employees> c) 3orrison . Olson (1?BB p. 1F1)@encroachment (1) independent counsel defined as an inferior officer to &e appointed &y a special di ision of the (, ,ircuit (and remo al for cause &y the Attorney JeneraD) OC (!) /ehn;uist9s definition of inferior officers: (a) su&"ect to remo al &y a higher e*ecuti e &ranch official (&) perform limited duties (c) limited in "urisdiction (d) limited in tenure (e) weird% &ecause these characteristics co er e eryone ($) impact of holding (a) the definition of inferior officers (&) allows a di ision of (, ,ircuit (as a court of law) to appoint (c) apparent incongruity of allowing cross)&ranch appointment appro ed d) -reytag . ,ommission of +nternal /e enue (1??1% p. 1B<)@encroachment (1) the chief "udge of the ta* court appoints special trial "udges OC (!) what is the .a* ,ourt> (a) not a department that would tri ialiAe the important constitutional assurance of political responsi&ility for e*ecuti e appointments (i) ery unclear what a department is (ii) deals with ,ongress9s power to redefine agencies as departments and to est appointment power there (&) &ut as a court of law it9s OC e) 7uc#ley . 8aleo (1?FE% p. 1<F)@aggrandiAement (1) direct legislati e appointment of most of the mem&ers of the -ederal :lection ,ommission not OC &ecause Art. ++ iolation (!) court found -:, not legislati e so ,ongress can9t appoint the mem&ers <. one more form of ,ongressional self)aggrandiAement: legislati e eto a) +'5 . ,hadha (1?B$% p. 1EG) (1) one)house legislati e eto not OC &ecause iolated &icameralism and presentment re;uirements (!) distinguishing facts of this case> (a) the eto has indi idual% rather than regulatory% impact (&) single house eto 74. since the concern of the ma"ority was that legislation re;uires &icameralism1presentment% the result would pro&a&ly &e the same regardless ($) policy (a) ,ongress delegated the power in the first place% so why can9t they e*ercise targeted eto> (&) ,ongressional response to end of the legislati e eto (i) technical: more narrow delegations (ii) reality: committees informally affect regulations isn9t this worse> (iii) nothing: ,ongress continues to use the eto in cases where no one would ha e standing to challenge it (funding cases) (a) e en though it9s unconstitutional% the legislati e eto is a con enient political tool for e eryone (&) the administrati e agencies don9t challenge it% &ecause they could &e dismantled (2) After ,hadha% what would happen if a statute with a legislati e eto is challenged: (a) se era&le (i) assumes ,ongress would ha e passed the law e en without the legislati e eto

Admin Law Outline: ?

(ii) //: that9s implausi&le% &ut that9s what the ,ourt did in ,hadha (&) entire statute is in alid &ecause the legislati e eto is so intertwined &) 1??E statute: any regulations that affect the economy do not ta#e affect for EG days% to allow ,ongress the opportunity to pass a "oint resolution of disappro al% and to ote the regulation down (1) the EG)day waiting period is pro&a&ly constitutional (!) potential ,hadha pro&lem: if one house passes a resolution to e*tend the period &efore regulations ta#es effect% then a one)house resolution has a legal effect possi&ly unconstitutional II. +he Constit#tional ,ight to a -earing A. Ad.#dication vers#s ,#le(ma/ing: s#bstantive differences 1. ad"udicati e facts: pertain to indi idual circumstances !. legislati e facts: pertain to &road principles or policies $. cases: a) Londoner . (en er (1?GB% p. !!E)@ad"udication (1) the special ta* assessment is in alid unless the property owners it affects ha e the opportunity to offer arguments and proof in opposition to passage (!) the ta* affected a small num&er of people ($) indi idual facts important (2) note: no matter how indi idualiAed a ta* is% there is no due process pro&lem if the ta* is imposed &y a true legislature the issue arises after the legislature delegates the authority (<) moral: when agency e*ercises ad"udicati e function% some procedural protections are re;uired (a) notice and written su&missions not enough (&) in this case% a hearing was re;uired at the agency le el: right to support his allegations &y argument% howe er &rief% and if need &e% &y proof% howe er informal &) 7i3etallic +n estment ,o . 5tate 7oard of :;ualiAation% ,olorado (1?1<% p. !$G)@rulema#ing (1) if an agency rule will apply to a lot of people% the ,onstitution does not re;uire that each &e gi en the opportunity to &e heard directly lea e it to the political process (a) ta* on entire city (&) formula in ol ed c) .hese cases are of historical significance after the A6A there has not yet &een a case where the A6A did not meet the re;uirements of due process 7. -earing means some com&ination of the following: 1. impartial ar&iter1decision ma#er or "ury !. notice a) charges &) e idence $. opportunity to &e heard a) witnesses (1) right to present (!) right to su&poena ($) under oath &) cross)e*amination c) disco ery 2. counsel a) right to ha e counsel present &) right to counsel at go ernment9s e*pense <. closed record only loo# at e idence on the record to ma#e decision E. reasoned decision e*plaining &asis for decision F. appellate re iew B. pu&lic proceeding ?. rules of e idence

Admin Law Outline: 1G

1G. rule of procedure C. !ld Cases: 1. 'orth American ,old 5torage . ,hicago (1?GB% p. FG<)@pu&lic safety a) rotten poultry seiAure with only post)depri ation hearing and remedysatisfies (6 &) what more would a pre)depri ation hearing pro ide> (1) pre ent irrepara&le loss reputation% loss of entire &usiness (!) deterrence of go ernment action (chilling effect on go ernment seiAure) not necessarily good (too much process>) ($) a real chance (a) it9s easier to persuade an agency &efore its acted than afterwards (&) deference will attach to the agency decision in court c) continuing effect of holding: in the face of emergency affecting pu&lic health1welfare% pre) depri ation hearing not re;uired &y due process clause !. 7ailey . /ichardson (1?<1% p. F11)@dead case a) "o& loss after hearing (disloyal)% at which she was not informed of the charges against her% or who informed on herOC% &ecause no due process re;uired &) go ernment "o& is a pri ilege% not a right no due process re;uired% &ecause no property(% life or li&erty) interest $. 0oint Anti)-ascist /efugee ,ommittee . 3cJrath (1?<1% p. F1<)@-ran#furter9s concurrence a) due process attaches to &lac#)listing of organiAations as communist &) -ran#furter9s concurrence: (1) due process is dynamic (!) due process encompasses the right to &e heard &efore &eing condemned to suffer grie ous loss of any #ind 2. ,afeteria and /estaurant =or#ers 4nion . 3c:lroy (1?E1% p. F1B)@&alancing a) non)go ernment wor#er loses access to go ernment site as a security ris#% without a hearing. OC% &ecause on &alance a hearing was not re;uired &) &alance: (1) precise nature of the go ernment function in ol ed (!) pri ate interest that has &een affected &y go ernmental action c) one may not ha e a constitutional right to go to 7aghdad% &ut the Jo ernment may not prohi&it one from going there unless &y means consonant with due process of law (1) the fact that the "o& is a pri ilege% rather than a right is not dispositi e (!) 74. then why does the court feel compelled to e*plain that she can get a "o& someplace else> <. 5ignificant mo es away from 7ailey . /ichardson: a) the in;uiry is &ifurcated (1) the lac# of a constitutional interest@ life% li&erty% prop@is not dispositi e (!) &alancing: weighing of go ernment interest (high in the case of national security) against pri ate interest (a "o& at this site) &) rights1pri ileges distinction not dispositi e $. +he *0plosion: 1oldberg v. "elly 23456, p. 577% 1. holding: e identiary hearing re;uired before termination of pu&lic assistance !. e*isting procedures: a) 6re)termination procedures: written statement and personal appearance &efore the casewor#er &) 6ost)termination procedures: full "udicial hearing $. desired pre)termination procedures: a) the opportunity to ma#e a personal appearance &efore re iewing official &) oral presentation of e idence c) opportunity to cross)e*amine go ernment witnesses d) note: e en when court demands pre)termination hearing% still re;uires post)termination "udicial hearing 2. ,ourt9s Analysis: a) statutory entitlement to &enefits I a&solute necessity of the funds to li e L &ig property interest

Admin Law Outline: 11

<. E.

&) &alance go ernment and pri ate interests (1) huge pri ate interest: ta#ing &enefits away from people who are li ing on those &enefits impossi&le to reco er the loss with post)termination hearing (!) go ernment interest: (a) fisc &ecause recipients are pro&a&ly "udgment proof (&) note: go ernment9s interest in accurate determiantions is mentioned% &ut pro&a&ly should &e left to go ernment as a policy determination note: potential &enficiaries that are denied &enefits in the first place are not protected 8atershed: a) due process protection e*tended to new property (proceeds of go ernment largesse1&eneficiaries of the welfare state) &) on 1off switch of rights1pri ilege superseded &y &alancing test (note: also &alanced in ,afeteria and /estaurant =or#ers 4nion) c) other issues (1) ,ourt treats ;uestions of whether process is due and what process is due as one (!) How to &alance these disparate interests> .here is a rhetoric of &alancing% &ut this case is decided on the sympathy the court has for the plaintiffs

*.

ew Cases 1. Board of ,egents v. ,oth 23457, p. 594%: 'erry v. Sinderman 23457, p. 5;<%@legitimate claim of entitlement> a) /oth: 1)year contract "o& with no future rights no (6 rights: range of interests protected &y procedural (6 is not infinite (retreat from Jolderg) &) 5inderman: professor for 1G years at school with no tenure system% &ut a statement in the faculty guide (6 rights: e*pectation interests can &e created &y state laws% practice c) court distinguishes &etween ;uestions of 1) whether (6 applies and !) what (6 re;uires (1) (oes (6 apply determined &y the nature of the interest (a) while the interests protected &y the (6 clause go &eyond common law interests% they are still &ound &y the concepts of li&erty1property (&) li&erty: (i) ordinary pursuit of happiness (constitutional in;uiry) (ii) here: no harm to reputation or disa&ility in terms of future employment (note: the court ma#es some preposterous "udgments a&out what is reputational harm) &ut note that stigma can still &e a li&erty interest to which (6 attaches (c) property interest (i) unlin#ed from &oth li&erty and the property of the ta#ings clauseseems odd to limit what counts as property for (6 claims at all once you unlin# it (why not e*pand property to include anything that is important to indi iduals>) (ii) not created &y ,onstitution must stem from e*ternally defined entitlement% usually state or federal law (iii) legitimate claim of entitlement (not need or desire for) to the &enefit (i ) here: reasona&le e*pectation of re)employment (d) On1Off switch: right1pri ilege distinction e;ually pro&lematic (>) reasona&le1unreasona&le claim of entitlement (!) =hat does (6 re;uiredetermined &y weighing interests d) =eird results (1) e;uity: (6 right for the one who needs it less (5inderman has a C claim in state courtD /oth has no C claim) (!) instrumental: no (6 in the case where the administrator e*ercises discretion (pre)depri ation hearing is useful if administrator has discretion) e) created a &lue)print for legislatures to gi e complete discretion to the administrator 7. =athews v. *ldridge 2345>, p. 5>>%?what does $' re@#ireA a) 55+ termination does not re;uire pre)termination e identiary hearing &) &alancing test (3athews factors): (1) pri ate interest that will &e affected &y the official action

Admin Law Outline: 1!

$.

2.

(!) the ris# of an erroneous depri ation of such interest through the procedures used% and the procedural alue% if any% of additional or su&stitute procedural safeguards ($) the go ernment9s interest% including the function in ol ed and the fiscal and administrati e &urdens that the additional or su&stitute procedural re;uirement would entail (2) this test treats the e*isting procedures as the &aseline against which to compare what the plaintiff is as#ing for c) e*isting procedures: ;uestionnaireD notice of contemplated termination (w1 reasoning)D written responseD state agency ma#es final determination termination of &enefits opportunity to see# de no o re iew from state agency: de no o hearing &efore AL0D re iew &y appeals council of 55AD re iew in district court d) process desired: Jold&erg . Celly)type full)fledged pre)termination hearing e) distinguish from Jold&erg . Celly: (1) the e idence is more scientific and the written su&missions are coming from doctors% etc. 74. a lot of cases are &ac# pain% etc. and mental disa&ility (!) higher educational &ac#ground 74. most lac# education% that9s why they can9t get a white collar "o&s ($) assumption that the recipients don9t actually need the &enefits 74. most disa&ility &eneficiaries are low)income (see this case) (2) 55+ is not need)&ased (<) &eneficiaries can apply for welfare (E) court ma#es a decision denying entire class pre)depri ation hearings no separate consideration of poor recipients retreat from Jold&erg a) /oth15inderman defines a whole category of cases where the (6 clause doesn9t e en attach &) 3athews cuts &ac# on the (6 re;uirements in the cases where (6 does attach c) Huestion: do we need &oth steps> why not assume that (6 always attaches and then &alance> ,le eland 7oard of :ducation . Loudermill (1?B<% p. F?B)@no &itter with the sweet a) e*isting procedures: full post)depri ation hearing% ad erse e idence% notice of charges some pre)termination hearing re;uired &) 5ympathetic application of 3athews factors (1) pri ate interest: court loo#s at su&stantiality of pri ate interest of retaining employment without reference to welfare system (more sympathetic than 3athews court% which considered the fact that the indi idual can &e compensated after the fact) (!) ris# of error: court recogniAes process is important as a process to inform decision (in 3athews% the court only cared a&out erroneous outcomes% didn9t care a&out the administrator9s e*ercise of their range of discretion) ($) go ernment interest: court recogniAes go ernment9s interest in not ma#ing erroneous decisions (argument made in Jold&erg% &ut not in 3athews) c) court: legislating for cause remo al creates a right% which constitutional (6 protects throw out any legislati e ;ualifications on this right that are inconsistent with the (6 clause d) /ehn;uist dissent: &itter with the sweet (1) sweet L continued employment w1 for cause dismissal (!) &itter L procedures do not include pre)dismissal hearing ($) is the logical e*tension of this argument that an agency should get ,he ron deference in defining what for cause re;uires> 'ot necessarily% &ecause he9s tal#ing a&out when the same statute creates the right and defines the procedural protection (2) &ottom line: depends on whether you thin# su&stance and procedure are separate or on a continuum

III. +he *0ercise of Administrative 'ower: +he 'roced#ral Categories in Action A. Londoner1 7i3etallic distinctions B. A'A 1. .he ,hart (p. !2!): a) categories: (1) +nformal /ule)ma#ing: K<<$

Admin Law Outline: 1$

!.

$.

2.

<.

(!) -ormal /ule)ma#ing: K<<$% <<E)<<F ($) +nformal Ad"udication: > (2) -ormal Ad"udication: K<<2% <<E)<<F &) note: trend since the 'ew (eal is from formal ad"udication informal rule)ma#ing rule)ma#ing s. ad"udication a) K<<1(2): /ule agency statement of general or particular applica&ility and future effect . . . &) K<<1(E): Order agency disposition that is not rule)ma#ing% &ut includes licensing K<<$: /ulema#ing (1) :*ceptions (!) 6u&lication of general notice of proposed rule. (a) time1place1nature (&) legal authority (c) either the terms or su&stance of the proposed rule or a description of the su&"ects and issues in ol ed M:*ceptions: (i) interpreti e rules% general statements of policy% or rule of organiAation procedure% or practice (ii) good cause e*ception ($) After notice% (a) the agency shall gi e interested persons the opportunity to participate through su&mission of written data% iews% or arguments with or without opportunity for oral presentation. (&) After consideration of the rele ant matter presented % the agency shall incorporate in the rules adopted a concise general statement of their &asis and purpose (c) =hen rules are re;uired &y statute to &e made on the record after opportunity for an agency hearing K<<E)<<F instead (no comment period) K<<2: Ad"udication (1) only applies in case of on the record after an opportunity for an agency hearing (e*ceptions) (!) persons entitled to notice% shall &e timely informed (a) time1place1nature (&) legal authority (c) matters of fact and law asserted ($) interested parties (a) su&mission and consideration of facts% etc. when time% nature of proceeding% and the pu&lic nature permit% and (&) to the e*tent that the parties are una&le so to settle K<<E)<<F (2) e* parte rule . . . K<<E does pro ide for lac# of hearing: +n rule ma#ing or determining claims for money or &enefits or applications for initial licenses% an agency may% when a party will not &e pre"udiced there&y% adopt procedures for the su&mission of all or part of the e idence in written form

C. Co#rt cant add proced#re beyond the A'A: Bermont Can/ee #clear 'ower Corp. v. ,eso#rces $efense Co#ncil 2345D, p. 7;9% 1. in informal rule)ma#ing proceeding% agency ga e notice% allowed comments% and oral comments ,ourt of Appeals said (6 re;uires disco ery and cross e*amination 5upreme ,ourt says no !. narrow holding: ,ourt of Appeals can9t order cross)e*amination in informal rule)ma#ing $. &road holding: federal courts can9t order more procedure in informal rule)ma#ing% and may&e in any procedure. 2. pro&lem with allowing more> a) "udges will rule on su&stanti e issues &y gi ing procedural rationale &) agencies will gi e e*cessi e procedures <. note: a) statute can re;uire more than A6AD &) agency can pro ide more than A6AD c) (ue 6rocess may re;uire more% &ut only ery rarelyD

Admin Law Outline: 12

d) ,ourt will also later interpret A6A to re;uire more procedures than a fair reading of the A6A would re;uire see especially O erton 6ar#% which limits the holding of this case% &y pointing out the necessity of some procedure for "udicial re iew $. Eormal Ad.#dication 1. Jeneral: a) flow chart (p. !<E): (1) initiating e ent: interested pu&lic% license applicant% enforcement staff (!) in estigation: agency staff% in estigatory su&"ect (K<<< (c%d)) ($) decision to go forward1notice: agency staff or head% parties (K<<2% <<B) (2) pre)hearing: parties% agency staff% AL0 (K<<2% <<<% <<F(d)) (<) hearing: parties% agency staff% AL0 (K<<2(c%d)% <<E% <<F(d)) (E) decision: AL0 or responsi&le official (K<<2(d)% <<F% <<B) (F) re iew: parties% agency staff% agency head or &oard (K<<F) (B) decision on re iew: agency head or &oard (K<<F) &) case: -., . ,ement +nstitute (1?2B% p. !<F)@com&ination of functions OC (1) price)fi*ing in cement sales: -., in estigates and then ad"udicates OC (!) +ssue (a) 6ossi&le 7ias: -., had already done its own in estigation (in a non)ad ersarial manner) and decided that this was an unfair practice. (&) 'o impermissi&le &ias: (i) generaliAed iews on ;uestions of law and policy OC (ii) iews on practices of particular parties to the proceeding would not &e OC c) ad"udicatory hearing s. "udicial trial (1) agencies often ha e control of the prosecutorial function (a) note: K<<2(d) pro ides that the AL0 may not &e responsi&le to or su&"ect to the super ision or direction of an employee or agent engaged in the performance of an in estigating or prosecuting function (&) note also pro isions on e* parte contacts &elow (!) agencies participate in non)"udicial acti ities (li#e testifying &efore ,ongress) ($) agencies use ad"udication to set policy (whereas federal courts are merely supposed to interpret the law) !. (ecision)3a#ing a) Ad"udicati e 'otice (1) -ederal ,ourts (a) general: only facts that are not su&"ect to reasona&le dispute can &e noted (&) Legislati e facts: no -/: go erns (i) notice ta#en (ii) no opportunity to respond (c) Ad"udicati e -acts: -/: go erns (i) notice can &e ta#en (ii) &ut only if party is gi en opportunity to respond (!) A6A K<<E(e): =hen an agency decision rests on official notice of a material fact not appearing in the e idence in the record% a party is entitled% on timely re;uest% to an opportunity to show the contrary ($) ,astillo)8illagra . +mmigration and 'aturaliAation 5er ice (1??!% p. !E2)@response to ad"udicati e facts (+'A) (a) facts to note (i) 5andanistas out of power: (a) ,hamorro presidency: legislati e fact (&) Anti)5andanista parliament: legislati e fact

Admin Law Outline: 1<

(c) 7ut a&o e doesn9t mean that the 5andanistas are out of power: is that a legislati e fact> (ii) 5andanistas can9t hurt this family: ad"udicati e factfamily has to ha e the opportunity to re&ut (&) Holding (i) +f the "udge is going to ta#e notice of this fact% they ha e to gi e opportunity to respond% (ii) &ecause notice doesn9t replace e idence% &ut rather directs party9s presentation (c) 7ut what can &e ta#en notice of at all> (i) court notes early case which implies "udge can ta#e notice of anything helpful (/ule of ,on enience) (ii) continuum from legislati e to ad"udicati eD continuum from no opportunity to no notice (iii) much &roader range for ad"udicati e notice in administrati e agencies than in federal court (a) pro: (i) e*pertise: the agency has seen the same sorts of cases o er and o erD so more facts will &e deemed esta&lished (ii) efficiency (if we ma#e agencies operate li#e courts% we lose the ad antages of courts) (&) con: (i) due process rights of indi iduals (ii) agency will ha e an institutional interest in defending its own iew (i.e.% &ureaucratic &ias% decision that a country does1not persecute) &) 6roof 5tandards: (irector% Office of =or#ers9 ,ompensation . 1reenwich Collieries (1??2% p. !FB) (1) 'arrow Holding: (epartment9s true dou&t rule@that the &urden of persuasion is on the person opposing the payment of &enefits% and thus if the e idence is in e;uipoise% the employee wins iolates < 45, K<<E(d) NKF(c) of the A6AO (!) 7road Holding: interpret the A6A as what it would ha e meant in 1?2E (a) note: when com&ined with 8ermont Pan#ee% this should mean that administrati e action re;uires ery little procedure (&) &ut as agencies shifted from formal ad"udication to informal rule)ma#ing as the policy) ma#ing mechanisms% procedural re;uirements proliferated% i.e. under the O erton 6ar# rule that procedures are re;uired for "udicial re iew ($) claim: true dou&t rule iolates K<<E(d)% which states that the proponent of a rule or order &urden of proof (2) Huestion: what is &urden of proof (&urden of persuasion or &urden of production)> (a) loo# to ,ongress9s intent% &ecause if court1agency wrongly interprets% ,ongress can amend (&) How to find ,ongress9s intent> (i) ma"ority: interpret the A6A language &y what it would ha e meant in 1?2E (&urden of persuasion) (ii) &ut what if ,ongress wanted the agency to apply whate er the ,ourt9s applied and this was itself e ol ing> (a) in fact% O9,onnor was pro&a&ly wrong that the meaning was set in 1?2E (&) it would ha e &een easier for her to argue that it is set now (c) note: no agency gets ,he ron deference when interpreting the A6A (i) A6A is attempt to promote uniformity 74. A6A is only the default setting (ii) agency has e*pertise on own statute% not on A6A 74. the agency should also #now &etter what the A6A should mean for its agency (d) poor agency litigation (i) ,ourt assumes that the agency is interpreting the A6A and that the agency gets no deference

Admin Law Outline: 1E

(ii) agency could ha e won if they said they were interpreting the organic statute% so long as the organic statute doesn9t e*plicitly pro ide either way c) Agency /e iew (1) -ederal ,ourt: fine to affirm a district court9s decision citing the court9s reasoning as su&stantially correct (!) Armstrong . ,-., ($d ,ir. 1??$% p. !BE)@agency must state reasoning (a) ,-., upholds AL0 decision as su&stantially correct not OC (&) 'ot OC in administrati e agency: (i) functional: the policy ma#er who will &e re iewed in Art. +++ court is the ,-.,% not the AL0% so the courts need to #now what the ,-., thought% not what the AL0 thought. (a) pre ent ar&itrary decisions (&) pro ide parties with reasoned e*planations for those decisions (c) settle the law for future cases (d) furnish the &asis for effecti e re iew (ii) formal: A6A K <<F(c) on contents of decisions states: statement of . . . findings and conclusions% and the reasons or &asis therefor% on all material issues of fact% law% or discretion presented on the record

$.

(ecision)3a#ers a) AL0 in1dependence (1) appointment1remo al (a) appointment &y Office of 6ersonnel 3anagement (&) remo al under KF<!1 for cause (!) decisional independence: what influence can agency e*ert on AL0s> (a) Agency can always re erse indi idual decisions (&) 'ash . 7owen (!nd ,ir. 1?B?% p. ?<?) (i) court OCs policies% &ecause district court9s finding that the policies did not infringe on the decisional independence of the AL0s was not clearly erroneous (ii) policies (a) peer re iew program to promote ;uality and efficiency OC (i) policies designed to insure a reasona&le degree of uniformity OC (ii) &ecause 5ecretary is ultimately authoriAed to ma#e the final decisions (iii) potential pro&lem: direct interference with li e9 decisions not the case here (&) ;uota (i) reasona&le goals% not unreasona&le ;uotas OC (ii) &ecause necessary to deal with the &ac#log (iii) potential pro&lem: AL0 might need more time to re erse not &ig enough pro&lem (c) ;uality assurance program (<GQ re ersal or more re iew of cases) (i) &elie ed agency that reducing re ersal rates was not the purpose of the policy (ii) ma"or pro&lem: why weren9t they re iewing people who affirmed disproportionately> (c) 55A% OHA . Anyel (3erit 5ystems 6rotection 7oard% 1??$% p. ?EE) (i) OC to discipline and may&e to dismiss AL0 for &ad decisions (ii) pro&lem was not her high rate of re ersal% &ut rather her high degree of error ($) models (a) agency model: agency hires% runs% and disciplines AL0 (&) hy&rid model: (i) O63 hires% 3erit 7oard disciplines (ii) wor# within the hierarchy of the agency

Admin Law Outline: 1F

(iii) this is the current method% and it pro&a&ly won9t change (c) AL0 core model: (i) centraliAed% generaliAed core of AL0s (ii) ad antage: o&"ecti ity 1 legitimacy (iii) disad antage: loss of e*pertise 1 efficiency &) Agency Heads (1) 3organ + (1?$E% p. ?F?): the one who decides must hear (a) not OC for 5ecretary to ma#e decision without hearing or reading any of the e idence or argument 74. under 3organ +8% how to find out what the decision ma#er did> (i) failure to file an intermediate report to which the parties could respond (3organ ++) 74. court denies that this is the pro&lem (ii) report prepared &y acti e prosecutors may &e the &ig pro&lem (&) significant delegation is OC (i) needn9t hear the e idence (ii) needn9t read all documents% etc (iii) the whole decision can &e delegated (c) A6A solution (i) who can hear e idence> (a) AL0 (&) agency (c) mem&er of agency (d) not a trial e*aminer as in early cement case (ii) K<<F(&): su&ordinate (AL0) hearing the case must file a report with an initial decision (iii) K<<F(c): parties are entitled to su&mit e*ceptions to initial decisions &efore re iew (i ) e*ceptions: (a) unless the agency re;uires the entire record to &ee certified to it for decisions (&) e*cept in rulema#ing or determining application for initial licenses (!) =ithrow . Lar#in (1?F<% p. ??<) (a) narrow holding: OC for an agency to first in estigate and then ad"udicate a case (&) &road holding: com&ination of functions does not raise due process pro&lems c) :* 6arte ,ontacts (1) categories (a) communication within the agency (&) communications from within the go ernment &ut outside the agency (i) the president (ii) someone other than the president (iii) someone acting on &ehalf of the president (i ) ,ongress (c) communications from pri ate indi iduals (!) A6A (a) K<<2(d) part of the original A6A (i) employee who ta#es e idence (a) under K<<E(&): the agency% one or more mem&ers comprising the agency% AL0 (&) despite K<<2(d)(,)% agency1mem&ers are pro&a&ly co ered &y the rule if they ta#e e idence (ii) can9t consult a person or party (a) under K<<1(!)% person includes an indi idual% partnership% corporation% association% or pu&lic or pri ate organiAation other than an agency (&) under K<<1($)% party includes a person or agency named or admitted as a party% or properly see#ing and entitled as of right to &e admitted as a party% in an agency proceeding% and a person or agency admitted &y an agency as a party for limited purposes (c) ery am&iguous (i) is the prosecutor for the agency included as a person other than an agency or a party>

Admin Law Outline: 1B

(ii) the agency9s outside e*pert> (iii) is the agency itself a party> (iii) a&out a fact in issue (i ) in formal ad"udication% e*cept for (a) applications for initial licenses (&) ratema#ing% etc (&) K<<F(d) amendment to the A6A in the ?2th ,ongress (1?F<)FF) (i) anyone in ol ed with decision)ma#ing (a) mem&er of the &ody comprising the agency (&) AL0 (c) other employee who is or may reasona&ly &e e*pected to &e in ol ed in the decisional process of the proceeding (ii) can9t consult with an interested person outside the agency (iii) a&out anything rele ant to the merits of the proceeding (i ) in formal (rule)ma#ing) and ad"udication (a) note: pro&a&ly applies to rule)ma#ing although it9s in the section on ad"udication ( ) remedies: (a) disclosure of the communication (&) re;uire iolating party to show cause why his claim1interest should not &e dismissed% denied% disregarded% or otherwise ad ersely affected on account of the iolation ($) factors courts consider (a) did the communication influence the decision> (&) did the person1party who made the contact &enefit from it> (c) did the opposing party ha e ade;uate opportunity to respond> (d) will acating the decision ser e any useful purpose> (2) communication within the agency (a) 6A.,O . -L/A ((, ,ir. 1?B!% p. 1GG2)@agency mem&er and general counsel (represents -L/A staff in appearances &efore the -L/AD prosecutes complaints) (i) not co ered &y K<<2(d) (ii) co ered &y K<<F(d) (a) Applewhaite is a decision ma#er (&) court finds J, to &e outside the agency (i) agency ,-/ defines J, as &eing outside the agency (ii) without the ,-/% would it ma#e sense to apply K<<F(d) to J,> the agency head would not &e a&le to tal# to the general counsel (c) the memo on decertification was rele ant to the merits (d) formal ad"udication (iii) court: although indiscreet and undesira&le% does not oid the decision in the case (&) A.. (-,, 1?FE% p. 1G1E)@should 7ureau staff that prosecuted A.. &e allowed to &e in ol ed in -,,9s decision on ratema#ing> (i) not co ered &y K<<2(d) (ii) might ha e &een co ered &y K<<F(d) (a) -,, is decision ma#er (&) 7ureau might &e considered an interested person outside the agency (li#e J,) (c) any discussion would &e rele ant to the merits (d) formal ad"udication (iii) -,, decision: presumption of propriety (&esides K<<F(d) not yet in place) (<) communication from other parts of go ernment (a) 6A.,O@5ecretary of .ransportation and agency mem&ers (i) not co ered &y K<<2(d) (ii) should &e co ered &y K<<F(d) (a) Applewhaite1-raAier are decision)ma#ers (&) 5ecretary is outside the agency

Admin Law Outline: 1?

(c) pressure is rele ant to the merits 74. court doesn9t decide so% &ecause of the reasona&le way the mem&ers dealt with it (d) formal ad"udication (iii) ,ourt: although the 5ecretary should #now &etter% OC (a) the mem&er dealt with it well (&) pro&a&ly didn9t effect merits (c) what remedy> (&) note: status reports do not count as e* parte communications (c) 6ortland Audu&on 5ociety . :ndangered 5pecies ,ommittee (?th ,ir. 1??$% p. 1G!2)@ president ( ia =hite House 5taff) leans on ,ommittee mem&ers (i) co ered &y K<<2(d)>> (ii) co ered &y K<<F(d) (a) ,ommittee mem&ers are decision ma#ers (&) although 6resident has a representati e on the agency% he is still outside the agency (c) rele ant to the merits (d) counts as formal ad"udication (iii) remand to in estigate the e* parte communications to &e placed on the record (i ) president can not try to influence formal ad"udication through e* parte communications (a) unitary e*ecuti e argument (i) agencies are part of the e*ecuti e &ranch so president should &e a&le to influence their policy (ii) separation of powers: the creation of this ,ommittee to do this ad"udication is unconstitutional unless the president is allowed e* parte communication (iii) A6A pro isions are not constitutionally re;uired: interpreting A6A to allow e* parte contacts from the president is not necessarily a iolation of (6 (&) administrati e agency compromises (i) ,ongress can limit president9s remo al powers (ii) ,ongress can est appointment of inferior officers in other &odies (iii) ,ongress can limit influence on formal ad"udication (&ut allow influence on informal rulema#ing) (i ) and ,ongress has the power to re;uire certain decisions &e made through ad"udication (d) 6ills&ury -., (<th ,ir. 1?EE% p. 1G$G)@,ongressional committee pressures agency (i) would pro&a&ly &e co ered &y K<<F(d) now (a) -., agency head (and staff>) are decision)ma#ers (&) 5enate 0udiciary ,ommittee is outside the agency (c) rele ant to the merits (d) formal ad"udication (ii) not OC% e en without K<<F(d)% &ut now that time has passed% the new -., can hear the case (iii) later case limits this rule to the mention of the name of the pending case (a) still allows ,ongress to influence pending cases (&) &ut if we drew a stricter line% then ,ongress would ne er &e a&le to in ite agencies to hearings% and would suffer from lac# of information1e*pertise (E) communications from mem&ers of the interested pu&lic (a) 6A.,O@president of A-. and agency mem&er (i) co ered &y K<<F(d) (a) Applewhaite is a decision)ma#er (&) 5han#er is interested and outside the agency (i) interested person: any indi idual or other person with an interest in the agency proceeding that is greater than the general interest the pu&lic as a whole may ha e (ii) circular definition

Admin Law Outline: !G

(c) rele ant to the merits (d) formal ad"udication (ii) court: contact was inappropriate% &ut not necessary to acate decision (a) general discussion (&) no effect on the ultimate decision of Applewhaite or -L/A (c) no party &enefited (d) no depri ation of due process &y depri ation of opportunity to refute arguments (&) Lasalle 'ational 7an# . ,ounty of La#e (Fth ,ir.% 1?B$% p. 1G2G)@e*)go ernment lawyers9 firm in ol ed in related litigation (i) potential pro&lems of citiAen go ernment (a) will carry out pu&lic ser ice in a way to help later career (&) will use information gained in pu&lic ser ice in pri ate practice (ii) court (a) strict dis;ualification re;uirements for the indi idual attorney (&) wea#er dis;ualification re;uirements for the firm *. Eormal or Informal Ad.#dication 1. 5eacoast Anti)6ollution League . ,ostle (1st ,ir. 1?FB% p. $E1)@hearing means formal ad"udication a) ad"udicatory hearing su&"ect to "udicial re iew must &e on the record% unless the statute specifies otherwiseso e en though the statute here didn9t re;uire formal ad"udication% the record needs to &e set &) reconcile with -lorida :ast ,oast /wy. (&elow under rulema#ing) (1) Attorney Jeneral 3anual says that with respect to ad"udication% a hearing re;uirement implies the further re;uirement that the decision &e made on the &asis of e idence adduced at the hearing (i.e. on the record) 74. the manual also said that ratema#ing re;uired formal rule)ma#ing (74. /ehn;uist ignored the historical argument in -lorida) (!) Londoner 1 7i)3etallic distinction (/ule)ma#ing s. Ad"udication is a is due process) (a) Huestion &ecomes% does informal ad"udication satisfy due process in this situation> (i) if not% then is the only answer to re;uire formal ad"udication% or (ii) should the court order whate er procedures are re;uired to satisfy due process (&) 7ut courts will interpret statutes to a oid constitutional pro&lems% unless ,ongress has made a clear statement as to how to interpret (c) so here% court a oids the constitutional pro&lem &y re;uiring formal ad"udication (d) the distinction &etween 5eacoast and -lorida may &e constitutionally re;uired in light of the Londoner 1 7i)3etallic distinction !. ,hemical =aste 3anagement% +nc . 45 :6A ((, ,ir. 1?B?% p. $EB)@deference to agency unless inconsistent with (6 a) agency regulations interpret pu&lic hearing to mean informal ad"udication court defers to agency interpretation &ecause it is a reasona&le interpretations of an am&iguous statutory pro ision that is not% on their face% inconsistent with due process &) H: is agency interpreting the A6A or the /esource ,onser ation and /eco ery Act (/,/A)> (1) /egulations promulgated under /,/A ha e chosen to conform to the informal1formal distinctions of the A6A (!) +s the ;uestion of what a pu&lic hearing re;uires an interpretation of A6A or /,/A> ($) .he interpretation of &oth statutes simultaneously complicates the ,he ron analysis c) circuit split wea#ening the 5ea)coast presumption that ad"udication is formal A6A K<<<: the minimal default re;uirements for informal ad"udication ague rights to counsel% notice of grounds for denial +ndependent 45 .an#er Owners ,ommittee . Lewis ((, ,ir 1?B!% p. $F?)@informal ad"udication has similar re;uirements as informal rule)ma#ing a) decision not OC &ecause it did not e*plain that the decision was &ased on a report that had not &een released iolates fairness and due process in administrati e law

$. 2.

Admin Law Outline: !1

&) re iew of informal ad"udication (1) decision must not &e ar&itrary and capricious% an a&use of discretion% or otherwise not in accordance with law (KFGE(!)(A) (!) procedures agency employed must comply with A6A% statute% ,onstitution c) despite 8ermont Pan#ee% court demands procedure similar to those re;uired in informal rule) ma#ing (1) court needs a record to re iew (O erton 6ar#) (!) see 6ension 7enefit Juaranty ,orp. . L.8 ,orp (1??G% p. !<$): 8ermont Pan#ee stands for the general proposition that courts are not free to impose upon agencies specific procedural re;uirements that ha e no &asis in the A6A. At most% O erton 6ar# suggests that KFGE(!)(A) of the A6A% which directs a court to ensure that an agency action is not ar&itrary and capricious or otherwise contrary to law% imposes a general Rprocedural9 re;uirement of sorts &y mandating that an agency ta#e whate er steps it needs to pro ide an e*planation that will ena&le the court to e aluate the agency9s rationale at the time of decision. ($) so informal ad"udication is go erned &y K<<< and the fairness re;uirement doesn9t get you anywhere unless it rises to the le el of a iolation of due process so the decision relies on the necessary record for meaningful re iew (therefore% the party doesn9t ha e the right to ha e the report that the agency relied on pu&lished prior to the decision% &ut the decision must e*plain) E. Informal ,#le(ma/ing 1. general: a) flow)chart (p. !?!): (1) +dea for rule)ma#ing: Jeneral 6u&lic% /egulated group% Agency staff1head (K<<$(e)) (!) (ecision to underta#e: Agency staff1head% O37 ($) -ormulation of 6roposal: Agency staff% O37% /egulated group ('/3)% 6otential &eneficiaries (2) 'otice of 6roposed /ulema#ing: Agency staff (K<<$(&)) (<) ,omment 6eriod: 6u&lic% /egulated &odies% Other go ernmental agencies (K<<$(c)) (E) Agency consideration of comments: Agency staff% O37 (K<<$(c)) (F) Nsecond round comments and considerationO (B) 6u&lication of -inal /ule: Agency staff1head (K<<$(c)) &) comparison is to legislature% which is not su&"ect to procedural re;uirements per se &ut remem&er we don9t let agencies do whate er legislatures do that9s why we ha e the A6A to control the administrati e rule)ma#ing process c) A6A Language (K <<$) (1) K <<$(&): 'otice: proposal pu&lished in -ederal /egister (a) time% place% nature of proceedings (&) legal authority (c) terms1su&stance of proposed rule O/ description of su&"ects1issues in ol ed (!) K <<$(c): opportunity for commentD incorporate in the rules adopted a concise general statement of the &asis and purpose d) +ssues: (1) How much notice is re;uired> (!) How much difference is allowa&le &etween proposed and final rule &efore new proposal re;uired> ($) How much e*planation of what studies the rule is relying on> (2) How much e*planation as to why adopting final rule> (<) +n what way must the agency respond to comments> /ule)3a#ing a) 6roposed /ule Adopted /ule: logical outgrowth

!.

Admin Law Outline: !!

(1) American 3edical Association . 45 (Fth ,ir. 1?B?% p. !?E) (ade;uate notice: too &ad% so sad) s. 'ational 7lac# 3edia ,oalition . -,, (!d ,ir. 1?BE% p. !??) (inade;uate notice: denial of right to proper notice1opportunity to &e heard) (a) differences: (i) &ecause the rule would clearly affect the A3A and the policy was one of first impression% the A3A should ha e filed supporting comments (ii) &ecause it was unclear that the long)standing minority preference policy was up for gra&s% the '73, had no notice to file supporting comments 74. it should ha e &een clear to them that under the /eagan administration% the policy could &e discontinued (iii) different circuits different results (&) pro&lem with the A3A approach: forces e eryone to always comment (i) too many comments (ii) &urdens pu&lic (c) pro&lem with '73, approach: might pro ide incenti e for not putting in comments% &ecause a second &ite at the apple is pro ided &y the opportunity to challenge notice in federal court (!) A6A language: (a) <<$(&) (i) notice needn9t e en ha e terms and su&stance of the proposed ruleD could "ust descri&e the su&"ects1 issues in ol edD (ii) if the proposed rule is pu&lished% may&e rule could change completely (&) does K<<$(c) (i) the agency shall gi e interested persons an opportunity to participate in the rule ma#ing (ii) whether this is an o&stacle depends on the &ac#ground interpretation ($) remem&er 8ermont Pan#ee (no new process) and Jreenwich ,ollieries (1?2E) rules &) 45 . 'o a 5cotia -ood 6roducts ,orp. (!d ,ir. 1?FF% p. $1<)@studies and responses (1) enforcement action &ecause 'o a 5cotia &ro#e -(A rules -(A9s inade;uate procedure in promulgating regulations is a defense in enforcement action. (!) claims: (a) failure &y agency to notify interested persons at the time of the proposed rule of the scientific studies the agency relied on (inade;uate administrati e record) (i) although not an on)the)record proceedingD (ii) there still needs to &e some sort of record to ma#e comments meaningful (iii) -(A: the whole point of informal rule)ma#ing is to allow the agency to rely on its e*pertise (&) agency didn9t respond ade;uately to '59s comments (i) although the -(A needn9t &e persuaded &y '59s comments (ii) they must address the comments (c) ,ourt: if there9s some special agency e*pertise it doesn9t need to go into the record (that would merge informal with formal rule ma#ing)% &ut if relying on a pu&lished study% must re eal thatD must address comments. ($) Huestion: how would this case &e decided today% after 8ermont Pan#ee% Jreenwich ,ollieries% ,he ron> (a) under 8ermont Pan#ee (i) disclosure of studies at '6/3 phase (a) 45: A6A only re;uires time1place1nature% statutory authority% su&"ects and issues1terms or su&stance of proposed rule e*lusio unius: if something is specifically enumerated% then the list is e*hausti e (&) '5: e*clusio unius is not dispositi eD the purpose of notice is not purely formal% &ut also functional notice is to offer opportunity to participate in the rule ma#ing (K<<$(c)) not meaningful without notice of the studies (ii) response to comments

Admin Law Outline: !$

c)

(a) 45: concise general statement: conclusory and shortD &asis and purpose: means supporting the position adopted% not responding to other alternati es (&) '5: no assurance of participation (in reality this is a "o#e) (&) under Jreenwich ,ollieries% loo# to Attorney Jeneral9s 3anual of the Administrati e 6rocedure Act (1?2F% pp. !?!)?$): generally limits process (i) disclosure of studies: (a) 45: an agency is free to formulate rules upon the &asis of materials in its files and the #nowledge and e*perience of the agency% in addition to the materials adduced in pu&lic rule)ma#ing procedures (ii) response to comments: (a) 45: statement should ad ise pu&lic the general &asis% not &e ela&orate analysis (c) ,he ron: always wor#s for the go ernment (i) 45: defer to agency (ii) '5: it is A6A% not organic statute &eing interpreted is that fatal% or are they sufficiently intertwined > (see ,hemical =aste 3anagement% deference to agency interpretation of /,/A and A6A) (d) upshot: the go ernment9s arguments are more compelling (i) &ut the 5, has no interest in re isiting these issues on informal rule)ma#ing (ii) outer limit: cross e*amination can ne er &e ordered (that9s the narrow holding of 8ermont Pan#ee +ndependent 45 .an#er . (ole ((, ,ir. 1?BF% p. $$G)@"ustifications for rule must &e among the statutory o&"ecti es (1) (o.9s rule acated &ecause statement of &asis and purpose is inade;uate (ar&itrary and capricious standard) (!) failure to lin# policies ser ed &y the rule (free mar#et) with the o&"ecti es set out in the rule Agency can9t su&stitute goals

$.

:* 6arte ,ommunications with /ule 3a#ers a) H7O . -,, ((.,. ,ir. 1?FF% p. 1G<1)@old case (1) two trac#s (a) pu&lic notice and comment rule)ma#ing proceedings (&) e* parte contacts from industry (!) court: after notice% then there can &e no more e* parte contacts (a) "ustified &y O erton 6ar#)type reasoning that the record must &e re iewa&le (&) 74. A6A pro isions on e* parte do not apply to informal rule)ma#ing (c) 74. why draw the line and the pu&lication of the '6/3> (d) despite O erton 6ar#% this is pro&a&ly o er)ruled &y 8ermont Pan#ee ($) middle ground> (a) put e* parte written su&missions in the doc#et (&) some indication that con ersations too# place in the doc#et &) 5ierra ,lu& . ,ostle ((, ,ir. 1?B1% p. 1GE?)@(presidential) e* parte influence in informal rule) ma#ing (1) this case is anomalous &ecause ,lean Air Act uses hy&rid rule)ma#ing (a) doc#eting re;uirements in this case may stem from hy&rid rule)ma#ing (&) informal rule)ma#ing under the A6A would pro&a&ly re;uire e en less (!) iews of president (a) coordinator of national policy (&) partisan politician (c) horse)trader ($) court strongly presumes that the president is acting as coordinator of pu&lic policy (a) president is always acting in all three capacities (&) court refuses to order disco ery to su&stantiate the legitimacy of president9s actions (c) &ut note: -'E: if it is su&stantiated that they are conduit communications% not OC (2) 5enator 7yrd9s communications (a) -'?: news account is not enough e idence

Admin Law Outline: !2

2.

<.

(&) if there was an affida it% then may&e enough to order disco ery (c) &ut still need to pro e that it was what the agency &ased rule on impossi&le (<) /emem&er: these contacts can only affect the rule so long as it remains consistent with the statute re iew under ar&itrary and capricious standard (E) note: -' <: interagency documents to &e doc#eted% &ut e*cluded from interagency re iew (a) can not loo# at these documents under ar&itrary and capricious re iew (&) &ut pro&a&ly can &e loo#ed at to determine whether agency was su&"ect to impermissi&le pressure c) (, -ederation . 8olpe ((, ,ir. 1?F1% p. 1GF<)@remand to in estigate ,ongressman9s threat (1) !)pronged rule (a) did ,ongressman ma#e impermissi&le threat (impermissi&le in that it raised a factor that agency is not supposed to consider% according to the statute)> (&) was the rule &ased on that threat> (!) sources of this harmless error)type standard: (a) there is generally no harmless error standard in rule)ma#ing% &ecause error doesn9t #ill the rulerather agency can promulgate the rule again (&) court &ending o er &ac#ward to let congress1president into process (c) no remedy: e en if you force agency to start o er they will still consider the pressure 'egotiated /ule)ma#ing a) definition: use of participation of interested parties &efore the notice and comment period &) procedure (1) notice in the federal register announcing the intent to use negotiated rule)ma#ing and listing the proposed participants% agenda% timeta&le% etc. (!) additional persons can apply to participate ($) the pu&lic has $G days to comment on the proposed procedure c) "udicial re iew: re iew of the procedure relating to the esta&lishment1termination of the negotiated rulema#ing committee is not allowed% although the final rule may &e re iewed d) pro&lems (1) you can9t ma#e e eryone happy% so it might not &e a good choice for contro ersial issues (!) ina&ility of agency to identify and get participation of all affected parties ($) compromise may not result in a rule that ma*imiAes welfare or the pu&lic interest (a) agency gi es up its mandate under the statute (&) and delegates it to pri ate parties O37)O+/A a) /eagan9s :O 1!!?1 &) ,linton9s :O 1!BEE (1) similar in su&stance (!) written communications must &e doc#eted (close the loophole of e* parte communications ia O37) c) technically% the O37 comments are merely ad isory (1) in reality% they ha e a lot of power (!) each administration has set up an ar&itration mechanism d) pro&lems (1) cost)&enefit analysis (a) one)way effect of deregulation (&) despite the fact that the :O says O37 can not come in if the statute says that the regulations must &e promulgated without regard to cost% this is so open to interpretation that all ma"or rules come in (!) non)e*perts ($) massi e delay

1. Informal or Eormal ,#le(ma/ing 1. 4.5. . -lorida :ast ,oast /ailway ,o. (1?F$% p. $$?)@hearing means informal rule)ma#ing a) rule)ma#ing (rate)setting) does not re;uire formal rule)ma#ing unless the organic statute e*plicitly re;uires it so informal procedures OC here

Admin Law Outline: !<

&) rule: hearing means informal rule)ma#ing% unless it clearly means formal rule)ma#ing (trac#s the words of the A6A: on the record hearing) (1) the statute only said a hearing% not an on the record hearing (!) under Jreenwich ,ollieries% the Attorney Jeneral9s 3anual says that ratema#ing hearings are on the record 74. e en if this case had post)dated Jreenwich ,ollieries% the court could ignore J, ($) note: despite the fact that the language of K<<2(a) on formal ad"udication is the same as the language of K<<$(c) on formal rule)ma#ing% the rule in this case is not dispositi e in cases that in ol e ad"udication (see 5ea),oast a&o e) !. Harry and 7ryant ,o% . -., (1?B2% p. $<!): statute can pro ide for something in &etween formal and informal rule)ma#ing.

H. Cet(=ore(Informal ,#le(ma/ing: interpretati e rulesD general statements of policyD rules of agency organiAation% procedure% or practice 1. general law go erning a) K<<$ (1) K<<$(&)(A) says that K<<$(&) does not apply to interpreti e rules% etc. (!) as K<<$ is interpreted to re;uire more% the alue of this e*ception is raised &) go erned only &y -O+A (K<<!) to pu&lish any instrument that may affect the pu&lic in the -ederal register. (1) K<<!(a)(1) may not include all interesting issues of policy (!) K<<!(a)(1)(() includes statements of general policy and interpretations of general applica&ility (and su&stanti e rules: repeats K<<$ re;uirement) !. su&stanti e rule s. interpreti e rule a) su&stanti e rule: has force of law (1) if agency rule doesn9t re;uire "udicial enforcement% then the su&stanti e rule could e*act legal conse;uences &) statement of general policy1interpretation: iolations of these are not a iolation of general law (1) complaint can not allege iolation of interpreti e rule (!) &ecause statement is not finally determinati e of the issues it address ($) &ut can use the interpreti e rule to show iolation of the statute c) note: while only the su&stanti e rule is &inding% ,he ron deference pro&a&ly applies to &oth su&stanti e and interpreti e rules d) 'o a 5cotia made e en informal rule)ma#ing cum&ersome% so agencies try to get around the process (1) use of interpreti e rules note: there is still a pu&lication re;uirement (!) use of things that don9t e en need to &e pu&lished under K<<! $. criticisms and limits on yet)more)informal)rulema#ing a) interpreti e rules% etc. ha e the practical effect of imposing a norm on the pu&lic 74. the capacity of these rules to ha e a &inding effect is limited &y the shadow of "udicial re iew &) a rule that narrowly limits agency9s discretion can gi e rise to re;uirements of notice and comment rulema#ing c) decisions to e*pend otherwise unrestricted funds are not without more su&"ect to notice and comment re;uirements (Lincoln . 8igil) IB. +he *0ercise of Administrative Law: Agency $iscretion in Choosing Between ,#le(ma/ing and Ad.#dication A. +he *0tent, and Implications, of the 'ower to Choose 'olicy(ma/ing =ode 1. -ormal Ad"udication s. +nformal /ule)ma#ing a) rule)ma#ing is more predicta&le and gi es affected parties time to weigh in (1) higher ;uality policy decisions (a) in ites &road participation

Admin Law Outline: !E

!.

(&) more complete information (c) encourages agency to focus on &road effects rather than idiosyncratic facts (!) enhances efficiency (a) costs and delays of formal ad"udication (&) eliminates need to relitigate policy issues in the conte*t of disputes with no material differences in ad"udicati e facts (c) yields much clearer rules ($) greater fairness to regulated parties (a) clearer notice of what conduct is im1permissi&le (&) generally less retroacti ity (2) 74. O371O+/A gets in the way of rule)ma#ing &) ad"udication ma#es use of the facts of a particular case (1) indi iduation74. this can &e pro&lematic a rule is there&y fashioned (!) sometimes ad"udication allows agency to de elop policy more su&tly% and with less scrutiny c) other factors to consider in ma#ing the choice (1) certainty: how certain is the agency a&out what policy it wants to adopt> (!) fre;uency: how fre;uently does the agency anticipate the ;uestion will come up> ($) comprehensi eness: is the issue inherently entangled with other issues that would &etter &e addressed comprehensi ely> (2) &usy)ness: what other issues are currently pressing for the agency9 attentions 5:, . ,henery ,orp. (1?2F% p. 21B)@agency can ma#e policy through ad"udication a) procedural posture: (1) ,henery +: 5:,9s action (ad"udication) can9t &e sustained on the grounds stated &y the agency when policy)ma#ing% the agency has to say that it9s policy)ma#ing and not issuing an order upon "udicial authority (!) ,henery ++: action sustained &ecause "ustified it pursuant to the Act &) illustrates the difference &etween court and agency agency is not &ound to stare decisis when ma#ing policy c) announces administrati e law principle: when a court is re iewing the legality of an agency decision% it re iews it only on the &asis of the reasons gi en in the administrati e proceeding d) this change in policy should ha e &een done &y (prospecti e) rule)ma#ing (1) howe er% agency choice of ad"udication or rule)ma#ing is within the discretion of the agency and the court will not police this choice so long as the statute does not direct the agency to act in a particular way (!) e ery case of first impression has a retroacti e effect e) 0ac#son dissent: (1) res "udicata applies (!) policy should not &e changed through ad"udication use rule)ma#ing ($) retroacti ity pro&lem

B. +ime Erame: ,etroactivity and 'rospectivity 1. chart: a) retroacti e and prospecti e changes &y rule)ma#ing> (1) e*isting rule created &y rule)ma#ing (a) no primary retroacti ity% unless clear statement (7owen) (&) possi&le ,lar#),owlitA analysis of secondary effects (!) e*isting rule created &y ad"udication ditto &) prospecti e only changes &y rule)ma#ing yes% regardless c) retroacti e and prospecti e changes &y ad"udication (1) e*isting rule created &y rule)ma#ing no (AriAona Jrocery) (!) e*isting rule created &y ad"udication yes% &ut see ,lar#),owlitA d) prospecti e only changes &y ad"udication no% regardless (=yman)Jordon) !. 6rimary s. 5econdary /etroacti e effects a) primary: alters present legal conse;uences of past conduct

Admin Law Outline: !F

&) secondary: changes future alue of past acti ity $. 7ell Aerospace . 'L/7 (!d ,ir. 1?F$% p. 2!E) 1 'L/7 . 7ell Aerospace (5, 1?F2% p. 2!?)@policy )ma#ing through ad"udication will ha e retroacti e effects a) !d ,ir.: the 'L/7 must employ rule)ma#ing to determine whether &uyers are managers under 'L/A &) 5,: the 'L/7 can determine the ;uestion through ad"udication (1) the possi&le reliance of industry on past decisions is not enough to re;uire rule)ma#ing here (!) while rule)ma#ing would pro ide the 7oard with a forum for soliciting informed iews% the 7oard has the discretion to utiliAe ad"udication ($) 74. there may &e some situations where the 7oard9s reliance on ad"udication would amount to a&use of discretion (may&e if a massi e fine is in ol ed) c) cites: 'L/7 . =yman)Jordon (1?E?% p. 2!F)@prospecti e only ad"udication is in alid (1) the 'L/7 creates a new re;uirement in ad"udication of a case of first)impression% and rules that the decision is prospective only (!) 5,: prospecti e)only ad"udication is in alid (a) rule ma#ing must &e used for prospecti e)only rules (&) 74. the 5, upheld the rule as applied in the second case anyway% &ecause the rule stood on its own when applied to the party in the case 7owen . Jeorgetown 4ni ersity Hospital (1?BB% p. 2$E)@no retroacti e rule ma#ing unless clearly authoriAed &y statute a) retroacti e rule)ma#ing is not OC% e en when the rule is &asically reaffirming a rule made earlier% &ut in alidated for procedural errors &) ma"ority: clear statement rule (1) primary retroacti e effect is only allowed if ,ongress e*pressly granted the agency the authority to promulgate such retroacti e rules (!) the statutory language referring to retroacti e correcti e ad"ustments applies to case)&y)case ad"udication% not to rule)ma#ing ($) //: wrong to use clear statement rule &etter to call it a canon of construction (a) if you call it a clear statement rule% then the agency should &e gi en ,he ron deference> (&) if you call it a canon of construction (presumption against non)retroacti ity)% then under first prong of ,he ron% the statute is unam&iguous c) 5calia concurrence: under the A6A% rules only ha e prospecti e effects (1) the entire dichotomy &etween rules and orders is that rules ha e only prospecti e effects whereas orders also ha e retroacti e effect (o erstatement>) (!) A6A does not disallow rules from ha ing secondary retroacti e effects d) //: this is an odd case% &ecause the rule only has a retroacti e affect e) 'ote: the holding only applies to primary retroacti ity (1) it is hard to imagine any regulation without secondary retroacti e effects (!) the court might loo# to the < factors in ,lar#),owlitA to assess fairness of secondary retroacti e effects of rule)ma#ing% &ecause there is no reason why reliance is any less important in the rule)ma#ing conte*t than it is in the ad"udication conte*t ,lar#),owlitA 0oint Operating Agency . -ederal Agency /egulatory ,ommission (1?BB% p. 22<)@ factors a) can ad"udication retroacti ely change a rule esta&lished through ad"udication> yes &) fi e factors (retroacti e ad"udication) (1) case of first impression fa ors retroacti ity (a) &ecause no reliance or notice pro&lem (&) conflict with a pre)e*isting legal regime or industry practiceD agency departure from common law (c) //: in this case% it is not a case of 1st impression% &ut rather a first reinterpretation court is wrong

2.

<.

Admin Law Outline: !B

c)

(!) a&rupt departure from well esta&lished practice disfa ors retroacti ity (a) since this is not a well esta&lished practice retroacti ity OC (&) //: this should &e split into ! factors (i) a&rupt departure (ii) well esta&lished practice ($) reliance disfa ors retroacti ity (a) there wasn9t enough time to rely on the earlier interpretation retroacti ity OC (2) hea y &urden disfa ors retroacti ity (a) small &urden here &ecause the company didn9t lose the right to compete% "ust to tilt the scales in its fa or retroacti ity OC (&) //: "udge is only loo#ing at whether retroacti ity wor#s a penalty for past conduct (i) cost ,lar#),owlitA put into the application is not a &urden (ii) loss of prospecti e profits is not a &urden (iii) H: are we considering only primary retroacti ity or secondary retroacti ity as well> (<) statutory interest in applying the new rule fa ors retroacti ity (a) the agency had no interest in changing the policy &ecause ,ongress already did it (&) agency interest may &e consistency &ut in order to change policy% some lac# of consistency is ine ita&le (will either &e li#e past cases or li#e future ones) 'early impossi&le to pass this test against retroacti ity (1) you ha e to ha e e*traordinary reliance or conduct erging on agency malfeasance to win (!) this is good% &ecause we don9t want to freeAe agency policy ($) if you pass can9t change rule in this way (a) if it would &e too unfair to this party% then don9t change the rule here (&) can change policy ne*t time or through rule)ma#ing

C. Stat#tory ,ights to an Individ#ali)ed -earing 1. Jeneral Huestion: when the statute calls for a decision to &e made &y hearing% how far can the agency go in narrowing the range of issues to &e heard &y rule)ma#ing on some issues> !. Hec#ler . ,amp&ell (1?B$% p. 2<$)@OC to narrow issues through rule)ma#ing a) it9s OC for 55A to ma#e a grid esta&lishing whether certain "o&s are a aila&le in the national economy &) statute: persons una&le to engage in any su&stantial gainful acti ity Nwor# that e*ists in the national economyO &y reason of any medically determina&le physical or mental impairment c) agency decisions: (1) what #ind of wor# can the person do> indi idualiAed hearing (!) are there those "o&s a aila&le in the national economy agency makes grid (a) rule uses grid% &ut does pro ide for ariance (offer reasons why the guidelines should not apply to her) (&) alternati e: case &y case hearing: e*pert witnesses that applicant can cross)e*amine or re&ut through own witness d) policy arguments (1) for: efficiency and uniformity (and o&"ecti ity) (!) against indi idual cases pro ide for full ad"udication rights (a) 74. the rule pro ides for ariance (&) 74. the rules are made through notice and comment rule)ma#ing B. +he *0ercise of Administrative 'ower: +he ,ole of 'rivate 'arties in Shaping Administrative 'roceedings A. note: convergence of r#le(ma/ing and ad.#dication 1. rule)ma#ing is &ecoming more li#e ad"udication e eryone can su&mit iews% and they ha e a right to get some response to those iews ('o a 5cotia) a) &ecause of possi&ility of a&use in o erly informal rule)ma#ing &) &ecause of the ina&ility of agencies to represent the pu&lic

Admin Law Outline: !?

!.

ad"udication is &ecoming more li#e rule)ma#ing &road inter ention rights(4nited ,hurch of ,hrist . -,,) a) &ecause general policy is made through ad"udication &) &ecause ad"udication impacts the pu&lic

B. Intervention 1. 4nited ,hurch of ,hrist . -,, (1?EE% (, ,ir.. p. 2E<)@inter ention &y unrepresented interests a) ,hurch see#s inter ention in renewal proceedings when racist radio station applies for license renewal inter ention allowed &) inter enor argument: no party to proceeding (station and -,,) can represent the interests of the pu&lic listening audience c) Huestion: who can inter ene> (1) representati e of an interest not otherwise represented (CCC couldn9t inter ene% &1c the radio already represents that interest) (!) first)come first)ser ed claims to representation of interests ($) a competitor: note that agency would ha e granted inter enor status to competitor% &ut denied to 4,,% &ased on economic interest !. inter ention in district court s. inter enor in agency proceeding a) in court% inter enor gets the rights of a party &) in agency% inter enor gets less: only can address self to own interests court lea es fle*i&ility to agency to limit the role to otherwise non)represented interests c) in court% two categories of inter enors (1) &y right: parties must &e affected &y the litigation% and they could not protect sel es without inter ening% or (!) permissi e: ha e common issues d) in agencies% no Art. +++ standing re;uirement% so some inter enors in agency% can9t get standing in court (may&e some permissi e inter enors in court wouldn9t &e a&le to inter ene at agency) C. '#blic ,ole in Eorcing Agency Action 1. Hec#ler . ,haney (1?B<% p. 2FF)@agency non)action presumpti ely unre iewa&le a) death row inmate attempts to force agency enforcement action not OC% &ecause there is no "udicial re iew of agency non)action &) statute: under -(A% -(A has to appro e drugs as safe and effecti e (1) claim: this is an unappro ed use of an appro ed drug (!) -(A: they only &ring unappro ed use action in case of pu&lic danger or fraud c) /ehn;uist opinion: (1) presumption of re iewa&ility of administrati e action well)settled (!) presumption of non)re iewa&ility of lac# of enforcement actionwhere does this come from> (a) agency competence to esta&lish priorities% so issue not suita&le for "udicial re iew 74. this effect could &e achie ed under 3arshall9s high deference standard (&) prosecutorial discretion analogy (i) 74. the &eneficiary of criminal prosecution is all of society so it ma#es sense to let prosecutors e*ercise discretion% &ut in the regulatory conte*t% there is a class of regulatory &eneficiaries that should ha e their rights indicated (ii) 74. criminal prosecution has a large retri&uti e effect% whereas the li#elihood of ongoing conduct in the administrati e conte*t gi es enforcement action a tangi&le pre entati e effect (c) non)action entails no depri ation of rights (not coercion) 74. this assumes a Lochnerian iew that go ernment non)action is harmlessD doesn9t rule of law esta&lish rights to protection that can &e indicated> (d) no law to apply under FG1(a)(!) agency action is committed to agency re iew% so no re iew (i) 74. there is always at least the ,onstitution to apply (ii) 74. what does no law to apply mean> what would happen if the -(A9s reason was that death row inmates are &lac#% so they don9t care> why is it then

Admin Law Outline: $G

re iewa&le> +f we say the agency acted outside of its authority isn9t that law to apply> (iii) 74. how to tell if the agencies reason is outside of its authority if there is a presumption against re iew> d) 3arshall concurrence: (1) presumption of re iew unless clear and con incing e idence of ,ongressional intent to preclude re iew% &ut re iew under a&use of discretion standard (deference) (!) functional difference &etween 3arshall9s rule and /ehn;uist9s: (a) /: must o ercome presumption of unre iewa&ility to re iew (7rennan pro ides e*amples) (&) 3: always re iewa&le% &ut with a high deference to agency decisions e) 7rennan concurrence: (1) e*ceptions to /ehn;uist9s rule (a) an agency flatly claims that it has no statutory "urisdiction to reach certain conduct (&) an agency engages in a pattern of nonenforcement of clear statutory language (c) an agency has refused to enforce as regulation lawfully promulgated and still in effect (d) a nonenforcement decision iolated constitutional rights (e) nonenforcement decisions made for entirely illegitimate reasons (i.e. &ri&ery) (!) completely undermines /ehn;uist rule !. -armwor#ers 0ustice -und% +nc. . 7roc# (1?BF% p. 2BB)@court can order recalcitrant agency to act a) 1< years of inaction in the rule)ma#ing conte*tcourt orders action &) how to distinguish from Hec#ler . ,haney > (1) rule)ma#ing is less fre;uent than enforcement action (!) rule)ma#ing is a&out LA=16olicy% not a&out facts 74. there is still the ;uestion of priorities% etc. ($) noninstitution of rule)ma#ing is accompanied &y pu&lic "ustification under A6A K<<<(e)% which is re iewa&le 74. K<<<(e) seems &y its terms to apply also to a Hec#ler)li#e denial (2) difference seems to &e moti ated &y the facts of the cases (court doesn9t e en mention the presumption of unre iewa&ility) //9s 7ottom Line: court going out of its way to create presumption and counter presumptionsshould ha e left the law where it was (presumption of re iewa&ility with arying le els of deference)

$.

BI. &#dicial ,eview: Scope A. A'A F56> 1. ar&itrary% capricious% an a&use of discretion% or otherwise not in accordance with law (A) residual standard !. contrary to constitutional right% power% pri ilege% or immunity (7) $. in e*cess of statutory "urisdiction% authority% or limitations% or short of statutory right (,) 2. without o&ser ance of procedure re;uired &y law (() <. unsupported &y su&stantial e idence in a case su&"ect to sections <<E and <<F of this title or otherwise re iewed on the record of an agency hearing pro ided &y statute (:) formal rulema#ing1ad"udication E. unwarranted &y the facts to the e*tent that the facts are su&"ect to trial de no o &y the re iewing court (-) if re;uired &y statute B. categories: 1. ;uestions of fact !. ;uestions of law $. mi*ed ;uestions of fact and law (;uestions of law application: Hearst news&oy case)

Admin Law Outline: $1

2.

;uestion of policy (i.e. agency chooses one of the E ways that the statute allows to deal with the pro&lem% and someone thin#s its silly policy)

C. &#dicial ,eview of Agency Eact#al $eterminations 1. 4ni ersal ,amera ,orp. . 'L/7 (1?<1% p. <!2)@AL0 and agency difference on facts reduces the su&stantiality of the e idence supporting the agency decision a) disagreement &etween AL0 and agency should &e considered when determining su&stantiality of e idence (1) e*aminer9s finding &ased on witnessing the testimony su&"ect to clear error standard &y agency (!) e*aminer9s conclusion of law and policy su&"ect to de no o re iew &y agency &) standard: KFGE(:): formal rule)ma#ing and ad"udication (or otherwise re iewed on the record of an agency pro ided &y statute) su&stantial e idence c) &ut what does su&stantial e idence mean> (1) preponderance<GQI (!) clearly erroneous "udges get the least deference ($) su&stantial e idence agency gets mid)le el deference (2) what "uries get (to a oid directed erdict) "uries get the most d) procedural posture: (1) AL0: found the employer9s testimony to &e more credi&le found no anti)union animus no unfair la&or practice (!) 'L/7: found an unfair la&or practice (a) 'L/7 has the authority as delegated &y ,ongress (&) 'L/7 would &e hampered in its policy)ma#ing if it was constrained &y AL0 fact)finding (c) 'L/7 can a&sor& e*perience1e*pertise of the agency (d) 74. why did the 'L/7 purport to find facts rather than create a re&utta&le presumption> ($) ,A: affirmed 'L/7 (2) 5,: acated ,A and remanded must consider the AL09s findings !. 'L/7 . ,urtin 3atheson (1??G% p. <$!)@presumptions re iewed under rational and consistent with act standard of re iew a) presumptions are OC (1) one year of support of the ma"ority (irre&utta&le) (!) ma"ority support (re&utta&le) ($) replacement wor#ers (a) at first: same proportion of support (re&utta&le) (&) then: no presumption (c) then: this challenge that 'L/7 must presume that replacements oppose the union &) &y setting presumptions% agency can channel what facts AL0 finds counters the consideration the agency has to gi e the AL09s determinations A(A65O . -ederal /eser e ((, ,ir.% 1?B2% p. <2!)@informal rule)ma#ing re iewed under the default ar&itrary and capricious standard of KFGE(!)(A) a) informal rule)ma#ing not su&"ect to su&stantiality of e idence standard &) 74. 5calia: ar&itrary and capricious standard no different from su&stantial e idence standard (1) pro&a&ly true (!) 74. su&stantial e idence is on the record% while informal rule)ma#ing is not on the record and the non)record e idence has to &e ta#en account of &y the re iewing court ,onstitutional1 0urisdictional -acts: a) 0urisdictional fact doctrine (re iew "urisdictional facts de no o) not o erruled% &ut ne er e*tended &eyond ,rowell 7enson (na iga&le waters% employer1employee) historical oddity &) ,onstitutional facts must &e found de no o &y re iewing court (1) arose in conte*t of challenge to ratema#ing as a ta#ing

$.

2.

Admin Law Outline: $!

(!) not hugely applica&le% &ut it does ha e some areas of application wea#ened% &ut not destroyed $. &#dicial ,eview of Agency $eterminations Beyond the Eacts 1. historical approach: 1?2Gs)<Gs cases ha e generati e power agency interpretations entitled to less deference if they aren9t long)standing (conflict with ,he ron% &ut still cited) a) O9Leary . 7rown)6acific)3a*on% +nc. (1?<1% p. <<<)@deference to agency on mi*ed ;uestion (1) award of compensation for employee who died trying to sa e other employees in ri er off of recreational areas agency9s application of a new test within the agency9s competence (!) procedural posture: (a) Agency: compensation (&) (,: upheld (c) ,A: re ersed (d) 5,: re ersed ,A reaffirms agency9s decision on this mi*ed ;uestion of application of law to facts &) 'L/7 . Hearst (1?22% p. <<F)@no deference to agency on lawD deference on mi*ed ;uestion (1) should the term employee &e interpreted as in the common law> (no) (a) ;uestion of law (&) no deference (pre),he ron) (!) what implicates a su&stantial o&structions to the free flow of commerce> (a) ;uestion of law (policy>) (&) no deference ($) were these wor#ers employees> (yes) (a) mi*ed ;uestion (&) deference to agency9s familiarity S e*perience with the circumstances and &ac#grounds of employment relationships (2) why the different standards of deference> (a) 3+55:( +. (&) congressional intent: courts to define outer limits of agency power% &ut then agency ha e discretion to wor# within those limits (c) comparati e legitimacy: courts e*perts on law% while agencies ha e legitimacy of managers of economy (d) comparati e procedural ad antage: appellate court s. agency procedures courts of appeals ha e no fact)finding capa&ilities (e) "udges9 sense of power: "udges thin# they should deal with &ig picture ;uestions% while agencies should deal with details c) 6ac#ard 3otor ,ar ,o . 'L/7 (1?2F% p. <E$)@no deference to agency on mi*ed ;uestion (1) are foremen employees> 5, decides yes% without in o#ing the language of deference% under its own determination% as a na#ed ;uestion of law (statutory construction) (!) why different from Hearst> (a) &ig general issue that goes to the heart of the 'L/A (&) conflicts within the 'L/7 74. note: agency flip)flop in ,he ron interpreted as agency &eing in tune with politics ($) how to define it as a pure ;uestion of law> (a) can anyone who e er super ises employees &e considered an employee> 74. you still ha e the factual determination of what constitutes super ision (&) can foremen organiAe for collecti e &argaining under the '/LA> 74. still seems to re;uire some factual determination

d) 5#idmore . 5wift (1?22% p. <E2)@deference to agency9s informal interpretation (1) e en a manual that is largely interpretation of the law% and is de eloped informally% gets some deference (not controlling% &ut offers guidance)

Admin Law Outline: $$

(a) not controlling &ecause not de eloped formally through formal ad"udication or e en informal rule)ma#ing% (&) &ut offers guidance &ecause of the e*perience and informed "udgment of the agency (!) note: the fact that this manual got more deference than the Hearst determination where there was actually formal ad"udication shows that e en then there was flu* in the deference agency interpretations were afforded e) Addison . Holly Hill (1?22% p. <EB)@administrator9s definition of area of production gets no deference &ecause agency e*ceeded its authority in defining &y num&er of employees as well as &y geography

!.

.he 6resent)(ay -ramewor# a) ,itiAens to 6reser e !verton 'ar/ . 8olpe: (1?F1% p. <F1)@hard loo# doctrine : court insists on agency e*planation to facilitate re iew on the whole record (1) in informal ad"udication% agency action not properly "ustified standard of re iew is KFGE(!) (A) (!) statute: can9t use federal fund to ma#e freeways go through par#s% unless (1) there is no feasi&le and prudent alternati e% and (!) such program includes all possi&le planning to minimiAe harm ($) court interprets feasi&le and prudent alternati es (a) re;uires findings from the 5ecretary to "ustify the destruction of the par# (i) court says that since the statute is designed to protect par#s% then it must &e interpreted to protect par#s: (ii) +f the statutes are to ha e any meaning% the 5ecretary cannot appro e the destruction of par# land unless he finds that alternati e routes present uni;ue pro&lems (iii) uni;ue must mean more than the e*pense% &ecause it will always &e more e*pensi e to a oid the par# (&) if this is the correct interpretation% why didn9t ,ongress say no highways through par#s e*cept in e*ceptional circumstances> (i) the language is clearly a result of ,ongressional compromise (ii) +t9s cheap to write a sa e the par#s statute with no &ite. =hy interpret &ite into it> (c) why no deference to agency interpretation> (i) pro&a&ly &ecause the secretary didn9t say much (ii) remand to district court to re iew on the whole record% so whole record needs to &e produced (iii) if agency had said more than this could not &e called a&use of discretion% &ut informal ad"udication doesn9t re;uire any more than this% so isn9t the court merely adding procedure> (2) process of re iewing court: 5ecretary9s decision is entitled to a presumption of regularity% &ut will &e su&"ect to a thorough% pro&ing% in depth re iew (a hard loo#) (a) re iewa&le> (i) not statutorily precluded (ii) not committed to agency discretion (there is law to apply) (&) find standard ar&itrary and capricious is still a su&stantial in;uiry under generally applica&le standards of KFGE (c) (id the 5ecretary act within the scope of his authority (d) =as 5ecretary9s decision &ased on a consideration of the rele ant factors> (i) Has there &een a clear error of "udgment> (ii) Although this in;uiry into the facts is to &e searching and careful% the ultimate standard of re iew is a narrow one. .he court is not empowered to su&stitute its "udgment for that of the agency. (e) (id the 5ecretary9s action follow the necessary procedural re;uirements> (f) (<) //9s &ottom line:

Admin Law Outline: $2

(a) 8ermont Pan#ee and O erton 6ar# are on a collision course and each case is cited for its own holding (&) note that O erton 6ar# is cited as support for the Hard Loo# doctrine (which has ne er &een repudiated &y the 5upreme ,ourt) &) 383A . 5tate -arm (1?B$% p. <?1)@agency needs to "ustify a change in policy with reasoned analysis (1) deregulation: rescission of passi e safety feature re;uirement not OC (!) language of case (a) p. <?2)?<: . . . at least a presumption that those policies will &e carried out &est if the settled rule is adhered to. Accordingly% an agency changing its course &y rescinding a rule is o&ligated to supply a reasoned analysis for the change &eyond that which may &e re;uired when an agency does not act in the first instance (&) /ehn;uist dissent% p. EG1: A change in administration &rought a&out &y the people casting their oted is a perfectly reasona&le &asis for an e*ecuti e agency9s reappraisal of the costs and within the &ounds esta&lished &y ,ongress ($) note: agency inaction would pro&a&ly ha e &een presumpti ely unre iewa&le now it has to ha e a reason for changing the rule (2) is a is ,he ron% it seems li#e the original agency policy is what9s getting the deference c) ,he ron . '/(, (1?B2% p. E12)@agency interpretation% including change of interpretation% of organic statute deser es high deference (1) deregulation: definition of source as &u&&le1plant% rather than as a single source1chimney OC (!) language of case: (a) p. E1B: .he fact that the agency has from time to time changed its interpretation of the term source does not% as respondents argue% lead is to conclude that no deference should &e accorded the agency9s interpretation of the statute. An initial agency9s interpretation is not instantly car ed in stone (&) p. E!G: an agency to which ,ongress has delegated policy)ma#ing responsi&ilities may% within the limits of that delegation% properly rely upon the incum&ent administration9s iews of wise policy to inform its "udgments . . . ($) opposite result from 5tate -arm (a) pic#s up language of 5tate -arm dissent (i) in 5tate -arm% change in agency approach demanded e*planation (&eyond policy) ma#ing in the first instance) (ii) in ,he ron% change in agency approach is seen as legitimate response to changing politics (&) weird: if the results were going to conflict% 5tate -arm% where the agency was e*ercising its policy)ma#ing functions should ha e gotten the deference% whereas in ,he ron% where the agency was engaging in statutory interpretation% it should not ha e gotten deference (c) not technically inconsistent (i) ,he ron litigated as a ;uestion as to whether the change in policy was inconsistent with the legislation (ii) 5tate -arm litigated as a ;uestion as to whether the agency ga e enough e*planation for its change in policy (2) /ule: (a) step 1: is ,ongress9s intent clear> (i) +'5 . ,ardoAa)-onseca: use traditional tools of statutory construction (dissent says only from the face of the statute) (ii) legislati e history (a) cases are all o er the place: (&) 1 congressman is not enough (c) a conference committee report without opposition is enough (d) &ut in the middle% who #nows

Admin Law Outline: $<

(iii) canons of construction (a) cases are all o er the place: (&) a good approach: to the e*tent that the canon would &e #nown to ,ongress% it should &e used (i) construction to a oid a constitutional ;uestion (ii) legislation of ,ongress% unless a contrary intent appears% is meant to apply only within the territorial "urisdiction of the 45 (iii) am&iguous statutes should &e construed in fa or of American +ndians (c) and if ,ongress doesn9t li#e it% then it can amend to clarify (&) step !: defer to agency interpretation of organic statute (i) categories of agency action: (a) agency with rule)ma#ing power ma#ing policy through rule)ma#ing gets most deference (&) agency with rule)ma#ing power ma#ing policy through ad"udication gets a lot of deference (c) agency without rule)ma#ing power ma#ing policy though ad"udication gets some deference (d) agency with no rule)ma#ing or ad"udication powers gets no deference (Atchison% .ope#a% 5anta -e% Fth ,ir 1??2) (e) courts aren9t supposed to fa or rule ma#ing to ad"udication (ii) does long)standing interpretation get more deference> (a) some courts still use this sliding scale (&) &ut some courts use the ,he ron approach (iii) agencies get ma*imal deference when interpreting their own regulations d) 3,+ (-,,) s. A.. (1??2% p. E$F)@using the dictionary (1) in rate)filing case% -,, can9t interpret authoriAation to modify re;uirement to deregulate almost <GQ of mar#er (!) statutory language: (a) .he ,ommission may% in its discretion and for good cause shown% modify any re;uirement made &y or under the authority of this section either in particular instances or &y general order applica&le to special circumstances or conditions e*cept . . . (&) 'o carrier% unless otherwise pro ided &y or under authority of this chapter% shall engage or participate . . . ($) -,,: (a) purpose of statute: (i) to #eep A.. from charging e*cessi e discriminatory rates (ii) and now only A.. has mar#et power% so only they should ha e to file rates (iii) moreo er &arriers to entry dri e up the prices and discourage competition (&) modify any re;uirement authority to modify (c) &y general order not only on case)&y)case &asis (d) unless otherwise pro ided not e eryone needs to file prices (2) A..: (a) the single e*ception mentioned shows that only small modifications are anticipated (&) &y general order applica&le to special circumstances or conditions limits general order (c) modify does not mean a&rogate% set aside% etc. (<) 5calia: (a) a oids ,he ron deference &y finding the intent of the statute to &e clear (&) method: consult the dictionary to define modify (c) pro&lem: 5calia loo#s only at the dictionary to find clear intent% rather than loo#ing at all the a aila&le sourcesdeparture from ,he ron (i) doesn9t loo# to statute as a whole to deri e definition (ii) caselaw says go to legislati e history (in ,he ron as well as in ,ardoAa)-onseca)

Admin Law Outline: $E

(iii) 5calia9s method pri ileges the court at the e*pense of the agency: one way ratchet to eliminate am&iguity BII.&#dicial ,eview: Agency !bligations A. Consistency: 5haw9s 5upermar#ets . 'L/7 (1st ,ir.% 1?B?% p. E<!)@when an agency9s ad"udication departs from its own precedent% it must ac#nowledge the precedent and e*plain the departure 1. note: ,ourt would ne er re erse a ,ircuit on this issue !. 7reyer lays out why it9s not OC for agencies to simply ignore its precedent B. *stoppel 1. generally a) estoppel against the go ernment is almost impossi&le to win &) in order to run a country% you can9t allow officials9 representations to &ind the go ernment !. Office of 6ersonnel 3anagement . /ichmond (1??G% p. EE1)@no estoppel against go ernment a) erroneous oral and written ad ice gi en &y a Jo ernment employee to a &enefits claimant doe not gi e rise to estoppel &) ,ourt (1) Cennedy9s argument a&out the appropriations clause ma#es no sense% &ut it is followed (!) 5te ens9 concurrence is right: ,ongress appropriates money to program as a whole% not to indi idual recipients ($) for prudential reasons% the "ustices are not sympathetic to estoppel claims against go ernment result of estoppel would &e for go ernment to stop gi ing ad ice c) sympathetic case: got 3arshall and 7rennan dissents d) ;uestion: why do we need such a &right line rulewhy can9t we only hold go ernment lia&le on erroneous pu&lications1high)ran#ing officials> C. 'recl#sion against the 1overnment 1. (efensi e 'on)3utual +ssue 6reclusion: does not apply to go ernment@4nited 5tates . 3endoAa (1?B2% p. EEE) a) the go ernment can relitigate an issue it lost against different parties &ecause it should not &e forced to appeal e ery cases it loses &) go ernment should &e a&le to relitigate across circuits to create a circuit split c) don9t want to freeAe law !. (efensi e 3utual +ssue 6reclusion: applies to go ernment@4nited 5tates . 5tauffer ,hemical ,o. (1?B2% p. EE?) a) only &inds against the same plaintiff &) won9t freeAe the law $. on(Ac@#iescence 1. intercircuit non)ac;uiescence OC a) note: no intercircuit stare decisiscircuits allowed to disagree to clarify issues for supreme court &) arguments for intercircuit ac;uiescence (1) uniformity of federal agency ad"udication in national programs 74. e entual informed uniformity is &etter than immediate ar&itrary uniformity (!) a oidance of race to the &ottom 74. this is also true in "udicial sphere !. enue uncertainty OC a) note: in social security% no enue uncertainty% &ut in cases in ol ing corporations% the case could &e &rought anywhere@so 'L/7% for instance% would entail enue uncertainty &) must allow non)ac;uiescence &ecause appeal can &e in any circuit% and unless they9 e all spo#en% you don9t #now what you9re ac;uiescing to $. Limit: purpose of non)ac;uiescence also suggests limit a) purpose: the agency has the legitimate interest in getting its own position alidated and so it has the incenti e to try in e ery circuit

Admin Law Outline: $F

2.

&) limit: when it &ecomes more certain that agency9s position will not pre ail (i.e.% 11 circuits ha e decided against the agency and the 5, has denied cert.) intracircuit non)ac;uiescence pro&a&ly not OC a) pro non)ac;uiescence: (1) if agency is denied cert. &ecause not enough circuits ha e ruled% then must the agency follow a &ad rule until there is a circuit split (!) national policy concerns of agency s. narrow concerns of circuit (a) so long as the agency is actually trying to alidate its own iew of the law% the circuits should &e allowed to not ac;uiesce (&) until the 5, has ruled% or until there9s really no hope. &) against non)ac;uiescence: (1) ertical non)uniformity: people who can afford to appeal will get a different rule than those who can not (!) separation of powers (courts interpret law1 agencies e*ecute it) (a) ,ooper . Aaron desegregation applies across the &oard% not "ust to 7rown . 7oard (i) 74. 7rown was the 5upreme ,ourt% and we aren9t arguing that agencies can non) ac;uiesce to supreme court (ii) 74. agency is a coe;ual (unli#e a lower court)% and it doesn9t ma#e sense to re;uire national e*ecuti e agency to create craAy);uilt policy c) 7ottom Line: how you decide the non)ac;uiescence issue depends on how you iew agencies

:. 'ote: agencies are ariedadministrati e law is not really a single &ody of law: 1. enue: if enue is clear or not ma#es a difference for ac;uiescence !. mass wholesale ad"udication of small claims% ersus retail ad"udication of important claims with &ig impact on economy a) T of the 12GG AL0s in federal go 9tare 55A &) in 55A% state agencies make initial determination (AL0 is first appellate le el) c) state officials are not lawyers% so 55A translates caselaw into simple instructions that can &e applied &y non)lawyers d) training is done in regional offices% which do not correspond to the ,ircuits e) re;uiring ac;uiescence would re;uire agency to change its rules and retrain those within the circuitD if the agency ultimately pre ailed% they ha e to retrain again f) big managerial problem in running a full)ac;uiescence policy g) not dispositi e% &ut should &e weighed in agencies li#e 55A% doing wholesale "ustice BIII. &#dicial ,eview: Access to Article III ,eview A. Standing 1. general a) trend is toward precluding re iew (:n ironmental cases: easier for regulated agencies than for en ironmental groups to get re iew) &) ,onstitutional re;uirement (1) in"ury in factU (!) tracea&ility: tracea&le to the challenged conductU ($) redressa&ility: in"ury in fact must &e redressa&le &y the court c) 6rudential re;uirements (1) own case: can9t &ring a case on &ehalf of someone else (!) no generaliAed grie ances: can9t challenge something that affected e eryone the same (is this partially an Art. ++ pro&lem>) ($) Aone of interest: harm argua&ly within the Aone of interest protected &y the statuteU d) note: A6A KFG!: A person suffering legal wrong &ecause of agency action% or ad ersely affected or aggrie ed &y agency action within the meaning of the rele ant statute% is entitled to "udicial re iew thereof. . . . (1) 'othing herein (1) affects other limitations on "udicial re iew or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable groundD

Admin Law Outline: $B

e) !.

or (!) confers authority to grant relief if any other statute that grants consent to suit e*pressly or impliedly for&ids the relief which is sought. (!) interpreted to reach the limits of Article +++ I prudential re;uirement of Aone of interests note: all persons may challenge wai es all prudential re;uirements% &ut can9t wai e the constitutional re;uirements

,ausation: Allen . =right (1?B2% p. 11!1) a) parents ha e no standing to challenge +/59s policy of not enforcing rule that schools that discriminate can9t get ta*)e*empt status &) ,onstitutional: (1) in"ury in fact: (a) no in"ury for the interest in the law &eing followed% &ecause (i) prudential: generaliAed grie ance (ii) stigma only pro ides standing for the actual ictims (e.g.% those who were denied admission) (&) yes in"ury in not &eing a&le to attend an integrated school (!) tracea&ility: ma"ority needs proof that segregation is caused &y the e*emptions ($) redressa&ility: ma"ority needs proof that losing the e*emption will help c) note: (1) how you define the in"ury determines whether causation can &e pro en (!) strict standing re;uirement has a silly result: demands massi e proof on an issue &arely related to the claim ($) economic argument should create re&utta&le presumption of causation in cases li#e these (2) in ci il rights cases% the courts should &end o er &ac#wards to let the case in% rather than to #eep it out: case should get to the merits the fact that they might lose on the causation re;uirement shouldn9t &e the threshold standing ;uestion +n"ury in -act a) A(O65O . ,amp (1?FG% p. 11$<)@in"ury in fact I Aone of interest (1) organiAation representing data processors has standing to challenge ,omptroller9s ruling allowing the &an#s into data processing (!) this case li&eraliAes standing re;uirements: (a) pre)A(O65O: a legal interest@defined &y common law or statute@had to &e iolated to create standing (&) A(O65O distinguished in"ury in fact from legal interest (i) standing re;uires in"ury in fact I Aone of interest (ii) merits: must pro e iolation of a legal interest (iii) how much difference this ma#es depends on how Aone of interest is characteriAe (c) 7rennan wants to go further and dispense with Aone of interest re;uirement ($) Huestion: why did the economic argument sur i e the causation prong here> &) 5ierra ,lu& . 3orton (1?F!% p. 11$?)@personal in"ury re;uired (1) 5ierra ,lu& must allege actual in"ury to the organiAation to esta&lish standing (!) pro&lem: (a) while an organiAation whose mem&ers are in"ured may represent those mem&ers in a proceeding for "udicial re iew% (&) a mere interest in the pro&lem% no matter how long)standing the interest and no matter how ;ualified the organiAation is in e aluating the pro&lem% is not sufficient &y itself to render the organiAation ad ersely affected or aggrie ed within the meaning of the A6A ($) :asy for the organiAation to get around can get affida its from indi iduals without any relationship or concern for them and who will ha e no role to play in the litigation. (a) test case (&) how does this re;uirement flush out inappropriate organiAation> (2) Associational 5tanding /e;uirements (a) mem&ers would otherwise ha e standing to sue in their own right

$.

Admin Law Outline: $?

c)

(&) the interest organiAation see#s to protect are germane to the organiAation9s purpose (c) neither the claim nor the relief re;uested re;uires the participation of indi idual mem&ers in the lawsuit Lu"an . (efenders of =ildlife (1??!% p. 112B)@in"ury must &e concrete (1) +ndi iduals who li#e to loo# at endangered species in foreign countries don9t ha e standing to challenge policy that might #ill them off (!) pro&lem: (a) no e idence of concrete plans to return to see the species (&) how to ensure to meet the Lu"an hurdle> esta&lish regular pattern and state that you ha e plans to continue that pattern ($) =eird: (a) .hese plaintiffs are actually within the Aone of interest (unli#e the data processors were not w1in the Aone of interest (&) gi en the statute% per erse that an economic interest would help (c) what interest does this rule ser e> (i) 5calia: separation of powers pro&lem for ,ongress to gi e any interested indi idual the right to sue a&out a procedural in"ury% &ecause it is the 6resident9s not the 0udiciary9s "o& to ta#e care the laws are faithfully e*ecuted (p. 11<$)% (a) 74. no generaliAed grie ance is a prudential re;uirement (see Allen . =right at 11!2) so ,ongress should &e a&le to a&rogate it (&) 5calia9s claim: generaliAed grie ance re;uirement is part of the in"ury in fact re;uirement% so it9s constitutional&ut if these fol#s really care% how is not an in"ury in fact> (c) moreo er% &y calling these decisions constitutional% the political &ranches are precluded from ma#ing the political decisions of who should ha e standing (ii) =hat harm does it do to separation of powers for the courts to redress pu&lic interest> (a) courts are allowed to hear case of someone who has suffered an in"ury% and who now indicates the pu&lic interest as a pri ate attorney general so why does it hurt the authority of the political &ranches to let people who ha en9t actually &een in"ured to ser e as pri ate attorneys general> (&) +f ,ongress writes statute so as to stipulate standing issues% can courts contest these stipulations to deny standing>

2.

Vone of +nterest a) &readth of Aone of interest determines how much the delin#ing of in"ury of fact and legal in"ury (in A(O65O) accomplished &) ,lar#e . 5ecurities +ndustry Association (1?BF% p. 11EF)li&eral standing re;uirement (1) facts similar to A(O65O: 5+A has standing to challenge ,omptrollers interpretation of K$E of 3c-adden Act (!) in"ury in fact assumed &ased on competition1mar#et argument ($) within Aone of interest> (a) argument: no% &ecause Act is a&out e;ualiAing the power of national and state &an#s and incidentally a&out protecting consumers% &ut it has nothing to do with the securities industry (&) court: yes% &ecause 3c-adden Act must &e read in the conte*t of the 'ational 7an# Act% which pre ented &an#s from monopoliAing money and credit (i) 74. unclear how e en the '7A helps to &ring the 5+A within Aone of interest court is not applying Aone of interest strictly (ii) 74. unclear why the court should loo# to the '7A court is loo#ing ery &roadly at other acts c) Air ,ourier ,onference of America . American 6ostal =or#ers 4nion% A-L),+O (1??1% p. 11E?)strict standing re;uirement (1) postal ser ice gi es up its monopoly% pursuant to a 6ri ate :*press 5tatute postal wor#ers denied standing to challenge

Admin Law Outline: 2G

(!) in"ury in fact found ($) within Aone of interest> (a) argument: yes% &ecause postal wor#ers clearly within the Aone of interest of the 6/A% of which the 6:5 is part (&) court: no% &ecause the 6/A is merely a catalog of all postal ser ice laws% as opposed to a related (i) how to distinguish from ,lar#e> (a) shift in the law: .he rele ant statute under the A6A of course% is the statute whose iolation is the gra amen of the complaint (p. 11F!) (&) in"ury in fact)))),lar#e)))))))))))))))))))))))))))))))))Air ,ourier))))))legal in"ury d) 7ennet . 5pear (1??F% handout)any person wai es prudential re;uirements (1) 7iological Opinion recommends water le els to comply with :ndangered 5pecies Act districts that are affected ha e standing to complain (!) in"ury in fact assumed : it is easy to presume specific facts under which the petitioners will &e in"ured. (a) why is this &etter than Allen . =right% where the inter ening $rd party raises the &urden for tracea&ility> (&) possi&ly &ecause all actors here are go ernmental. ($) within Aone of interest> (a) ,itiAen)suit pro isions of :5A says any person: may &rings suit to against (a) anyone who has iolated the pro ision% . . . (c) the agency who failed to perform a non) discretionary duty (&) court: yes (i) any person language wai es prudential re;uirements for the claim that falls under the citiAen)suit pro ision of the :5A (ii) other claim satisfies &oth constitutional and A6A re;uirements (Aone of interest% etc.)% &ecause the :5A is supposed to &alance factors <. ,ausation: 5imon . :astern Centuc#y =elfare /ights OrganiAation (1?FE% p. 11F2) how you define the in"ury determines whether you find causation a) organiAation of indigents don9t ha e standing to challenge +/5 regulations granting not)for profit ta* treatment for hospitals that don9t pro ide range of ser ices to indigents &) in"ury in fact: (1) court: the causal lin#age &etween indigents not recei ing treatment and fa ora&le ta* treatment is too speculati e 74. see 7a##e (!) argument: interest in ha ing hospital decisions concerning the ser ices offered to indigents accurately reflect an earlier incenti e structure implicitly appro ed &y the ,ongress ($) argument: reduced pro&a&ility of getting hospital ser ices Bottom Line: a) real re;uirements (1) in"ury in fact (a) in fact (&) own (c) not generaliAed (!) causation (a) tracea&ility (&) redressa&ility ($) Aone of interest (a) fills in for legal interest (&) all persons may challenge pro&a&ly creates Aone of interest &y wai ing prudential re;uirements &) regulated firms (polluters% &an#s) will always get standing (1) in"ury in fact: economic loss (!) causation: money spent% etc. to comply

>.

Admin Law Outline: 21

($) Aone of interest: easy to get in if the statute re;uires &alancing (2) note: regulated firms always ha e a legal interest c) third party &eneficiaries (&reathers% depositors% etc.) may get standing (1) in"ury in fact: only possi&le pro&lem is generaliAed grie ance (!) causation: &ig pro&lem% unless the law re;uires that which causes the in"uryD increase in lin#s ma#es causation more tenuous ($) Aone of interest: if purpose of the statute is to protect them d) competitors (gas industry challenging coal regulations as too la*) usually get standing (1) in"ury in fact: economic loss (!) causation: easier if the actors are purely economic ($) Aone of interest: (a) difficult unless you loo# at &roader purposes or lin# with other statutes (,lar#e) (&) sometimes can fit under $rd party &eneficiaries B. ,eviewability 1. A6A esta&lishes ! e*ceptions to re iewa&ility a) KFG1(a)(1)@statutes preclude "udicial re iew (1) e*press preclusion (!) implied preclusion &) KFG1(a)(!)@committed to agency discretion &y law c) Huestion: +f statute closes off too much re iew (1) how to interpret it> (!) is it constitutional> !. presumption of re iewa&ility: A&&ot La&oratories . Jardner (1?EF% p. 11B<) a) -(A regulation re;uiring &rand names to &e accompanied &y generic names e ery time the &rand name appear is re iewa&le &) no preclusion unless clear and convincing evidence of preclusion presumption of re iewa&ility c) intro. to ripeness: (1) note: if not re iewed here% will &e re iewed as a defense to an enforcement action the fact that the statute specifies one method of re iew does not mean other methods are precluded (!) policy of pre)enforcement re iew (a) against (i) court intrusion on agency processes (ii) "udicial economy (&) for (i) fit for "udicial decision (a) purely legal ;uestion (&) final agency action (ii) hardship to company (a) costs of litigation@generally not enough (&) &ad pu&licity for drug company $. KFG1(a)(1): 5tatute 6recludes 0udicial /e iew a) bottom line: (1) &road preference for "udicial re iew (a) court will &end o er &ac#ward to construe preclusion of re iew narrowly (&) &ut only for general procedures% not indi idual determinations (c) e en indi idual determinations will &e re iewed if constitutional ;uestions raised (!) no caselaw on whether it would &e OC for a statute to preclude all (including constitutional) re iew (a) conflict with ,rowell . 7enson% which "ustified &road delegation &y Art. +++ re iew (&) &ut current administrati e law is already in conflict with ,rowell . 7enson &) 7loc# . ,ommunity 'utrition +nstitute (1?B2% p. 11?<) clear and con incing actually means fairly discerni&le e idence (1) court: statutory scheme as a whole implies preclusion (a) comple* scheme without pro ision for any consumer participation (e*clusio unis)

Admin Law Outline: 2!

2.

(&) administrati e remedy for handlers implies that consumers ha e no a enue to challenge% &ecause it ma#es no sense to re;uire handlers to use administrati e remedy% &ut to let consumers go straight to court (!) 74.: if ,ongress ne er thought a&out the consumers% then how can we argue that there is clear and con incing e idence that the consumers are precluded from &ringing challenges why not "ust interpret the statute to say consumers also ha e to go first to the administrati e agency ($) almost a standing case (a) implication is that consumer interests are represented &y the handlers% so consumers ha e no standing (&) 74. weird assumption that consumers ha e no independent interest c) 7owen . 3ichigan Academy of -amily 6hysicians (1?BE% p. 11?B) interpretation to a oid preclusion (1) interpretation (a) the fact that a statute ma#es one type of decision re iewa&le does not mean that ,ongress meant to ma#e other decisions &y the same agency (&) court recasts no findings of fact or decision of the 5ecretary shall &e re iewed &y any person% tri&unal% or go ernmental e*cept as herein pro ided to preclude re iew of indi idual determinations% &ut not general rulings (!) how to reconcile with 7loc# (a) Here% the preclusion is a&out pre enting tri ial claims from getting to federal court% not a&out general arguments that go to more &asic issues that would &e more appropriate for the court to decide 74. ,ongress pro&a&ly would ha e realiAed that there would &e retail determinations to &e made (&) +n 7loc#% there would &e harm to the administrati e scheme to allow consumer challenges (c) &asically the decisions are not reconcila&le% and you cite which one supports your position A6A K FG1(a)(!): ,ommitted to Agency (iscretion &y Law a) Bottom Line: (1) does not encompass all discretionary decisions% which are re iewed under the ar&itrary% capricious% an a&use of discretion standard (!) construed ;uite narrowly only in those rare instance where there is no law to apply (O erton 6ar#) ($) e*amples: (a) decisions to enforce or prosecute (Hec#ler . ,haney) (&) national security (=e&ster . (oes) (c) admission of aliens (Cleindienst . 3andel) (d) refusal to reconsider action &ecause of material error (+,, Locomoti e :ngineers) (e) unallocated appropriations (Lincoln . 8igil) &) Hec#ler . ,haney presumption of no re iew for agency non)action c) =e&ster . (oe (1?BB% p. 1!1G) preclusion &ased on discretion does not preclude re iew on constitutional grounds (1) while ,+A director9s discretionary decision to terminate is not su&"ect to re iew% it is su&"ect to constitutional re iew (!) statute: .he (irector of ,entral +ntelligence may% in his discretion% terminate the employment if any officer or employee of the Agency whene er he shall deem such termination necessary or ad isa&le in the interests of the 4nited 5tates ($) ma"ority: (a) no law to apply (comes from O erton 6ar#) (i) note: the commission of a decision to someone9s personal "udgment does not always create unre iewa&ility (the potential e*pansi e of deem) (ii) 5tructure of the 'ational 5ecurity Act: need for protection of security e*traordinary deference (&) &ut still room for a ,onstitutional challenge

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(i) so does no law to apply mean no su&)constitutional law to apply> (ii) note: in Hec#ler . ,haney% 7rennan also loo#s at se eral #inds of decisions that could &e su&"ect to challenge% e en if there is no law to apply (2) 5calia (a) statute in KFG1(a)(1) is the organic statute (&) law in K FG1(a)(!) is common law (i) refers to common law preclusion to "udicial re iew% including separation of powers (ii) no law to apply rule is too narrow and too &road (a) there is always common law to apply (&) e en if there is statutory law to apply% some agency decisions are ne ertheless unre iewa&le under common law (c) forecloses the constitutional challenges C. +iming 1. issues: a) ripeness (1) constitutional core in Art. +++ (case or contro ersy) and a prudential ring (!) considerations: (a) suita&ility for "udicial re iew (prudential with a constitutional core) congress can9t legislate out of the constitutional core (&) harm to parties of waiting (prudential) congress can legislate out of this &) finality statutory under A6A KFG2: only final agency actions are re iewa&le (1) A6A language: Agency action made re iewa&le &y statute and final agency action for which there is no other ade;uate remedy in a court are su&"ect to "udicial re iew. A preliminary% procedural% or intermediate agency action or ruling not directly re iewa&le is su&"ect to re iew on the re iew of the final agency action. :*cept as otherwise e*pressly re;uired &y statute% agency action otherwise final is final for the purposes of this section whether or not there has &een presented or determined an application for a declaratory order% for any form of reconsideration% or% unless the agency other re;uires &y rule and pro ides that the action meanwhile is inoperati e% for an appeal to superior agency authority (!) interpretation: impose an o&ligation% deny a right or fi* some legal relationship as a consummation of the administrati e process c) e*haustion (1) prudential with perhaps a separation of powers element (!) when the statute sets up a procedure% and you try to circum ent it &y going to federal court d) note: there are also pro&lems with &ringing challenges too late (1) generally statutory: within EG days% restriction to pre)enforcement re iew (in en ironmental) (!) e*pensi e implementation% so they need to #now ahead of time whether the regs are alid !. .icor .itle +nsurance ,o. . -., (1?BF% p. 1!!<) confusion a) challenge: .icor &rings a facial challenge to the constitutionality of independent agencies% while AL0 case pending on -., complaint &) too early to &ring the challenge (1) 0. :dwards: e*haustion (a) they could win against -., and then ha e no reason to &ring case 74. there claim is so &road that someone else will ma#e it (&) the ! cases in which une*hausted claims are allowed do not apply (i) clear right (ii) massi e harm (c) pro&a&ly not an e*haustion pro&lem% &ecause the agency can9t decide this ;uestion (!) 0. =illiams: finality (a) "urisdictional pro&lem: Administrati e orders are final when Rthey impose an o&ligation% deny a right or fi* some legal relationship as a consummation of the administrati e process (&) "urisdictional &ar o& iates the prudential considerations

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(c) :dwards and Jreen say that there is no "urisdictional &ar% &ecause KFG2 doesn9t grant or &ar "urisdiction ($) 0. Jreen: ripeness (a) suita&le for "udicial re iew (i) factual de elopment is not going to help the court decide (ii) so the constitutional requirement is met (&) &ut 'O special harm to plaintiffs in delaying re iew (i) no forced choice &etween compliance and stigma of iolation &ecause the alleged iolation was already committed (ii) so the prudential requirement is not met (iii) is this case actually a&out a oiding1deferring constitutional ;uestions>