Administrative Law Outline

1) Intro
a) Agency=authority of the US
i) can be 1 person, can exist within larger agency
ii) Cts decide what entities are agencies
iii) Cong has authority to create agencies under the necessary and proper clause.
iv) Creates agencies with an organic statute
v) APA regulates operations of many federal agencies (5 U.S.C.)
b) Agency structure
i) single-headed usually executive (head removable by pres); multi-member agency usually
independent (head removable with cause)accountability
c) Londoner v. City and County of Denver (1908)
2) Scope of Judicial Review
a) Review of the Facts
i) Substantial Evidence Test for Formal Proceedings
(1) 5 U.S.C. 706(2)(E)review of facts in formal proceedings: The reviewing court shall . . .
(2) hold unlawful and set aside agency action, findings, and conclusions found to be . . . (e)
unsupported by substantial evidence in a case subject to 556 & 557 of this title or
otherwise reviewed on the record of an agency hearing provided by statute . . . . Im making
the foregoing determinations, the court shall review the whole record or those parts of it cited
by a party, and due account shall be taken of the rule of prejudicial error.
(2) Universal Camera v. NLRB (1951)formal finding must be based on substantial evidence
now must look at record as a whole (including findings by ALJ, even if not adopted by Bd)
(3) Kimm v. Dept of Treasury (Fed Cir 1995)Kimm is ATF officer who droke kid to school in
gov vehicle in violation of code. ALJ rules for Kimm, Agency rules against. Fed Cir revs
and rules for Kimmsig, lots of deference to ALJ, and Bd needs to explain why it rejects
ALJs finding
(4) Laro v. NLRB (DC Ct Ap 1995) union cleaning case where Laro takes over and fires union
eees. ALJ finding adopted by Bd. Sig: when they adopt it the BoP stacks up. Ct ensures
that Bds reasons are reasonable though.
ii) Applying the Substantial Evidence Test to Findings of Fact in Informal Proceedings
(1) Assn of Data Processing Service Org v. Fed Reserve (DC Cir 1984)Subst ev=A&C,
organic statute must be explicit to change SoR from APA. Standard for formal/informal
procedures is reasonableness.
(2) Allentown (US 1998)NLRB rule, that eor must have good faith reasonable doubt about
eees support of union before polling, is upheld on A&C standard, but their finding that the
eor lacked gf reasonable doubt is reversed on SubstEv, but Scalia says they are the same
standard (reasonable jury) in dicta.
(3) Zurko (US 1999)Fed Cir must apply APAs Subs Ev SoR, b/c their precedent of using
clearly erroneous was not unambiguously recognized in law. But they may use their
expertise in scrutinizing the record for substantial evidence.
b) Review of the Law
i) APA 706(2)(C)Cts overturn agency action in excess of statutory jdxn, authority, or
limitations, or short of statutory right. (no SoR)
ii) Pre-Chevron
(1) Gray v. Powell (US 1941)(5 yrs pre-APA) Coal price stabilization Act, RR trying to get
exemption. Ct defers to DOIs interp of producer, affirms interp of sold after de novolike review.
(2) NLRB v. Hearst Publications (US 1944)newspaper wont bargain with newsboys union
Did Cong intend eee to be defined by CL (would make newsboys be indep Kors) or by

agency? Did agency correctly determine that newsboys are eees. Ct does de novo on Q1
purely legal question of whether CL defines eees. Says CL is unclear, so no. Q2 defer to
agencys expertise in its determination of factual issue.
(3) OLeary (US 1951)(APA now passed) Ct resolves the legal questiondont apply CL def
of scope of employment, all reasonable rescue attempts are in scope. What is reasonable is a
question of fact, leave this to agency (they say it was).
(4) RULE FROM GRAY, HEARST AND OLEARY: When the issue is one of pure
interpretation, the courts are at least as well situated as are the agencies to determine the
correct meaning of statutory terms, so agencies get no deference. When however, the issue is
one of law application, and one must determine whether an ambiguous statute should be
extended to cover a specific fact pattern, then the twin considerations of the twin
considerations of agency expertise and probably congressional intent justify giving agency
decisions of a level of deference comparable to the level afforded to agency factfinding.
(5) Packard Motor Car (US 1947)Ct determines that foremen are employees and can unionize
as a matter of law. Inconsistent with Hearstthey dont defer b/c this time they say its a
question of law. SIG: the law-fact distinction is untenable.
(6) Skidmore v. Swift (US 1944)
(a) Whether on call firefighters get overtime.
(b) When agency doesnt have authority to administer statute, but offers opinion, you defer to
the opinion to the extent that it is thorough, has valid reasoning, and is consistent
iii) The Chevron Doctrine
(1) Chevron (US 1984)
(a) Is agency def of pollution source valid?
(b) (1) Has Cong spoken? If so, thats the law. If the statute is silent or ambiguous on the
specific question, then as long as the agencys definition is reasonable, you defer. In
resolving step one, you use traditional tools of statutory construction (FN 9).
(c) Ct looked to the statute as a whole (not just the section in question), the legislative intent,
and the administrative history.
(d) Here, the term was ambiguous and the EPAs bubble concept was reasonable so its
upheld.
(e) At time it was not thought to change things, but DC Cir applied the strong interp
(2) INS v. Cardoza-Fonseca (US 1987)two standards for when AG is required to, or has
discretion to w/hold deportation of alien. BIA used stricter standard for discretionary , and
said that the two standards were the sameS. Ct. reversed. Majority (Stevens from
Chevron) engages in construction, but Scalias concurrence says that this approach
misinterprets Chevron: the language is clear, so that governs, no need to look at anything
elseand doesnt like implication that if Ct can infer meaning in an ambig statute, that would
trump an agencys reasonable interpretation.
(a) SIG: Ct didnt adopt hard interp of Chevron
(3) United Food (US 1987)S. Ct. declines to review agency dismissal of an action. Majority
relies on Cardoza-Fonsecas statutory construction to find that the is ambig; but Scalia (+4)
concur that the Ct is not deciding authoritatively, but is deferring, that they are not using trad
tools
(a) SIG: after this, hard Chevron interp adopted. Ppl believe Scalia when he says that
Cardoza-Fonseca did NOT remove purely legal questions from the Chevron two-step.
iv) The Applicability of Chevron
(1) Is Chevron the standard (who knows!?):
(2) Agency Interp of its own Regulations
(a) Seminole Rock (1945) and Auer (1997)an agency interpretation of its own regulation is
controlling unless it is plainly erroneous or inconsistent with regulation. Maybe greater

than Chevron deference for agency interp of ambig statutory terms (but either interp is
reasonable or not!).
(3) Constitutional Matters
(a) NO DEFERENCE
(4) Ct Opinions
(a) even if agency is entitled to deference in its interp of the statute or regulation that is at
issue in the decision, the Cts do not defer to the agencys interp of that opinion
(5) Legal Instruments (Ks, deeds, etc)
(a) No Chevron deference, but mixed results
(6) State Agencies
(a) even if interpreting federal law, they dont get Chevron deference
(7) Agency Interpretations of statutes which it DOESNT administer
(a) Chevron is only for an agencys construction of the statute which it administers
generally means the substantive provisions of the agencys organic statute.
(b) Wagner SeedEPA can order clean up. Amendment allows companies to recoup, but
agency interprets this to only apply to orders issues after is passed. DC Cir applies
Chevron deference, even though this is not the statute that the EPA administers
(c) Rapaport v. US Dept of Treasury (DC Cir 1995)When agency shares responsibility for
administering a statute with other agencies, the Ct reviews agency
determinations/interpretations de novo b/c dont want agencies filling in the gaps in an
inconsistent manner.
(d) There is a Circuit split!
(8) Procedural Provisions
(a) If there is ambiguity as to whether an agency must conduct formal/informal rulemaking
or adjudication, the DC Cir defers to an agencys reasonable interpretation. The S.Ct. has
not spoken directly on this though. Maybe its just for substantive law.
(b) Chemical Wasteland MngmtDC Cir applies Chevron to agencys resolution of
ambiguity
(c) Lynchberg CollegeOConnor applied Chevron deference to agency resolution of
procedural ambiguity, but she was not joined by other justicesthey reserved the
question.
(9) Criminal Statutes
(a) Cts do not defer to DOJ interps of federal criminal statutes. Rather, rule of lenity means
that cts defer to interpretations of criminal , rather than agency.
(10)
Opinion and Ruling Letters (and beyond!)
(a) Christiansen (US 2000)County wants to force sheriffs to take comp time, rather than
pay overtime. DoL writes opinion letter that you need their prior consent to do this, but
county ignores. S.Ct. says that county action is fine. (1) Opinion letters do not carry
legal force so receive Skidmore, rather than Chevron deference (and here its not
persuasive). (2) Statute is clear, so agency couldnt interpret it this way anyway. [Souter
Concur-- unclear, would be valid interp if formal procedure] [Scalia ConcurSkidmore
is dead; fails Chevron test b/c unreasonable interp] [Breyer Concurwould uphold
agency on Skidmore]
(b) Mead (US 2001)No Chevron def to interpretive rules.
(i) Customs ruling letter is an interpretive rule and so gets Skidmore deference.
Whether Chevron deference is afforded depends on an explicit or implicit delegation
of authority, and agency making rule in exercise of that authority, so more procedure
that Cong delegated is greater indicia of delegation.
v) Interpretation of Regulations
(1) Seminole Rock (US 1945)Ct defers to an agency interpretation of an ambig term in its own
regulation, even though that interp was not the product of N&C rulemaking. (Affd in Auer)

(2) Arizona Grocery (US 1932)agencies are bound by their own rules, and must interpret them
in a plausible way.
(3) So, Admin interpretation of its own regulation is binding on the Ct (Seminole Rock) and the
agency (AZ Grocery)
(4) Gonzales v. OR (US 2006)OR law allows Drs to prescribe drugs to terminally ill patients
for suicide. AG issues interp rule saying that suicide is not a legit purpose as reqd my
DOJ reg of CSA, and that AG will revoke registration of Drs who prescribe drugs for suicide
under public interest discretion. Ct says (1) no Auer deference b/c reg parrots statute, so
question is re meaning of statute. (2) No Chevron deference of term legit purpose because
he only has power to control by scheduling and only with N&C, and (3) No Chevron def of
interp of public interest b/c hes really criminalizing act, rather than just upholding pub
interest, and he shares power with Secretary. Not persuasive interp under Skidmore
deference.
vi) Chevron Step 1: Clarity Required to Avoid Deference
(1) Dole v. US Steelworkers (US 1990)OMB wanted less warnings on chemical under
paperwork reduction act. Ct says OMBs interp of a statute was outside of its authority b/c
(informational request) is clear and does not include warnings. Looks at these factors to
discern clarity of : (1) statutory language; (2) canons of construction (here, surrounding
words); (3) leg intent (policy); (4) leg history.
(2) Pauley v. Bethenergy Mines (US 1991) prohibits DOL from making reqs for Black Lung
benefits more stringentdoes that mean by looking at eligibility overall, or at criteria
individually? Ct defers b/c of this ambiguity and because the medical stuff is so complex.
(3) Brown & Williamson Tobacco (US 2000)FDA interprets tobacco to be a drug b/c addictive
qualities, so it can regulate it. Ct says term in ambiguous, but FDA interp on Chevron step 2
b/c if its unsafe it must be prohibited, and other s imply tobacco is legal. SIG: for important
issues, might be harder to show implied delegation, and look at body of legislation as a
cohesive whole.
vii) Subservient statute/Jdxn?
(1) MCI v. AT&T (US 1994)-- 203(a) requires communications common carriers to file tariffs
w/ FCC and 203(b) authorizes FCC to modify any requirement of 203. Issue is whether
FCCs decision to make tariff filing option for all non-dominant long-distance carriers is a
valid exercise of its modification authority. Modify is not unclearit means less change
than change which means you cant make basic and fundamental changes in legislative
scheme.
viii)
De minimis
(1) Public Citizen (DC Cir 1987)Act says that color additive may only be used after FDA finds
it is not found to induce cancer. FDA found de minimis exception, but Ct says the clause
explicitly lacks that exception.
ix) Retroactive regulations
(1) Bowen v. Gtown U Hospital (US 1988)Clear Statement rule, by which Cts read any
ambiguity in a statute/regulation against its retroactive application, supersedes Chevron
deference.
x) 1st Amendment/Doctrine of Constitutional Doubt
(1) DeBartolo v. Florida Gulf Coast Building (US 1988)illegal picketing raises 1st am
challenge. whenever there is a serious constitutional challenge, the Ct resolves any
ambiguity by in favor of the interpretation that avoids the constitutional issue, rather than
deferring and resolving whether that interpretation is constitutional.
c) Review of Policy
i) Standard of Review of policy is in 706(2)(a)A&C, abuse of discretion or otherwise not in
accordance with law.
ii) The Hard Look Doctrine

(1) Policy determinations may be the result of:

(a) interpreting an ambiguity in an express delegation (e.g. setting the exact number in a
range)
(b) combining policy and law (e.g. park service shall build a tall fenceagencys power to
decide how tall is implicitly delegated, and setting the height is a question of policy)
(c) deciding whether or not to act (e.g. agency determination on how to allocate its resources
is a policy question. Note that it is very difficult to challenge agency inaction, but when
you do its under the policy standard)
(2) American Petrol (US 1980) (aka The Benzene Case)know only that high levels of
benzenehealth effects, dont have facts re low level exposure, and the statute has opposing
platitudes. ???
(3) Ethyl Corp v. EPA (DC Cir 1979)EPA in charge of deciding how much lead is allowed in
gas. Majority upheld agency regulation under 706(2)(a). Wilkey Dissent: extensive analysis
of the evidence considered by evidence. Bazelon, Concur: strict Ct supervision of agency
procedure, shouldnt base decision on facts. Leventhal, Concur: moderately deferential (less
than review of decisions) but careful judicial scrutiny of agency decisions=looking at facts a
bit. NOTE: VT Yankee is a bit of a rebuke to Bazelons method.
(4) Reviewable aspects of a policy decision:
(a) outcome
(b) procedure
(c) process
(i) different from procedure in that you are ensuring not just that they had a hearing, but
that they are actually thinking (no N&C, then decide on astrological charts)
(ii) Greater Boston (DC Cir 1970)Leventhals Hard Look Doctrine!
(iii) Hodgson (DC Cir 1974)Asbestos regulations remanded b/c they didnt explain (1)
why the effective date couldnt vary by industry; and (2) why monitoring records
must be kept only 3 yrs.
(5) Motor Vehicle Manufacturers (US 1983)to rescind a rule, agency action must pass A&C
reviewmust justify its decisions. (1) A&C=looking at factors Cong doesnt allow, failing to
consider important aspects, or offering unreasonable explanation. Must consider at time of
decisionmaking, and must find a rational connection between facts found and policy chosen.
(6) Sun Oil (1st Cir 1993)EPA issues water pollution permits based on state (PR) certifications.
PRs didnt include mixing reference, EPA issued it, then PR wants to reexamine it, and EPA
denies. Ct says that its A&C for EPA not to reconsider (make an exception to their
procedural rules) since that will lead to the right decision. Remand for justification.
(7) FLRA (DC Cir 1993)agency is bound by its own precedent unless it can distinguish other
cases under traditional principles of common law interpretation.
iii) Applying the Hard Look Doctrine and Chevron Step 2
(1) debatescholars (Silberman v. Lawson) whether hard look = Chevron step 2, or whether
Chevron step 2 is distinct b/c it includes review of agencys legal interpretations, respectively.
(2) Center for Auto Safety v. FHA (DC Cir 1992)bridge inspection amendments remanded b/c
agency must set a max (cannot have indef # of extensions)sig, look at law only in step 1,
not step 2, and defer where absence of facts, where the agency complies with .
(3) US Telecom Assn v. FCC (DC Cir 2000)FCC required telecom companies to retain more
call ID info and the Ct remands b/c the FCCs definition of that term is unreasonably
inclusive AND its decisionmaking process (justifications) is inadequate. SIG Lawson wins
this round
(4) Bankers Life (7th Cir 1998)affirm tax regulation. analyzed leg his in step 2which bramy
says usually goes to whether is vague. SIG no uniform application of Chevron.
iv) The Scholarly Debate
(1) Richard Pierces article

(a) before Chevron, agencys were engaging in creative statutory interpretation. Cts
pretended that they can find out what Cong meant, but they didnt mean anything.
Chevron was responsive to thatleave ambiguities to agency!
(b) Its better to resolve policy issues as policy issues, rather than as legal issues. Agencies
are better at this than Cts.
(2) Scalia
(a) Rejects some arguments
(i) expertise
1. the question is not who has the best answer, its to whom the decision-making
power belongs!
(ii) separation of powers
1. its not inappropriate for Cts to engage in legal reasoningif Cong gave de novo
review in an organic we could do that. And Cts do policy reasoning all the time
(determine if the law is absurd
2. What matters is about Congressional intent!
3. Cong wants the agency to decide these thingsthey can control the agency, they
are more predictable
(3) Merrill
(a) APA says Cts shall decide all questions of law
(i) maybe there should be de novo on questions of law
(b) Chevron does not promote accountability
(i) most admin issues are small, so no accountability
3) Availability of Judicial Review
a) APA 701(a)
i) judicial review doesnt apply (only) to the extent that(1) statutes preclude judicial review; or
(2) agency action is committed to the agency discretion by law.
b) Express and Implied Preclusion
i) Generally
(1) There is a presumption of reviewability under the APA
(2) To defeat the presumption of judicial review, the Ct must find clear and convincing evidence
that Cong intended to preclude.
(3) There are 3 ways to defeat presumption of judicial review: (1) specific language; (2)
contemporaneous judicial construction followed by congressional acquiescence; (3)
inferences of intent drawn from the statutory scheme as a whole. (Block)
ii) Express
(1) Shaughnessy (US 1955)final deportation orders are the final administrative action, but the
language is not strong enough to preclude judicial review. SIG, after APA act passed, Cts are
more reluctant to read preclusion into the statute.
(2) Veterans Benefits cases
(a) Cong was trying to de-judicialize veterans benefits proceedings, wrote in statute
decision of benefits shall be final and conclusive and not other official or Ct of the US
shall have power or jdxn to review any such decision.
(b) Wellman (DC Cir 1958)Ct limits preclusive effect applies only to obtaining benefits,
not their termination. SIG: Ct creating distinctions that are not textually justified to
ensure judicial review. Cong amended law
(c) Johnson v. Robinson (US 1974)conscientious objectors dont get benefits. Ct found it
had jdxn over the challenge b/c of Constitutional doubt doctrine (even though was
clear).
(i) Jurisdiction StrippingIts never been resolved whether Cong can remove S.Ct.s
jdxn to review Const claims that arise in real cases.

(d) Traynor v. Turnage (US 1988)challenge that the regulation is inconsistent with the
statute can be brought. Chevron reviews of this nature might be Const protected.
iii) Partial (Express) Preclusion
(1) Weinberger (US 1975)-- precludes widows who were married to the deceased less than 9
mo, and their children, from even bringing an action (no action against the US shall be
brought to recover on any claim arising under the act). This is express partial preclusion b/c
is super clear and provides for constitutional challenges through another section.
(a) SIG: if there is one method of review, Ct will allow Cong to preclude another particular
method of review.
iv) Implied Preclusion
(1) Switchmens Union v. Natl Mediation Bd (US 1943)no judicial review of bargaining units
there is an implied preclusion b/c j.r. at this preliminary stage would cause the litigation to
go on indefinitely without ever reaching the merits. SIG: early case, was thought to be an
out-stander b/c context of unions during the new deal.
(2) Block v. Community Nutritional Inst (US 1984)price of milk market orders set by statutory
scheme which balances interests of milk handlers and farmers, in favor of farmers. Judicial
review of consumers claim is impliedly precluded b/c would interfere with complex and
delicate statutory scheme.
(3) Bowen v. MAFP (US 1986)medicarepart A: govt pays benefits & j.r.; part B: private
carriers supplemental coverage & fair hearing by carriers if dr challenges compensation. Dr
wants judicial review of private carriers determination of the compensation, but Ct says it
will ensure that the hearing is fair. Hearing, by allowing payment of different amounts for
similar services (pursuant to regulation) was not fair. Statutory scheme lets Ct look at
method, not merits, of hearing.
(a) SIG even under implied preclusion, you still allow challenges to validity determinations.
v) Policy
(1) Should Cts recognize the deals Cong makes with interest groups and incorporates into
statutes?
(a) Easterbrookdeals are part of Cong intent
(b) Other sideassume all leg was in general public interest
c) Decisions Committed to Agency Discretion by Law
i) Ways to Preclude
(1) 701(a)(1)statutes preclude judicial review
(a) Ways in which Cts get around express preclusion
(i) narrow construction
1. final deportation order preclusion (Shaughnessy)
2. preclusion of obtaining benefits preclusion of termination of benefits
(Wellman)
(ii) Constitutional issues
1. Const Doubt Doctrine (Robinson)
(iii) Validity v. Fact-based review
1. may challenge validity of regulation, if not the factual findings (Turnage)
(iv) Partial Preclusion
1. Cts will read more honestly if there is another means of getting judicial review
(Weinberger)
(b) Implied Preclusion Principles
(i) No review of preliminary decisions (Switchmens Union)
(ii) Ct looks rigorously at details of scheme and leg intent to see if Cong intended jud
review (Block)
1. similar to chevron, but for reviewability
(iii) Will imply preclusion of fact-based claims, but not of validity claims (Bowen)

ii) For an agencys discretionary decisions, do you review under abuse of discretion standard (706(2)
(A)) or is there NO judicial review at all of agency action committed to discretion by law (701(A)
(2))?
(1) Historical approaches
(a) Berger (1965)no j.r. of lawful exercise of discretion, but review unlawful use of
discretion
(i) BUT: does unlawful=abuse? Isnt this circular?
(b) Jaffeeall grants of discretion have limits, and we can only review discretion within the
range of reviewability
(i) BUT: where do you draw that line?
(c) Davisif discretion is committed to agency by law, then even if the agency abuses that
discretion, the Ct cannot review it b/c the preclusion trumps the abuse of discretion .
(i) this is closest to where we are today.
(2) Overton Park (US 1971)
(a) No law to apply standard
(b) Sec of Transport decision to build highway thru park is NOT committed to agency
discretion to lawthat exception is only for where there is no law to apply
(c) Problems
(i) there is always some law to applyimpracticable standard
(ii) if there is no law to apply, there can be no abuse of that discretionlimitless
discretion w/in that exception
(iii) If there was no law at all to guide the agency, there might be a non-delegation
problem
(3) Agency Inaction
(a) Heckler v. Cheney (1985)death row inmate petitions FDA to start enforcement
proceedings against prosecutors for using drugs for lethal injection (not safe and
effective). Presumption of unreviewability when agency fails to initiate enforcement
proceedings; presumption may be (but wasnt here) overcome by Cong intent to require
agency action.
(b) APA 706(1) gives cts authority to compel agency action unlawfully withheld or
unreasonable delayed; AND, 551(13) defines act to include omissions. Nonetheless
there is a lower standard of review.
(4) Discretion to Terminate
(a) Webster v. Doe (US 1988)gay spy fired. precludes JR, but Ct will hear Const issues
b/c no clear statement of preclusion.
(i) Is standard no law to apply from Overton Park, standard to measure discretion
from Overton, or Scalias interp of law in 701(a)(2) meaning C/L?
(5) Allocation of Agencys Resources
(a) Lincoln v. Vigil (US 1993)Agency allocation of lump sum appropriations are within
agency discretion, such that they are not subject to judicial review under APA 701(a)(2).
Souter backs away from the no law to apply standard; looks at policy and tradition and
(lack of) restrictions on agencys discretion to find no reviewability.
(6) SIG: no law to apply is not the law, now its a context sensitive inquiry (Lincoln and
Webster)
d) Standing
i) Generally
(1) Evolution
(a) must have an injury to sue (demurrer)
(2) Justification
(a) Separation of Powersjudges decide questions of individual rights, resolving real
claims. Broader policy issues are for Cong or Exec.

(b) Case and Controversy reqno advisory opinions

(c) Prevent Frivolous suits
(d) Vigor of litigation (argue better when you really care)
(e) manipulation of the path of decision-making
ii) The Constitutional Requirement
(1) Frothingham (1923)taxpayer has no standing in suit to enjoin federal spending on a welfare
program. (1) Generalized grievance, that is minute and uncertain; (2) policytoo many
suits; (3) Sep of Power.
(a) Ct never made clear whether this was a Cons or prudential decision
(2) Lujan (1992) Standing is a Const requirement; Cong cannot grant it where it does not exist.
have no standing b/c no injury in fact (dead crocs are not imminent) and not redressable
(joint regulation)
(a) 3-part test for Const standing
(i) injury in fact
1. invasion of a legally protected interest
a. concrete and particularized
b. actual or imminent
2. causal connection
a. injury caused by
3. redressability
a. must be likely that it can be fixed by judicial remedy
b. greater than half? as compared to speculative?
(3) Spears sue DOI for issuing license (safe harbor) to other agency to build irrigation
project (license that no harm to endangered fishes, s interest is economic in high water
levels). have standing b/c at complaint stage the burden is lower(1) although maybe
water levels wont drop, threat is enough for injury-in-fact; (2) although other agency must
act, causation is fairly traceable; (3) although other agency might act w/o license, is coercive
enough that revoking it is a remedy.
(4) Akinsgroup of voters has standing to sue FEC for not finding a group to be a political
committee (want disclosure of its info)standing b/c even though info is same for all
(general), they all have different reasons for caring about the info (particularized)
(5) Laidlaw (2000)Standing in citizen suit against polluter (even where river is not polluted)
b/c s enjoyment of affected area is lessened=injury in fact and civil
penalty=deterrence=redress.
iii) The Statutory Requirement
(1) Generally
(a) 702
(i) Right of review for a person suffering legal wrong b/c of agency action, or adversely
affected or aggrieved by agency action w/in the meaning of a relevant
(ii) Means agency must have violated your C/L rights, OR
1. (cant sue for lawful competition, even if competition results from unlawful act
e.g. competing store got land thru fraudno CoA)
(iii) adversely affected you under its organic
1. e.g. FCC wrongly grants license to 1 station, not 12 other valid applicantsthey
have no incentive to sue, but existing station does (prevent competition) but
under C/L has no standing. But under APA can sue b/c are adversely affected by
agencys action.
(b) Evolutionary Cases
(i) Kansas City (DC Cir 1955)narrow interp of legal harm didnt include
competition from unlawfully subsidized competitors.

(ii) Scenic Hudson Preservation Conf (2d Cir 1965)s had standing b/c even though
no legal harm had special reason to be concerned (trails might flood=economic
grievance)
(iii) United Church of Christ v. FCC (DC Cir 1966)s claim injury b/c FCC didnt
repeal license of racist station. STANDINGSIG: special review statutes
interpreted more broadly in incorporate different types on injury (ideological, noneconomic injury of not hearing both points of view)
(2) CampData Processors challenge Comptrollers finding that data processing is a bank
service. They have const and statutory standing. The Standard for Statutory Standing is:
whether the legal interest sought to be protected by is ARGUABLY within the ZONE OF
INTERESTS to be protected by the in question. Look to intent.
(3) Application of Camp
(a) Arnold Tours (US 1970)travel agents have standing to challenge Comptrollers ruling
that banks can provide travel services. SIG: a class of s can be w/in a s zone of
interests even if the class was not mentioned in the s legislative history.
(i) So, you look at intent of under Camp, but the group of need not be benefited by
the .
(b) Clarke (US 1987)grant standing to brokers who challenge Comptrollers decision to
allow natl bank branches to provide brokerage services. White expands upon zone of
interest test: is like injury in fact, limited only by a very broad zone of interests provided
in broad interp of relevant wants to make standing easy to achieve
(c) Air Carrier (1991)postal workers have no standing to challenge regulation allowing
private intl remailing b/c is to get govt $$, not to protect workers.
(i) SIG: May use other sections of statute only if they are nearby (Cf Clarke)
(ii) Inconsistent with Arnold Tours: Ct look in Leg history for Cong intent to protect
these s, and finding no evidence of that intent, said no standing!
(d) NCUA (1998)statutory standing for banks to challenge regulation that allows credit
unions to associate. Look to interests within the zone, and see if s interest align. Here,
banks interest in limiting the competition from credit unions is aligned with Congs intent
to limit competition
(i) SIG: look at interests rather than s
(ii) NOTE: irreconcilable with Air Carrier unless you can distinguish by saying this law
would more directly hurt competition, than the other would hurt the state postal
monopoly, but Ct doesnt say that.
e) Exhaustion
i) Generally
(1) 2 Types of Exhaustion
(a) exhaustion of procedure
(i) Con can require to exhaust claims in admin agency before receiving judicial
review
1. can require that you let them fix their mistake (deny motion for rehearing, or
dont act after 30 days) before you appeal in ct
(b) exhaustion of issues
(i) if you dont raise issues in rehearing, then youve waived the issue in the Cts
(ii) Hard to distinguish if this is a new issue (not allowed) or a new argument on a
preserved issue (allowed)
(2) If organic statute is silent on issue and procedural exhaustion, the APA and C/L govern
ii) Common Law/McCarthy
(1) MrCarthy (US)Prisoner didnt have to exhaust his claim to sue prison staff. Weigh
agencys interests in exhaustion with litigants particularized interests in avoiding exhaustion,

including risk of undue prejudice and agency competency. Here, the timetable was
unreasonable and the prisons couldnt grant $$ damages so litigants interests win out.
iii) APA
(1) 704agency determination that is otherwise final is final regardless of whether
reconsideration is sought, unless agency requires reconsideration by rule, and provides that in
the mean time the decision is inoperative.
(a) Ct interprets finality to mean exhaustion. The concepts are only distinct where you are
required to seek reconsideration.
(2) Remedy Exhaustion
(a) Darbyunless organic statute requires that you move for reconsideration of your final
determination, you can review it in the Cts under 702 & 704.
(3) Issue Exhaustion
(a) Simms (US)SS benefits denied, exhausted procedure but not issues. Ct says in this
case (not generally) you dont have to exhaust issues to get judicial review b/c not
adversarial and informal.
f) Finality
i) Standard Oil sues b/c FTC filed a complaint against them, when only allows this if FTC has
reason to believe bad actions. Ct says no review b/c not final. Not final b/c no legal
consequences or practical effects. SIG: only review final decisions, even where there are
statutory threshold reqs.
g) Ripeness
i) Abbotjudicial review of FDA regulation that would require drug companies to put generic
names of drugs on labels, even before enforcement proceedings. Review if: (1) legal question;
(2) direct effects; (3) s interests outweign govts
ii) Toilet Goods (US 1967)FDA will revoke companys certification if they deny the FDA access
to facilities, formulae, etc. No pre-enforcement review: (1) this is a purely legal question but
enforcement policy will play into it; (2) there are no direct effects (3) no irremediable harm to s
before enforcement
iii) Ripeness application
(1) Ohio ForestrySierra Club challenges US Forestry Services logging plan. No review. Ct
looks at: (1) harm to s by waiting (none b/c they define it as behavior modification; (2)
propriety of interfering with agency (should let agency resolve challenges pending within the
agency); (3) fact (need more facts in this inquiry).
(2) National Park Hospitality Assn v. DOI (US 2003)Natl Park Rule provides that Ks with
concessionaires are not subject to the Contract Dispute Act. s cant challenge b/c no harm
(doesnt affect their K bids) and b/c need more facts
(3) RenoINS reg that establishes procedures for illegal aliens to follow to change status, but
agency retains discretion to deport. No review of s procedural challengeneed more facts
(deportation).
iv) Overripeness
(1) 703Except to the extent that propr, adequate, and exclusive app for j. review is provided
by law, agency action is subject to judicial review
(a) You can challenge the statute or regulation during the SoL, or during a proceeding
brought against you. But Cts are reluctant to cut off judicial review.
(2) NLRB Union v. FLRA (DC Cir 1987)challenges regulation as being in conflict with
(Chevron challenge), after the SoL has expired and not in an enforcement proceeding. Ct
reviews regulation. Policy: dont want inconsistent regulation to be unchallengeable after the
SoL.
(3) Types of challenges to regulations
(a) procedural challenges
(i) cant challenge on petition (NRDC v. NRC).

1. Policy: resources, certainty

(b) substantive challenges (other than statutory)
(i) (factual/application or policy)
(ii) Can challenge on petition, but is limited. Cts will defer to agency decisions not to
rescind a regulation b/c of scarce resourcesthey only have to pass the Hard Look
Doctrine
(c) conflict with statute
(i) Can challenge this no matter what (NLRB)
(4) JEMchallenge to procedure by which a rule was passed in an enforcement proceeding
(after the SoL)no review b/c is procedural.
(5) Eagle-Picher Industries v. EPA (DC Cir)just because an earlier claim would have been
unripe will not cure a now overripe claim
(6) Yakusoverripeness even in regulations thatcriminal liability
(a) questionable constitutionality today, might be distinct b/c was price control under Cons
war powers.
4) Constitutional Limits on Agencies
a) Due Process requirements
i) Intro to Due Process
(a) 5th (no person) and 14th (no state) are interpreted to exact the same DP requirement.
(State consts might impose greater procedural requirements)
(b) Are life, liberty & property distinct concepts?
ii) The Due Process Revolution
(1) Goldberg v. Kelly (US 1970)must have fair hearing before welfare benefits are
discontinued, and must allow oral argument, but proceedings dont have to be formal.
(2) Roth (US 1972)teachers interest in having his K renewed is not protected by the DP
clause. Since his K was up, he does not have an entitlement to his property (next years K);
Liberty does not include job, as long as school doesnt destroy his rep so he cant get another.
(a) Liberty & Property interests made concrete
iii) Due Process Calculus
(1) Matthews v. Eldridge (US 1976)post-termination hearing for SS disability benefits is okay.
Test: (1) Private interest; (2) risk of erroneous deprivation; (3) Govt interest. Distinct b/c
evidence is more objective and recipients are less needy.
(2) Dilbert v. Homarcampus police officer arrested in drug bust, suspended w/o pay, then
demoted. Had opp to be heard before suspended, then hearing after. Remand to see if
hearing was timely enough, otherwise okay. (1) interest in uninterrupted paycheck is
insignificant if temporary; (2) state resources are sig; (3) risk of error is less b/c police
arrested him.
b) Nondelegation
i) Origins of the Doctrine
(1) Constitution
(a) Sep of Powers: structure of Const implies the sep of powers, but in admin law Cong
delegates its power to exec. Defeats checks and balances.
(2) Early Statutes
(a) Pres didnt even have discretion to make postal routes
(3) Early Cases
(a) Aurora (1813)Conditional power okay: Pres determines when a condition is met, then
may enforce trade restrictions against Britain.
(b) Southard (1825)Cong can delegate to Cts. What may be delegates depends on its
importance.

(c) Field (1892)Pres determines when other country has imposed unreasonable trade
restrictions, then he lifts our trade agmt. Ok b/c Pres exercises no discretion (but there is
discretion in when condition is met, just not in response)
(d) Hampton (1928)Executive may define the cost of production in assessing duties.
Ambiguity is fine, as long as Cong sets out an Intelligible Principle
(4) New Deal
(a) Panama Refining (US 1935)unconst delegation of leg authority: Pres was to prohibit
interstate transport of excess petrol, but Cong didnt guild the execs action with any
guidelines or policy statement.
(b) Schechter (1935)Pres authority to authorize trade groups codes of fair competition is
too broad. Congs limitations must affirmatively say what pres can do, not just
limitations on what he can do (e.g. where he can get the definitions from)
(i) SIG: govt regulation over the industry was the big question of the day, and the Cts
didnt let Cong delegate it.
(c) Yakus (1944)OPA sets prices that are fair and equitable. Ct upholds delegation, and
distinguishes Schechter b/c here we are regulating a public agency (not trade group),
there would be judicial review, and an intelligible principle
(i) SIG: distinction is irrelevant today b/c both would be reviewed under the Hard Look
Doctrine
ii) The Modern Version
(1) Misretta v. US (1989)Cong delegation to US Sentencing Commission to make sentencing
guidelines is upheld under the intelligible principle standard. SIG: guidance was
contradicting policies. Decided on (1) Set out tools for commission (grid, what policies
couldnt and could be considered; and (2) very tough taskgood for expert agency
iii) Exceptions?
(1) Skinner (1989)agency set user fee for natural gas pipelines. The Nondelegation doctrine is
not stricter for taxes.
(2) Touby (1991)Atty Gen may add drugs to Schedule I on a temporary basis until it can go
thru proper procedures. (1) Criminal Regulations might have stricter Nondelegation
application, but (2) there was enough guidance and sufficient safeguards that even under a
stricter standard the temporary classification system would be okay.
(3) South Dakota v. DOI (1996)DOI secretary allowed to buy land for Indian tribesno other
guidelines. Was found unconst in 8th Cir. Dissentleg hist and historical context would be
enough context. When came to S.Ct. the new regs mooted it
(a) SIG: hard look doctrine might remedy this
(4) Loving (1996)Pres set standard for use of death penalty in court marshals. This is within
his power as commander in chief, so Cong doesnt need to delegate
(5) Clinton v. City of NY (1998)S. Ct. struck down the Line Item Veto Act, but not on
Nondelegation grounds. Based decision on the fact that a line item veto was an amendment
of the statutory text, which can only be done by Cong under Art 1 7. Dissent would have
upheld it under Nondelegation doctrine.
(6) American Trucking (2001)agency cannot cure over-delegation through self-restraining
regulation. (Delegation was okay)
iv) Controlling Delegation (Legislative Veto)
(1) Chadha Cong vetoed AGs recommendation that Chadha be made a permanent resident
(was w/in AGs discretion to suspend deportation order). Cong cannot do this b/c violates
bicameral requirement and presentment requirement.
(a) Note: bicameral veto is also void (no presentment)
(2) Alternative Approaches: Cong could say that agency can only make recommendations that
Cong could pass as normal laws, and could fast track it with an up or down vote, but Cong
doesnt want to be that involved.

v) Commentary on Delegation
(1) agencies are unelected. But maybe we get accountability through indirect democracy. And
its not like theres accountability through Congress.
c) Appointment of Agency Officials
i) Appointment Clause (Art. 2 2 (2))
(1) Principal officers: if Const doesnt say how they are appointed (VP, delegates, etc), then Cong
establishes their position by law, and the President appoints the person
(2) Inferior officers: Cong may vest appointment of inferior officer as they think proper in the
Pres alone, or the Cts or heads of Depts.
(a) Does this mean there can be appointments b/t branches?
ii) Officers v. Employees
(1) Buckley v. Valeo (US 1976)(FEC case) an Officer is someone exercising significant
authority on behalf of the US. Look for: (1) discretion; (2) enforcement authority; (3)
rulemaking authority.
(2) Landry (DC Cir 2000)ALJs are not inferior officers, so dont need to be appointed by the
head of the Dept. Distinguish from Special Trial Judges in Tax Ct b/c ALJs dont make final
decisions.
iii) Principal v. Inferior
(1) Morrison (1988)IC is an inferior office, so appointment by the Special Division is proper.
Look at: (1) removability; (2) scope of duties; (3) scope of jdxn; (4) length of tenure. Ensure
that interbranch appt doesnt frustrate function of each branch.
(2) Edmond (US 1997)Coast Guard Judges are inferior officers. Test here is whether there is a
superior (other than Pres) and how much control they exert over you. JAG and CAAF are
superior b/c can remove w/o cause and can overturn w/ slight deference.
(3) Freytag (1991)special trial judges of the Tax Ct are inferior officers. 5-4 split as to whether
they are properly appointed b/c the Tax Ct is judicial, so Appts clause doesnt apply, or
because the CJ of the Tax Ct is the head of the department so can appoint inf officers.
iv) New Office
(1) By how much can you increase the duties of an officer before youve created a new office
and appointed the person to fill it?
(2) Shoemaker (US 1893)Cong puts Chief of Engineers of the Army on the Commission to
develop Rock Creek Park. Cong expanded the duties of a military officer (superior officer)
but he doesnt need reappointment b/c the duties are germane.
(3) Weiss (US 1994)Military Judge is appointed from commissioned officers. Dont need to
reappoint him b/c (1) is germaneall military officers deal w/ discipline to some extent; and
(2) there is a large number to chose from, so its very dissimilar to Cong choosing the
appointee for the position its created. SIG: germaneness is enough, but lower standard of
germaneness when large pool of candidates.
d) Removal of Agency Officials
i) Intro
(1) Constitution does not have a Removal clause
(a) some procedures for specific offices and impeachment, and fix tenure for judges
(2) Theories of removal power
(a) Impeachment or End of Term
(b) Removal is Inherent in Executive Power (Vesting Power)
(c) Cong can Legislate Removal Power (give it to exec, keep if for itselfFramers didnt
think it of Const importance)
(d) Removal Tracks Appointment (Cong approval of removal of officers or, more reasonable,
can remove by replacing)
(3) Early History

(a) Decision of 17891st Cong decided Pres had power to remove (but unclear whether this
is theory 2 or 3)
(b) Marbury v. MadisonCommission was granted but never delivered, then Pres ignored.
SIG that Pres didnt think he could remove Marbury easily, and in dicta Marshall implies
that he perhaps couldnt.
(c) Tenure of Office Act of 1867Cong was worried that Jackson wouldnt continue
Reconstruction after Lincoln died. Under the statute, all presidentially appointed officers
could keep their positions until their successor was appointed, and a month into the next
persons term. Jackson opposed, and was impeached and almost convicted over it.
(4) Unitary Executive Theory
(a) Lawson: the removal power is superfluous or insufficient. Perhaps he cannot step into
the shoes of his subordinate, but he can certainly void any action that is contrary to
presidential instructions. If the pres can void, he has power even if subordinate cant be
removed, if not, the power is exercised against his wishes, even though the person might
be removed.
(b) Calabrisi: vested means the entire power is in Cts, or Cong, or in Pres (not the
executive branch).
ii) Early Cases
(1) Myers (1926)Pres removed Postmasters of the first class. Ct affirms: states new about leg
removal and didnt enact it; would be more embarrassing to pres than botched appointment;
covered by N&P clause; and redic to think Cong can check Pres by forcing him to keep inept
or disloyal officers.
(2) Humphreys Executor (1935)Cong can limit Press removal power for positions that are
quasi-judicial/quasi-legislative. Statute said Pres may remove officer of FTC for cause (Ct
read in an if and only if req). Distinguish Myers by saying exec has unfettered removal
power only re positions that are purely executive.
iii) Modern Doctrine
(1) Bowsher v. Synar (1986)Comptroller General would make across the board cuts to budget
if Cong didnt meet budget reduction goals. CG removable by joint Cong resolution.
Majority of Ct says Cong cant reserve removal power for itself b/c CG is an executive
officer.
(2) MorrisonThe AG (not pres.) can remove IC, and only for cause. This is okay b/c removal
power isnt completely stripped from executive branch. The only limitation is that Cong
cannot interfere w/ the presidents ability to exercise executive power.
(a) Scalias dissent: shocked that Ct will admit this is a purely executive position and
nonetheless allow Cong to limit Press removal power.
5) The Administrative Procedure Act
a) Intro
i) Adoption of the APA
(1) In 1946, by Truman, after FDR had fought with judges to expand rule of govt
ii) Provisional Rulemaking
(1) 553(c)Informal Rulemaking is the default.
(a) Require written submission (not oral, though you may have oral)
(b) If the organic statute requires that rules be made on the record after the opportunity for an
agency hearing, then it invokes 556-57, but when its ambiguous Cts interpret the
organic statute to refer to informal rulemaking.
(2) 556(d)Formal Hearing entitlements
(a) cross-exam, presentation
(b) last sentence: if no prejudice, may be done by written submission
(3) 557 (b)appeal ALJ decision to agency
b) (The move away from) Formal Rulemaking

i)

Allegheny-Ludlum Steel Corp (US 1972)allow ICC to make rule affecting RR car borrowing
by Informal rulemaking.
ii) FERC (US 1973)allow ICC to make rule through informal rulemaking more blatantly. Say
statute requiring a hearing formal procedures.
(1) Set informal rulemaking as default
(2) Look to Congs intent to see if they wanted formal procedures
(3) Regulations may require formal hearing where organic statute does not
c) Informal Rulemaking
i) Distinct b/c require notice and comment, but no compelled production of information, no crossexamination, and generally written submissions rather than oral arguments.
ii) The Vermont Yankee Doctrine
(1) Cant read additional procedural requirements into the APA
(2) NOTE: informal rulemaking requires: (1) notice; (2) the rulemaking itself (agency receives
comments and formulates its views); (3) issuance or not of final rule and the statement of its
basis and purpose. VT Yankee only limits Cts from expanding procedure related to step 2.
Cts can still expand procedural requirements for notice and the statement.
iii) Requirements:
iv) Notice
(1) 553(b)
(a) notice of proposed rulemaking will be published in FedReg
(b) terms or substance (of what is relied on)
(2) Portland CementEPA published exact words of rule, but not the study it relied on
insufficient noticemust provide the other side with background so they may make
meaningful, informed comments
(3) CT Light (DC Cir 1982)promulgated nuclear safety regulations are more stringent, less
flexible, than proposed, but exception for existing plants. (1) notice is adequate (assume
parties are familiar with industry); (2) no renotice requirement if rule is logical outgrowth of
proposed rule (here, the fact that agency removed part of it to adjudication practically makes
it consistent); (3) Statement/Justificationjust good enough.
(a) SIG: logical outgrowth; rulemaking/adj
(4) New Information
(a) Building Industry Assn (DC Cir 2001)if the basis for the rule was the logical
outgrowth of the evidence that was available during N&C, then theres no re-noticing
requirement
(b) Chamber of Commerce (DC 2006)primary information requires re-noticing (if the info
forms the required basic assumption for the rulemaking)
(5) Inadequate Flagging
(a) MCI v. FCC (DC Cir 1995)Cant bury notice in a FN in a section that interested parties
wont read.
v) Concise and General Statement
(1) 553(c)
(a) after submissions, if agency decides to make a rule, they must issue a concise general
statement of basis and purpose
(b) Vague way the DC Cir sneaks extra requirements in now
(2) Auto PartsD.C. Cir. warns against a literal reading of concise and general
(3) Reyblatt v. US NRC (DC Cir 1997)agency need not address every comment, but must
repond in a reasoned mannter to those that raise significant problems.
(4) Louisiana Federal Land Bank Assn v. Farm Credit Admin (DC Cir 2000)comments were
on 1 type of loan, but equally applicable to the type that was changed in the final rule.
Agency should have commented on it. Broad comment requirement.

(5) If agency adds new information on the regulation, but doesnt change its methodology or
factual support, then there is no new comment periodRybechek (added 6K of pages, but its
okay).
vi) 553(d)
(1) Rule must be published 30 days before it becomes effective
vii) Hybrid Rulemaking
(1) hybrid rulemaking is created by statute by congress. basically, it is a statute that would
normally allow an agency to do informal rulemaking, but the statute itself adds additional
procedural hurdles not found in the APA that the agency must overcome when rulemaking
pursuant to the statute. the courts (especially the dc circuit court) used to try to impose added
procedures to create their own brand of hybrid rulemaking, but the supreme court
bitchslapped them down in Vermont Yankee and told them that they can no longer require
agencies to jump through procedural hoops that are not enumerated in the APA.
viii)
Notice and Comment Exceptions
(1) Subject Matter-- 553(a)
(a) military or foreign affairs functions of the US (must act quickly); matters relating to
agency management or personnel (assume that who fill the posts doesnt matter vy
much); public property, loanscontracts (agency is spending its own money, so has
incentives to be careful, and we already have a check for govt Ks)
(2) Major exceptions-- 553(b)
(a) 553(b)(a)Procedure Rules: interpretive rules, general statements of policy or rules of
agency organization, procedure or practice
(b) 553(b)(b)General Escape Hatch: when agency for good cause finds (and incorporates
good cause) that notice and public procedure are impracticable, unnecessary or contrary
to public interest
(3) Scope-- 553(c)
(a) noticeformal v. informal
(4) 30 day exceptions-- 553(d)
(a) no 30 day notice req for interp rules, policy statements or deregulatory rules, and good
cause req.
ix) Procedural Rules
(1) Policy Rules exempt from N&C req
(2) Air Transport v. Dept of Transport (DC Cir 1990)procedural rule when public has no stake
in the decision; when no value judgment in the decision (unlike these policy rules)
(3) JEM Broadcasting v. FCC (DC Cir 1994)unreasonableness test; substantially grave effects
test; rights and interest test. (unreasonable procedureturns into a substantial injury)
x) Interpretive Rules and Policy Statements
(1) Generally
(a) interpretive ruleshow agency will adjudicate in distinct scenarios
(b) policy statementhow agency will exercise its prosecutorial discretion
(c) Contrast interpretive rules and legislative rulesinterpretive rules are not binding and
dont get Chevron deference.
(d) NOTE: can avoid the trouble of N&C that are required with legislative rules, not just by
making interpretive rules, but by doing an adjudication.
(2) Legal EffectsPacific Gas (DC Cir 1974)
(a) N&C not required b/c agency just stating the policy that it hoped to implement, not
creating a binding norm on regulated parties.
(3) Substantial ImpactCabsis
(a) This test was rejected
(4) Impact on AgencyUS Telephone Assn (DC Cir 1994)

(a) dominant approach today

(b) (fine schedule)
(c) If agency is adhering to it like its a leg rule, then it is.
(5) Rules v. StandardsProcessionals & Patents for Customized Care v. Shalala (5th Cir 1995)
(a) (compounding pharmacists)
(b) standard (w/ many factors) more likely to be interpretive rule
(6) Intent to ExerciseAm Mining
(a) (reporting xrays diagnosing miners lung)
(b) legislative rule if power was delegated to agency, and agency intended to exercise it.
(c) Factors: (1) Can be enforce in the absence of a rule; (2) Is it published in the CFR; (3)
Has the agency explicitly invoked its legislative authority; (4) Is there an inconsistency
with a prior leg rule
(7) InterpretationSyncor (DC Cir 1997)
(a) FDA will regulate PET scans nowsubstantive b/c changing the rule, rather than
interpreting something.
(8) Good CauseTenn Gas (DC Cir 1992)
(a) For an agency to invoke the good cause exception in making an interim rule, they must
provide factual support of the harm in waiting.
d) Informal Adjudication
i) Intro
(1) language of APA for adjudication parallels that for rulemaking, so the APA says there should
be a presumption of informal rulemaking, but the Ct in FERC creates a presumption of
formality.
(2) Cts must give deference to informal adj as it does to formal adj and informal rulemaking
ii) Overton Park (US 71)must give reasons, even if not formal findings. Findings are
incentivized though (safe harbor)
(1) SIG: must have reasons for determination for Ct to engage in substantial review
iii) Pension Benefit Guarantee Corp v. LVT (US 1990)Govt Corp, PBGC, decides to make corp,
LVT, responsible again for its pension obligations thru informal adjCt upholds. Applies VT
Yankee to informal adjudication.
(1) Arkansas-Bestsometimes there is notice req for formal adj, but not informal adj
iv) Chenery I (US 1943)no post hoc rationalizations
e) The Rulemaking-Adjudication Distinction
i) Chenery II (US 1946)agency may proceed thru adjudication (does not need to make a rule first)
ii) Policy in favor of allowing adjudication rather than rulemakings:
(1) may use adj as a temporary expedient until the rule is made
(2) some problems are so specialized and varied they can only be resolved thu adj
iii) Procedural Distinction
(1) Rulemaking APA requires N&C
(2) Adjudication APA is silent, but DP requirements of the Const are invoked.
iv) Academic Debate: how do we distinguish the two?
(1) Dickenson (1927)
(a) referring to ratemaking mostly
(b) Prospectivity is not a useful indicatorThe Sisson Casea mill emits sawdust into river,
Ct issues injunction, then Ct says its a rulemaking that needs N&C!
(c) Look at primarily at whether the Ct action must be applied in a further proceeding
(i) but this is problematic too, b/c injunctions enforced in later proceedings too
(2) Fuchs (1938)
(a) agrees that prospectivity is inadequate
(b) Look primarily at whether you are naming the affected party directly (generality v.
specificity distinction)

(i) But this is not easy, i.e. Cong makes tax exemptions for specific constituents
v) Londoner Revisited
(1) hearing requirement for DP in special assessment
(2) SIG: ppls rights are more affected in adj so that is why you need a hearing
vi) Bimetallic (US 1915)(property tax increase) no hearing required for rulemaking. Standard for
when its an adjudication, and thus requires a hearing: (1) small # of ppl affected (most
important); (2) exceptionally affected; (3) affected on individual basis (i.e. for different reasons)
vii) APA 551
(1) distinguish by prospective application of action
(a) everyone criticizedexec order says look also at generality
viii)
Yesler
(1) Ct decides that determination that eviction procedures be reduced for criminal public-housing
tenants is a rulemaking, so should have had N&C.
(2) SIG: Ct focuses on generality of application
6) Concluding Matters
a) Permissibility of Rulemaking
i) Storer
(1) Agency made rule that if you have >5 broadcasting licenses, you may not be awarded more.
(2) May make a rulemaking (usually on discrete, recurring issues) that obviates the need for adj
in some cases, even where gives right to adj.
ii) Heckler
(1) SSA creates grid to determine applicability of benefits to a recipient (grid of factors
determining whether person can work)was to reduce amount of adj necessary
(2) Even though requires agency to take individual circumstances into account, this measure is
okay, b/c: SSA allows ppl to argue that the grid does not apply to them, and which
classification you fall underyou are not eliminating adj, just streamlining it
b) Ex Parte Communication
i) APA
(1) 554(d)(1)
(a) in formal proceedings only, ALJ cant ask a party for info in ex parte way
(2) 557 (d)(1)
(a) no party to procedure will provide ex parte communication (in formal prodeedings)
(b) if an ex parte communication occurs, you have to put that communication in the public
record
(c) Cts have not found an ex parte communication, even if uncorrected, to pro se invalidate a
proceeding. (Standard: is the proceeding tainted)
ii) ACT v. FCC
(1) informal rulemaking re kids programming standards. Industry agrees ex parte to police
themselves; agency agrees, w/o publication. Ct allows
(2) HBO precedentif there are private parties competing over a right for some privilege (there,
a license), then no ex parte communications. This situation is distinct b/c less adversarial.
c) Estoppel
i) Merril (1947)govt agent told farmer his crops were covered by govt insurance, was wrong, no
estoppel
ii) Richmond (1990)
(1) was govt worker on disability, assured he could work and receive benefits by govt eee
relying on old rules.
(2) Ct does not adopt per se rule, but says Art 1 9Appropriations Cl of Const says you can
only get $$ by law. Narrow prior dicta that estoppel might be available if govt misconduct.

(3) Stevens, Concurswould assume that $$ appropriated to these programs included $$ in

damages for estoppel claims (ct must not create programs, doesnt relate to individ claim);
Marshalls Dissentequitable doctrine can be narrowly tailored
iii) Policy: would open flood gates of litigation, would lead to less advice rather than better advice
d) Information Acquisition
i) FTC v. Am Tobacco
(1) FTC claimed unlimited right to docs, Ct rejects saying that it was loath to believe that Cong
intended to authorize one of its sub agencies to sweep all our traditions into the fire.
ii) Oklahoma Press Pub. v. Walling (US 1945)
(1) clearly authorizes active (govt comes and takes records) and constructive search (subpoena
duces tecum).
(2) Corporations dont have same protection against self-incrimination as real persons
(3) Constructive search is okay, but not actual, and scope of subpoena must be reasonable
e) Information Disclosure
i) Freedom of Information Act (FOIA)
(1) govt must disclose unless there is a public interest in secrecy. APA interprets this to mean
you disclose all final orders unless there is good cause not to.
(2) FOIA has 3 reqs: (1) publication (in Fed Reg); (2) public inspection (of final orders, including
dissents and concur); and (3) production (upon request, may have fee)
(3) FOIA litigation circles around whether 1 of the exceptions is available: national defense;
internal personnel communication (interagency communication); trade secrets; organic
created exception; medical/privacy; some law enforcement; financial institution regulation,
etc.
(a) interagency memos are exempt if they could not be made available in litigation (i.e.
would be protected by privilege)
ii) NLRB v. Sears
(1) there is an elaborate procedure to decide whether to take cases at all. This case gets accepted,
and Sears wants memos on discrete issues of labor law. (1) these are identifiable records (i.e.
they are reasonably described); (2) privilege applies to pre-decisional memos, but after it is
made there is no privilege, so they are discoverable.
f) Theories of Administrative Behavior
i) Capture

Administrative Law Cases

Air Transport v. Dept of Transport (DC Cir 1990) Did FAA have to have N&C before promulgating a
penalty rule, i.e. was it a procedural rule? Holding: was a not a procedural rule because rules that
govern the assessment of penalties reflect a value judgmentthat makes them substantive. Rule: only
apply exemption where public has no legit stake in influencing the outcome. Here, rules affect your
right to avail yourself of administrative adjudication, so you need N&C. and say dissent focuses too
much on substantial impact an not on 553(b)(A). Silberman, Dissent: primary conduct test
substantive rules affect your day to day actions; procedural rules only affect you when you get to the
rule. But Bramy says that that primary conduct can be affected by procedural rules (e.g. you obey
speed limit not b/c its the limit (subs rule) but b/c radar (procedure). Vacated as Moot, but relevant for
arguments.
Allegheny-Ludlum Steel Corp (US v.) (US 1972)ICC set fee rates that RRs had to pay to other RRs to rent
their carsresponse to RR freight car shortages. The rule required the car be returned by the same
route. The ICC has authority when there is a shortagedetermination of fact and policy. FN 15:
informal rulemaking is okay (Ct could have but did not rely on 556(d) escape clause). Only
supported by a law review article and 2 inappropriate casesset stage for FECR
American Mining Congress v. Mine Safety & Heath Admin (DC Cir 1993) Regulation requires mining co
to report injuries, includes x-rays that find disease b/c are diagnosis. There are procedures for getting B
readers, etc. Ct uses Intent To Exercise Test (similar to legal effects test)if Cong has delegated
power, and agency has intended to exercise its power in exercise of that delegation. Factors: (1) Can be
enforce in the absence of a rule (e.g. SEC organic ); (2) Is it published in the CFR; (3) Has the agency
explicitly invoked its legislative authority; (4) Is there an inconsistency with a prior leg rule (if so,
presumption that its superseding it and must also be a leg rule). J. Williams gets around precedent by
saying it applied to policy statements, and this is for interpretive rules.
American Trucking Assn v. USEPA (2001)EPA is required to set clean air standards. DC Cir found that
the statute gave insufficient guidance, but remanded it on the theory that the agency could limit itself by
enacting regulations, and thus cure the Const defect. S. Ct rejects this view. If Cong has delegated
more than Const allows, then agency discretion and self-restraint cannot cure. This is within Congs
broad delegation power. Stevens (w/ Souter) Concurring: would allow it, and admit that agencies are
exercising legislative (not just executive) power
Abbott Laboratories v. Gardner (US 1967)FDA requires that drug companies put generic name of drug on
packaging. Name brand drugs challenge the rule before its final. If they were to refuse to comply,
there would be serious consequences (possibly criminal liability), but if they go through with this it
would be very costly. Court grants review. Balancing test to see whether the case is ripe: (1) Is this a
purely legal question? (here it is, we dont need facts to decide); (2) Are there direct and immediate
consequences? (yes, would force them to change their labels); (3) hardship to parties (s and govt)?
(: cost or crim; govt interest in preventing piecemeal litigation; no interest in public health b/c you
can get stay of enforcement it its needed for public safety)
Air Courier Conf v. Am Postal Workers (US 1991)Private Express Statutes (PES) ordinarily grant postal
service a monopolypostal service makes exceptions in public interest (urgentFedex)exception
made for intl remailing, but workers fear jobs and sue. They have NO STANDING. Purpose of PES
was for fed govt to collect revenue, not to protect workers. Cant justify standing by looking at sections
all over the PESdistinguish from Clarke where they looked at sections that were close by (81 and
36). Inconsistent with Arnold Tours and Clarke in that they said you dont need to look for evidence
that Cong wanted to protect them in the leg history, and here they do.
Allentown Mack Sales v. NLRB (US 1998)Under NLRA, if employer thinks the union no longer has
support, it may (1) request a NLRB supervised election, (2) w/draw recognition of union and refuse to
bargain, or (3) conduct an internal poll of eee support. Bd says that the latter 2 are unfair labor
practices unless eor has a good faith reasonable doubt about unions majority support. Allentown

heard rumblings and conducted a poll, union lost and filed with NLRB. ALJ found that the poll was
conducted properly, but the eor didnt have a good faith reasonable doubt, and the Bd adopted this
finding. First issue: whether the higher requirements for polling are A&Cnot A&C, upheld. Second
issue: whether Bds finding that eor lacked G.F. reas doubt is supported by subst evidence. (Conflates
this w/ reasonable jury standard again). Bd defines doubt as disbelief, rather than uncertainty. Scalia
says that the Bd must use the proper meaning of words in its own regulations, even if precedent is to
misinterpret them. There is evidence that eor knew that 7/32 eees were unhappycannot require
over half (under the prepond. standard, otherwise why have a poll) and ALJ excluded ev from
additional eees that show a feeling of uncertainty. SO, sustain rule on A&C standard, reverse unfair
labor practices finding on SubEv standard, and Scalia says they are the same reasonable jury standard
(but dicta)
American Petrol Institute (AFL-CIO v.) (US 1980) (aka The Benzene Case)agency was to regulate benzene
in the workplace to assure to the max extent feasible, on the basis of the best available evidence, that
no eee will suffer material impairment of health or functional capacity. Agency has evidence that
high exposure to benzene is associated with blood disorders, but has no evidence on the effects of
exposure to low levels of benzene.
Arizona Grocery v. Atchison (US 1932)Admin agency has power to set rates of common carrier. Set a rate
as reasonable then wants to make a company who had a rate under the maximum pay reparations
because it says the rate was actually not reasonable. Ct says that agency has the power to declare the
legal ratecompany cant not comply and hope it will later be found to be reasonable, nor can it
comply and later be found unreasonable. Agencies are bound by their own rules, and must interpret
them in a plausible way.
Association of Data Processing Service Organizations v. Bd of Governors of the Federal Reserve (Ct Ap DC
1984)( 706(2)(A) REVIEW OF FACTINFORMAL PROCEEDINGS) Data Processing trade
assn challenged Bds approval of Citibanks ap to do data processing (on ALJs recommendation). (Act
( 1848)Bd must approve non-banking activity)on the record adjudication (Citbanks application)
and rulemaking (banks may do their own data processing). 1848 has a subst ev SoR, but applies only
to orders, which APA says result from adj, so only formal. But rest of applies to rulemaking and
adj, Scalia says no reason to distinguish SoR sentence from rest of . BUT, in the precedent the Ct Ap
applied the A&C test (I guess in the absence of a SoR in the organic ). Scalia reconciles this by saying
that substantial evidence standard equals the A&C standardis just an application of A&C in the
context of a decision that must be supported by factsmeant to emphasize the fact that the Ct should
look at whole, closed record, rather than to create a different standard. Both come down to
reasonableness. Policy: you wouldnt want a less stringent SoR for rulemaking, where more ppl are
affected. Combining the SoRs in the APA was dictaapplied the 1848 SoR of subst ev. SIG:
Substantial evidence = A&C; AND organic statute can change the SoR, but must be very clear
(reference to order was not explicit enough for Scalia). [but upheld decision on the merits]
Akins (Fed Election Cmn v.) (US 1998)FEC found that group was a not political committee (no
disclosure reqs), citizen group seeks review of that determination. There is STANDING. (1) Statutory
standing is clearsays anyone can file. (2) Const Standing: (a) injury in factis particularized
enough: everyone is suffering different injuries, i.e. they each have different reasons for wanting that
information, even if the info is the same.
Bankers Life v. US (7th Cir)Bankers Life wants refund, challenges longstanding Treasury reg. Ct upholds
the reg, and holds that Chevron applies to tax cases, but what is SIG is that Ct divides analysis by
allotting textual analysis to step 1 and leg hist to step 2. Bramy says that all of this should be part of
step one, as it speaks to whether the is clear, but this case shows there is a lack of clarity and no
uniform way of applying Chevron.
Bi-Metallic Investment Co v. State Bd of Equalization of Colorado (US 1915)Co increases property tax by
40%. -real estate owner challenges b/c no hearing. Hearing NOT required w/ rulemakings, only with
adjudications. Distinguish Londoner: relatively small # of ppl were exceptionally affected, and each on
individual grounds.

Block v. Community Nutritional Inst (US 1984)Sec of Ag sets price of milk market orders (price that milk
handlers pay to milk producers (farmers))purpose is the increase the price for farmers. Delicate
balance of handlers and farmers intereststhey should agree, but if they cant, the sec sets price with
50% agmt of handlers and 2/3 agmt of farmersfarmerss interest given more weight. In this suit, 1
handler and consumers challenged the fact that there are difference schedules for liquid and
reconstituted milk. Ct says there is implied preclusion of judicial review over consumers claims b/c if
consumers could bring suits on behalf of handlers, handlers could evade and stymie the delicate and
complex administrative scheme. Also, the interests of consumers are not accounted for in this statute
is for benefit of farmers. Ct says 3 ways to defeat presumption of judicial review: (1) specific
language; (2) contemporaneous judicial construction followed by congressional acquiescence; (3)
inferences of intent drawn from the statutory scheme as a whole. This case fits into option 3.
Bowsher v. Synar (US 1986)
Bowen v. Gtown U Hospital (US 1988)Clear Statement rule, by which Cts read any ambiguity in a
statute/regulation against its retroactive application, supersedes Chevron deference. Agency capped
reimbursable costs to hospitals providing Medicare services, but that reg was struck down b/c was not
issued with N&C procedures. Reissue rule after N&C, but interpreted it to be retroactive (so try to
recoup funds reimbursed to hospitals in the interim). Cts will not interpret a statute to delegate the
authority to an agency to make retroactive laws unless w/o express terms that require that result. (there
was some auth to order reimbursement, but only in case-by-case adjudication where calculation was
wrong, and cant change computation methodology). Scalia Concur: APA says and future affect so
he thinks all regulations must be prospective.
Bowen v. Michigan Academy of Family Physicials (US 1986)Dr challenges regulation that authorized
payment of Medicare benefits (from private carriers) to be different amounts for similar physician
services. D.Ct. and Ct Ap. reviewed the regulations and found that it contravened the Medicare act, and
S.Ct. affirms. Medicare has 2 parts: under part A, the government makes general benefits payments,
and the specifically provides for judicial review to challenge the result; under part B, private carriers
offer supplemental insurance coverage, and says that if you Dr. or patient disagree with amount of
compensation, you get a fair hearing by the carrier. There is limited judicial review only to ensure
that the hearing is in fact fair. Also note: (1) the fact that judicial review is provided for in part A does
not mean its precluded in part B; (2) the precedent in Erica, in which Ct found j.r. of part B
determination precluded, includes only on the merits challenges to carriers determinations; (3) matters
not delegated to carrierse.g. the way of determining compensation (the fairness) IS reviewable.
Brand X Internet Services Caseissue is whether cable companies are common carriers such that other
companies would be allowed to use their wires for internet services (like phone wires). The issue came
before the 9th Cir in ATT case (2000), when FCC was not a party, submitted no amicus). Later FCC
made opposite determination pursuant to an exercise of its delegated authority. Now issue is again
before the 9th Cirwhat controls? S.Ct. says that if the Ct determined that the statute was clear, and
that the term meant X, then that precedent binds them. But if they determined that it was unclear, and
interpreted as best they could, then the agency determination supersedes their precedent.
Brown & Williamson Tobacco (FDA v.) (US 2000)Clinton initiative for FDA to regulate tobacco, based on
interp of drug: article other than food, intended to affect the structure or any function of the body.
FDA says cigarettes are intended to change structure of body by addicting you. After finding it to be a
drug, will regulate its sale to minors. Chevron applies, but unreasonable interpretation. Ct argues: (1)
Structural: slippery slopeif a drug is unsafe, you take it off the market); (2) Subsequent Cong hist
Cong has enacted tobacco specific legislation that implies that Cong doesnt think its delegated this
power); (3) really important question would need to be explicitly delegated. Breyer Dissent: FDA says
its safer for the unsafe drug to be regulated than bannedblack market, and we should defer to this
policy.
Buckley v. Valeo (US 1976)Federal Election Committee has 8 ppl: 2 dont vote, 2 appointed by President
(from diff parties), 2 by Pres of Senate and 2 by Speaker of the House. Has power to require
disclosure, rulemaking authority, adjudicative powers (injunctions, require funds to be repaid) and

prosecutorial authority. Ct App says this is w/in the N&P clause, but S.Ct. says nothe appointments
clause is more specific so trumpsit does not matter that elections are w/in Congs plenary authority
(Cong has plenary power wherever it has jdxnno more power where it has plenary jdxn, and no
matter what the Const still limits). Appointment Clause is a problem (only 2 appointed by Pres, and
those not by its procedure) if the people on the FEC are officers. Officer means: someone exercising
significant authority on behalf of the US (look to the breadth of their discretion); someone with
enforcement authority (this is an executive function so satisfies the inquiry on its own (e.g. Asst DA));
Rulemaking authority (this is more legislative and judicial, but still is significant authority, so is
enough). The effect is that the FEC in that form would retain only the power to act as a Congressional
committee (could do disclosure and investigation only).
Building Assn of Superior Ca v. Norton (DC Cir 2001) rulemaking on listing of endangered species under
the Endangered Species Act. Rule published after N&C, but based rule on the Simovich study that
came out during comment period. Parties want re-noticing, but Ct does not require it. Logical
Outgrowth Rule: The Simovich provided additional support for the original hypothesis, indeed better
support, but it didnt reject or modify the original hypothesis. RULE: new data, new study, that just
adds additional support for original hypothesis, then no re-notice requirement. PolicyPerpetual renoticing that would indef delay rulemaking
Camp (Assn of Data Processing Service Organization v.) (US 1970)Comptroller finds that data processing
is a bank service (banks may not provide services other than bank services), ADPSO challenges. There
is Const standing easily, but is there standing? Rejects legal interest test (goes to merits)NEW
STANDARD: Whether the legal interest sought to be protected by is ARGUABLY within the ZONE
OF INTERESTS to be protected by the in question. Ct says 702 can include even aesthetic and
recreational interests. Note: you dont have to be in the zone, you need to arguable be in the zone.
Asking Cts to look at Cong intent and beyond! Brenan, Concur: 702 means you only look for Const
standing.
Cardoza-Fonseca (INS v.) (US 1984)AG may not deport alien who shows that his life or freedom will be
threatened if deported (more likely than not that alien will be subject to persecution) ( 243(h)), and AG
has discretion to not deport alien who can show that he has a well-founded fear of persecution (
208(a)). AG used stricter standard of 243 on a 208 petition, S. Ct. says IJ and BIA incorrectly
conflated the two standards. SIG: Ct didnt use Chevron testsaid it was just a question of statutory
construction in interpreting the two standards. SCALIAS CONCURRENCE: (1) no need to go into leg
hist if statutory language is clear; (2) after deciding that agencys interp is counter to clear statutory
language, no need to engage agencys interp. Says the prob is that Ct implies that its interp would defer
only if it couldnt interpret a statute, but Chevron allows deference even if Ct can infer a meaning, but
the statute is ambiguous. Seems like his threshold for clear is lower, but if not met, more deference.
Center for Auto Safety v. Federal Highway Admin (DC Cir 1992)FHA amends regulations on highway
bridge inspections so they can extend the deadline for how often bridge must be inspected, and give
longer time for underwater inspection. Ct remands b/c says they must create a maximum, but
underwater inspections is okay b/c there isnt a lot of evidence to justify frequent inspections (at
expense of allocating resources to repairs)Ct will defer. In this case (Cf US Telecom) the legal
reasoning is in step 1, not in step 2.
Chadha (INS v.) (US 1983)Cong vetoed AGs recommendation that Chadha be made a permanent resident
(was w/in AGs discretion to suspend deportation order). Cong cannot do this b/c violates bicameral
requirement executive presentment. White, Dissent: This provides accountability, and w/o it the
executive is legislating.
Chamber of Commerce of U.S. v. SEC (DC Cir 2006)SEC promulgates a rule exempting mutual funds
from certain regs if they comply with certain corp governance reqs. Remanded b/c the agency didnt
consider the cost of compliance to corps. On remand, SEC does more studies to find out costs, and
promulgates the rules w/o comment period (no one could challenge their determination). Holding:
there was inadequate notice because this was primary information. Cf w/ Building Assnthat was

supposedly supplemental, but they are both additional information to support an original conclusion.
But the study forms the basic assumptions behind the rulemaking. Is this cake or the icing on the cake?
Chenery I (SEC v.) (US 1943)SEC rejected a reorganization plan. Statute says that reorganization must be
fair and equitable and not detrimental to the interest of investors. SEC justifies its rejection w/
legal reasoning (violated Duty of Fair Dealing and Principles of Equity). Ct strikes it down (since they
are legal justifications and this is pre-Chevron), and SEC supplements its arguments with good policy.
Ct does not allow post hoc rationalizationsit stands on the grounds it was decided upon or not at all.
Remand. There was some dicta and confusion as to whether the agency had to make a rulemaking
before it could bind a party in an adjudication.
Chenery I (SEC v.) (US 1946)On remand, SEC justifies its rejection of this reorganization on policy
grounds. Ct affirms this determination. It is okay for agency to proceed by adjudication rather than
rulemaking. Note: Frankfurter wrote majority in Chenery I, and Murphy dissented, now theyve
switched roles.
Chevron USA v. Natl Resources Defense Counsil (US 1984)[FACTS]Under the Clean Air Act, states that
had not achieved the air quality standards established under the EPA could regulate stationary sources
of air pollution with permits. The EPA adopted a plant-wide definition of stationary source so if a
plant did a measure that increased pollution, it was still okay if it took a counter measure to cancel it
outbubble concept. [PRO] DC Cir sets regs asidelooking to purpose of Act, bubble concept is
mandatory for programs designed to maintain existing air qualities, but inappropriate where trying to
improve air qualitypermits are meant to improve air quality so are contrary to law. S. Ct reversed.
[RULE] Ct reviewing agency: (1) Has Cong spoken?if yes, the ct and agency must give effect to the
unambiguously expressed intent of Congress. If Cong has not spoken directly on this issue ( is silent
or ambiguous), then question is whether agenys answer is based on a permissible construction of the
statute. Agency may make policy, rules to fill in gaps unless A&C or contrary to . If legislative
delegation of authority to agency is implicit, as long as agencys interp is reasonable, Ct must let it
stand. [APP] Here, Cong didnt express any intent about the bubble concept, and the agencys
adoption of it was reasonable, so the regulation stands. Ct looks to: language of statute as a whole
(other sections definitions not helpful), legislative history (no comment), and administrative history
(EPA had 2 defs like Ct Ap wanted, but changed for policy reasonsthe fact that agency has flexible
def doesnt diminish deference due). Policy is better considered by agencymore accountablethan
Cts, where Cong didnt intend to speak to that issue. As long as Admins policy choice is reasonable,
defer!
Christiansen v. Harris County (US 2000)Fair Labor Standards Act says counties may compensate eees for
overtime with comp timetime off or full pay. If eees dont use comp time, but pay $$. County fears
econ consequences so wants to force sherrifs to use comp time, so as not have to pay out. County
asked DoL and got opinion letter saying that they can force them to use comp time only if eees
agreed to the term in advance. Opinion letters (like interps in policy statements) lack force of law, so
No Chevron Deference, but they are entitled to respect, so have Skidmore Deference, i.e. power to
persuade. The letter here is unpersuasive, Ct says county can force eees to take comp time since there
is nothing in the statute to indicate otherwise. Language is permissive not mandatory, so county may
compensate how it wishes, and the statute is clear, not ambiguous, so agency cannot change law (and
Auer does not apply). Souter, Concur: would allow this interpretation if it came from a formal
regulation only (which is to say he doesnt think the statute is unambiguous). Scalia, Dissent:
Skidmore deference does not exist now that Chevron has supplanted it. Scalia says there are 3
scenarios in which theres no Chevron def: (1) is unambiguous; (2) no interpretation made by agency;
(3) the interpretation is not authoritative. But [thru Chevron test] in this case the interpretation is
unreasonable. Breyer, Dissent: would uphold agencys interpretation under Skidmore deference.
*Unclear if no interpretive rule with get chevron deference now
Clarke v. Securities Industry Assn (US 1987)Whether banks can provide brokerage services (Comptroller)
or whether they are branches so cant (). Camps zone of interest statutory standing applied gloss to
702: adversely affected or aggrieved = injury in fact, and the req that it be in the zone of interest

applies the will of Cong that not every person suffering injury have standing. A relevant got a
broad interp, under the policy that standing be easily achieved. White says purpose of law was to
prevent natl banks from getting monopolies on all financial services thru expanded service offering and
unlimited branchinggrants standing. Stevens, Concur: Agree its within the zone of interests, but
doesnt approve of expanding discussion of the zone of interest test.
Connecticut Light and Power Co v. NRC (DC Cir 1982)agency regulates safety at nuclear plants. In
informal rulemaking, it shifts from a postulated hazard approach (look at overall safety) to more
concrete rules. (Specifically the 20distance rule, the auto fire suppression method (water, rather than
oil collection) The new standards apply to existing plants. There is an exception proceeding if existing
plant is as safe. (i.e. the rule is forward looking, apply the standard for old plants exemption). (1)
adequacy of the noticeagency didnt release all the data it relied on, but it had been released in other
rulemakings, if you were in the business there would be no surprises. This is fineagency doesnt
have to make a comprehensive bibliography of known background discussion. (2) Absence of renoticingif agency changes rule from what was proposed, it might have to renotice it its very
different, but if its a logical outgrowth of the proposed rule, then now new notice is required.
Making rules more stringent than proposed is a logical outgrowthallowed b/c the exception tempers
the effect. SIG: by ruling case by case on exemption, the agency is adjudicating. (3)
Statement/Justificationwas really poorjust a broad statement, doesnt justify anything, but Ct gives
them slack b/c of exemption again.
Darby v. Cisneros (US 1993)D is a rel estate developer who skirted a regulation denying benefits to owners
of 7 or more rental apt buildings by having a straw man buy the buildings. Agency debarred D for 18
months, D challenges final determination in ct, rather than to HUD, arguing that 704 says that its
final, so reviewable. Ct agrees: Under the APA you dont have to exhaust (ask for reconsideration).
You only have to exhaust if the organic tells you to. Here, APA 702 says there is review of final
decision, organic said it was final, w/o req of reconsideration. So for Ct to require more would read
704 into absurdity.
DeBartolo v. Florida Gulf Coast Building (US 1988)NLRB found unions actions were illegal b/c were
picketing and discouraging customers from going to the store. This raises 1st Am issues. Doctrine of
Constitutional Doubt/Doctrine of Constitutional Avoidance: whenever there is a serious constitutional
challenge, the Ct resolves any ambiguity by in favor of the interpretation that avoids the constitutional
issue, rather than deferring and resolving whether that interpretation is constitutional.
Dilbert v. Homar (US 1997)H is college policeman arrested in a drug raid for possession and intent to
deliver. Uni suspends him w/o pay, gives him pre-termination opportunity to tell his side of the story,
but they didnt tell him they had ev of his (questionable) confession. They demoted him rather than
firing him. Holding: suspension w/ pay would have been a safe harbor. Apply Eldridge test: (1) Private
(property) interestuninterrupted receipt of paycheck (if temporary is insignificant)slowness of
hearing actually helped b/c gave time for charged to be dropped; (2) state interest is significant
maintain public trust in officers (unclear if interest is in having him off the force or off the payroll); (3)
risk of errorlow b/c independent 3d party took the first action against himpolice dont arrest ppl
w/o causewasnt arbitrary. Remand to see if delay in hearing was undue to such an extent that it
violated DP.
Dole v. US Steelworkers (US 1990)DoL requires manufacturers to put warnings on hazardous material.
OMB disapproves of some exemptions for being too narrow under the Paperwork reduction Act, which
authorizes them to limit information requests. Ct looks to see whether is clear: (1) start with text of
statute (Here, info goes to workers, rather than to govt); (2) Canons of ConstructionFN 9 of Chevron
allows this (Here look at surrounding words to discern meaningthat its for recordkeeping); (3) leg
purpose and (4) leg history (neither really relevant). SIG: look at these 4 things to determine if is
clear. White, Dissent: clear should not take 10 pgs to explain.
Eagle-Picher Industries v. EPA (DC Cir)just because an earlier claim would have been unripe will not cure
a now overripe claim. If it is indisputably not ripe then you can wait, but normally Ct will require
that you file, have it kicked out, then file later.

Edmond v. US (US 1997)Coast Guard Judges for Ct of Criminal Appeals (not Art. III) are inferior officers.
Test is whether they are subordinatedo they have a relationship with a superior (other than the Pres)
and how much control does that superior have over you? Here, JAG and the Ct App of Armed Forces
are superior (2 separate bodies can combine to function as a superior). (1) Convicted appeals to
CAAF, where SoR is some competent evidenceeven where decisions command some deference
they can still be inferior. (2) JAG can remove judge w/o cause.
Ethyl Corp v. EPA (DC Cir 1979)EPA in charge of deciding how much lead is allowed in gas. Majority
upheld agency regulation under 706(2)(a). Wilkey Dissent: extensive analysis of the evidence
considered by evidence. Bazelon, Concur: strict Ct supervision of agency procedure, shouldnt base
decision on facts (dont abdicate responsibility, but very minimal fact-analysis). Technical stuff is not
for judges (so we could review FCC stuff more carefully) Leventhal, Concur: moderately deferential
(less than review of decisions, but cant substitute Cts scientific judgment) but careful judicial scrutiny
of agency decisions=looking at facts a bit. NOTE: VT Yankee is a bit of a rebuke to Bazelons method.
FECR (Fla East Coast RR) (US v.) (US 1973)ICC still confronting RR car shortages. This time the
institute rate increases (instead of rule). Promulgated after N&C (informal) rulemaking after
Allegheny. The Statute requires a hearing, but doesnt say on the record. Lower CtHearing means
on the record. S.Ct.followed Allegheny to say that informal rulemaking is fine. Ct said hearing
changed meanings since APA was passed. (This was probably not Congs intent: 553s procedures
never described as a hearing and ICC rate settings were always done in formal procedures). Dissent:
DP (although prob not an issue). Policy: this was a backlash against formal proceedings that took too
long and were wasteful.
FLRA (Dept of Treasure v.) (DC Cir 1993)Govt eees have a union but they cant go on strike and they can
only bargain on terms that are not provided for in the statuteissue is whether the wages are
specifically provided for (fixed by public interestopen ended, but provided for in statute). Bd said
the wages were set by the statute, but there was no rule and the precedent was inconsistent. Agency
must explain itself in a common law way to depart from its precedent. Part of justifications required
thru the hard look doctrine.
Freytag v. Commissioner (US 1991)special trial judges in the Tax Ct are inferior officers. 5 Justices said
that Tax Ct is a Ct of law, and not a dept, because it is adjudicatory, so officers are not appointed subject
to the Appointment Clause. Scalia Concurring: (other 4 Justices) Tax Ct is not a Ct of Law b/c the Cts
of law means only art III cts, which the Tax Ct is notit is executive. But the chief justice of the tax
Ct is the head of that agency, so he can appoint the STJs.
Frothingham v. Mellon (US 1923)-taxpayer sues to enjoin Cong from spending money on Social Welfare
Legislation, she has no standing to sue. (1) this is a generalized grievance to all taxpayers; (2) each
taxpayers grievance is minute and uncertain; (3) policyfear of flood of suits; (4) Const/Sep of Powers
public concern is not for judicial resolution; (5) unprecedented. NOTE: Ct never made clear whether
there was no standing b/c of Const or if this was a prudential decision.
Goldberg v. Kelly (US 1970)Welfare system in NY denies welfare benefits. Process is: caseworker
discusses with recipient, seven days notice in which recipient may submit a written statement, then
discontinued immediately, then post-termination independent hearing. It is insufficient process to have
the hearing after termination: (1) welfare is life sustaining (moving in direction of giving poor a
property right in their benefits); (2) need an opportunity to be hearddoesnt need to be judicial or
even quasi-judicial (no formal written opinion needed), but a written submission isnt sufficient b/c: ppl
who are poor tend to be less educated, more disadvantaged in written persuasion; cant mold your
argument to what agency is deciding on; face-to-face value.
Gonzales v. OR (US 2006)OR legalizes assisted suicide with that exempts from civil/criminal liability
physicians who in compliance with provisions, prescribe lethal dose upon request of terminally ill
patient. Drs are only supposed to prescribe Schedule II drugs with a legitimate purpose, and AG
decides thru an interpretive rule and assisted suicide is not a legit purpose. The regulation just parroted
the statute. (H1) Auer deference is inappropriate because the issue is what the term from the statute,
not from the regulation, means. (H2) No Chevron deference b/c even though the term is ambiguous,

he was not interpreting it pursuant to Cong authority-- gives him power to make rules for the control
of drugs, but not to define the standards of medical practice. Control= assigning a drug to a schedule.
The Interpretive rule did not concern scheduling and was not issued after required procedures regarding
scheduling, so not under AGs control authority. AG also claimed to be able to deny registration if
issuance is against public policy but he did not consider the 5 factors that the requires him to
consider in denying the registration here, AND, his rejection is based, not on broad policy, but rather on
an interpretation of the substantive federal law requirements for a valid prescription (saying that using
controlled substances for suicide is a crime)which is beyond his authority. And AG shares authority
with Secretary (Sec is in charge of sci and med determinationsScalia says not registrative auth).
Under Skidmore, AGs interp is unconvincing. Scalia, Dissent: AGs interp of legit med purpose
should get Auer deference; AGs interp is most natural reading of ; AGs interp of statutory phrase
public interest and implicit interp of public health and safety should get Chevron deference.
Gray v. Powell (US 1941)(REVIEW OF LAW) Decided 5 yrs before APA. Dept of Interior had program to
stabilize pricesif a coal-consumer was also a producer could be exempt from program. Seabord RR
would win if it can show that it was a coal producer or if coal involved a transfer of title. Ct
emphasized the discretion Cong granted to expert agency to determine who is a producer. But in
upholding the agency determination that the coal was sold (by indep Kor who leased Ss land), the Ct
engaged in extensive reviewlike de novo. So SCt defers to agency determination that Seabord is not
a producer. Dissent says that review of law is for Cts to do de novo, would say that Seabord is a
producer.
Greater Boston Television Corp v. FCC (DC Cir 1970)LeventhallHard Look Doctrine. The cts
supervisory function falls on the Ct to intervene not merely on factual and procedural inaccuracy, but
more broadly if the Ct becomes aware, especially from the combo of danger signals, that the agency
has not really taken a hard look at the salient problems, and has not genuinely engaged in reasoned
decision making. Also note that this means that agencies must provide an adequate record.
Hearst Publications (NLRB v.) (US 1944)(PRE-CHEVRON) Newsboys petition Bd to unionize, Bd finds
they are employees, they elect union. Newspapers wont bargain with union. Bd finds eors violated
the act. Ct Ap revd and found that newsboys are not eees, rather under C/L are indep Kors. Issue:
who is an employee? Who defines employee when statute is unclear: C/L or agency? Here C/L is not
uniform or clear. If we leave it to CL, then there will be different definitions/rights depending on the
satethat is not Congs intent. Unless Cong makes it very clear, a federal law will not depend on state
law. So look at history, terms and purpose of the law to see whether CL governs. But then defer to
agencys determination as to whether the newsboys
Heckler v. Cheney (1985)death row inmate petitions FDA to start enforcement proceedings against
prosecutors for using drugs for lethal injection, when they are not supposed to be used in a way that is
not safe and effective. Ct upholds FDAs decision not to act. Presumption of unreviewability when
agency fails to initiate enforcement proceedings; presumption may be overcome by Cong intent to
require agency action. When looking at to decide reviewability, ask whether the is drawn so that a
Ct would have no meaningful standard on which to judge the agencys exercise of discretion. Note: Ct
could have but did not use hard look doctrine and just make it easy to pass that standard. SIG:
importance of prosecutorial discretion.
Hodgson (Industrial Union v.,) (DC Cir 1974)Secretary of Labor under OSHA must regulate concentrations
of asbestos in the workplace (know only that lots of exposure is bad, but vy little evidence on low level
exposure) and set timeframe for implementation (some industries would take more time than others).
Sec sets 2 fiber standard, effective in 4 yrs for all industries, and also says that medical records will be
kept 10 yrs, monitoring records kept 3 yrs. (1) Ct says that Secretary should explain why the
implementation delay is uniform across industries. Maybe it would be more difficult for the agency to
stagger compliance, but must get some facts and assert this (not post-hoc rationalization). Also, the
delay is okay, and Ct dont require a mathematical formula, but it does need agency to provide a reason
for the delayed implementation. (2) keeping monitoring records only 3 yrsthis is problematic for
diagnosis, and for research that might provide more facts on low level exposure.

JEM Broadcasting Co v. FCC (DC Cir 1994)FCC made regulation that if there was any error in your
application, it was denied without an opportunity to correct. JEM argues it passed this regulation w/o
proper N&C, now that its enforced against him. The Ct will not review procedural challenges to
regulations after the SoL has run, unless there was deficient notice. Reasoning: The harm does not
affect JEM in the enforcement, it affects him when he cant commentprocedural harm. Agency also
claimed that they were exempt from N&C reqs of 553 b/c this was a procedural rule, but agency
reject it. Looks at (1) Rights and Interests Testdoes the agency action affect the rights and interests
of affected parties? (2) Sufficiently grave effects testsubstantive rules tend to have grave big effects
(but this is ambiguous); (3) Reasonableness Testworks, but is logically weak to say that unreasonable
makes it substantive.
Kansas City Power & Light Co v. McKay (DC Cir 1955) supplies electricity, challenges govt for
unlawfully granting loans to subsidize a federal power program that competes with . Ct says no legal
harm b/c C/L rights are not harmed by this competition, but dissent would include this harm under
702.
Kimm v. Dept of Treasury (Fed Cir 1995)Kimm is ATF officer who drove kid to school in gov vehicle in
violation of code. ALJ rules for Kimm, Agency rules against. Fed Cir revs and rules for Kimmsig,
lots of deference to ALJ. ALJ was probably right because there was no willful violation since hes
undercover, would take much more time to drop kid off, come home and get other car, he thought he
had some discretion. Also, Bd reversed, saying that child was an unauthorized person, but that is also a
matter of discretion, and didnt support that finding with any reason for contradicting the ALJ.
Laidlaw (Friends of the Earth v.) (US 2000)Citizen suit against hazardous waste incinerator facility that has
exceeded its mercury emissions in river, but no significant pollution. They have standing b/c they
allege injury in fact: they claim they use the affected area and are persons for whom the aesthetic and
recreational values of the area will be lessened by the challenged activity (distinct from Lujan b/c area
is more discrete and s have greater connection to itmore direct harm); is redressable b/c
finedeterrence=redress (a sanction that effectively abates that conduct and prevents its recurrence
provides a form of redress. Civil penalties can fit that description. Dissent says only availability of
civil penalties, but (1) imposition and availability are interdependent, and (2) they show the law will be
enforced. Scalia, Dissent: The harm is environmental, and there is in fact no real harm (only perceived
harm) to snot injury in fact if they only have subjective apprehensions. Not redressable b/c fine
is a penalty, not actually fixing s problem. ALSO, Sep of Power issue, b/c now part of agencys
prosecutorial discretion is removed to citizens (but this is contemplated by !)
Landry v. FDIC (DC Cir 2000) lost a hearing, and challenges the appointment of the ALJ, saying that he
is an inferior officer and so should be appointed by the Dept head, rather than by agency. ALJs are not
Officers of the US. (Ct never reached whether they would have been properly appointed had they been
inferior officers). Cf w/ Freytag: Special Trial judges in the tax Ct were found to be inferior officers.
They are distinct from ALJs b/c (1) agencies exercise de novo review over ALJs recommendations,
whereas in Freytag they made the final decision. (But, in Freytag, the Ct said in dicta that even w/o
final decision-making power they would be inferior officersbut that is ignored).
Laro Maintenance Corp v. NLRB (Ct Ap DC 1995)union cleaning case where Laro takes over and fires
union eees. ALJ finding adopted by Bd. Sig: when they adopt it the BoP stacks up. Ct ensures that
Bds reasons are reasonable though.
Lincoln v. Vigil (US 1993)Indian Health Service gets a lump sum appropriation from Cong. Changes way
it will spend its $$, and ppl who will no longer receive benefits sue. Agency allocation of lump sum
appropriations are within agency discretion, such that they are not subject to judicial review under
701(a)(2). Souter looks at more factors, rather than relying as much on the no law to apply standard
(e.g. policy behind lump sum, tradition of not reviewing how they are appropriated, the fact that the
discontinued program was not provided for by ). Also SIG to show that its hard to tell whether
agencys statement (changing its policy) is a rule or not (and thus subject to N&C reqs)
Londoner v. City and County of Denver (1908)In Denver, improvements that affect a discrete group are
paid for by the beneficiaries through a special assessment (rather than a general tax). Normally you

need a petition by a majority of the homeowners to the Bd of Public Works, which transmits it to the
City Counsel. Here the assessment was improper because there was no petition. There was thus no
notice to homeowners. Ct expands notice to include the issue of a hearing (wasnt raised below) and
overturns the assessment on the grounds that didnt have an oral hearing as required by Due Process
in the 5th Amendment. This is not the case today, where submissions may often be written.
Louisiana Federal Land Bank Assn v. Farm Credit Admin (DC Cir 2000)agency wants to remove
geographical limits on lending to farms. There are two types of loansdirect and participation. The
objections (that agency didnt have statutory authority, that geographical restrictions were part of
statutory scheme, that this would hurt farmers) were in the context of the direct loans. The agency
changed the scheme only for participation loans, not direct. Ct reversed b/c didnt respond to
comments. Even though they were for direct loans, they apply equally to participation loans. SIG:
cant escape comment requirement through a technicality. Effect: agencies respond to everythingthis
could be an overexpansion of bureaucracy or good governance.
Lujan v. Defenders of Wildlife (US 1992) says agencies must plan their projects so as not to destroy
animal habitatmust consult with DOI and get Sec of Interior to do Endangered Species
assessmentjoint regulation (multiple agencies promulgate it). DOC and DOI interpret statute to
apply only domestically, even though does not have that limitation. Ct says: Standing is a Const
requirement; Cong cannot grant it where it does not exist. 3-part inquiry for Const standing: (1)
invasion of a legally protected interest, that is also (a) concrete, (b) particularized, and (c) actual or
imminent; (2) causal connection (injury caused by ); AND (3) redressability (must be likely that it
can be fixed by judicial remedy. s fear Sri Lankan crocs will die, and they like to observe them(1)
no standing b/c not imminent=no injury in fact. Ct rejects ecosystem and animal nexus, also vocational
nexus, but doesnt reject that a with actual vocational interest in this might have injury. Ct also
rejects procedural injurymust have something at stake to suffer procedural injury. (2) no standing b/c
no redressable (2 agencies involved, so reversing one wont fix anything). Kennedy, Concur: nexus
might be enough in some other case. Would allow Cong more leeway to define injury throughout the
big interconnected world. Stevens, Concur: reverse on merits (not standing)1injury: have
standing b/c imminence of injury is measure starting at harm to environment, not to when you
eventually fly to Sri Lanka and see no crocsinjury is have less choices in this world, since they are
harmed. 2redressability: if Ct determined whether DOI regulations bound other agencies it would be
redressable. Blackmun, Dissent: Exosystem nexus is valid, and should win. Only need to show
genuine issue of material fact for standing.
Matthews v. Eldridge (US 1976)No evidentiary hearing required before SS disability benefits are
terminated. Distinguish disability from welfare benefits w/ 3 factor test: (1) Private Interest: s
interest is high, but not as much need as w/ welfarenot necessarily poor; (2) Risk of erroneous
deprivation: evidence here is more objective (medical reports), more compatible w/ written submission,
less to gain by oral arguments; (3) Govt interests: resources. Criticism: presumes only substantive
harm, not procedural harm (ignores dignitary interests). Brennan, Dissent: amount of harm is
speculative.
McCarthy v. Madigan (US 1992)Prisons have a protocol an inmate must follow before he can sue. inmate sues (pre se) medical staff for monetary damages (1983). Ct found that did not need to
exhaust his claim for $$ damages. When organic statute is silent on the issue of exhaustion, the court
must balance the interest of the individual in retaining prompt access to a federal judicial forum against
countervailing institutional interests favoring exhaustion. Interest in favor of exhaustion: (1) agency
authority (fix their mistakes, sep of power) (2) judicial efficiency: better record. Litigants interest
against exhaustion: (particularized to ) (1) undue prejudice: (a) unreasonable timetable, (b) irreparable
harm, (c) defense to criminal liability (can challenge on merits even if not raised below, e.g. draft
dodgers); (2) agency cant grant effective relief: (a)institutional competence, (b) agency procedure is
the harm, (c) no authority to grant relief sought; (3) agency bias. Application: (1) Cong didnt
meaningfully address exhaustion in this . (2) Litigants interests are sig: (a) undue prejudice b/c

unreasonable timetable (many short deadlines) and (b) no effective relief b/c prisons dont grant $$
damages. (3) Agencys interests arent particularly pressing.
MCI v. AT&T (US 1994)[Subservient Statute & Chevron] 203(a) requires communications common
carriers to file tariffs w/ FCC (filed rate doctrinemust have just rates) and 203(b) authorizes FCC
to modify any requirement of 203. Issue is whether FCCs decision to make tariff filing option for all
non-dominant long-distance carriers (like MCI) is a valid exercise of its modification authority.
Modify is not unclearit means less change than change which means you cant make basic and
fundamental changes in legislative scheme. Note: Here the was subservient to the agency, so Cts
jurisdiction over the case depended on whether modify allowed a fundamental change. (If it had
been a true modification, would the Ct have had any jdxn? Or if modify included big change, could Ct
have continued on to step 2?)
MCI v. FCC (DC Cir 1995)Rulemaking about unbundling telecom services. IXCs are important (long
distance companies) and ESPs are not very important (you call the number and e.g. get the weather). In
a footnote in the background section, the Agency said that IXCs would lose the ability to bundle (the
rest of the notice was on ESPs). Holding: You cannot bury the notice. Note: only one IXC that found
out about itheard about it by talking with someone in the agency. Each entity is not responsible for
monitoring each others responses. maybe if theyd all gotten actual notice, that might be enough, but
Sprint cant represent MCIs interests!
Mead (US v.) (US 2001)S.Ct. grants Skidmore, not Chevron, deference to tariff classifications by Customs
in a ruling letter. The ruling letter is the official position of Customs, but since the decisions are not
centralized, Admin implementation of qualifies for Chevron deference when (1) Cong delegated
(express of implied) authority to agency to make rules carrying force of law, and (2) agency interp
claiming deference was promulgated in the exercise of that authority. To see if there is implicit
delegation, look for indicia: Cong gave power of rulemaking, adjudication (which create regulations
claiming deference!?)basically did they delegate procedures that foster fairness and deliberation?
(e.g. notice and comment maydelegation, but not determinative) There is a sliding scale of
Skidmore, and as you approach an implied delegation, Chevron kicks in. Here, the procedures
(decentralized decsionmaking) do NOT indicate a delegation to make regs with weigh of law, so no
Chevron deference. SIG: customs ruling letter is an interpretive ruling so it gets Skidmore deference,
not Chevron. Scalia, Dissent: Maj is changing test from presumption of authority to resolve ambiguity
to presumption of no delegation of authority to agency in absence of affirmative leg intent. Now Cts,
rather than agencies, decide ambiguous delegation of authority. Will lead to increase of informal
rulemaking (instead of interp rules) and more uncertainty as to when apply Chevron
Mistretta v. US (US 1989)Cong delegated task of making sentencing guidelines to the US Sentencing
Commission. Set list of principles (retribution, deterrence, incapacitation, education (no longer
rehabilitation)) and said that wanted to ensure certainty and fairness while providing flexibility. SIG:
all these policies are at some point in conflictno real guidance. But did say they wanted a grid, with
a point system, and they said some characteristics that could not be considered in calculating sentence,
and others that would be. This is okay under the Nondelegation doctrine: (1) Const doubt doctrine
provides some check; (2) Const set out specific tools for Commission (grid, what you can(t) consider);
(3) making guidelines is labor intensiveits good to have expert agency doing it. Intelligible
Principle = Cong must say the general policy, the agency to apply it, and the boundaries of the
delegated authority. Scalias Dissent: These are just broad standards that dont guide. The powers
delegable to an agency must be ancillary to that branchs power (i.e. quasi-judicial here should be in
judicial branch), otherwise we are creating another branch, a JV Congress.
Morrison v. Olson (US 1988)Indep Counsel appointed by Special Division (a Ct of law) if AG says there is
cause. S. Ct finds the IC is an inferior officer, so his appointment is proper. 4 criteria to determine
Principal v. Inferior officers: (1) removability (here hes removable by AG for good cause); (2) scope of
duties (here he has enforcement, but no policy, rulemaking or adjudication duties); (3) scope of jdxn
(limited to 1 subject of investigation); (4) tenure in absence of removal (temporaryends after 1
investigation). CAVEAT: for interbranch appointments, appointment cant impair a branchs

constitutional functions and there cannot be an incongruity b/t the power of the branch and the
appointment (here is okay). Scalia, Dissent: (1) IC is barely removableproving for cause is hard,
and removal is not by the Pres; (2) enforcement power is unhindered; (3) doesnt matter that the jdxn is
limited (the ambassador of Luxembourg must still be appointed); (4) investigations go on indefinitely.
IC is not inferior to any officer in the executive branch.
Motor Vehicle Manufacturers Assn v. State Farm (US 1983)agency issues safety standards for cars
requires passive protection (1972)airbags, automatic seatbelts and ignition interlock. After having
required these safety features, the agency rescinds the regulation requiring passive restraints. State
Farm challenges, and Ct remands b/c agency didnt justify its decision sufficiently. For the rescission
of a rule: agency cannot just undo, must meet A&C review. Ct says a decision is A&C if agency: (a)
relies on factors that congress didnt intend it to consider (although Ct requires them to consider
additional factorsones that arent foreclosed by Congress), (b) fails to consider an important aspect of
the problem, or (c) offers an explanation that runs counter to the evidence or is so implausible that it
cannot be ascribed to a difference of opinion. Here, Ct didnt consider just having airbags, rather that
rescinding the req for all passive restraints, and didnt consider making auto-seatbelts non-detachable.
Also, agency proffered post hoc justifications, but Ct wont consider them if not considered during
decisionmaking process; and Ct wont supply the reasoning for an agencys action. Agency wanted the
legitimate purpose (minimal rationality) standard that is afforded to the legislature, but says that
rather, there must be a rational connection between the facts found and the policy choice made (cant
just cite substantial uncertaintythis is SIG b/c it gives cts power to scrutinize and require
justification even where there is scientific uncertainty. Rehnquist, partial Dissent: Would defer to the
agencythe change in policy is due to the new president, and this is okay because its democracy in
actionthe ppl hated the safety features and thats why they elected Reagan.
National Park Hospitality Assn v. DOI (US 2003)Natl Park Rule provides that Ks with concessionaires
are not subject to the Contract Dispute Act. Trade assn- challenges b/c the DCA would allow Kors a
more efficient way of filing suit down the line. St says no judicial review b/c there is no hardship (i.e.
this doesnt affect bidding behavior), and b/c we need more facts (we dont even have a K, or any
disputes). You need some uncertainty in the legal environment or you will have advisory opinions.
Breyers Dissent: This is purely a legal question, so we should resolve it.
NCUA (National Credit Union Admin v. 1st Natl Bank (US 1998)credit unions were alternatives to banks
they were less strictly regulated and were meant to reach underserved areasthey were only
available to those with a common bond. The new requirement will allow association (1 group w a
common bond with another group with a diff bond, etc), and bank challenges b/c doesnt want
competition. Ct: determine the interests arguable in zone protected, then inquire whether s interests
are among those interests (looking at interests rather than groups of s). Cong has interest in limiting
the ways credit unions compete with banks; bank shares this interest; BANK HAS STANDING. Note:
hard to reconcile with Air Carrier (govt and postal workers both have interest in monopoly)maybe
there is a causation elementlimiting markets more directly affects competition, whereas allowing intl
remailing and promotion of govt monopoly is more attenuated. OConnor Dissent: if zone of interest is
meant to be a hurdle to standing, then weve eviscerated that hurdle with this interpretation.
Ohio Forestry Assn, Inc. v. Sierra Club (US 1998)US Forest Service makes permits to permit logging in
certain areas of parks, Sierra Club seeks judicial review of the plan, S.Ct. says it is not yet ripe. Ct
looks at whether: (1) delay hurts s; (2) the intervention is an improper interference with the agency;
and (3) more facts are needed. (1) There is no compliance demanded from s so arent harmed (SIG:
look to whether s must modify their behavior); (2) intervention interferes w/ agencys ability to refine
and reforms its policiesthere are cases pending within the agency for it to resolve on its own; (3) This
case could use some facts.
OLeary v. Brown-Pacific-Maxon (US 1951)(PRE-CHEVRON) eee, while at eors recreational center,
dies trying to rescue a guy in the prohibited channel. Do we apply CL def of in scope of
employment? Ct ap says yes, S. Ct. says no. Ct resolves the purely legal questionreasonable rescue
attempts are within scope of employment. What is reasonable is a factual question that agency can

resolve (they said it was). Ct reviews this determination under a standard similar to subst ev, since is
legal fact Q. Ct pretends this is a Q of fact (like in Hearst) b/c scope of statute and legal status is a Q of
law!
Overton Park (Citizens to Preserve) v. Volpe (US 1971)-- says no highway thru parks unless there is no
feasible and prudent alternative and there is all possible planning to minimize the harm to the park. Sec
of Transport authorized highway to be built thru park, citing this and claiming that his action was
committed the discretion by law, because he has power to use his funds. The Ct strikes down his
action. There will be judicial review unless there is no law to applyvy narrow exception to the
default rule of j.r. Here, there is law, b/c prohibits highways thru parks except under limited
exceptions. INFORMAL ADJUDICATION: informal adjudication, no formal findings required, but
might be exceptions for natl defense; internal personnel communication (interagency communication);
trade secrets; organic is unclear; medical and private; law enforcement purposes (some); financial inst
reg; geological and geophysical info on wells. Post Hoc Rationalizations are insufficient. Blacks
Dissent: more review!
Pacific Gas v. FPC (DC Cir 1974)There was no N&C on a rule about who gets preference in getting gas
from pipeline. N&C not required b/c agency issued a policy statementjust stating the policy that it
hoped to implement, not what it was really doing (no legal effect)
Packard Motor Car Co v. NLRB (US 1947)Ct determines that as a matter of law, foremen are not barred
from unionizing, but Bd must decide on the facts. SIG: this is the same statute and word as was at issue
in Hearst, but the result is different. Shows that the regime is collapsing and producing inconsistent
results. We need Chevron to change things!! The departure is that in Hearst, they deferred to agencys
view more, here they dont because its a naked question of law, but really the question is in
applicationshow much supervision is enough to make you not an employee.
Panama Refining Co v. Ryan (US 1935)law delegates to Pres authority to prohibit interstate transport of
excess petrol (that violates state law). Struck down as unconst delegation of leg authority b/c Cong
didnt set out any conditions or guiding policy goals to guide executives actions. Cardozo, Dissent:
we need flexibility to allow for changing circumstances.
Pauley v. Bethenergy Mines (US 1991)qualification for Black Lung Comp cant be more stringent in DoLs
procedures than in HEWs. New regulations include more types of evidence that can establish a
presumption of bad lung, but there are now 4 (rather than 2) ways to rebut the presumption. The
ambiguity is whether you look at eligibility as a whole, or at individual criteria. Since the system is so
Byzantine the majority defers. Scalias Dissent: Complexambiguous, so would not grant Chevron
1 deference, and then finds the new program more stringent on the merits. SIG: both miss the point
focus on how complex, not on grammatical ambiguity.
Pension Benefit Guarantee Corp v. LVT (US 1990)Govt Corp, PBGC, decides to make corp, LVT,
responsible again for its pension obligations. Does so by issuing a note of restoration (informal
adjudication). Ct affirms b/c organic statute allows this (VT Yankee), and the agency provided
sufficient record. Applying VT Yankee to informal adjudications. Not inconsistent with Overton Park
b/c there they were just asking for enough review to be able to do review, not requiring more
procedures.
Portland CementEPA sets pollution levels. Publishes exact words of proposed rule. Didnt include the
studies it relied on. By not providing the background in an adversarial proceeding, you are foregoing
the accuracy that is the purpose. Implicit in comment is right to make informed comments
Processionals & Patents for Customized Care v. Shalala (5th Cir 1995)Pharmacies are compounding in
large scale. Agency wants to distinguish legal drug compounding from illegal drug manufacture. FDA
issues a statement9 factors to weigh in assessing whether this the compounding is illegal. Ct says
FDA is characterizing this as a policy, not as a rule. SIG: Ct does not draw a line in the sand, that once
crossed removes all discretion from the agency, and forces it to create a rule, rather than an interpretive
standard.
Public Citizen v. Young (DC Cir 1987)Act says that color additive may only be used after FDA finds it is
not found to induce cancer. FDA found de minimis exception, but Ct says the clause explicitly lacks

that exception. Principle of de minimis: notwithstanding the plain meaning of a , a ct must look
beyond the words to the purpose of the act where its literal terms lead to absurd or futile results. Here,
the risk of cancer was 1/19bn and 1/9bn at worst. Agency claims inherent authority under de minimis
doctrine to list dyes if the risk was less than 1/1mill. Ct agrees the risk is negligible. But cannot read
exception into b/c (1) text is rigid; (2) context (admin discretion in admitting other
carcinogens)rigid; (3) leg historyridig interp; (4) Cong had policy for foreclosing de minimis
exception.
Rapaport v. US Dept of Treasury (DC Cir 1995)Office of Thrift regulates how much $$ these thrifts have
on hand. OTS decides that the majority SH must may $ b/c he was unjustly enriched. R claims
insufficient ev to show unjust enrichment, Ct agrees. OTS administers this with 3+ other agencies
we dont defer if there is shared administration. Otherwise the ambiguities would be resolved
inconsistently. So de novo review.
Reno v. Catholic Social Services (US 1993)INS makes procedure for illegal aliens to change their status.
Following the regulations does not ensure that your change in status will be granted. s challenge right
of agency to retain discretion (procedural challenge). Ct says not ripe until someone does go through
procedure and then agency denies their application (and deports them!)
Roth (Bd. of Regents of State Colleges v.) (US 1972)assistant Prof hired for 1 year term at state university.
Said his K wasnt renewed b/c things he said in class. His interest in his job-renewal is not protected by
the DP clause. DP protects Liberty and Property (Note: Ct declines to define Life as anything more
than govt not killing you). (1) DP requires some kind of hearing, though not always a formal one; (2)
Liberty = more than freedom from constraint, includes right not to have standing in community
damaged, Ct makes a list that doesnt include keeping job (here they arent attacking his reputation
such that he couldnt get a job elsewhere); (3) Property = perhaps in your job, but you need a legit
claim or entitlement. Here, his employment K is up so theres no entitlement.
Schechter Poultry v. US (US 1935)Natl Industrial Recovery Act (NIRA) gives Pres authority to makes
codes of fair competition for trade groups. Has Cong given exec enough guidance to determine what is
fair competition? It is not a term of art. Even with a preamble and policy goals, there is insufficient
direction. Allows president too much influence over industry. Exec can only authorize what the trade
group supplies, but this is not limiting enoughCong must tell the president what he can do, not just
what he cannot do. Today would be reviewed under hard look.
Seminole Rock & Sand Co (Bowles v.) (US 1945)Office of Price Admin brought enforcement proceedings
against for selling crushed stone over max price-- was to combat war time inflation. Admin made
specific regulation to regulate max price for this period, and interprets time period to include
transaction, even if receipt is afterward. Interpretation was not made through informal rulemaking. Ct
grants deference to agencys interpretation of its own regulation
Shaughnessy v. Pedreiro (US 1955)There is a 1952 immigration statute saying that AGs deportations
orders shall be final. In 1953, S.Ct interpreted final (in the 1917 version of the statute) to preclude
judicial review by any means other than habeas corpus. But in 1955, the Ct gives new interpwas
repassed after the APA was passedso final means final administrative actionthe language is not
strong enough to preclude judicial review.
Sims v. Apfel (US 2000)Simss SS benefits were denied, she requested review, denied again, then appealed
to 5th Cir. S did not exhaust issues. Ct does not decide for every situation, but here, failure to exhaust
issues does not defeat judicial review of her claim. Factors in this case: (1) This is an inquisitorial
process, not adversarial, so we arent worried about giving the other side notice of issues; (2) the
procedures are informalno lawyers requires so Ct doesnt want to trap people who dont know all the
rules.
Skidmore v. Swift and Co (US 1944)s worked in fire safety for Co, had to be on call. Action to get back
pay and overtime from the on duty time. Lower Ct said that this is not work, as a matter of law. S. Ct
reversedno reason this cant be work time. Set up different from other pre-Chevron cases: the case
was brought to T. Ct, not agency. Agency doesnt make rules, determines case-by-case. But
Administrator filed amicus curiae. Ct says that it grants deference to the brief based on the

thoroughness, validity of reasoning, consistency of administrators decision. Remanded to D. Ct

since now, recovery is not legally precluded, must do factual findings of whether this is work time,
considering Admins Bulletin.
Spear (Bennet v.) (US 1997)Under EPA, Bureau of Fish and Wildlife must issue a biological opinion on an
irrigation project on its effect on endangered fishes before its constructed. s (having economic
interests in keeping water levelsdont want irrigation project) file citizens suit against DOI for giving
the go ahead. Govt argues that it is only speculative that water levels will drop so shouldnt be injury in
fact and that b/c another agency has to act to complete the project there is no causation. Ct disagrees
there is STANDING, b/c since this is just the complaint stage we assume facts in favor of standing. (1)
injury in fact can be unclear now (if later we find no water reduction then fine); (2) causation is fairly
traceable since DOI does license; (3) redressableeven though other agency might act w/o license, it
creates a safe harborthe opinion would be so coercive that revoking it is a remedy.
Standard Oil Co. of CA (FTC v.) (US 1980)FTC is statutorily required to file a complaint only when the
agency has reason to believe that the company had acted badly. Std Oil seeks judicial review now,
arguing that the reason to believe provision has been violated, and that it can only be remedied by
review now (if they wait, they will be found not guilty and wont appeal, if they are found guilty then
there was reason to believe). Ct says they can not get judicial review b/c the initiation of an
investigation is not final. To determine what is final you look to whether the agencys decision has
legal effect or practical effect. (Having to litigate is not a practical effect). Note: at the time, an
interpretive rule had legal effect (was authoritative) but now they only get Skidmore deference, so its
unclear whether you could challenge an interpretive rule with threshold requirements on the decision.
(Puerto Rico) Sun Oil v. US EPA (1st Cir 1993)EPA uses state (PR) draft certification to set levels of
pollution allowed in permits. Allow mixing zone analysis where they look at certain area of water to
find concentration of pollution, rather than just the waste pouring into the water. There is also nobacksliding rule. PR agencys draft didnt include a mixing zone analysismany delays, EPA
extending deadlines etc, then when PR agency issues final certification (w/o mixing zone analysis), the
EPA adopted the certification quickly. PR agency wants to reconsider to include mixing analysis, but
agency denies. Ct remands to make agency explain its denial of reexamination. SIG: Agency now
required to explain why it didnt make an exception, and its not enough to say this is against
protocol. Ct says it just makes no sense for them not to have allowed PR to reexamine and would
have led to the right decision. (Were they mouse trapping the PR agency, or trying to finally be done
with certification).
Sweet Home (Babbitt v.) (US 1995)Endangered Species Act makes it illegal to Take an endangered
species, and the statute defines take as to harm a species or its habitat, harass, wound kill. Does
harm include degradation of habitat, as agency believes. Majority defers to agency definition b/c harm
is an ambiguous term. (1) Statutory term: Majority(Stevens)ordinary meaning of harm includes
indirect harm; Dissent(Scalia)many meanings (hmm..) and Ct should pick the best meaning, which
requires positive action; (2) Cannons of Construction: Stevenssurplussage (avoid giving words
repetitive meanings)unless harm includes omissions it adds nothing to lang; Scalianoscitur a sociis
(look at surrounding words) would be only word w/o positive action requirement; (3) Purpose of Act:
Stevensthis furthers the end of the act (saving species); Scalialegislators do not have a common
intent; (4) Subsequent Congressional Action: there is another act allowing EPA to buy private lands for
incidental takings. Stevens: shows that there may be some incidental takings through the leg; Scalia:
not relevant to this statute; (5) Leg Hist: Stevenslooks at floor speeches for broadest possible interp;
Scaliahates leg hist (although we are bringing in everything else!) but tries to prove that it is unclear.
Scalias Dissent: Take is a C/L term of art, C/L is prism for interpreting ; also, forfeiture section
provides for forfeiture of guns, but not hoes and bulldozersppl thinking of killing not development
that destroys habitats. OConnor Concur: there might still be problems w statute, but as applied it is
okay (this is not a facial challenge); also, Ct interprets an ambiguous regulation to be consistent with
such that it will get Chevron deference.

Syncor Intl Corp v. Shalala (DC Cir 1997)Drugs for PET scans were not regulated under FDCA (they have
short half-lives), but then FDA issues an interp rule saying that the pharmodrugs will be regulated. Ct
remands b/c this is a substantive rule change, not an interpretation, and so they needed to do N&C.
SIG: Interp rule must be interpreting somethingthis is a shift from Am mining, where they were
looking at agencys intent, or the effect. Now Ct says it is about whether the agency is engaging in the
process of interpretation. Here there was no interp going on, they are just changing policy (didnt use
to regulate, now they will regulate). Note: the vaguer the term, the more it is like policy making, rather
than interpretation, so the more likely you need N&C.
Tennessee Gas Pipeline v. FERC (DC Cir 1992) Agency can exempt itself from N&C reqs for good cause,
but must say what that good cause is. FERC made an interim law that companies had to inform the
agency where their new gas pipelines would be built. Agency doesnt go through N&C because they
claim to have good cause b/c its only interim rule and they say that there is a strong public interest in
protecting the environ until the real rule comes down. Ct rejects thisotherwise we would have
interim rules indefinitely. To issue an interim rule under the Good Cause exception, agency must
provide factual support for the fear that w/o the interim rule there will be environmental damage.
Toilet Goods v. Gardiner (US 1967)FDA regulation allows it to suspend a corps certification if they deny
the FDA access to its facilities or formulae. Ct acknowledges its a purely legal question, and that
grants j. review. Wont review b/c (1) they would also be reviewing enforcement policy; (2) there is no
harm or direct effect before enforcement (formalistic distinction); (3) No irremediable adverse
consequences (like criminal charges). SIG: in the DC Cir, as long as the policy is sufficiently fleshed
out to allow the ct to see the concrete effects, the ct will entertain a pre-enforcement challenge.
United Food & Commercial Workers Union (US 1987)decided that theres no judicial review of NLRBs
dismissal of a complaint pursuant to an informal settlement, in which complainant refused to join.
Majority continued Cardoza-Fonesca line that it would use traditional tools of statutory construction to
intep, but if that was fruitless, i.e. the statute was silent or ambiguous, then defer, as here. Scalia
concurs (with 4 others this time) saying the Ct shouldnt use trad tools. SIG: Scalia says that
Cardoza-Fonseca did NOT remove purely legal questions from the Chevron two step.
Universal Camera v. NLRB (1951)Eee testified to NLRB and fired in retaliation, company denies. ALJ
says he was fired in retaliation, Bd does not adopt this, finds for the employer. The Ct Ap said it could
not consider ALJs findings and deferred by looking only at evidence that supported Bds decision. S.
Ct. affd, but set out SoR: (1) you look at record as a whole, which means consider the evidence on the
other side, and (2) you can consider the ALJs findings because they are part of the record. Alsolook
to organic for SoRhere its the same as APA 706 (2)(E). Judges must accept that they are
following a mood and there is no precise formula for substantial evidence. Affed because say Ct Ap
did actually look at record as a whole.
US Telecom Assn v. FCC ( DC Cir 2000)Act requires telecom companies to keep call ID for law
enforcementcompanies make standards and the govt or private party may challenge as deficient.
FCC requires that they keep more info than their original plan. Call Identifying information is
ambiguous, but is the info to be kept reasonably part of that def: tones, conf calls, get number typed in,
location from cell antenna. Ct looks at how agency has defined statutory terms, and remands b/c
doesnt justify why it gives this broad interpretation. Also, remands b/c FCC should have looked at
cost effectivenessthe cost is so great that it requires more explanation. SIG: (1) Ct looks for
reasonable interpretation and reasonable decsionmaking; (2) Ct willing to dig into numbers.
US Telephone Assn v. FCC (DC Cir 1994)Ct found that FCC schedule of fines for infractions was a leg
rule, despite the fact that it said agency retained discretion. Relies on: complexity of schedule and
empirical datain 300 cases, it was using it as the rule. Problem: might incentivize deviating from
interpretive rules, and might lead to vaguer rulesthis does not lead to certainty.
Vermont Yankee Nuclear Power Corp v. Natural Resources Defense Council (US 1978)Background: To
build a nuclear plant, you had to submit lots of reports to get construction license, then repeat to get
operating license. Agencys standard was whether there is a reasonable assurance that plant can be
operated w/o undue risk (included risk to the environment). The committee granted VY the license in

an adjudication. Then NRDC challenges on environmental grounds, then agency initiates a

rulemaking. Decide to measure environmental effects using quantitative approach (had measured it
qualitatively before). VY may keep its license, but has no precedential value. Ct App: Struck down
rulemaking (unclear whether was struck down b/c insufficient evidence on record for review or b/c
procedure was inadequate). S. Ct.: Says Ct. Apps reversal was based on procedural insufficiencies
(though probably was for insuff record). But S. Ct. was mad b/c DC Cir had been expanding hybrid
procedural requirements. Statutes set out the maximum procedures that can be required of the agencies
(But then it cites FECRwhich is not fair b/c those say we assume informal proceedings, not what the
procedures are within informal proceedings. Policy: adding procedure leads to unpredictable judicial
review, the creation of many new and unforeseen procedures, and we lose the benefits of informal
proceedings. Caveat: in some really rare cases, Ct could add some procedures. Note: this was moot
when S. Ct. decided it. On Remand, DC Cir reversed again, this time based on the requirements in the
organic statute, but the S.Ct reversed again!
Wagner Seed Co v. Bush (D.C.Cir. 1991)-- authorizes EPA to compel removal of toxic wastes from various
sites. Wagners warehouse hit by lightening, and EPA orders it to clean up the toxic substances that
were released. The accident and most of the clean up happened before Cong passed an amendment
under which anyone who receives and complies with terms of order (like Wagner) would be able to
recoup costs. Agency interps receives and complies to be forward looking. So agency is interpreting
(informal interp, pre-Mead) a statute that it does not administer. DC Cir gave it Chevron Deference.
Dissent: (Williams): would limit deference to statutes that agency administers
Webster v. Doe (US 1988)CIA agent fired after admitting he was gay (but did not have sex with foreigners
or give confidential info). Director has power to terminate an agent whenever he shall deem that
termination is necessary or advisable in interest of the US. (1) Statute precludes judicial review:
(deem=discretion, and in this case employment litigationrelease of secrets); BUT (2) Preclusion does
NOT apply to constitutional issues (DP & EP)clear statement rule with Const claims. OConnor, C
+ D: agrees that doesnt allow JR, thinks that Const claims are also precluded b/c natl security is
special. Scalia, D: (though really C+D) Discretion by law is broader than no law to apply test. His
approach distinguishes 701(a)(1) (statutes preclude law) and 701(a)(2) (committed to agency
discretion by law) by defining law as C/Lmany C/L grounds to exclude JR, including situations
with sensitive, discretionary decisions that are not traditionally reviewed, like here.
Yakus v. US (US 1944)Office of Price Administration was delegated power to fix prices, offenders could
get criminal liability. Cong said that prices had to be fair and equitable. (very similar level of guidance
to Schechter). (1) This delegation is upheld, and Ct distinguishes Schechter b/c the codes there were
undefined and the parties were private. This deals with a public agency, and there would be (more?)
review. Today the distinction doesnt matter so much b/c would both be reviewed under hard look.
(2) Challenges to regulations, even if they lead to criminal liability, can be overripe. BUT in Adamo
Wrecking Co v. US, the Ct defined emission standard narrowly so that a barring review after 30
days would not apply, and J. Powell in concurrence doubted the constitutionality of preclusion of
regulations that cause criminal liability after a short SoL. Maybe Yakus is distinct b/c w/in the war
power of Cong.
Yesler Terrace Community Council v. Cisneros (9th Cir 1994)The Determination that the public housing
tenants may be evicted for criminal activity w/o a hearing (as would be usually required) is a rule, not
an adjudication, and so should have had N&C. Ct focuses on generality of application in determining
whether this is a rulemaking or adj.
Zurko (Dickensin v.) (US 1999)Patent and Trademark Office rejected a patent, the Fed Cir revd on the
clearly erroneous SoR (less deferential standard used for D. Ct. judges findings of fact). S. Ct.
reverses Fed Cir, saying that patent law and the Fed Cir are not specialthey must apply the APAs
SoR like everyone else. Fed Cir relied on precedent of using C.E. SoR, since APA 559 says APA is
not limiting or repealing additional requirements recognized by law. But purpose of APA was to
standardize judicial administrative review. The precedent is not clear that the SoR was C.E. If the SoR

was unambiguously established to be different, then you could keep it, but otherwise, adopt APA. The
Cts expertise can be used in scrutinizing the record for substantial evidence.