APA Deals ONLY with FEDERAL gov't.

If a question involves state gov't it is not an APA case instead it is a due process or the right to a neutral decision maker. SCOPE OF REVIEW Chevron used by the courts when they are reviewing an agencies own interp of its organic statute. Substantial Evidence court uses when it involves agency finding of fact in formal adjudication & occasionally formal RM. Arbitrary & Capricious deferential form of review & used for factual and policy decisions that come out of informal adjudication. RULEMAKING Notice & Comment 553; notice of intent, opportunity for comments, publish in fed registrar, general purpose statement Formal RM 556 & 557; more trial like w/opportunities to cross-exam; on the record. Congress is suppose to be clear when formal RM has to be used. ADJUDICATION Informal 554; not prevalent. An agency decision that results from a process that is neither a RM nor a trial type proceeding. Formal 554; on the record; trials conducted by ALJ. POLICY FORMATION DISTINCTIONS RULE outcome of rulemaking; 551(4). Generally to make future policy and include use of legis facts which are general in nature. ORDER outcome of adjudication; 551(6). Applying old rules to past and present conduct; includes use of adjudicative facts specific to particular issue. AGENCY AUTHORITY TO MAKE POLICY Whether an agency adjudicates or makes rules, it choice of procedure is almost certain to be upheld by the courts. By Rules agency has the authority. By Order (After Adjudication) Bell Aerospace current view. SC approved boards position to announce policy by order rather than by rule. NOTICE The notice that an agency must give in the Federal Registrar must contain either the terms of substance of the proposed rule or a description of the subjects and issues involved. TEST to determine adequacy of notice of change of a proposed rule occurring after N&C period is if the change is in character w/the original scheme and the final rule is a logical outgrowth of the N&C already given. EX PARTE CONTACTS HBO v. FCC 706 of the APA requires in reviewing agency decisions the court must be privy to the WHOLE RECORD. Any ex parte contacts must be placed in the record so others may comment. Sierra Club v. Costle relevance standard more liberal than in HBO. If agency receives comments it must put them on the record if they are relevant. IMPARTIAL RULEMAKERS Assoc. Natl Adv. v. FTC An agency member should be disqualified from decision making ONLY when it is shown he has an unalterably closed mind on relevant matters. HYBRID RULEMAKING In b/w informal and formal RM. No definition in the APA. Many agencies use it b/c mandated by Congress or on their own initiative. Courts may not impose RM procedures beyond 553 (informal N&C). EXEMPTIONS FROM N&C RM Interpretive Rules, Policy Statements, Rules of Organization, Procedure or Practice. How to distinguish b/w these is on pg. 12 of outline. Interp if reminds parties of existing statutory duties, clarifies statutory term. Rulemaking involving military or foreign affairs, or

Good Cause Exception finding that notice is impracticable, unnecessary, or contrary to public interest. PROCEDURAL VS. SUBSANTIVE RULES 2 STEP PROCESS (to make distinction): 1. Ask if the agency is directly impacting substantive rights or obligations, or 2. Directly affecting the manner in which people present themselves to the agency? Procedural Exception covers agency actions which to not themselves alter the rights or interests of the parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agencies. Substantive Exception issue is one of degree. The task is to identify which substantive effects are substantively so grave that N&C are needed to safeguard the policies underlying the APA. DUE PROCESS THRESHOLD QUESTIONS 1. Is there intentional state action? 2. Look for adjudication something that affects a small group of people. 3. Is there a constitutionally protected interest? Life, liberty or property? LIFE Rarely comes up in administrative law. LIBERTY Right to engage in common occupations in life, enjoy those privileges, etc. Reputation cases suggest where it stigmatizes a person from getting another job some hearing is due. Harm to reputation is not enough.need legal status. Stigma + Test: 4 factors (1) gov't must charge or stigmatize him; (2) charge must be made public or published; (3) must dispute the facts; and (4) must suffer a change in legal rights/status. PROPERTY Extends beyond actual ownership of real estate, chattel, or money. The person must have a LEGIT claim of ENTITLEMENT to it. Employment for cause a substantive property right; at will employees DO NOT have property interest. WHAT PROCESS IS DUE TEST to determine what process is due is from Mathews v. Eldridge 1. Private Interest Affected 2. Risk of Erroneous Error 3. Value of Additional Procedures 4. Gov't Interest RIGHT TO A NEUTRAL DECISION MAKER Decision maker violates DP if a judge has a direct, personal, substantial, pecuniary interest in reaching a conclusion. Parties w/substantial pecuniary interests in legal proceedings should not adjudicate such disputes. Cinderella if a disinterested observer may conclude that a decision maker has prejudged the facts as well as the law of a particular case before hearing it, that decision maker must be removed. STATUTORY HEARING RIGHTS ?? Discusses ex parte contacts 3 criteria of 554. SEPARATION OF POWERS NON-DELEGATION DOCTRINE TEST to determine if a delegation is valid, the court will look to see if Congress has provided the agency w/an intelligible principle that will guide the agency in using the delegated powers. Doctrines underlying purpose (1) forces the elected representatives of the people-Congress-to make the important choices of social and economic policy; (2) guarantees that any delegation to an agency will be accompanied by an intelligible principle guiding the agencys discretion; (3) enhances JR by giving courts a standard against which to weigh the exercise of the agencys discretion; (4) an injury as to whom the decision making power is given.

LEGISLATIVE VETO INS v. Chadha legislative vetos are unconstitutional.

APPOINTMENT AND REMOVAL OF EXECUTIVE OFFICERS

Appointment Clause Problem (1) officer or employee; (2) superior or inferior officer; and (3) legislative, judicial or executive function? Superior Officer must be appointed by President pursuant to Appointment Clause. Inferior Officer Appointed by Pres, Heads of Dept, or courts; Congress vests appointment power. Test of Inferior Officers: removable by superiors; limited to investigation and prosecution; limited in jurisdiction; office is temporary and limited in tenure. Edmonds Test of Inferior Officers: if the officer is directed by other officers directly appointed by President then probably inferior. SCOPE OF REVIEW 2 QUESTIONS TO ASK TO DETERMINE SCOPE 1. What type of issue (nature of case) is the court being asked to review? 2. In what type of administrative proceeding did the agency arrive at the decision being challenged? TYPES OF REVIEW Arbitrary & Capricious Scope can involve questions of fact, law or discretion. Generally deferential. Test: (1) has the agency relied on correct factors in making its decision; and (2) was the agencys decision a clear error in judgment? Constitutional Challenge involves a question of law where the reviewing courts give little deference. Scope of Authority Review involves question of law; whether the agency has exceeded its statutory authority. Procedural Review Allows courts to set aside a decision if the agency did not act correctly in a procedural manner. Substantial Evidence Review Deals w/issues of fact. Triggered when agency decision was made after formal adjudication or RM. Court looks at whole record. De Novo Review Deals w/issues of fact and is a rarity in admin law. This review is to be used when (1) agency action is adjudicatory, and (2) agency fact finding procedures are inadequate. Overton Park CHEVRON TEST **When reviewing an agencies interpretation of their own statute: 1. Ask did Congress clearly address the specific issues? 2. Is the agencys interpretation permissible or reasonable? RULE 553 N&C, advisory opinions and possibly informal adjudication will trigger Chevron Review. RULE Chevron IS NOT triggered when in an opinion letter, manual, policy statement or other interpretive regulation. (these trigger Skidmore) SKIDMORE 1. How careful has the agency been; 2. how consistent has the agency been over time; 3. how formal or informal the agency has been, and 4. all the other things that give power to persuade, but not the power to control. SEMINOLE ROCK DEFERENCE Should be used when agencies interpretations of their own regs; they must be upheld unless plainly erroneous or inconsistent w/the regulation provided that they are neither unconstitutional or inconsistent w/the statute. SUBSTANTIAL EVIDENCE 706(2)(E) How much evidence? Could a reasonable finder of fact reach the conclusion that was reached. Triggers for Substantial Evidence (1) if the enabling statue says so; (2) if it doesnt say look to the APA formal RM or formal adjudication. ARBITRARY & CAPRICIOUS 706(2)(A) Used almost exclusively for determinations not subject to SE review such as informal RM and informal adjudications involving decisions of fact/policy and where otherwise provided for by the act.

2 Questions to be asked (1) did the agency rely on the correct factors in making its decision; and (2) was the agencys decision a clear error in judgment? 4 Prong Test for A&C (agency has to fail only 1 1. if an agency relies on factors that Congress did not intend for them to; 2. if an agency failed to consider an important aspect of the decision; 3. if the agency explanation runs counter to the evidence; or 4. if the decision is so implausible that it cannot be ascribed to a difference in view or the product of agency expertise. Hard-Look Doctrine of A&C less deferential and takes a hard look at whether the agency has taken into account all the relevant facts.

REVIEWABILITY PRESUMPTION OF REVIEWABILITY The APA has been interpreted by the SC to embody a presumption of judicial reviewability. However, the APA says this may be rebutted. Judicial Review applies except to the extent: 1. the statute precludes review, or 2. Agency action is committed to agency discretion by law. STATUTORY PRECLUSION OF REVIEW RULE presumption of reviewability is evidence unless there is clear and convincing evidence that Congress intended to preclude review. Preclusion can be broad to include all kinds of JR or temporary or only include some challengers. COMMITTED TO AGENCY DISCRETION BY LAW TEST 1. There is no law to apply. Overton Park 2. The statute is drawn so that a court would have no meaningful standard against which to judge the agencys discretion. Heckler STANDING Constitutional Standing (1) injury in fact; must be concrete and particularized or actual/imminent; (2) fairly traceable; and (3) redressability. Association Standing (1) its members would have otherwise had standing to sue on their own, and talk about constitutional standing; (2) the interests it seeks to protect are germane to the organizations purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Zone of Interest is the interest being asserted by the litigant arguably w/n or of the same type of interest Congress had in mind when passing the statute? Prudential Standing is satisfied when the injury asserted by the s arguably falls w/n the zone We want everyone to be able to sue. RIPENESS Ripeness and finality refer to the steps the agency must take before its actions may be challenged in the courts. Pre-enforcement challenges (1) is the case fit for judicial review, and (2) what is the hardship to the parties if the court withholds from taking the case? Benefits generally the challenge will not be ripe until the individual applies for benefits and is denied. Ripeness & licensing SC ripeness rose w/this topic Ripeness & Ruling/Opinion Letters (1) how specific the questions were asked; (2) how definite the agencies disapproval was; (3) how high or low the decision maker was in the food chain. Exhaustion of Administrative Remedies exhaustion is highly discretionary. FOIA An agency has to improperly withhold agency records. Multi-factor test physical location, if the agency used the docs, generated by the agency, and controlled by the agency. 3 factor test for determining if an ENTITY is an AGENCY (1) how close the entity is to the president

operationally, (2) whether it has self-contained structure, and (3) nature of its delegated authority.