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ADMINISTRATIVE LAW OUTLINE

OVERVIEW
1. Administrative Law Broadly Defined. (1) The law that governs agencies and (2) the law that agencies
make.
Philosophical debate Its all about how to allocate power to the agencies and the relationships
between: (1) Congress, (2) Agencies, and (3) Courts.
2. Agency. Agencies execute the laws of the United States. An agency is ALWAYS created by statute. An
agency has no power without Congressional action
3. Agency Structure.
a. Departments. The highest ranking agency in terms of status.
b. Executive Branch Agencies. Subject to the control of the President. A Secretary serves until
he/she resigns or is fired by the President.
c. Independent Regulatory Agencies. Not subject to the immediate control of the President. (APA
still applies) (pg. 9 for list of agencies)
1. Headed by multi-member group, not a Secretary. (i.e. commission, board, council
or conference. Typically 5-7 members.)
2. Members can only be removed for cause. (i.e. malfeasance)
3. Heads typically serve a fixed term, the terms are staggered terms so that the
composition of the agency members never expires at one time.
4. No more than a simple majority may come from one political party. (i.e. if 5
members, only 3 could be in same party).
d. State v. Federal Agencies. Pg. 11.
4. Agency Categories. Congress delegates power to executive branch agencies. The agency uses its
power to make and enforce regulations. The agencies decisions and laws are subject to review by the
court.
a. Regulatory Agencies. Agencies that regulate private conduct. (i.e. FTC regulates practices by
commercial entities). These agencies exist at state, federal and local levels.
i. Justification for regulation of private conduct.
ii. Note. Legislators may adopt regulatory programs for non-economic reasons.
b. Entitlement Agencies. Agencies that administer entitlement programs. (i.e. Social Security,
Medicare, Medicaid, welfare, and food stamps Federally created insurance programs). Focus
is on dispensing federal and state funds to the right individuals.
i. Justification for entitlement programs.
ii. Note. There may be a subsidiary or related regulatory effect with entitlement programs.
(i.e. Medicare and Medicaid regulating the delivery of the health care in the nation by
payment schedules adopted by Centers for Medicare and Medicaid Services).
c. Everything Else. (i.e. Internal Revenue Service, the U.S. Citizenship Immigration Services,
Department of the State, etc. pg. 16).
TIP: Understanding the purpose of a regulation is the first step in constructing arguments against that
regulation. (i.e. convince an administrator that regulation is unwise or unnecessary from the publics
point of view).
5. Agency Action. There are three types of actions agencies can perform: (1) Rulemaking, (2)
Adjudication, (3) Investigation. Congress authorizes agencies to take these actions, specifying which
agencies can do what. Agencies can exercise all three powers because an agency doesnt derive its
power from the Constitution, but from Congress. Thus it has derivative power. If it exceeds its power
it is subject to review by Congress and the Courts. Further, Congress can modify an agencys
regulations.
a. Rulemaking. Agencies can promulgate rules that have the same force and effect as a law passed
by Congress (i.e. regulations). This reflects the legislative power of agencies.
b. Adjudication. Agencies can apply an existing rule or statute to a set of facts to determine what
outcome is required by the rule or statute. An agency decision from adjudication will have the
same force of law as if it had been made by a court. This reflects the judicial power of agencies.
Note. An agency can create a rule and enforce it through adjudication.
c. Investigation. Agencies can determine whether someone may be in violation of an agency rule
or legislative mandate. This power is necessary to obtain information outside of agency. This
reflects the executive power of agencies.
6. Rulemaking v. Adjudication
a. Adjudication. The nature of facts in issue = past. Individualized.
b. Rulemaking. The nature of facts in issue = future. General applicability.
7. Separation of Powers: Limitations.
8. Overview of the Administrative Procedure Act.
a. Definitions 551
b. Structure. Divided into two parts: (1) Agency Procedures (553-559) , (2) Judicial Review (701-
706).
c. Rulemaking
i. Informal Rulemaking 553
1. Agency must publish notice of the proposed rule in the Federal Register.
2. Agency must give interested persons the opportunity to participatein the rule
making
3. Agency must incorporate in the rules adopted a concise general statement of
their basis and purpose
ii. Formal Rulemaking 556 & 557
d. Adjudication 554
i. Informal Adjudication No procedures required.
ii. Formal Adjudication 556 & 557
e. Judicial Review 701. Courts may review whether the agency action is contrary to a statute
or conflictive with the constitution. Courts may also review the substantive adequacy of an
agency decision. Judicial Review Types (Section 706).
o Reviewable Agency Action:
i. Special governed by an enabling act. (Section 703)
ii. General governed by the APA. (Section 701-06)

STANDARDS OF REVIEW
De novo Substantial Evidence Arbitrary & Capricious
When a court substitutes its
judgment for that of an agency.
Thus the court must agree with
the agency decision to uphold it.
-
When a court must uphold the
decision if it is reasonable.
The court need not agree with
agency decision just must
agree that agency conclusion
was reasonable.

When a court must uphold
an agency decision unless it
is arbitrary. (i.e. abuse of
discretion standard)
-
ISSUE SECTION SCOPE OF REVIEW
Constitutional Violation 706 (2)(B) De novo
Statutory Compliance 706 (2)(C) Chevron
Procedural Violation 706 (2)(D) De novo
Findings and Conclusions Informal
RM/Adj.
706 (2)(A)
Formal
RM/Adj.
706 (2)(E)

Arbitrary and Capricious
(State Farm)
Substantial Evidence

Arbitrary & Capricious Substantial Evidence Clearly Erroneous Preponderance of Evidence De
Novo
Less intensive More Intensive


9. A NOTE ON ALJS.












































RULEMAKING
1. AN OVERVIEW OF RULEMAKING. 551 (defines), 553 (choice of formal or informal), 556 &
557 (formal rulemaking procedures). 551 defines rulemaking as the agency process for formulating,
amending, or repealing a rule. Whenever a new rule is made it only effects future conduct and is generally
applicable (not individualized). An agencys rulemaking authority is limited to what it has been delegated.
Congress establishes a legislative mandate for an agency whenever an agency is created.
a. Rule. The whole or a part of an agency statement of general or particular applicability and
future effect (Section 551(4)). Cannot enact rule retroactively (unless Congress has provided
so).
b. Standard of Review. In informal rulemaking cases, a court will only overturn an agencys rule
under Section 706 (2) if it is arbitrary and capricious. For formal rulemaking, its
substantive evidence.
c. Adequate Notice. Federal agencies publish their regulations in the Federal Register this is
primary way agencies give notice. They are then published in the Code of Federal Regulations.
(CFR)
d. Legislative Power. Agencies can promulgate rules that have the same force and effect as a law
passed by Congress. This reflects the legislative power of agencies.
e. Notes.
i. Rate making = rulemaking.
ii. Note. Lawyer Functions in the rulemaking process.

2. TYPES OF RULEMAKING. To determine what type of rulemaking an agency is engaging in, look to
553 (c). In this section, formal rulemaking will be required if rules are required to by statute [i.e. agencys
mandate/organic statute] to be made on the record after an opportunity for agency hearing.
a. Informal Rulemaking 553 involves fewer procedures than formal rulemaking. Certain
types of rules are excluded from 553 .An agency must simply follow a three-step process to
engage in formal rulemaking:
i. An agency is first required to publish a notice of the proposed rule in the Federal
Register.
ii. Second, an agency must give interested persons the opportunity to participate in the
rule making through submission of written data, views, or arguments with or without
opportunity for oral presentation. Thus, the agency has the option to permit oral
presentation.
iii. Last, the agency must incorporate in the rules adopted a concise general statement of
their basis and purpose [in-depth explanation of each later]
b. Formal Rulemaking 556 & 557 governs agencies when they engage in formal rulemaking.
An agency must follow the procedures in sections 556-557 after publishing a notice of the rule in
the Federal Register. In short, sections 556-557 require an agency to undertake the same type of
trial as it would use for adjudication in formal rulemaking.
c. Hybrid Rulemaking. Although the APA only identifies informal and formal rulemaking, since
the APAs passage Congress has created new agencies (or programs) while also imposing
particular rulemaking procedures on those agencies. The imposed rulemaking procedures are
called hybrid rulemaking procedures.

3. SOURCES OF RULEMAKING.
a. General Sources.
i. Legislation that requires specific regulation. This is the most common source. (i.e.
Clean Air Act and the EPA.)
ii. Broad mandates that requires the agency to adopt rules for broad societal goals.
(i.e. OSHA and protecting safety). This gives an agency broad discretion in rulemaking.
iii. Proposals from White House (OMB) or Congress. (i.e. top down approach). The
President can instruct departments to propose a rule. Congress can threaten an
investigation or to cut agency budget if agency doesnt take certain action.
iv. The public can influence rulemaking indirectly through lobbyists, Congress, or a
petition for rulemaking.
b. Petitions for Rulemaking. Under Section 553 (e) of the APA, [e]ach agency shall give an
interested person the right to petition for issuance, amendment, or repeal of a rule. The APA
does not require any further procedures but an agencys mandate may require more. Section
555 of the APA requires an agency to give prompt notice of a denial of a petition and the
grounds for denial. The petitioner can seek judicial review if the agency has denied a petition or
if the agency has not responded to the petition in a reasonable amount of time. [Does the
explanation of the denial have to be published in the federal register?]
c. Failure to act is an agency action. Denial of a petition is a final agency action that can be
repealed. This is judged under the arbitrary and capricious standard of review.
Telecommunications Research & Action Center v. Federal Communications Commission.
Establishes the factors to determine the lawfulness of unreasonable delay of agency action in
decision making.
Test for Unreasonable Delay. Is the agencys delay so egregious as to warrant mandamus?
1. The time the agencies take to make decisions must be governed by a rule of reason.
o Look to the timetable if Congress has set one.
2. The agency will be held to a higher time standard when the issue involves human
health and welfare standards.
3. The effect of expediting delayed action on other high priority commitments the
agency has.
4. The nature and extent of the interests prejudiced by delay.
5. The court need not find unreasonable delay.
A. Holding. The court retained jurisdiction over the issue of whether the delays would justify
mandamus. The court was not ready to issue the writ of mandamus but wanted to keep
pressure on the agency to make the rule.
B. Reasoning. (1) Although courts are reluctant to engage in any review when the agency has
not made a final decision, unreasonable delay in agency decision making falls into the
narrow class of interlocutory appeals subject to judicial review. (2) Unreasonable delay in
agency decision making also meets the criteria for interlocutory court intervention.
C. Application of Test. Applying the test to the instant case, (i) the 1934 Communications Act
revolves around the rule of reason and defined a reasonable time as months or occasionally a
year or two not several years or a decade. (ii) The delay threatens the credibility of the
FCC even when the issue is complex. The FCC has delayed a decision on the rate of return
inquiry for nearly 5 years this is long enough to raise a question of whether the delay has
deprived the public of rights and economic opportunities without the due process the
Constitution requires.
Arkansas Power & Light Co. v. I nterstate Commerce Commission. Courts need not compel
rulemaking when an agency has adequately explained its denial of a petition for rulemaking.
Review is limited to ensuring that agency has adequately explained the facts and policy concerns it
relied on, and the facts have some basis in the record.
A. Facts. The ICC rejected a petition for rulemaking submitted by the Arkansas P & L and other
coal burning utilities. The petition for rulemaking asked the ICC to collect data to
implement its responsibilities for approving the rates railroads may charge to so-called
captive shippers. At the time of the case, the ICC regulated rates railroads could charge for
the interstate shipment of goods and commodities.
B. Holding. The court did not compel the rulemaking after the agency denied to make the rule.
C. Reasoning. (1) The ICC has explained why rulemaking would be unnecessarily burdensome
and how individual adjudications can and will accomplish the same result. (2) There is no
basis on this record to compel rulemaking. The court will compel agency action in the form
of rulemaking only in extremely rare circumstances under the APA.
Massachusetts v. E.P.A. (U.S. 2007) An agency can deny a petition for rulemaking, but it must
ground its reasons for action or inaction in a reasoned explanation that has a basis in the mandating
statute. [outlier case]
A. Holding. The cases is remanded because the EPA must ground its reasons for action or
inaction in the statute EPAs did not offer a reasoned explanation for its refusal to make a
rule and thus, its action was arbitrary, capricious, or otherwise not in accordance with the
law.
B. Reasoning. (1) The judgment of the agency that it would be unwise to make a rule must
relate to whether an air pollutant causes or contributes to air pollution which may reasonably
be anticipated to endanger public health or welfare. (2) The EPA can avoid taking further
action only if it determines that greenhouse gases do not contribute to climate change or if it
provides some reasonable explanation as to why it cannot or will not exercise its discretion.
(3) The EPA has refused to comply with this clear statutory command and its decision has
nothing to do with whether greenhouse emissions contribute to climate change. (4) Only in
the rarest and most compelling circumstances will the court order an agency to make a rule.
[Look for direct correlation between statute]

4. EXCEPTIONS TO THE REQUIREMENT OF APA RULEMAKING PROCEDURES.
a. General Exceptions. 553 (a) (1) Rules involving military or foreign affairs. (2) Rules involving
agency management or personnel. (3) Rules involving public property, loans, grants, benefits, or
contracts. (Note: An agency can waive the exceptions and subject themselves to rules)
o No agency rules are exempt from section 552. If an agency fails to publish a rule, a person may
not be adversely affected by it.
b. Exceptions from Notice and Comment. (1) Rules of agency organization, procedure, or practice, (2)
interpretive rules, (3) general statements of policy, and (4) other rules for which notice and public
procedure are impracticable, unnecessary, or contrary to public interest.
o The Good Cause Exception. The Fourth exception requires an agency to find that notice and
public procedure are impracticable, unnecessary, or contrary to the public interest. Unlike the
other exceptions, this exception requires the agency to find good cause for invoking the exception
and to publish that finding and the reasons therefore with the rule.
o APA Legislative History: Definitions.
i. Impracticable. A situation in which the due and required execution of the agency functions
would be unavoidably prevented by its undertaking public rule-making proceedings.
ii. Unnecessary. Unnecessary so far as the public is concerned.
iii. Public Interest. Supplements the previous terms and requires that public rulemaking procedures
shall not pr1event an agency from operating and that, on the other hand, lack of public interest in
rulemaking warrants and agency to dispense with public procedure.
American Hospital Association v. Bowen. Rules that involve agency management or personnel
(i.e. agency procedures) are exempt from the requirements of 553.
Encoding a Substantive Value Judgment Test. Does the agency rule encode a substantive
value judgment or puts a stamp of approval or disapproval on a given type of behavior?
A. Holding. The rule in this case is a procedure rule exempt from Section 553s notice and
comment requirement.
B. Reasoning. (1) Even rulemaking involving unambiguous agency procedures will affect parties to
some degree. (2) The directive did not define a new substantive standard, it simply allowed HHS
to focus its inspections in a more productive way. The directive involved the specific day to day
duties of the PROs, and is thus a classic procedural rule exempted. (3) The agency rule imposes
no new burdens on hospitals that warrant notice and comment review. If anything, it burdens the
hospital by (a) further cracking down on hospital standards by making it less likely a violating
hospital will go unnoticed, and (b) imposing on hospitals the incidental inconvenience of
complying with an enforcement scheme. These burdens are illegitimate and expected.
Air Transport Association of America v. Department of Transportation . Rules that substantially
alter the rights of individuals even if they involves a procedural aspect (i.e. establishing an
adjudicatory scheme governing adjudication of administrative civil penalty actions) are not
exempt from 553s requirement of notice and comment. [Overturned by J EM Broadcasting]
A. Applying the *ESVJ* Test. This rule encoded a substantive value judgment on the
appropriate balance between a defendants rights to adjudicatory procedures and the agencys
interest in efficient prosecution, and thus required notice and comment rulemaking.
B. Holding. The FAA was required by the APA to have notice and comment because it enacted a
rule covered by section553.
C. Reasoning. (1) The FAAs action in this substantially altered the rights of civil penalty
defendants, and more specifically the right to avail [themselves] of an administrative
adjudication. (2) Notice and comment are essential to ensure the legitimacy of administrative
norms and an open democratic process with an opportunity for interested parties to
communicate. (3) The time constraints of the organic statute do not impose an insurmountable
obstacle to complying with the applicable notice and comment requirements of Section.
Congress did not express any intention to relieve the FAA of the notice and comment obligations
for administering the program and the FAA could have reasonably done so. (4) A rule is not
exempt simply because it has the label procedural each of the Penalty Rules reflect a a
substantive value judgment on the defendants rights.
J EM Broadcasting Company, I nc. v. Federal Communications Commission. A hard look rule
does not require notice and comment rulemaking under Section 553 because it is procedural.
Two-Part Test. [Modern Standard]
a. Does the rule alter the rights of the parties? If so, it is substantive it must go through
notice and rulemaking. (Also look to substantive value judgment test)
b. Are the substantive effects sufficiently grave so that N & C are needed to safeguard
the policies underlying the APA? If not, it will most likely be procedural.
A. Holding. The FCCs hard look rule did not require notice and comment rulemaking.
B. Reasoning. (1) The FCCs weighty efficiency interests in processing the applications outweigh
the right of the applicant to amend its incomplete application. The APA was intended to include
such an exception. (2) The hard look rules did not change the substantive standards (i.e.
financial qualifications, proposed programming, etc.) the APA used to evaluate license
applications. (3) Overturned Air Transport.

5. WHAT TYPE OF RULEMAKING PROCEDURES ARE REQUIRED? INFORMAL, FORMAL, OR
HYBRID RULEMAKING?
a. Court imposed procedures beyond APA are prohibited. Congress/Agency alone can require
additional procedures.
Vermont Yankee Nuclear Power Corp. A Court does not have the authority to require additional
procedures beyond those required in the APA (except as provided by law otherwise). A court should
not impose trial like procedures in informal rulemaking. [Congress can impose additional
procedures]
A. Holding. The agency was not required to engage in formal rulemaking and thus it was not
required to holding a full adjudicatory hearing before promulgating the rule.
B. Reasoning. (1) Section 553 is the MOST courts can impose for agency informal rulemaking
and only Congress and the Agency, not the Courts, can impose additional procedures for
rulemaking. (2) If courts continually review informal rulemaking as requiring the best
procedure available the advantages of informal rulemaking would be lost because agencys
would adopt full adjudicatory procedures even when engaging in informal rulemaking out of fear
of court action. (3) Court should not engage in Monday morning quarterbacking.

b. Informal Rulemaking Requirements. (1) Notice, (2) Opportunity to Participate, (3)(a) Concise and
general statement of purpose (if rule created) and (b) reasoned explanation [Massachusetts v. EPA] (if
rule denied).
a. Notice. The APA requires that a general notice of proposed rulemaking shall be published in
the Federal Register. (Abbreviations: NPRM or NOPR)
i. APA Requirements. Under 553(b)(1), NPRM must include (1) time, place, and
nature of the public proceeding. The agency must also indicate (2) the legal authority
under which the rule is proposed and (3) either the terms or substance of the
proposed rule or a description of the subjects and issues involved. (i.e. this is most
likely in the preamble)
ii. Court-imposed Rule. [Despite Vermont Yankee] Agencies must identify in the
NPRM the data and methodology of any scientific evidence on which they relied.
(Portland Cement Association v. Ruckelshaus).
iii. Purpose of Requiring N & C.
iv. Other Notes.
1. Common Requirements for Hybrid Rulemaking Added by Congress
Agencies must include different types of background data.
2. Common Procedural Challenge Adequacy of notice. The notice of a
propose rule must fairly apprise interested persons of the issues in
rulemaking. Interested persons are fairly apprised if the final rule is a logical
outgrowth of the rulemaking proceeding. (United Steelworkers of America,
AFL-CI O-CLC)
Chocolate Manufacturer's Ass'n v. Block. Notice is adequate when the final rule is a
logical outgrowth of the notice and comments already given. [Applied logical
outgrowth test from United Steelworkers of America]
Logical Outgrowth Test: Notice is adequate if the changes in the original plan
are in character with the original scheme, and the final rule is a logical
outgrowth of the notice and comments already given. (Case-by-case, fact specific)
a. Would members of the public have anticipated the change that the agency
ultimately made with the final rule? If yes, notice was adequate.
b. Does the final rule material alter the issues involved during the rulemaking? If
yes, the notice is inadequate.
c. Does the final rule substantially depart from the terms or substance of the
proposed rule? If yes, the notice is inadequate.
A. Holding. The FNS did not provide sufficient notice for its final rule.
B. Reasoning. Although notices need not require every potential regulatory change that
will be in the final rule, it must be sufficiently descriptive to provide interested
parties with a fair opportunity to comment and to participate in rulemaking.
C. Application of Logical Outgrowth Test. Although the rule was an outgrowth of
the notices and comments during the rulemaking process, it was not a logical
outgrowth nor was it in character with the original scheme. (a) FNS has permitted
the use of chocolate milk in the WIC program for years. (b) There was no indication,
whatsoever, that interested parties should be concerned about the sugar content in
flavored milk: Nowhere in the 12 page preamble did it speak of the prohibition of
chocolate milk in fact, it expressly noted that flavored or unflavored milk was
permitted. Further, it raised issue with the sugar content of specific foods, but did not
discuss chocolate milk. Thus, the interested parties did not have a fair opportunity
to contribute to the administrative rulemaking process.
D. Some Examples.

b. Opportunity for Comment. The purpose of noticeis to enable interested parties to comment
on the proposed rule. 553 (c) requires agencies to provide interested persons an opportunity to
comment through submission of written data, views, or arguments.
i. Oral hearings are not required. No requirement for hearing or oral presentation.
ii. No pre-determined time period. The APA does not mandate a specific time period for
the comment period.
iii. Final rule must be published 30 days prior to effective date. (553 (d)
iv. Ex Parte Communications Informal context: If the statute does not expressly
require anything to go in the record, a court will not enforce ex parte communications.
(There is also no prohibition of ex parte communications in license making.)

c. Formal Rulemaking.
a. Presumption Against Formal Rulemaking. (1) On the record and (2) opportunity for
agency hearing.
United States v. Allegheny-Ludlum Steel Corp. An enabling act that requires a rule to
be made after a hearing is exempt from the formal rulemaking requirements of 556 &
557 unless the act also requires the rule to be made on the record.
RM Two Part Test An agency must engage in formal rulemaking only when the
rule is required by statute to be made:
1. On the record [and]
2. After opportunity for an agency hearing
A. Holding. Informal rulemaking was appropriate.
B. Reasoning. Although the enabling act required a hearing, the rule was exempt
from the formal rulemaking requirements because the act did not require the rule to
be made on the record. Under Section 553, the formal rulemaking requirements of
Section 556 & 7 are invoked when rules must be made on the record.
Tip: There is a presumption against formal rulemaking. Thus, the statute language must
be as clear as possible and include at least the words hearing and on the record.
United States v. Florida East Coast Railway Co. [Affirmed Allegheny-Ludlum Steel
Corp.]
b. 557 Prohibits Ex Parte Communications Outside of the Notice & Comment Period.
Justification. Due process prohibits ex parte contacts when rulemaking involves conflicting
claims to a valuable privilege.
Sierra Club v. CostleThere is no prohibition on ex parte communications in rulemaking
unless Congress has required an agency to engage in formal rulemaking or adjudication.
A. Holding. The ex parte communications did not invalidate the rule. They were lawful
and not prohibited.
B. Reasoning. (1) The Act does not prohibit ex parte contacts during rulemaking but instead
requires that written communications and transcripts of oral communications be entered
on the record. (2) Though nothing in the Act governs the treatment of such
communications after the close of the comment period, the EPA reasonably decided to
include in the record entries covering the contested communications. (3) EDF has failed
to show that it was unable to respond adequately to the comments submitted after the
close of the comment period. (4) Although meetings between an agency and white house
officials can lead to external pressure to modify a proposed rule, the requirement that all
rules be factually supported by the record provides adequate guarantees against
subversion of the rulemaking process. (5) As to meetings between the Agency and a
U.S. senator, petitioners have failed to show that the senator attempted to, much less
succeeded in, persuading EPA to base its rule on extraneous considerations.
[This has not been overruled, but it has not applied] Home Box Office v. Federal
Communications Commission There is a prohibition on ex parte communications after
publication of the notice of proposed rulemaking (i.e. in informal rulemaking too).
[Court imposed rule a year before Vermont]
A. Holding. The FCC rule was invalid.
B. Reasoning. (1) According to the D.C. Circuit, after and agency issues a notice of
proposed rulemaking, any agency employee who is involved in the decision making
process should refuse to discuss relevant matters with interested private parties or their
representatives there exists conflicting claims to a valuable privilege. (2) Ex parte
communications hurt the process and make the agency look dishonest and untrustworthy.
(3) If there is no record of the communications, then how can the court decide if the rule
was reasonable?

6. JUDICIAL REVIEW OF RULEMAKING
a. Statutory Interpretation. [Statutory Compliance]. Agency interpretation of statutes are subject to judicial
review under 706 of the APA. Section 706 directs the courts to hold unlawful agency action not in
accordance with law (706 (2)(A)), and agency action that is in excess of statutory jurisdiction,
authority, limitations, or short of statutory right. (706 (2)(C)).
Chevron v. Natural Resources Defense Council, Inc. A court is required to defer to an agencys
interpretation of a statute if the statute is (a) silent or ambiguous with respect to the question at issue
and (2) the agencys interpretation of that statute is reasonable. Ambiguous statutes mean that
Congress has granted the agency power broad deference to interpret.
Chevron Two Part Test: (1) Does the statute clearly require or forbid agency interpretation?
(i.e. has Congress spoken directly to the precise question at issue?) If yes, courts must give effect
to the unambiguous language express by congress and proceed with analysis. If not, the court
must not simply impose its own construction, but must ask (2) whether the agencys
interpretation is a reasonable or permissible construction of the statute?
A. Holding. Although Congress did not have specific intention to apply the bubble concept imposed
by the EPA, the EPAs interpretation was a reasonable policy choice because the statute did not
define source.
B. Reasoning. (1) The agencys interpretation is entitled to deference (a) the regulatory scheme is
technical and complex, (b) the agency considered the matter in a detailed and reasonable manner,
and (c) the decision involves reconciling conflicting policies. Congress deliberately gives the agency
power when it leaves ambiguous language for the agency to interpret. (2) Separation of Powers
Principles Judges are not experts in the field and must not make decisions to reconcile competing
political interests. Congress gave the agency that policy making authority and has political remedies
if the agency is not acting in compliance. . Federal judges must respect the legitimate policies of
those groups that have constituencies because judges do not have constituencies.
C. Statutory Interpretation.
a. Plain meaning.
b. Legislative history is sometimes used to help understand the meaning statutory language.
c. Judges use canons of construction to interpret statutory language.
d. If a prior court holding has determined a statutes clear meaning under the doctrine of
stare decisis, an agency may not adopt an interpretation that conflicts with the courts
interpretation. (National Cable & Telecommunications Association v. Brand X I nternet
Services).
D. Limits of Chevron doctrine. (agencies win more than 2/3rds of the cases.)
a. Not constitutionally compelled. Congress could direct courts to not use the Chevron two-
step process.
b. Chevron doesnt apply when an agency is interpreting judicial opinions.
c. Chevron only applies to organic statute and other agency specific statutes not to broad
overarching statutes.
d. When an agency is interpreting a statute for its first time.
e. Amicus brief
E. When Chevron applies.
a. In general. When Congress has delegated authority to the agency to make legislative rules
carrying the force of law and the agency interpretation was promulgated in the exercise of
that authority. (Meade)
b. Agency choice of adjudication or rulemaking. Agency made correct decision in using
adjudication over rulemaking and vice versa. (Bowls v. Simmons)
c. Food and Drug Administration v. Brown & Williamson Tobacco Corporation. The
Attorney General, and not the agency, rendered the interpretation from Congress thus
Chevron did not apply. Chevron only applies to agency interpretation, not to Attorney
General interpretation.

b. Substantive Decisions. [Findings and Conclusions]. Whenever an agency promulgates a rule it makes
two types of substantive decisions: (1) Determines the basis of the evidence available to it, (2) What type of
rule, if any, is appropriate in light of those facts choosing the statutory mandate that best fits the statutory
mandate.
a. Scope of Review. 706 divides the scope of review into two categories:
i. Formal Rulemaking Substantive Evidence Reasonable
Courts should uphold a rule if it finds the agencys decision to be reasonable or the
record contains such evidence as a reasonable mind might accept as adequate to support
a conclusion. (Consolidated Edison v. NLRB). Court need not agree, just must think
agencys choice is reasonable.
ii. Informal Rulemaking Arbitrary and Capricious (unless Hybrid) Adequate
Explanation
A court must consider whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment. (Citizens to
Preserve Overton Park, I nc. v. Volpe). This case initiated the concept of record for an
informal agency proceeding.
b. Rulemaking Record. 706 requires the court to review the whole record when determining the
validity of an agency rule.
i. Formal Rulemaking The whole record is the testimony and documents created by the
agency conducted hearing procedure specified in 556-7.
ii. Informal Rulemaking No record. The court will look at the information that the agency
actually considered in making the decision. (Overton Park).
iii. Deference. When unknowable facts are being reviewed, courts should be highly deferential
to agency decisions. (Baltimore Gas & Electric Co. v. Natural Resources Defense Council)
Motor Vehicle Manufacturers Assoc. v. State Farm Mutual Automobile Ins. Co. When an agency
rescinds (or creates) an informal rule it must examine the relevant data and articulate a satisfactory
explanation for its action including a rational connection between the facts found and the choice
made. If not, the agency decision will be arbitrary and capricious.
A. Holding. The agency must better explain its reasons for rescinding the rule. The agency must
examine the relevant data and articulate a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.
B. Reasoning. The agency failed the Courts hard look review. The Department had made a fatal
decision by failing to consider an obvious alternative to the problem proposed. (i.e. they could have
continued to require airbags, or they could have required that the seatbelts not be detachable thus
solving the problem of the individuals detaching the seatbelts).
C. Agencies are allowed to change their mind, but it must be on the record and they must tell us
why.
a. Is there a rational connection between the facts and the conclusion?
b. Is the decision based on relevant factors?
c. Is there a clear error of judgment?
d. Did the agency rely on factors or fail to rely on some other information?
e. Did the agency fail to provide explanation
Securities and Exchange Commission v. Chenery Corp. If the agency has not provided an adequate
explanation, even if the court could discern an adequate explanation from the record, the court should
remand the rue back to the agency.





ADJUDICATION -
1. AN OVERVIEW OF ADJUDICATION. An adjudication is the process for formulating an order.
Any process that results in a final disposition, that is not rulemaking, is adjudication. Agencies can apply an
existing rule or statute to a set of facts to determine what outcome is required by the rule or statute. An
agency decision from adjudication will have the same force of law as if it had been made by a court. This
reflects the judicial power of agencies. (note: an investigation or information gathering can be completely
separate or incidental to an adjudication or rulemaking).
a. Order. The whole or a part of a final disposition of an agency matter other than rulemaking, but
including licensing. (if its not a rule, it is most likely this), whether affirmative, negative, injunctive,
or declaratory in form. (can be backward looking, unlike rules)
b. Formal Adjudication. Under the APA, formal adjudication must resemble a trial, while informal
adjudication does not require any procedures. Under Section 554 (a), whether an agency is required
to engage in formal adjudication depends on what Congress has required by statute. Thus, if the
agencys organic statute requires the agency to make adjudicatory decisions on the record after
opportunity of hearing, (554(a)) - that agency must engage in formal adjudication under the
procedures set forth in 554, 556, and 557.
1.The Components of Formal Adjudication.
1. Pre-hearing procedures Notice. (i.e. complaint in 554 (b)). Did it inform the D
of the nature of the charges against him or her?
2. Intervening parties The D.C. Circuit has allowed parties to intervene in an
adjudication. A party can intervene if it can
3. Discovery no right to discovery in informal adjudication. However, FOIA requests
can be made against the agency to get information. Subpoenas are also available to
both the party and the agency.
4. Settlement courts can allow parties to enter into a consent agreement. (556)
5. Hearing (556 (c)) resembles a judicial trial. (i.e hearings, motions, exhibits,
witnesses, etc.)
6. Hearing Officer head of agency or members of commission have the authority to
preside over agency adjudication. (556 (b)(1) & (3)). However, the vast majority do
not preside over hearings and ALJs do.
2.Applicable Sections of the APA.
1. 554. This section outlines the procedures required for formal adjudication. These
procedures resemble those used in trial for instance, the requirement of notice to the
parties of the hearing (554 (b)), the opportunity to reach a settlement (554(b)) & 554
(c)(1)), the person in charge of the hearing is prohibited from receiving ex parte
contacts or communications from the parties (this includes employees of the agency).
The formal adjudication hearing is further controlled by the guidelines set forth in
sections 556 and 557.
2. 556. This section outlines the procedures required for hearings. Section 556 (1)
allows for an Administrative Law Judge and outlines the authority of the ALJ (556
(b)&(c)), (2) places the burden of proof on the agency, allows for oral and written
evidence, allows cross-examination of witnesses, and finally mandates that every
decision be based on the entire record, including the hearing transcript and all
documentary evidence. (556 (d)). Section 556 (d) also prohibits any person who
makes the final decision during the appeals process from receiving ex parte contacts.
3. 557. This section outlines the procedures required for appeals. Section 557
requires the ALJ to initially decide the case. However, the agency can bypass this
step. (557 (b)). When the ALJ initially decides a case, any party can appeal the ALJs
decision to an agency administrator or to commission members. The parties have the
right to submit briefs. (557 (b)). Under Section 557, the administrator or commission
are not required to give deference to the ALJs factual findings because [o]n appeal
from or review of the initial decision, the agency has all the power which it would
have in making the initial decision. (557 (b)). (note: unlike regular appellate courts
who are required to give deference to the factual findings of the lower courts).
3.Separation of Functions (554 (d)) ALJs. (1) An ALJ is prohibited from consulting a
person or party on a fact in issue, unless notice and opportunity for all parties to participate;
(554 (d)(1)) (2) An ALJ is not responsible to or subject to the supervision or direction of an
employee or agent engaged in the performance of investigative or prosecuting functions for
an agency. (554 (d)(2)).
c. Informal Adjudication. The APA does not outline any procedures for an agency that is not
required by mandate to conduct adjudication on the record after the opportunity of an agency
hearing. (554 (a)).
d. Other Constraints on Adjudication (Both Formal & Informal)
1.Agency action must meet the minimal requirements of 555, that governs all agency
proceedings.
2.The organic statutestill may require some procedures even if the mandate does not require
formal adjudication.
3.Agencies may impose their own requirements for informal procedures and publish them in
the Code of Federal Regulations.
4.The Due Process Clausemay apply to certain types of agency action if there are not
enough procedures in place for an informal adjudication, and a persons property or liberty
are at stake, the court will have to determine whether the due process clause obligates the
agency to use more procedures than before. [see later]
e. Examples of Adjudication.

2. HOW TO DETERMINE WHEN 554 REQUIRES AN AGENCY TO USE FORMAL
ADJUDICATION. [Originally split in circuits, but D.C.s rule eventually took precedent.]
D.C. Circuit Use Chevron test. There is not presumption for or against formal adjudication.
If a statute is ambiguous use the Chevron test to determine whether formal or informal
adjudication is required. In other words, the court will defer to the agency interpretation of a
statute (i.e. what public hearing means) rather than determining what the language meant for
itself in light of Chevron. Chemical Waste Management, Inc. v. EPA (1989).

3. EX PARTE COMMUNICATIONS. The APA prohibits ex parte contacts in formal adjudication, but
not informal adjudication. The prohibition applies to any interested party outside the agency. 554 (d)
also bars an employee or agent engaged in the performance of investigative or prosecuting functions
from communicating with anyone who is responsible for making a decision in the matter (i.e. ALJ or
Board member). The prohibition applies to both the decision maker and the party it goes both ways!. A
person who gets a communication must completely disclose it on the record and allow the opposing party to
respond.
1. Ex Parte Communications (Formal adjudication only)
a. 557 (d)(1)(A) Outside in relevant to the merits.
b. 557 (d)(1)(B) Inside out (Patco)
c. 557 (d)(1)(C) Disclosure
d. 557 (d)(1)(D) Hearing (Patco)
Broadened separation of functions provisions. The four provisions above addressed
problems that the separation of functions provisions could not.
557 (d)(1)(E) ex parte communication prohibitions begin once the party receives the notice
of the compliant.
2. Remedies (Factors) typically disclosure or new hearing.
Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority An ex parte
communication will only cause a remand of the original decision if the agencys decision making
process was irrevocably tainted so as to make the ultimate judgment of the agency unfair. [Use the
following factors:]
i. Gravity of ex parte communication.
ii. Whether the contacts influence the agencys ultimate decision.
iii. The party that made the ex parte contacts benefit.
iv. Whether the contents were unknown to the opposing parties.
v. Whether the vacation of the agencys decision and remand for new proceedings would
serve a useful purpose.
A. Holding. The ex parte communications were not enough to cause a remand of the original
decision because the communications had no effect on the final decision of the agency.
B. Reasoning. (1) In banning ex parte communications, Congress wanted a common sense
application of what was an wasnt permissible communication. The goal of the ban is to keep
decisions open and transparent and provide parties with full notice of what was being
decided on.
C. Three Ex Parte Communications. (1) The FLRA, a week after complaint was filed, discussed
with the board whether revocation was discretionary under the law and also budgetary matters.
However, no arguments were made & facts were not mentioned. (2) The Secretary of
Transportation talked on the phone with a member of the board. He asked for an expeditious
handling of the case. However, the Secretary specifically avoided merits of the case. (3)
Lastly, and most substantial, the executive council member of the AFL-CIO had dinner with a
member with the intention to let the board member know his feelings about PATCO not being
punished too severely. They discussed labor law matters relevant to the PATCO case. When the
conversation turned to matters relevant to the hearing, the member should have stopped
the conversation immediately. However, because no threats or promises were made to the
member and no benefit was gained from the dinner, it cannot be said that the dinner
influenced the outcomeof the hearing.
D. Remedy. Notice and Show Cause Hearing (APA).

4. DUE PROCESS HEARINGS. The Due Process Clause requires the government to hold some type of
hearing (for disputes of factual issues) before it deprives an individual of life, liberty, or property.
a. An Overview.
i. Is it rulemaking No due process issues.
1. Is it rulemaking? If so, no Due Process issues.
2. Is there governmental action?
3. Is it individualized action?
4. Does it affect life, liberty or property?
5. What process is due? Only go to this step if you answered yes to the previous three
questions. [If no procedure is used then due process issue] (Mathews v. Eldridge)
b. Prohibition on New & Material Ex Parte Contacts.
Stone v. Federal Deposit I nsurance Corporation If a person is fired they may have a deprived
property right in their continued employment. An employee in a removal proceeding must have
notice (as to both the charges and the evidence) and an opportunity to respond. Thus, ex parte
communications that are new and material will violate the EEs Due Process Rights.
New & Material Ex Parte Contacts?
1. Whether the ex parte communication merely introduces cumulative information or
new information.
2. Whether the employee knew of the error and had a chance to respond to it.
3. Whether the ex parte communications were of the type likely to result in undue
pressure upon the deciding official to rule in a certain manner.
4. Ultimately, the determination hinges on whether the ex parte communication is so
substantial and so likely to cause prejudice that no employee can fairly be required to
be subjected to a deprivation of property under such circumstances.
A. Holding. The Court vacated the Boards decision and remanded the case for
proceedings.
B. Reasoning. (1) Mr. Stone had a property right in his continued employment at the bank.
(2) The introduction of these two memoranda to the deciding official contained new and
material information that undermined the employees constitutional due process
guarantee of notice and the opportunity to respond. Employees are no longer on notice
as to the reasons for dismissal when the decision maker receives ex parte
communications. (3) Ex parte communications undermine the objectivity and the
fairness of the process.

c. Individualized Decisionmaking. Due process is required for individual deprivations of property or
liberty, but policy-based deprivations of property or liberty affecting a class of individuals do not.
(Londoner v. Denver; Bi-Metallic)
Londoner v. Denver Due Process is required when there is an individualized adjudication
where someones deprived of their property or liberty.
A. Holding. The assessment was void because the plaintiffs were not afforded the opportunity
to be heard and did not have adequate notice.
B. Reasoning. (1) Before the tax became irrevocably fixed, the taxpayer shall have an
opportunity to be heard and must have notice (either by personal or publication, or by a law).
(2) Although an opportunity was given to submit in writing all objections and complaints of
the tax there should have been a hearing because of the issue.
Bi-Metallic I nvestment Company v. State Board of Equalization Due Process simply does not
apply to general adjudication (i.e. lawmaking/rulemaking). Due process is only required when
a relatively small number of persons was concerned, who were exceptionally affected, in each
case upon individual grounds.
A. Holding. The State Board did not violate the due process rights of Denver citizens because
they made a general adjudication.
B. Reasoning. (1) It is impracticable that everyone should have a direct voice in the adoption
of a rule that only affects a few people. (2) Voters ultimately are in control of those making
the rules the safeguard in general lawmaking is the political process.

d. Protected Interests. [Argue ALL]
1. Property
a. Goldberg high watermark:
i. Government entitlements =
ii. Trial like procedures pre- termination
b. Roth and Sinderman Unilateral expectations is not sufficient.
i. Must be a legitimate claim of entitlement.
c. (case) - Ex parte communication can violate due process
2. Liberty Freedom from bodily restraint, privilege to engage in profession.
a. Constitution Liberty interest in reputation.
b. Paul v. Davis roll back to stigma plus
c. Codd v. Velger Requires dispute of fact
d. Shands = Insubordination is not sufficient.
3. School/Academic Dismissal (treated differently)
a. Goss suspension do not equal a severe deprivation.
b. Horowitz Academic evaluations is not subject to due process.
4. Incarceration -Diminutive credits = entitled to Due Process.

1) Property I nterest. The court will ask does the government action constitute a deprivation of life,
liberty, or property? If not, Due Process Clause does not apply. Deprivations of life, liberty or
property include fundamental rights, but do not include privileges. In Goldberg v. Kelly (U.S.
1970), the line between fundamental rights and privileges became nonexistent when the court
held that a government entitlement (welfare determination) was entitled to due process under the
Due Process Clause.
Board of Regents v. Roth A person must of a legitimate claim of entitlement to have a
protected interest under the Due Process Clause. (i.e. if an individual has a contract for one year
of employment, he cannot have a claim to more than a year).
A. Holding. The schools decision did not infringe on the teachers 14
th
Amendment rights.
B. Reasoning. (1) The 14
th
Amendment can be used as a protection of an individuals liberty
interests in property but because the teacher was dismissed without cause (i.e. no charge
against him for dismissal), the teacher did not lose any interests that would be protected by
the 14
th
Amendment. (2) The teacher must have a legitimate claim of entitlement to the
rehiring and he did not in this case as his contract was for only a year and nothing more. (3)
In Goldberg, the Court held that the recipients had a claim of entitlement to welfare
payments that was grounded in a the statute defining eligibility. Although the recipients had
not shown they were within the statutory terms of eligibility the court found that they had a
right to a hearing that may attempt to do so.
2) Liberty I nterest. Liberty includes all of those privileges long recognized as essential to the
orderly pursuit of happiness by free men. For example
Paul v. Davis Reputation alone is not one of the liberty interests protected by the Due
Process Clause.
Stigma plus test. In order to have a liberty interest a person must have their reputation
harmed PLUS a disability imposed (i.e. loss of employment).
A. Holding. The shoplifting reputation was not a liberty interest protected by the 14
th

Amendment.
B. Reasoning. Reputation is not a tangible interest that would be covered by the 14
th

Amendment. A tangible interest would be something like employment.
Codd v. Velger In order for the court to mandate a hearing, there must be some factual dispute
in question relating to the alleged deprivation of the protected interest (i.e. employment).
A. Holding. Velgar does not have a Due Process claim because there is no factual dispute at
issue.
B. Reasoning. There was no factual dispute between the employer and the discharged
employee that had some significant bearing on the employees reputation. This is not
such a case because Velgar has not affirmatively asserted that the report of his apparent
suicide attempt was false.
Shands v. City of Kennett An interest must rise to the level of stigma required by the
Constitution to be considered a protected liberty interest under the Due Process Clause.
A. Holding. The four fireman do not have a due process claim because the Councilmans
statements did not rise to a level of stigmatization that would be protected by the liberty
interests of the due process clause.
B. Reasoning. The general allegation of misconduct in this case does not rise to a level of
constitutional stigma. Usually the requisite stigma is found in cases were the employee is
accused of dishonesty, immorality, criminality, racism or the like.
Siegurt Stigma can be temporal. There was no stigma plus because the stigma did not happen
incident to the employment, but afterwards.

e. What Hearing Procedure Must be Used? First determine whether there are liberty interests at
stake. If so, then you determine what due process requires (i.e. hearing).
Minimum (n &c) Intermediate (n & c plus) Maximum (trial)
10 day school suspension
(Goss)
Drunkard list. Parole
violation (Constantonian)
Prison Discipline
SS Disability (Mathews)
De Facto Tenure (Perry v.
Sidiano (spelling?)
Goldberg
Probation Revocation
Supremacy
Due Process No
1. Termination on-probationary employment.
2. Termination when de facto tenure.
3. Posting as a drunkard.
1. Losing security clearance
2. Termination with unilateral expectation only.
3. Revocation of d.1.p 3 suspensions
4. Insubordination

Goldberg v. Kelly. An evidentiary hearing must occur before the termination of ones welfare
benefits. In addition, it required procedures normally associated with highly formalized
adjudication:
(1) Timely and adequate notice detailing reasons for proposed termination
(2) An effective opportunity to defend (i.e. cross examination, presenting witnesses and
evidence).
(3) The right to be represented by counsel.
(4) A decision based on the evidence
(5) Impartial Decisionmaker.
(6) A statement explaining his decision and evidence relied upon.
Mathews v. Eldridge An evidentiary hearing is not required prior to the termination of
disability benefits.
Due Process Factors (Three Part Test):
1. The magnitude of the private interest that will be affected by the official action.
2. The risk of an erroneous deprivation of such interest through the procedures used, and
the probable value (if any) of additional or substitute procedural safeguards.
3. The governments interest (including the function involved and the fiscal and
administrative burdens that additional or substitute procedure would require.)
A. Holding. The present administrative procedures fully comport with Due Process.
B. Reasoning. Goldberg is distinguished from the case at hand.
C. Application of Test. (i) The magnitude of the interest is the uninterrupted receipt
of income pending the final administrative decision. Eligibility for disability
benefits, unlike welfare benefits, is not based on need. (ii) The risk of error is low
because it is based on medical documentation. Physicians provide the evidence.
(iii) Administrative burden, incremental cost resulting from increased number of
hearings, and expense of providing benefits to ineligible recipients pending
decision.
Board of Curators of the University of Missouri v. Horowitz A seat to a Medical School
program is not a property interest and, thus, a trial-like hearing is not required.
A. Holding. The student was not deprived of her liberty interests. Due Process does not
require any more procedure than what occurred here.
B. Reasoning. (1) The student never claimed a deprivation of a property interest and
if she did, she would have to show that her seat at the Medical school was a property
interest under state law. (2) The procedures in this case were sufficient under the Due
Process Clause. Requiring a trial like hearing would make it costly for the school
and would destroy the effectiveness as a part of the teaching process. Academic
evaluations of students are more subjective and evaluative determinations. (3)
Further, this type of determination is different from disciplinary actions taken against
students that require hearings.

f. Neutral Decisionmaker. A fundamental aspect of due process is a neutral decision maker. In an
adjudication, if a decision maker is prejudiced or biased against or for a party it will be a violation
of the Constitutions guarantee of Due Process.
Withrow v. Larkin
Test for bias. Is the decision makers mind irrevocably closed?
A. Holding. The Board stayed within the accepted bounds of due process, even with
both investigative and adjudicatory powers.
B. Reasoning. (1) The probability of actual bias on the part of the decision-maker
will be too high to be constitutionally permissible when: (a) The adjudicator has
a pecuniary interest in the outcome - OR - (b) Adjudicator has been target of
personal abuse or criticismfrom the party. (2) However, this is not such a case.
(a) After an investigation, it issued findings and conclusions asserting the
commission of certain acts and ultimately concluding there was probable cause to
believe the Appellee had violated the statutes. (b) The risk of bias and
prejudgment was not intolerably high. (c) The initial determination of probable
cause and the ultimate adjudication have different purposes; and the fact that
same agency makes them in tandem and they relate to the same issues does not
result in a procedural due process violation.

5. JUDICIAL REVIEW OF ADJUDICATION - 706
a. Formal Adjudication of Facts The Substantial Evidence Standard. 706 2(E) provides that
agency action is to be held unlawful if it is unsupported by substantial evidence in formal rulemaking
and formal adjudication. The substantial evidence test is a highly deferential test but it must be applied
to the whole record on both sides.
Substantial Evidence and the ALJs Credibility Findings. Section 557, which states that an
agency has all the powers which it would have in making its decision on review has been
interpreted to give the agency the power of de novo review. Essentially meaning that the agency is
not required to defer to the findings of the ALJ at all, which in turn, was also assumed by the courts.
However, Universal Camera Corp. v. NLRB clarified that a reviewing court must review the ALJs
decision because it was a part of the whole record. Thus, the court must take the ALJ decision
into account when assessing whether an agency has substantial evidence for its findings and
conclusions.
Torres v. Mukasey If there is not substantial evidencesupporting an decision makers findings (i.e.
its based off speculation and conjecture rather than evidence), that decision is not credibleand the
case will be remanded.
A. Holding. The credibility of the IJs (Immigration Judge) findings was tainted. There was
not substantial evidence to support the IJs conclusions.
B. Reasoning. (1) An IJs improper behavior while conducting an immigration hearing can
render his credibility determination unreliable. In this case, the IJ interjected in the hearing
with length discourses and half of the hearing transcript comprises of the direct questioning
by the IJ. The IJs impatience with Pedro was glaring even through the transcript. The IJ
grew frustrated with the language barrier and he demonstrated an unwillingness to give Pedro
time to formulate his thoughts into meaningful sentences. (2) An IJs findings will not be
upheld if it is based on speculation or conjecture, rather than on evidence in the record. (3)
The IJ disregarded Pedros explanations of his omissions in his application during the
hearing. In this case, Pedro demonstrated that his family was the nexus for his mistreatment.
The IJ disregarded this and focused on the omissions in Pedros application. Although
Pedros application did not mention the supervisors by name it did refer to the
supervisors and was thus sufficient. Further, the IJ speculated that the supervisors could
not have known about Pedros brothers because of knowledge he had about the location of
the base and the different units in the navy. This is e more than speculation and the judge
should not have ruled on it.
J ackson v. Veterans Administration The substantive evidence standard will obviously not be
satisfied if a judge offers no reasons for the basis of his/her decision.
A. Holding. The Boards decision to reverse the findings of the presiding official for Incident A
(i.e. kiss in hallway) were not based on substantial evidence. On the other hand, because
Incident B (numerous requests for kisses in exchange to leave work early) was supported by the
direct testimony of another witness the Boards decision on that incident was supported by
substantial evidence.
B. Reasoning. (1) Incident A - The Board gave no reason for denying Jacksons testimony and
believing the testimony of Ms. LaSalle. (2) Incident B the presiding officer ignored the
witness of the testimony. The Boards weighing of the evidence, in this instance, was more
complete.
b. Mixed Questions Of Law And Fact The substantial evidence standard governs disputes concerning
facts found by the agency. A different standard for questions of law exists. Section 706 authorizes a
court to hold unlawful and set aside agency action that is unconstitutional, in excess of statutory right,
or otherwise not in accordance with law.
National Labor Relations Board v. Hearst. If a Boards determination involves both issues of law
and fact that determination will be accepted as long as it has warrant in the record (i.e.
substantial evidence) and a reasonable basis in law.
A. Holding. The Court sustained the Boards finding that newsboys are employees.
B. Reasoning. (1) Congress did not intend the term employee under the Wagner Act to be as
narrow as the common law definition of employee. Congress focused on the economic
relationships in employment which can include a broad range of individuals (such as
independent contractors). (2) The definition of employee should not be determined by the
courts, but by the agency created by Congress to administer the act. (3) If the Boards findings
are supported by the record, it is not the courts function to substitute its own inferences of fact
for the Boards.
C. Analysis.
a. Question of fact does the record support the NLRBs conclusions for the working
conditions of newsboys. (substantial evidence)
b. Question of law under the terms of the NLRA, what is the definition of employee?
(Chevron)
c. Mixed questions of law and fact are Newsboys EEs under the NLRA? (substantial
evidence)
Evening Star Newspaper Company v. Kemp The decision in this case had warrant in the record
and a reasonable basis in the law, and thus, was upheld.
A. Holding. The decision should be upheld because the ALJs finding of fact/law was supported by
substantial evidence in the record and was not inconsistent with the law.
B. Reasoning. (1) There is strong legislative and judicial policy favoring awards in workmens
compensation cases. (2) If an employer gives employees free time while they are still on the
clock any accident resulting therefrom should be considered as sustained in the course and
arising out of employment. This will hold true unless the activity is totally unreasonable that it
severs the employees connection with the employer.
Durrah v. Washington Metropolitan Area Transit Authority The decision did not have warrant in
the record or a reasonable basis in the law.
A. Holding. Reversed the Boards decisions and remanded.
B. Reasoning. (1) It is not necessary that the employee be engaged at the time of the injury in
activity of benefit to his employer. All that is required is that the obligations and conditions of
employment create the zone of special danger out of which the injury arose. (2) Durrahs
injury would have been unquestionably covered if it werent for the breaking of the work rule
but it was unclear by the ALJs findings just how the breaking of the work rule completely
severed him from the service of his employer. The asserted violation did not place Durrah in the
path of new risks, nor did it alter the time, place, and manner in which Durrah would have been
injured if he would have complied with the rule by obtaining a substitute.
C. Analysis.
a. Questions of fact He did not check out of the post. He was on WAMATAs premises.
b. Question of law does contravening the policies of employment necessarily mean that
you are outside the scope of employment under the Act.
c. Mixed Questions of Law and Fact Did Durrahs actions violate the Workers
Compensation Act.
c. Informal Adjudication Arbitrary and Capricious Review. When an agency engages in informal
adjudication, 706 (2)(F) allows a court to overturn an agency decision if it is unwarranted by the
facts to the extent that the facts are subject to trial de novo by the reviewing court. Courts require
an agency to provide for adequate reasons explaining their decision.
Citizens to Preserve Overton Park v. Volpe The arbitrary and capricious standard applies to the
review of informal adjudication. A court must consider whether the decision was based on a
consideration of the relevant factors and whether there has been a clear error of judgment. This case
initiated the concept of record for an informal agency proceeding.
Three Step Process for Substantial Inquiry:
1. Did the party act within his/her/its scope of authority?
2. Did the party make a choice that was not arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law?
o Was the decision based on the relevant factors or has there been a clear error
of judgment?
3. Did the partys action follow the necessary procedural requirements?
A. Holding. (1) The Secretarys decision to allow the highway should be judged under the
arbitrary and capricious standard of review (706 (2)(A)) which should be used for informal
adjudication. (i.e. did the Secretary reasonably believe that no feasible or alternative route
existed and minimized harm as much as possible.) (2) To judge the Secretarys decision,
there must be some type of record on which he made his decision. (There wasnt in this
case)
B. Reasoning. (1) Although the decision in this case does not have to meet the substantial
evidence test - the generally applicable standards of Section 706 require the reviewing court
to engage in a substantial inquiry. (2) There was no hearing on the record the only hearing
that was required was a public hearing and this implies speeches, rather than examination.
(3) There must be some type of record for Secretarys decisions to see how he relied upon
that information.
C. Application of Test. (1) In this case, the reviewing court must be able to find that the
Secretary reasonably believed that no feasible alternative existed and that harm was
minimized as much as possible. (3) The absence of factual findings does not necessarily
require the case be remanded.
Yepes-Prado v. U.S. I mmigration and Naturalization A Decisionmaker must offer a reasoned
explanation indicate how it weighed the factors involved and how it arrived at its conclusion.
A. Holding. In this case, the IJ did not offer a reasoned explanation of why the one drug conviction
outweighed all of the equities in YPs favor. He abused his discretion by failing to offer an
explanation.
B. Reasoning. Without a reasoned explanation, a reviewing court cannot know whether the
Decisionmaker abused its discretion.

Davila-Bardales v. I mmigration and Naturalization Service This case applies the arbitrary and
capricious standard to formal adjudication.
A. Holding. The agency had acted in an arbitrary and capricious manner.
B. Reasoning. It intended to enact a policy that looked disfavorably at evidence admitted
by those under the age of 16. They did not follow this procedure while adjudicating.






CHOICE OF ADJUDICATION, LEGISLATIVE RULES, AND NONLEGISLATIVE RULES
1. OPTION #1: ADJUDICATION
a. Advantages and Disadvantages.
i. Advantages.
ii. Disadvantages.
b. Legal Constraints.
National Labor Relations Board v. Bell Aerospace Company Division of Textron, I nc. If an
agency has both rulemaking and adjudicatory authority, the decision to use rulemaking or
adjudication lies primarily with the informed discretion of that agency.
A. Holding. The NLRAs choice to use adjudication rather than rulemaking was valid.
B. Reasoning. (1) The agency can essentially promulgate a rule through an adjudicative
proceeding. (SEC v. Chenery Corp.) (NLRB v. Wyman Gordan Co.). (2) Although there may be
situations where the Boards reliance on an adjudication would amount to an abuse of discretion
or a violation of the Act this is not a case. This isnt about some new liability, or fines or
damages.
Retail, Wholesale and Department Store Union v. National Labor Relations Board Retroactive
force to an agency policy will be denied if the court determines that the inequality of retroactive
application is not balanced by sufficient, significant statutory interests.
Balancing Test.
i. Whether the particular case is one of first impression.
ii. Whether the new rule represents an abrupt departure from well established practice or
merely attempts to fill a void in an unsettled area of law
iii. The extent to which the party has relied on the former rule? CHECK
iv. The degree of the burden which a retroactive order imposes on a party.
v. The statutory interest in applying a new rule despite the reliance of a party on the old
standard.
A. Holding. The Court declined to give retroactive effect to the policy
B. Reasoning. (1) Retroactivity must be balanced against the mischief of producing a result which
is contrary to a statutory design or to legal and equitable principles. If that mischief is greater
than the ill effect of the retroactive application of a new standard, it is not the type of
retroactivity which is condemned by law.
C. Application. See factors on bottom of 318-319.

2. OPTION #2: RULEMAKING. Rulemaking can be enforced through adjudication. Congress alone
can give an agency the authority to make legislative rules. Enforcement of a rule is distinguished from
adjudication because a person does not have the ability to call on witnesses in rule enforcement.
Further, an agency can curtail a partys right to full adjudication even if Congress granted that right.
a. Retroactive Rulemaking. Agencies need an express grant by Congress to have the authority to
make retroactive rules.
i. Addison v. Holly Hill Fruit Products the particular regulatory definition of area of
production, for the purpose of exempting certain food processors from the wage and
hour laws of the Fair Labor Standards Act was beyond the Administrators statutory
authority.
ii. Bowen v. Georgetown University Hospital the Secretary promulgated a new rule
retroactively, in effect, making it as if the original rule had never been set aside by the
courts. The rule was struck down.
b. Ambiguous Rules. An agency can adopt rules that may be ambiguous or unclear. If a party
brings an enforcement action in court, the court will interpret the meaning and may give
deference to the agency. However, if the enforcement occurs in an agency adjudication, the
agency will interpret it.

General Electric Company v. U.S. Environmental Protection Agency If an agency interpretation
is not ascertainably certain from the regulations, the regulated party will not be liable for any
violations.
Ascertainable Certainty Test: Has the regulated party received, or should have received,
notice of the agencys interpretation by reading the regulations? If the party has an
ascertainable certainty of what the agency expects of regulated parties the party has been
fairly notified.
A. Holding. The agencys interpretation is not ascertainably certain" from the regulations,
thus GEs liability and fine are set aside.
B. Reasoning. (1) The EPA interpretation is permissible, but did not provide GE with fair
warning/notice an agency must provide pre-enforcement warning of interpretation. (2) The
regulations call for distillation. The EPA interpreted this to mean disposal this strays
far from the common understanding of the word and is not reasonably comprehensible to
people of good faith. (3) The regulations also apparently permit distillation and do not bar it.
C. 328-336, 339-350

3. OPTION #3: NONLEGISLATIVE RULES. An agency pronouncement that advises the public of the
agencys view on an issue but is not legally binding on third parties thus, nonlegislative rules are
exempt from the requirement of notice and comment and an agency does not need the express authority
from Congress to enact them. This fits into the APA definition of rule under 551 (4), but is
distinguished from legislative rules which have a binding effect and require a notice and comment
period. 553 identifies two types of nonlegislative rules: (1) interpretive rules and (2) general
statements of policy. A party might challenge a nonlegislative rule on the ground that the
pronouncement is really a legislative rule.
a. Overview.
i. Advantages & Disadvantages.
ii. FOIA Requirement publish nonlegislative rule in federal register.

b. Distinguishing Nonlegislative from Legislative Rules.
Binding Effect Test Does the statement of the agency impose a new duty OR
does it merely announce the intention to impose a new duty at a future time? (i.e.
must v. should).
American Hospital Association v. Bowen If a statement does not have a binding effect, it
will be considered a nonlegislative rule.
A. Holding. The RFP is a nonbinding statement of policy exempt from notice and comment
requirements.
B. Reasoning. (1) The RFP binds neither the agency nor the PROs to whom it is sent. It
simply establishes taking points and provides a foundation on which the agency and the
would-be PRO can negotiate. (2) The RFP neither has a present effect nor does it
prevent future exercises of discretion on the part of agency decision-making. (3) Final
PRO contracts have been known to differ from the RFP.

c. Policy Statement. Issued by an agency to advise the public prospectively of the manner in which
the agency proposes to exercise a discretionary power in subsequent adjudication or rulemaking.

d. Interpretive Rules. Interpretive rules clarify the nature of the duties previously established by
an agencys statutory mandate or by a regulation promulgated by the agency. In an interpretive
rule, an agency announces how an existing law or statute is binding on those who are subject to
it.
i. An agency can enforce interpretive rules ONLY through (1) adjudication or (2)
rulemaking.
ii. If Congress has not granted an agency rulemaking power, and rule issued by the agency
is necessarily interpretative.
iii. If Congress has granted an agency rulemaking power, look to:
A. The agencys characterization of its actions.
B. The source of the duty a party is obligated to obey. (more important than first
factor). Look to the binding effect test.
American Mining Congress v. Mine Safety & Health Administration
A. Holding. The policy letter was an interpretive rule.
B. Reasoning. (1) Page 350 Factors. (2) The Part 50 regulations themselves require the
reporting not the PPL. There is no legislative gap that required the PPL as a predicate.
(3) The agency did not purport to act legislatively.

e. Legal Protection of Reliance on Nonlegislative Rules.
Alaska Professional Hunters Association, I nc. v. Federal Aviation Administration. An
alleged interpretation will require notice and comment rulemaking if it significantly
changes an old interpretation of an agency rule.
A. Holding. The Notice to Operators was invalid because it was published without notice
and comment and significantly changed an old interpretation of an agency rule.
B. Reasoning. (1) Once an agency gives its regulation an interpretation, it can only change
that interpretation as it would formally modify the regulation itself: through the process
of notice and comment rulemaking. (Paralyzed Veterans of America v. D.C. Arena).
The definition of rulemaking under the APA includes modifying a rule, not just
formulating a rule. (551 (5)). An new interpretation that significantly revises an old
interpretation is essentially an amendment to a rule something that requires notice and
comment. (2) Regulated entities are entitled to know the rules by which the game will
be played. (3) Even if the FAA believed that its Alaskan FAA officials had misread
Marshall, that does no justify making a significant change to a rule that the Alaskan
guides have been relying on for more than thirty years. The Alaskan guides were
justified in relying on the Alaskan FAA officials advice it was an authoritative
departmental interpretation. (4) This significant change requires input by the regulated
entity Alaska guides provide unique circumstances that need to be tailored to in FAA
regulations.
Metwest, I nc. v. Secretary An agency is not required to institute notice and comment
rulemaking before enforcing completely new standards because the agency does not
significantly change an original authoritative interpretation in doing so (i.e. there was
never any original interpretation to begin with).
A. Holding. OSHA was not required to engage in notice and comment rulemaking before
enforcing its 1991 regulations. There was never an original authoritative interpretation
that was significantly changed and the regulated entity did not detrimentally rely on that
interpretation.
B. Reasoning. (1) The agency never issued an interpretation that gave an express, direct,
and uniform interpretation of its 1991 regulation to allow the use of re-useable blood
tube holders in all situations it merely stated that they may be used in some
circumstances. The interpretation by the agency in this case was not as clear as it was in
Alaska Professional Hunters. (2) This interpretation did not significantly revise a
previous authoritative interpretation. This case is not like Alaska Professional Hunters
where the regulated entities substantially and justifiably relied on a well-established
agency interpretation. OSHA never established an authoritative interpretation that
MetWest detrimentally relied upon. It is completely feasible for MetWest to comply with
OSHAs interpretation 400 of MetWests patient service centers employ the single-use
holders.
Heckler v. Community Health Service Estoppel cannot be used.
A. Holding. The government cannot be estopped because the regulated entity did not suffer
a severe enough detriment nor was it treated in such an unfair way.
B. Reasoning. The traditional elements of estoppel are not present in this case and
estoppel (traditionally) has not applied to government action. (a) The health care
provider did not lose any rights, but merely as induced to do something that could be
corrected at a later time. Although the provider will be adversely effected there was no
finding of the extend to the effect of having to make the repayment. (b) As a participant
in the Medicare program, the provider had a duty to familiarize itself with the legal
requirements for cost reimbursement. (c) The provider only received oral advice from
Travelers written evidence is required. (d) The provider was put on ample notice of the
care with which its costs reports must be prepared yet the provider prepared these
statements based on the oral advice of travelers. This is not the kind of reliance that
would give rise to an estoppel against a private party.
Office of Personnel Management v. Richmond Estoppel may not be applied to the
government in an action where a government employee gave wrongful advice to a citizen
and that advice disadvantaged the citizen but if estoppel were enforced, the government
would be forced to take an action not authorized by law, even
A. Holding. The Federal government may not make payments not authorized by statute
regardless of the advice given by a government employee to a benefits claimant.
B. Reasoning. (1) There may be a case where estoppel can be applied to government
action but this is not one. (2) The operation of estoppel against the government in
the context of payment of money from the Treasury could render the Appropriations
Clause useless this Clause provides that no payments can be made by the treasury
unless authorized by statute. By allowing estoppel in cases where an employee
misadvised a citizen this control of public funds would be given to the executive.
Congress has always been in charge of government funds.

4. JUDICIAL DEFERENCE AND AGENCY CHOICE OF PROCEDURES


United States v. Mead Corporation Chevron deference should not apply to agency classification
decisions.
A. Holding. 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." In this case, Chevron deference should
not apply. The court remanded to decide whether Skidmore deference should apply.
B. Reasoning. Recognizing that thousands of tariff decisions are issued each year by the 46
regional offices of the U.S. Customs Service, and that each decision has no
precedential value, the court determined that the Chevron Doctrine should not apply. The
Customs classifications rulings should not get Chevron deference, but are best treated like
interpretation contained in policy statements, agency manuals and enforcement guidelines.
They are beyond the Chevron pale.
Barnhart v. Walton
A. Holding.
B. Reasoning. Some rules promulgated without notice-and-comment procedures could receive
Chevron deference. There are several rationales favoring Chevron deference for the agencys
initial interpretation, including:
a. the interstitial nature of the legal question,
b. the related expertise of the Agency,
c. the importance of the question to administration of the statute,
d. the complexity of that administration, and
e. the careful consideration the Agency has given the question over a long period of
time.


















































REVIEWABILITY
1. STANDING
Has the plaintiff suffered an injury caused by the alleged illegal action, and would a favorable
court decision remedy (or avoid) that injury?
a. Injury in Fact. This will satisfy the standing requirement. If government action or inaction injures a
third party in some real fashion, then the person has suffered a sufficient injury for standing
purposes.
A. Generalized grievances, rather than actual, particularized injuries, will not satisfy standing.
B. Associational or representational standing. An association (i.e. public interest group or
environmental groups, etc.) can sue in its own name on behalf of its members if (1) one of its
members would have standing to bring the action, (2) the lawsuit relates to the purposes of
the organization, and (3) neither the claim asserted nor the relief requested requires
participation of individual members.
b. Causation and Redressability. The injury must be a result of government action and a favorable
court decision would remedy that injury.
c. Prudential Requirements. The plaintiff cannot assert the rights of a third person. APA 702
delimits this prudential requirement by granting a COA to a potential plaintiff who is claiming the
rights of a third person all that is required under this section is that the plaintiff is suffering a legal
wrong because of agency action.
d. Statutory grant of jurisdiction. Even if the plaintiff has standing, there must still be a statutory
grant of power. For administrative law, this is typically not an issue. The APA itself does not grant
jurisdiction.
Lujan v. Defenders of Wildlife Congress does not have the unlimited power to confer standing on
individuals who do not meet the constitutional requirements of injury-in-fact, causal connection, and
redressability.
A. Holding. Maybe if the Ps had purchased tickets to visit the area at a definite point in the future.
Otherwise there harm is just too speculative.
B. Reasoning. To establish standing, a plaintiff must show the three constitutional minimal
requirements of Article IIIs case and controversy: (1) Injury in fact (Concrete legally protected
interest & Actual/imminent), (2) Causation (fairly traceable), (3) Redressability (favorable
decision, look to case law). A speculative injury does not qualify as an injury in fact. A plaintiff
must allege that the government acted illegally, causing an injury which constitutional law will
recognize, and asking for appropriate redress for that injury.
C. The Implications of Lujan: BEFORE Lujan, Congress had the UNLIMITED power to create
standing even for insufficient injuries. Congress could confer standing by defining injuries and
articulating chains of causation that would give rise to a case or controversy where none existed
before by statute. AFTER Lujan, Congress does not have the unlimited power to confer standing on
individuals who do not meet the constitutional requirements of injury-in-fact, causal connection, and
redressability. There are certain types of injuries that are too insufficient to allow Congress to create
standing.
Massachusetts v. Environmental Protection Agency A state can have standing. [Outlier case]
A. Holding. The petitioners have standing. The Court found the current rationale for not regulating
to be inadequate and required the agency to articulate a reasonable basis in order to avoid
regulation.
B. Reasoning. The case has been argued largely as if it were one between two private parties; but
it is not. The very elements that would be relied upon in a suit between fellow-citizens as a
ground for equitable relief are wanting here. (A) Although, the State owns very little of the
territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at
least, is small. This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that
capacity the State has an interest independent of and behind the titles of its citizens, in all the
earth and air within its domain. It has the last word as to whether its mountains shall be stripped
of their forests and its inhabitants shall breathe pure air. (B) The CAA gives the EPA the
authority to regulate tailpipe emissions of greenhouse gases. The CAA provides. The CAA
defines "air pollutant" as "any air pollution agent or combination of such agents, including any
physical, chemical, biological, radioactive . . . substance or matter which is emitted into or
otherwise enters the ambient air".

"[G]reenhouse gases fit well within the CAAs capacious
definition of air pollutant." (C) Finally, the Court remanded the case to the EPA, requiring the
agency to review its contention that it has discretion in regulating carbon dioxide and other
greenhouse gas emissions.
Summers v. Earth I sland I nstitute This case tightens up Massachusetts v. EPA.
A. Holding. The plaintiffs lack constitutional standing.
B. Reasoning. (1) The regulations under challenge neither require nor forbid any action on the part
of the respondents. They only govern the the conduct of Forest Service officials. The
regulations must actually affect the plaintiffs for them to have standing. (2) There is no
concrete or imminent harm here no injury in fact. One of the more specific cases were
already settled and remedied a party cant bring suit after their harm has been legitimately
remedied.
e. Standing in the states. The constitutional limitation of cases and controversies only applies to
federal judicial power (and hence, administrative law) but does not apply to the states. Most states
have their own rules of standing.

2. JURISDICTION. (Statutory Grant of Jurisdiction) To assess JX, look at the enabling act Congress
provides JX, not APA.

3. CAUSE OF ACTION. (1) Organic Statute provides for COA, (2) or APA Default COA. The plaintiff
must state a cause of action is the plaintiff citing a judicially enforceable right? (i.e. statute, constitution,
etc.) If the matter is not covered by statute, the APA provides a cause of action for anyone legally harmed
by agency action. (702).

I n order to assert a COA under the APA, a plaintiff must meet the following requirements:
a. The appeal must not be one that is excluded from review either by (1) statute or (2) the agency
action is committed to agency deference by law. (701 (a)). Sometimes the statute is unclear on
the issue.
b. The agency must have performed an agency action as defined under 551 (13). The whole or a
part of an agency rule, order, license, sanction, relief, or the equivalent denial thereof, or failure
to act.
c. The person must have suffered a legal wrong or was adversely affected or aggrieved within
the meaning of a relevant statute. Courts refer to the zone of interests requirement as an aspect
of standing.

a. Exclusions From Judicial Review Under The APA.
i. Statutory Preclusion. 701 (a)(1) of the APA makes clear that judicial review is not available
when statutes preclude judicial review or the agency action is committed to agency discretion by
law. These types of statutes are rare, but many statutes limit judicial review to certain
circumstances, rather than precluding it altogether. The courts tend to not interpret statutes as
precluding judicial review because (1) it would most likely be unconstitutional to preclude
constitutional claims, and (2) the APA provides a cause of action for any person harmed by
agency action. (Very rare courts generally do not limit judicial review)
Block v. Community Nutrition Institute [New test fairly discernible] If Congress intent to
preclude judicial review is fairly discernible from the Congressional intent/legislative
history/statutory scheme, then preclusion is warranted. Not a rigid evidentiary test, but a
reminder that a presumption for judicial review can be overcome by specific language and
legislative history.
A. Holding. Consumers could not obtain judicial review of such orders. Whether and to
what extent a particular statute precludes judicial review is determined not only from
its express language, but from the structure of its statutory scheme, its legislative
history, and the nature of the administrative action involved.
B. Reasoning. (1) It was clear from the Act that Congress did not intend to strip the
judiciary of all of its authority to review the Secretarys orders; but it was equally
clear that Congress did intend to limit the classes entitled to participate in the
development of market orders to only handlers and producers. (2) Implied
Preclusion: The structure of the Act implies that Congress intended to preclude
consumer challenges to the Secretarys market orders.
Abbott Laboratories v. Gardner [Old test clear and convincing] Only upon a showing of
Clear and Convincing Evidence of contrary legislative intent in the statute would judicial
review be precluded.
A. Holding. Pre-enforcement review was not prohibited in this case, even when the Act
specified specific types of review available and pre-enforcement was not included.
B. Reasoning. (1) Review provisions should be given a hospitable interpretation and
the courts will only restrict access to judicial review upon a showing of clear and
convincing evidence of a contrary legislative intent. (2) Just because Congress
enumerates a list of types of review available does not mean that review is actually
limited to those types. (3) The legislative history did not show any intention of
Congress to make the list exclusive to those types of review.

ii. Committed to Agency Discretion. Section 701 (a)(2) If an action is committed to agency
discretion by law (i.e. omits a standard under which to exercise discretion of agency) review
will be precluded. In other words, if a statute grants discretion to an agency, and the law omits a
standard under which to assess the exercise of that discretion, then Congress has committed that
action to agency discretion by law. (Very rare)
Citizens to Preserve Overton Park, I nc. v. Volpe. If there is no law to apply then the
action is committed to agency discretion. (i.e. no standard)
Webster v. DoeAn agency see will have broad discretion to take an action when it is
expressly committed to agency discretion ny statute.
A. Holding. (1) Judicial review under the APA is not permitted. The statute clearly
granted broad discretion to the Director. Congress intended to commit individual
employee discharges to the Directors discretion. (2) However, the respondent does
have a constitutional claim.
B. Reasoning. The APA cannot be read to preclude constitutional claim.
Heckler v. Chaney An agency's decision not to pursue an enforcement action (or
investigation) is presumptively unreviewable, as such actions are "committed to agency
discretion by law" under 701(a)(2) of the Administrative Procedure Act.
A. Holding. The agency did not need to take action.
B. Reasoning. (1) Such decisions are presumptively unreviewable under the
common law and it was Congress' intention under the APA to codify the
common law. (2) Three reasons why reviewing an agency's decision not to act is
unsuitable to judicial review: (a) Agency decisions whether to initiate
enforcement actions are usually based on a complicated balancing of multiple
factors, such as efficient allocation of limited resources, likelihood of success, and
the relationship of the potential action to the overall enforcement strategy of the
agency. The courts are ill-suited to performing such an analysis. (b) When an
agency chooses not to act, they are not exercising any coercive power over others
that might be worthy of heightened judicial protection. (c) The Court found an
agencys discretion not to seek enforcement as being analogous to exercises of
prosecutorial discretion that courts have traditionally been unwilling to review.
(3) The presumption of unreviewability is rebuttable where (a) an agency declines
to act based "solely" on its belief that it lacks jurisdiction, or (b) where an agency
"consciously and expressly" adopts a policy that is so extreme that it represents an
abdication of its statutory responsibilities.

b. Agency Action. A person suffering a legal wrong because of agency action or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review
thereof. (701)
Lujan v. National Wildlife Federation(U.S. 1990) An agency program is not an agency
action because it is not a specific or concrete agency act.
A. Holding. The land withdrawal review program is not agency action within the
meaning of 702 (or 701?), nor is it final agency action under 704.
B. Reasoning. (1) The program does not encompass a single agency action, regulation, or
order. The petitioners have referred to it as the continuing operations of the BLM in
reviewing the withdrawal revocation applications, the classifications of public lands, and
the developing of land use plans. (2) The individual actions identified by the petitioners
are also insufficient because they can be considered as rules of general applicability.
However, these actions are merely future actions that are not ripe yet they must have
some immediate harming affect and they do not.
Norton v. Southern Utah Wilderness Alliance (U.S. 2004) Although the APA states that a
person may challenge an agency's failure to act, the APA does not sanction judicial review of
agency inaction unless the action sought to be compelled is discrete agency action. There are
five general types of actions that would be reviewable: (1) An order, (2) a rule, (3) a license, (4)
a sanction, (5) or a grant of relief.
i. Holding. In this case, SUWA could not challenge the agency's failure to "act so as to
preserve the wilderness" in accordance with the statute. The discrete-action
limitation precludes a broad programmatic attack or a general complaint based on
policy differences.
ii. Reasoning. (1) The Act required BLM to undertake "supervision and monitoring"
which is none of those things. The Court found that the Act requires that BLM
achieve its objective, but does not mandate how that objective is to be achieve. It also
does not ban ORVs. Therefore BLM didn't fail to take a mandatory action, and their
decision is not judicially reviewable. (2) The Court found that unlike a specific
statutory command requiring an agency to promulgate a regulation by a certain date, a
land use plan is generally a statement of priorities. It guides and constrains action, but
does not prescribe them. Therefore it does not rise to the level of an action. The
Court found that "will do" projections of agency action set forth in land use plans are
not a legally binding commitment enforceable under 706(1).

c. Adverse Affect. An individual must be adversely affected within the meaning of a relevant statute
Use the zone of interests test: whether the adverse effect suffered by the plaintiff is within the
meaning of the relevant statute?
a. In order to have Standing under APA 702 plaintiffs must establish
i. Suffered a legal wrong because of the challenged agency action, OR
ii. Are adversely affected or aggrieved by agency action within the meaning of a relevant
statute: Two part Zone of I nterest Test
b. Zone of Interest Test (two part test)L Plaintiff must establish that the injury he complains of
falls within the zone of interests sought to be protected by the statutory provision whose
violation forms the legal basis of his complaint.
i. Part 1. What is the statutory interests protected by statute?
ii. Part 2. Are the plaintiffs interest among them?
Air Courier Conference of America v. American Postal Workers Union, AFL-CI O. Postal
employees were not in the zone of interest encompassed under the Postal Express Statutes
(looked at legislative history).
iii. Holding. The injury or adverse affect must fall within the zone of interests the
statutory provision is designed to protect. The postal employees are not within the
zone of interests of the PES and do not have standing to challenge the
suspension of the PES with respect to international re-mailing.
iv. Reasoning. (1) Congress intent in enacting the PES was to ensure the receipt of
necessary revenues for the Postal Service (i.e. faster mail than private industry
could provide, duty of government to serve rural areas); the Congressional
concern was not with the opportunities for postal workers. (2) The postal
monopoly exists to ensure that postal services will be provided to the citizenry at
large, not to secure employment for postal workers.
National Credit Union Administration v. First National Bank & Trust Co Enlarges the
concept of zone of interest. Liberal interpretation of the zone of interest is preferred to ensure
that there is judicial review of agency action and that agencies do not overreach their
authority.
A. Holding. Respondents have standing under the APA to seek review of the NCUA's
interpretation of disputed statute because their claim was within the "zone of interest"
of the statute.
B. Reasoning. This meant that, without legislation changing the language of the statute,
a broad order could have been issued enjoining the admission of members to any
federal occupational credit union who did not share the original single common bond
of occupation. All parties to the suit, however, asked the court to delay acting while
Congress considered legislation. Without legislation, it was feared that many of the
large credit unions already in existence would face the likelihood that their stream of
new members would slow to a trickle and, thus, their long term viability prospects
diminish.

d. Timing. (1) A party can obtain judicial review only of final agency actions unless Congress has
authorized review at an earlier stage. (2) A party may have to exhaust any administrative remedy as a
prerequisite to agency review. (3) A party can obtain judicial review of any agency action only if that
action is ripe for review.
a. Finality doctrine. 704. Only final agency action is reviewable. If a statute provides for
judicial review, then review proceeds pursuant to the statute (not the APA). If no specific
statutory provision for review exists, the agency action must be final and no other remedy can
exist for a party to proceed with review under the APA. (704) If the agency decision is not final,
the case will be dismissed for lack of subject matter jurisdiction.
i. Agency Actions Are Deemed Final When (Taylor Callahan)
1. They mark the consummation of the agencies decision process (i.e. they are not
interlocutory), AND
National Laundry v. Shultz Final
Taylor Callahan Coleman v. Dole Not Final
2. Action is one which rights or obligations have been determined or legal
consequences flow
Appalachian Power Company v. EPA & Bennett v. Spear (U.S. 1997)
ii. Direct or immediate effect To determine whether an agency action is final, ask
whether the agency has completed its decision making process and whether the result
of that process is one that will directly affect the parties? Franklin v. Massachusetts
(U.S. 1992)
iii. Elements That Demonstrate Finality. (from Abbot Labs and Taylor)
1. Whether the challenged action is a definitive statement of the agencys position
2. Whether the actions have the status of laws with penalties for noncompliance
3. Whether the impact on the plaintiff is direct and immediate
4. Whether immediate compliance was expected
Taylor-Callahan-Coleman Counties District Adult Probation Department v. Dole Applied
elements (from above) to determine that agency action was not final.
Test. In order for agency action to be final, (1) the action must mark the
consummation of the agencys decisionmaking process (i.e. not tentative or
interlocutory in nature), and (2) the action must be one in which rights or obligations
have been determine or from which legal consequences will flow.
A. Holding. The letters are not final agency action and, thus, the case is dismissed for
lack of subject matter jurisdiction.
B. Reasoning. (1) The three letters issued by DOL were limited to the factual situation
presented by the requesting party. They did not have a binding effect on employers
or employees. They served as merely guidance letters for DOL officials to use when
similar types of situations were presented to them. (2) This case is distinguished from
other cases because the letter involved was not one of general applicability nor did
it involve a letter that resulted in a big loss for union members who lost a chance
C. Holding. The Guidance letter is a final agency action that reflects the settled agency
position and has legal consequences for both State agencies administering their
permit programs and to compete without being remedied.
Appalachian Power Company v. Environmental Protection Agency Action is final when it
is one in which rights or obligations have been determined or legal consequences flow.
Although agency action was titled as policy statement it was final action which policy
statement flowed.
A. Holding. Policy statement was final agency action.
B. Reasoning. (1) Although the agency claims that the letter is solely a policy statement
and not an interpretive rule, the Guidance letter creates obligations. Its a letter based
upon a settled agency position, a position it plans to follow in reviewing permits, a
position it will insist local authorities comply with, and a position EPA officials are
bound to apply. (2) The fact that the Guidance may be altered does not mean that it is
not a final agency action. All laws are subject to change even the Constitution.
That doesnt mean that they are not binding.

b. Exhaustion of remedies. A party must exhaust all administrative remedies. A party could
potentially lose their chance to utilize all administrative remedies due to the lengthiness of a
court case (i.e. miss deadline to file agency appeal). A person need not appeal to the agency for
the agency action to be considered final, unless there is a statute requiring the appeal. I
i. Overarching Purpose of Exhaustion Doctrine.
ii. Common Law Exhaustion Doctrine. Requires plaintiffs to exhaust administrative
remedies before seeking judicial review by the courts. (see McCarthy exception)
McCarthy v. Madigan
Test Exhaustion not required where the Ps need for judicial review outweighs the
governments need for efficiency.
1. Prejudice (administrative remedy prejudices the court action).
2. Remedy sought is impossible to grant (where the remedy sought is not
possible by pursuit of the administrative remedy).
3. Bias of administrative process (so that recourse to the agency is
inappropriate)
A. Holding. Although the petitioner did not exhaust all the administrative remedies, he
was still entitled to a hearing in court based off the nature of his claims.
B. Reasoning. (1) Balancing Test. Given the type of claim raised and the particular
characteristics of the Bureaus grievance procedures, Petitioners interests
outweighed the countervailing institutions interests favoring exhaustion. Petitioner
did not have to exhaust his constitutional claim for money damages. (2)
Congressional Intent. Turning to congressional intent, Congress neither enacted nor
mandated the general grievance procedure promulgated by the Bureau. Further, the
grievance procedure did not include any monetary relief.
iii. APA Exhaustion Doctrine. 704 of the APA explicitly requires exhaustion of all intra-
agency appeals that are mandated by either (1) statute OR (2) agency rule requiring
exhaustion and the agency provides an automatic stay pending appeal. (Darby v.
Cisneros) (Exceptions If the statute does not require exhaustion (or is silent as to
exhaustion), or if the agency regulations do not require exhaustion, or there is no stay
provided, plaintiffs can immediately seek judicial review.)
Darby v. Cisneros Exhaustion is required for all intra-agency appeals that require
exhaustion by either (1) statute OR (2) agency rule requiring exhaustion and the
agency provides an automatic stay pending appeal. 704 constitutes a statutory
exhaustion provision that substitutes the common law doctrine.
A. Holding. Federal courts cannot require exhaustion of administrative remedies
unless mandated by statute or agency rules. In other words where the APA
applies, an appeal to superior agency authority is a prerequisite to judicial
review only when expressly required by statute or when an agency rule requires
appeal before review and the administrative action is made inoperative pending
that review.
B. Reasoning. The finality requirement is concerned with whether the initial
decision maker has arrived at a definitive position on the issue that inflicts an
actual, concrete injury; the exhaustion requirement generally refers to
administrative and judicial procedures by which an injured party may seek
review of an adverse decision and obtain a remedy if the decision is found to be
unlawful or otherwise inappropriate.

c. Ripeness. Judicial review is only permitted if that action is ripe (meaning that it is the correct
time to hear the case). It is not an APA requirement it is a common law jurisdictional question
and applies to all federal court cases. Therefore it applies to all cases. It looks to the proper
time for a court to review the agency action. Abbott Labs is the leading case on ripeness. (Note:
Generally rules that require immediate enforcement w/threat of fines or penalties will be ripe
under Abbott Labs. However Conditional legislative rules will not be ripe in a pre-enforcement
context under Toilet goods.)
Multi-Factor Test:
1. Issues fit for judicial decision? (Abbot Labs v. Gardner)
a. Nature of claims legal or factual? (Abbot Labs/Ohio Forestry)
b. Final agency action? (Abbot Labs)
c. Is the record complete? (what was the meaning of the statute, what did
congress intend)?
2. Would parties suffer hardship if the court withheld review? (Toilet Goods/Abbott
Labs)
a. Would judicial intervention inappropriately interfere with future agency
action? (Ohio Forestry)

Abbot Laboratories v. Gardner ( U.S. 1967) - Drug companies were not prohibited by the
ripeness doctrine from challenging an FDA regulation requiring a prescription drug's generic
name to appear on all related printed materials. The government argued that the case was not
ripe because the regulation had yet to be enforced; however, that argument failed as the Court
found the issues to be fit for judicial resolution, and that the drug companies would
experience substantial hardship if denied a pre-enforcement challenge to the statute.
Ohio Forestry Association, I nc. v. Sierra Club Established factor of whether Judicial
Intervention would inappropriately interfere with administrative action.
A. Holding. The suit was not ripe for review. The considerations for ripeness are (1)
whether delayed review would cause hardship to the plaintiffs; (2) whether judicial
intervention would inappropriately interfere with further administrative action; and
(3) whether the courts would benefit from further factual determination of the issues
presented.
B. Reasoning. To withhold judicial consideration at that stage would not cause the
parties significant hardship, as the Plan did not even confer the right to cut any
trees. From the agencys perspective, judicial review at that stage would hinder its
ability to refine its policies through revision of the Plan or application of the Plan in
practice. Review of Sierra Clubs claims at that stage would have required time-
consuming judicial consideration of the details of an elaborate plan, without the
benefit that a particular logging proposal could provide. Congress did not provide for
pre-implementation judicial review of forest plans.





































DELEGATION OF LEGISLATIVE AUTHORITY AND LEGISLATIVE VETOES
A. Delegation of Legislative Power. All Agency Action must fall within the statutory grant of rulemaking
power provided by congress. The constitutional Delegation Doctrine gives Congress the authority to
delegate broad quasi-legislative and quasi-judicial power as long as it gives an agency an I ntelligible
Principlein exercising that power.
B. Modern Application Intelligible principle test (Modern application): Congress does not violate
the prohibition against delegating its legislative powers as long as it sets the boundaries of the agency.
Meaning that a agency may make legislative like policy decisions so long as they are within the
overarching principle defined by congress in its enabling statute. If however the delegation is broad and
ambiguous, it may not offer sufficient guidance to the courts concerning the extent of the agencys
authority to promulgate rules.
C. Historical Application
a. 1
st
Phase. Modern Precedent avoid invalidation.
b. 2
nd
Phase. New Deal struck down delegation to the president for failure to give an intelligible
principle. The New Deal Courts Interpretation of the Intelligible Principle Test:
i. Specific Limits: Needs to be specific. Supreme Court Struck down the National Industrial
Recovery Act in the 1930s which was intended to encourage fair competition. The
Court rejected the delegation of authority to the executive stating that it supplied no
standards for any trade, industry, or agency.
ii. Adversarial Procedures: When a delegation is made through adversarial procedures such
as a hearing and findings of fact
iii. Private persons: Delegation cannot be provided to private persons.
3
rd
Phase. Whitman v. American Trucking Association, Inc. sliding scale for guidance it can
be broad. (avoided invalidation)
iv. Liberal Application of the Intelligible Principle. This shift has caused the federal to grow
dramatically.
v. Intelligable Principal Test can be Very borad?
vi. Whitman v. American Trucking Associations, Inc.
D. Delegation of the Legislative Veto [Unconstitutional -1983]: Today the legislative veto is
unconstitutional. Congress used to be able to delegate authority to the executive and then veto rules or
orders within the statutes.
I mmigration and Naturalization Service v. Chadha Rules the Legislative Veto Unconstitutional.
A. Holding. Determined that the legislative veto in section 224 of the Immigration Act was
unconstitutional. The Supreme Court stated that the part could not be severed or separated, thus
the entire section was unconstitutional, despite the immigration statute having a severability
clause.
B. Reasoning. (1) Legislative vetoes have the effect of law - violating bicameralism and
presentment requirements. Every bill or resolution out of congress must pass both houses and
be signed by the president (2) House Action altered rights, thus it was legislative in effect.
E. Line Item Veto Act [Unconstitutional]:Congress enacted the Line Item Veto Act to Authorize the
President to cancel individual spending items contained in congressional appropriation acts. The statute
was enacted in hopes of balancing budgets.
Clinton v. City of New York Rules the Line Item Veto Unconstitutional.









INSPECTIONS AND SEARCHES AND RECORDKEEPING AND REPORTING REQUIREMENTS
Investigation. Agencies can determine whether someone may be in violation of an agency rule or legislative
mandate. This reflects the executive power of agencies. Some agencies have the authority to compel persons to
turn over information or to inspect property. Look to the organic act to determine what types of investigative
powers an agency has. (i.e. subpoena power, compel the filing of reports, inspect premises, etc.) Here are some
Lawyer Functions in Investigation.

1. Inspections. A number of agencies regularly inspect buildings and work sites.
Plain view Warrantless search Trinity. Will not violate
Fourth Amendment if its an
area thats open to the public.
(no warrant needed because
its not technically a search).

If an agency has a warrant to
search a particular area for a
particular purpose it may
issue fines for violations that
are in plain view. It must go
get another warrant.
Consent Warrantless search Will not violate Fourth
Amendment.
Pervasively Regulated
Industry
Warrantless search New York v. Burger
Emergency Warrantless search Immediate warrantless search
is okay if probable cause.
Reasonable under
Administrative Plan or
Scheme.
Warrant Camera; I n re Trinity
Employee Complaint (i.e.
Whistleblower)
Warrant I n re Trinity

a. Legal Authority to Inspect. (1) Agencies are granted the statutory authority to inspect and the
enabling act defines an agencys authority to inspect. Without the statutory authority to inspect,
an agency cannot do so. (2) The Fourth Amendment applies to agencies and prohibits
unreasonable searches and seizures.
Camera v. Municipal Court The Fourth Amendment applies to agency searches and
seizures, but has a lower standard of probable cause. There is no individualized suspicion
required to show probable cause, but it can be based off proof that the agency used
reasonable standards for inspections.
A. Holding. The agency was required to obtain a warrant to inspect the home (but only
because he refused first).
B. Reasoning. (1) These inspections are less intrusive on a persons privacy as they do
not search the person. (2) Long public and judicial acceptance of these types of
inspections. (3) As a practical matter, a warrant should be sough only after entry is
refused.
I n re Trinity I ndustries, I nc. (11
th
Cir. 1989) The warrant included a sworn affidavit
saying that Trinity had been selected on a neutral and specific criteria under the
administrative plan.
Two part test: (1) Neutral & specific criteria under the administrative plan is required to
obtain a warrant. (2) The business must have been chosen on the basis of that criteria.
Trinity I ndustries, I nc. v. OSHRC. An agency must stick to the confines of employee
complaint.
A. Holding. OSHA violated the 4
th
Amendment because it inspected areas of the
company that were outside the original employee complaint that was the basis of
the warrant.
B. Reasoning. OSHA exceeded the scope of the employees complaint. The warrant
should be limited to the area involving the complaint.
b. Exceptions to Fourth Amendment Requirement of Warrant. Three requirements for
warrantless search (from New York v. Burger):
a) Substantial governmental interest or purpose.
b) Necessary to further that purpose.
c) Terms of the statute must provide some protections to the owner of the business (i.e.
notice, limiting the scope of the search, limiting the discretion of the officer)
i. Emergencies (Michigan v. Tyler limited areas affected by emergency)
ii. Probable Cause, but limited to whatever the dangerous condition alleged (i.e. employee
complaint)
iii. See v. City of Seattle There is no warrant required in a pervasively regulated
industry to have a valid 4
th
Amendment search by an agency for inspections. (i.e. liquor
dealers, gun dealers, mining companies, etc.).

c. Remedies for Illegal Inspections. To the extent that officials enter a home or business without
authority, they may be liable in tort under state law (i.e. trespass). They might also be liable
under federal law. However, the exclusionary rule does not apply to administrative
inspections.
United States v. J anis (U.S. 1976): The exclusionary rule does not apply in civil cases. The
exclusionary rule under the Fourth Amendment exists to deter bad police conduct. (reflects
modern approach). Used balancing test: loss of valuable evidence v. police conduct.
I NS v. Lopez-Mendoza (U.S. 1984): The exclusionary rule does not apply in intra-agency
situations. The INS has its own protections for illegal immigrants. A person and their
identity are not suppressible evidence.
2. Recordkeeping and Reporting Requirements. Requirements are imposed by (1) regulations, (2)
census, and (3) statute. An agency has inherent reporting authority. However, an agency can only issue
a subpoena if it is expressly authorized by statute.
a. Subpoenas. Judicially enforced (traditionally enforced)
i. Types.
1. Subpoenas ad testificandum - requires a person to come and testify.
2. Subpoenas duces tecum - requires a person to come bring something with him
(i.e. documents)
ii. Subpoenas v. Reporting Requirements
iii. Options upon receipt. If party receives subpoena they have the following options:
i. Comply.
ii. Fight. Go to court and move to quash the subpoena, (not likely to win)
iii. Ignore it.
iv. Negotiate.
b. Fourth Amendment Limits. Administrative subpoenas are considered constructive searches
under the Fourth Amendment that is not as invasive as a normal search. Agencies are not
required to obtain a warrant or demonstrate probable cause to issue subpoenas. (Oklahoma Press
Publishing Co. v. Walling - (1) less invasive than normal searches (2) if required, would stop
investigation before it begins.)
TEST: A subpoena must be reasonable. A subpoena is reasonable if: (1) The
agency had the authority by statute to issue the subpoena, (2) it is not too indefinite or
overbroad, and (3) the materials sought are relevant. (courts rarely find that a
subpoena is unreasonable.) (United States v. Morton Salt)
Freese v. Federal Deposit I nsurance Corp. [outer limits] This subpoena was a fishing
expedition by the agency in hopes of finding some wrongdoing. This type of subpoena is
not protected under spirit or the letter of the Fourth Amendment.
Adams v. Federal Trade Commission (8
th
1961). [lawyer was too arrogant] The agency
issued too broad of a subpoena because the subpoena required to provide documents outside
of the period where the company was alleged to be engaging in price fixing. But the court
allowed the agency to limit the scope of the subpoena to the relevant time period.
c. Fifth Amendment. Government efforts to compel the disclosure of information is subject to the
Fifth Amendment. Applies to both criminal and civil (when information may incriminate them
in future criminal proceedings. Thus, the Fifth Amendment is only concerned with criminal
sanctions. There is a very limited protection of the Fifth Amendment with respect to subpoenas.
To compel a witness, you must give immunity to the witness.
Individual/Sole Proprietor
A. Required records no 5
th
Amendment right. (Shapiro) considered public
documents already available.
B. Already created no 5
th
Amendment right. (U.S v. Doe - 644) They do not have to
be produced and thus cannot mean self-incrimination. It is not compelling
testimony.
C. Act of Production (Doe) 5
th
Amendment right. You can claim Fifth Amendment
Protections under the Act of Production Doctrine when documents are prepared
voluntarily and where the mere act of producing the documents tend to incriminate a
person. (subpoena duces tecum)
Corp No 5
th
Amendment Protection (No personal privilege for corporation custodian.)
(Braswell)

Braswell v. United States (U.S. 1998) Subpoena upheld. The Fifth Amendment does not
protect corporations or custodians of documents for corporations. Custodians are not
protected in the production of documents either. A custodian holds the documents in a
representative and not personal capacity. The Fifth Amendment is a personal protection.
Smith v. Richert (did not do).





















PUBLIC ACCESS TO AGENCY PROCESSES: FREEDOM OF INFORMATION ACT (FOIA) AND
REVERSE FOIA SUITS.
1. The Freedom of Information Act (FOIA). upon any request for records which reasonably
describes such records and is made in accordance with published rules stating the time, place, fees (if
any), and procedures to be followed, shall make the records promptly available to any person. (Section
552 (a)(3)). Section 552 (b) lists specific exemptions. FOIA was created to make the government more
open but has largely been used by companies to scout out the competition.
a. FOIA Time Limits. An agency must respond to a request within 20 days and state whether it
will comply with the request. Government cannot comply with these requirements though. If
the agency denies the request, it must explain to the person why. A person who was denied can
seek judicial review. An agency must prioritize requests and must allow a person to narrow the
requests if necessary. (pg. 667)
b. FOIA Fees. FOIA costs more than was planned. Congress made amendments in 1986 to
recapture the costs of FOIA. Now agencies may charge fees to recover the direct costs of search,
duplication, and review associated with commercial requests.
c. Judicial Review Under FOIA. Under Section 552 (a)(4)(B) of FOIA establishes a de novo
standard of review, places a burden of proof on the agency, authorizes reasonable attorneys fees,
and all suits must be brought in the D.C. Circuit Court or the Federal District Courts.
d. The FOIA Request. Any person may submit a FOIA request. The person need not show any
need for the records. The purpose of the request is relevant to what fees will be charged.
i. Must reasonably describe the records sought. The request is strictly construed.
ii. An agency is not required to produce documents that do not exist.
iii. Judicially made law.
e. Personal v. Agency Records.
The Bureau of National Affairs, I nc. v. United States Department of J ustice. Personal
records, unlike agency records, are not subject to FOIA requests. This case defines how to
determine whether a document is an agency record subject to FOIA.
Courts should look to the following factors to determine whether a document is
considered an agency record: whether the document was (1) in the agencys control,
(2) generated within the agency, (3) placed into the agencys files, and (4) used by the
agency for any purpose.
A. Holding. (1) The "telephone message slips" were personal records on the
grounds that (a) they contained "no substantive information;" (b) they were not
used by anyone other than the person called; and (c) "there might be no way for
the official to segregate personal from business calls." (2) On the other hand, as
to Assistant Attorney General Baxter's "daily agendas," it concluded that they
were "agency records" because (a) they were "created for the express purpose of
facilitating the daily activities of the Antitrust Division;" (b) they were in fact
"circulated to the staff for a business purpose;" and (c) although they contained a
mix of personal and business references, any "purely personal matters" could
readily be segregated and protected as appropriate under the FOIA. Id. The
appointments calendar was a personal record because (a) They were not
distributed to anyone (unlike daily agenda); and created solely for Baxters Use.
(unlike daily agenda)
B. Reasoning. (1) FOIA does not define agency records.
f. Custody and Control.
United States Department of J ustice v. Tax Analysts
Two Pronged Test to Determine Whether Material Constitutes Agency
Records: (1) An agency must create or obtain the records and (2) must have them
in its possession because of the legitimate conduct of agency business.
A. Holding. See casebook.
B. Note. This coexists with four factor test from The Bureau of National Affairs, I nc.
g. FOIA Exemptions 9 categories. If a part of the document falls within the exemption the
agency must disclose anything that is reasonably segregable. construed narrowly.
i. Vaughn index- A Vaughn Index must: (1) identify each document withheld; (2) state
the statutory exemption claimed; and (3) explain how disclosure would damage the
interests protected by the claimed exemption." (Vaughn v. Rosen (D.C. Cir. 1973))
ii. Private Commercial or Trade Secret Information (Ex. 4). FOIA exempts (1) Trade
secrets (2) Commercial or financial information obtained by someone else that is
privileged. (3) Commercial or financial information obtained by someone else that is
confidential.
1. Trade Secrets are Exempt
2. Financial or Commercial if privileged OR confidential are exempt.
Confidential (no definition under FOIA)
a. Voluntary Information Critical Mass Energy Project v. Nuclear
Regulatory Commission Its confidential if the kind that would
customarily not be released to the public by the person from whom it was
obtained. Financial or commercial information provided to the
government on a voluntary basis is confidential for the purpose of
Exemption 4 if it is the kind that would customarily not be released to
the public by the person from whom it was obtained. National parks only
applies to information that government compels to be produced.
b. Compelled Information National Parks and Conservation Association
v. Morton Information is confidential (1) if disclosure would impair
governments getting information in future or (2) would cause substantial
harm to the competitive position of the person whom the information
was requested. The government was required to disclose the information
because it was compelled. The first prong was met and the court
remanded the case for the second prong.
2. Reverse FOIA Suits. A "reverse" FOIA action is one in which the "submitter of information -- usually
a corporation or other business entity" that has supplied an agency with "data on its policies, operations
or products -- seeks to prevent the agency that collected the information from revealing it to a third
party in response to the latter's FOIA request."


Chrysler Corporation v. Brown

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