Administrative Law Outline

Ruocco Administrative Law Outline [Lee, Spring 2015]
ADMINISTRATIVE LAW OUTLINE

Brian Ruocco Professor Lee, Spring 2015
Procedural Due Process as a Constraint on Agencies
- When individual due process rights are triggered:
o State action, adjudication versus rulemaking, (rejecting right/privilege doctrine), and adopting protected
interest test
o If triggered – how much process is due?
The Administrative Procedure Act as a Constraint on Agencies
- (Mostly) Administrative Procedure Act Constraints on Adjudication
o What kind of hearing is required?
o When must an agency allow cross-examination of witnesses?
o What evidence can the agency consider?
o Hearing officers: how impartial must hearing officers be?
o Agency heads: multiple roles & limits on external communication
- (Mostly) Administrative Procedure Act Constraints on Rulemaking
o Introduction to Rulemaking
o When are informal procedures allowed?
o Is anything more than Section 553 provides required?
o What type of notice is required?
o What opportunity to comment is required?
o What must a statement of basis and purpose contain?
o When are even informal rulemaking procedures not required?
o When does an agency have to proceed by rulemaking?
o OIRA and Presidential review of rulemaking?
- APA Substantive Review of Agency Action
o Judicial review of facts in formal proceedings: the substantial evidence test
o Judicial review of facts in other proceedings: the arbitrary and capricious test
o Judiciary review of agency decision-making beyond the facts: the arbitrary and capricious test
o Judicial review of agency decision-making beyond the facts: statutory interpretation
Agencies and the Structural Constitution
- Introduction
o The constitutional status of the administrative “Fourth Branch”
o Formalism v. functionalism: theoretical approaches to separation of powers questions
- Congressional Control of Agency Action
o The non-delegation doctrine
o Congressional direction of agency action through legislative vetoes
o Congressional direction of agency action through appointments and removal
- Executive Control of Agency Action
o The unitary executive and the President’s authority to direct agency action
o Presidential control through appointments and removal
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I. Introduction of Administrative Law..................................................................................................... 4

A. Overview of Admin Law ................................................................................................................. 4
B. History of Administrative Law in Five Periods ............................................................................... 4
II. Procedural Due Process As a Constraint on Agencies........................................................................ 5
Checklist for when Individual Due Process Rights are triggered: ......................................................... 5
A. State Action .................................................................................................................................... 6
B. Adjudication (individual Due Process Rights) or Rulemaking (no DPR) ......................................... 8
C. Rejecting Right/Privilege Doctrine ............................................................................................... 12
D. Once Individual Due Process is Triggered, How Much Process is Due? ...................................... 17
III. Tools of Statutory Interpretation.................................................................................................... 21
A. Constitutional Avoidance ............................................................................................................. 21
B. “Whole act rule” .......................................................................................................................... 21
C. Purposivism / Congressional Intent Approach ............................................................................ 21
D. Textualism .................................................................................................................................... 21
E. “Living Statute Approach”............................................................................................................ 21
IV. The Administrative Procedure Act (APA) as a Constraint on Agencies .......................................... 22
A. The Administrative Procedure Act ONLY APPLIES TO FEDERAL AGENCIES ................................. 22
B. Definitions (APA § 551) – BEFORE YOU TALK ABOUT HOW THE APA APPLIES CONSIDER
WHETHER THE AGENCY ACTION IS A RULE OR AN ORDER .......................................................... 22
C. Interplay between Constitutional Due Process and the APA ...................................................... 22
D. Places to Find Procedural Requirements: Due Process Clause, APA, Statute being implemented,
Agency Regulations (Code of Federal Regulations) ..................................................................... 22
V. The APA as a Constraint on Adjudication ........................................................................................ 26
A. Is the agency action an adjudication under the APA?: See APA § 551 for definitions of
rulemaking v. adjudication .......................................................................................................... 27
B. Does the adjudication have to be formal under the APA? (SEACOAST OR DOMINION ENERGY or
maybe even textualist approach) ................................................................................................ 27
C. If the adjudication has to be formal under the APA, does it involve an initial license or a claim
for money or benefits? See Seacoast and 556(d) (SEE BELOW) .................................................. 29
D. Must the agency allow cross-examination under the APA? ........................................................ 29
E. What evidence can the agency consider in adjudication? .......................................................... 31
F. How impartial must hearing officers be in adjudication? Disqual. in formal adjudication ......... 33
G. How impartial must agency heads be in adj.? (& what convos & interactions they have?) ....... 34
H. Ex Parte Communications ............................................................................................................ 36
VI. Mostly APA Procedural Constraints on Rulemaking....................................................................... 37
A. Questions: .................................................................................................................................... 37
B. Formal or Informal Rulemaking ................................................................................................... 37
C. Rulemaking Requires Statutory Authority ................................................................................... 37
D. United States v. Florida East Coast Railway Co. (U.S. 1973) ........................................................ 38
E. The Requirements of Section 553 Notice-And-Comment Rulemaking ....................................... 39
F. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. ................... 39
G. DC Cir. Debate – Bazelon / Leventhal in Ethyl Corp. v. EPA (DC Cir. 1976) – ON FINDING AND
REVIEWING CONTESTED FACTS, ESPECIALLY TECHNICAL ISSUES................................................ 40
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H. Natural Resources Defense Council v. Environmental Protection Agency (9th Cir. 2002) –
LOGICAL OUTGROWTH TEST, a well-established interpretation of APA Sec. 553 Notice ........... 41
I. What opportunity to participate is required? AND; what must a statement of basis and
purpose contain? (Section 553(c)) ............................................................................................... 43
J. When are even informal rule making procedures not required? (EXCEPTION FOR INTERPRETIVE
RULES AND POLICY STATEMENTS) ............................................................................................... 48
K. When must an agency proceed by NAC rulemaking rather than adjudication? ......................... 55
L. OIRA and Presidential Review of Rulemaking: When does an agency have to proceed by
rulemaking? ................................................................................................................................. 58
VII. APA Substantive Review of Agency Action ................................................................................... 60
A. Outline.......................................................................................................................................... 61
B. Procedural review says agency must do specific procedures, while substantive review is a
check on the thinking. Vermont Yankee says courts cannot add additional procedures, but
substantive review will probably affect procedures (and vice-versa). ........................................ 61
C. Judicial Review of Agency Findings of Fact – APA Section 706.................................................... 61
D. Substantial Evidence Test (Formal on-the-record adjudications or RM rulemakings) ................ 62
E. Informal Adjudications or Rulemakings - Arbitrary and Capricious Test ..................................... 64
F. Arbitrary and Capricious Test: Agency Review Beyond the Facts ............................................... 66
VIII. Judicial Interpretation of Agency Actions by Statute (Subst. Review) ........................................ 74
A. Post-Mead Chevron Framework Chart ........................................................................................ 75
B. Chevron Step 1 (HIGH BAR) ......................................................................................................... 76
C. Chevron Step 1.5 – Determine whether Congress intended the agency to fill the statutory gap
in a legally binding way (Court’s interpretation) ......................................................................... 78
D. Chevron Step 2 ............................................................................................................................. 82
E. Commentary and Proposals for Deference ................................................................................. 83
IX. Agencies and the Structural Constitution ....................................................................................... 84
A. Introduction ................................................................................................................................. 84
B. Congressional Control of Agency Action ...................................................................................... 87
C. Executive Control of Agency Action ............................................................................................. 94
D. Courts legitimizing the Administrative State: Ackerman: Courts have an important role in
notifying / flagging these issues. Thus, court involvement legitimizes the Administrative
structure and modern administrative state ................................................................................ 98
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I. Introduction to Administrative Law

A. Overview of Administrative Law
1. Administrative Agencies are how we most interface with the law
2. Administrative agencies are created by “organic statutes” (e.g., OSH Act, which
created OSHA); they tend to have broad power in order to:
a) Punt political decisions / heat from congress to agencies
b) Create detailed rules that are too difficult to regulate
c) Allow for change over time
d) Give / show political compromise
e) Leave issues to experts

3. Thematic Questions: policy design, political legitimacy, constitutionality, how
agencies blend executive/legislative/judicial power
4. Administrative law comprises the body of general rules and principles governing
administrative agencies (how they do their work, how results of that work will
be reviewed, etc.); it is like civil procedure, in that it deals with general
questions of process rather than the more particular questions (like labor or tax
policy)
B. History of Administrative Law in Five Periods (think sedimentary: there is

residue from each era)
1. Antebellum (founding – 1870s): strong local administrations and regulations,
except at federal borders
2. Post-bellum to New Deal (1870s-1930s): independent commissions; regulation;
courts deferential to administration; more discretion in statutes
3. New Deal – Great Society (1930s-1960s): broad discretion and expansion of
administrative agencies; APA; courts scrutinize agencies most closely; agencies
institute more internal reforms
4. Public-Interest Era (1960s-1970s): social regulation; rulemaking rather than
adjudication; Congress increases control, courts scrutinize more; public interest
voice
5. Deregulation and Privatization (1970s-present): courts back off agencies;
congress sends mixed signals; presidential control increases
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II. Procedural Due Process As a Constraint on Agencies

Two determinations:
1. To see if individual due process rights are triggered: evaluate (1) state action;
(2) adjudication v. rulemaking; (3) rejecting right/privilege doctrine; and (4)
adopting protected interest test.
2. Once individual due process rights are triggered, how much process is due?
Checklist for when Individual Due Process Rights are triggered:

 Is there a State Action? (Must be answered yes)
 Is it Adjudication? (Must be answered yes). (If it is a rulemaking, no individual due
process rights).
 Rejecting right / privilege doctrine
 Adopting protected interest test
 Then, once individual due process rights are triggered, how much process is due?
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A. State Action
1. Most of the constitution’s right-granting and equal-protection m measures
only apply to the State and its agency (e.g., a private action can’t violate
Constitutional rights – although they could violate a statute, regulation, etc.)
2. The State is clearly a private actor; a private business is not; this question is
murky for public-private hybrids (e.g., private school that gets 95% of its
funding from the government)
3. Case illustration: Rendell-Baker v. Kohn, 457 U.S. 830 (1982). ONE WAY TO
ANALYZE THIS QUESTION; COMPARE TO BRENTWOOD (majority in Kohn is like
dissent in Brentwood; dissent in Kohn is like majority in Brentwood)
a) Issue: whether a private school, whose income is primarily from public

sources and which is regulated by public authorities, acted as “state
action” when it discharged certain employees, who claim that dismissal
without a hearing is a violation of their due process rights
b) Factors from Rendell-Baker v. Kohn:
(1) Public funding of a private entity (Here, yes)
(2) Extensive regulation of private entity
Majority: Did state “exercise coercive power or provide

such significant encouragement that the choice must be
deemed that of the state?” (Look at the the ACT, not the
actor: what the ACTION that of the state?) (Here, no b/c the
act of firing was not that of the state)
Dissent: Was the ACTOR sufficiently involved with the

state? (Think the ACTOR, not the act) (Dissent says yes,
school sufficient involve with the state).
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(3) Private entity performs a public function
Majority: a private entity performs a public function when

only the state could traditionally do; narrow restriction to
what was traditionally the “exclusive prerogative of the
state” (Here, the state is not the only one who could
provide educational services).
Dissent: Rejects “exclusively traditional view;” school

performs what is otherwise a state function; this factor is
not dispositive, but weight in favor of finding state action
here
(i) Consider that the state has DELEGATED ITS

STATUTORY DUTY to educate students w/ special
needs
(ii) State has a statutory obligation to perform this and

has delegated it to a private entity; thus, the private
entity is performing a public function
(4) State and private entity have a symbiotic relationship
Majority: only when the state financially benefits from

what the private actor does
Dissent: “The state and private entity have a symbiotic

relationship” is NOT a factor, but the “uber question;” if the
other factors tilt in favor of state action, there is symbiosis
4. Case Illustration: Brentwood Academy v. Tennessee Secondary School Athletic

Association, 531 U.S. 288 (2001); majority by Souter
a) Facts: Brentwood Academy, a parochial school, was disciplined by the

Athletic Association for recruitment violations; Brentwood alleged due
process violations
b) Holding: Although the Association is a separately incorporated

membership organization, its “regulatory activity may and should be
treated as state action;” Souter: [S]tate action may be found if, though
only if, there is such a “close nexus between the State and the
challenged action” that seemingly private behavior “may be fairly
treated as that of the State itself”
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B. Adjudication (individual Due Process Rights) or Rulemaking (no DPR)

1. Adjudication is analogized to resolving particular disputes through trial-type
proceedings; rulemaking generally likens to enacting general policy through
legislation; however, the line between these two procedural forms is not
always clear
2. The Londoner/Bi-Metallic Distinction: the kind of due process rights you have
is going to depend on whether the administrative action is
rulemaking/legislative or adjudicative; three ways to distinguish
legislative/rulemaking activities from adjudications:
(1) Generality (legislative) v. Particularity (adjudication): does the

decision affect a lot of people (Bi-Metallic, Minnesota State Bd.
for Community Colleges v. Knight, Coniston Corp, Decatur Liquors)
or does it affect a small number of people (Londoner)?
*Pro-Eco: consider generality of decision is determined by form of

action rather than practical application
(2) Polycentric (legislation) v. Bi-Polar (adjudication): does the

decision involve trade-offs among larger groups and many
interests (like a legislature would make) or does it reflect a more
one-versus-one decision (that a judiciary would make)?
* Coniston Corp v. Village of Hoffman Estates (7th Cir. 1988) says

that polycentric/bipolar debate wins over generality/particularity
debate
(3) Prospectivity (legislative) v. Retrospectivity (adjudicative):

Holmes in Prentice v. Atlantic Coast Lines: does the decision
involve what will happen in the future (legislative) or does it look
at the past and determine what happened and if it was acceptable
(adjudicative)?
*There is no bright-line rule for which factors are the most

important. Analogize and dis-analogize.
*Some agency decisions have hybrid qualities & the Londoner /

Bi-Metallic factors can depend on point of view. (E.g., commission
determining what rates utilities can charge: polycentric for
consumers, bi-polar for the utility company; prospective;
particular for the utility co. but general for consumers)
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3. Londoner v. Denver (U.S. 1908)
a) Facts: Londoners argued that their due process rights were violated
when the Denver City Council (a) ordered a street paved and (b) levied a
tax on the nearby houses to pay for the street paving because (a) the
nearby houses did not petition for the street improvement and (b) the
City Council, sitting as a Board of Equalization – and thus acting as a state
agency, levied a tax without an opportunity to be heard.
b) Holdings:
(1) City Council acted in a legislative / rulemaking function when they

ordered the street paving. NO individual due process rights attach
to legislative decisions.
(2) However, the City Council – sitting as a board of equalization –

acted in an adjudicative manner when it levied a tax on the
surrounding houses. Individual due process rights attach to
adjudicative decisions. Thus, notice and an opportunity to be
heard are required.
(3) One of the ways we know this is an adjudication is that a small

number of people are affected. Holmes in Bi-Metallic: In
Londoner, “[a] relatively small number of persons was concerned,
who were exceptionally affected, in each case upon individual
grounds.”
4. Bi-Metallic Investment Co. v. State Bd. of Equalization (U.S. 1915)
a) Facts: State Board of Equalization and the Colorado Tax Commission

ordered increasing the value of all taxable property in Denver by 40%.
Plaintiff alleged violation of individual due process.
b) Holding: Due Process Rights attach only to administrative agency

adjudications (like in Londoner), not to rulemaking / legislative actions
that affect a large group of people (like the whole country or the whole
City of Denver).
c) Larger groups don’t get individual due process for rulemaking /

legislative actions because (a) it is impracticable to give all notice and an
opportunity to be heard; (b) small groups of people are not being single
out based on individual characteristics; (c) and representative
government is acceptable
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d) “Where a rule of conduct applies to more than a few people, it is

impracticable that everyone should have a direct voice in its adoption….
Their rights are protected in the only way that they can be in a complex
society, by their power, immediate or remote, over those who make the
rule.”
5. Londoner/Bi-Metallic Jurisprudence (I.e., subsequent decisions)
a) Minnesota State Bd. for Community Colleges v. Knight (U.S. 1984)

(holding that the Constitution does not grant members of the public a
right to be heard by public bodies making decisions of policy; recognizing
such a right to participate directly in government policymaking would be
impracticable, a revolutionary intrusion into policymaking, and would
invoke separation of powers concerns)
b) Coniston Corp v. Village of Hoffman Estates (7th Cir. 1988) (Posner

holding that land use and zoning are necessarily polycentric – and thus
legislative instead of adjudicative; zoning decisions require justice in
terms of al considerations and widespread community factors;
polycentric/bi-polar debate wins here over generality/particularity)
c) *Pro-Eco, Inc. v. Board of Comm’rs of Jay County, Ind. (7th Cir. 1998)
(generality of government action is determined by form of action instead
of practical applicable; holding that even though legislative moratorium
on building a landfill only affected Pro-Eco, this does not make the
legislature an adjudicatory body)
d) City of Eastlake v. Forest Citer Enterprises (U.S. 1976) (holding that a

particular zoning change affecting one person, when put to a popular
referendum, is legislative – not adjudicative)
e) Decatur Liquors, Inc. v. District of Columbia (D.C. Cir. 2007) (holding that
plaintiff, affected by an amendment to the liquor code which places a
moratorium on off-premises single unit sales of beer, malt liquor and ale
in a specific area, was affected by a legislative action that prohibits the
same conduct for 73 liquor stores; thus, no individual due process rights
are triggered); considered a Bi-Metallic scenario
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f) (1) Commission designates an area as having a high-rate of public

drinking and public disturbance  legislative; (2) commission
determines that single sales of beer and other alcoholic beverages are
particularly likely to lead to public drinking  legislative; (3) commission
enacts a ban on single sales of beer and other alcoholic beverages by
stores in the designated area that have a record of making large
numbers of such sales  legislative; (4) commission concludes that a
particular store in the area had a large number of single alcohol sales
and comes under the ban  this is where individual due process rights
are triggered.
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C. Rejecting Right/Privilege Doctrine

1. History: Rights trigger due process rights but privileges do NOT trigger due
process rights; Holmes example: there is a constitutional right to talk politics,
but there is no constitutional right to be a policeman, when fired for political
speech; Goldberg stepped away from this, but Goldberg has been replaced by
a more modern approach
2. Goldberg v. Kelly (U.S. 1970) – WHICH HAS BEEN REPLACED BY A MORE

MODERN APPROACH
a) Facts: State terminated public welfare assistance payments to a

particular recipient without affording him the opportunity of an
evidentiary hearing prior to termination; plaintiff alleges this denies
procedural due process in violation of the 14th Amendment’s DPC.
b) Holding: only pre-termination evidentiary hearing would suffice.
c) Rule: Individual rights must be tied to life, liberty or property for

individual due process rights to be triggered. (The right/privilege
doctrine has been rejected). When determining whether individual rights
are tied to life, liberty and property, consider:
(1) Whether the benefits are attached to a statutory right or an

“important right.”
(2) Whether the action will result in a “grievous loss.” (E.g., welfare
recipients will likely have no other means if their benefits are
wrongfully terminated).
(3) A classic balancing test: whether the recipient’s interest in

avoiding the loss outweighs the governmental interest in
summary adjudication. (Consider that the government has an
interest to promote the general welfare, prevent unrest, fairness
AND, on the other side, doesn’t want to spend money and
resources on adjudication).
(4) The qualities of people affected by the decision. (E.g., welfare

recipients likely don’t have the education and writing skills to
submit persuasive written documents that are molded to the
argument being made against them)
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d) Effects of Goldberg / Commentary about Goldberg:
(1) The New Property (Yale Law Journal article by Charles Reich):
property is the social construct that maintains independence,
dignity and pluralism by creating zones in which the majority must
yield to the owner; licenses / permits / grants / benefits / welfare
is “new property” and invokes procedural protections.
(2) Practical impact of Goldberg: practical problems administering

due process / advanced notice, even with 2,500-person income
maintenance staff and 500 supervisors in Human Resources
Administration in NYC; moves welfare from social worker model
to objective, DMV-like / office-like welfare offices; people lose
welfare based on administrative / bureaucratic reasons like
missing paperwork
(3) Commentary and questions: more procedure can lead to less

substance; difficulty of terminating benefits reduces willingness to
put people who may deserve welfare in the welfare system; are
benefits only for those who are motivated and present at
meetings – since 80% win at certain appeals; frontline people may
be sloppier about terminating people because they think the
appeals process will sort it out; appeals in some cases are 7
minutes long – is this really due process?
(4) What would you get from Goldberg?
Don’t get: full record, comprehension opinion or formal

findings of fact; right to counsel provided by state;
particular order of proof or mode of offering evidence
Do get: impartial decision maker; timely & adequate notice

plus reasons; opportunity to confront witnesses, cross-
examine, present evidence, present oral & written
statements, an on the record decision, option to bring
counsel, statement of reasons for determination
(5) After Goldberg, courts used a unitary approach to “life, liberty and
property” – which meant almost everything and anything that is
important; “all interests valued by sensible men;” anything
causing a “grievous loss.” Roth and Sinderman rejected this
unitary approach.
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3. When Individual Due Process Rights Are Triggered: Adopting Protected State
Interest Test
a) In order to trigger individual due process under the 5th or 14th

Amendment, government action must affect liberty or property interest.
(Roth & Sinderman)
(1) Property Interest: to trigger individual DP, state law, federal law,
or common law must have established the property interest.
The Constitution DOES NOT create property interests. One

needs a “legitimate claim of entitlement to [the property
right],” not just an abstract need, desire for it, or unilateral
expectation to it; no “mushy” property rights.
Discretionary benefits do NOT trigger individual due

process rights; mandatory ones do. (Kapps v. Wing)
Real Property is also a property interest protected by

individual due process rights (e.g., money, real estate, some
right by contract law)
(2) Liberty Interests: a unitary reading applies; liberty includes

freedom from bodily restraint, right to contract, to engage in the
common occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, worship God (in his
own way), enjoy privileges essential to the ordinary pursuit of
happiness by free men.
However, post-Roth liberty interest cases show that a

liberty interest is triggered when there is a substantive
interest and consequence on some other legal right in state
or local law.
b) Board of Regents of State Colleges v. Roth (U.S. 1972)
(1) Facts: Roth was hired by UW-Oshkosh for a one-year faculty

position w/ the potential for renewal. For one-year positions, UW-
Oshkosh procedures call for notice by 02/01 of non-renewal; no
reason, review of appeal is given. Roth was not given a renewal.
(2) Rule: 14th Amendment due process protections apply only to

liberty and property. Property interests must involve “a legitimate
claim of entitlement to it” rather than an abstract need, desire for
it, or unilateral expectation to it
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c) Post-Roth Cases of Liberty Interests: Liberty Interest must be affected by

a substantive interest and consequence on some other legal right in
state or local law in order to trigger individual due process.
(1) Meachum v. Fano (U.S. 1976) (holding that prisoner’s transfer

from a more-restrictive to less-restrictive site is not a deprivation
of liberty that triggers an individual due process right; state
statutes on point are discretionary; don’t interfere with the day-
to-day functioning of the prison system)
(2) Paul v. Davis (U.S. 1976) (holding no liberty interest when police
distributed pictures of individual as convicted prisoner; didn’t
affect any other right beyond good reputation)
(3) Wisconsin v. Constantineu (U.S. 1971) (holding a liberty interest

was triggered when the police chief posts signs in all area liquor
stores banning sale of alcohol to Norma Constantieu because she
had a legal right to drink alcohol – beyond just a damaged
reputation. “It is significant that most of the provisions of the
Bill of Rights are procedural, for it is procedure that marks much
of the difference between rule by law and rule by fiat.”)
d) Perry v. Sinderman (U.S. 1972)
(1) Facts: Teacher on successive one-year contracts for 10 years, who

was elected President of Texas Junior College Teachers Ass’n and
had publically exposed Board of Regents policies, did not have his
contract renewed. No officials reasons, no hearing, but a press
release issues called him insubordinate. University guide holds
that 7+ years of employment creates a de facto tenure policy.
(2) The de facto tenure policy is an implied contract for more than
one year. Thus, Sinderman’s property right triggers individual DP.
(3) IMPORTANT: Sinderman is NOT expansive – not all government

contracts are “property interests.” The court has retreated from
this expansive notion of property rights as to (a) no violate
federalism by determining how State actors should act AND (b) as
to not turn personnel decisions into constitutional questions.
(4) Bishop v. Wood (U.S. 1976) (holding an ordinance stating that a

permanent employee deemed not satisfactory shall be notified &
given an opportunity to improve does NOT create a “property
interest.” The DPC of the 14th Amendment is not a guarantee
against incorrect or ill-advised personnel decisions.
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e) Kapps v. Wing (2d Cir. 2005): mandatory benefits trigger individual due
process rights; discretionary benefits do not.
(1) Facts: Congress enacted Low Income Home Energy Assistance Act.
Participating states are given block grants and thus have broad
discretion over the program (beyond certain requirements). State
rules are mandatory and based on objective, formulaic standards;
benefits are not given out based on discretion.
(2) Holding: Federal law gives discretion, so this does not create a
property interest. However, state law makes benefits mandatory
for certain income groups; lack of discretion creates “property
interest” based on state law. Additionally, existing procedures are
inadequate as a matter of federal constitutional law.
(3) Since benefits are disbursed based on objective, formulaic

standards, this helps create a “property interest” from the state.
(4) Procedural due process arises when state or federal law confers
an entitlement to benefits; it DOES NOT arise out of “unilateral
expectations” of receiving the benefit, but when one has a
“legitimate claim of entitlement” to the benefit. Whether a
benefit invests the application with a claim of entitlement or
merely a unilateral expectation is determined by the amount of
discretion the disbursing agency retains.
(5) Note: Kapps doesn’t tell how much discretion is allowed before
it’s no longer a statute-created property interest that triggers
individual due process rights.
f) Post-Kapps Commentary, Discussion:
(1) Supreme Court has refused to decide whether applicants for

benefits get constitutionally mandated process. Arguments
against: constitutional requirement of DP only applies when the
state “deprives” someone of life, liberty, or property – & not
giving something is different from depriving; costs of providing
process to applicants would be large
(2) Professor Mashaw’s (Yale Law) criticism: if the Constitution

protects people from the State’s arbitrary decision making, then
why are there due process protections when there is a lot of
regulation in mandatory benefits, but no protection in programs
with lots of discretion?
(3) Professor Williams: Kapps gives an incentive for those structuring

programs to make them highly discretionary
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D. Once Individual Due Process is Triggered, How Much Process is Due?

1. Matthews v. Eldridge (U.S. 1976): updates the Goldberg balancing test
between For Process (recipient’s grievous loss & government avoiding
wrongful termination) v. Against Process (government’s interest in fiscal /
administrative resource conservation). Argues that Goldberg is the
exceptional case; otherwise, pre-termination individual DP is not necessary.
a) Facts: Eldridge was terminated from disability benefits. He was told he

didn’t meet the requirements, was given a statement of reasons, and
was given time to obtain and submit additional information. In a written
response, he disputed one characterization and said the agency had
enough information. State terminated payments and advised his right to
seek reconsideration within 6 months; he did not. Instead, Eldridge sued.
b) Rules: “The essence of due process is the requirement that ‘a person in

jeopardy of serious loss [be given] notice of the case against him and an
opportunity to meet it.” “All that is necessary is that the procedures be
tailored, in light of the decision to be made, to ‘the capacities and
circumstances of those who are to be heard,’ to insure that they are
given a meaningful opportunity to present their case.”
c) Reasons to distinguish from Goldberg:
(1) Welfare recipients are more likely to have no money if benefits

are terminated, whereas disability beneficiaries can apply to
welfare and food stamps; they may have tort funds, savings,
private insurance, spousal income, wages, pension, etc.
(2) Consider the length of wrongful deprivation (actually 10-11

months because of backlog); benefits are paid back if decision was
erroneous
(3) Doctors submit written evidence in disability cases, and doctors

can advocate and write; welfare recipients often cannot.
(4) The back-and-forth of the disability benefits proceedings allow

beneficiaries an opportunity to submit more evidence and make
the case against them.
(5) For the risk of erroneous deprivation, the reversal rate for
disability termination is overall 3.3% (but actually 58.6% for those
who make it to an evidentiary hearing, the final stage; this shows
either that evidentiary hearings are important OR risk or
erroneous deprivation is low).
17
2. Matthew’s Variables to determine (once individual due process is triggered)

how much process is due.
a) Private interest affected by government action (for factors, consider the

length and depth of deprivation)
b) Risk of erroneous deprivation under procedures used and value of

additional substitute procedures; for factors, consider:
(1) The type of evidence (medical documents that are relatively

objective or welfare benefit information that involves credibility
of applicant)
(2) Characteristics of general recipients (e.g., can their write?)
(3) Ability to mold arguments to the case being made
(4) Reversal rates (including if the recipient will be refunded (like

under disability benefits) or not (for welfare)
*FOR ALL FACTORS: consider the “general recipient,” not the

exceptions. (E.g., welfare recipients typically cannot write
effective and thus cannot advocate for themselves; however, this
is not necessarily the case for disability beneficiaries).
c) Government’s interest, including the “fiscal and administrative burdens”

the additional procedures would impose
d) Meta-Questions:
(1) Fairness (the minimum necessary for people to present their case)
(2) Deference (to the legislative and executive branches to determine

what procedures are good)
18
3. Post-Matthews Commentary, Discussion and Jurisprudence
a) Due Process Clause protects process values; people believe the system is
fair if they have been through a process; it protects minority (or
individual) interests versus the majority (or collective interest)
b) Defense of Matthews: there are finite adjudicatory resources; courts

should police the outer bounds, but they should ultimately defer to
Congress and administrative agencies in terms of procedure; polycentric
questions are not best decided by courts
c) Unanswered question: What is the procedural floor? I.e., what is the

fewest/least bit of due process if you have due process rights?
d) Goss v. Lopez (U.S. 1975) (holding a student facing a 10-day suspension

triggered individual due process; a letter from the principal explaining
decision was not enough due process; however, all that was required is
an informal student-principal meeting with notice, an explanation of
charges, and the student’s opportunity to assert reasons in opposition)
e) Van Harken v. City of Chicago (7th Cir. 1997), cert denied by SCOTUS
(1) Illinois allowed municipalities to decriminalize parking violations

and thus use truncated, civil due process proceedings rather than
significant trial-type proceedings if tickets did not exceed $100
(2) Holding: acceptable; cost of procedural safeguards can be

immense; they are not justified for trivial expenses, given the
unlikelihood of having an unfounded ticket
(3) The Cost-Benefit Constitution? Judge Posner: If a police officer’s

attendance at a hearing costs him 2 hours away from work,
procedural safeguards requiring police officers to attend hearings
for municipal parking violation would cost the City 134,000 police
hours a year, the equivalent of 67 full time officers at 2,000 hours
per year. (Professor Lee: there numbers come from nowhere).
19
f) Judge Friendly “Some Kind of Hearing” (UPenn Law Review)
(1) Decried “the tendency to judicialize administrative proceedings”

that Goldberg produced
(2) Created a list of elements in a fair hearing, roughly in order of

priority. These are ALL POSSIBLE procedures, not all the ones
people should have; consider which of these people should get.
An unbiased tribunal
Notice of proposed action & grounds asserted for it
An opportunity to present reasons why the proposed action

should not be taken
The right to call witness
The right to know the evidence against oneself
The right to have a decision based only on the evidence

presented
Counsel
The making of a record
A statement of reasons
Public attendance
Judicial review
20
III. Tools of Statutory Interpretation

A. Constitutional Avoidance – if court is faced with more than one interpretation
and one raises BIG constitutional issues, interpret it another way
B. “Whole act rule” – i.e., each section should be interpreted in light of the whole
statute – and not in isolation
C. Purposivism / Congressional Intent Approach
1. Case illustration: Wong Yang Sung (U.S. 1950)
a) Facts: 554(d) requires separation of investigatory / prosecutorial

functions from one who participates or advises in decision (except as
witness or counsel in public proceedings). In Wong Yang Sung, people
rotated between prosecutorial and deciding roles; plaintiff alleges this
co-mingling created bias. INS statute is silent on whether there is an
adjudication and whether it has to be “on the record.”
b) Court looked at the legislative history to discern the legislative intent of

the APA; Congress passed it for uniformity among agencies. Thus, broad
statutory purpose informs that the action here violates the APA.
c) In terms of constitutional avoidance, interpreting the INS statute as

having no hearing would involve BIG due process constitutional issues;
court decides statute requires adjudication
2. Consider (in descending order of authority/reliability): committee reports,

committee hearings and floor debates (sponsors words or informed
supporters given more weight), post-enactment history (proposals to amend,
oversight hearings, efforts to pass related statutes), inaction: (a) acquiescence
rule: inaction in face of judicial/agency interpretations equal acceptance; (b)
rejected or neglected proposal rule: court is unlikely to adopt a rejected
interpretation; textualists criticize this approach
D. Textualism (dominant approach; statutory analog to originalism):

1. Consider the common meaning of the words when this statute was adopted,
or technical meaning if relevant.
2. Case illustration: Greenwich Collieries (U.S. 1994): legislative history is

imprecise and only marginally relevant; less emphasis on legislative history is
needed for statutory interpretation
E. “Living Statute Approach” (Peter Strauss): interpret statute in terms of present

circumstances; Leegin Creative Leather Products (U.S. 2007)
21
IV. The Administrative Procedure Act (APA) as a Constraint on Agencies

A. The Administrative Procedure Act ONLY APPLIES TO FEDERAL AGENCIES
B. Definitions (APA § 551) – BEFORE YOU TALK ABOUT HOW THE APA APPLIES
CONSIDER WHETHER THE AGENCY ACTION IS A RULE OR AN ORDER
1. APA makes every “final disposition” either a rule OR an order (see below)
2. Rule: an agency statement (a) of general or particular applicability and (b)

future effect (c) designed to implement, interpret, or prescribe law or policy
(e.g., rate setting, wages, corporate or financial structures or reorganization,
prices, facilities, etc.) APA § 551(4)
3. Rulemaking: the agency process for formulating, amending or repealing a rule

APA § 551(5)
4. Order: output of an adjudication (if it is not a rule, it is an order); includes

licensing APA § 551(6)
5. Adjudication: agency process for the formulation of an order APA § 551(7)
C. Interplay between Constitutional Due Process and the APA

1. What is a rule under the Due Process Clause is different from what is a rule
under the APA. Since the Constitution is supreme and the Constitution
provides due process rights, Londoner/Bi-Metallic applies; Congress can’t say
how the Constitution is applied.
2. Is it a rule or an order/adjudication?
a) In the context of the APA  look at the APA statute.
b) For the purpose of individual due process rights  look at Londoner / Bi-
Metallic.
D. Places to Find Procedural Requirements: Due Process Clause, APA, Statute

being implemented, Agency Regulations (Code of Federal Regulations)
APA Chart: when a statute says it must be

“on the record after opportunity for an agency hearing” it is a formal proceeding.
Rulemaking Adjudication
Formal Have to be “on the record after opportunity Have to be “on the record after opportunity
for an agency hearing” APA § 553(c) for an agency hearing” APA § 554(a)
Informal Does not have to be “on the record after Does not have to be “on the record after an
opportunity for an agency hearing” opportunity for an agency hearing”
22
Outline of Pertinent APA Sections

551 Definitions: (4) – rule; (5) – rule making; (6) – order; (7) – adjudication
553 Rulemaking
a) EXCEPTIONS: Military or foreign affairs, matters relating to agency management or personnel, public property,
loans, grants, benefits, or contracts are except from 553
b) A notice of proposed rulemaking (NPRM) must be published in the federal register; it must include: (1) a
statement of the time, place, and nature of the public rulemaking proceedings; (2) reference to the legal
authority under which the rule is proposed; and (3) either the terms of the substance of the proposed rule or a
description of the subjects and issues involved.
Exceptions: (A) interpretive rules, general statements of policy, or rules of agency organization, procedure, or
practice, or (B) for good cause (and incorporates the finding and a brief statement of reasons into rules) that
notice and public procedure are impracticable, unnecessary, or contrary to the public interest
c) Interested persons shall have an opportunity to submit written data, views, or arguments with or without the
opportunity for oral presentation… [T]he agency shall incorporate in the rules a concise general statement of
their basis and purpose.
FORMAL RULEMAKING TRIGGER: When rules are required by the statute to be “on the record after opportunity
for an agency hearing, section 556 and 557 of this title apply instead of this subsection.
d) Publication or service must be given 30+ days before its effective date, except (1) a substantive rule which
creates an exemption / relieves a restriction; (2) interpretive rules or statements of policy; or (3) good cause
e) Any “interested person” can petition for an issuance, amendment, or repeal of a rule.
554 Formal Adjudications
a) FORMAL ADJUDICATION TRIGGER: Section 554 applies to adjudications required by statute to be “on the record
after opportunity for an agency hearing.”
EXCEPT: (1) in a matter subject to subsequent trial of the law and the facts de novo in a court; (2) selection
or tenure of an employee – except ALJs; (3) proceedings in which decisions rest solely on inspections, tests,
or elections; (4) military or foreign affairs; (5) when the agency acts as an agent for a court; or (6) the
certification of worker representatives
b) Persons entitled to notice an agency hearing shall be timely informed of (1) time, place, and nature of hearing;
(2) legal authority and jurisdiction; (3) matters of fact and law asserted (Whereas under rulemaking 553, the
whole public is entitled to notice)
c) All interested persons have the opportunity for (1) submission of facts, arguments, offers of settlement,
proposals of adjustment (when time, nature, and public interest permit)
d) Ex parte communications: Presiding party may not:
(1) Consult a person or party on a fact in issue, unless on notice and opportunity for all parties to
participate
(2) Be responsible to or subject to the supervision of an agent engaged in prosecuting or investigatory
functions
Separation of functions: An employee or agent who performed an investigative or prosecutorial function
for an agency in a case may not, in that or a factually related case, participate or advise in the decision,
recommended decision or agency review pursuant to section 557 – except as witness or counsel in public
proceedings.
EXCEPTIONS: this section does not apply to (A) initial licenses; (B) to proceedings involving the validity or
application of rates, facilities, practices or public utilities or carriers; or (C) to the agency or members of its
body comprising the agency.
555 Ancillary Matters

a) This section applies to all provisions, except as otherwise noted; this includes informal adjudications
b) Matters of representation and counsel
c) Investigatory acts or demands (discovery) may not be issued except as authorized by law
d) Agency subpoenas
e) Prompt notice of denial of written application
23
556 Formal Adjudications: hearings, presiding officers, evidence, the record

a) This section applies, according to sections 553 or 554 which hold that the proceedings must be “on the record
after an opportunity for an agency hearing” – and exceptions do not bar their application
b) There shall preside at the taking of the evidence: (1) the agency; (2) one or more members of the body which
comprises the agency; or (3) one or more ALJs appointed under section 3105 of this title
This subchapter does not supersede certain types of conduct provided for by or designated under statute.
Disqualification based on bias. Presiding officers can disqualify themselves at any time with filing of an affidavit.
c) Presiding employees can: (1) administer oaths and affirmations; (2) issue subpoenas authorized by law; (3) rule
on offers of proof and receive relevant evidence; (4) take depositions or have depositions taken when the ends
of justice would be served; (5) regulate the course of the hearing; (6) hold conferences for settlement or
simplification of issues by consent of parties or by use of alternative dispute resolution; (7) inform of and
encourage alternative dispute resolution; (8) require attendance of parties who have authority to negotiate
concerning above (6); (9) dispose of procedural requires or similar matters; (10) make or recommend decisions
in accordance with section 557 of this title; and (11) take other action authorized by agency rule consistent with
this subchapter
d) (Except as otherwise provided by statute) The proponent of a rule has the burden of proof. A party is entitled to
present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct
such cross-examination as may be required for a full and true disclosure of the facts. In rule making or
determining claims for money or benefits or applications for initial licenses an agency may, when a party will
not be unduly prejudiced thereby, adopt procedures for the submission of all or part of the evidence in
written form.
e) What is decision based on: Exclusive record is transcript of testimony and exhibits, all papers and requests filed.
When an agency decision rests on official notice of a material fact not appearing in the evidence in the record,
a party is entitled, on timely request, to an opportunity to show the contrary.
557 Formal Adjudications: initial decisions, review by agency, submissions, contents of decision; record
a) This section applies, according to the provisions thereof, when section 556 applies.
b) When the agency did not preside at the reception of evidence, the presiding employee or, in cases not subject to
the ex parte communications 554(d) requirements, an employee qualified to preside at hearings pursuant to
section 556 (formal adjudications) shall initially decide the case – unless the agency requires (either in specific
cases or by general rule) the entire record to be certified to it for a decision.
When the presiding employee makes an initial decision, that decision is the decision of the agency unless there
is an appeal to, or review on motion of, the agency within time provided by the rule.
When the agency makes the decision without having presiding at the reception of the evidence, the presiding
employee or an employee qualified to preside at the hearings pursuant to section 556 (formal hearings) shall
first recommend a decision, EXCEPT that in rule making or determining an application for initial licenses – (1)
instead thereof the agency may issue a tentative decision or one of its responsible employees may recommend
a decision; or (2) this procedure shall be omitted if the agency finds on the record that due and timely execution
of its functions imperatively and unavoidably so requires
c) Before a recommended, initial or tentative decision, or a decision of agency review of the decision of
subordinate employees, the parties are entitled to a reasonable opportunity to submit –
(1) Proposed findings and conclusions; or
(2) Exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency
decisions; and
(3) Supporting reasons for the exceptions or proposed findings or conclusions.
All decisions, including initial, recommended, and tentative decisions, are part of the record and shall include a
statement of – (A) the findings and conclusions, and the reasons or basis thereof, on all the material issues of
fact, law, or discretion presented on the record; and (B) the appropriate rule, order, sanction, relief, or denial
thereof.
SEE EX PARTE COMMUNICATIONS FOR 557 ON THE NEXT PAGE
24
557, CONTINUED:
d) (1) In any formal proceeding (i.e., subjection to section (a) of this section), except to the extent required for the
disposition of ex parte matters as authorized by law –
(A) No interested person outside the agency shall “make or knowingly cause to be made” an ex parte
communication relevant to the merits of the proceeding (including communications to any member of
the body comprising the agency, ALJ, or other employee who is or may reasonably be expected to be
involved in the decisional process of the proceeding)
(B) OPPOSITE OF (A): no person inside the agency (see “including…” above) shall “make or knowingly cause
to be made” an ex parte communication relevant to the merits of the proceeding
(C) Any ex parte communications must be placed on the public record (i) all such written communications,
(ii) memoranda stating the substance of all such oral communications, (iii) all written responses, and
memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii)
(D) Upon receipt of ex parte communications, the agency / ALJ / employee presiding at the hearing may
require the party to show cause why his claim or interest in the proceeding should not be dismissed,
denied, disregarded, or otherwise adversely affected on behalf of such violation; and
(E) The prohibitions of this subjection shall apply at such time the agency shall designate; they cannot start
after a proceeding is noticed for hearing unless the person responsible for the communication has
knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his
acquisition of such knowledge.
(2) This subsection does not constitute authority to withhold information from Congress.
558 Imposition of Sanctions; licenses
706 Scope of Review. “The reviewing court shall –

(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be –
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise
review on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subjected to a trial de novo by the reviewing
court
25
V. The APA as a Constraint on Adjudication

A. Is the agency action an adjudication under the APA?
1. See APA § 551 for definitions of rulemaking v. adjudication
B. Does the adjudication have to be formal under the APA?

1. See APA § 554(a), which triggers § 556 and § 557
2. See Seacoast, Textualist, and Dominion Energy approach
C. If the adjudication has to be formal under the APA, does it involve an initial
license or a claim for money or benefits?
1. See Seacoast (next section) and § 556(d)
D. Must the agency allow cross-examination under the APA? (THE ONE PLACE
WHERE DUE PROCESS PROTECTIONS MIGHT BE MORE THAN THE APA)
E. What evidence can the agency consider in adjudication?
F. How impartial must hearing officers be in adjudication?

G. How impartial must agency heads be in adjudication?
H. Ex Parte Communications (related to F and G)
26
A. Is the agency action an adjudication under the APA?: See APA § 551 for
definitions of rulemaking v. adjudication
B. Does the adjudication have to be formal under the APA? (SEACOAST OR
DOMINION ENERGY or maybe even textualist approach)
1. Textualist approach (Greenwich Colliers WOULD HAVE SAID what does a
“public hearing” mean when the statute was adopted).
2. Seacoast v. Costle (1st Cir. 1978); MINORITY (Like in 9th Circuit)
a) If organic statute says “on the record,” a formal adjudication is required.
b) If organic statute says “hearing” but doesn’t say “on the record,” there is
a presumption that a hearing subject to judicial review is “on the
record.” (Also consider congressional intent).
c) Consider congressional intent – Wong Yang Sung.
d) Consider which features the decision has – i.e., formal (particularity, bi-
polar, retrospective) or informal (generality, polycentric, prospective),
then say if formal or informal procedures are required.
3. Dominion Energy v. Johnson (1st Cir. 2006) MAJORITY INTERPRETATION; first

circ. renounces Seacoast: If a statute requires a hearing, but doesn’t
unambiguously say that the hearing must be on the record, it is up to the
agency to determine whether the statute requires the kind of on the record
hearing that triggers formal adjudicatory procedures under 554. As long as the
agency’s determination is reasonable, courts should defer to it.
4. IF THE AGENCY HAS MADE NO DETERMINATION AS TO FORMAL / INFORMAL

ADJUDICATION, THEN SEACOAST APPLIES  COURT DETERMINES IF FORMAL
OR INFORMAL ADJUDICATION IS REQUIRED
a) Chevron deference applies to agency’s interpretations of their own

organic statutes. This deference does not apply to the APA; Steps:
(1) Step 1: Is there a clear and unambiguous congressional intent? If

yes  that interpretation governs. If no  Step 2
(2) Step 2: Determine if the agency interpretation is reasonable. (See

Dominion Energy). If yes, court defers to the agency
interpretation.
27
b) Agency regulations / determinations may affect interpretation. See

Citizens Awareness Network, Inc. v. United States (1st Cir. 2004)
(1) Facts: Nuclear Regulatory Commission reassessed its adjudicatory

process and took the position that Section 2239 – which
mandates “a hearing” but does not explicitly require an “on the
record” hearing – does not require reactor-licensing proceedings
to be on the record. Several public interest groups contested this.
(2) Rule: Courts can’t impose administrative procedures above and

beyond the APA. APA is a skeletal framework and leaves broad
discretion for affected agencies to formulate detailed procedural
rules. Procedural flexibility is the hallmark of administrative
process and courts must be reluctant to curtail this flexibility.
(3) HOWEVER, Citizens Awareness Network: court is open to the idea

that the APA could require procedures (like discovery) that the
APA doesn’t mention in the statute, if some procedure is
necessary to allow procedures that are required in the statute to
be protected
28
C. If the adjudication has to be formal under the APA, does it involve an initial
license or a claim for money or benefits? See Seacoast and 556(d) (SEE BELOW)
D. Must the agency allow cross-examination under the APA?
1. ONE PLACE WHERE DUE PROCESS CAN EXTEND FURTHER THAN THE APA
2. APA § 556(d): in rulemaking or claims for money / benefits or initial licenses,

these can be done by written submission if it would not unduly prejudice the
party (formal or informal adjudication); HIGHER STANDARD THAN “FULL AND
TRUE DISCLOSURE”
3. APA § 556(d): “[a] party is entitled to… conduct such cross examination as
may be required for a full and true disclosure of the facts.” MOST IMPORTANT
WHEN CREDIBILITY IS AT ISSUE; LIKE IN GOLDBERG
29
4. Citizens Awareness:
a) Generally, cross-examination should be allowed, but agencies retain

flexibility, and not-allowing cross examination is more acceptable in a
technical, scientific, objective decision
b) Concurrence looks at Attorney Generals manual, which construes the

cross-examination requirement liberally (i.e., when in doubt  give
cross examination; however, agencies retain flexibility).
5. Seacoast: suggests that when there are dueling experts interpreting data and
credibility is therefore important, cross-examination might be necessary for a
full and true disclosure of the facts
30
E. What evidence can the agency consider in adjudication?

1. INFORMAL ADJUDICATIONS: Due Process Clause applies
a) Castillo-Villagra v. INS (9th Cir. 1992): when do parties have a right to

rebuttal? (FOR FACTS / EVIDENCE OUTSIDE OF THE RECORD?)
(1) Asylum petitioners given no notice that facts concerning whether

political changes in Nicaragua obviated their fears of returning
were used to decide their case
Non-Sandinistas control parliament  indisputable and

legislative; no due process rights
Non-Sandinista President elected  indisputable and

legislative; no due process rights
Sandinistas ousted from power  legislative but

disputable; even though it’s legislative, because it’s
disputable, Castillo-Villagra has a right to show cause / have
some opportunity to rebut
Castillo-Villagra no longer had to fear Sandinista

persecution  adjudicative and disputable; opportunity to
rebut required under the due process clause
(2) Holding: 5th Amendment Due Process Clause applies (not APA) in
this informal adjudication. Agency can account of any
CONVENIENT facts in making decisions. Agencies are specialists
and can develop an expertise in facts; it is insufficient,
burdensome and overwhelming to require agencies to pull in
things from outside the record in this circumstance
(3) Additionally, Castillo-Villagra can discover facts at trial / decision.

They can also petition the BIA to reopen / reconsider. (Critics say
that since the BIA reopening / reconsidering is discretionary, this
is not due process).
(4) Notice under the Due Process Clause for Facts:
If facts are convenient and legislative and indisputable,

then warning only required
If facts are convenient and adjudicative AND/OR

disputable, then agency must give warning and party must
have (1) an opportunity to rebut or (2) an opportunity to
show that notice is inappropriate
31
2. FORMAL ADJUDICATIONS: See if the Due Process Clause or the APA provides
the higher standard; only worry about the one w/ the higher standard
3. APA § 556(e): in formal adjudication, agencies cannot rely on expertise

outside the record.
a) “The transcript of testimony and exhibits, together will all papers and
requests field in the proceeding, constitutes the exclusive record for the
decision.”
b) When an agency decisions rests on official notice of material fact (think:

convenient fact) not appearing in evidence on the record, a party is
entitled to, on timely request, an opportunity to show the contrary.
4. APA is wider than Due Process Clause because it applies to any material
dispute of facts. Due Process Clause only requires due process in a small range
of facts. Also, APA entitles you to a hearing, whereas the DPC only allows you
(1) an opportunity to rebut or (2) an opportunity to show that notice is
inappropriate.
5. Notice of evidence needs to be specific enough so the party knows what

evidence they can rebut and respond. Ohio Bell – referring generally to
“journals” and “task lists” is not sufficient notice of the evidence
a) See Baltimore and Ohio Railroad Co. v Aberdeen and Rockfish RR Co.
(U.S. 1968) (holding ICC’s decision on ratemaking for railroads was not
supported by evidence in the record)
b) Problem in Seacoast: agency head allowed experts to bring in new

record evidence of scientific studies; not okay under 556(e).
32
F. How impartial must hearing officers be in adjudication? Disqual. in formal adj.

1. Split of investigatory/prosecutorial roles from decision-making roles: APA §
554(d): “An employee or agent engaged in [investigatory or prosecutorial
roles] may not, in that or a factually related case, participate or advise in the
decision, recommended decision or agency review pursuant to section 557
[i.e., formal adjudication…], except as witness or counsel in public
proceedings.
a) Grollier v. FTC (9th Cir. 1980) (disqualifying hearing officer if his prior
involvement with the case in prosecutorial or investigative role apprise
him of ex parte information regardless of whether he remembers the
information)
b) Bright line: if you were involved  you are out
2. Personal Bias:
a) APA § 556(b) provides a presiding or participating employee may

disqualify himself (good faith; timely and sufficient affidavit of personal
bias or other disqualification).
b) Due Process Clause: disqualified if she has “prejudged” the facts at issue;
if she hasn’t prejudged but is merely exposed, that’s okay. See note
cases to see what constitutes bias.
c) Much higher bar to disqualify someone than split of investigatory /

prosecutorial functions from decision-making functions.
d) Central Platte (Nebraska 1994): could state hydrologist use her expert
knowledge of hydrology in assessing a party’s adjudication?
(1) A decision maker will be disqualified if she has “prejudged the

precise facts at issue” but not if she has “merely been exposed to
or investigated the facts at issue.” She may have even “form[ed]
an opinion” as to the general matter. “[P]rejudgment of law or
policy question is not disqualifying.”
(2) Standard is actual impartiality, not appearance of impartiality.
3. Any agency’s own regulations: Miles v. Chater (11th Cir. 1996) (holding that an
agency’s own regulations can be grounds for disqualification; e.g., 20 C.F.R. §
404.940: “[a]n administrative law judge shall not conduct a hearing if he or
she is prejudice or partial with respect to any party or has an interest in the
matter pending for decision)
4. SEE EX PARTE COMMUNICATIONS THAT INCLUDE ALJs (next page)
33
G. How impartial must agency heads be in adjudication? (and what conversations

and interactions can agency heads have?)
1. APA Limitations
a) APA § 554(d) DOES NOT APPLY TO AGENCY HEADS; it limits internal lines
of communication among employees
b) APA § 554(d) and 557(b) expressly permit actively involved staff to work
with agency decision makers in licensing or rate-making, which would
otherwise be prohibited in other on the record contexts
c) APA § 554 and 557(d) seek to restrain “Ex parte communications”
(1) 554(d)(1) applies to all parties (EXCEPT AGENCY HEADS) but only
reaches communications about “a fact in issue”
(2) 557(d) restricts conversations with persons “outside the agency”

but applies to all conversations “relevant to the merits of the
proceeding”
d) For the APA, agency / agency review / members of the board all mean
“head of agency”
2. Due Process Limitations on Ex Parte Communications
a) Federal Trade Commission v. Cement Institute (U.S. 1948); PRE-APA

ISSUE (ALTHOUGH APA HAD PASSED); DPC WAS APPLICABLE LAW
(1) Cement Institute alleged FTC was biased b/c it had already formed
the opinion that it price fixing and thus violating the Sherman Act.
(2) Holding: FTC cannot recuse itself because it has dealt with similar
issues in the past or has an awareness of relevant issues. This
would eliminate the usefulness of the FTC:
Organic statute: (1) congressional intent showing agency

heads can adjudicate and (2) need for expertise
b) For Due Process Clause disqualification (Cement Institute) – INCLUDES

HEARING OFFICERS AND AGENCY HEADS, consider evidence of an
“irrevocably closed mind” about facts or disposition; factors:
(1) Actual bias (not just appearance of bias)
(2) Total bias (“think irrevocably closed mind”)
(3) Party has burden to prove (not agency to prove or disprove)
34
c) It is NOT a violation of procedural due process for a judge to sit a case

where she has expressed an opinion as to whether the conduct was
prohibited by law
3. How Agency Heads are different than presiding officers
a) They have take an active role is investigations before being decision-

makers (separation of functions does NOT apply to agency heads)
b) Cement Institute says agency heads can be unbiased, though:
(1) Under the Due Process Clause, they cannot adjudicate if they have
(1) actual bias, (2) total bias – think “irrevocably closed mind,” and
(3) the party has proved / the party has the burden to prove
(2) Under the APA, 554(d) says that agency heads can have consulted
with prosecutors (however, prosecutors can’t have consulted with
the agency head)
35
H. Ex Parte Communications
1. APA has a higher standard for ex parte communications than DP Clause. Due
Process: Central Platte (Nebraska 1994)
2. APA § 551(14) An ex parte communication is “an oral or written

communication not on the public record with respect to which reasonable
prior notice to all parties is not given.” Requests for status reports are
excepted.
3. Factors to consider when ex parte communication is bad:
a) Gravity of ex parte communication
b) Whether party making improper contact benefitted
c) Whether contents of communication were unknown to opposing parties
d) Whether vacating agency decision for new proceedings would be useful
4. PATCO v. Federal Labor Relations Authority (D.C. Cir. 1982)
a) Facts: ALJ had dinner with Mr. Shanker (board member of the AFL-CIO /
union head – who was also a social friend) and spent 10-15 minutes
discussing upcoming case about de-certifying the Professional Air Traffic
Controllers Organization (i.e., a union)
b) Holdings:
(1) APA § 554(d): can’t have ex parte communications about any facts
at issue – with any person or party inside or outside of agency
(unless on the record w/ notice & opportunity to all parties to
participate)
(2) APA § 557(d) prevents ex parte communications among

“interested persons” (i.e., people with a greater interest than the
public at large) and people in the agency concerning prohibits
communications “relevant to the merits of the proceeding”
(3) In order to vacate, communication must rise to “corrupt

tampering with the adjudicatory process.” Ruling courts should
invalidate agency decisions irrevocably tainted. (Patco is not such
a case).
5. 554(d) “facts at issue” has a much more limited restriction on subject matter;
557(d) has a narrower universe of people who are limited, but has a much
broader subject matter.
36
VI. Mostly APA Procedural Constraints on Rulemaking

A. Questions:
1. When is notice-and-comment rulemaking (NACRM) required?
a) When must RM be formal? (Florida East Coast Railway)
b) When must an agency use rulemaking rather than adjudication?

(Chenery v. SEC; Bell Aerospace v. NLRB)
c) When can an agency issue a rule without even following informal

procedures? (GE v. EPA; Center for Auto Safety v. NHTSA)
2. If NAC RM is required:
a) Is anything more than APA Section 553 provides required? (Vermont

Yankee)
b) What type of notice is required? (Section 553; NRDC v. EPA)
(1) Section 553(b): “The notice shall include... (3) either the terms or
substance of the proposed rule or a description of the subjects
and issues involved.” (AN OR HAS BEEN TURNED INTO AN AND!)
(2) Logical Outgrowth Test (NRDC v. EPA, 2002)
c) What opportunity to participate is required? (Sec. 553(c); Nova Scotia)
d) What must a statement of basis and purpose contain? (Section 553(c);

Nova Scotia)?
B. Formal or Informal Rulemaking

1. Agencies now overwhelmingly rely on informal rulemaking
2. Formal rulemaking has been criticized as consuming too many agency

resources and giving excess control of the development of the rule to parties
in the proceeding (e.g., an FDA formal rulemaking to determine the
percentage of peanuts a substance needs to be called peanut butter took 9
years and 20 weeks of hearings, generating 8,000 pages of hearing record, to
produce a 6-page opinion to justify a decision to require at least 90% peanuts)
C. Rulemaking Requires Statutory Authority: the APA delineates the procedures

to be used in rulemaking – but grants of authority to make rules must be found
in the substantive, or “organic” statute the agency is implementing
37
D. United States v. Florida East Coast Railway Co. (U.S. 1973)

1. If the statute says “hearing” in rulemaking (and NOT “on the record after
opportunity to be heard,” presume INFORMAL rulemaking – unless it has
sufficient adjudicatory functions
a) If the rulemaking has sufficient adjudicatory functions (i.e., the rule is

particular and bi-polar), formal rulemaking is necessary
b) OPPOSITE PRESUMPTION than Seacoast for rulemaking
c) “On the record” is the trigger for formal rulemaking
2. Facts: Interstate Commerce Commission (ICC) regulated to encourage railways

to return shipping containers to owners (to prevent buildup in certain areas).
Congressional pressure sped the process and agency limited railroads to
written submissions. SCOTUS found this informal procedure acceptable.
Flowchart for 553 Notice-and-Comment Rulemaking
38
E. The Requirements of Section 553 Notice-And-Comment Rulemaking

1. Notice and comment rulemaking is INFORMAL rulemaking; it has increased in
popularity, especially since the 1960s and 1970s
2. ALWAYS Consider Florida East Coast Railway for informal rulemaking.
F. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council,

Inc. (U.S. 1978)
1. Facts: Nuclear Regulatory Commission (NRC) held a rulemaking to quantify
environmental impact outside a plant’s grounds (like mines in Utah and
uranium enrichment process in Ohio River Valley) to be considered in the
licensing process. NRC would apply this quantitative measure in future
adjudications. NRC wanted to deal with these issues once and for all.
2. Three possible bases for enhanced procedure:
a) APA – NOT AVAILABLE; no more than section 553 (holding the judiciary is
prohibited from imposing procedures on an agency when a statute does
not require them)
(1) “[G]enerally speaking this section of the [APA] established the

maximum procedural requirements which Congress was willing to
have the courts impose upon agencies in conducting rulemaking
procedures. Agencies are free to grant additional procedural
rights in the exercise of their discretion, but reviewing courts are
generally not free to impose them if agencies have not chosen to
grant them.”
(2) WIGGLE ROOM: “This is not to say necessarily that there are no
circumstances which would ever justify a court in overturning
agency action because of a failure to employ procedures beyond
those required by the statute. But such circumstances, if they
exist, are extremely rare”
(3) Talking about FCC v. Schreiber: Vermont Yankee rule is “an

outgrowth of the congressional determination that administrative
agencies will be familiar with the industries which they regulate
and will be in a better position than federal courts or Congress
itself to design procedural rules adapted to the peculiarities of the
industry and the tasks of the agency involved.”
(4) APA is NOT the “lower procedural bounds” as NRDC alleges
39
b) Due Process
(1) If sufficiently adjudicative under Due Process characteristics

(bipolar, particular, retrospective)
(2) If a “totally unjustified departure from well-settled agency

procedures of long standing.”
(3) “[I]n a rulemaking proceeding when an agency is making a “‘quasi-

judicial’” determination by which a very small number of persons
are “‘exceptionally affected, in each case upon individual
grounds,’” in some circumstances additional procedures may be
required in order to afford the aggrieved individuals due process.
(Florida East Coast Ry. Co.)
c) “Extremely compelling circumstances”
3. Reasons for Vermont Yankee Rule:
a) Judicial review would be totally unpredictable
b) All the inherent advantages of informal rulemaking would be lost
c) Courts shouldn’t encourage / compel formal rulemaking procedures for

everything (“Monday morning quarterbacking not only encourages but
almost compels the agency to conduct all rulemaking proceedings with
the full panoply of procedural devices normally associated only with
adjudicatory hearings.”)
d) This sort of review fundamentally misconceives the nature of the

standard for judicial review of an agency rule.... this sort of unwarranted
judicial examination can do nothing but seriously interfere with that
process prescribed by Congress...
G. DC Cir. Debate – Bazelon / Leventhal in Ethyl Corp. v. EPA (DC Cir. 1976) – ON
FINDING AND REVIEWING CONTESTED FACTS, ESPECIALLY TECHNICAL ISSUES
1. Judge Bazelon: courts should impose procedures, not address the substance of
technically complicated agency decisions (“it is to establish a decision-making
process that assures a reasoned decision that can be held up to the scrutiny of
the scientific community and the public”)
2. Judge Leventhal: judges can and must assess the substance of agency’s
decisions even if they involve technically complicated matters
40
H. Natural Resources Defense Council v. Environmental Protection Agency (9th

Cir. 2002) – LOGICAL OUTGROWTH TEST, a well-established interpretation of
APA Section 553 Notice
1. FACTS: ADEC (Alaska Department of Environmental Conservation) sets water
quality standards subject to EPA approval, then has to certify that EPA
pollutant permits meet the water quality standards. EPA draft permit
incorporated the existing Alaska standard that 100% of the continuous 4-inch
deep debris couldn’t exceed 1 acre, and said that enforcement wouldn’t be
triggered until 1.5 acres. First two drafts said this and were put out for public
comment. Then Alaska told EPA that they were changing it to no limit on zone
of deposit but enforcement would be triggered at one acre, but this draft
wasn’t circulated to the public and the EPA adopted it as a final rule.
2. Holding: EPA’s notice and comment rulemaking was inadequate because it did
not afford interested parties the opportunity to comment on whether Alaska’s
proposed change in the zone of deposit definition conformed to the
substantive requirements of Alaska law and, if not, whether the change
required the issuance of a conditional permit or the denial of the permit
altogether.
3. Rule:
a) The final rule “must be a logical outgrowth of the proposed rule” such
that interested persons could reasonably “have anticipated the final
rule[] from the draft.” (140). It cannot evince a “fundamental policy
shift.” (141)
b) The essential inquiry focuses on whether interested parties reasonably

could have anticipated the final rulemaking from the draft permit
[proposed rule?]” (To answer this, look at c).
c) “[O]ne of the most salient questions is whether a new round of notice

and comment would provide the first opportunity for interested parties
to offer comments that would persuade the agency to modify its rule.”
(140)
41
4. More About the Logical Outgrowth Test
a) Long Island Care v. Coke (U.S. 2007)
(1) Upheld a rule that differed from the circulated draft (draft said
they certain workers would be exempt from a FLSA exemption;
the final rule said certain domestic services workers would not be
exempt from the exemption.
(2) NOT ADOPTING A PROPOSAL IS A FORESEEABLE OUTCOME. Final

rule not doing what the draft says it will do is a “logical
outgrowth.”
(3) New provisions of a final rule are a logical outgrowth of an

agency’s proposal if and only If interested parties hsuld have
anticipated the change.
(4) The logical outgrowth test is really about notice. It is a specific

application of 553b’s requirement of ‘a reasonable opportunity to
participate’ and of being ‘fairly apprised of the subjects and
issues’ at stake.
(5) Breyer for a unanimous court: “The Court of Appeals have

generally interpreted... [APA Section 553(b)(3)] to mean that the
final rule the agency adopts must be ‘a logical outgrowth’ of the
rule proposed.”
b) American Radio Relay League v. FCC (D.C. Cir. 2008) (CB 153)
(1) Court requires disclosure of studies used when FCC formulated its
rule and avoids a Vermont Yankee problem by saying that they’re
not imposing extra-Section 553 requirements on the FCC – they’re
just applying the APA using statutory interpretation
(2) APA Section 552(a)(3) requires agencies to make public, on

request, any properly identified factual data in agency records,
subject to some narrow exceptions (the Freedom of Information
Act, which updated the APA)
(3) When an agency involves itself in NACRM, studies upon which an

agency relies in promulgating the rule must be made available
during the rule making in order to afford interested persons
meaningful notice and an opportunity for comment.
(4) This is NOT in conflict with Vermont Yankee because the court
does not add procedures – but simply enforces established law
42
c) Alto Dairy v. Veneman:
(1) Court considered challenger’s sophistication when considering

notice; challengers must have been able to understand
(2) If agency says it was going to change a broad area of policies, it is

acceptable/adequate notice when a small area is changed
d) Role of Comments in Logical Outgrowth Analysis
(1) Comments are evidence of what people understood to be within

the ambit of what the agency was regulating or what the rule
could be; thus, absence of comment about a particular facet of a
rule that the agency ultimately adopts shows that there wasn’t
sufficient notice
(2) Comments on their own cannot give people notice on agency’s

behalf
I. What opportunity to participate is required? AND; what must a statement of

basis and purpose contain? (Section 553(c))
1. APA 553(c) – After notice required by this section, the agency shall give
interested persons an opportunity to participate in the rulemaking through
submission of written data, views, or arguments with or without the
opportunity for oral presentation. After consideration of the relevant matter
presented, the agency shall incorporate in the rules adopted a concise general
statement of their basis and purpose.
2. ADDING ADDITIONAL INFO AFTER THE PUBLIC COMMENT PERIOD
a) Rybachek v. EPA (9th Cir. 1990) – END THE CYCLE
(1) EPA’s addition of over 6,000 pages to the administrative record

after public review-and-comment period had ended DID NOT
violate the public’s right to comment on the record; not very
material or critical to decision
(2) The additional material was the EPA’s response to comments

made during the public-comment period. We can’t have a never-
ending circle of public commenting.
43
b) CONTRAST RYBACHEK with Ober v. EPA (9th Cir. 1998)
(1) EPA allowed additional 300 pages of info. responding to

comments from the State of Arizona (about implementing the
Clear Air Act) after the public comment period. Court held the
acceptance of these submissions without offering other a chance
to comment on it violated the APA.
(2) DIFFERENCE: the EPA can add it’s own material (such as its own
responses to comments) and not allow comments on those
responses. HOWEVER, the EPA cannot allow A STATE, INTERESTED
PARTY, OR OTHER ENTITY to add comments / responses to the
record – unless there is a period of public comment.
(3) Need to disclose information when it’s material to decision
3. Adequacy of 553(c) statement
a) Statement does NOT have to address every item of fact or opinion in

comments, BUT MUST:
(1) Indicate what “major issues of policy” the agency considered and
why it resolved them the way it did; AND
(2) Answer any “vital questions” raised in the comments that are “of
cogent materiality” (CB 151-152); in Nova Scotia – commercial
viability AND pan-species v. single species distinctions ARE BOTH
major issues of policy and vital questions “of cogent materiality”
b) HOWEVER, Attorney General’s Manual originally said all that was

needed to respond was a concise and general statement like “all
comments have been considered.”
44
4. United States v. Nova Scotia Food Products Corp. (2d Cir. 1977)
a) Issues: (1) Did the FDA fail to give public it’s APA Section 553 opportunity
to participate? (2) Did the FDA fail to provide an adequate statement of
the regulation’s basis and purpose?
b) FACTS: FDA issues a notice of proposed rulemaking concerning the

processing of fish after several outbreaks of botulism. Agency declined
to make special provision for particular species of fish until processors of
a given species proposed an adequate substitute. Whitefish processors
made no such demonstration. HOWEVER, after the FDA engaged in an
enforcement action against Nova Scotia, they asserted that the
requirements could not be met if they were to make a marketable fish.
c) What is required to give the public its 553 opportunity to participate?
(1) “When the basis for a proposed rule is a scientific decision, the
scientific material which is believed to support the rule should be
exposed to the interested parties for their comment.”
At least when the research is (1) “readily available” and (2)

the agency “has no special expertise on the precise
parameters involved”
May be able to resort to “its own expertise outside the

record.”
d) What is required in an adequate statement of the regulation’s basis and

purpose?
(1) To test if a “concise general statement” was appropriate (by APA

553), “We do not except the agency to discuss every item of fact
or opinion included in the submissions made to the informal
rulemaking. We do expect that [...] the concise general statement
of... basis and purpose mandated [...] will enable [courts] to see
what major policy were ventilated by the informal proceedings
and why the agency reacted to them as it did.”
(2) Statement must (1) indicate major issues of policy, why the
agency considered them and why they resolved them in the way
they did. The statement must (2) answer any vital questions
raised in the comments that are of cogent materiality. (Here the
FDA didn’t explain why public health concerns outweigh
commercial viability concerns of Nova Scotia).
45
Regulation is within the authority of the FDA. However, regulation

is invalid as applied to appellants because of inadequacies in
procedure. During the rulemaking process, the FDA did not
appropriately consider, nor make a concise general statement in
response to suggestions by other U.S. government agencies that
the regulations should not apply to all fish.
e) Is Nova Scotia an overreach?
(1) Breyer: too much time and effort
(2) Lars Noah: Creates an incentive to bury agency in comments
(3) Posner: think of person hours, time, money, effort in creating a

concise and general statements v. purpose of necessity of
procedural due process
5. Considering Statutory Objectives in Concise General Statement in Rulemaking

/ Regulation – Independent U.S. Tanker Owners Comm. v. Dole (DC Cir. 1987)
a) Secretary of Transportation promulgated a “payback rule” – that tankers

built under the assistance of federal subsidy – and barred from
competing in domestic trade as a result – can undertake domestic
operations if they agreed to pay back the unamortized amount of the
subsidy, plus interest, during a one-year period
b) Holding: Payback rule was arbitrary and capricious because the Secretary
of Transportation failed to comply with 553’s concise general statement
requirement in issuing it: a concise general statement should indicate
the major issues of policy that were raised in the proceedings and
explain why the agency decided to respond to these issues as it did,
particular in light of the statutory objectives that the rule must serve.
c) What an agency has to do:
(1) Identify major policy issues and alternatives during rulemaking
(2) Explain why, given the objectives of the statute under which the
regulation is promulgated, the agency resolved the issues as it did
AND rejected the alternatives that it did
(3) Answer any “vital questions” raised in the comments that are of
“cogent materiality” / Respond in a reasoned manner to those
assertions in the comments that, if true, would have required the
agency to change the rule
46
d) What an agency CANNOT do:
(1) Substitute new goals in place of statutory objectives
(2) Provide conclusory explanations or say the regulation advances

statutory purposes it clearly does not
e) What an agency NEED NOT do:
(1) Provide formal findings of fact and conclusions of law that are
required in formal proceedings
(2) Respond to every item of fact or opinion in the comments.
47
J. When are even informal rule making procedures not required? (EXCEPTION
FOR INTERPRETIVE RULES AND POLICY STATEMENTS)
1. EO 13422, 72 Fed. Reg. 2703 (Jan. 18, 2007) (Bush’s executive order on
guidance documents): A guidance is “an agency statement of general
applicability and future effect, other than a regulatory action, that sets forth a
policy on a statutory, regulatory, or technical issue or an interpretation of a
statutory or regulatory issue.”
2. Section 553(b)(A): Unless otherwise required by statute, agencies don’t have

to follow notice-and-comment procedures to issue “interpretive rules, general
statements of policy, or rules of agency organization, procedure, or practice.”
3. Section 552(a)(2): “those statements of policy and interpretations” not

published in the Federal Register have to be made “available for public
inspection and copying.” Also any “statement of policy, interpretation, or staff
manual or instruction” that affects the public can only be relied on or cited by
agency against another party if it has been appropriately indexed and made
available, or actual and timely notice given.
4. Pros and Cons of Guidance Documents
a) Peter Strauss (Rulemaking Continuum): guidance documents are good

because bureaucracies are incredibly complicated, and we don’t want
people like the postal worker to be interpreting them – guidance
documents tell front-line bureaucrats what to do
b) American Mining Congress v. Mine Safety (1993): guidance documents

are okay; better than “ad-hochery” of adjudications; more predicable
c) Robert Anthony: guidance documents are an easy means for

bureaucratic overreach, allows agencies to get around procedural checks
and requirements imposed by the APA; an agency power grab
d) Appalachian Power Co. v. EPA (2000): we don’t want to promulgate

vague mush
e) Guidance documents disenfranchise beneficiaries; some will have the

ability to challenge the regulations (like Center for Auto Safety), but
beneficiaries (Nina Mendelson says) don’t have this opportunity
f) Guidance documents can be used to revise an old interpretation, float a

new idea, clarify, encourage voluntary compliance, etc.
g) Helps mitigate the ossification of NA CRM; need to govern without 3-

year-or-so delay; centralizes control and makes for more efficient
government
48
5. General Electric Company v. Environmental Protection Agency (DC Cir. 2002) –

FOUND THAT IT WAS A RULE
a) Facts: guidance doc provides an overview of risk assessment techniques

for PCB disposal and guidance on choosing one: requires either (a) using
a cancer potency factor (AND WE MAY REWEIGH YOUR FACTORS or (b)
total toxicity factor measurement (AND THEN WE WILL NOT REWEIGH
YOUR FACTORS AND ANALYSIS) to determine likelihood of impact
b) “The ultimate focus of the inquiry is whether an agency action [here a

guidance document] partakes of the fundamental characteristic of a
regulation, i.e., that it has the force of law.”
c) A rule has the force and effort of law if:
(1) It appears on its face to be binding OR
Factors / considerations include:
(i) Use of mandatory language in guidance document

(“couched in mandatory language”)
(ii) Reasonably leads private parties to believe that

failure to perform will bring adverse consequences
(iii) Terms indicating that rule will be regularly applied
(iv) In some circumstances, language that indicates

parties can rely on it as a safe harbor (i.e., saying
“if you do this, you will be okay” – like use the total
toxicity factor and we will NOT reweight and
reanalyze your analysis, but use another measure
and we may IS a safe harbor)
(2) The agency applies the rule with binding effect
Factors / considerations include:
(i) Whether the agency has ever accepted private

party actions that don’t comply with the guidance
or rejected those who do (GE might feel that it’s
binding because they wouldn’t want to waste
resources developing a method and applying it if
it’s rejected)
(ii) Is the rule still up for contestation?
49
6. Center for Auto Safety v. National Highway Safety Administration (DC Cir.
2006) – FOUND THAT IT WAS NOT A RULE
a) Facts: NHTSA can mandate recalls. From mid-1980s-1997, manufacturers

began issuing voluntary recalls on geographically limited basis & NHTSA
did NOT object. In 1997, NHTSA sent letters expressing concern about
the practice. In 1998, NHTSA issued policy guidelines that distinguish
between “circumstances: (1) when the consequences of the defect occur
as the result of a short-term or single exposure to a particular
meteorological condition; and (2) when the consequences of the defect
generally occur after long-term or recurring exposure to environmental
conditions.” In (2), a regional recall is generally “not appropriate,” but
NHTSA may, “in some cases,” be willing to modify the manufacturer’s
notification duties.
b) Consider a policy guideline final only when it marks the consummation

of the agency’s decision-making process and either determines rights
and obligations OR results in legal consequences (Bennet v. Spear)
c) Factors to consider whether this is rule is a binding regulation:
(1) Does it purport to have the force of law? (Coercive smell test)
Labeled as a regulation?
Published in the Code of Federal Regulations?
Define rights and obligations?
Use mandatory terms (but language like “must” in policy

guidelines”)
Does rule’s author have the authority to issue legislative

rules?
(2) Does the agency act as if it is bound by the rule?
50
7. Center for Auto Safety v. GE
a) Safe harbor in Center for Auto Safety left more discretion than EPA
guidance in GE
b) Distinction between NHTSA discretionary language and GE EPA policy
(1) NHTSA document says demonstrations “should be based on

objective factors;” this is mandatory language but it is obvious
and not as specific / mandatory as GE policy guidelines about non-
cancer risks
(2) Telling manufactures they “must assume” vehicles outside the

region are taken care of is just restating the law
(3) Manufacturers must include 20 road salt states + DC, but has less
coercive effect because the list is easy to confirm or challenge;
challenging the EPA document in GE would be an extensive task
c) NHTSA could always call a mandatory national recall; this is within its
authority so it’s acting in a more limited capacity
d) NHTSA document was basically codifying standards in the industry that

were already the norm
e) Center for Auto Safety guidance document was issued by a subdivision

that could not pass binding regulations
f) Background concerns / mini-factors: notice (because of preexisting

statute), coerciveness, significance (how much does a regulated party
have to reorder or change), and how difficult is it to test compliance (is it
so difficult or expensive to test whether you’re complying that
compliance becomes mandatory?)
8. Center for Auto Safety and GE use similar tests, but do not clarify when
guidance documents or policy guidelines should be considered binding
regulations or carry the force of law.
9. To identify a legislative rule: binding effects on the agency should be treated

the same as binding effects on the public. General Electric – EPA bound its
own discretion and created a safe harbor for how it would consider analysis;
Center for Auto Safety did NOT bind itself; maintained discretion
10. Published guidance documents as “precedent” for adjudications; American

Mining Congress v. Mine Safety & Health Admin. (DC Cir. 1993): Non-
legislative rules have limited binding effect in practice because adjudicatory
decisions are subject to judicial review and there is more scrutiny on rules
NOT subject to NA CRM
51
11. Enforcement guidance – think about the coercive effect
a) Concern about the practical binding effect seems to underlie decisions

finding that agency statements on enforcement are legislative rules that
must be promulgated through NA CRM
b) *Maybe the big difference is not so much coercion v. not-coercion, but

how significant the effect / scope of the change / how costly a change
c) Chamber of Commerce v. Department of Labor (DC Cir. 1999)
(1) DOL planned to target the 12,500 most hazardous workplaces in

the country. Due to limited resources, DOL offered a “carrot” that
employers who agreed to participate in a “Cooperative
Compliance Program” (CCP) that satisfied OSHA guidelines would
probably not be inspected.
(2) DC Circuit said this is an offer OSHA couldn’t make without first
undertaking NA CRM – it is a substantive rather than procedural
rule / no discretion in the field / binding in the sense that an
inspection is used as a threat
(3) Think about the result of what regulated parties would do. 90% of
test groups in Maine participated.
d) Air Transportation Ass’n of America, Inc. (DC Cir. 2002)
(1) Federal Aviation Administration (FAA) had issued a rule with NAC
RM that crewmembers have a set amount of rest time before a
flight that relates to the duration of the flight. FAA sent letter in
response to a query from the Allied Pilots Association saying that
“look back rest” should be calculated including actual expected
flight time and taxi-in time, based on the specific conditions that
exist on the day
(2) Rule / Holding:
DC Circuit held that this was a valid interpretive rule –

which interpreted the FAA’s own regulation; substantial
deference must be afforded unless “plainly erroneous or
inconsistent with regulation”
Reasonable interpretation; already firmly encompassed in

earlier regulation; no new legal duty. Also, airlines were
already doing these calculations; no new system was
needed.
52
Lee’s interpretation: If coercion is key, Air Transport may

have come out differently. However, coercion concerns
may be less when there is notice.
e) Shalala v. Geurnsey Memorial Hospital (U.S. 1995)
(1) Agency adjudicator relied on reimbursement guideline from the

Provider Reimbursement Manual (PRM) – despite this guideline’s
departure from the “generally accepted accounting principles”
(GAAP)
(2) SCOTUS: Secretary’s interpretation “reasonable” and “consistent

with the Medicare statute.” The decision cuts against the
coerciveness of the regulation.
(3) Key fact? The change was small and not costly.
f) United States v. Chrysler Corp. (DC Cir. 1998): “a manufacturer cannot be

found to be out of compliance with a standard if NHTSA has failed to
give fair notice of what is required by the standard;” court held its
requirement of fair notice on due process
53
Summary for when an agency action is a

guidance document or a regulation in disguise.
Consider:
Notice: (a) already existing regulation; and (b) statute
Coerciveness: (a) degree; and (b) how costly, scope of change, effects, significance
Guidance Document Regulation in Disguise
Center for Auto Safety v. NHTSA (regional G.E. v. EPA (guidance document with
recall letters use cond’l language, didn’t mandatory language that gave
purport to be regulation; didn’t create safe impression regulated entities and agency
harbor; and had no legal consequence) had to determine PCB waste risk only by
one of two methods)
Air Transport Assoc. v. FAA (look-back rest Chamber of Commerce v. DOL (voluntary
letter and Notice interpreting “scheduled compliance program with near certain
completion of any flight” to include investigation of those employers that did
“completions re-scheduled due to flight not adopt voluntary plan) (CB 193)
conditions” fairly encompassed in
regulation) (CB 198)
Shalala v. Guernsey (guidance document
requiring non-GAAP compliant accounting
for hospital reimbursements fairly
encompassed in regulations) (CB 200)
American Mining Congress (policy letters
stating certain x-ray readings suffice to
diagnose lung disease interprets
regulation requiring reporting of lung
disease diagnoses and is in keeping with
other regs) (CB 192)
54
K. When must an agency proceed by NAC rulemaking rather than adjudication?

1. Securities & Exchange Commission v. Chenery Corp. [CHENERY II] (U.S. 1947)
a) Facts:
(1) SEC charged with overseeing reorganization of public utility

holding companies, questions arose about which preferred stock
could carry over to new common stock (at the benefit of
managers). SEC says the Chenerys (of Federal Water Service
Corp.) had to forfeit their stock because it was a conflict of
interest. Federal Water Service Corp. sues, claiming the rule must
be promulgated and be prospective.
(2) Chenerys were looking for a proposal to be approved, so there is

less retroactive mischief.
b) Rule from Chenery I: (General issue for all review; when a court is
reviewing an agency action, they can only review it based on the
agency’s own reasons).
(1) A reviewing court “must judge the propriety of such [agency]

action solely by the grounds invoked by the agency.” (A court
cannot substitute adequate grounds or rationale for the decision).
(2) The basis on which the agency acted “must be set forth with such
clarity as to be understandable”
c) Chenery II Factors (to proceed by adjudication and not RM)
(1) The agency lacks sufficient experience (and wants to work out
case-by-case to develop expertise to later do NAC RM)
(2) Problem is too specialized and variable (so case-by-case) for NAC
RM to be effective
(3) The problem was unforeseen
(4) *BALANCING TEST: Mischief of dealing with problem retroactively

must outweigh mischief of not tackling the problem directly.
(From class: harm of “a result which is contrary to a

statutory design or to legal and equitable principles” has to
outweigh the harm from the retroactive effect of a policy
that conforms to them.
See Bell Aerospace for more clarification
55
2. National Labor Relations Board (NLRB) v. Bell Aerospace Co. (U.S. 1974)
a) Bell Aerospace defined “managerial employees” for the purpose of THIS

FIRM, not the whole industry.
b) FACTS: Bell Aerospace refused to bargain with buyers, calling them

“managerial employees” exempt from the NLRA’s collective bargaining
process. NLRB concluded the buyers could organize – saying managerial
employees can unionize unless their “duties and alignment with the
employer were such to create a conflict of interest were they to
unionize.”
c) LOWER COURT: looked at features for why agency can only go through
NAC RM and not adjudication: (1) reliance (well-established policy for
years), (2) general effect (policy for all future cases and precedent), and
(3) acting without sufficient information (can’t hear information from
everyone else affected by decision)
d) SCOTUS HOLDING (rejects lower court’s decision)
(1) Agencies may announce new principles in adjudication and the

choice between adjudication and NACRM is within agency’s
discretion
(2) As in Chenery II, the surprise of the NLRB decision on remand that
Bell’s buyers were not managers would be offset by the limited
nature of the Board’s remedial order (no liability for past actions,
no fines or damages involved)
(3) TWO FACTORS ADDED TO CHENERY:
Is the agency capable of making a full and mature

consideration through adjudication? Yes – since buyer vary
so much firm-by-firm, adjudication is a good option here.
Will those most immediately affected have a full

opportunity to be heard? SCOTUS EXPLAINS CHENERY II
BALANCING TEST: retroactive mischief here is acceptable
because there is no liability for things in the past and those
immediately effected (the parties) have an opportunity to
be heard
3. Chenery and Bell Aerospace are about what will happen in the future (i.e.,
things going forward)  thus there is no retroactive mischief and thus can
proceed by adjudication (and don’t need NACRM).
56
4. NLRB v. Wyman-Gordon (U.S. 1969)
a) PRECURSOR THAT INFORMS WYMAN-GORDON: Excelsior Underwear

Inc. (NLRB BOARD DECISION): union seeking to represent employees
have a right to obtain a list of names and addresses of eligible
employees; however, since this is a new policy – it will only apply
prospectively and not apply to the companies involved in this case
b) Wyman-Gordon refused to supply such an employee list
c) ONE MAJORITY said: Excelsior rule NOT allowed here because Excelsior
just issued a prospective rule.
d) ANOTHER MAJORITY SAID: The NLRB could apply the Excelsior standard
in a subsequent adjudicatory proceeding
5. Why agencies pick adjudication over RM
a) Consider all the circumstances and if the issue can be isolated in a rule
b) Political visibility (adjudication visibility is probably lower than

rulemaking visibility; think net neutrality)
c) Bureaucratic inefficiencies make rulemaking hard
d) With adjudication, less concrete rule for Congress and media to attack
e) *Courts regulate not through Chenery, but by backdoor  by putting so

many procedures on NACRM, courts encourage use of adjudication
57
L. OIRA and Presidential Review of Rulemaking: When does an agency have to

proceed by rulemaking?
1. OIRA is a stealth office – little is heard about it, but it has a BIG influence;
created by the Paperwork Reduction Act
2. This executive order does NOT create judicially enforceable rights
a) OIRA is important in terms of how things get done, but not how things
are litigated. Issues can be dealt with inside the agency; a party can’t
bring it to court; this law is enforced by politics.
b) Nonetheless, courts say OIRA has a reasonable time of review; OIRA

cannot become a graveyard.
3. OIRA under Obama (mostly reverted to Clinton-era):
a) Emphasizes that evaluating costs and benefits may be difficult to

quantify; consider equity, human dignity, fairness, distributive benefits
b) Embraces cost-benefit analysis
c) Increases public participation in regulations
d) Semantic shifts that sound pro- or neutral towards regulations (e.g.,

“subject to regulations” versus “burdened by regulations”)
4. THIS EXECUTIVE ORDER DOESN’T APPLY TO INDEPENDENT AGENCIES:
a) EO 12866 Sec. 3(b): “Agency,” unless otherwise indicated, means any

authority of the Untied States that is an “agency” under 44 U.S.C.
3502(1), other than those considered to be independent regulatory
agencies, as defined in 44 U.S.C. 3502.
b) 44 U.S.C. 3502: the term “independent regulatory agency” means the

Board of Governors of the Federal Reserve System, the Commodity
Futures Trading Commission, the Consumer Product Safety Commission,
the Federal Communications Commission, the Federal Deposit Insurance
Corporation, the Federal Energy Regulatory Commission, the Federal
Housing Finance Agency, the Federal Maritime Comission, the Federal
Trade Commission, the Interstate Commerce Commission, the Mine
Enforcement Safety and Health Review Commission, the National Labor
Relations Board, the Nuclear Regulatory Commission, the Occupational
Safety and Health Review Commission, the Postal Regulatory
Commission, the Securities and Exchange Commission, and any other
similar agency designated by statute as a Federal independent
regulatory agency or commission.”
58
c) This rule DOES cover informal rulemaking (NACRM) only and some of
these are still excepted (only “significant” regulations)
5. Sec. 6(a)(3)(B): For every significant regulatory action the agency “shall
provide to OIRA: (i) the text of the draft regulatory action, together with a
reasonably detailed description of the need for a regulatory action and an
explanation of how the regulatory action will meet that need; and (ii) An
assessment of the potential costs and benefits of the regulatory action,
including an explanation of the manner in which the regulatory action is
consistent with a statutory mandate and, to the extent permitted by law,
promotes the President’s priorities and avoids undue interference with State,
local, and tribal governments in the exercise of their governmental functions.”
6. Scholarly review and other commentary:
a) Bressman & Vandenbergh: Hope for centralization and accountability is

aspirational. OIRA’s oversight took a backseat to other White House
offices, which exercise more influence. White House offices are often not
acting in concert, which leads to “herding the cats in different
directions.” Most oversight is unsystematic.
b) Elena Kagan: Clinton used cost-benefit analysis for pro-regulation

purposes.
c) Binyamin Appelbaum (NYT Reporter): “Agencies that calculate the worth

of a life have been raising the number, which affects how much the
government should spent to prevent a single death.” (Under Bush, a life
was worth ~$5 million; under Obama, ~$7.9 million; even agencies don’t
agree: the EPA says a life is worth ~$9 million).
d) Cass Sunstein: The Cost Benefit State
(1) Cost-benefit analysis is not an arithmetic straight jacket; it is hard

to do, not precise, risks may be immeasurable; soft values like
equity and dignity are hard to monetize
(2) Being as specific as possible is helpful, but just because it isn’t

perfect doesn’t mean we shouldn’t do it
e) Criticisms of cost-benefit analysis
(1) Costs are often more quantifiable than benefits
(2) Liberals haven’t used cost-benefit analysis; they’ve just criticized it
(3) Had appeal of technocracy, but it can obscure politics.
59
VII. APA Substantive Review of Agency Action
Deference Due
Chevron Deference
Agency
if justified by Mead/Barnhart
Interpretation if Chevron Deference
Factors OTHERWISE
Statute
Skidmore Deference
Ambiguous
Informal
Interpretive
Type of Formal Formal (Notice & Informal
Statements,
Procedure RM Adjudication Comment) Adjudication
etc.
RM
Substantial Evidence
Review of Facts
Standard of APA §706(e)
Review for Arbitrary & Capricious Review of Facts &
Facts and Policy/law/fact Combo
Policy/law/fact Arbitrary & Capricious APA §706(a)
Combo Review of
Policy/law/fact Combo
APA §706(a)
60
A. Outline:
1. Judicial Review of Agency Findings of Fact
a) Formal on-the-record adjudications or formal rulemakings: the

substantial evidence test (Section 706(2)(E); Universal Camera)
b) Informal adjudications or informal rulemakings: arbitrary and capricious

test (Section 706(2)(A); ADAPSO)
2. Judicial Review of Agency Decisions Beyond the Facts
a) Mixed law, facts, and policy: arbitrary and capricious test (Section
706(2)(A); State Farm; FCC v. Fox)
b) Statutory interpretation: Chevron-Mead
B. Procedural review says agency must do specific procedures, while substantive

review is a check on the thinking. Vermont Yankee says courts cannot add
additional procedures, but substantive review will probably affect procedures
(and vice-versa).
C. Judicial Review of Agency Findings of Fact – APA Section 706
1. “The reviewing court shall... (2) hold unlawful and set aside agency action,
findings, and conclusions found to be: (A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;... (E) unsupported by
substantial evidence in a case subject to sections 556 and 557 of this title or
otherwise review on the record by an agency hearing provided by statute
2. Congress sometimes stipulates particular review standards in specific organic

statutes. However, in general, look at section 706 of the APA.
61
D. Substantial Evidence Test (Formal on-the-record adjudications or RM

rulemakings)
1. Universal Camera Corp. v. National Labor Relations Board (U.S. 1951)
a) Whether an employee was fired b/c he had testified in support of the

union’s position in NLRB proceeding or solely because he subsequently
had accused the company’s personnel manager of drunkenness. When
reviewing an agency decision, what does substantial evidence mean?
b) Competing ideas of the substantial evidence test (ranked easiest to

hardest); findings upheld if:
(1) The supporting evidence is substantial when viewed in isolation;
(2) *The supporting evidence is substantial when viewed in the

context of the entire record (looking at the record on the whole)
(3) The preponderance of the evidence supports the finding
c) Universal Camera definitions of what constitutes substantial evidence:
(1) Where two possibilities are “fairly conflicting,” even if no

expertness required, agency’s view stands
(2) Has to be “justified by a fair estimate of the worth of the

testimony of witnesses or [the agency’s] informed judgment on
matters within its special competence or both”
d) Pre-APA definitions (some will still arise today): More than a mere
scintilla; “Must do more than create a suspicion of the existence of the
fact to be established.” “Such relevant evidence as a reasonable mind
might accepted as adequate to support a conclusion.” Must be “enough
to justify, if the trial were to a jury, a refusal to direct a verdict”
e) Reviewing / Weighing ALJ Reports (IF THE PEOPLE IN THE REPORTS ARE
NOT BROUGHT BEFORE THE BOARD; IF THEY ARE BROUGHT BEFORE THE
BOARD, THIS IS DIFFERENT)
(1) Should be given “such probative force as it intrinsically

commands”
(2) If experienced examiner “who has observed witnesses and lived

with the case” reaches opposite conclusion as agency, it may
decrease the substantially of the evidence supporting the agency
(3) ALJ findings should be considered along with the “consistency and
inherent probability of testimony”
62
(4) Weight depends on the importance of credibility determinations

to the case
f) Overall: sufficient if 50% of the evidence and must be “more than a mere
scintilla.” If it’s in equipoise (50%-50%), the agency wins.
g) Frankfurter uses Purposivism to interpret (Wong Yang Sung): “[T]he fair

interpretation of a statute is often... revealed more by the demonstrable
forces that produced it than by its precise phrasing.”
(1) Adoption of the “substantial evidence” test was a response to

pressures for stricter & more uniform practice, not a reflection of
approval of all existing practice. Courts now assume more
responsibility for the reasonableness & fairness of decisions than
some courts in the past
(2) Frankfurter looks at legislative history, courts using “in isolation”

approach got flak from Congress and scholars. Attorney General
Report and Senate and House Committee reports for APA
endorsed on the record, on the whole, substantial evidence test.
2. Pensaquitos Village, Inc. v. NLRB (9th Cir. 1977) – WEIGHT OF ALJ
a) Distinction in deference to different types of inferences:
(1) ALJ’s testimony and primary inferences are binding
(2) ALJ’s derivative and secondary inferences are not binding
b) “Reviewing court will look more critically at the Board’s findings of fact if
they are contrary to the administrative law judge’s factual conclusions.”
c) However, “the administrative law judge’s opportunity to observe the

witnesses’ demeanor does not, by itself, require deference with regard
to his or her derivative inferences. Observation of demeanor makes
weight only the observer’s testimonial inferences.”
d) Thus, if a Board wants to disagree with an ALJ, they ought to turn to

disagreements in terms of secondary or derivative inferences
63
3. Dickinson v. Zurko (U.S. 1999): even SCOTUS can’t distinguish between

substantial evidence test and arbitrary and capricious review
a) Court/agency “substantial evidence” standard requires “a court to ask

whether a “reasonable mind might accept” a particular evidentiary
record as “adequate to support a conclusion” (quoting Con. Ed. (U.S.))
b) Court/court “clearly erroneous” standard asks whether a reviewing

judge has a “definite and firm conviction” that an error has been
committed (quoting US v. United States Gypsum Co. (U.S. 1948))
c) There is a distinction: court/agency review is less stringent, but “we have

failed to uncover a single instance in which a reviewing court conceded
that the use of one standard rather than the other would in fact have
produced a different outcome.”
E. Informal Adjudications or Rulemakings - Arbitrary and Capricious Test

1. ADAPSO (Association of Data Processing Service Organizations, Inc. v. Board of
Governors of the Federal Reserve System (DC Cir. 1984); Scalia
a) In a review of an on the record adjudication and an informal NACRM,

should the substantial evidence test be applied to both? Holding:
Substantial evidence rules for both formal adjudication and NACRM
under the Bank Company Holding Act.
(1) Bank Company Holding Act Section 1848: “The finding of the
Board as to the facts, if supported by substantial evidence, shall
be conclusive”
(2) APA Section 559: “This subchapter [and other provisions of this
title]... do not limit or repeal additional requirements imposed by
statute or otherwise recognized by law... Subsequent statute may
not be held to supersede or modify [the aforementioned
provisions]... except to the extent that it does so expressly.”
b) Rule: In the court’s application in the requirement of factual support,

substantial evidence and arbitrary or capricious review ARE THE SAME.
(Substantial evidence is just a particular type of A&C review).
64
c) ****Thus, according to ADAPSO: anything that fails SE fails A&C. But

things passing A&C may fail SE test. DIFFERENCE IN HOW IT FEELS:
(1) Formal-on-the-record / substantial evidence test relies on a

closed and entire universe (material existing at the time of the
rulemaking and disclosure of critical material – Nova Scotia).
(2) Informal record / arbitrary and capricious test: agency can take
anything from time before review; agency has more latitude
about what to put in the record to review. Thus, evidentiary
support may look different.
d) Scalia’s ruling here is not the rule  look at:
(1) Dickinson v. Zurko (U.S. 1999)
(2) Corrosion Proof Fittings v. EPA (5th Cir. 1991) (substantial

evidence requirement in Toxic Substances Control Act not
converge with A&C standard when applied to informal RM)
(3) AFL-CIO v. OSHA (11th Cir. 1992) (SE standard in OSHA for review
of informal RM is “harder” than the “more deferential” A&C
standard)
e) *******Ultimately, courts are likely to adopt arbitrary and capricious

review in a similar way that ADAPSO and Universal Camera, but record
with arbitrary and capricious review will make it easier for agencies to
succeed!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
65
F. Arbitrary and Capricious Test: Agency Review Beyond the Facts

1. APA 706: Scope of Review: “The reviewing court shall... (2) hold unlawful and
set aside agency action, findings, and conclusions found to be:
a) (A) arbitrary, capricious, an abuse of discretion or otherwise not in

accordance with law;
b) (B) contrary to constitutional right, power, privilege, or immunity
c) (C) in excess of statutory jurisdiction, authority, or limitations, or short of

statutory rights
d) (D) with observance of procedure required by law;
e) (E) unsupported by substantial evidence in a case subject to sections 556

or 557 of this title or otherwise reviewed on the record of an agency
hearing provided by statute; or
f) (F) unwarranted by the facts to the extent that the facts are subject to
trial de novo by the reviewing court
66
2. Motor Vehicle Manufacturers Ass’n v. State Farm (U.S. 1983) – YES A&C
a) FACTS / QUESTION: Whether NHTSA acted arbitrarily and capriciously in

revoking the passive restraint (seatbelt) requirement in Motor Vehicle
Safety Standard 208 (i.e., that new motor vehicles produced after
September 1982 be equipped with passive restraints to protect
occupants of the vehicle in the event of a collision)
b) Rescission of a standard is subject to the same “arbitrary, capricious,

abuse of discretion, or otherwise not in accordance with law” judicial
review standard as promulgating standards.
c) Arbitrary and Capricious Review under State Farm
(1) Examine the factors considered:
Did the agency consider the important aspects of the

problem, including policy alternatives that the agency had
previously found met the statutory purposes? (CB 996, 998)
Did the agency rely on factors which Congress did not

intend it to consider? (CB 996)
(2) Examine the rationale provided:
Did the agency provide a “reasoned analysis” that provides

a “rational connection between the facts found and the
choices made”? (CB 996-997, 999)
Is the agency’s decision “so implausible that it could not be

ascribed to a difference in view or the product of agency
expertise”? (CB 996)
(3) Agency must look at alternatives ALREADY included as satisfactory

in a prior determination. “Within the ambit of the existing
standard.”
(4)  Searching and careful, but narrow inquiry. Court not to

substitute its judgment for Secretary’s.
67
d) Court also looks to logical inferences:
(1) Court finds a problem: Agency was arbitrary and capricious in not
considering automatic seatbelts since studies show inertia
matters. (Inertia prevents people from putting on seatbelts;
inertia may prevent people from removing automatic seatbelts).
(2) Not a problem: agency had study with devices and found benefits
but wasn’t sure if study was representative; since there might not
be benefits, agency can say it might not have justified the costs.
(Agency, however, can’t just say it’s too uncertain whether there
are benefits; there must be a record or reasonable explanation).
e) Frequently cited quote from State Farm (encompassed in the factors /

rationale listed above: “Normally, an agency rule would be arbitrary and
capricious if the agency had relied on factors which Congress has not
intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view of the product of agency expertise.”
3. Scholarly commentary on administrative substantive judicial review
a) Richard Pierce (Seven Ways to Deossify Agency Rulemaking) (rational

basis instead of arbitrary and capricious review; allow post-hoc
justification)
b) Paul R. Verkeuil (Comment: Rulemaking Ossification – A Modest

Proposal) (fast-track up-or-down congressional vote for major agency
regulations w/o committee or filibuster)
c) Anne Joseph O’Connell (Political Cycles of Rulemaking: An Empirical

Portrait of the Modern Administrative State) (CB 1009-1010) (Agency
ossification may be overblown. 680 NPRM per year; average length
before promulgation for 9 of the 10 agencies in the review is under 2
years. However, agency rulemaking is still very costly).
d) Additional checks on substantive review: OIRA review and Congress can

pass a statute preventing or overturning regulations
e) Other notes about “politics” as a possible element of “arbitrary and

capricious review.”
68
4. FCC v. FOX – FCC enforcement policy NOT A&C. FCC is a gloss on State Farm
a) Scalia – majority; Kennedy – concurrence; Breyer – dissent
b) Issue: This case concerns the adequacy of the FCC’s expansion of its
decision that it sometimes forbids the broadcasting of indecent
expletives even when the offensive words are not repeated.
(1) FCC defines indecent speech: “language that describes, in terms

patently offensive as measured by contemporary community
standards for the broadcast medium, sexual or excretory activities
or organs, at times of the day when there is a reasonable risk that
children may be in the audience.” In FCC v. Pacifica Foundation,
SCOTUS upheld definition, relying on the repetitive occurrence of
“indecent words” in a George Carlin monologue.
(2) FCC asserted an order that fleeting expletives could be actionable

as indecent. (E.g., Cher saying “f*** ‘em” and Ms. Richie saying,
“It’s not so f***ing simple.”) Fox sued w/ CBS, NBC, and ABC as
interveners.
c) Arbitrary and Capricious Review in FCC v. FOX (a gloss on State Farm)
(1) Arbitrary and capricious review is a “narrow” standard of review
(2) The agency must “examine the relevant data and articulate a
satisfactory explanation for its action.”
Justice Kennedy: the agency must justify policies “by

neutral and rational principles” and a “reasoned
explanation”
Justice Breyer DISSENT: at a minimum, agency must

examine “important aspects of the problem” (quoting State
Farm)
(3) The Court “should uphold a decision of less than ideal clarify if the
agency’s path may reasonably be discerned”
(4)  Court not to substitute its judgment
(5) Justice Kennedy: Court’s review is “searching and careful”

(quoting State Farm); Kennedy injects the State Farm level A&C
into FCC v. Fox.
69
d) Arbitrary and Capricious Review of Policy Changes
(1) No requirement in the APA or SCOTUS opinions for a

requirement that all agency change be subjected to a more
searching review
(2) Agency has to:
Recognize that it is making a change
Assure that the new policy is permissible under the statute
Provide good reasons for the new policy (BUT NO

DIFFERENCE IN STANDARD)
(i) This may require more detailed explanation that

initial policy adoption if:
(a) Justice Kennedy: The new policy rests of facts that
contradict the facts on which the prior policy relied
(b) The old policy has engendered serious reliance

interests that must be considered
(ii) Justice Kennedy: “the agency must explain why ‘it

now rejects the considerations that led it to adopt
that initial policy”
Breyer dissent: “[R]equires more than setting forth reasons

why the new policy is the good one,” but does not require
explaining why the new policy is better.
(i) The agency must “focus upon the reasons that led
the agency to adopt the initial policy, and to
explain why it now comes to a new judgment.”
(Includes explaining why fact, interpretation of
law, or policy reasons previously rested upon are
no longer controlling)
(ii) This “typically requires a more complete

explanation than would prove satisfactory were
change itself not at issue.”
70
e) How the court applies A&C review in FCC v. Fox
(1) The Commission’s new enforcement policy and its order finding
the broadcasts actionably indecent were neither arbitrary nor
capricious. The FCC (1) acknowledged that recent actions have
broken new ground (although this is obvious and unnecessary);
(2) the agency’s reasoning for expanding the scope of its
enforcement activity was entirely rational. It was certainly
reasonable to determine that it made no sense to distinguish
between literal and nonliteral uses of offensive words, requiring
use of only the latter indecent; (3) Additionally, technological
advances have made it easier for broadcasts to bleep out
offending words; this further supports the Commission’s stepped-
up enforcement policy. (4) And the agency’s decision not to
impose any forfeiture or other sanction precludes any argument
that it is arbitrarily punishing parties without notice of the
potential consequences of their action.
(2) First Blow analysis: Scalia gives reasons for “first blow” rationale
that seem to be more like his logic than the agency’s logic. Scalia
says the logic makes sense so we don’t need data. (Breyer,
however, says it’s not new that children hear expletives; State
Farm says revocation of prior action requires a more thorough
explanation. No prior evidence that agency had ever understated
“first blow” problems and data doesn’t support this harm from
“first blow.”)
5. Comparing FCC v. Fox and State Farm
a) Although Breyer dissent and Scalia in FCC v. FOX seem to be applying the
same analysis, looking back at State Farm makes Breyer maybe seem
more faithful to the State Farm precedent
b) FCC v. Fox seems to be much more deferential than State Farm
c) FCC v. Fox majority leaves out “searching and careful” in review
d) State Farm appears to be narrowed by FCC v. Fox to the particular

circumstances involved in State Farm
71
6. Justice Stevens DISSENT on the authority of long-standing regulations: (a)

interest in regulatory stability, (b) rules that have been in effect for a long
time without being “proved unworkable” have a presumption of utility and
agencies should have a higher burden to prove that its prior policy is no longer
sound before changing it, (c) an agency’s “initial views” are more likely to
reflect Congressional mandate / views of the Congress that delegated
authority to the agency – and thus have a presumptive legitimacy in
construing the agency’s authority
7. Breyer DISSENT about changing regulations: “Contrary to the majority’s

characterization of the dissent, it would not (and State Farm does not) require
a “heightened standard” of review. Rather, the law requires application of the
same standard of review to different circumstances, namely circumstances
characterized by the fact that change is at issue. It requires the agency to
focus upon the fact of change where change is relevant, just as it must focus
upon any other relevant circumstance. It requires the agency here to focus
upon the reasons that led the agency to adopt the initial policy, and to explain
why it now comes to a new judgment.”
8. Jadalang v. Holder (U.S. 2011) – SOFTENING A&C REVIEW?
a) Found BIA decision arbitrary and capricious. Seems to ditch more

stringent language from State Farm, but might actually be giving a
HARDER look than under FCC v. Fox.
b) “The principle guiding our decision is anything but complex. When an

agency sets policy, it must provide reasoned explanation for its action.
That is not high, but it is an unwavering one.” “To survive, the difference
in the bases must be tied, even if loosely, to the purposes of the
immigration laws or the appropriate operation of the immigration
system.”
72
9. Notes on the authority of original or long-standing regulations
a) INS v. Cardoza-Fonesca (U.S. 1987) (decided shortly after Chevron)

footnote: “An agency interpretation of a relevant provision which
conflicts with the agency’s earlier interpretation is ‘entitled to
considerably less deference’ than a consistently held agency view [Cite
of pre-Chevron cases].
b) But see Rust v. Sullivan (U.S. 1991), Rehnquist: “This court has rejected
the argument that an agency’s interpretation ‘is not entitled to
deference because it represents a sharp break with prior interpretations’
of the statute in question. Chevron.”
c) But see Good Samaritan Hospital v. Shalala (U.S. 1993): “the consistency
of an agency’s position is a factor in assessing the weight that position is
due.”
d) Solid Waste Agency of Northern Cook County v. US Army Corps of

Engineers (U.S. 2001), Rehnquist: the combination of an agency’s first
interpretation AND having been promulgated shortly after the agency’s
organic Act had been passed is often thought of as especially potent
e) Mayo Foundation for Medical Education & Research v. United States

(U.S. 2011), Roberts: “Under Chevron... deference to an agency’s
interpretation of an ambiguous statute does not turn on such
considerations. We have repeatedly held that ‘agency inconsistency is
not a basis for declining to analyze the agency’s interpretation after the
Chevron framework.”
73
VIII. Judicial Interpretation of Agency Actions by Statute (Subst. Review)
Deference Due
Chevron Deference
Agency
if justified by Mead/Barnhart
Interpretation if Chevron Deference
Factors OTHERWISE
Statute
Skidmore Deference
Ambiguous
Informal
Interpretive
Type of Formal Formal (Notice & Informal
Statements,
Procedure RM Adjudication Comment) Adjudication
etc.
RM
Substantial Evidence
Review of Facts
Standard of APA §706(e)
Review for Arbitrary & Capricious Review of Facts &
Facts and Policy/law/fact Combo
Policy/law/fact Arbitrary & Capricious APA §706(a)
Combo Review of
Policy/law/fact Combo
APA §706(a)
74
A. Post-Mead Chevron Framework Chart
Post-Mead Chevron Framework

Step 1: Determine whether there is a clear and ambiguous congressional intent.
(Court looks at the statute itself – using canons of statutory construction – to
determine if Congress has addressed the precise issue in question).
If yes  that interpretation governs.
If no  proceed to Step 1.5
Step 1.5: Determine whether Congress intended the agency to fill the statutory gap in
a legally binding way. (Mead or Barnhart)
Mead: Chevron Framework only applies where (1) Congress expected the
agency to resolve an ambiguity with the force of law, and (2) the agency’s
interpretation actually carries the force of law.
Barnhart v. Walton: Chevron deference is more likely considering: (1) the

interstitial nature of the legal question, (2) the related expertise of the agency,
(3) the importance of the question to the administration of the statute, (4) the
complexity of that administration, (5) and the careful consideration of the
Agency has given the question over a long period of time.
If no  only Skidmore deference / respect is due
If yes  determine whether the agency interpretation has the force of law.
If no  only Skidmore deference is due.
If yes  proceed to Step 2.
Step 2: Determine if the agency interpretation is reasonable. (Court defers to the

agency interpretation).
If yes  court defers to agency interpretation.
75
B. Chevron Step 1 (HIGH BAR)

1. Chevron v. NRDC (U.S. 1984)
a) Clear Air Act amendment required states that did not achieve national
air quality standards to establish a permit program regulating “new or
modified major stationary sources” of air pollution. The EPA regulation
allowed States to adopt a “plant-wide” (“bubble”) definition of
stationary source; thus, a plant can modify something without meeting
permit conditions as long as the modification doesn’t increase the total
emissions from the same plant. ISSUE: Is “bubble” definition a
reasonable construction of the statutory term “stationary source” (since
Congress did not explicitly define “stationary source)?”
b) “If Congress has explicitly left a gap for the agency to fill, there is an
express delegation of authority to the agency to elucidate a specific
provision of the statute by regulation. Such legislative regulations are
given controlling weight unless they are arbitrary, capricious, or
manifestly contrary to the statute.”
c) “An initial agency interpretation is not instantly carved in stone.”
2. National Credit Union Admin v. First National Bank (U.S. 1998) – FAILS
CHEVRON STEP ONE
a) Section 109 of the Federal Credit Union Act stipulates, “Federal credit
union membership shall be limited to groups having a common bond or
association, or to groups within a well-defined neighborhood,
community, or rural district.”
b) When the National Credit Union Administration allowed employees from

multiple companies to join, the Court rejected this on Chevron step 1
grounds: “Under [Chevron], we first ask whether Congress has ‘directly
spoken on the precise question at issue.’ ... Because we conclude that
Congress has made it clear that the same common bond of occupation
must unite each member of an occupationally defined federal credit
union, we hold that the NCUA’s contrary interpretation is impermissible
under the first step of Chevron.”
76
3. Entergy Corp v. Riverkeeper, Inc. (U.S. 2009) – WITHSTANDS CHEVRON STEP 1
a) Whether the Clean Air Act authorize the EPA “to compare costs with
benefits” in applying the statutory requirement of “the best technology
available for minimizing adverse environmental impact” to “cooling
water intake structures”
b) Scalia: “The view governs if it is a reasonable interpretation of the

statute – not necessarily the only possible interpretation, nor even the
interpretation deemed most reasonable by the courts. Chevron.” “‘Best
technology’ may also describe the technology that most efficiently
produces some good. In common parlance one could certainly use the
phrase ‘best technology’ to refer to that which produces a good at the
lower per-unit cost, even if it produces a lesser quantity of that good
than other available technologies.”
c) “It seems to us, therefore, that the phrase ‘best technology available,’
even with the added specification ‘for minimizing adverse environmental
impact,’ does not unambiguously preclude cost-benefit analysis.”
4. Use canons of statutory construction:
a) Textualism: ordinary meaning, usually at time drafted for older statutes,

or technical meaning if relevant; Whole act: each section should be
interpreted in light of the entire statute
b) Legislative history: committee reports, committee hearings and floor

debates (sponsors words or informed supporters given more weight),
post-enactment history (proposals to amend, oversight hearings, efforts
to pass related statutes), inaction (acquiescence rule, reenactment rule,
rejected or neglected proposal rule).
c) Constitutional avoidance
d) (Also, legislative history could resolve or create ambiguity.)
77
C. Chevron Step 1.5 – Determine whether Congress intended the agency to fill the
statutory gap in a legally binding way (Court’s interpretation)
1. When do interpretations carry the force of law?
a) Congress gave sufficient procedures (informal RM, formal rulemaking or

formal adjudication)
b) Informal adjudication and guidance docs / interpretative documents IF

statute has more formal procedures that foster deliberation and makes
it carry force of law
c) OR where Congress expected agency to be able to speak with the force

of law (BARNHARD FACTORS)
2. Mead / Barnhart Summary:
a) Mead:
(1) Did Congress intend the action to have the force of law?
Look to the binding effect of action
(i) Status of review in courts
(ii) Precedential value on third parties
(2) Did the agency intend the action to have the force of law?
Look to the deliberativeness of the procedures
Look to the action’s binding effect on third parties
b) Barnhart:
(1) Deliberativeness: did the agency give the interpretation careful

consideration?
(2) Did the interpretation require agency expertise?
(3) Was the interpretation important to administering a complex

statute?
(4) Interstitial
78
3. United States v. Mead – DENIAL OF STEP 1.5 CHEVRON DEFERENCE
a) Mead: Chevron Framework only applies where (1) Congress expected

the agency to resolve an ambiguity with the force of law, and (2) the
agency’s interpretation actually carries the force of law. (“Administrative
implementation of a particular statutory provision qualifies for Chevron
deference when it appears that Congress delegated authority to the
agency generally to make rules carrying the force of law, and that the
agency interpretation claiming deference was promulgated in exercise of
that authority.”)
b) FACTS: Between 1989-1993, Customs repeatedly treated Mead’s “day

planners” in the “other” category and made them free of duty; in
January 1993, Customs issued a Headquarters ruling that Mead’s “day
planners” were considered “diaries” and thus subject to a 4.0% tariff.
c) Why in Mead the agency was not acting with the force of law:
(1) The number of people and low level of people who can issue such
letters show that the agency is not acting with the force of law.
(2) Procedures (not NACRM) show not binding with force of law
(3) Letters say don’t rely on letters to importers; say no precedential

authority; shows agency is not trying to act with the force of law –
even to the parties themselves, the letters are only binding until
the agency decides otherwise
(4) Not sure of Congressional mandate for deference; letters are

subject to review de novo by the Court of International Claims
d) Reasons to give Skimore deference / respect in Mead: not ossify the

process; agencies are experts; and Congress has given agencies authority
to implement, so court will still give some respect
e) Did Congress intend the agency to fill the statutory gap in a legally
binding way? This “can be apparent from the agency’s generally
conferred authority and other statutory circumstances.” (Mead)
f) Not enough that the statute labels the rulings “binding” where they only
bind the parties.
g) Not enough that the statute implies they have precedential effect when
statute subjects them to de novo review by the Court of Int’l Claims
79
h) “We hold that administrative implementation of a particular statutory

provision qualifies for Chevron deference when it appears that Congress
delegated authority to the agency generally to make rules carrying the
force of law, and that the agency interpretation claiming deference was
promulgated in the exercise of that authority.”
4. Barnart v. Walton: Chevron deference is more likely considering: (1) the

interstitial nature of the legal question, (2) the related expertise of the
agency, (3) the importance of the question to the administration of the
statute, (4) the complexity of that administration, (5) and the careful
consideration of the Agency has given the question over a long period of time.
5. Alaska DEP v. EPA: Court does not give Chevron deference to EPA guidance
memoranda that were published and consistent over a long period of time.
6. City of Arlington, Texas v. FCC (U.S. 2013) – APPROVAL OF STEP 1.5 CHEVRON
DEFERENCE
a) In order to get Chevron deference, the agency needs to:
(1) Have general rulemaking authority and have used it OR
(2) Connect receipt of congressional authority to the precise issue
b) FCC said “reasonable period of time” meant within 150 days (and even
fewer days in some circumstances). The federal Telecommunications Act
of 1996 required state and local governments to respond within a
“reasonable period of time” to a wireless service provider’s application
to construct a tower.
c) “The dissent is correct that United States v. Mead Corp, requires that, for
Chevron deference to apply, the agency must have received
congressional authority to determine the particular matter at issue in
the particular manner adopted. No one disputes that. But Mead denied
Chevron deference to action, by an agency with rulemaking authority,
that was not rulemaking. What the dissent needs, and fails to produce, is
a single case in which a general conferral of rulemaking or adjudicative
authority has been held insufficient to support Chevron deference for an
exercise of that authority within the agency’s substantive field. There is
no such case, and what the dissent proposes is a massive revision of our
Chevron jurisprudence.”
80
7. Skidmore Deference / Respect (Skidmore v. Swift, U.S. 1944)
a) Whether on-call time can be considered work time (for people on-call in
the fire company). Guidance documents (interpretive bulletins) were not
controlling or binding, but deserved some respect.
b) Level of respect (on a sliding scale) depends on factors:
(1) “We consider that the rulings, interpretations and opinions of the
Administrator under this Act, while not controlling upon the
courts by reason of their authority, do constitute a body of
experience and informed judgment to which courts and litigants
may properly resort for guidance.”
(2) “The weight of such a judgment in a particular case will depend

upon the thoroughness evidence in its consideration, the validity
of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to
persuade, if lacking power to control.”
(3) Skidmore shows concerns about due process: notice, adequate

reasons, and thoroughness of considerations (constitutional
values justifying deference).
8. Why Deference?
a) Chevron: separation of powers
b) Skidmore: due process
c) Mead: mix with emphasis on separation of powers?
d) Barnhart: mix with emphasis on due process?
81
D. Chevron Step 2
1. Chevron deference is about the separation of powers. “The responsibilities for
assessing the wisdom of such policy choices and resolving the struggle
between competing views of the public interest are not judicial ones: ‘Our
Constitution vests such responsibilities in the political branches.’”
2. STEP 2 IS NOT A SEARCHING INQUIRY
3. Dominion Energy: agency interpretation reasonable where it “took into

account the relevant universe of factors” and its conclusion about Congress’
intent was “reasonable.”
4. Chevron: agency’s interpretation reasonable where:
a) The agency “considered the matter in a details and reasoned fashion”
b) The regulatory scheme was “technical and complex”
c) The agency’s decision that the bubble definition would accommodate

the statute’s competing purposes was supported by evidence in the
rulemaking record.
d) Look to the “outer limits” of the gap (by analyzing text, legislative
history, use of ambiguity elsewhere in the statute)
e) The fact that the agency is charged with economic growth and
controlling pollution means the agency must explain competing
statutory purposes.
f) MEAT OF REASONING IN FOOTNOTE 4: “Economists have proposed that

economic incentives be substituted for the cumbersome administrative-
legal framework. The objective is to make the profit and cost incentives
that work so well in the marketplace work for pollution control. ... [The
‘bubble’ or ‘netting’ concept] is an attempt in this direction. By giving
the plant manager flexibility to find the places and processes within a
plant that control emissions most cheaply, pollution control can be
achieved more quickly and cheaply.”
5. See also Entergy Corp v. Riverkeeper and Dominion Energy
82
E. Commentary and Proposals for Deference

1. Eskridge & Baer: Court relies on Chevron in less than 10% of cases and mostly
interprets statutes for themselves; SCOTUS itself applies a broad continuum of
deference regimes
2. Levin: Get rid of Chevron step 2; just use step one and A&C review
3. Zaring: no matter the standard, courts uphold agencies about 2/3 of the time;
replace with single “reasonable agency” standard
4. Pierce: replace A&C review with rational basis review; post-hoc

rationalizations should be accepted
5. Verkuil: require Congress to vote up or down on all major rules
83
IX. Agencies and the Structural Constitution

A. Introduction
1. The constitutional status of the administrative “Fourth Branch”
a) History:
(1) Congress has increasingly issues broad and sweeping laws (think
the difference between the early post office laws that specified
where in each city the post office had to be and current,
ambiguous statutes)
(2) The administrative state has gained power partly due to gridlock,
Congress abdicating its role, agencies have expertise and flexibility
(3) Result is a massive increase in the size and power of the

presidency. There has been an increasing interest in the President
centralizing control over agencies
(4) SCOTUS has oscillated about its level of scrutiny / activity in this
area; Roberts court has been quite active
b) Commentary:
(1) Rebecca Brown: “[T]he legislative makes, the executive executes,

and the judiciary construes the law.” This protects against
tyrannical government; different functions mean different
expertise (CB 574)
(2) Lawson: the administrative state is unconstitutional; for example,

the FTC makes the rule, investigates, prosecutes, and adjudicates
(3) Ackerman: 1930s was an era of constitutional creation which

legitimized the administrative state
2. Functionalism v. Formalism: theoretical approaches to separation of powers

questions
a) Formalism (American Trucking, Chadha)
(1) Generally textualist; informed by the “original understanding”
(2) Independent and separate roles of branches and powers;

committed to strong separations
(3) Carter: bright lines so people know where power in the

government lies
84
b) Functionalism (Schor, Morrison)
(1) Focuses on the purposes underlying the Constitution’s language

and structure and tries to extrapolate them to assess modern
institutions
(2) Functionalists say rigid separation inhibits good governance;

cooperation among branches is acceptable but aggrandizement or
encroachment is problematic
Encroachment is when a branch tries to step on the turf of

another branch
Aggrandizement is when one branch becomes too powerful

relative to the others
(3) Farina: a need to keep a dynamic equilibrium among the branches
c) Youngstown Sheet & Tube Co. v. Sawyer (1952) (CASE ILLUSTRATION)
(1) Question: was President within his constitutional power when he

issued an order to the Secretary of Commerce to take position
and operate most of the nation’s steel mills during WWII.
(2) Holding: Seizure was unconstitutional
(3) Majority (Justice Black) uses a formalist argument and strikes

down this interpretation.
Focuses on text and whether this gives the president this

authority.
Finds that the President lacked statutory authority and

lacks Constitutional authority (since this doesn’t fall within
the purview of Commander-in-Chief powers because this is
not involved in the day-to-day fighting of WWII and the
Constitution does not permit a President to direct a
presidential policy in a manner prescribed by the President;
the President must direct a congressional policy in a
manner prescribed by Congress).
85
(4) Concurrence (Justice Jackson) uses a functionalist argument and

would have upheld the interpretation as a Congressional and
Presidential agreement.
Holds that President’s power is at its strongest here

because Congress agrees; President’s power is (1) strongest
when Congress agrees, (2) more questionable when
Congress does not grant or deny authority, and (3) at its
weakest when the President contravenes the express will of
Congress
Recognizes interdependencies. Jackson is interested in the

effect of interpreting the vesting clause in a particular way
 would it make the President a monarch.
Doubts relying on original intent will be useful: “Just what

our forefathers did envision, or would have envisioned had
they foreseen modern conditions, must be divided from
materials almost as enigmatic as the dreams Joseph was
called upon to interpret for Pharaoh.”
d) Mistretta v. United States (U.S. 1989); underscores functionalism

emphasis on encroachment and aggrandizement
(1) “[T]he framers did not require – and indeed rejected – the notion
that the three Branches must be entirely separate and distinct.”
(2) “While the Constitution diffuses power the better to secure

liberty, it also contemplates that practice will integrate the
dispersed powers into a workable government. It enjoins upon its
branches separateness but interdependence, autonomy but
reciprocity.” (Youngstown Sheet & Tube v. Sawyer)
(3) Scalia, dissenting (FORMALIST): Congress has the authority to

shape and empower agencies, but courts provide oversight of
procedures and the reasoning agencies use
86
B. Congressional Control of Agency Action

1. The non-delegation doctrine
a) Key Constitutional Provisions:
(1) Vesting clause (Article 1, Section 1)
(2) Necessary and proper clause (Article 1, Section 8)
No Article II delegation problems because no one really

every expected the president to execute all laws personally
However, prohibition on delegation appears nowhere in

the constitution
b) Fear of Delegation: aggrandizes the executive branch; agencies are

unelected and thus not directly accountable to the people; contravenes
Constitution’s vesting clause (especially under unitary executive theory)
c) History of the non-delegation doctrine
(1) Before the New Deal:
Field v. Clark (U.S. 1892)
(i) “Contingency rationale” – if conditions are met,

then agency can do a, b, and c.
(ii) Congress establishes contingency and then what

agency can do; e.g., if an agency sees unfair trade
practices, it can suspend duty free status
US v. Grimmaud (U.S. 1911): Congress can leave it to

agency to “fill up the details” (especially unimportant ones);
think of allowing the agency to determine where to put
post offices
As the regulatory state grew, these rationales worked

increasingly less
(2) NEW RULE / CURRENT RULE: J.W. Hampton v. United States (U.S.
1928): Congress must give the agency “an intelligible principle” to
which the person or body is directed to conform
(3) During the New Deal Era, Congress struck down two statutes on
the non-delegation doctrine. Since the New Deal, Congress has
never struck down a statue on the non-delegation doctrine.
87
Schecter Poulty (1935): National Industrial Recovery Act

failed the intelligible principle standard because there was
no standard, just to establish “codes of fair competition.”
This was seen as too broad, without limits; broad discretion
with vague authority is unacceptable.
Yakus v. United States (1944): Court upholds the

Emergency Price Control Act because statute gives a clear
mission, the facts that trigger action (like the “contingency
rationale”) and sets standards agency needs to meet
Yakus may have been decided differently than Schecter

because of (a) the post-Lochner difference / switch in time
that saved nine; (b) wartime considerations; (c) changes in
the court; (d) the fact that Schecter dealt with the whole
economy, where Yakus only deals with inflation (although
this does affect the whole economy); (e) difference in
intelligible principle?
Schecter Poulty (1935) Yakus v. United States (1944)

FAILS NON-DELEGATION DOCTRINE UPHELD UNDER NON-DELEGATION DOCTRINE
NIRA Sec. 3: Authorized President to approve “codes of fair competition” Emergency Price Control Act:
(CB 610-11) Sec. 1: The purpose of the act is to prevent inflation and its consequences
NIRA Sec. 1: Declared it 'the policy of Congress'- [1] 'to remove so as to promote national defense/security and effective prosecution of
obstructions to the free flow of interstate and foreign commerce which the war.
tend to diminish the amount thereof; and [2(a)] to provide for the general Sec. 2(a):
welfare by promoting the organization of industry for the purpose of
cooperative action among trade groups, [(b)] to induce and If Price Administrator determines that “the price or prices of a commodity
maintain united action of labor and management under adequate or commodities have risen or threaten to rise to an extent or in a manner
governmental sanctions and supervision, [(c)] to eliminate unfair inconsistent with the purposes of this Act,” then the Price Administrator
competitive practices, [(d)] to promote the fullest possible utilization of can fix prices of commodities which “in his judgment will be generally fair
the present productive capacity of industries, [(e)] to avoid undue and equitable and will effectuate the purposes of this Act.”
restriction of production (except as may be temporarily required), [(f)] to
increase the consumption of industrial and agricultural products by In doing so, he must “ascertain and give due consideration to the prices
increasing purchasing power, [(g)] to reduce and relieve prevailing between October 1 and October 15, 1941.”
unemployment, [(h)] to improve standards of labor, and [(i)] otherwise to
rehabilitate industry and to conserve natural resources.'
(4) Today, the non-delegation doctrine is not exactly dead, but rarely
used. However, the fact that the non-delegation doctrine is
mostly dead tells us a lot about administrative law.
88
(5) American Trucking v. EPA (DC Cir. 1999): DC Circuit had struck
down a statute based on the non-delegation doctrine, even
though this had only been done twice – and never post-New Deal.
DC Circuit remanded the issue to the EPA to tell it to create /
discern an “intelligible principle” from which to function. Case
goes to SCOTUS in Whitman v. American Trucking.
(6) Whitman v. American Trucking (U.S. 2001; Scalia)
SCOTUS rejects the idea that EPA can create / discern it’s
own “intelligible principle” – if there is a non-delegation
issue, statute must fall; agency cannot determine its own
intelligible principle. “[W]hen Congress confers
decisionmaking authority upon agencies Congress must ‘lay
down by legislative act an intelligible principle to which the
person or body authorized to [act] is directed to conform.’”
Ultimately, neither the majority nor the concurrences find a

non-delegation doctrine problem.
(i) Congress provided an intelligible principle when it

said the EPA must regulate “requisite to protect
the public health.” (If this were denied, the
modern administrative state would be
threatened).
(ii) “Intelligible principle” needs to be more

substantive the broader and more significant the
powers delegated are.
(a) For “sweeping regulatory schemes” that “affect the
entire national economy” Congress must provide
“substantial guidance” to the agency but need not
provide a “determinate criterion.”
(b) Dictum: for narrow decisions, like the definition of

“county elevators,” Congress “need not provide any
direction... regarding the manner in which the
agency is to make the decision.”
Scalia (majority) says executive, not legislative power, is

being used here. (However, for a formalist, an executive
using legislative power would violate the non-delegation
doctrine; so Scalia needs a way around this. Scalia says
acting within intelligible principle is not legislative power).
89
Stevens (CIP&CIJ): This power is legislative. (Scalia is

incorrect when he calls it executive). Scalia focuses on who
exercises the power. Stevens (and Souter) take a
functionalist approach, look at the nature of the power,
and say rulemaking is legislative. They, however, don’t need
a strict separation of executive and legislative power; they
require a “sufficiently intelligible principle.”
d) Commentary
(1) Lisa Schultz Bressman (Disciplining Delegation after Whitman v.

American Trucking): “Administrative law is a more effective tool
[than constitutional law] for addressing the delegation issue. ...
[C]ourts owe Congress a greater degree of leeway to formulate
delegations under constitutional law than they owe agencies to
exercise those delegations under administrative law.”
(2) Questions about delegation to private and international actors

(Dean Krent, Gillian Metzger, Jody Freeman) – see page 626?
2. Congressional direction of agency action through legislative vetoes
a) Immigration and Naturalization Service v. Chadha (U.S. 1983, Burger)
(1) Facts: Previously, an alien eligible for deportation could only

remain in US if Congress obtained a private bill suspending that
person’s individual deportation order. Congress delegated this
power to the Attorney General, who delegated this to the INS;
however, Congress retained a legislative veto (i.e., their action
was not required to revoke a deportation suspension, but they
could exercise a “legislative veto” over a deportation suspension.
For Chadha (and five others), Congress exercised a legislative veto
without debate or recorded vote.
(2) Holding: The Congressional deportation provision in Section

244(c)(2) is severable from the Act and is unconstitutional.
(3) About legislative vetoes:
Most legislative vetoes had been directed at agency

rulemaking or president’s reorganization of the Executive
Branch.
90
In Chadha, the legislative veto overrode an agency’s

adjudicative decision. (Remember, we often think
legislators are not good at determining adjudications). It
was passed without debate or recorded vote: no
adjudicative procedures or even legislative procedures.
(4) Berger’s majority opinion:
Starts formalist with an analysis of Article 1, Section 7.
Presentment serves the purpose of (a) having someone

invested in the whole country approve bills; (b) checks the
propensity to enact factionalized or majoritarian actions,
and (c) is a mechanism to ensure President will have a
buffer against Congressional action
Bicameralism was not exercised here; the Constitution only

provides specific actions that can be done without
bicamerialism; this is not one of them
Concern about “hydraulic pressure” for each branch to

exceed its bounds
Why the legislative veto is an exercise of legislative power:
(i) FORMALIST ARGUMENTS: (1) Presumption is that

each branch, when it acts, exercises the powers the
Constitution delegated to it. (5) The Constitution
expressly provides for some kinds of one-house
legislative acts (e.g., treaty ratification), thereby
precluding any one-house acts not expressly
provided for.
(ii) FUNCTIONALIST ARGUMENTS: (2) The veto was

legislative in purpose and effect because it altered
the legal rights, duties, and relations of people
outside the legislative branch; (3) The veto must be
legislative because all the other ways Congress
could reach the same effect involve the exercise of
legislative powers; (4) The veto is legislative
because it effectively amends the initial delegation
to the Attorney General, itself an exercise of
legislative powers that can only be amended by a
subsequent exercise of legislative powers.
91
(5) Powell’s concurrence: Functionalism argument in footnote 6; this

arrangement doesn’t work well with an electoral check; this is the
kind of dangers the Framers’ wanted to avoid. This decision was a
judicial / adjudicatory decision.
(6) White, dissenting:
Without the legislative veto, Congress faces a Hobson’s

choice: (1) refrain from delegating power – giving it the
hopeless task of writing laws with such specificity OR (2) be
unable to abdicate its law.
This is not an aggrandizement; it is important for Congress

to be able to check executive power and delegation
Also, this scheme was approved through bicameralism and

the presentment process.
b) In practice today: From Chadha to 2004, more than 400 new legislative
vetoes appeared in legislation. They have survived because (some?) are
non-justiciable or legally not binding. Congress continues to put
committee vetoes in public laws, and agencies comply out of self-
interest; defying committee control would likely incur a backlash even if
the veto provision were not enforceable.
3. Congressional direction of agency action through appointments and removal
a) Bowsher v. Synar (U.S. 1986, Burger) – VERY FORMALIST OPINION
(1) Facts: Congress, in response to quadrupling of national debt from

~1970-1990, created “The Gramm-Rudman-Hollings Act,” which
contains a schedule of annual “maximum deficit amounts” that
declined over 5 years to $0. OMG & CBO would report estimated
federal budget deficit to Comptroller General (Bowsher). If CG
determined deficit would exceed statutory limits, he would issue
“across the board” cuts and the President would order a
“sequestration” requiring these reductions. If Congress did not
legislate alternative reduction measures during a specified time
period, the President’s order would take effect.
(2) Problem: Congress had the power to remove the CG only for
cause (permanent disability, inefficiency, neglect of duty,
malfeasance, or a felony or conduct involving moral turpitude).
92
(3) Holding: Unconstitutional based on separation of powers;

judgment stayed for 60 days for Congress to implement fallback
provisions. Constitution does not contemplate an active role for
Congress in the supervision of officers charged with the
execution of the laws it enacts. (The only removal power for
Congress mentioned in the Constitution is impeachment). If
Congress has this role, CG cannot be entrusted with executive
powers.
(4) Logical structure of Burger’s opinion:
The Constitution charges President with supervision of

officers and execution of the laws, not Congress. See text of
Constitution.
The CG is controlled by Congress (with for cause removal

power, which can be construed liberally to give power to
Congress). Burger doesn’t want Congress to have any role
in removal; any role would be unconstitutional; even
some Presidential involvement would not ameliorate this
concern.
The CG’s powers are executive.
Thus, CG’s powers are unconstitutional.
(5) Other potential concerns: lack of intelligible principle, intelligible

principle but not in executive branch, or doesn’t have Presidential
oversight to ensure CG is following intelligible principle.
93
C. Executive Control of Agency Action

1. Relevant Constitutional Provisions of Article II: Vesting Clause; Take Care
Clause; and Opinion Clause
2. The unitary executive theory President’s authority to direct agency action
a) Unitary Executive Theory: President has the direct, unfettered right to

control the executive branch and remove without qualifications
(grounded in vesting and take care clauses).
(1) Cass Sunstein & Lessig (CB 697) says governed has changed, so in
fulfilling the spirit of the Constitution with separation of powers,
the President needs these powers.
(2) Arguments against:
Percival (CB 698) argues advice and consent not a unitary

executive. Strauss (CB 698): president is an overseer and
not the ultimate decider
Article II, Section 2’s requirement that presidential

appointments receive advice and consent of the Senate
would have little meaning if the president could simply
dictate the decisions such officers would make
When Constitution talks about the “duties” of the officers

of those appointed implies they have some duty separate
from that of the President.
b) President’s Directory Authority: DIFFERENCE BETWEEN IN

ADJUDICATIONS AND RULEMAKINGS
(1) Abbot & Snidal suggest there are give stages of regulatory
authority (“ANIME”): agenda-setting, negotiation of standards,
implementation, monitoring, and enforcement
(2) Possible legal basis for Presidential directory claims: there is little
precedential judicial review on the President’s directory authority:
Marbury v. Madison, Myers v. United States, and Youngstown
Sheet & Tube v. Sawywer – suggest some limits on President’s
ability to direct, especially when individuals affected.
(3) Line between direction and influence is blurred:
Kagan (CB 699): absent power to direct, still, personal

loyalty, want President’s help on other issues, norm of
obedience gives control
94
Strauss (CB 746-47): agencies may feel that as a practical

matter, they must obey
Barkow (CB 747): Does the agency get money from

Congress or does it collect fees? Does the agency have big
allies outside the government? The answers to these
questions may have a big determination on power /
independent, more so than removal powers.
However, Nixon’s “Saturday Night Massacre,” where he

kept firing people; shows political costs to legal acts
(4) Portland Audubon Society v. The Endangered Species Committee

(9th Cir. 1993) – AN ADJUDICATION
Facts: Questions of whether alleged communications

between the White House & Endangered Species
Committee that determines exceptions to the Act (e.g.,
authorizing timber sales affecting the northern spotted owl
habitat). WH staff allegedly tried to persuade committee
members, including Knauss. Knauss ultimately voted for
exemption (and would have been the deciding vote).
Holding: the record must be supplemented to include such

ex parte contacts; the court remanded to the Committee,
directing to hold, with the aid of a specially appointed ALJ,
an evidentiary hearing to resolve ex parte contacts issue
Rules:
(i) The President is an interested person and

someone outside the agency under 557(d).
Construing the APA this way does not violate
separation of powers.
(ii) When does an act of Congress (here the APA)

improperly interfere with a Presidential
prerogative? Two-step test (CB 705):
(a) (1) Does the statute prevent the executive branch
from accomplishing its constitutional functions?
(b) (2) If yes, is the impact justified by overriding need

to promote objectives within the constitutional
authority of Congress?
(iii) Due Process concerns about presidential

involvement in adjudication
95
(5) Sierra Club v. Costle (DC Cir. 1981) – A RULEMAKING
Facts: Under the Clear Air Act, EPA issues revised standards
for emission of sulfur dioxide and particulates by new coal-
fired power plants. Environmental Defense Fund alleged
EPA had chosen a lower ceiling but backed away under an
“ex parte blitz” from the coal industry, President Carter,
and Senator Byrd (i.e., high-level meetings, submission of
late comments, etc.).
Holding: it was not unlawful for the EPA not to docket such
communications involving the President and EPA officials
under the comment period
Rule: for rulemaking, agency communication between the

White House and agency is fine and does not need to be
documented
(i) Grounded in formalism (vesting clause) and

functionalism (lack of ability for government to work
without these types of communication
(ii) HOWEVER, key limitation: although president can be

involved and there is no need to docket these
communications – the agency must be able to
explain, without being arbitrary and capricious, that
its action comply with the APA & substantive review
3. Presidential control through appointments and removal
a) History:
(1) Originally, it was very debatable what restrictions Congress can

put on president’s removal power
(2) Meyers v. United States (1926): Tenure in Office Act, prohibiting

at will removal of cabinet members by President, was struck
down. Rule: for purely executive officers, president must have at
will removal powers
(3) Humphreys (1935): president can only remove FTC commissioners

for cause; stands for the constitutionality of independent agency.
Rule: for officers executing quasi-legislative and quasi-judicial
powers, there can be restrictions on presidential removal
96
b) Morrison v. Olsen (1988):
(1) Pearson was in the judicial department, but court says provisions
limiting removal powers are okay by text, separation of powers,
and didn’t alter the balance of power. Statement was made that
Pearson was directly supervised and thus could be controlled /
directed by at-will removal officers (different than PCAOB
members in Free Enterprise).
(2) Rejects distinction between purely executive and quasi-

legislative/judicial officers and expands the range of people and
positions removal restrictions can be imposed
(3) In place of this line, court says test will be whether removal
restrictions interfere with Article II removal powers and take
care clause (think: functionalist analysis)
c) Free Enterprise Fund v. Public Company Accounting Oversight Board

(U.S. 2010, Roberts)
(1) Facts: Securities and Exchange Commissioners can only be

removed by the President for-cause AND PCAOB members can
only be removed for-cause: Double-layer of for-cause removal,
with an independent agency inside an independent agency.
(2) Formalist arguments: suggest any double for-cause removal is

unconstitutional because people wouldn’t know where power lies
(3) Functionalist arguments: suggest this problem may be more

specific – because agency has a lot of core executive powers of
SEC, lots of restrictions on removal of PCAOB (super-cause
removal), judicial review of removal (i.e., it must be approved by
the judiciary – which is “super procedure” of removal).
Compare to Morrison, where the supervisor (at will) had a

lot of supervisory authority and could direct lower person
with for-cause removal. SEC Commissioners don’t have
supervisory authority over PCAOB.
d) Free Enterprise answers some questions from Morrison:
e) Even unitary executive theorists have come to accept some limits on the
presidency
f) Bowsher shows for cause removal may not restrict presidential control
in a way that threatens the unitary executive
g) Officers can threaten the President with a resignation

97
D. Courts legitimizing the Administrative State:

1. Ackerman: Courts have an important role in notifying / flagging these issues.
2. Thus, court involvement legitimizes the Administrative structure and modern

administrative state
98

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Administrative Law Outline

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Ruocco Administrative Law Outline [Lee, Spring 2015]

ADMINISTRATIVE LAW OUTLINE

I. Introduction of Administrative Law..................................................................................................... 4

I. Introduction to Administrative Law

a) Punt political decisions / heat from congress to agencies

b) Create detailed rules that are too difficult to regulate

c) Allow for change over time

d) Give / show political compromise

e) Leave issues to experts

B. History of Administrative Law in Five Periods (think sedimentary: there is

II. Procedural Due Process As a Constraint on Agencies

Checklist for when Individual Due Process Rights are triggered:

a) Issue: whether a private school, whose income is primarily from public

b) Factors from Rendell-Baker v. Kohn:

(1) Public funding of a private entity (Here, yes)

(2) Extensive regulation of private entity

Majority: Did state “exercise coercive power or provide

Dissent: Was the ACTOR sufficiently involved with the

(3) Private entity performs a public function

Majority: a private entity performs a public function when

Dissent: Rejects “exclusively traditional view;” school

(i) Consider that the state has DELEGATED ITS

(ii) State has a statutory obligation to perform this and

(4) State and private entity have a symbiotic relationship

Majority: only when the state financially benefits from

Dissent: “The state and private entity have a symbiotic

4. Case Illustration: Brentwood Academy v. Tennessee Secondary School Athletic

a) Facts: Brentwood Academy, a parochial school, was disciplined by the

b) Holding: Although the Association is a separately incorporated

B. Adjudication (individual Due Process Rights) or Rulemaking (no DPR)

(1) Generality (legislative) v. Particularity (adjudication): does the

*Pro-Eco: consider generality of decision is determined by form of

(2) Polycentric (legislation) v. Bi-Polar (adjudication): does the

* Coniston Corp v. Village of Hoffman Estates (7th Cir. 1988) says

(3) Prospectivity (legislative) v. Retrospectivity (adjudicative):

*There is no bright-line rule for which factors are the most

*Some agency decisions have hybrid qualities & the Londoner /

3. Londoner v. Denver (U.S. 1908)

(1) City Council acted in a legislative / rulemaking function when they

(2) However, the City Council – sitting as a board of equalization –

(3) One of the ways we know this is an adjudication is that a small

4. Bi-Metallic Investment Co. v. State Bd. of Equalization (U.S. 1915)

a) Facts: State Board of Equalization and the Colorado Tax Commission

b) Holding: Due Process Rights attach only to administrative agency

c) Larger groups don’t get individual due process for rulemaking /

d) “Where a rule of conduct applies to more than a few people, it is

5. Londoner/Bi-Metallic Jurisprudence (I.e., subsequent decisions)

a) Minnesota State Bd. for Community Colleges v. Knight (U.S. 1984)

b) Coniston Corp v. Village of Hoffman Estates (7th Cir. 1988) (Posner

d) City of Eastlake v. Forest Citer Enterprises (U.S. 1976) (holding that a

f) (1) Commission designates an area as having a high-rate of public

C. Rejecting Right/Privilege Doctrine

2. Goldberg v. Kelly (U.S. 1970) – WHICH HAS BEEN REPLACED BY A MORE

a) Facts: State terminated public welfare assistance payments to a

b) Holding: only pre-termination evidentiary hearing would suffice.

c) Rule: Individual rights must be tied to life, liberty or property for

(1) Whether the benefits are attached to a statutory right or an

(3) A classic balancing test: whether the recipient’s interest in

(4) The qualities of people affected by the decision. (E.g., welfare

d) Effects of Goldberg / Commentary about Goldberg:

(2) Practical impact of Goldberg: practical problems administering

(3) Commentary and questions: more procedure can lead to less

(4) What would you get from Goldberg?

Don’t get: full record, comprehension opinion or formal