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Statutory interpretation

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Consumer Product Safety Commission v. GTE Sylvania, 1980: absent a clearly expressed legislative intent to the contrary,
statutory language must be ordinarily regarded as conclusive
Rubin v. U.S., 1981: when we find the terms of a statute unambiguous, judicial inquiry is complete
Garcia v. U.S., 1984: only the most extraordinary showing of contrary intentions would justify a limitation on the
plain meaning of the statutory language
Schools of interpretation
Textualism court can rely on text-based tools, like dictionaries
o There is no singular intent of an entire congress
o Incentivizes Congress to enact clearer legislation
o Pierce v. Underwood, 1988: To treat the text as conclusive evidence of law is to treat it as law, which
under the constitution it is legislative history may illuminate but may not change the original meaning
o Brogan p. 26
Intentionalism courts can rely on legislative intent discernible through sources other than the legislation itself
o Riggs, p. 6
Purposivism knowing the intent of Congress is unreasonable, so lets assume the reasoning is reasonable instead
of trying to get into peoples heads
o Public choice theory says that purposivism isnt realistic because legislators arent reasonable, theyre
rational deal makers that benefit the powerful
Pragmatic interpretation Posner wanting as much power as Congress
o U.S. v. Marshall Posner dissent p. 27
Linguistic canons
Ejusdem generis (of the same kind)
o Hall St. Ass. v. Mattel: when a statute sets out a series of specific items ending with a general term, the
general term is confined to subjects comparable to the specifics it follows
Noscitur a sociis (known by its companions)
o A term is interpreted consistently with the surrounding words
o If there is no common feature linking the surrounding terms, a court will not apply this
Expressio unius est exclusio alteruis (a mention of one thing is the exclusion of another)
o Courts infer from the inclusion of one term that the omission of another term was intentional
Barnhart v. Peabody Canal Co.: Justified only when the terms have commonality exclusion by
deliberate choice, not by inadvertence
o Andrus v. Glover Construction Co.: where Congress explicitly gives certain exceptions to a rule,
additional exceptions arent to be implied in the absence of proof of legislative intent
Punctuation
o When one word modifies a series of words but is then separated from others by a comma, the first word
only modifies other terms not separated by that comma
o Language inside a parenthetical is given less weight than language outside a parenthetical
Last antecedent rule
o Barnhart v. Thomas: a limiting phrase only modifies the phrase that it immediately follows/precedes
o U.S. v. Hayes: not set in stone; where its more plausible that Congress meant otherwise, this rule can be
neglected
Conjunctive vs. disjunctive
o Or the surrounding terms dont modify/define each other
o As opposed to and
o Court can disregard this if it senses careless usage
May vs. shall
o May discretionary, permissive
o Shall mandatory
o Courts can say shall means may

Dictionary Act tb p. 224

Other canons/doctrines
Whole act courts view statutory terms as a part of the entire legislation theyre in
o Presumes that Congress sees each act in its whole, giving words the same meaning throughout and having
them work together
o Powerex Corp. v. Reliant Energy Services: identical words and phrases within the same statute should be
given the same meaning
Can be overridden when there is textual proof of an intent to give words different meanings
o TRW v. Andrews: a statute should be construed so that no clause is void or superfluous; avoid
interpretation that renders any other provision redundant
U.S. v. Atlantic Research Corp.: better for courts to render one clause redundant than to interpret
terms so as to risk making the entire provision a nullity
Whole code
o In pari materia statutes addressing the same subject matter should be read as if theyre one law
o Repeals by implication are not favored, require clear intent
Morton v. Mancari p. 12
Surplusage
o TRW v. Andrews: a statute should be construed so that no clause is void or superfluous; avoid
interpretation that renders any other provision redundant
o Constitutional avoidance
U.S. v. Atlantic Research Corp.: better for courts to render one clause redundant than to interpret
terms so as to risk making the entire provision a nullity
Constitutional avoidance where there are multiple reasonable/potential ways to define a term/provision, and one of
them encounters a constitutional issue, avoid that one
Rule of lenity resolve doubts or ambiguities in favor of the criminal
o Huddleston v. U.S.: ambiguity concerning criminal law should be resolved in favor of the
Rooted in the concern for individual rights and fair warning about what criminal conduct is
punishable by the deprivation of liberty and property
o U.S. v. Wells: the rule of lenity applies only if you can make no more than a guess as to what Congress
intended after looking through all potential avenues for aiding the definition
o Muscarello p. 9
o U.S. v. Santos p. 14
Technical definitions where there is an industry understand or a term appears in a technical context, use the
technical definition
Ordinary meaning/common law meaning/common usage
o U.S. v. Wells presume Congress incorporated the common law meaning of a term if it is relatively
settled
o Nix v. Hedden p. 8
o FCC v. AT&T p. 10
Presumption against retroactivity
o Landgraf v. USI Film Prods: courts decline to give a retroactive effect to statutes affecting private rights
unless Congress made that intent clear
o Presumption against retroactivity can be defeated if its clearly authorized
Scriveners errors: courts should correct drafting mistakes when necessary words are omitted or a phrase makes no
sense in context, etc.
o A scriveners error is not U.S. v. Locke, p. 16
Absurd results: courts should avoid interpreting statutes in a way that may produce absurd results
o Public Citizen v. DoJ: looking beyond just the text for guidance is proper when the result the plain text
prescribes is absurd or inconsistent with Congresss intent
o U.S. v. X-Citement Video: a person is subject to criminal liability if he knowingly transports or ships in
interstate or foreign commerce any visual depiction, is the producing of such visual depiction
involves the use of a minor engaging in sexually explicit conduct; court said if they applied knowingly
only to transports or ships, there would be absurd results, like UPS being liable for shipping child porn
simply because they knew they were shipping the package

 Stare decisis
o Flood v. Kuhn, p. 30
Legislative history tb p. 286
Committee reports
Author or sponsor statements
Member statements
Hearing records
Legislative history of other statutes
o Seatrain Shipbuilding Corp. v. Shell Oil Co., 1980: subsequent conference reports are entitled to
significant weight where it is clear that the conferees carefully considered the issue at point
o Montana Wilderness p. 21
Presidential and agency statements
In re Sinclair p. 29 where the statute and legislative history conflict, the statute wins because Congress votes on
and the President enacts the text of the bill, not the committee reports

----------------

Agencies

----------------

Justifications for Regulation

Economic
o Control of monopoly power
To lessen waste monopolists have no incentive to lower price even if the market demands a
lower price
Income transfer give money to future investors to continue the profitability of the market
Fairness
Power regulation to eliminate concentration of social or political power due to sole control of a
major industry
o Rent control economic rent is a resource obtained at less than market value that isnt enough to control
the market (we dont want to discourage rents since it means someone found a more efficient way to get a
resource)
Transferring income from the producers to the consumers when rents are sudden and large
o Externalities unregulated price doesnt reflect the true cost of producing the good
To avoid economic waste
Transaction costs
o Inadequate information Information isnt free
Incentives to produce/disseminate information may be skewed
A party may seek to mislead other parties court remedies and competition arent enough to
provide the consumer with information
o Unequal bargaining power
o Moral hazard
o Scarcity regulation to set public interest objectives rather than just market price
Information
o Account for information asymmetries
o Paternalism the government knows better than the people
Executive vs. independent agencies
Executive
o Under the President
o Officials are accountable to the President and can be fired at will
o Ex:
Each department headed by a Secretary
Department of Justice
Subdivisions of departments
Environmental Protection Agency
o Character: enforces the laws of the U.S.
Independent
o Heads serve fixed terms that expire in staggered years
Can only be removed by the President for good cause
o Generally run by multi-member commissions or boards rather than a single administrator
o Examples
Commodity Futures Trading Commission
Federal Communications Commission
Federal Energy Regulatory Commission
Federal Trade Commission
National Labor Relations Board
Securities and Exchange Commission
o Constitutionality
If independent agencies arent subject to the plenary control of the President, does the President
possess sufficient control of such agencies to ensure, as the Constitution requires, that the laws be
faithfully executed?

Myers p. 40: SC said the Presidents power of removal must be unrestricted to all officers
that the President appoints
Humphreys Executor p. 42: limited Myers; upheld removal restriction on members of the
FTC over objection of President Roosevelt who tried to remove an official for policy
disagreement rather than inefficiency, neglect of duty, or malfeasance
o Court said that Congress could restrict the ability of the President to remove
independent agency members without violating the principles of separation of
powers because the members exercised quasi-legislative and quasi-judicial
functions rather than executive ones
Morrison v. Olson p. 45: SC preserved the constitutionality of independent agencies;
Congress may impose removal restrictions on agency officials as long as the restriction
doesnt unduly interfere with the Presidents exercise of executive power and
constitutionally appointed duty to make sure laws are faithfully executed
o Character: quasi-legislative, quasi-judicial
Makes rules (as well as enforces them)
Organizational chart p. 19-21

Constitutional limits of delegation to agencies (non-delegation doctrine)

Constitutional argument against delegation to agencies is that Congress is vested with legislative power and cant
delegate that power to other institutions
SC has only enforced the nondelegation doctrine in two 1935 decisions:
o Panama Refining Co. v. Ryan, 1935: SC said that the Constitution authorized Congress to make all laws,
but is not permitted to abdicate or transfer those legislative powers Art. 1 1, 8
o Schechter Poultry Corp. p. 35
Crowl v. Benson: Congress can delegate to an agency the power to make law through
adjudication to the extent that the agency is adjudicating claims that are essential to the regulatory
scheme
Otherwise, the SC has upheld broad delegating statutes as long as they contain an intelligible principle to
constrain the agency must contain language in an operative provision of a statute that provides the agency with
guidance and limits as to its mission
o J.W. Hampton Jr. v. U.S: When Congress confers decision-making authority upon agencies, Congress
must lay down be legislation an intelligible principle to which the body is to conform
o Whitman v. Am. Trucking p. 38
Presidential control of agency action
Myers p. 40: President had the exclusive power to appoint and remove any agency official; the Constitution
prevents Congress from giving itself the power to remove or participate in the exercise of executive power
because it would violate the Appointments Clause and separation of powers
Removal
o Humphreys p. 42: President cant remove any appointee to an independent regulatory agency except for
cause Congress has provided for by law
o Weiner p. 43: independent agency officials can only be removed for cause; functional test to see whether
an officials job is for an independent or executive agency
o Morrison v. Olson p. 45: whether or not Congress can impose a for cause restriction on firing someone is
not about function, but about a quantification of power; if the power is purely executive so as to entrench
that of the President, Congress can input a for cause restriction
o Free Enterprise p. 47: for-cause squared is too far; no political accountability
Appointment
o U.S. v. Germaine: The Constitution divides officers for the purposes of appointments into two classes:
primarily the offices to be nominated by the President and confirmed by the Senate, and secondarily
inferior officers may be appointed by the President alone or the heads of departments
o Buckley v. Valeo p. 44: Officers of the U.S. (all persons said to hold an office under the government
exercising significant authority pursuant to the law of the U.S.) must be appointed according to the
Appointments Clause

Legislative control of agency action

Means
o New legislation
o Appropriations legislation
o Oversight hearings
o Fire alarms tools that position constituents to monitor agencies and alert Congress
As opposed to police patrols tools for obtaining information about agency actions that require
Congress to monitor the agencies themselves
Notice-and-comment rulemaking allows any interested party to participate in the development
of agency policy
Citizen-suit provisions authorize any person to seek judicial review of agency action
o Legislative vetoes SC has invalidated this on constitutional grounds
Immigration v. Chadha p. 51: Actions are an exercise of legislative power if they contain matter which is properly
to be regarded as legislative in character and effect
o Once youve delegated, the power is not legislative, its administrative/executive
o Congress cant impinge upon the power of the President, but the agency who has been delegated the
executive power can
Judicial control of agency action
Due process and administrative agencies
o Goldberg v. Kelly p. 54: No deprivation of life, liberty, or property without due process of law; a person
getting welfare benefits under statutory standards defining eligibility has a property right to continue
receipt
1. Is there deprivation of life, liberty, or property
If yes, we need due process
Here, welfare is property, not a privilege
2. How much process and what kind of process?
In this case, a post-termination hearing isnt enough to be constitutional because Kelly
has a serious need for his welfare benefits
The opinion doesnt go so far as to require Kelly has counsel
o Roth p. 56: the Constitution doesnt require opportunity for a hearing before nonrenewal of a non-tenured
teachers contract unless he can show that the decision deprived him of an interest of liberty or that he had
a property interest in the employment despite no tenure; To have a property interest in a benefit, a person
must clearly have a unilateral expectation of it and a claim of entitlement, more than just an abstract
need/desire for it; The contract said employment would end after a year, so he had no expectation or
claim of entitlement
1. Is there a liberty interest such that the due process clause is engaged? No.
2. Does Roth have a property interest in his job? No.
His contract was only for a year, hes not entitled to the employment after the contract
Marshalls dissent disagrees with this premise, saying there is a property interest here
o Matthews p. 58:
Balancing test CURRENT DOCTRINE
Private interests that will be affected by the official action
Governments interests, including the fiscal and administrative burdens of the additional
or substitutes procedures
Risk of erroneous deprivation/marginal value of procedure
o This gets to the reason we have due process
o Effectively overwrites Goldberg with the exception to welfare benefits
o Focus on alternative decision making we want to know whether the claimants
claim is legitimate or not
o Move away from the moral/dignity-focused rationale of Goldberg
Agency exercise of judicial authority
o CFTC v. Schor p. 61: agencys delegated authority to make law through adjudication extends to
adjudication of private rights; there are limitations and the agency has to behave constitutionally

The Constitutionality of congressional delegation of adjudicative functions to a non-Art. III body

must be assessed by looking at the purposes of the requirements of Art. III
Art. III serves to protect the role of the independent judiciary and safeguard litigants right
to have claims decided before judges who are free from domination by other branches of
government Serves to protect personal, rather than structural, interests
Art. III is an inseparable element of the constitutional system of checks and balances
bars congressional attempts to transfer jurisdiction to non-Art. III tribunals and thereby
prevents encroachment of one branch at the expense of another (Buckley v. Valeo, 1976)
Factors to determine the effect of congressional action on the role of the judiciary
The extent to which the essential attributes of judicial power are reserved to Art. III
courts
The extent to which the non-Art. III forum exercises the range of jurisdiction and powers
normally vested only in Art. III courts
The origins and importance of the right to be adjudicated
The concerns that drove Congress to depart from the requirements of Art. III
The Congressional authorization of limited CTFC jurisdiction over a narrow claim of common
law claims as incident to CTFCs primary adjudicative function doesnt create a substantial threat
to the separation of powers
o Canning p. 63: agency decisions are valid only to the extent that their structure is valid; where the
officials on the NLRB were improperly appointed, the decisions they render dont hold
Judicial review of agency policy
o Overton Park p. 68: informal adjudication is reviewable by courts because its still agency action
The standard for review is determined by 706 of the APA
Agency action must be set aside if it was arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with law, or if the action failed to meet statutory, procedural,
or constitutional requirements
In certain narrow cases, an agency action is to be set aside if it is not supported by
substantial evidence, and sometimes the court is supported to review the actual facts
presented
o Hard look review under the substantial evidence test is authorized only when the
agency action is taken pursuant to a rulemaking provision of the APA, or when
the agency action is based on a public adjudicatory hearing
o De novo review of the facts is authorized only when
Agency action is adjudicatory in nature and the fact-finding procedures
are inadequate
There may be an independent judicial fact-findings when issues that
werent before the agency are raised in a proceeding to enforce nonadjudicatory agency action
There may be independent judicial fact-finding when issues that werent before the agency are
raised in a proceeding to enforce non-adjudicatory agency action
o Nova Scotia p. 70: When the basis for a proposed rule is a scientific decision, the scientific material which
supports the rule should be exposed for comment; procedure implemented here was held arbitrary
SEC v. Chenery Corp., 1943: the grounds upon which an administrative order must be judged are
those upon which the record disclosed that its action was based
U.S. v. Bacto-Unidisk, 1969: we shouldnt read the FDCA too narrowly, but rather as
consistent with its overriding purpose to protect public health
U.S. v. Midwest Video Corp., 1972: when agency rulemaking serves the purposes of the
statute, courts should refuse to adopt a narrow construction of the enabling legislation
which would undercut the agencys authority to promulgate such rules
In re Permian Basin Area Rate Cases, 1968: absent compelling evidence that Congress
intended such, courts shouldnt prohibit agency action which works towards the
achievement of the agencys ultimate purpose
Camp v. Pitts, 1973: with informal rulemaking, the focus of judicial review should be the
agency record already in existence

To suppress meaningful comment by failure to disclose the data relied upon is basically the same
as not allowing for comments
The burden is on the agency to articulate why the rule should apply to a large and diverse class in
light of the affects it would have on one section of that class, namely whitefish
o MVM v. State Farm p. 71: authorizes courts to look at how the agency reached its decisions, not
necessarily what the agency decided; reasoned-decision-making requirement
Burlington Truck Lines v. U.S., 1962: an agency must examine relevant data and articulate a
satisfactory explanation for its action, including a rational connection between the facts found and
the choices made
Citizens to Preserve Overton Park v. Volpe: in reviewing an agencys explanation for a choice, a
court must consider whether the decision was based on a consideration of relevant factors and
whether there has been a clear error in judgment
An agency rule is arbitrary and capricious if
The agency relied on factors which Congress didnt intend it to consider
The agency failed to consider factors an important aspect of the issue
The agency offered an explanation for its decision that runs counter to the evidence
The rule is so implausible that it couldnt be ascribed to a difference in view or the
product of agency expertise
SEC v. Chenery Corp., 1947: the reviewing court shouldnt supply a reasoned basis for the
agencys action that the agency hasnt itself given
The same arbitrary and capricious standard should be applied for making and rescinding a rule
o FCC v. Fox p. 39: arbitrary and capricious review as a substantive method for judicial control of agency
policy; under the APA, the agency has to provide a reasoned explanation for its action, and it must show
awareness that it is changing its opinion
The agency must also show good reasons for its policy
The agency need not demonstrate that the new reasons are better than the old ones
But, a reasoned explanation is required for disregarding facts and circumstances that
underlay the old policy
Judicial review of agency fact-finding
o NLRB v. Univ. Camera p. 73: when a court is reviewing agency fact-finding, the court must look at the
record on the whole, which includes the ALJs findings; the ALJs finding should be given respect only
insofar as they are worthy
o Allentown Mack v. NLRB p. 74: the NLRBs policy choice requiring a reasonable doubt standard is not
arbitrary nor capricious; the AL
APA established a scheme of reasoned decision making the agencys result must be within the
scope of its lawful authority and also reached via logical and rational process (State Farm)
Judicial control of agency statutory interpretation
o Chevron p. 75: instructs courts to defer to agency interpretations of ambiguous statutory provisions if the
interpretations are reasonable; when a court reviews an agencys construction of a statute
Step 1: find out whether Congress has directly spoken to the issue at hand
If only step one is reached, that is the interpretation until Congress passes alternative
legislation
Interpretive tools
o Textual canons for sure
o No authoritative statement on which substantive canons are okay
o Legislative history often comes in
If they did go with what they say
If they didnt step 2
o Morton v. Ruiz, 1974: if Congress explicitly left a gap for the agency to fill, there
is a delegation of authority to the agency to elucidate via regulation
MCI Telecomm p. 78
FDA v. B&W p. 79
Step 2: consider whether they agencys interpretation is reasonable
Deference preserves latitude for the agency in the future

If it is give the agency deference

Babbitt v. Sweet Home p. 77
Court gave three reasons why agencies should fill gaps in statutes they implement
Congressional delegation
Agency expertise
Political accountability doesnt exist with independent agencies, but deference is still
accorded
Chevron and avoidance canon
Affinity between avoidance and step-two logic (DeBartolo v. Florida Gulf Coast, 1988)
o Threshold determination of ambiguity
o In the face of unconstitutionality, have to construe it one way and not the other
Avoidance as a parameter for reasonableness in step two
Or, avoidance as step three (Rust v. Sullivan)
1. Is it ambiguous
2. Is it reasonable
3. Is it constitutional
U.S. v. Mead p. 80: whether an agency interpretation is of the sort that is entitled to the application of
Chevron deference (step zero)
Agency interpretation qualifies for Chevron only if
Congress has delegated authority to the agency to issue interpretations that carry the force
of law
The agency exercised that authority in issuing the interpretation at issue
If an agency interpretation doesnt qualify for deference under Chevron, it may still qualify under
Skidmore in view of the specialized experience and information available to the agency and the
value of uniformity in national law
Skidmore p. 82: The administrators policies are made in pursuance of his official duties
based on specialized experience and broader information and they determine the policy
that will guide the enforcement of the government; The weight given to such judgment
will depend on the thoroughness of consideration, the validity of reasoning, the
consistency with earlier and later policies, and all the factors giving it power to persuade
o When a court reviews interpretation under Skidmore, the court is exercising is
independent judicial judgment as to the best meaning of the statute
When a court under Chevron step one finds the statute ambiguous, the
courts decision to uphold the agencys construction isnt a judicial
construction of the statute so much as judicial deference to the agencys
construction
Barnhardt p. 81: There is a gap in the definitions laid out in the statute, the agency has particular
expertise in dealing with them, and they carefully considered the issue Chevron deference is applied
Is the agencys interpretation lawful
Chevron: if the statute speaks clearly to the precise question at issue, we have to give
effect to the expressed intent of Congress
Mead: If the statute is silent or ambiguous, the court must sustain the agency
interpretation if its based on a permissible construction
o Mead pointed to instances in which the court applied Chevron to agency
interpretation that didnt come out of notice and comment rulemaking, so the rule
in question doesnt have to come out of that process to be entitled to deference
Brand-x:
Issue: if a court has already decided a statutory interpretation without getting to a Chevron
analysis
Time line
Time1 proclamation by the court, statute means x not y
Time2: agency says statute means y
Time3: court considers the statute with the agency as party to the litigation
Holding

Was the time1 decision essentially a step 1 decision?

o Result: X is the meaning, no Chevron deference
If the time2 decision was step 2, where a court recognized an ambiguity
o The court was just picking a meaning
o The agency can have Chevron deference

APA p. 65
Rule

Adjudication

Formal
553 566 and 557: process that looks
like process in J. Friendlys article;
semi-judicial approach. Hearing, opps to
present evidence, record, neutral arbiter
Not much here because of FL EC Rway
554, subject to 556-557
Action is here (Schor)

Informal
Notice and comment 553(b)
Action is here

N/A (except maybe Overton Park, FL

EC Rway dissent)

Notice and comment rulemaking

o Notice of Proposed Rulemaking contains one or more proposed rules and is published in the Federal
Register
Must reference the legal authority under which the rule is promulgated and state the time and
place of any public proceedings
Nova Scotia p. 70: agencies must also make available the data and studies that are the basis for
their rules because that data is necessary for interested parties to comment effectively
o Any rules anticipated to cost more than $100m must be submitted to the Office of Information and
Regulatory Affairs in the White House (Exec. Order No. 12866)
o There must be reasonable time for interested parties to comment and must consider each comment
CSX Trans. Inc. v. Surface Trans., DC Cir. 2009: If an agency comes up with another rule or
consideration in this process, they must conduct a new round of notice and comment unless the
proposal is a logical outgrowth of the existing proposals
o Final rule must include a statement of the basis and purpose of the rule, including the rationale and legal
authority for the rule
SC requires agencies to provide an extensive explanation to facilitate judicial review of rules
(State Farm, Overton Park)
Formal adjudication
o Administrative Law Judge presides over the initial agency hearing
Parties present their position by oral or documentary evidence and may cross-examine each other
ALJs have to justify their decisions with reasons and findings
o ALJ decision may be appealed within the agency
o Unlike notice and comment, formal adjudication is retroactive and applies only to the specific parties
involved
SEC v. Chenery Corp., 1947: agencies have discretion to choose between formal adjudication and notice and
comment rulemaking
o A reviewing court may not, after determining that additional evidence is required for adequate review,
dictate to the agency the methods needed or order results to be reported; Congress gave that responsibility
exclusively to the agency and the courts cant just steal it
FL EC Rway p. 66: to constitute a requirement of a formal hearing under the APA, a statute would have to include
the talismanic words on the record after opportunity for agency hearing; where the statute only said after the
hearing, informal rulemaking is okay
o Even when this phrase is present, 556(d) provides that the agency may proceed by submission of all or
part of the evidence in written form, so a totally oral adjudication isnt even required when the section is
triggered
o The notice and comment section of the APA establishes the maximum procedural requirements which
Congress was willing to have the courts impose upon agencies in rulemaking; agencies are free to grant
additional procedural rights in the exercise of their discretion, but reviewing courts generally cant do that
VT Yankee Nuclear p. 67: 553 is not a floor, its up to congress to require, or agencies to voluntarily impose
further requirements than 553 for adjudication and rulemaking

10

The courts review of agency decision making should be limited to review of the administrative record
and its support for the agencys decision

11