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Administrative Law Spring 2014

Agencies are the 4

branch of government.

Where do agencies come from? From the Constitution in the Necessary & Proper Clause (the
Sweepings Clause) gives Congress power to make all the laws necessary and proper.

How does a bill become law?
Enactment - a bill must be enacted by Congress
Presentment signed by the President

An agency is a basic unit in administrative law. The APA regulates many of the operations of
the federal agencies. States have their own versions.

APA definition of Agency: An agency can be ANY authority of the United States whether or not
it is within or subject to review by another agency. (i.e. FBI (criminal), Solicitor General (civil)
of DOJ; INS in Homeland Security).

Cannot be agencies:
Courts of the US
Governments of the territories or possessions of the US
Government of District of Columbia
Agencies representative of the parties
Courts marital and military commissions
Military authority

So what is an authority of the US government? Depends on the decision-making power.
An agency can have a single head (FBI director) or it may be multi-member or boards (EEOC)

Legislature Congress makes laws
Executive President/Vice President enforces the laws
Judicial Supreme Court interprets the laws

Constitution places limits on the manner in which Congress can create and structure those
institutions (agencies)

How agencies are created?
Congress passes an Act (the act itself is called the organic statute-means everything
Congress wanted in it)
o Congress passes Environmental Protection Act (EPA) (broad) contains
everything Congress wanted to protect the environment broad general policy of
what Congress wants to protect the environment.
The EPA contains the Enabling Act. This is the specifics which Congress
gives the power to create the agency. In this case, the Environmental
Protective Agency (EPA) (narrow focus)
Creates regulations and rules to follow (legislate)
Oversee compliance or enforcement (executive)
Adjudicate violations of the Act (judiciary)

Each agency combines the three branches of government within one power (agency) similar to
the powers of the three branches of our government.

Agency Structure
APA is the minimum standard of what an agency can do a baseline. Congress can, through the
enabling act, give the agency much more power.

The decision-making process can be formal or informal and tailored to favor to meet the actual
need by those affected by their decisions.

Agency form and structure
o Who has the final decision-making authority? Single-head or multi-board
o The manner in which the agency head can be removed from power? Constitutional
question because there is nothing about the Constitution about it. The only discussion in
the Constitution is the appointments clause but does not address who fires them.

Some agency heads serve at the pleasure of the President and remove for any reason or no
reason at all Executive agency
Theoretically independent such as the head of FEMA - usually has a tenure in office
(head of Federal Reserve in for a term of years- can only be removed for cause)


Decision-making either through rulemaking or adjudication
In between that is (Enforcement)

Most of what agencies do have very little legal effect on citizens but they are a prelude to what
will have a legal effect on people
They analyze problems
They get complaints, they investigate them
They synthesize plans (plan, strategize)

Industries are very sensitive to what agencies to and regulate

Case law says its not so much as to the decision. What matters how they arrived to that
decision. (Due Process) is the concern.

Rulemaking affects the general population in the future (it basically provides notice) (Lays
out rulemaking in the general abstract)
Adjudication (legal order) concerns a specific named individual or entity concerning past or
present conduct Concrete (someone who has already acted) more due process is due

Agency has to give notice and time for a hearing in the rulemaking process.

Pristine lake in Massachusetts. Someone builds a factory. Others build and pollute. Though
there is no rule in the books, EPA issues an order to stop polluting.

An order for the violator but an emergency rule for everyone else. Then the agency issues a rule
that applies to others on a forward-going base.

Methods for how looked at how an agency arrived at a decision on rulemaking:

Londoner v. City and County of Denver
Plaintiffs assess a tax which they objected to as they were not provided a hearing
Was there a denial of due process?

1. Plan to pave the roads (it is a plan that affects all in general in the future) just a general
2. Council decides to pave the roads dont need to give separate due process
3. Individual assessments entitled to due process because you can challenge to
individual assessment

Bi-Metallic Investment Co v State Board of Equalization of Colorado
Plaintiff challenged a uniform 40% tax increase
Can all individuals be heard?

1. Due process for general tax rate increase?
2. No its a general plan. Only a rule for the future.
3. Consistent with Londoner

APA 5 USC 551 (4)-(9)

(4) rule
(5) rulemaking
(6) order
(7) adjudication

Yessler Terrace Community Council v Cisneros
Could an individual be evicted due to criminal activity without a grievance hearing?
Whether it was a rule or an order.
Its about who was affected and therefore should they have had due process
HUD says it was not an adjudication, it was an informal order (individuals have basically have
no rights in an informal order no due process0
HUDs determination had no immediate, concrete effect on anyone, but affected the rights of a
broad category of individuals not yet identified. Therefore, HUDs determination was a rule,
subject to the notice and comment requirement.
1. Nature of the decision


Non-delegation restraint on Congress to ?????????????

intelligible principle


Non-delegation doctrine

Pre-New Deal Congress had a lot of discretion
New Deal generally got shot down - say its not constitutional
Modern Doctrine generally approved

Before Mistretta
Congress - setting guidelines
Judicial discretion
Executive granting parole

Mistretta v US

Congress created a commission on sentencing guidelines for judges imposing sentences.
Congress created the Sentencing Reform Act of 1984 (organic) and through the Enabling Act
creates the US Sentencing Commission.

Congress had given judges unfettered access on making sentencing decisions. No uniformity.

One major concept carried through today it rejects imprisonment as a means of promoting

They consolidate the executive and judiciary powers and all sentences are now determinate.
They remove the concept of parole in a federal sentence and now there is early release for good
behavior (time off for good behavior).

They make this binding on all federal courts except that if there are circumstances that had not
adequately been considered for sentencing by the commission.

Prior to this sentencing was under a true tri-partie system.

Side note: This was as a result of the war on drugs under Reagan administration. Governor
Rockefeller in NY implemented the most onerous drug laws called the Rockefeller drug laws.

Issue: was it an unconstitutional delegation of powers to the Commission.

Challenge #1: did Congress give enough of a general policy to say no rehabilitation and no
parole and social factors (race, poor, rearing) [mitigating factors are used in state courts] the
intelligible principle: no rehab, parole, or social conditions

Challenge #2: boundaries of the delegated authority (condition precedent: someone commits the
crime, just sentence them)

Court said: it was intelligible principle.

Congress gave the Commission significant discretion. Congress is not confined to the least
possible delegation of discretion.

Scalias dissent: the commission is deciding who is a criminal thats legislating. Commission
creating the categories of criminals.

IMPORTANT: know what happened pre, during and post new deal.

Life after Mistretta: Non-delegation challenges are not going to be well received by the court.

Skinner v Mid-America Pipeline

Statute that directed the Secretary of Transportation to establish a schedule of fees based on the
usage, in reasonable relationship to volume-miles, miles, revenues, or an appropriate
combination thereof, of natural gas and hazardous liquid pipelines.

Tax power due process

Issue: is there a stricter standard under the non-delegation principle for the taxing power.

Court disagreed unanimously. Nothing in the Constitution about agency delegation or
congressional practices in the taxing power or any other powers. Delegation is ok. Its about the
degrees of power.

Touby v US
Controlled Substances Act
Unanimously rejected by SCOTUS.

Unanimous SCOTUS rejections of nondelegation challenges in a 3 year span to put an end to
modern litigation under the nondelegation doctrine.

State of South Dakota v US Dept. of Interior
Secretary discretion to acquire any interest in lands, with or without existing reservations for the
purpose of providing land for Indians. Held by the Eight Circuit: statute is an unconstitutional
delegation to the Secretary.

Writ to SCOTUS. Fearing overruling and precedent on the non-delegation issue, rewrote the

Loving v US
Executive Order on specific criteria to be applied to military court martials when imposing death
Loving challenges a non-delegation principle, that it should have been Congress and not the
Court: given Presidents unique role as commander-in-chief, congressional guidance to president
was unnecessary.

Clinton v City of NY
Line Item Veto Act gives President authority, to cancel in whole certain spending and tax
benefit provisions of enacted statutes. Its basically an amendment to the bill. Congress is the
one to change the laws.

Unconstitutional not on nondelegation but on bicameralism and presentment


Nondelegation doctrine restraint on Congresss ability to delegate its lawmaking powers.

Controlling Delegations

1) Congress finding the agencys powers unconstitutional

Legislative overrides (vetos)
Statutory overrides
o amend the organic statute to eliminate altogether the agencys discretion
Total amendment or
Case by case
o Still need to do bicameralism and presentment
Legislative vetos - Whole Congress reserves to itself or some component the power to
override without going through the whole legislative process (bicameralism &
o Whole Congress can amend
o House or Senate can amend
o By legislative committee (one house or both houses)

INS v Chadha
INA gave the Attorney General gave broad deportation powers
AG had ability to suspend
Power to change subject to veto by either house
The resolution was basically an amendment to the act
Court held the veto power was unconstitutional

Although the veto language remains in the Acts, it is dormant. In the event of a change in the
SCOTUS where they could use it, then it is already in place.

2) Appropriations
They define the powers of the agencies by their budgets. Use the money to make substantive
policy and controlling specific agency decisions.

3) Legislative History
The intended meaning of the legislation. The broad policy that Congress was intending. They
want to leave discretion when formulating it. It is congressional intent. It can influence agencies
in two ways:
o Indirect influence through courts if the courts pay attention to what the
Congress intended, then the agencies pay attention to determine its meaning
otherwise its going to be at cross-purposes
o Direct influence the legislative history is the formal communication from
Congress to the agency concerning the agencys responsibilities. Agencies take
this seriously as this is the source of their funding. Congress can make life
difficult through information mechanisms - appropriations, amendments, etc.

Scalia hates legislative history as an authoritative tool of statutory interpretation.

Are Delegations Good Policy?

There is no express delegation or nondelegation clause in the Constitution. Congress basically
uses the Necessary & Proper clause (Sweepings clause) to give the authority.


Missed class


All officers appointed by President and consented and confirmed by the Senate. (The
appointments clause)

Legislative courts are not Article III courts. Article III courts are judiciary.

Challenges in appointments:

1. Incorrect appointment = decision is null and void
2. Appointed correctly = work could not be done correctly
Morrison v Olson
Issue: Whether appellant is an inferior or a principal officer. If she a principal officer, then
the Act is in violation of the Appointments Clause.

Dealt with appointed Independent Counsel and the Special Division court (this court deals with
NSA wiretapping, etc.).

Framers provided little guidance on the line between inferior and principal officer. In this
case, the Court held that it falls on the inferior officer side of that line.

Factors leading to this conclusion:
Appellant may not be subordinate to the AG and possesses a degree of independent
discretion. The fact that she could be remove by AG is some degree inferior
Appellant is empowered by the Act to perform only certain, limited duties.
Appellants office is limited in jurisdiction. IC can only act within the scope of the
jurisdiction that has been granted by the Special Division.
Appellant is limited in tenure, when the task is over the office is terminated, by IC or
action of the Special Division.

Court concluded that they do not think it impermissible for Congress to vest the power to appoint
independent counsel is a specially created federal court.

Edmund v. United States
Issue: whether the judges were in fact principal officers who had to be appointed by the President
with Senate confirmation.

Morrison did not purport to set forth a definitive test for whether an office is inferior
under the Appointments Clause.
We do not dispute that military appellate judges are charges with exercising significant
authority on behalf of the US.
We think it evident that inferior officers are officers who work is directed and
supervised at some level by others who were appointed by Presidential nomination with
the advice and consent of the Senate.

New Duties, New Officers

Weiss v United States
Concerned the appointments process in general for military judges, who comprise one
component of that structure.

The problem is officers are becoming judges. Selected and certified as a JAG, then appointment
as judges. Is a separate appointment required?

Scalia and Thomas agreed with the Courts conclusion that no new appointment was necessary in
this case, but they focused more heavily on whether the additional duties that a military officer
assumes by becoming a military judge are germane to the position to which the officer was
initially appointed.

Removal of Agency Officials

Removal in the Constitution only applies to Congress and Executive branch (automatic removal
with their term ends). Does not cover agency heads because there was no discussion in the
Constitution of agencies and agency heads.

Each house of Congress can expel remove its members by 2/3 vote.
Congress may also remove President, Vice President and all other civil officer through
House is given the power of impeachment
Sole consequence of conviction is remove from office and disqualification from holding
further offices.
Presidents pardon power does not extend to impeachments and impeached officers

Most challenges come with removal.

Four inferences about executive removal from the Constitutions text:

1. Impeachment is the only mode of removal for executive officers specifically mentioned
in the Constitution, it is the only permissible mode
2. Removal is an executive function and that Article II therefore gives the President the
power of removal when it vests the executive power
3. Mode of removal ordinarily follows the mode of appointment, so that officials appointed
for example, by the President with the advice and consent of the Senate can be removed
only by the same procedure.
4. Congress can set whatever terms of removal are necessary and proper whenever it uses
its Sweeping Clause power to create offices.

The issue of removal first came about with Secretary of the Department of Foreign Affairs

Pg 180 the decision of 1789
Case: Myers case


Four inferences about executive removal from the Constitutions text:

1. Impeachment is the only mode of removal for executive officers specifically mentioned
in the Constitution, it is the only permissible mode
2. Removal is an executive function and that Article II therefore gives the President the
power of removal when it vests the executive power
3. Mode of removal ordinarily follows the mode of appointment, so that officials appointed
for example, by the President with the advice and consent of the Senate can be removed
only by the same procedure.
4. Congress can set whatever terms of removal are necessary and proper whenever it uses
its Sweeping Clause power to create offices.

A legislative endorsement of presidential power to remove government officials, called the
1789 decision. from the four inferences
President has the power of removal of executive offices

Myers v US
Myers a first class postmaster was removed before his four year term, by the Postmaster
General, without the consent of the Senate.
State sued for back pay
President has a constitutional removal power without action by the Senate
Decision consistent with Decision of 1789
Madison insisted Article II was intended to grant president power of appointment and
removal of executive officers except as thereafter expressly provided in that Article
Power of removal incident to the power of appointment
Absence of an express power of removal granted to the president, power to make
provision for removal of all such officers is vested in Congress by section 8 of Article I.

Outcome: All heads of departments (executive officers) are subject to unlimited presidential

Consistent with 1789 decision

Humphreys Estate
President Roosevelt attempts to remove Humphrey, who had been appointed to the FTC.
President asked him to resign and Humphrey refused.
Roosevelt removed him anyway
Humphreys estate sues for back pay
FTC Act was intended to limit the Presidents power to remove FTC commissioners.
Commission is to be non-partisan.
Duties are neither political nor executive but predominantly quasi-judicial and quasi-
Estate got the back pay

Outcome: Myers decision is confined to purely executive officers. Under this case, no removal
can be made during the prescribed term for which the officer is appointed, except for one or
more of the causes named in the applicable statute.

Consistent with 1789 decision Humphrey not considered an executive officer because its not
a purely executive officer
In 1986, AG Meese declared hostility on limited removal power by president.

Bowsher v Synar
Gramm-Rudman-Hollings Act for budget cuts assigned the task to the Comptroller
General, a presidential appointee with Senate confirmation
Congress was reserving for itself the removal power
Congress cant reserve the removal powers for themselves

Consistent with 1789 decision

Morrison v Olson

Office of Independent Counsel (IC)
Whether AG power to remove the IC to only those instances in which he can show good
cause, impermissibly interfere with Presidents appointment powers
Whether the Act violates the separation of powers by reducing the Presidents ability to
control the prosecutorial powers wielded by the IC

Outcome: Presidents ability to remove officers is not an impediment from carrying out his

Agencies and Article III page 217


Agencies and Article III

When agencies adjudicate resolve disputes by applying the law to particular facts does their
activity look enough like judging to raise questions about whether the agencies are improperly
exercising the judicial power vest in federal courts by Article III

Commodity Futures Trading Commn v Schor

Schor sued the agency and Conti countersued. Agency ruled in favor of Conti on all counts and
Schor questioned the statutory authority for agencys regulation permitting it to adjudicate
Contis counterclaim.

Court of Appeals reversed, on the ground that construing CEA to deny the agency power to
adjudicate ordinary contract-law counterclaims avoids significant constitutional questions that
would be raised by such agency authority.

1. Did the agency have the right to hear the counterclaim? Yes
2. Did Congress overstep in giving this ability. Does it infringe on the Article III courts?
They did not overstep. They could adjudicate on the issue.
OConnor not whether they can but rather how much

The factors they looked at:
1. Extent to which the essential attributes of judicial power are reserved to Article III
2. Extent to which the non-Article III forum exercises the range of jurisdiction and powers
normally vested only in Article III Courts
3. Origins and importance of the right to be adjudicated
4. Concerns that drove Congress to depart from the requirements of Article III

This does not impermissibly intrude on the province of the judiciary

This is an application of functionalism over formalism.

Agency decision is on the level of a district court. An appeal goes straight to the Court of

Jury verdict get more deference for review that any other.

Administrative Adjudication and Jury Trial

Atlas Roofing Co, Inc. v OSHRC
SCOTUS ruled no, not under the 7


Constraints on agencies:

Article I, II, III (Constitution)
Statute (APA, individual statute)
Legislative history (Direct, Indirect)

Agencies and the separation of powers

Separation of powers is a mechanism for securing liberty different government functions to
different government actors.

The combination of the various functions in the same hands, may justly be pronounced the very
definition of tyranny. (Madison)

Separation of powers:
Make rules of conduct
Power to apply and enforce those rules
Power to adjudicate claimed violations

Reviewing Court

Lower Court
Law (De novo) least deference
Abuse of discretion (conduct of court)
Fact by the court (Bench)
Fact by the jury (no reasonable jury could find) highest deference

Agency Decision
Law and fact extremely high deference very strong presumption of correctness on
matters both of fact and of law


Look at certain sections of APA 500s and 700s

Withrow v Larkin SC 75 (p 190)
- What an agency can or can t do confusing case-
- BE familiar W CASE and APA

We were talking about So pow under constit
Now SOP under statute
- State sets up review board
- Under statute- permission to responsibility of investigate misconduct-
administrative regulations (legislative function)
- AND enforcement (executive function)
- And adjudicating
Dist. Ct- substantial fed q- ---did violate DP?

The board- was finder of fact, conclusion of law, and decisionBUT ok by statute
FAIR trial- basic requirement of DP

I- WAS LEGLSLATIVE FUNCTION and adjudication ok?
Q was if they could do both w/o violation DP-
Separation of power issue*
Q of Dp- agency (not art 3 CT) was adjudicating

Ct- DP- basic necessity- fair trial in fair tribunal* that is the Q
Biased- about pecuniary interest (money) or personal biased
o Prof res
Investigatory, investigate and adjudication- is a RISK of biased-
CT: presumption of honesty and integrity among adjudicators
Challenger must show such a risk of doing these two things to raise DP concerns

FTC case- challenge of biased- CT REJECTED- no automatic biased*
Have to show ACTUAL not potential

Very hard to show BIASED in agency**
Often send back to same judge

Functionalism* this is what is important- (notwithstanding conclusory language, have to do right

HOLDING- *no biased= of DP=

High presumption of honesty-

Jurisdiction - **constitutional claim- goes directly to court

P 196

Agencies- all 3 (l, e, aj)

Modern doctrine- near limitless-
Who can draw l line- congress?
Congressional oversight- we talked about

Now statute- ALJs Administrative function more than judicial
- Many adjudicative functions
- Fed CT- magistrates, in NY ALJ
o i.e.- orig issues- before judge, individual issues- before magistrate
taking pressure off system
ALJ- like atr 3 judges- salary and tenure set- but same salary on same level- same across all
Term of years- same- across
Salary and tenure- set by congress-
They are employees of individual agency
Each agency hires own ALJs
- Removable by agency- but only for good cause- *(sounds better)
- BUT agency sets standards good cause-
o On one hand independent- other hand

APA- provides some insulation therotecial different arms of agency-
- separate- departmenst within agency
- under APA- can combine leg and exe- BUT different personel
- separation of FUNCTIONS (not powers)*
WITHROW- ct- no real separation of power- but that is ok
(Usually 2 challenged, not 3)

Separation of functions- loophole- either ALJ or agency board itself- can conduct adjudications

# Of agency constraints- limitations-
The act itself-
APA- overall uniform constraint on agency action

Lets go back to founding C- look at interpretation
- Scalia argues- gets more and more lenient
- Fewer constraints-
Non-delegation doctrine- constraint- court leery of reeling

- Decision and substance of decision-

Going to start w procedure-
APA- good place to start-
Legal limits APA- baseline- uniformity for all agencies

Organic statute- can put more c constraints or less
Direct words to each agency

CTs frequently look at APA-
History and functions-
- Enacted 1946
- Based on attorney generals manual
- Codified the basics
- About PROCEDURE only
- First statute to admis- systemize - UNIFORM
- Timing- no accident- new deal
- We need controls on agencies- so dont get too powerful-
- Retreat from SoP remember New deal-
- Needed uniformity, substance, accountability
- Decade of strong partisan debate
- CT cost limits-
o People worried about power- this was great
o CT pulling back during new deal
- New deal opponents- could not have votes to overturn-
o Consecrated on procedural reform
- Those in congress-
- 1940 Walter Logan bill (cause called bill- never signed into law-
o Would have constrained
o Roosevelt did not want
o Never came into law- - but important force- in creating APA- compromise
o WW2- took precedence-
- 1946- APA passed- fierce compromise-
o Text and substance changed very little
o But application changed great deal- cts interpret diff ways
p 203
4 main subject areas- 5 USC amended substantially
Freedom of information act- *

Article 3 courts review of agency actions-
2. Availability timing and form- --can, when and how
3. What is scope of judicial review 706?

Structure- agency decisions- actions-
2 main agency functions w binding effect 1 rule making and 2 adjudicating

APA- definition affects general population in future
Adjudication past or present actions (Londoner, bimetallic yesler)
Who is entitled to DP- adjudication?

Formal and informal for both

Rule making- formal- full judicial trial/proceeding on the record**
Adjudication- formal- full trial/proceeding on the record
- Differ from art 3- no jury,
- No art 3 judge, no impartial decision maker
- Only rules evidence- irrelevant, immaterial, or unduly repetitious
- Congress or agency- can adopt more restrictive rules-
- Witness and Cross e-

Real qs and challenges arise when making informal rule making or adjudication
Informal rulemaking
Agencies- for informal rulemaking- has to give notice, comment, and statement
1. Notice- terms or description of proposed rule
- Enough to describe problem, investigation that was done, and proposed rule to cure
1. Comment opportunity to be heard- either written or oral
a. If big enough, may have different hearings around country
Notice, comment BEFOR adopted
2. Statement- concise- gen statement basis and purpose of rule adopted

Notice- formal register
Comment period- APA- only requires 30 days, agency can give more

Challenges- if did not publish in register
- If really gave full 30 days
Comment- * real challenge- was a MEANINGFUL opportunity for comment to be herd

Challenge- statement- goes back to first two -
_--If did not relate back to original notice
OR if did not incorporate to comments
**Can have any of all 3- or intertwined-
CAN challenge- 1, 2 or 3-
I.e.- if notice did not really say what going to be adopted in notice, so no chance for
Comment, so statement void-
We will see remedies-

Known as- Notice and Comment rulemaking -

Informal adjudication must give general requirements- party participation and
- Collection of info
- Who is affected
- How participate
- Collection of info
- PLUS prompt notice of denial of written application- in connection w agency
o Means if someone wants to participate- and if they say no- have to give
prompt notice
Only 3 rules for informal

Ins: Rulemaking
Notice: enough
Comment: meaningful
Standard question basis and purpose

Agency rulemaking

Difference between Formal and informal procedure basis of litigation because do I get the due

Informal rulemaking 553
Formal rulemaking 555-556

By statute, has requirement of formal procedures, determine what it means and be on the

First, where does one look to see if there a statute that requires a particular agency
proceeding to be made on the record after opportunity for an agency hearing?
Second, what does an organic statute have to say in order to trigger formal APA

DOJ has a manual instructing its attorneys on the implementation and interpretation of the new

FDA must use formal rulemaking.
Public utilities and tax rates require a hearing and the rates must be set on the record

Court requires:
Interstate Commerce Commission and Agriculture require a hearing on the record

Congress, courts or even agencies may require hearings

Florida East Coast Railway
1966, country was having a problem with a shortage of freight cars.
Establish an incentive $2.50 to use freight cars. ICC basically gave carriers an incentive to free
up the cars.

Notice: give a per diem surcharge proposed as a rule
Comment: all carriers (written)
Hearing: pricing

Hearing: ICC says insufficient data
notice: collect data

Give a proposed schedule of rates based on present information
No more oral hearings

The rule adopted in 1969 does not related back to the original notice and meaningful comment in

US v. Florida East Coast Ry
Issue: Whether the organic statute required formal rulemaking procedure

Decision: informal hearing was sufficient

APA does not require formal hearings. It lays out the process.

The Act authorized to act after hearing suggesting a hearing but not triggering that it had to
have a formal hearing.

SCOTUS decided statute did not have to specify after hearing. Could be stated in several
other ways. After hearing does not necessarily trigger it.

Lower courts have basically taken the position that on the record needs to be there to require a
formal hearing. Although the Court said you didnt need the language, the lowers courts know


Seacoast Anti-Pollution League v Costle
Adjudicatory procedure because its a named entity.

In an adjudication do you need the specific words on the record to trigger a formal hearing.

The dispute centers on the meaning of the introductory phrases of 554(a) of the APA.

Chevron FECR Seacoast City of West Chicago
Sets the
standard for
what the court
may look at in
Holding no
specific words
needed to trigger
formal rulemaking
(No hearing)
Lower courts still
dont know what to
Affirms FECR on

Are these specific words
needed to trigger formal
adjudication? No
Holding any language
consistent with FECR? Yes
Presumption that
restrictive rule of FECR
after Seacoast but can be
overcome by
Congressional intent.
do with it. (Hearing)
They grant the hearing.

Court says NRCs discretion.

Procedure to get there, then a substantive decision that comes out of it

What comes out of an Agency:
1. Procedures deference on how they get to any decision
2. Substantive decisions decisions that come out of the procedures they look at the
record to see how they got there.

Did Congress speak directly to the issue? Clear, unambiguous
If so, we follow Congresss intent
If not, (if Congress was silent, vague, or ambiguous) we follow the agency decision, if

This is an Arbitrary and capricious standard when it deals with agency procedures high level
of standard

This made it very hard to challenge an agency procedure must show arbitrary and capricious.

High level of deference on par with a jury trial

Chemical Waste Management v United States EPA
They apply the Chevron test


Procedural review of agency rules for a social outcome.
Its factual. Was there notice and comment? Then they make the statement of basis and purpose

They use this to get to a substantive decision. substantive review they are looking at the

DC Circuit said it was a substantive review.
Substantive review and unclear we know from the record that you did it correctly.
The agency did more than what rulemaking required.
Court knew that could not tell the agency to do more procedurally. Only Congress can thru
organic statute.
Holding: Insufficiency of the evidence to review the record. Remanding for further review.

SCOTUS reviews the DC Circuit decision.
DC Circuit conceded. DC Circuit is misunderstanding the nature of standard review in agency

DC was using a substantive review as a smokescreen to go to the procedural.
SCOTUS remands to the DC Circuit to reevaluate their thinking.

SCOTUS was tired of DC interfering with agency procedure as long as you find they did the
minimum under the APA.

Determined it was a procedural rather than substantive.

DC Circuit was basically using hybrid rulemaking its the agency decision and discretion.

This all leads to the Chevron test. In previous years, the SCOTUS was leading up to Chevron

Tell DC Circuit they cant change it simply because they dont agree with the agencys

Connecticut Light and Power v NRC
Brief Fact Summary. Connecticut Light and Power Company (Connecticut Light) challenged a
decision by the Nuclear Regulatory Commission (NRC) to adopt a more stringent fire protection
program for nuclear power plants in service before January 1, 1979, claiming NRCs rulemaking
procedure was inadequate.

Synopsis of Rule of Law. The Administrative Procedure Act (APA) requires agencies to give
notice and an opportunity to comment to proposed rules.

Facts. Following a damaging fire in 1976, the Commission developed technical guidelines for
evaluating fire safety of both new and operating nuclear plants. Due to ongoing disputes
involving the evaluation process, the NRC decided to embark on rulemaking for a more stringent
program in 1979. Connecticut light challenged the NRCs new rule, claiming: 1) the notice of
proposed rulemaking was inadequate because it gave no indication of the technical basis on
which the Commission relied in formulating the proposed rules, and also because the final
adopted rules differed in major respects from the proposed rules; 2) the Commission failed to
offer technical justification for the final fire protection rules it adopted; and 3) the Commission
failed to comply with its own regulations concerning new regulations for existing nuclear plants.

Issue. Was the procedure employed by NRC in adopting its new rule inadequate?

Held. The Court reluctantly upheld the NRCs adoption of the fire protection program. The
administrative record contained adequate support for the Commissions determination that the
adoption of a more stringent rule was urgently needed to protect public safety. The procedure
employed by the NRC was less than exemplary-the notice of proposed rulemaking was cursory
and gave the industry the minimal acceptable opportunity to respond. The final rules were
strictly more stringent versions of the proposed rules. The rule was tempered by the exemption
procedure allowing power plants to show that alternative fire protection systems protect public
safety at the same high level as that chosen by the Commission. The failure of plants to make
such a showing would prove the Commission was indeed correct that public safety urgently
required a more stringent fire protection program for nuclear power plants.

Discussion. The court was not happy with the lax procedure employed by the NRC, but weighed
out all of the factors, including public safety, in upholding the new rule.

IN A NUTSHELL: The agency has to re-notice when the changes they are doing are so dramatic
that they have to give sufficient time to comment. Sending the agencies a message to be careful
and dont be loose on the process.

Assignment 6 and 7


Professionals and Patients for Customized Care v Shalala

If a rule then notice and comment
If a policy statement merely guidelines - just a statement of policy, no present effect for no one
and does not affect anyones rights or obligation - just follow

Brief Fact Summary. Professionals and Patients for Customized Care (Plaintiff- Appellant)
contended that the District Court erred in its determination that the Food and Drug
Administration (FDA) Compliance Policy Guide (Guide) was not a substantive rule.

Synopsis of Rule of Law. The APA requires agencies to afford interested parties notice and an
opportunity to comment to proposed substantive rules.

Facts. The FDA was aware of a problem in the pharmaceutical industry where pharmacies were
purchasing large quantities of drug substances in bulk, combining them into other drug
substances, and then marketing them (compounding). In order to combat this problem, it
issued CPG 7132.16, a policy statement, to be used for internal agency guidance. The Guide
outlined factors the FDA would consider in determining whether to bring an enforcement action.
Plaintiff-Appellant claimed that the Guide was a substantive rule, and that notice and an
opportunity to comment should have been afforded. The District Court concluded that the Guide
was not a substantive rule, and therefore not subject to the APAs notice and comment

Issue. Was the Guide a substantive rule, making it subject to the APAs notice and comment

Held. No, the Guide was not a substantive rule, and notice and comment was not required.
Affirmed. The FDA treated the factors in CPG 7132.16 as guidelines to help identify whether a
particular pharmacy might be engaged in unlawful compounding, not as binding norms. The
language of CPG 7132.16 made it clear that it was not intended to foreclose the agencys
discretion in bringing an enforcement proceeding. Dissent. None. Concurrence. None.
Discussion. A general statement of policy (falling outside the notice and comment requirement)
is a statement by an administrative agency announcing motivating factors the agency will
consider, or tentative goals toward which it will aim, in determining the resolution of a
substantive question of regulation. This definition fits CPG 7132.16 exactly.

Good cause exception to the procedures.

Contrary to the public interest

American Mining Congress v. Mine Safety & Health Administration

Petitioner mining associations sought the answer, against respondents, United States Department
of Labor and others, to whether Program Policy Letters (PPLs) of the Mine Safety and Health
Administration (MSHA), stating the agency's position that x-ray readings qualify as "diagnoses"
of lung disease within the meaning of agency reporting regulations, were interpretive rules under
the Administrative Procedure Act (APA).

The mining associations claim that MSHA did not follow the notice and comment requirements
of 5 U.S.C.S. 553 in issuing any of the three PPLs, but MSHA contended it was exempt from
the notice and comment requirements on the interpretive rule exemption of 5 U.S.C.S.

The court concluded that the PPLs were interpretive rules, therefore the petitions for review were
improper. The court held that whether the purported interpretive rule had "legal effect," turned
on whether in the absence of the rule there would not have been an adequate legislative basis for
enforcement or agency action to confer benefits or ensure the performance of duties, whether the
agency had published the rule in the Code of Federal Regulations, whether the agency had
explicitly invoked its general legislative authority, or whether the rule effectively amended a
prior legislative rule.

If the answer was yes to any of the questions, a legislative, not interpretive rule was found.
The substantive validity of the interpretation was not challenged.

Petitions for review were dismissed.

Legislative rule the actual rule
Interpretative rule Already a statute, agency issues an interpretation and guideline of the
legislative rule
Statement of policy in lieu of a rule. A guideline.

Tennessee Gas Pipeline

Must be confined to emergency use
Must be incorporated into the promulgated rule

Informal Adjudication

The text of the APA imposes essentially no procedural constraints on informal agency
adjudication adjudication that is not required by statute to be held on the record after
opportunity for an agency hearing.


Procedural review of agency rules for a social outcome.
Its factual. Was there notice and comment? Then they make the statement of basis and
purpose. Did the agency do the minimum requirements of 553 of the APA (in formal
rulemaking Congress or the state legislature can tell them to do more).
Congress did not speak to it.
What the agency did was not reasonable
Send it back to the agency to do again.

They use this to get to a substantive decision. substantive review they are looking at the
record and how they got to it. If they dont have enough record, they can remand it to the agency
and tell them to document it better to know how they got to it.


Minimal requirements for informal adjudication.

Overton Park
Public concern on natural environment
Petitioners tried to block highway through park
Petitioners alleged Secretary did not do enough and simply rubber stamped the approval
There was no rulemaking so there was no record required
The court first determined whether the Secretary acted within the scope of his authority

Pension Benefit Guaranty Corp v LTV
ERISA was implemented so that pension funds would not be misused.
PBGC is comprised of Secretaries of Treasury, Labor and Commerce.
PBGC administers and enforces Title IV of ERISA.
Two ways companies can end their plans:
Terminate their plans voluntarily
If employer lacks benefit and in financial distress

Determination was lawfully made by informal adjudication, the minimal requirements for which
are set forth in 555 of the APA and do not include such elements. A failure to provide them
where the Due Process Clause itself does not require them is therefore not unlawful.

SEC v Chenery Corp.
Stock trade turned down.
Decision: The SEC needs to have their own rules and rely on them. RELY ON OWN RULE

In re Federal Water Service Corp
Rely on our own rational and follow our order. RELY ON ORDER

Chenery Corp v SEC
Did they rely on their own rationale?
Holding: against the SEC. They had an order before a rule.

SEC v Chenery Corp
Can have its own rule and rely on it.
Question: Whether they had to have a rule first?
SCOTUS reverses the DC Circuit.

Review of Due Process Clause:
Substantive Life, Liberty, or Property interest
(must rise to constitutional protection)
Procedural Steps required to deprive someone of a substantive Due Process right
If you dont have one of the substantive issues, you cant look at the procedural.
Exhaustion must exhaust all agency procedures before getting to the court, except if it is a
Constitutional issue alleging a violation of a due process right
Incorporation Doctrine makes most provisions of the Bill of Rights applicable to the states
Reverse incorporation doctrine make the 14
amendment equal protection clause applicable to
the federal government

For due process purposes all have the rights as individuals people, judicial entities, partnerships
and corporation all legal person
North American Cold Storage v City of Chicago
Storage basically said the City was depriving them of property and due process. They wanted a
hearing to determine whether the poultry was bad or not. (It was really about Chicago politics
and a competitor having influence).
Court basically said City could act on the municipal code to protect the health and safety of
citizens by destroying the poultry without the need for a preliminary hearing.
Rights v. Privilege
Bailey v. Richardson
Post WWII, during the McCarthy years, Bailey was terminated for being terminated for being
disloyal. She denied being disloyal or communist at the hearings and the only one to present
witnesses. The Loyalty Board rules that there is sufficient evidence that Bailey is disloyal to the
US. It goes up to the full board and still denied. Due process does not apply as a government
employee. Did not rise to a substantive due process of property.
Joint Anti-Fascist Refugee Committee v McGrath
AG labeled the Joint Anti-Fascist as communists.
Did not rise to a substantive due process of liberty.
Fairness of procedure is due process in the primary sense.
The requirement of due process is not a fair-weather or timid assurance.
Due process cannot be imprisoned within the treacherous limits of any formula.
Due process is not a mechanical instrument. It is not a yardstick. It is a process. It is a delicate
process of adjustment inescapably involving the exercise of judgment by those whom the
Constitution entrusted with the unfolding of the process.
Cafeteria & Restaurant Workers Union v McElroy
Short-order cook working in a restaurant on the Naval Gun Factory in DC. Brawner had worked
there for 6 years with a great record and used a badge to access the premises. Suddenly her boss
decides she shouldnt have the badge anymore. She requested a hearing but it was denied. The
restaurant employed her at another location but she refused because the location was
inconvenient. Court ruled commander had the right to take away the badge as the commander
over the base. She cant claim a deprivation of a constitutional right because she didnt have a
right to be there.



Most famous procedural (due process) case

Goldberg v Kelly
This was a Federal question. They wanted it changed and didnt want the decision to be at the
Citys whim.

Brief Fact Summary. Appellees were financial aid recipients whose benefits were terminated
without being afforded a pre-termination hearing, which they challenged as a denial of due

Synopsis of Rule of Law. The extent to which procedural due process must be afforded is
influenced by the extent to which he may be condemned to suffer grievous loss. Due process
required a pre-termination hearing prior to termination of welfare benefits.

Facts. This case was brought by residents of New York City who received financial aid under the
federally assisted program of Aid to Families with Dependent Children (AFDC) or under New
York States Home Relief Program. Their complaint alleged that City officials administering
these programs terminated such aid without prior notice and hearing, denying them due process
of law. After the suit was filed, the City adopted procedures for notice and hearing, which the
plaintiff-appellees then challenged as constitutionally inadequate. The procedure allowed the
recipient to challenge the proposed termination of benefits within seven days and submit a
written statement for the reviewing official to make a final determination. Appellees challenged
the procedures lack of an opportunity to personally appear before the reviewing officer for oral
testimony and cross-examination of adverse witnesses. The procedure did allow for a post-
termination fair hearing, however. The District Court held that only a pre-termination hearing
would satisfy the constitutional due process requirement.

Issue. Does a State that terminates public assistance benefits to a particular recipient
without affording him an opportunity for an evidentiary hearing prior to termination deny
the recipient due process of law?

Held. Yes. Affirmed. Where welfare is concerned, only a pre-termination evidentiary hearing
provides the recipient with procedural due process. For qualified recipients, welfare provides the
only means to obtain essential food, clothing, housing and medical care. The crucial factor is that
the termination of aid pending resolution of a controversy might deprive an eligible recipient of
the very means by which to live while he waits. Dissent. No provision in the Constitution should
paralyze the governments efforts to protect itself against making payments to people who are
not entitled to them. There are
large numbers of undeserving welfare recipients, and States should be able to fight back against
them. Concurrence. None.

Discussion. The interest of the eligible recipient in uninterrupted receipt of public assistance,
coupled with the States interest that payments not be erroneously terminated, clearly outweigh
the States competing interest to prevent administrative and fiscal burdens. The pre-termination
hearing need not take the form of a judicial or quasi- judicial trial, as the fair hearing will
afford full administrative review later on. It need only produce an initial determination that the
welfares grounds for termination of benefits are valid.

Goldberg Balancing Test

1. Extent of recipients loss +
2. Recipients interest in avoiding loss

Must be greater than

Governments interest in summary judgment (objective fiscal issues)

Wisconsin v Constantineau

Brief Fact Summary. Pursuant to Wisconsin Statute Section:176.26 (Act), the chief of police of
Hartford, Wisconsin posted a notice in all liquor stores in Hartford that sale of liquor to Appellee
for one year. Appellee brought suit in a federal district court to have the Act declared

Synopsis of Rule of Law. Where government action will impact a persons reputation in the
community, procedural due process is required.

Facts. The Act allowed designated persons to forbid sale or gift of liquor to persons who by
excessive drinking demonstrated traits that rendered them possibly dangerous to the
community, and the chief of police posted notices about the Appellee without any prior notice.

Issue. Did the label or characterization given by posting under the Act require
procedural due process?

Held. Yes. Due process required notice and an opportunity to be heard before the posting of such
a stigmatizing notice, which was the equivalent of an official branding of the Appellee. The
notice was stigmatizing and harmful to Appellees reputation in the community. Dissent. None.
Concurrence. None.

Discussion. Where a persons good name, reputation, honor or integrity is at stake because of
what the government is doing to him, notice and an opportunity to be heard are essential.
Posting under the Act without any notice was unconstitutional.

Stigma itself is not enough. It has to be stigma (reputation) + (reputation publicized)
(1 and 2 are subjective &
are heavily weighed against
governments interest)

The rise of the Entitlement Theory

Right v. Privilege

Board of Regents of state Colleges v Roth

Brief Fact Summary. David Roth (Roth) was hired as an assistant professor at Wisconsin State
University-Oshkosh (University) for a fixed term of one academic year. After the end of the
term, Roth was informed he would not be rehired for another year, and brought an action in the
Federal District Court alleging his Fourteenth Amendment rights were violated.

Synopsis of Rule of Law. The Fourteenth Amendments procedural protection of property is a
safeguard of security interests that a person has already acquired in specific benefits-it does not
extend to future interests they hoped to get but didnt.

Facts. Roth was hired for one year, and had no tenure rights to continued employment, nor
statutory rights. Under Wisconsin statute, a State university professor could acquire tenure as a
permanent employee after four continuous years of employment. Roth was notified by the
President of the University that he would not be rehired for another year, but no reason was
given, nor any method for review or appeal. Roth brought an action claiming that he had a
constitutional right to a statement of reasons and a hearing on the Universitys decision not to
rehire him for another year.

Issue. Was the University required to give Roth a statement of reasons and provide him a hearing
under the Fourteenth Amendment?

Held. No. Roth was not deprived of liberty or property protected by the Fourteenth Amendment.
The requirements of procedural due process apply only to the deprivation of interests
encompassed by the Fourteenth Amendments protection of liberty and property. The State, in
declining to rehire Roth, did not make any charge against him that would harm his reputation;
nor did it preclude him from obtaining other employment. It stretches the concept too far to
suggest that a person is deprived of liberty when he simply is not rehired in one job but
remains free as before to seek another. Dissent. Justice Douglas: Nonrenewal of a teachers
contract, whether or not he has tenure, is an important interest entitled to due process.

Justice Marshall: The right of every citizen to work is a property right and a liberty- liberty to
work- which is the very essence of the personal freedom and opportunity secured by the
Fourteenth Amendment. Concurrence. None.

Discussion. All that the University did was decide not to rehire Roth for another year. Although
Roth had an abstract interest in being rehired, he did not have a property interest sufficient to
require the University to give him a hearing when they decided not to renew his contract of

Perry v. Sindermann

Brief Fact Summary. Robert Sindermann (Respondent) taught for ten years at in the state college
system in Texas under a series of contracts. After a disagreement with the college administration
(testimony on legislative committees and public statements critical of the Regents policies),
Respondents last one-year contract was not renewed without opportunity for a hearing.
Respondent brought this action in Federal District Court, alleging that the failure to afford him a
hearing violated his Fourteenth Amendment guarantee of procedural due process.

Synopsis of Rule of Law. A persons interest in a benefit is a property interest for due process
purposes if there are rules or mutually explicit understandings that support his claim of
entitlement to the benefit and that he may invoke at a hearing.

Facts. The State of Texas did not have a formal tenure system in place, but did have an official
Faculty Guide that Respondent claimed established a de facto tenure system. Respondent
claimed legitimate reliance that employment for seven years or more at his particular college
created some form of tenure that was no less a property interest than a formal tenure system at
another university. The District Court granted summary judgment against Respondent.

Issue. Did Respondents lack of tenure or contractual right to re-employment, taken alone, defeat
his claim that nonrenewal violated his First and Fourteenth Amendment rights? Did Respondent
have de facto tenure, sufficient to afford him procedural due process?

Held. No. The grant of summary judgment against Respondent was improper. A teacher, like the
Respondent, who has held his position for many years, might be able to show from the
circumstances of his service and other relevant facts that he has a legitimate claim of entitlement
to job tenure. Proof of such a property interest would obligate college officials to grant him a
hearing at his request, where he could be informed of the grounds for nonretention and challenge
their sufficiency. Dissent. The District Court should be directed to enter summary judgment for
respondent entitling him to a statement of the reasons why his contract was not renewed and a
hearing on the disputed issues of fact.

Concurrence. None.

Discussion. Although the Texas college system had no formal tenure program, its guidelines and
standard practices, coupled with the length of Respondents employment, were sufficient that an
entitlement could be found to procedural due process.


Kentucky Dept of Corrections v Thompson

Brief Fact Summary. Prison inmates challenged their temporary denial of visitation rights by the
Kentucky Department of Corrections (Petitioners) in accordance with its Corrections Policies
and Procedures as unconstitutional.

Synopsis of Rule of Law. The use of explicitly mandatory language in connection with the
establishment of specified substantive predicates to limit discretion, forces a conclusion that
the State has created a liberty interest.

Facts. The mother of one inmate was denied visitation for six months because she had brought a
person with her who had been barred for smuggling contraband. Another inmates mother and
friend were denied visitation for a limited time when the inmate was found with contraband after
their visit. These visitation rights were suspended without a hearing in both instances, which the
inmates claimed violated their Fourteenth Amendment liberty interest in receiving visitors. The
Procedures Memorandum on the subject of visiting regulations outlined nine specific reasons for
excluding visitors. The District Court directed Petitioners to develop minimal due process
procedures for excluding visitors, and the Court of Appeals affirmed.

Issue. Did the Kentucky prison regulations give state inmates, for purposes of the Fourteenth
Amendment, a liberty interest in receiving certain visitors?

Held. No. Reversed. The regulations and procedures in this case did provide certain substantive
predicates to guide the decision-maker, providing that a visitor could be excluded when the
officials found reasonable grounds to believe their presence in the institution would constitute a
clear and probable danger to the institutions security or interfere with its orderly operation.
However, the regulations stopped short requiring that a particular result be reached upon a
finding that the substantive predicates were met. Therefore, the regulations and procedures
lacked the requisite relevant mandatory language, and did not establish a liberty interest
protected by the Fourteenth Amendment. Dissent. Mandatory language should not always be an
essential element of a state- created liberty interest. This decision would allow correctional
authorities to deny visitation for any reason at all. Concurrence. None.

Discussion. The Court set forth its guidelines for finding a state-created liberty interest, which
were not met in this case.

Sandin v Connor

Brief Fact Summary. DeMont Conner was an inmate in the Halawa Correctional Facility, a
maximum security prison in Oahu. When subjected to a strip search, Conner responded with
angry and foul language at the officer. Conner was charged with high misconduct, the
adjustment committee sentenced him to 30 days of segregation, without allowing Conner to
present witnesses.

Synopsis of Rule of Law. The Court returned to the standard set forth in Wolff: State- created
liberty interests will be generally limited to freedom from restraint, which, while not exceeding
the sentence in such an unexpected manner as to give rise to protection by the Due Process
Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in
relation to the ordinary prison life.

Facts. Conner was charged for his angry response when subjected to a strip search, complete
with an inspection of the rectal area, when he was returned from the module program area to his
cell. Conner was subjected to 30 days of segregation by the adjustment committee, which, in
fact, took place. Conner sought administrative review, and the Deputy Administrator found the
high misconduct charge unsupported and expunged the record. Conner requested injunctive
relief, declaratory relief and damages for a deprivation of procedural due process in connection
with the disciplinary hearing, as he was not allowed to present witnesses. The State District
Court for the District of Hawaii granted summary judgment for the prison officials, but the Court
of Appeals for the Ninth Circuit reversed, finding that Conner had a liberty interest in remaining
free from disciplinary segregation.

Issue. Under what circumstances do state prison regulations afford inmates a liberty interest
under the Due Process Clause?

Held. Reversed the Court of Appeals. Neither the Hawaii prison regulations nor the Due Process
Clause afforded Conner a protected liberty interest that would entitle him to the procedural
protections set forth in Wolff. Conners discipline in segregated confinement did not present the
type of atypical, significant deprivation in which a state might conceivably create a liberty
interest. Conners confinement did not exceed similar but totally discretionary confinement in
duration or degree of restriction. Dissent.

Justice Ginsburg and Justice Stevens: Conner had a liberty interest protected by the Fourteenth
Amendment because confinement for high misconduct adds a stigma that could diminish
parole prospects. Justice Breyer and Justice Souter: The majority radically changed the standard
by setting a minimum standard, namely that a deprivation falls within the definition of a liberty
only if it imposes atypical hardship on the inmate in relation to the ordinary incidents of prison
life. Some lower courts may read this as affording much less protection, while others may find
it an extension of protection for atypical hardships. Concurrence. None.

Discussion. The Court used this case to clarify its standard, reviewing its holdings in Wolff,
Meachum, and Wakinekona. Because language in Meachum distinguished Wolff by focusing on
whether state action was mandatory or discretionary, the Court in later cases even greater
emphasized a mechanical dichotomy. This approach produced the undesirable effects. It created
disincentives for States to codify management procedures in the interest of uniform treatment,
curbing the discretion of staff; and also led to the involvement of the federal courts in the day-to-
day management of prisons. In light of the above, the Court found that a search for a negative
implication from mandatory language in prisoner regulations strayed from the real concerns
underlying the liberty protected by due process. The standard returned to that which was
correctly established in Wolff and applied in Meachum: State-created liberty interests will be
generally limited to freedom from restraint, which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due Process Clause of its own force,
nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary
prison life.

Town of Castlerock

Jessica was married to a guy who was a little crazy. She filed for divorce and got a
restraining order against him.
Jessicas husband came and took their three children, in violation of the restraining order.
Jessica called the police multiple times, but they took no action to retrieve the children.
Despite the fact that the restraining order explicitly tells the police that they shall use
every reasonable means to enforce this order.
Jessicas husband eventually killed all three children.
Jessica sued the police and the town, arguing that their inaction had resulted in the deaths
of the children, and that was an unconstitutional violation of the Due Process Clause of
the 14th Amendment.
Jessica argued that there was a Federally-protected property interest in enforcement of the
restraining order and claimed that there was an official policy or custom of failing to
respond properly to complaints of restraining order violations.
The Trial Court dismissed the claim. Jessica appealed.
The Appellate Court reversed. Castle Rock appealed.
The Appellate Court found that Jessica had a procedural due process claim, although no
substantive due process claim.
The US Supreme Court reversed the Appellate Court and found no constitutional
The US Supreme Court found that Colorado law did not make enforcement of restraining
orders mandatory.
The Court found that even if it were mandatory, enforcement could not be considered a
protected entitlement.
Basically, the restraining order doesnt entitle a person to any specific action, it just
provides grounds for arresting the subject of the order.
You could argue that the State may have established a duty to care by getting involved
and issuing the restraining order, but that is a tort law issue, not a constitutionally-
guaranteed right.
The Court found that even if there were a protected individual entitlement, a restraining
order has no monetary value and therefore did not count as property (and hence no
property interest).
In a concurrence, it was noted that enforcement of a restraining order is a process, not the
interest protected by the process, and that there is not due process protection for

3.26.14 missed class


Attorney Generals Manual - Substantial evidence rule codified which has long been applied to
the review of the Federal administration action.

Universal Camera Corp. v NLRB

Brief Fact Summary. The Court of Appeals for the Second Circuit granted enforcement of an
order directing Universal Camera Corporation (Petitioner) to reinstate an employee with back
pay who was discharged because he gave testimony under the Wagner Act (Act), and cease and
desist from discriminating against any employee who files charges or gives testimony under the
Act. The views of that court conflicted with those of the Court of Appeals for the Sixth Circuit,
and clash of opinions required settlement by the United States Supreme Court.

Synopsis of Rule of Law. The substantial evidence test was the standard of review under all
three statutes.

Facts. The Wagner Act was one of the principle New Deal statutes, and heavily regulated the
collective bargaining process and, in many cases, required employers to deal with the unions.
That Taft-Hartley Act was enacted in 1947 to amend some features of the Wagner Act that were
deemed to tilt the balance too far against employers. The lower courts were reaching different
conclusions about the application of the Act, so settlement was required by the Supreme Court.
The Petitioner claimed that the Court of Appeals erred in holding that it was barred from taking
into account the report of the examiner on questions of fact insofar as that report was rejected by
the board.

Issue. What was the effect of the Administrative Procedure Act and the Taft-Hartley Act on the
duty of the Court of Appeals when called upon to review orders of the National Labor Relations
Board (NLRB)? Was the Court of Appeals bound by the Boards rejection of an examiners

Held. Remanded to the Court of Appeals to accord the findings of the trial examiner the
relevance they reasonably command in answering the comprehensive question whether the
evidence supporting the Boards order was substantiated. The APA and Taft-Hartley Act direct
that courts assume more responsibility for the reasonableness and fairness of Labor Board
decisions than in the past. The Boards findings are entitled to respect; but they must still be set
aside when a record before the Court of Appeals clearly precludes the decision from being
justified by a fair estimate of the worth of the testimony of the witnesses, its informed judgment
on the matters, or both. The substantial evidence test applies. The responsibility placed on the
Board by the Labor Management Relations Act does not make its decision unreviewable.
Nothing in the statutes suggest that the Board should not be influenced by the examiners
opportunity to observe the witnesses he hears and sees and the Board does not. Nothing suggests
that courts should not give an examiners report such probative force as it commands. The
substantial evidence test is not modified in any way when the examiner and the Board disagree.
Dissent. None. Concurrence. None printed.

Wagner agency had discretion to submit what supported the record.
Taft Wagner is not enough too broad. Need not only explain what you did but what you
didnt do.

NLRB v Hearst

Brief Fact Summary. Hearst Publications, Inc. (Respondents), the publishers of four daily Los
Angeles, California newspapers, refused to collectively bargain with a city union representing
newsboys, claiming the it was not required to because the newsboys were not their employees
within the meaning of the National Labor Relations Act (Act). The United States Supreme Court
granted certiorari to resolve the issue.

Synopsis of Rule of Law.

Facts. The proceedings began when the Los Angeles Newsboys Local Industrial Union No. 75
(Union) filed petitions with the NLRB, which held hearings and found the newsboys to be
employees within the Act. However, Respondents refused to bargain with it, and proceedings
were instituted. The NLRB ordered Respondents to cease and desist from its violations and to
bargain collectively with the Union. The Respondents petitioned for review, and the Circuit
Court of Appeals set aside the Boards orders, finding that the newsboys were not employees of
the newspaper within the Act.

Issue. Were the newsboys employees within the meaning of the Act?

Held. Yes. Reversed and remanded. The Board found that the newsboys worked continuously
and regularly and relied on their earnings to support their families. Their hours of work were
supervised and to some extent prescribed by their publishers or agents. The Board stated that its
primary consideration was whether effectuation of the declared policy and purposes of the Act
comprehended securing to the individuals the rights guaranteed and protection afforded by the
Act, and concluded the newsboys were employees. The Court found that record sustained the
Boards findings and there was ample basis in the law for its conclusion. Dissent. Congress did
not delegate to the NLRB the function of defining the relationship of employment. Rather,
employee was to be interpreted as our common understanding of employee, from decades of
tradition. The newsboys were not employees within the meaning of the Act. Concurrence. None

Discussion. The Court afforded deference to the Boards conclusions as the administrative body
entrusted by Congress.

Packard Motor Car co. v NLRB

Brief Fact Summary. Packard Motor Car Company (Company) employed about 32,000 rank and
file workmen, and 1,100 foremen, who were supervisors. The NLRB approved a collective
bargaining unit called the Foremans Association of America, which represented supervisory
employees exclusively. The Company challenged the Boards order, claiming that the foremen
were not employees entitled to the advantages of the National Labor Relations Act (Act).

Synopsis of Rule of Law. Section:2 (2) of the Act reads: The term employer includes any
person acting in the interest of an employer, directly or indirectly. The purpose of the section
was to render employers responsible in labor practices for acts of any persons in their interests.
The intention was not to deny the organizational privilege to employees simply because, in their
supervisory position, they acted in the interest of the Company.

Facts. The responsibility of the foremen was to maintain the quality and quantity of production
for the Company. The foremen, as a group, were highly paid and entitled to benefits not afforded
to ordinary workmen. They formed the Foremans Association of America as a collective
bargaining unit for supervisors. The Board found the foremen to be employees under
Section:9(b) of the Act, and approved the unit, but the Company asserted that they were not
employees, and refused to bargain with the unit. The court below decreed enforcement of the
order, and the Supreme Court granted certiorari. The Company tried to assert that the Acts
definition of employer excluded the foremen from being employees.

Issue. Were foremen employees under the Act, entitled as a class to the rights of self-
organization and collective bargaining?

Held. Yes, the foremen were employees of the Company. Affirmed. The purpose of Section:2(2)
defining employer was not to deny the organizational privilege to those with supervisory
positions, simply because they act in the interest of the company. Even those who act in the
interest of the Company in some matters still have their own interests as employees of the
Company. Dissent. The majority misunderstood the Wagner Acts use of the terms employee
and employer. Concurrence. None.

Discussion. The Court agreed with the Boards interpretation of the Act.

Skidmore v. Swift & Co.

Skidmore et. al. worked for Swift. They worked a normal 40-hour work week during the
day, but sometimes stayed overnight to respond to fire alarms.
o They were given sleeping quarters and a lounge, and they had no other duties
besides responding to alarms, which was infrequent.
o Skidmore et. al. were paid a set amount per alarm they responded to, in addition
to their weekly salaries.
Skidmore et. al. sued Swift for violating the Fair Labor Standards Act (29 U.S. C. 207).
o Skidmore argued that they were entitled to time-and-a-half overtime pay for the
extra hours worked, as opposed to the per-response rate they'd agreed to.
The Trial Court found for Swift. Skidmore appealed.
o The Trial Court found that as a conclusion of law, waiting time can never count as
o "The time plaintiffs spent in the fire hall subject to call to answer fire alarms does
not constitute hours worked, for which overtime compensation is due them under
the Fair Labor Standards Act, as interpreted by the Administrator and the Courts."
"Of course we know pursuing such pleasurable occupations or performing
such personal chores does not constitute work."
The Appellate Court affirmed. Skidmore appealed.
The US Supreme Court reversed.
o The US Supreme Court found that "no principle of law found either in the Statute
or in Court decisions precludes waiting time from also being working time."
Whether the time counted as work was a question of fact, not a question of
o The Court looked to an Amicus Brief filed by the Administrator from the
Department of Labor, which said that the determination of whether waiting time
counted at work should be based on a case-by-case basis, and it was not a
question of law, but instead a question of fact.
The Dept of Labor had never issued any regulations on this topic.
o The Court found that the Administrator was much more knowledgeable of labor
law and the Fair Labor Standards Act than the Court was, and therefore the Court
should take his comments seriously.
o The case was remanded and the Trial Court was ordered to decide if Skidmore's
time counted as work as a question of fact.
Basically, this case said that although the rulings, interpretations, and opinions of the
Administrator under the Fair Labor Standards Act do not control judicial decision, they
do constitute a body of experience and informed judgment to which courts and litigants
may properly resort for guidance.
This case was later overruled by Chevron U.S.A. Inc. v. Natural Resources Defense
Council (467 U.S. 837 (1984)), which basically said that the Agency's opinion should be
controlling unless it is unreasonable.
o Although, the Courts have recently come back to Skidmore, and found that not
every decision should get complete (Chevron) deference. Some decisions are only
given partial (Skidmore) deference.
See United States v. Mead Corp. (533 U.S. 218 (2001)).


Chevron USA v National Resources Defense Council

Brief Fact Summary. The Clean Air Act Amendments of 1977 (Amendments) made
requirements applicable to states that had not achieved the national air quality standards
established by the Environmental Protection Agency (EPA) in earlier legislation. The
Amendments required the nonattainment States to establish a permit program regulating new
or modified major stationary sources of air pollution, pursuant to stringent conditions. The
EPAs decision to allow States to treat all pollution-emitting devices within the same industry
grouping as though within a single bubble was challenged in this case.

Synopsis of Rule of Law. Policy arguments are more properly addressed to legislators or
administrators, not to judges. In these cases, the Administrators interpretation represents a
reasonable accommodation of manifestly competing interests and is entitled to deference: the
regulatory scheme is technical and complex, the agency considered the matter in a detailed and
reasonable fashion, and the decision involves reconciling conflicting policies.

Facts. The EPA promulgated a regulation permitting States to adopt a plant-wide definition of
the term stationary source. This definition allowed an existing plant that contained several
pollution-emitting devices to install or modify one piece of equipment without a permit if the
overall plant emissions were not increased by the alteration-a bubble concept. National
Resources Defense Council, Inc. (Respondents) petitioned for review in the Court of Appeals for
the District of Columbia Circuit, and the Court of Appeals set aside the regulation. The
Amendments were lengthy, detailed and complex. They did not disturb the prior definition of
stationary source; but did add a new definition for major stationary source. The legislative
history of the amendments contained no specific comment on the bubble concept or the
question of whether a stationary source was permissible under the permit program.

Issue. Was EPAs decision to allow States to treat all pollution-emitting devices within the same
industry grouping as though within a single bubble based on a reasonable construction of the
statutory term stationary source?

Held. Yes. Reversed the judgment of the Court of Appeals. The EPAs definition of the term
source is a permissible construction of the statute which seeks to accommodate progress in
reducing air pollution with economic growth.

A review of the EPAs varying interpretations of source over time demonstrated that it
consistently viewed the term flexibly, in the context of implementing policy decisions in a
technical and complex arena. It was not the agency, but the Court of Appeals, that read the
statute inflexibly in 1980 to command a plant-wide definition for plants designed to maintain
clean air, and a to forbid such a definition for programs designed to improve air quality. It was a
basic legal error for the Court of Appeals to adopt a static definition of the term stationary
source when it had decided that Congress itself had not commanded that definition. Dissent.
None. Concurrence. None.

Discussion. Chevron was a landmark case that advocated giving agencies deference for their
reasonable policy-making decisions.

1) Did Congress speak to the issue
a. If yes = follow
2) If silent/ambiguous
a. Is AG interpretation reasonable?

Bottom line the test as to deference is what matters

When they are looking at the circumstances they are looking at the whole record


Chevron is basically a level of deference.

SCOTUS has little to say about Chevron

INS v Cardoza-Fonseca
First time Chevron test is being applied. Did Congress speak to it? Congress had two separate
definitions and it should have two applied two standards rather than treating them both the same.
She was applying for withholding of deportation and asylum as a refugee.

Bragdon v Abbott
ADA (Physical/mental):
a) Have a disability
b) Record/history
c) Regarded limits major life activity

Attorney General, Secretary of Transportation and EEOC have always agreed.

Patient with HIV brought action under ADA against dentist who refused to treat her in his office.

District Court held that HIV was a disability under ADA. Treating her would not have posed a
threat to the health of others.

Followed the Chevron test.
1. Did Congress speak to this? Yes
2. If vague/ambiguous, is what AG did reasonable?

Sutton v United Airlines


Timing and Availability of Judicial Review

Five Ws:
Whether judicial review of a specific agency action is available for, (and against)
Whom such review is available
What form the action for judicial review must take
Where an action for judicial review must be brought
When an action for judicial review is appropriate

Thresholds for getting into court

North American Cold Storage v Chicago

Three defenses:

There was a valid statute but they exceeded their statutory authority
Agency acted under the statute, the statute is unconstitutional
Agency acted without statutory authority

When the defendant is the government, very narrow availability to bring suit.

Sovereign immunity - An individual cannot sue the government for any form of relief unless
congress has expressly consented (by statute) to it. It is an absolute bar to relief unless Congress
has consented. Exception is constitutional issues.

When you have an action against the government, it is barred with the following exemptions:

Exemptions to the bar of sovereign immunity:
1. Private bill
2. Tucker Act (1887) allows for certain types of monetary claims for express or implied
contracts, not sounding in tort and possibly in takings
3. Federal Torts Claim Act (1946) claims sounding in tort, but very narrowly. Liable to the
same extent as a private individual under same like circumstances, except:
i. No interest prior to judgment
ii. No punitive damages
iii. No liability for any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or interference with contract rights
a. Good Faith Exception - It is limited in scope that it is generally not an act or
omission of a federal employee. Basically, it is not for an employee has
committed a faithfully (good faith or faithful execution) executes of an invalid
statute or regulation. Then no damages in tort as the employee did what he
thought he could do.
b. Discretionary Function Exemption no liability - Its a discretionary function of
the federal employee even if it is a valid statute to it.
c. Good Faith for a governmental official. An affirmative defense.

Little v Barreme

Old rule government itself could not be sued, but the offending government officials were
liable as ordinary tortfeasors in the absence of valid legal authorization.

Sovereign immunity is not official immunity for the official for the act. The individual could be

Nonmonetary relief (mandamus relief, injunction) is not a bar against sovereign immunity.

Bivens Doctrine state official violated federal constitutional rights
A federal official who violated a federal constitutional right as well

Barr v Mateo
Broadly immunized federal officials from suit for actions within the outer perimeter of their
duties. This has come to be known as qualified immunity. Its a good faith defense by the
official caught up in the action and an affirmative defense by the government official.

Official immunity judges, prosecutors


Statutory nonstatutory review injunction, mandamus

704 need a final agency action and no other judiciary avenue available in order to get into
court, to get an agency review

13.28 USC 21 provides jurisdiction under the federal court

702 waive sovereign immunity must be able to get around sovereign immunity

Special statutory review

703 general statutory review of agency action only in the event the absence or inadequacy of
any special statutory review proceeding relevant to the subject matter in a court specified by

Organic statutory act (public policy)

Agency (narrower rules/regulations)

Special review statute

Most organic statutes include this. Layout the where, when, how
Just as the act creates the agency, it includes the process

Venue can be a big issue with some agencies. In many cases, the statute will designate the
circuit under the special review statute

Timing and Availability of Judicial Review

Five Ws:
Whether judicial review of a specific agency action is available for, (and against)
whether judicial review of an agency action is precluded negative look. Some form of
agency review is ALMOST always available - pursuant to special statutory, general
statutory, or nonstatutory review doctrines.
o Judicial review 701(a)
Statutes preclude judicial review
does not apply when agency action is committed to agency discretion by
Whom such review is available, its about standing
What form the action for judicial review must take
Where an action for judicial review must be brought
When an action for judicial review is appropriate have you exhausted all your
procedures, is it premature, ripe, etc

Express preclusion statutes specifically precludes judicial review generally means court will
find for judicial review. Court says those words are not enough to overcome judicial review (i.e.
final). Need clear and convincing evidence.

Implied preclusion Congress clearly didnt specifically try to preclude it, the Court will try to
see if that is what they meant.

Block v Community Nutrition
Basically about milk price fixing.
Consumer had standing in the district court. It was about implied preclusion. Because the
statute did not allow was the consumer, that was clear and convincing evidence that Congress
meant to overcome the judicial review - implied preclusion.

Bowen v Michigan Academy of Family Physicians

Brief Fact Summary. Michigan Academy of Family Physicians (Respondents) filed suit to
challenge the validity of Section 405.504(b) of Title 42 of the United States Code (Code), which
authorized the payment of benefits in different amounts for similar physicians services. The
Secretary of Health and Human Services (Secretary) contended that Congress had forbidden
judicial review of all questions affecting the amount of benefits payable under Part B of the
Medicare program.

Synopsis of Rule of Law. The Court begins with the strong presumption that Congress intends
judicial review of administrative action. This presumption will not be overcome without
persuasive reason to believe that such was the purpose of Congress.

Facts. The Secretary contended that Section 1395ff(b), which authorized appeal by individuals
impliedly foreclosed administrative or judicial review of Part B by failing to authorize such
review while simultaneously authorizing administrative or judicial review of any determination
under Part A. Second, the Secretary asserted that Section 1395ii, which made Section 405(h) of
the Social Security Act (SSA) applicable to the Medicare program, expressly precluded review
not otherwise provided in the statute. Both the District Court and the Court of Appeals rejected
the Secretarys contention of judicial preclusion.

Issue. Did Congress, in either Code Section 1395ff or Section 1395ii, bar judicial review of
regulations promulgated under Part B of the Medicare program?

Held. Affirmed. No. A careful analysis of the statutory provisions and legislative history of
Section 1395ff revealed that Congress intended to bar judicial review only of determinations of
the amount of benefits to be awarded under Part B. A review of the legislative history of SSA
Section 405(h) and Code Section 1395ii revealed that Congress intended to foreclose review
only of amount determinations.
Dissent. None.
Concurrence. None.

Discussion. This was a unanimous decision regarding express preclusion by the Supreme Court.

Committed to agency discretion by law no judicial review

Lincoln v Vigil

Brief Fact Summary. The Indian Health Service (Service) decided to stop funding the Indian
Childrens Program (Program) in favor of other services for Indians across the United States. A
group of handicapped Indian children (Respondents) eligible to receive services through the
Program brought this action for injunctive and declaratory relief against the Director of the
Service and the Service, claiming the decision violated the Snyder Act, the APA, and other

Synopsis of Rule of Law. While the APA embodies a presumption of judicial review, Section
701(a)(2) precludes judicial review of certain categories of administrative decisions that courts
have traditionally regarded as committed to agency discretion.

Facts. The Snyder Act authorized the Service to allocate funds it received from Congress for the
benefit, care and assistance of Indians, for the relief of distress and conservation of health.
The District Court granted summary judgment for Respondents. The Court of Appeals affirmed,
rejecting the Services argument that the decision was committed to agency discretion under the

Issue. Was it error for the Court of Appeals to hold the substance of the Services decision to
terminate the Program unreviewable under the APA?

Held. No. The Services decision to discontinue the Program was committed to agency
discretion by law, and therefore not subject to judicial review under APA Section 701(a)(2).
The allocation of funds from a lump-sum appropriation is an administrative decision traditionally
regarded as committed to agency discretion. The point of a lump-sum appropriation is to give an
agency the ability to adapt to changing circumstances as it sees fit. Dissent. None. Concurrence.

Discussion. In giving the Service a lump-sum appropriation, Congress provided the Service with
flexibility to adapt to changing needs and manage the funds as it saw fit. The Court found this
type of discretionary agency action unreviewable under the APA.


Lujan v. Defenders of Wildlife

Elements to show standing
Must be a concrete and materialized fact
Must have a causal effect between defendant to the injured party
Ability to redress the injuries

Section 7(a)(2) of the Endangered Species Act of 1973 divides responsibilities regarding the
protection of endangered species between the Secretary of the Interior (Manuel Lujan, D) and the
Secretary of Commerce. The section requires each federal agency to consult with the appropriate
Secretary to ensure that any action funded by the agency is not likely to jeopardize the continued
existence or habitat of any endangered or threatened species. Both Secretaries initially
promulgated a joint regulation extending the sections coverage to include actions taken in
foreign nations; however, a subsequent joint rule limited the sections scope to the United States
and the high seas.

The Defenders of Wildlife (P) and other organizations brought a lawsuit in federal district court
seeking a declaratory judgment that the new regulation erred regarding the geographic scope of
section 7(a)(2), and an injunction requiring Lujan to promulgate a new rule restoring his earlier
interpretation that extended the sections coverage to include actions taken abroad. The district
court dismissed the suit for lack of standing and the court of appeals reversed. On remand, on
cross-motions for summary judgment, the District Court denied Lujans motion renewing his
objection to standing, and granted the plaintiffs motion ordering Lujan to publish a new rule.
The Court of Appeals for the Eighth Circuit affirmed and the U.S. Supreme Court granted cert.

What must a party invoking federal jurisdiction establish in order to show standing?
What must a party show in order to survive a motion for summary judgment for lack of
If a plaintiff is not an object of government action, what must a party show in order to show
Can Congress pass legislation that allows for the creation of citizen suits that confer standing
upon citizens who would not be able to allege an injury in fact?
Holding and Rule (Scalia)
In order to establish standing, a party invoking federal jurisdiction bears the burden of
establishing, among other things, that they have suffered an injury in fact; i.e., a concrete and
particularized, actual or imminent invasion of a legally-protected interest.
To survive a motion for summary judgment for lack of standing, a party must set forth by
affidavit or other evidence specific facts to support its claim.
In addition to the above, in order to show standing, a party that is not an object of government
action must show facts that the choices made by the independent actors not before the courts
have been or will be made in such a manner as to produce causation and permit redressability of
No. Congress cannot pass legislation that allows for the creation of citizen suits that confer
standing upon citizens who would not be able to allege an injury in fact.
The plaintiffs did not demonstrate that they suffered an injury in fact. Assuming that they
established that funded activities abroad threaten certain species, they failed to show that one or
more of their members would thereby be directly affected apart from the members special
interest in the subject. Affidavits of members claiming an intent to revisit project sites at some
indefinite future time, at which time they will presumably be denied the opportunity to observe
endangered animals, do not suffice, for they do not demonstrate an imminent injury.

The court rejected the plaintiffs argument that any person using any part of a contiguous
ecosystem adversely affected by a funded activity has standing even if the activity is located far
away from the area of their use.

The Court of Appeals erred in holding that the Defenders of Wildlife had standing on the ground
that the statutes citizen suit provision confers on all persons the right to challenge the
defendants failure to follow the proper procedure, notwithstanding plaintiffs inability to allege
any concrete injury arising from that failure.

A party claiming only a general grievance about government, unconnected with a threatened
interest of its own, does not state an Article III case or controversy. Vindicating the public
interest is the function of the Congress and Chief Executive. To allow that interest to be
converted into an individual right by statute would authorize Congress to transfer from the
President to the courts the Chief Executives most important constitutional duty to take care that
the laws be faithfully executed.

Reversed and remanded.

Injury in fact

Friends of the Earth, Incorporated v. Laidlaw Environmental Services

Brief Fact Summary. Defendant respondent, Laidlaw Environmental Services (Defendant),
contends that its shutdown of a waste processing facility and its compliance efforts render a
citizen suit under the Clean Water Act moot.

Synopsis of Rule of Law. When a defendant argues that voluntary cessation of an activity
renders a suit moot, the defendant has the burden of proving that the allegedly wrong behavior
could not reasonably be expected to recur.

Facts. Congress enacted the Clean Water Act, known as the Federal Water Pollution Control
Act. It authorizes the administrator National Pollutant Discharge Elimination permits. The
permits imposes limitations on the discharge of pollutants and establish related monitoring and
reporting requirements. Noncompliance with a permit constitutes a violation of the Act.
Defendant holds a National Pollutant Discharge Elimination System permit. Plaintiff
Petitioner, Friends of Earth, Incorporated (Plaintiff), alleges Defendant was violating mercury
discharge limits of the Clean Water Act, and brought a citizen suit against Defendant. Defendant
argues that the suit is moot either because it achieved substantial compliance with the permit
guidelines by August 1992 or because of its shutdown of the facility in question.

Issue. Can Defendants voluntary conduct sustain a finding of mootness?

Held. Not in this case. Reversed and remanded.
A case compelling compliance requires the Plaintiff to establish the complained of behavior will
continue to occur. However, when a Defendant asserts mootness on the basis of his voluntary
conduct, the burden is on the Defendant to show the conduct cannot reasonably be expected to
occur in the future.

In the current case, the Defendant has not demonstrated why or how the complained of actions
will not reoccur in the future.

Discussion. The Supreme Court of the United States (Supreme Court) carves out this mootness
exception for obvious reasons. If a defendant can make a case moot simply by ceasing the
complained of activity, the defendant could stop and restart the same activity for (theoretically)
an infinite amount of time without facing a judicial decision on the activity.

Constitutional standing
How to get around sovereign immunity

and Elements to show standing
Must be a concrete and materialized fact
Must have a causal effect between defendant to the injured party
Ability to redress the injuries


Ripeness merely an aspect of finality, but in other contexts it has independent significance
An attempt to seek judicial review of a rule prior to any enforcement action would often be
dismissed by courts as unripe. Courts thought it best to postpone review until an enforcement
proceeding gave a more concrete sense of agencys position and a more effective record for
judicial review.

Cases that continue to define the modern ripeness doctrine:

Abbott Laboratories v Gardner

Brief Fact Summary. A group of drug manufacturers challenged the authority of the
Commissioner of Food and Drugs to make regulations about labeling and advertising
prescription drugs under the amended Federal Food, Drug and Cosmetic Act. The challenge was
brought prior to enforcement of the regulations.

Synopsis of Rule of Law. Pre-enforcement review is appropriate where not prohibited by the text
of the Act itself, nor inconsistent with the legislative intent behind the Act. There is an actual
case or controversy where there has been a final agency decision and withholding judicial
consideration will result in hardship to the parties.

Facts. Congress amended the Federal Food, Drug and Cosmetic Act in 1962 to require
manufacturers of prescription drugs to print the established name (generic name) of the drug
prominently and in type at least half as large as the type used for the proprietary name (brand
name) on labels and other printed material. The purpose was to inform doctors and patients of
drugs established names so that they could be purchased at lower prices. The Commissioner of
Food and Drugs published proposed regulations (in addition to the Act) which required all drug
labels and drug advertisements to put the established name next to the proprietary name every
time the proprietary name appeared. A group of 37 drug manufacturers (the Petitioners)
challenged the regulations on the grounds that the Commissioner exceeded his authority under
the Act in issuing the regulations. The District Court granted injunctive and declaratory relief
against the Commissioner. The Court of Appeals for the Third Circuit reversed, holding (1) that
pre- enforcement review of the regulations was not permitted by the Act, and (2) that no relief
was available under the Administrative Procedure Act because no actual case or controversy
existed. The Supreme Court of the United States granted certiorari.

Issues. Did Congress, by its Federal Food, Drug and Cosmetic Act, intend to forbid pre-
enforcement review of the sort of regulations promulgated by the Commissioner? Were the
issues ripe for judicial decision? Would withholding court consideration result in hardship to the

Held. Reversed and remanded to the Court of Appeals to review the District Courts decision that
the regulation was beyond the power of the commissioner. No. Nothing in the Act itself
precludes pre-enforcement review. A review of the legislative history of the Act reveals that the
specific review provisions were designed to provide an additional remedy, and not to cut down
more traditional channels of review. The Act itself states, The remedies provided for in this
subsection shall be in addition to and not in substitution for any other remedies provided by
law. Yes, the issues presented were ripe for judicial consideration, and withholding judicial
consideration would result in hardship to the parties. The parties agreed that the issue tendered
was a purely legal one. The regulations in issue were reviewable as a final agency action under
the Administrative Procedure Act because when, as here, they are promulgated by order of the
Commission and the expected conformity to them causes injury cognizable by a court of equity,
they are appropriately the subject of attack. The regulations would have a direct day-to-day
impact on the operation of the companies, who either had to incur huge costs to comply with the
regulations requirements or risk prosecution. Dissent. There were two unpublished dissents by
Mr. Justice Fortas and Mr. Justice Clark. Concurrence. None.

Discussion. Courts should look to the text of the statute itself, along with the legislative history,
to determine the intended application and scope. In this case, pre-enforcement review was not
precluded by the Federal Food, Drug and Cosmetic Act. Pursuant to the Constitution of the
United States, there must be an actual case or controversy in order for the Supreme Court of the
United States to grant certiorari. Under the Administrative Procedure Act, final agency actions
are considered ripe for judicial review. Here, the Petitioners would have suffered an operational
and financial hardship if judicial consideration was withheld.

As a result

Two part test
no further agency action needed
Hardship to the parties of withholding court considerations financial aspect of before
and after.

It didnt change the requirement of getting to a final agency action.
It changed the definition. It allowed for pre-enforcement review rather than post-enforcement

Toilet Goods Assn v Gardner

Brief Fact Summary. Toilet Goods Association (Petitioners) sought pre-enforcement review of
certain regulations promulgated by the Commissioner of Food and Drugs (Commissioner) on the
ground that he exceeded his authority under the Color Additive Amendments to the Federal
Food, Drug and Cosmetic Act (Act).

Synopsis of Rule of Law. Nothing in the Food, Drug and Cosmetic Act bars a pre- enforcement
suit under the APA and the Declaratory Judgment Act.

Facts. The Petitioners, an organization of cosmetics manufacturers and 39 individual cosmetics
manufacturers and distributors, brought this action in the United States District Court for the
Southern District of New York seeking declaratory relief and an injunction against the
Commissioner and the Secretary of Health, Education and Welfare (Secretary). The challenged
regulation permitted the Commissioner to temporarily suspend certification service if it appeared
that anyone involved in the manufacture of color additives refused to grant entry to an FDA
employee. The District Court held that the Act did not prohibit pre-enforcement review, that a
case and controversy existed, that the issues were justiciable, and no reasons were presented by
the Government to warrant declining jurisdiction on discretionary grounds. The Court of Appeals
affirmed as to three of the challenges to the regulations, but sustained the Governments
contention that review was improper as to the fourth.

Issue. Was pre-enforcement review permissible?

Held. Nothing in the Food, Drug and Cosmetic Act bars a pre-enforcement suit under the APA
and the Declaratory Judgment Act. However, the Supreme Court agreed with the Court of
Appeals that judicial review of that particular regulation in that particular context was not ripe
for adjudication. Primary conduct was not affected. The regulation merely stated that the
Commission could authorize inspectors to examine certain processes of formulae. He had not yet
done so, and the worst that might have happened if a manufacturer refused to admit an inspector
would have been a temporary suspension of their license, which could then be promptly
challenged through administrative proceedings.

Discussion. The question of ripeness involves a two-fold inquiry: 1] determine whether the
issues tendered are appropriate for judicial resolution; and 2] assess the hardship if judicial
review is denied at that stage. Pre-enforcement review was not precluded under the Act, but was
precluded on ripeness grounds. Petitioners were merely speculating as to the difficulty that
would take place if the Commissioner chose to act pursuant to the regulation, which he had not
yet done.

Same holding as Abbott with a different result.

The Aftermath

Abbott two-part ripeness test continues to govern today and has made pre-enforcement review of
agency rules the norm rather than the exception. (reduce costs to industries).

Application of the ripeness doctrine often turns on fact-bound determinations concerning the
effects on parties of postponing review and the likelihood that further agency proceedings will
shed light on the issues before the court.


3 hours
2 essays and 40 MC
First essay, a lot of issues. 40 points. Second essay, 20 points.

Essays just both before starting. Very different issue patterns.

IRAC spot the issues

Start with brief basic outline. On paper, write each issue you find. Then add the rule, then the
facts to support it.


Looking at how the Constitution and Congress clash.

Agencies considered 4
government branch.

Course is about constraints on administrative agency actions.

Article I delegations

Article II appointments and removals. Who has to be appointed and how. How to remove.
Who hast he ability to remove and how.

Article III delegation of authority to others. Congress giving judicial power versus their own

APA its a baseline for all administrative agencies.

Formal rulemaking EastCoast
Formal adjudication

Vermont Yankee

Informal adjudication

Constitutional restraints due process
Rights v Privilege
Entitlement life, liberty and property. What each meant and then coalesce together. Anything
important to anyone.

Did away of the rights v privilege of due process. Then entitlement theory.

Goldberg v Kelly expansion of due process

Then Congress and the Courts got nervous and reined it in with Matthews v Eldridge. Similar
issue but different court holding.

Two part due process
Substantive and procedural

If substantive some procedure depends on the procedure

Scope of review Wagner going on the record
Taft Harltey making record more complete

Chevron reviewing a lower court decision.
Level of defference.
Vermont Yankee
Overtown Park

Bradgen and Sutton Congress revises and overturns

Timing and availability of judicial review
Whos responsibility
Sovereign immunity
The exceptions to sovereign immunity

Whos liable

When can you bring the action

The standing Friend of the earth
Constitutional standing injury in fact concrete and particularized possibility of
Statutory standing sovereign immunity and getting around it. Private bill, Tucker act, organic

Constitutional and statutory standing are required

Implied and express preclusion

Final agency action means
The ripeness doctrine and what it means