Admin Checklist Getting in the door Standing – Injury in fact, fairly traceable to action, redressable by favorable verdict Injuries

– Aesthetic, economic, environmental, etc Sierra Club v Morton Zone of Interests – when party not directly subject to agency action (rulemaking) Liberal test Public Actions/environmenta Ripeness §704 – one suffering a legal wrong IS the issue proper for judicial resolution – factual inquiry vs. question of law Hardship to the parties if relief denied at this stage Timing – finality and exhaustion Finality – has agency completed decision making? Will result directly affect party? Exhaustion – usually must exhaust agency remedies Burden imposed, appropriateness of legal remedy, more factual inquiry?

Power issues 1) Non Delegation Doctrine Is there an intelligible principle guiding agency action? Agency can’t cure by narrow construction Courts will construe potentially overbroad statutes narrowly – Benzene cases 2) Executive power Appointment/removal issues – Buckley v Valeo, Humphrey’s Exec. Morrison’s inferior officer tests Does restriction on removal impact President’s power to take care laws executed? 3) Is the executive branch delaying other agencies/independent agencies? Court can enjoin – EDF v Thomas

Sinderman.long standing precedent that Congress can create art I courts .metallic. APAA v Byrd due process constraints Statutes can sometimes require hearings – Florida East Coast Railway Courts are severely limited in interfering with agency procedural choices – Vermont Yankee Agencies aren’t precluded from announcing new rules in adjudication – Chenery II §553 requires notice and comment on leg rules Promulgated rule needs to be responsive to public comments. Property Statutes can create property rights – Goldberg v Kelley. Liberty.Art III protects judiciary. Perry v Sinderman 2) If so. most deferential standard of review No post hoc rationalizations – State Farm Interpretive rule or legislative? Force of Law? Pub in Fed Register? Basis for enforcement w/o rule? Modify leg rule? Any rule not subjected to N&C is subject to more scrutiny . but doesn’t stop agency adjudication – CFTC v Schor Agency adjudication best where public rights are involved Small number of individuals or whole population? – Bi-Metallic Due process – 2 part test affirmed in Cleveland Board of Ed v Loudermill 1) Is this the kind of right that the Const protects – Life. how much process is due ? Matthews v Eldridge 3 factor test Compare any examples to Goldberg. but need not be explcit Choice between adjudication/rulemaking largely within agency discretion.Adjudication Issues . Matthews Hearing rights – APA 556-7 Oppurtunity to present case written or orally or by documents Cross examine as required for true and full disclosure of facts No bias/prejudgment Rulemaking – agency must have authority to make legislative rules. APAA v Byrd Can’t hide evidence – Nova Scotia N&C doesn’t apply to interpretive rules Ex parte comments might sometimes need to be docketed for Due Process §706 scope of review – courts decide matters of law Rule can’t be too far removed from purpose of Act – Brinegar Decision makers in rule making can be removed for bias – but has to be severe Arbitrary & Capricious – can apply to all agency acts. but see Bi.

other persuasive factos Chevron – only applies to agency decision carrying force of law -Mead When statute is silent/ambiguous and agency interp is reasonable – Ambiguous.Judicial Review §701 – presumption of review Must be clear and convincing statement to prevent review – Abbot labs Presumption of agency regularity Courts cannot substitute their judgments for the agency’s When Statute is clear both courts and agency bound to follow Skidmore Deference – in informal settings. on issues of policy Thoroughness. FDA v Brown Williamson for twists Factfinding must be on whole record .§ 706 & Substantial evidence test (+/-) Committed to agency discretion by law? Clear and Convincing. consistency. validity. no law to apply? .Brand X But see INS v Cardoza.

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