I.

INTRODUCTION
A. Agencies: Their Origins, Forms, and Functions
1. Regulatory agency:
i. (1) Expertise; (2) Removed from the political system; (3) Accountability to the President; (4) Reviewable
by several different branches of government; (5) Ability to act quickly to respond to situations; (6) Create
broad statutes and agencies fill the gaps; (7) Own tribunals
ii. Regulatory Capture – Idea of having a politically insulated body being optimal backfires – the agency
becomes intertwined with the industry it regulates and does not operate in an optimal way.
2. Rulemaking v. Adjudication
i. Rulemaking – APA - §551(4) “rule” means the whole or a part of an agency statement of general or
particular applicability and future effect designed to implement, interpret, or prescribe law or policy or
describing the organization, procedure, or practice requirements of an agency and includes the approval or
prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof,
prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or
practices bearing on any of the foregoing.
 Forward looking and generally applicable. §553 (informal); §556, 557 (formal)
ii. Adjudication – APA - §551(7) “adjudication” means agency process for the formulation of an order;
 (6) “order” means the whole or a part of a final disposition, whether affirmative, negative,
injunctive, or declaratory in form, of an agency in a matter other than rule making but including
licensing. More focused on past and present and discrete parties to a dispute, with more narrow
applicability only to those parties, not generally to others.
o Relatively small number of persons who are affected on individual grounds; usually
backwards looking. §555 (informal); 554, 556, 557 (formal)
3. Londoner v. City of Denver
i. Question – Whether the city charter provision authorizing the raising of a tax without notice and comment
from landowners violates the due process of law.
ii. Holding: If the State delegates to some subordinate body, DP requires that before assessment was fixed
taxpayers must have had notice & opportunity to be heard
 Yes – Affects a discrete class of people with substantial interest in the case.
 Landowners must have a right to be heard before the tax is levied against them, which deprives
them of liberty and property.
iii. The person has the right to be heard; written comments are not enough. Person needs something more
than that under due process of the law. A hearing is in essence supported by an argument and proof.
 Opportunity for argument and proof, usually through the right to be heard orally.
4. Bi-Metallic Investment v. Colorado
i. Question – Whether all individuals have a constitutional right to be heard before a matter can be decided in
which they are all equally concerned.
ii. Holding: notice & hearing were not required; distinguished from Londoner b/c Londoner affected a
relatively small number who were affected exceptionally, and on individual grounds, therefore each had a
right to a hearing
 No – distinguish from Londoner – in that case, there was a relatively small number of people that
were concerned and exceptionally affected. Here, there is a large number of people all equally
affected.
 Every single citizen being taxed does not have the right to be heard – applies equally and
nondiscriminatory. Traditional government function,
o There must be a limit to individual arguments and challenges of such matters of
government is to operate.
 Londoner – Small number of people exceptionally affected on individual
grounds.
 Bi-Metallic – Large number of people that are not exceptionally harmed on any
individual basis, harmed on a group basis.

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 II. THE CONSTITUTION AND THE ADMINISTRATIVE STATE
A. Agencies and Article I
1. Non-Delegation Doctrine – Congress cannot delegate its legislative power to any other branch of government.
i. Field v. Clark: “The integrity and maintenance of the system of government ordained by the Constitution”
mandate that Congress generally cannot delegate its legislative power to another Branch.
ii. Intelligible Principle – Traditional Rule. When Congress delegates authority to an agency, it must provide
the agency the intelligible principle to follow and not just allow the power to make laws. Agency is just
executing law, Congress is.
 Intelligible principle may be vague or broad to be upheld. No level of description necessary.
SCOTUS has little interest in enforcing the nondelegation doctrine, Congress usually doesn’t
constrain agencies too much.
o Possible factors:
 Adequate standards, procedures, and judicial review
 Small area of policy
 Adequate declaration of rule – as long as Congress declares the rule
iii. Congress can delegate powers if the agency already has this type of inherent power.
 Constitutional Avoidance Canon – If there is any other ground to interpret a statute that avoids
implicating the constituting problem, the Court uses it.
2. New Deal Era
i. Panama Refining v. Ryan (no intelligible principle)
 EO prohibiting transportation of interstate/foreign petroleum as allowed by National Industrial
Recovery Act. Unconstitutional delegation of legislative power? Yes
o This statute goes beyond those limits. No intelligible principal laid.
o There are no limitations of the broad grant of authority in section 9(c). It is brief and
unambiguous
o There is no guidance, no circumstances Pres can prohibit the transportation, no criteria.
o Legislative policy (the “declaration of policy”) in statute is a mere introduction.
o Nothing here to save it. No inherent presidential powers that will save it. No
commander in chief, no pardoning of prisoners, etc.
ii. Schechter Poultry v. US (no intelligible principle)
 Violation of the Live Poultry Code (under the National Industrial Recovery Act). Section 3 of the
NIRA allows President to approve codes of fair competition.
 Live P Code fixes the number of hours allowed to work, rate of pay, minimum number of
employees, AND prohibits unfair methods of competition.
o Is this an unconstitutional delegation of legislative Power? Yes
 Doesn’t define fair competition. Unfair competition is defined by common law.
 Court concerned with the lack of administrative procedures for the approval of
the codes.
 The limits to the Presidents discretion do nothing to further the legislative
policy.
 “in his discretion” and “to effectuate the policy”.
iii. When Delegating: The bigger the power, the more constraints you must have.
3. After the New Deal Era
i. Mistretta v. US
 Congress passes the Sentencing Reform Guidelines for federal crimes to create a range of
punishments for federal crimes. Creates a narrower range of sentencing outcomes for judges;
eliminates the horizontal equity issue of different judges facing the same issues giving vastly
different sentences – unfairness.

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  Cannot delegate without intelligible principal; which must be “constitutionally sufficient to
clearly [note] the general policy [public agency to apply], and the boundaries of this delegated
authority”
o Here, delegation is sufficiently specific.
o Court noted thee goals, purposes, and tool to be used; even gave factors to be
considered; and guidance on categories of offensives and offender characteristics.
 Delegations are always thought of as more valid if the agency already possesses some power in
that area.
o Judiciary already possessed power here, so not a deviation from the norm to create
guidelines. Not creating a new agency or department.
 Dissent – Scalia
o Nondelegation is an unenforced norm – cannot delegate legislative power to other
bodies. Need an intelligible principle.
o Sentencing Commission that creates the guidelines do not judge or execute the law, so
by definition it must create laws. It is just a junior varsity legislature, the only power it
possesses is to write laws.
o This does create a new branch entirely, not just commuting new powers
 After Mistretta- nondelegation challenges fail; Courts use constitutional avoidance canons
(Benzene and Reynolds); and will sever the portion of the statute that is unconstitutional (Chadha).
ii. INS v. Chadha
 Congress can delegate power to an agency as long as it is not pure legislative power and it
provides an intelligible principle.
o However, Congress cannot do something in between – it cannot delegate power to an
agency, but concerned about that power, retain some power to bring it back through a
claw back provision.
 Congress delegated authority to the AG to act on the deportation of illegal aliens, then after the
AG’s action, either the House or Senate could pass a resolution overturning the AG’s decision.
o One house legislative veto
 Court – Congress can only act through the Constitutional process: bicameralism passage then
presentation to the President.
o Legislative Action – Congress taking an action that affected the legal rights and
privileges of a person. Thus, since legislative action, must go through traditional civics
process.
 Basic idea – Congress cannot retain a claw-back power of a veto after it has delegated authority to
an administrative agency.
o Congress cannot give itself an intelligible principle – it cannot tell itself how to act in
the future.
iii. Is Nondelegation a Good Idea?
 Idea that an administrative agency would be experts in the situation and be insulated from the
political process.
o Modern era – This is not true. Things are not politically separate, and agencies enable
Congress to insulate itself from making hard decisions. Can take credit for the good
and pass the blame for the bad.
 Agencies may be more accountable than Congress – they work for the President, who can
essentially remove most of them for any reason. President directly responsible for the agencies,
and the people are directly responsible for the president.
o Idea of expertise and actual accountability.
B. Agencies and Article II
1. Appointments Clause – Article II, Section 2, Clause 2. President has the power with the advice and consent of 2/3
of the Senate to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other

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Officers of the United States. But Congress may by law vest the appointments of such inferior officers as they think
proper in the President alone, in the courts of law, or in the heads of departments.
i. Buckley v. Valeo
 Question – Are the appointed members of the FEC officers of the United States?
o 2 appointed by Secretary of the Senate and Clerk of the House, who are ex officio
members without the right to vote.
o 2 appointed by the President Pro Tempore of the Senate upon recommendation by the
majority and minority leaders of the Senate.
o 2 appointed by the Speaker of the House upon recommendation by the majority and
minority leaders of the House.
o 2 appointed by the President.
 Officer Test – Do the appointed members exercise significant authority under the laws of the
United States?
o FEC is the head of a major agency – clearly has significant power under the laws of the
United States.
ii. Principal v. Inferior Officer
 Principal Officer – President possess appointment power subject to the advice and consent of 2/3
of the Senate. President appoints, Senate approves.
o Ambassadors, public ministers, federal judges, and all other officers of the United
States.
o Principal officers must go through this appointments process
 Inferior Officers – Congress may vest the appointment of such inferior officers as it thinks proper
in the President alone, the courts of law, or in the heads of departments.
 Morrison v. Olsen
o Independent counsel. Appointed: President  AG  Special Counsel  IC. Four-part
test for inferior officers with one factor carrying significant weight.
 Appointment of the IC by Special Counsel only valid if she is an inferior, not
principal, officer.
o IC clearly an officer – exercising significant authority to execute the laws of the United
States.
o Inferior Officer Test Factors:
 (1) The officer is subject to removal by a higher executive branch official.
o Other than the President – since the President can always terminate any
official.
o Strongest factor – If there is a strong ability to remove the officer at
will by someone other than the President, you will almost always have
an inferior officer.
 (2) The officer is empowered by the Act to perform only certain, limited duties.
o Wide powers within a limited duty.
 (3) The officer’s office is limited in jurisdiction and scope.
o Accomplish a single task within reason and can terminate the position
after completion.
 (4) The officer has limited tenure.
o Only as long as necessary to finish the precise job.
 Appointment was constitutional (Morrison) because he was an inferior officer- he could be
removed, only have specific/limited duties, limited in jurisdiction (only reached serious
federal crimes), limited in tenure. the appointments clause does not preclude inter-branch
appointment (specially here where the appointment does not create separation of powers issue as
the counsel has a special relationship with the court, and does not create incongruities in the
branches.
 Edmond v. United States
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 o Scalia – Members of the Coast Guard Court of Criminal Appeals are inferior officers.
All four Morrison factors are not satisfied, but some are satisfied.
o Inferior officers connote a relationship with a higher-ranking officer or authority. Must
have a superior.
o Each of the four factors aren’t really necessary –– If you have a strong showing of the
first Morrison factor, that is enough. Supervision and authority vested by a higher-
official to terminate.
o Morrison doesn’t explain how to completely weight the test, but when the four are
present, it may be inferior. Edmond says even if you only have a strong showing of the
first factor, that is enough for an inferior officer. Subject to supervision.
 Free Enterprise Fund v. PCAOB
o Case seems to say that if an officer is removable at will by a higher ranking official,
then it is an inferior officer.
o Doesn’t really have to do with duties, only his place in the food chain. Members of
the PCAOB were inferior as long as they were subject to removability at will be the
SEC.
 Freytag v. Commissioner
o Who can Congress vest power in to appoint inferior officers? What is the definition of
Courts of Law and Heads of Departments?
o Tax Court, not an Article III court. Not appointed for life (no tenure) and do not have
salary protections afforded to Article III courts.
 Special trial judges of the Tax Court appointed by the Chief Judge of the Tax
Court.
o (1) The Chief Judge of the Tax Court is NOT a head of a department.
 Department means something large – like cabinet level. Part or division of the
executive branch given a name by Congress does not encompass a head of a
department.
o (2) The Tax Court is a court of law.
 Appointment valid because Tax Court is a court of law. Thus, they are inferior
officers. Only need one of the two, not both.
o Dissent – Scalia
 Wrong on both. Appointment valid because Chief Judge of the Tax Court is a
head of a department. Constitution not limited to large departments. Also, the
constitutional meaning of court of law is an Article III court
o Freytag has been implicitly overturned in later cases, and modern law reflects Scalia’s
viewpoint:
 Courts of law – Only Article III courts or courts created out of the Article II
judiciary.
 Heads of Departments – Any free standing component of the executive breach,
not subordinate to or contained within, any other department. No size
requirement.
 Unanswered Question: What is inferior officer is appointed with these limited duties, and then his
power greatly increased while in office to circumvent the rules?
2. Removal Power
i. Congressional impeachment power the only mention of removal. House brings the charges; Senate tries the
case. Impeachment available for any officer of the United States.
ii. Four Possible Theories for Removal:
 (1) Since impeachment is the only power listed in the Constitution, there is no other way to
remove an officer.
o Never been accepted by law.

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  (2) Removal is an executive function, and the entire executive function is vested in the President.
Thus, removal is the exclusive power of the President, and the President can always remove.
 (3) The mode of removal follows the mode of appointment – Go through the same process for
removal as appointment.
o Never been accepted by law. Too much power in lower authorities.
 (4) Congress can set the terms of removal that are necessary and proper.
o Ex) Good cause removal instead of at will removal.
o Conflicts arise between method 2 and 4 – struggle for power between President and
Congress.
iii. Myers v. United States
 Question – Can the President (unilaterally) remove a postmaster appointed for a four-year term by
Congress during that term?
o Yes – President has the absolute power to remove unilaterally for any cause. Viewpoint
of the early court – removal without cause by the President.
o All-important executive officials subject to unlimited presidential removal
iv. Humphrey’s Executor v. United States
 Question – Can the President unilaterally remove an FTC officers (without cause) appointed by
Congress with the restriction that the officer can only be removed for good cause (negligence,
inefficiency, malfeasance)? Quasi-judicial/legislative official.
o No – Congressional restriction of a good cause standard is legal.
 Does not overrule Myers, which involves a purely executive officer. However,
the FTC has many other functions aside from the executive function, so they are
a quasi-legislative and quasi-judicial.
 Congressional restriction on the President’s power to remove a non-purely
executive officer who is more beholden/more responsibilities to Congress or
judiciary than the executive. Limit to President’s power or removal on non-pure
executive officials.
v. Bowsher v. Synard
 Congress cannot participate in the removal of executive officials or designate a role for itself.
 Comptroller general – principal officer. Significant executive power.
o Can be removed for any of 5 specific reasons set forth by Congress, all pertaining to
good cause and for cause. Can also be removed through a joint resolution of Congress.
 Removal requires both good cause for President to remove, and requires
Congressional involvement.
 Court – Unconstitutional. Congress cannot reserve for itself the power to remove.
o In Humphrey’s, Congress is just limiting the power of the President to remove. In
Bowsher, Congress is reserving the removal power to itself. Congress cannot act with
the executive power.
 Similar rationale to Chadha, but just in the removal context and not the
appointments context.
 Rule: “Congress cannot reserve for itself the power of removal of an officer charged with the
execution of the laws (executive functions) except by impeachment.” NO congressional
involvement in removal.
vi. Morrison v. Olsen
 Question #1 – Can Congress limit the President’s ability to remove an officer without interfering
with his ability to execute his duties? Statute say IC removable by the AG and only for good
cause.
o Court – Restriction on removal is okay, does not involved Congress trying to gain a
role in the removal process outside impeachment. Removal is still within the executive
branch.

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  Different than Bowsher and Myers – Congress is not trying to reserve for itself a
role in the removal process.
 Not exactly like Humphrey’s either – IC is not a quasi-legislative or quasi-
judicial officer; instead, the IC serve purely executive functions: investigative
and prosecutorial.
o Removal of officers is now covered by Morrison – Congress cannot reserve for itself
any role in the removal process outside impeachment, but as long as it keeps the
removal power within the executive branch and does not reserve for itself a role,
Congress can add in good cause restrictions on the President.
 Question #2 – Are the removal restrictions of such a nature that they impede the President’s ability
to perform his constitutional duty? Is Congress limited on how much restriction it can place on
removal?
o Congress cannot restrict so much that is severely hampers the President’s ability to
perform his acts and duty to take care that the laws of the US are executed.
 Ex) Congress cannot make a cabinet member removable only for good cause.
This would significantly impede the President’s power to perform his
Constitutional duties.
o Majority:
 The imposition of a good cause standard for removal does not by itself unduly
trammel on executive authority.
 The President’s need to control the exercise of this discretion (without cause) is
not so central to the functioning of the executive branch.
o Matter of degree of restriction: Cannot unduly trammel and not
impermissibly burden a discretion so central to the executive function.
i. There is no bright line, no way to know whether a restriction
has gone too far.
vii. Free Enterprise Fund v. PCAOB
 Double insulation of a good cause restriction is too much of an imposition on the President’s
removal power.
 President  (for cause) SEC  (for cause) Board
 Framework:
o (1) Unduly trammels
o (2) So central
o (3) Impermissibly burdens
 Bright line rule – Double insulation is unconstitutional
 Court also just changed the “for cause” removal to a “at will removal” in order
to save the statute. Not striking down the whole thing.
viii. Unitary Executive – The only branch where the entire power is vested in one person. The President wields
the entire executive power. No matter how small or large the scope is, the President is the one and sole boss
of that power. Not subordinate to anyone.
 Volokh – The unitary executive is important in removal powers – President is the only person
accountable to the entire nation and is the most visible official in government. Credit/blame for
everything. Not found really n the constitutional text, but President has more power in removal
than in appointment.
ix. RULE: Congress can restrict the president’s removal power of a purely executive inferior officer as long as
it doesn’t “unduly trammel” the Presidential authority (balancing test)
 Can trammel, just not unduly.
o Art. II § 1 -> vested in Pres.
o Art. II § 3 -> take care clause.

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  Not a separation of powers violation because it doesn’t involve an attempt by Congress to increase
its own powers at the expense of the Executive branch. Doesn’t involve “danger of congressional
usurpation of Executive Branch functions…” Bowsher.
C. Agencies and Article III
1. Article III – Judicial power is vested in the Supreme Court and inferior courts that Congress may create.
i. Must have tenure (serve non-removable under good behavior), and salary protections (salary may not be
reduced while in office).
 Goal is judicial independence, want judges to not be fearful of termination or pay cuts so they will
make independent decisions.
2. Administrative tribunals are not Article III judges, but are just employees of the agency.
i. They possess statutory guarantees of authority that Congress can strengthen or weaken.
3. Congress cannot give any judicial power to anyone outside of Article III. All delegations of judicial power outside
Article III are invalid. ALJ’s do not have judicial power.
i. Exceptions:
 (1) Courts Martial – Military tribunals
 (2) Territorial Courts
 (3) Public Rights – Suits against the United States, which are normally barred by sovereign
immunity and have no merit. Thus, if a citizen wants money from the government, very difficult to
get.
o Government creates these tribunals to allow these suits for private citizens against the
government so they have a forum to get relief. May not be perfect, but it is a way to let
the people get money from the government through tort or contract.
4. Crowell v. Benson
i. Sued D in employment compensation suit through the Employee Compensation Commission. EEC awards
damages. D argues under Article III, ALJ did not have the judicial power to adjudicate hi claim under
Article III. Trial court overturned the award. SCOUTS affirmed. Private right here.
 RULE: Non-Article III entities (ALJ) may adjudicate public rights
o Ex) tax disputes, gov’t licenses and K’s, suits against gov, and gov benefits.
 Reasoning: Since Congress did not have to allow many public rights claims at all b/c of sovereign
immunity, it had the lesser power to allow them to be adjudicated by non-article III. Also,
historically public rights are decided by legislature & executive.
o Justification for Tax court, Armed forces, and Fed. Claims court.
5. Commodity Features Trading Commission v. Schor
i. CFTC- enforces the CF Act. Can adjudicate claims for damages brought by customers of commodity
brokers for violations of the CEA or CFTC regulations; and counterclaims of brokers. Claim arises out of
the regulatory statute, so a public rights case, even though it is one private citizen against another.
ii. Question – Does the administrative tribunal have the power to hear both a public right action and a
private rights contract claim under state contract law? Even if provided in the statute?
iii. Multi-Factor Balancing Test (none dispositive) that may threaten the integrity of the Judicial
Branch:
 (1) The extent which the essential attributes of judicial power are reserved to Article III courts
o Extent of review in Article III courts.
 Ex) De novo or extreme deference whether the essential attributes stay with the
tribunal or Article III court.
 (2) The extent to which the non-Article III forum exercises the range of jurisdiction and powers
normally vested only in Article III courts.
o Wide or narrow scope or discretion? Public or private rights? Federal or state law?
Essence of judicial power is the ability to enter their own final orders.
 (3) The origins and importance of the right to be adjudicated
o State contracts law or public right
 (4) Concerns that drive Congress to depart from the requirements of Article III
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 o Volokh doesn’t like this one. It is an admission that the tribunal or Congress are
violating Article III. Should be clearer that Congress is still working under Article III,
but changing things.
o (5) If the tribunal really improves efficiency, that will be an important and weighty
factors
 Ex) Bankruptcy courts – very efficient to have everyone who owes a debt come
together in one courtroom and finalize it.
iv. Held – Agency can adjudicate these counterclaims without violating Article III.
v. Reasoning: Agency only deals with a “particularized area of law,” which was insulated from political
dominion, and is independent. The common law counterclaims were merely incidental to the federal
claims. This was ok b/c Article III serves to protect the independence of the judiciary & litigant’s rights to
have judges free from domination by other branches.
 Nature of the claim is important, and the fact it is a private right is important, it the court does not
view private rights any talisman rights. Private rights can also be heard.
 Functionalism, not formalism. A grab bag of factors that can be weighed by the court for what
type of law it is, who will hear it, who has final authority, judicial independence, efficiency, etc.
o Non-Article III tribunals often win on the strength of Schor.
vi. Dissent – Brennan
 Separation of powers and the integrity of Article III is too important. This will eviscerate the
protections of Article III.
6. Stern v. Marshall
i. Court of Appeals says the Texas court wins because Bankruptcy court lacked authority to enter final
judgment on a counterclaim. Bank ct: Vicki files bk petition. Pierce files complaint for defamation in bk
court. Vicki asserts the defense of truth and counterclaims for tortious interference with a gift. Bk Court
rules in her favor. Can court hear both? SCOTUS says yes under statute, but not allowed under Article III.
ii. Question – Does a bankruptcy judge possess the power to resolve a compulsory counterclaim against a
debtor that is not related to the debt in the bk court?
 Court – No. Bankruptcy judge has the statutory authority to enter judgment on the counterclaim,
it lacked the constitutional authority to do so.
o The Private Right Does Not Flow from the Regulatory Framework
o Counterclaim of tortious interference is a private, no public, right.
o It is also not incidental.
o Bankruptcy people hate this case – idea is to bring all the claims together on one court
to streamline the process. The efficiency of courts is an important and desirable factor.
iii. Concurrence – Scalia – Thinks that a public right must at a minimum arise between the government and
others.
D. Agencies and the Separation of Powers
1. Withrow v. Larkin – Bias Case
i. Question – Whether the authority given to the board both to investigate physicians and present charges and
to rule on those charged to impost punishments violates the plaintiff’s due process?
 Fair trial in a fair tribunal is the basic requirement of due process. Prevent the possibility of
unfairness. If the probability of a judge as a decision maker to have actual bias if too high to be
constitutionally tolerable, then it is unconstitutional. Target of personal abuse or criticism.
ii. Here – Combination of the investigative and adjudicative functions does not rise to that level. It must
overcome a presumption of honesty and integrity in those serving as adjudicators.
 Just because adjudicator entertained views in the past to bring investigation of charges does not
necessarily mean that the mind is irrevocably closed on the subject.
iii. Case law rejects the idea that the combination of judging and investigating is a denial of due process.
 Must be a substantial showing of prejudice – would never require a judge from sitting in and
ruling on a case that was remanded back to his chamber.

9
 iv. State administrators are assumed to be men or conscious and intellectual discipline capable of judging a
particular controversy fairly on the basis of its own circumstances.
 No evidence of bias or the risk of bias or prejudgment in the very facts the board investigated and
adjudicated. No inherent unconstitutional bias in the combination of investigation/adjudication.
Risk of bias not shown. Presumption overcome.
v. The combination of functions does not by itself constitute fair grounds for finding impermissible bias in
agency adjudications, need strong evidence to overcome presumption of unbiased rulings.
2. Metropolitan Council of NAACP Branches v. FCC “We will set aside a commissioner’s decision not to recuse
himself from his duties only where he has ‘demonstrably made up [his] mind about important and specific factual
questions and [is] impervious to contrary evidence.’”
III.

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 IV. STATUTORY CONSTRAINTS ON AGENCY PROCEDURE
A. The APA
1. Structure
i. 551-559: Procedures
ii. 551: definitions
iii. 553: informal rulemaking
 (a) exemptions
 (b) general notice
o and exceptions to notice – gsp, ir, procedural rules
 (c) When rules are required by statute to be OTRAOFAH  556 and 557 govern.
 (d) publication of the rules- date until effectiveness
 (e) right to petition for repeal/amendment
iv. 554: informal procedures for adjudication
 (a) exemptions- OTRAOFAH
 (b) notice
 (c) must give all interested parties a hearing and decision in accordance with 556/557
 (d) division of functions for prosecutors/investigators.
v. 555: Ancillary matters: promptness, subpoenas, transcripts, etc.
vi. 556: formal rulemaking/adjudication hearings
vii. 557: formal rulemaking/adjudication decisions
viii. 558: sanctions
ix. 559: APA will not omit or limit additional requirements imposed by the organic statute, or otherwise
required by law (i.e. constitutional requirements). Recognition of common law (Chevron doctrine).
x. 701-05: Availability, timing and form of judicial review
 §702: Right of view (statutory standing)
 §704: Action entitled to review (finality)
 §706: Scope of judicial review (hard look, discretion, arb/cap)
B. Formal Rulemaking – §556, 557
1. On the record after opportunity for agency hearing (OTRAOFAH) – If the organic statute requires this, then the
APA requires 556–557 to apply, which are more formal procedures.
2. United States v. Florida East Coast Railway
i. Organic statute: “Commission may, after hearing, on a complaint establish reasonable rules or regulations.”
– This is not the type of statute that triggers formal rulemaking under the APA.
 556–557 do not apply at all. After hearing does not trigger formality. The organic statute must
have the exact language of on the record (OTRAOFAH) to trigger formality and 556–557.
o Fact that an agency is required to consider something does not imply formality.
Whenever there is a reference to a hearing, DO NOT assume it includes on the record,
full hearing, cross examination, evidence, etc. Hearing requirement does not trigger
formality.
 No agencies use 556–557 unless specific language in the statute, most use
informal rulemaking. Court doesn’t say the magic words must always be
present, but need some very strong intent by Congress to have a formal
rulemaking.
 Organic statute can always require more than what is required by the APA.
C. Formal Adjudication – §554, 556–557
1. Three tests to whether formal adjudication is triggered:
i. (1) 7th Circuit: City of West Chicago (Pre-Chevron) – Follow Florida East Coast RR and require language
of on the record after opportunity for agency hearing.
 The words “on the record” do not necessarily have to appear for a court to determined that a
formal hearing is required, but in these absence of these words, Congress must clearly indicate its
intent to trigger the formal, o the record provisions of the APA. Without such clear intent, no
formal requirements.
o Can have formality for one set of procedures in an act, and informality for another in
the same act.
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  Word “hearing” by itself without any clear congressional intent does not trigger
formality.
o However, it is plausible to say that the Supreme Court has implied that
formal adjudication is only necessary when a statute uses the magic
words of OTRAOFAH in the statute
ii. (2) 1st Circuit: Seacoast (overturned) and 9th Circuit: Marathon Oil – If a statute requires a hearing process,
then the court presumes that process must be on the record and formal.
 Presume that unless a statute says otherwise, an adjudicatory hearing subject to judicial review
must be on the record.
o Adjudicatory hearing is not making general policy and only the rights of the specific
applicant will be affected. Factual questions will be sharply disputed. Thus, adversarial
hearings will be useful in guaranteeing both reasoned decision making and judicial
review.
iii. (3) DC Circuit: Chemical Waste Management – Follow Chevron deference. Word “hearing” in the organic
statute is ambiguous, so the agency can interpret the ambiguous term and must be given deference as long
as it is reasonable and not arbitrary or capricious.
 Step 1: Did Congress specifically speak to the issue? Use all the tools of statutory construction to
determine if the statute is ambiguous in regards to a “hearing”. If yes, then must give effect to the
congressional meaning. If no, then step 2.
 Step 2: If Congress did not speak to the issue, then the court defers to the agency’s interpretation
of “hearing” unless it is arbitrary or capricious.
o Court leaving it to the agency to determine whether “hearing” in the statute requires
formality or informality.
2. Deference Doctrine
i. Deference to findings of facts  Substantial evidence.
ii. Deference to findings of law  Must at least be reasonable (Chevron deference) but doesn't have to be
completely persuasive (Skidmore deference)
iii. What if interpreting own regulations  Then at least has to be not off the way crazy Auer deference
D. Informal Rulemaking – §553
1. §553:
i. (a) Subject matter exceptions for the whole section for certain courts (military, foreign affairs of the US, or
a matter relating to agency management or personnel or to public property, loans, grants, contract, etc.)
ii. (b) Notice of proposed rulemaking– Must be in the federal register unless it falls into narrow exception of
information that is already known by the small number of relevant parties.
 (1) Time and place of proceedings
 (2) Reference to the legal authority under which the rule is proposed. Organic statute section and
the section of the APA used.
 (3) Terms or substance of the proposed rule, or a description of the issues involved.
o (a) Exception to just the notice provision: Doesn’t apply to interpretive rules, general
statements of policy, or rules of internal agency organization.
o (b) Exception to just the notice provision: Notice is not necessary, impracticable, or
nonsensical.
iii. (c) Comment – The agency shall give interested persons an opportunity to participate in the rule making
through submission of written data, views, or arguments with or without opportunity for oral presentation.
iv. (d) General statement of basis and purpose
 In order for courts to engage in substantive review of an agency’s actions, there must be some sort
of information on the record for them to review. DC Court revolutionized this requirement beyond
APA §553. Informal rulemaking significantly beefed up by judges over time with the FECR case
significantly limiting formal rulemaking.
2. Vermont Yankee v. NRDC

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 i. DC Circuit engages in extreme judicial activism – Requiring the agency to allow cross examination and
discovery during the notice and comment process. DC Circuit ruling both a statutory and procedural
deficiency, but not being clear on which is struck the law down on in order to avoid Supreme Court review.
ii. Supreme Court – DC Circuit analysis was wrong; for rulemaking, all you have is the APA and organic
statute, and a court cannot require more of an agency that is found in those two sources. Organic statute,
APA, and due process do not require this. There is no such thing as administrative common law.
 Congress intended the discretion of the agencies and not that of the courts be exercised in
determining when extra procedural decides should be employed.
o (1) If courts continually review agency action to determine whether the agency
employed the “best” or “correct” procedures, it will make judicial review totally
unpredictable. Result oriented review. If court doesn’t like a statute, can requires
more procedures until it dies.
o (2) Monday-morning quarterbacking of an agency – judicial review is looking at an
agency action in hindsight, which the agency is looking at it in the original sense with
original evidence and does not have that luxury.
o (3) This sort of review will require an agency to take all formal procedures because
they will not know whether they can/should do it for the court. Thus, they will take all
precautions, meaning the benefits of informal rulemaking will be gone. Informal
rulemaking will be destroyed.
 Organic statute, APA, and due process.
iii. RULE: Agencies can voluntarily adopt additional procedures, but courts are not authorized to require more
than the statute, unless required by the Constitution.
 There is no general administrative common law.
3. Exceptions from §553 Informal Rulemaking
i. 553(a) Military or foreign affairs, or a matter relating to agency management or personnel/public property
ii. 553(b):
 (A) Interpretive rules, general statement of policy, rules of agency organization or practice
 (B) When the agency finds for good cause that notice and public procedure are impracticable,
unnecessary, or contrary to the public interest
o Regulation so uncontroversial that nobody would comment, or that all relevant parties
already have knowledge. “Dinky” exception.
 Court tends to be skeptical here, court still wants an agency record to review
iii. 553(d) 30-day exception
 (1) Exemptions or relief restrictions
 (2) Interpretive rule or general statement of policy
 (3) Good cause
4. Interpretive Rules and General Statements of Policy
i. Legislative Rule – Operates just like a statute, and the violation of the rule is itself grounds for liability.
Carries the force of law.
ii. Interpretative Rule – Offers the agency’s opinion on matters of law and how they may act of proceed in a
case in the future. No present legal effect. Must go to an underlying statute or legislative rule for liability.
 Agency interpreting its own organic statute.
o Ex) DEA interpreting its organic statute’s language of “drugs” by classifying drugs as
different schedules. Wouldn’t be able to function without an interpretation.
iii. General Statements of Policy – Outcome of neither rulemaking or adjudication. They are merely an
announcement to the public of the policy which the agency hopes to implement in future rulemaking or
adjudication situations.
 A general statement of policy is a statement by an agency announcing motivating factors agency
will consider, or goals toward which it will aim in determining the resolution of a substantive
question of regulation.
 No binding norm or precedent, and does not carry the force of law.
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 o Difference between substantive and interpretive rule/GSP – Is the agency allowed to
rely directly on that statement for enforcement? Can they charge someone for
violating the regulation (substantive) or must they go to the organic statute
(interpretive/GSP)?
 Interpretive rules/GSP has no legal effect. However, they may have practical
effect – they may dictate how people do business, which gives them more force.
Opens up opportunity for agency to circumvent N/C rulemaking requirement
through a practical effect.
o Type of regulation may dictate how much deference a court affords. A
memo that interprets the statute may only receive persuasive deference
but the mere fact of putting something out will affects courts’
application of the regulation and how parties do business.
 (1) Legal Effects Test – Traditional Rule
o Must have the effect of law that is binding on future parties as the force of law. GSP
cannot be used as binding precedent in subsequent actions.
 Problem – Agency releases this and parties find themselves in violation, they
will change their behavior to comply with the IR/GSP knowing liability may
come in the future. Powerful tool to circumvent N/C.
 (2) Impact on the Agency – Important for GSP; not important for IR. Used Frequently Now.
o United States Telephone v. FCC
 Hold – The penalty schedule is not a GSP and therefore should have been
subject to N/C. It is a legislative rule. The distinction between the two types of
agency pronouncements is an agency’s intention to bind itself to a particular
legal policy position.
 Cannot be a policy statement with this rigid of a framework; FCC intended it as
binding on a particular legal policy position. It was employed in 300 cases, and
only departed from in 8.
 Very heavy usage and reliance by the agency.
o Professionals and Patients v. Shalala
 Question – Are the FDA’s rule outline procedures that it intends to enforce and
ways it will discover pharmacies violating its own rule a GSP or substantive
rule?
o GSP may not have any present legal effect, it does not pose any rights
or obligations on present parties.
o Whether a GSP leaves the agency and its decision makers free to
exercise discretion.
o The FDA’s factors did not have significant effect on the decision
makers’ practice, used for guidance and not dispositive. FDA explicitly
reserved its right to exercise discretion with these factors. Factors not
dispositive, no line in the sand drawn that removes all power and
discretion from the agency. Used as a guidance document.
 The more factors you have in the regulation, the more likely it will be classified
as GSP. These factors may cut against each other and do not provide value
judgment. Enforces can weigh each independently as a guide – more factors,
more discretion. Allows discretion for enforcers and does not bind the agency.
 Rule: Policy statement: To be deemed non-substantive policy statement, and
therefore under the exception, it:
o 1) Must operate only prospectively; may not have a present, binding
effect.
o 2) Must instead leave INS officials free to consider the individual facts
in the cases that arise (cannot be finally determinative).

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 iv. Interpretative Rules
 Interpretive rules should look like an interpretation; clarifies rather than creating law.
 The idea of discretionary effect on the agency does not apply to IRs. It is clear they are
promulgating a rule that binds the agency, they are interpreting an ambiguity in the organic statute.
o Legal effects test is the standard. Practical effects do not matter; IRs may have
practical effects.
o Agency discretion does not matter; it is supposed to bind the agency.
 Ambiguous term in the organic statute and the agency is interpreting its meaning. Use all the
statutory tools in the analysis. The more it looks like an interpretation, the more likely it will be
ruled an IR  Focus solely on the ambiguous language and how the agency will interpret that
language. Bad for agency to take a very general term and interpret it to have a very narrow and
specific meaning – this is beyond an IR and more likely to be seemed a substantive rule by the
court.
5. Rules of Agency Organization or Practice (Procedural Rule)
i. Air Transportation of America v. Department of Transportation
 Question – Does the FAA have to engage in N/C before issuing a body of regulations governing
the adjudication of administrative civil penalty actions?
 Does not fall within scope of 553(b)(A) just because it may be labeled “procedural”.
o The Penalty Rules substantially affect civil penalty defendants right to avail
themselves of an administrative procedure.
o Rule is substantive when nominally procedure rules encode a substantive value
judgment or substantially alter the rights or interests of a regulated party.
 APA requires the right to avail oneself to an administrative adjudication
guaranteed by the due process clause. Too important to be withdrawn from
public. Penalty rules affect the entire range of adjudicatory and substantive
rights guaranteed.
 The amount of procedure you get is a highly value-laden decision that should be
exposed to N/C. Substantive value judgments can be labeled as procedural.
o Limiting 553(b)(A) procedural rules to just internal organizational matters that have no
impact on outside people.
 Dissent – Silberman. Circular reasoning. Procedural impacts on outcomes can virtually always be
described as affecting substance, but to do so would be to destroy the distinction demanded by
Congress. Silberman thinks it is necessary to distinguish between substantive and procedural
through primary or secondary conduct.
o Primary Behavior is a better standard. Not asking whether it “affects the outcome”,
rather asking whether the agency is regulating “primary or secondary conduct”.
 Ex) FAA regulates how someone flies a plane – Primary. FAA regulates internal
penalty procedures for someone flying a plane incorrectly – Secondary. Does
not affect primary business or how the company operates in the real world.
Affects the afterwards conduct.
 Volokh – This is more reasonable way to look at distinction; primary v.
secondary. What type of activity is the regulation aimed at, real world or
internal agency?
 NOTE – JEM Broadcasting Co. v. FCC – Refuted any precedential value Air Transport possessed;
however, it still has significant persuasive value.
E. Informal Adjudication – §555, 558
1. APA permits a court to overturn agency action when: (1) action violates a statute, the Constitution, or a procedure
established by law; (2) action is unsupported by substantial evidence (§706(2)(E)); or (3) action is arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law (§706(2)(A))

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 i. §704 – “Agency action made reviewable by statute and final agency action for which there is no other
adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate
agency action not directly reviewable is subject to review on the review of the final agency action.”
ii. §706 (arbitrary, capricious, abuse of discretion) – The reviewing court shall decide all relevant questions of
law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the
terms of an agency action. The reviewing court shall —
 (1) compel agency action unlawfully withheld or unreasonably delayed; and
 (2) hold unlawful and set aside (this is how you get around sovereign immunity) agency action,
findings, and conclusions found to be:
o (A) ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION, or otherwise not in
accordance with law;
o (B) contrary to CONSTITUTIONAL right, power, privilege, or immunity;
o (C) in excess of STATUTORY jurisdiction, authority, or limitations, or short of
statutory right;
o (D) without observance of procedure required by law;
o (E) unsupported by substantial evidence in a [hearing] subject to §§556 -557 or
otherwise reviewed on the record of an agency hearing provided by statute;
o (F) unwarranted by the facts to the extent that the facts are subject to trial de
novo by the reviewing court.
iii. The court shall review the record as a whole … (Overton Park)
 Whether agencies properly found facts, construed the law, and applies their discretion within
the APA.
 Minimal requirements in the APA beyond just notice. No real minimum guidelines for which a
court can based anything off. Organic statute is very important – most of the procedures will come
from the organic statute, not the APA. Can add and subtract procedures if explicit. Due process
also important.
 Judicial review is important – §706. What the reviewing court can/should be looking for in order
to declare something arbitrary and capricious.
2. Citizens to Preserve Overton Park v. Volpe
i. Question – Did the Secretary of State act arbitrarily and capriciously by not indicating why he believes
there were no feasible and prudent alternative routes that would not cause significant harm for a highway
than through the Overton Park?
 This is informal adjudication – clearly not rulemaking and no formal on the record requirement.
ii. §706 Judicial Review – All agency action must be set aside if the action was arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.
 Failed statutory, procedural, or constitutional requirements. Court must decide if the SOS acted
within his discretion when making this decision, clear error of judgment.
iii. Court – The administrative record that allows the full, prompt review of the decision is not before the
court. Inadequate basis for review that does not constitute the whole record compiled by the agency. The
court cannot adequately review the agency decision without some sort of record of why the agency acted in
a certain way.
 Court must have a searching inquiry into whether the relevant factors were considered and
whether there was a clear error of judgement. Agency must compile a record to do this.
 Court is NOT requiring specific procedures or actions from the agency (not violating Vermont
Yankee), just requiring the agency put together an adequate record or judicial review in some way,
the best way it sees fit. Not requiring any specific product with formal finding, just some record to
review. No real tension with Vermont Yankee – Which states court cannot prescribe specific
procedures.
iv. §706 is particularly important in the informal adjudication context because there isn’t much else the court
can use to determine if the agency acted correctly, or arbitrarily and capriciously. Court is also being up the
§553 requirements in order to require more of agencies in other ways.
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 v. Difference between 553 and 706 – 553 has specific procedures; 706 only needs enough to produce a
sufficient record for judicial review.
3. Pension Benefit Guaranty Corp. v. LTV
i. ERISA pension plan restoration case. COA held the agency’s restoration of pension plans to company was
arbitrary and capricious because the decision making process of informal adjudication lacked adequate
procedural safeguards.
 Vermont Yankee – Courts are not free to impose upon agencies specific procedural requirements
that have no basis in the APA.
 Overton Park – Courts should ensure that an agency action is not arbitrary and capricious or
otherwise contrary to law by mandating that an agency take whatever steps it needs/choses to
prove an explanation that will enable the court to evaluate the agency’s rationale at the time of the
decision.
 Pension Benefit –– COA did not suggest that the administrative record was inadequate to enable
the court to fulfill its duties under 706; rather, it focused on fundamental fairness. Required
procedures not found in the APA, running counter to Vermont Yankee.
o Minimal requirements of informal adjudication found in §553, court cannot require
any other specifics. Court cannot require or make up specific requirements, flexibility
of the agency is important, allow them to choose how to produce a record outside of
§553. Vermont Yankee and Overton Park are NOT at odds and require separate things.
F. The Choice Between Rulemaking and Adjudication
1. Agencies have two ways of making policy – through rulemaking or an adjudication
i. When an agency makes an order, it is not subject to publication in the Federal Register, but many agencies
will announce their order – this can create notice problems if an agency wants to make policy through
orders, however an agency is not required to make policy by rule (Chenery II).
2. Chenery I
i. Rule – Agencies are judged based only on the reasons they give. Agency action must be measured by
what the agency did and the standards it invoked, not by what it might have done.
 Agency actions can be sustained only on the grounds specifically relied upon by the agency.
Courts may not accept the post-hoc rationalizations for the agency action. Cannot defend decisions
on grounds not relied upon by the agency.
 When a court affirms a court, it can be for a wrong reason. When a court affirms an agency, it
cannot be for the wrong reason. Court cannot affirm a right action by an agency for the wrong
reason. Must look to the agency to see why it took an action and the reasons it happened.
3. Chenery II
i. The choice between proceeding by general rule or by individual ad hoc litigation is one that lies
primarily in the informed discretion of the administrative agency. Just because the agency might have
proceeded in a rulemaking capacity does not mean it must proceed only in the rulemaking capacity. This
would stultify the administrative system and bring it to a halt, having to make a brand new rule each time
they face a new, unexpected situation. Giving agencies flexibility to face specialized problems when they
arise and allow them to go through adjudication instead of rulemaking.
 Retroactivity is a concern for the Court, but it is not fatal. Court relied on the agency’s expertise in
these matters.
o Congress cannot pass retroactive criminal statutes – ex post facto laws are
unconstitutional. However, Congress can pass retroactive civil laws if it gives a clear
statement of purpose that it intends for a statute to apply retroactively.
o However, the definition of rule in the APA says future effect. Not only does the agency
have to give a clear statement in the rule that it applies retroactively, but in the
organic statute, Congress must have included a clear statement that the agency has the
power to make retroactive laws. Two levels of clear statements from the agency and
Congress. Clearly ignoring the APA.

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 ii. Rule – When an agency announces new requirements, it may do so by rule (which is favored) or by
adjudication, and is allowed to announce new requirements in the context of adjudication which are
retroactive to the parties before it in the case.
 This is the same thing that common law courts do, make policy through the common law style
process. Agency can create new principle of law through an adjudication and make it binding on
the parties before it. Giving the agency the ultimate flexibility.
4. Problem with Retroactivity
i. Adjudications are intended to be retroactive. Rules are intended to be forward looking.
 However, Chenery II clearly says that agencies can pass new retroactive principles through
common law style adjudication and apply it retroactively to the parties in front of it.
ii. The next question is whether an agency can pass a rule that is retroactive on other parties?
 Criminal laws cannot be retroactive, even in front of the parties before it, due to ex post facto
concerns.
 Civil laws, those passed from an agency, applied retroactively make the Court very nervous. In
order for Congress to pass a retroactive statute, it must have a clear statement of intention for it to
apply retroactively.
o Scalia’s view, the one that has now been accepted as the majority rule, is that agencies
can also pass retroactive rules through N/C. However, the court requires a double clear
statement rule.
 This means that Congress must include a clear statement in the agency’s organic
statute allowing it to pass retroactive rules, and then the agency must include a
clear statement in the rule itself that it will apply retroactively.
iii. The next question is whether the agency, which formulated a new principle in adjudication can rely on that
principle into the future, or whether it requires rulemaking?
 This basically circumvents the whole purpose of the rule/order split. This is a way of prospective
policy making through an adjudication. No clear answer on this, some courts okay, some not.
 Excelsior Underwear v. NLRB
o Does the employer have to give the union the names and addresses of the employees?
Unions says it is an unfair labor practice. NLRB says new requirement: must provide
names and addresses (but did not apply it to the current employer-prospective only).
o Court allows the NLRB to have an adjudication and announce a new requirement
through the adjudication, but since it is a new requirement not known before in the face
of a heavy reliance interest, the Court does not apply the new requirement retroactively
and makes it purely prospective. Felt it was part of their equitable power.
o Majority is for the idea that making up an order in adjudication, but not applying it to
the parties in front of you, but other parties, is invalid.
 Problem is – who is going to complain? Both sides win.
 NLRB v. Wyman-Gordon
o Applies the ruling in Excelsior, same rule. NLRB says it is applied against them
because we said so in Excelsior. Wyman challenges stating the agency should have
gone through rulemaking since it is a purely prospective formulation of a requirement
in adjudication.
o Court – Very fractured opinion.
o 1st question: Whether the prospective adjudication is valid. 2nd question: Whether any
of this actually mattered since the adjudication is now the first time the agency made
the requirement apply.
 Basically, have a majority that says prospective adjudication is invalid, but a
whole new majority that says it doesn’t really matter. Second adjudication is no
problem since they are technically just applying retroactively the second time.

18
  Thus, although rulemaking is supposed to be prospective, it can sometimes be
retroactive. Further, although adjudications are supposed to be retroactive, they
can also be prospective although this is technically illegal.
o Plurality- 4- Excelsior requirement was a rule and therefore invalid (lack of
notice/comment) BUT this won’t help Wyman, since the NLRB said the rule in second
case and applied it retroactively. W-G was a valid adjudication.
o Concurrence – 3 – Excelsior requirement is fine – if it was allowed by the statute.
o Dissent – 1- Requirement should’ve been done in a rulemaking.
o Dissent – 1- Agreed with plurality that it was rulemaking, but disagreed that Wyman
was a valid adjudication. Because they adopted Excelsior, they relied on Excelsior (in
violation of Chenery I). Should’ve remanded it to the agency, not let the court
substitute the agency’s basis.
o 7 people think that adopting the rule in a second adjudication is fine since it is a valid
adjudication.

V. SCOPE OF REVIEW OF AGENCY ACTION

A. Introduction
1. Standards for Review:
i. Standards of judicial review for lower court decisions
 De novo; clearly erroneous; abuse of discretion; jury standard (reasonable person reached same
conclusion).
ii. Standards of review of agency discretion
 Abuse of discretion (informal) substantial evidence (formal) (Could any reasonable factfinder
have reached the same conclusion)
iii. Degrees of deference:
 Law = Chevron, Skidmore, Auer
 Discretion = State Farm, Overton Park, Vermont Yankee
 Facts = Universal Camera
2. §702 – Right of Review.
i. The government only waives sovereign immunity for agencies in federal court, not in state court, for non-
monetary damages. Cannot use for monetary damages.
3. §706 – Scope of Judicial Review
i. 706(1) Inaction by Agency –– Court can force an agency to act
ii. 706(2) Action by Agency –– Court can force an agency to not act or do something
 (A) Arbitrary and capricious OR abuse of direction
o Substantively irrational – 706(2)(a) says court strikes it down.
o This is the most important – apply when the agency has done something that just
doesn’t make sense or has done something it has not rationalized. Clear error of
judgment.
 (B) unconstitutional
 (C) Organic Statute
 (D) Procedure
 (E) Substantive Evidence (566-557) –– Describes what happens when there are formal
proceedings. Court will hold unlawful any agency decision in 556–557 not supported by
substantial evidence.
 (F) De novo interpretation of facts – very rare
4. §556(d) –Consideration of the whole record, or those parts cited by the parties, and in accordance with the reliable,
probative, and substantial evidence.
B. Review of Findings of Fact in Formal Proceedings §706(2)(e)
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 1.Universal Camera v. NLRB
i. Pure factual question for agency to resolve involves termination of an employee. ALJ does this in a formal
proceeding; however, ALJ’s make initial decisions, not final decisions.
 Internal appeals – When the board pulls out that case (either on an internal appeal or on its own)
and possesses the same powers as the initial ALJ.
ii. Organic statute says deference to the agency is supported by evidence – The court reads this to mean
substantial evidence as in the APA, which is more than a mere scintilla and evidence relevant as a
reasonable mind might accept as adequate to support a conclusion.
 For the court to look at the whole record, it must look at what the initial ALJ considered, as well
as the agency ruling that reversed the initial ALJ, or it wouldn’t be the whole record.
iii. Rule – For questions of fact, the standard is substantial evidence on the record as a whole. Courts should
defer to a Federal Agency's findings of fact if supported by "substantial evidence on the record considered
as a whole." APA §706(2)(e). Courts can set aside Agency's decision if they don’t find that the evidence
supporting the decision is substantial, when viewed in light of all the evidence in the record.
 Substantial evidence is not necessarily a preponderance of evidence. It is evidence that would
"appeal to a reasonable mind." Substantial evidence does not mean that a court would reach the
same decision. Agency should keep a good record of their decision-making process. That means
you have to look at the evidence that supports Agency and evidence going against Agency.
iv. Universal Camera takeaways:
 (1) APA requires substantial evidence on the whole record
 (2) ALJ’s can be reversed by the agency, then an appellate court has to review the agency’s
decisions. Court must look at the intra-agency appeal and the evidence initially rejected by the
ALJ. Question is how much weight to give the initial decision rejected by the agency?
2. Kimm v. Department of the Treasury
i. Initial factfinder  (overturned) ALJ  (overturned) Agency  (overturned) Federal Circuit –– The ALJ
was in a good position to see demeanor and answer the question. Respect to the ALJ because the agency
wasn’t in a good position to assess credibility. Agency decision was not supported by substantial evidence
on the record as a whole.
C. Review of Agency Legal Conclusion
1. United States v. Mead
i. Chevron Step 0 – When does the Chevron Doctrine actually apply and an agency become eligible for
deference under Chevron?
ii. Ruling letters from a Customs Office that fixes a tariff rate on Mead’s planners as “binders”, classification
power to certain imports. Customs Office puts out thousands of these per year and there are 46 Customs
Officers that may issue ruling letters. Is this the type of agency that receives deference under Chevron?
 Administrative implementation of a particular statutory provision qualifies for Chevron deference
when it appears that Congress delegated authority to the agency generally to make rules carrying
the force of law, and that the agency interpretation claiming deference was promulgated in the
exercise of that authority.
o Did Congress give the agency the authority to act with the force of law? Several ways
to show, such as power to engage in adjudications, N/C rulemaking, or comparable
congressional intent.
iii. Mead Chevron Step 0: Is the agency the type that receives Chevron deference and authority when
interpreting the statute?
 Force of Law – Congress would expect the agency to speak with the force of law when it
addresses ambiguity in the statute or fill a space in the enacted law, even if Congress did not
actually intend it as a particular result.
o Good indicator of force of law – Express authorization to engage in rulemaking and
adjudication (N/C). When an agency is given this authority, and actually uses it, the
agency will almost always be one that speaks with the force of law. Assuming

20
 Congress delegated authority. These foster fairness and deliberation, Congress meant
for the agency to possess authority.
 However, this is just a safe harbor. N/C isn’t always necessary. Sometimes force
of law in the informal adjudication box as well, just not a safe harbor. Causes a
lot of confusion.
o Congress must intend for the agency to speak with the force of law. Interpretive rules
and GSP do not speak with the force of law (like the Customs Office rulings) and are
not entitled to Chevron deference, but may be eligible for Skidmore deference.
iv. Court brings back Skidmore – Chevron did not displace Skidmore deference for agencies that have
expertise in the field and are entitled to persuasive authority. Constitutes a body of experience and informed
judgment to which courts and litigants may properly resort for guidance.
v. DISSENT – SCALIA – Thinks a bright line rule should govern: deference of no deference. This is too
arbitrary for a court to decide. – Remember this for a policy question.
2. Chevron v. NRDC
i. Chevron Two Steps:
 Step 1 – Has Congress directly spoken to the specific issue at hand? Is congressional intent clear
from the organic statute? Is the organic statute from Congress unambiguous to the specific issue at
hand?
o If YES – then the court must defer to congressional intent. The court must give effect
to the unambiguously expressed intent of Congress and cannot impose its own
construction of the statute/
o If NO – then go to step 2.
 Step 2 – If the statute is silent or ambiguous, then the court must defer to an agency’s
interpretation that is reasonable and not arbitrary, capricious, or against the statute. Give the
agency the power to fill gaps in statutes delegated by Congress. Can strike down agency
interpretation also.
o Courts must use the entire statutory toolkit at Step 1 to determine if Congress directly
spoke to the issue. Some courts/judges never make it past Step 1 (Scalia).
o The court does not adopt the agency’s interpretation as law; it is just reasonable. The
agency may change its position later as the statute is ambiguous.
o Chevron is implicit delegation – Congress left a gap that it intended the agency would
fill and be respected.
ii. Agency only gets Chevron deference for a statute that it administers.
 Ex) Nobody administers the constitution, so if there is a constitutional question, courts always
interpret the constitution de novo.
 Ex2) The APA – nobody administers the APA, so no deference when interpreting the APA. All
agency’s must abide by the APA, not interpret it.
3. Skidmore v. Swift
i. FLSA overtime provisions. Agency promulgates a memo from the Wage and Hour Division on the issue.
Wage/Hour had no administrative power, but an interpretive memo where it made a conclusion.
Wage/Hour has no administrative power – so not entitled to deference, but respect. Constitutes a body of
experienced judgment that courts can respect.
 Factors for persuasiveness:
o (1) Degree of the agency’s care;
o (2) It’s consistency;
o (3) Formality;
o (4) Relative experience/persuasiveness;
o (5) Thoroughness in its conclusions;
o (6) Validity of its reasoning;
o (7) Consistency with earlier and later pronouncements;

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 o (8) All those factors which give it power to persuasiveness, if lacking the power to
control.
ii. Court gives memo persuasive Skidmore deference – Very soft deference, not controlling on anyone, just
looking at the agency’s persuasive pronouncement.
4. Auer v. Robbins
i. Auer Deference – Extreme Agency deference when interpreting its own regulation. Agency interpreting its
own regulation and entitled to significant deference.
 Some circuits have upheld Auer deference, but others have strongly stated that Auer deference is
problematic, unconstitutional, and bad administrative law. Hard to always justify.
o Agency wrote its own regulation, so allow the agency to have significant deference in
interpreting its own regulation. This allows agency to write vague statutes then
interpret them later when they need to and receive strong deference. Incentivizes
agencies to write bad statutes then go back and clarify them whenever they see fit.
Auer deference could be on its way out.
o Ex) Department of Education interpreting its own regulation concerning sex
discrimination in bathrooms.
5. Gonzales v. Oregon
i. AG interpreting a phrase’s meaning within an agency’s regulation, which also appears within the organic
statute.
 Interpreting regulation – Immediately think Auer substantial deference
ii. Court – No, the regulation is just a paraphrase of what appears in the organic statute; exact same language
and the regulation does not add anything to the statute.
 Anti-Parroting Rule Exception to Auer Deference.
iii. AG trying to get around Chevron. AG’s ruling at best classified as an interpretive rule, so probably not
going to get Chevron, best to hope for is persuasive Skidmore. Agency passed an identical regulation as the
statute, and AG just interprets the regulation, trying to bypass force of law and get Auer instead. Court says
no parroting of a statute.
 Mead inquiry – Would Congress have wanted to delegate authority to the AG and allow him to
speak with the force of law on the issue? Powers that Congress has given the agency official
correlates to how much power he has when interpreting.
iv. Court: No Auer deference because of the anti-parroting exception. No Chevron because the AG is not
making rules with the force of law as granted to him by Congress. No Skidmore because the AG does not
have the requisite expertise and experience in drug enforcement issues to persuade, and there was no
analysis provided. Thus – The AG gets nothing.
 Start with Auer, then go to Mead, then go to Chevron, then go to Skidmore.
6. Statutory Toolkit: Must Use All Means At Chevron Step 1 to Determine Congressional Intent
i. Text
 Language; Context Structure; Dictionary Definition
ii. Semantic Canons
 (1) Expressio unius – The list of some means an exclusion of all others. (2) Ejusdem generis – Of
the same kind. (3) Noscitur a sociis – Interpretation of a word takes its meaning from the words
around it. (4) In pari materia – Text/word in a statute means the same thing in a statute if it is used
more than once.
iii. Legislative History
 Committee Reports; Amendments/Failed Legislation; Floor Debate; Comments from Legislators
(Sponsors carry the most weight)
iv. Purpose
 Policy; Societal Impacts; Evil Intended to be Remedied
v. Substantive Canons
 (1) Rule of Lenity; (2) Constitutional Avoidance; (3) Presumption Against Retroactivity – Clear
statement rule; (4) Presumption Against Abrogating State Sovereign Immunity – Clear statement

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 rule; (5) Presumption Against Preemption of State Law – Clear statement, not as strong; (6)
Federalism – Clear statement rule
7. National Cable v. Brand X
i. Brand X stands for the idea that an agency can change its mind of what a reasonable interpretation of a
statute is as long as the previous result is not ossified. Just because an agency believed something was
reasonable once does not make it law and unchangeable.
ii. Chevron Analysis:
 Step 1: If the Court finds that Congress spoke to the specific issue at hand or did not, that ruling
remains into the future and has precedential value. Court is interpreting the statute (bind power
unless Congress changes the statute or the court overrules itself. Agency is powerless to do
anything contrary.
 Step 2:
o If the agency interpretation is unreasonable, then this also has precedential value.
There is a range of ambiguity outside the agency interpretation.
o If the agency interpretation is reasonable, the court is NOT interpreting the statute. It is
somewhere in the realm of reasonableness.
 Thus, the agency isn’t necessarily bound by the court’s determination. Can
change its mind the next day.
iii. Brand X issues only come up if the Court/Agency has already interpreted the issue, then ossification is
important.
 Examples – Congress passes a statute:
o Court Interprets Statute (No agency action)
 Court choses between A and B – choose A.
o If the Court decides that congressional intention provides a clear
meaning that A is correct – quasi step 1 & ossified
o If the Court decides that the statute is ambiguous, but it thinks the best
reading of the statute is A – quasi step 2 & no ossification
o Chevron Analysis: Agency said the statute means A
 Court reviews agency action (Agency action)
o Court decides that Congress clearly spoke to the issue, and A is the
clear meaning – step 1 & ossification
o Court decides that the statute is ambiguous, and A is reasonable
interpretation – step 2 Chevron deference to the agency & not ossified
i. Agency can later say B.
o Court decides the statute is ambiguous, but A is not reasonable, rather
arbitrary and carious interpretation of the statute – step 2 no Chevron
deference & ossification as to A only, agency can come back with B.
o If the agency gets Skidmore deference
 Court is deciding A – Ossification
o A is a clear meaning; or
o Statute is ambiguous and we think A is the best because we listened to
the agency and they were persuasive
 Quasi step 1 & 2 is really just a search for ambiguity in the statute when the first body (court or
agency) interpreted the statute. Dictates how the current interpretation will be treated.
 SCOTUS – In an interpretation case like this, court must have a quasi-step one and quasi-step 2.
o Quasi step 1 – Ossified
o Quasi step 2 – Not ossified
iv. Dissent – Scalia
 If the court spoke first, the court decided the meaning, and it did so, then its supreme and agencies
cannot undue that. Judicial supremacy.
8. Home Concrete & Supply
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 i. Case deals with a tax payer statute.
ii. Court had previously addressed the issue in Colony.
iii. Although the statute was ambiguous, the Colony court thought Congress had directly spoken on the issue at
hand.
 This means the Court’s interpretation of the statute to carry specific congressional intent is
ossified, and thus an agency cannot interpret the statute counter to the will of Congress.
 Example of quasi step 1. Congressional intent ossified.
D. Review of Agency Discretion and Policymaking
1. §706 Scope of Review – Court can strike down an agency action that is arbitrary, capricious, or an abuse of
discretion. State Farm Review is the basic type of A/C review.
i. Universal Camera substantial evidence applies only in formal agency fact finding actions – 706(2)(E).
Does not apply to informal, which has a lot of fact finding. Always want to cite 706(2)(A) when suing an
agency – The best argument for an agency doing something wrong is arbitrary, capricious, or an abuse of
discretion.
2. Motor Vehicle Manufacturer’s Association v. State Farm
i. Hard Look Review – The Court taking a hard look at what the agency did, and finding whether the
agency took a hard look at the issues/evidence that the law and facts presented.
ii. If you want to repeal a rule/adjudication, need substantial evidence to do so. The same type of
evidence needed to pass it in the first place.
iii. Agency recession of a standard falls under the same A/C standard as implementing the standard in the first
place. This is not the same, more deferential standard as the agency choosing not to engage in the issue at
all. Revocation of a standard is a change of an agency’s views, and the agency is required to provide
reasons for changing the status quo.
iv. State Farm arbitrary and capricious standard of a hard look review applied to the recession of an agency’s
regulation. Agency must examine the relevant data and articulate satisfactory explanations for its action,
including a rational connection between the facts found and the choice made. Whether the decision was
based on consideration of relevant factors or whether there has been a clear error of judgment.
 Hard Look Doctrine:
o The secretary acted within the scope of his authority
o His decision was within the small range of available choices
o He could have reasonably believed that there was no feasible alternatives
o The actual choice was not arbitrary, capricious, or an abuse of discretion or not
otherwise in accordance with law.
o He followed the necessary procedural requirements
 Hard look is double barreled  The agency must take a hard look at the issue, and the reviewing
court must take a hard look at what the agency did
3. Massachusetts v. EPA – Review of Inaction
i. EPA chooses not to regulate carbon dioxide emitted from motor vehicles are an air pollutant. Agency
inaction – can sue under 706(1)(A), but really hard to win.
 EPA says they do not have the authority under the statute to act, and even if they did, they would
use their discretion not too regulate.
ii. Organic statute stated that the administrator is required to proscribe standards – very rare “shall” instead of
“may”. This makes the agency’s inaction reviewable under an A/C standard, whereas if it just said “may”,
it would not be reviewable as A/C.
 EPA just gives a laundry list of reason why they won’t regulate, but not relate to their requirement
under the statute. Not considering things that are legally related. Court must look and see if the
reasons that the agency gave for inaction are tightly connected with the reasons in the statute. A/C.
iii. Denial of rulemaking “Refusals to promulgate rules are . . .thus susceptible to judicial review, though such
review is ‘extremely limited’ and ‘highly deferential.’”
 Clean Air Act does grant the authority. Although denial is allowed by “judgment” it must be based
on whether an air pollutant causes or contributes to air pollution.

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 iv. Arbitrary, capricious. Can challenge inaction under 706(1) agency action “unlawfully withheld” and 706(2)
(a) since agency action includes inaction

VI. CONSTITUTIONAL CONSTRAINTS ON AGENCY PROCEDURE

A. Due Process: An Overview
1. Procedural due process found in the 5th and 14th amdts. Aspect is purely procedural – If the government wants to
deprive you of life, liberty, or property, state/government must provide you the process afforded by the amdts. Any
deprivation is okay if the process is sufficient.
i. Londoner – Due process imposes some constraints on agency that falls within Londoner. Individualized
action that is entitled to due process.
ii. Bi-Metallic – Due process imposes no constraints on agency action that fall within Bi-Metallic. Huge
number of people effect on group, not individual ground, so not entitled to due process.
2. Steps:
i. (1) Is this a Londoner/Bi-Metallic issue? Is the harm individualized or not?
 Ex) Firing a single employee v. a state agency abolishing an entire university
ii. (2) Is it state action?
 5th amdt itself doesn’t mention state action, but has always been interpreted as requiring state
action.
o Ex) Very hard for Emory (private) to violate my 1st amdt rights, but very easy for
government to do so.
 Agencies are very easily state actors and always take state.
o Ex) State action even when a private prison is given powers and money from the
federal government. Function of incarcerating people is traditionally a function of the
state, so when the private corporation is doing this, can be acting with state action.
 Anything a government employee does is in the scope of state action. Exclusive government
function.
o Prison is big example. Amtrak is another.

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 iii. (3) Is the deprivation of life, liberty, or property?
 Life – Death penalty
 Liberty – State either restraining you from doing something, or forcing you to do something you
do not want to do. Imprisonment, restraint, etc. Stigma and reputation alone are not liberty
interests.
 Property – Something you had before that you currently don’t have any more due to government
action. Must be an entitlement based on law, cannot be a mere hope or desire.
B. Life, Liberty, or Property: The Entitlement Theory
1. Goldberg v. Kelly
i. Government is taking away P’s welfare benefits. P is entitled to hearing that provides personal appearance
of recipient before the reviewing official, oral presentation of evidence, and confrontation, cross x of
adverse witnesses. However, he wants these pre-deprivation, not post-deprivation. His rights are being
taken away and then he gets hearing, he wants it before.
ii. Does the expectation of welfare benefits count a property?
 Classic – No, it was a benefit you were expecting. Just an expectation. Did not have a property
right until you actually had it, then it was taken away. Government hasn’t deprived you of an
expectation benefit of future property. Not taking anything from you.
o Things that are important in modern area have been shoehorned into a property right,
such as statutory entitlement, adjudication of important rights, and welfare benefits.
o There are certain promises made to you that could be construed as a property interest.
Given a statutory interest in welfare if you qualify, and relying on that promise from
the statute – Statutory entitlement.
iii. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire
for it. He must have more than a unilateral expectation of it. He must instead have a legitimate claim of
entitlement to it.”
iv. Some gov benefits may be terminated without a pre-termination hearing, but welfare is so important to the
individual, that he must have a pre-termination hearing.
 If the individual is living of welfare, probably the only means of sustenance. It is a grievous loss to
take him off welfare while he fights the case to get the benefits back. A person whose rights were
wrongful terminated will suffer greatly in the time between termination and getting them back.
Pre-termination hearing will fix this.
o Court balances personal interest against the government interests. Government
should be concerned with accuracy and citizens’ dignity. The grievous loss to the
person comes in at the balancing stage.
v. Goldberg Takeaways:
 (1) The mere fact that something is an expectation, such as an expectation of money, is not fatal
for a LLP tight. Due process may still attach even if it is not class, common law property.
 (2) Still unclear what a property right is. Is it because the interest is really important to the person,
or is it because there is a statutory entitlement? Court trying to do both.
o Statutory entitlement created by law.
 (3) Government and personal interest are important
 (4) Pre and Post termination hearings are important
o It is easy to say that all welfare beneficiaries are poor. Harder case is something like
social security, where even rich people get it, but some people dependent on it too.
2. Board of Regents of State Colleges v. Roth – Entitlement Theory
i. Board’s employment Rules provided opportunity for review for teachers “dismissed” before the end of the
employment term, but did not extend those protections to teachers whose contracts were simply not
renewed, like Roth’s.
 14th amdt does not require an opportunity for a hearing prior to the nonrenewable of a non-tenured
state teacher’s contract unless he can show that the nonrenewal deprived him or an interest in

26
 liberty or that he had a property interest in continued employment despite lack of formal contract
or tenure.
ii. Court balanced the interests of the individual (Roth) and the government.
 Property – This loss of a job is not as grievous as losing welfare benefits. Roth was only hired for
a one-year contract. There is nothing else for him to rely upon for a reasonable expectation for
continued employment. Cannot rely on mere hope or desire on continued employment.
 Liberty – If it were damaging to his reputation, then maybe it is something that could fall under
liberty. A reputational harm by itself doesn’t count as an LLP interest, but if coupled with
something else, it might be. No deprivation of liberty here (because not talking about the free
speech claim).
iii. “Property interests are not created by the Constitution, ‘they are created and their dimensions are defined
by existing rules or understandings that stem form an independent source such as state law.”
iv. Cannot just be an expectation of a benefit or property interest, has to be a legit entitlement to it. Can rely
on state law to define what property is.
 No such interest here because the law left the discretion up to the school officials. It was a one-
year contract with nothing else for him to rely upon. Statute leaves the discretion in the officials.
v. Look at the nature of the interest to see if there is an LLP interest. Look for some sort of authority that
might give the P a reasonable expectation for entitlement in continued employment.
3. Perry v. Sinderman (same day as Roth)
i. Another teacher in TX state college system. Similar facts. 1-year contract not renewed, and he as at odds
with the board of regents.
 He claims there is a de facto tenure program because of faculty guidelines that stated the college
encourage the teachers to think they had tenure unless certain things happened.
o Must have a legitimate claim of entitlement and look to positive law. This does not
have to be an official source of law. It can be based on a custom that if routinely
followed. P needs something to show a reasonable expectation in continued
employment beyond mere speculation, hope, or desire.
 If there is really a de facto tenure program, he might win if he has a legitimate
interest. Doesn’t have to be a black letter law statute to be a statutory
entitlement. If de facto tenure program is followed, then some expectoration.
ii. Court decides that P alleged enough facts to show that he was entitled to some kind of process, and the fact
that he lacked a contractual or tenured right, taken along, did not defeat his claim that the nonrenewal of his
contract violated due process.
 P did not have tenure per se, due to the length of his service at his last institution and the college
guidelines listing the de factor tenure program, he achieved some sort of expectation for continued
employment to warrant a hearing.
iii. Difference between Roth and Sinderman:
 Stems from the policy paper used by the college to provide a de facto tenure right for teachers,
even though both teachers were non-tenured and on one-year contracts. Sinderman was able to
point to the guide as an expectancy of being treated as though tenured, giving him a viable claim
that he had a property interest in the job because of his expectation of continued employment.
 Thus, despite the lack of a formal contract or tenure, Sinderman had an entitlement, not in statute
or contract, but in the business norms of the company her can point to for an expectation in
continued employment, while Roth has no such evidence. Roth only has mere hope and desire for
continued employment. Thus, Roth gets no hearing, and Sinderman does get a hearing.
C. The Due Process Calculus
1. Mathews v. Eldridge
i. Termination of social security benefits for a disability. Terminating benefits since no longer disabled.
Individuals have a statutorily granted property right in social security benefits. The termination of such
benefits implicates due process, but it does not require a pre-termination hearing. Paper hearing is
sufficient.

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 ii. Must look at 3 factors for assessing the adequacy of a proceeding:
 (1) The private interest that will be affected by the official action
o Generally, cuts in favor of more procedures. In Goldberg, the private interest in having
pre-termination hearings was high since the poor relied upon welfare for survival.
Here, more people than the poor are entitled to social security, so doesn’t have the high
interest in having pre-termination procedures.
 Can’t access this on a case-by-case basis. Must look somewhat in the aggregate.
Don’t want some people getting process, and others none, for the exact same
benefit termination.
 (2) The risk of erroneous deprivation of that interested under the required procedures and the
likely reduction of that risk by requiring more/different procedures (Accuracy Interest)
o For disabilities, it is medical reports v. medical reports. This doesn’t need oral hearing
and cross x. Doctors are just writing reports. Different than the welfare context of
Goldberg in which there are inquiries into whether there is a secret job, living with
someone, shared income, etc. Accuracy interest here for having pre-deprivation
hearings is much less than in Goldberg.
 (3) The government’s interest/public interest in suing the required procedure as opposed to
more or different procedures
o Fiscal and administrative burdens in implementing further processes. Also in favor of
having he procedures post-termination and not pre-termination. People are less likely
to follow through with procedure they are entitled to if it is post-deprivation. This
would overwhelm the social security system. .
2. CBE v. Loudermill
i. Holdings:
 Certain public employees have a property interest in their employment, per the 14th amdt and Roth
 This property right entails a right to “some kind of hearing” before being terminated – a right to
oral or written notice of charges against them, an explanation of the employer’s evidence, and an
opportunity to present their sides of the story.
ii. Factors:
 Private interest: retaining employment
 Opportunity for him to present his side of the story
 Government interest in immediate termination (does not outweigh the other two)
 Thus, pre-termination hearing should be more of an initial check against mistaken decisions, not
a full evidentiary hearing but a determination of where there are reasonable grounds to believe that
the charges against the employee are true and support the proposed action. Does not have to be a
formal hearing, but notice and opportunity to be heard are necessities.
iii. Thus, public sector employers are required to prove a Loudermill hearing before terminating an
employee
 Balancing the private interest in retaining employment and avoiding erroneous termination,
against the governmental interests in immediate removal of an unsatisfactory employee and the
avoidance of administrative burdens.
 9 months was not an unconstitutional delay in providing the post-termination hearing.
iv. P’s constitutional claim for the expectancy of continued employment derived from the Ohio statute. This is
a positive source of law that creates an entitlement to a reasonable expectation for continued employment.
 The government’s interest in immediate termination did not outweigh the P’s claims and interests.
v. Dissent – Rehnquist – View that the 14th amdt does not support the conclusion that the Ohio state’s effort
to confer a limited form of tenure upon the employees resulted in the creation of a property right in their
employment. This statute did not entitle him to reasonable expect continued employment.
 Rehniquist wants a bright line rule for due process that includes specific enforcement of an agency
action.

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 VII. TIMING AND AVAILABILITY OF JUDICIAL REVIEW
A. Overview
1. Constraints on agencies  Constitutionally structured rights, statutory APA, organic statute, scope of judicial review,
and timing and availability of judicial review.
2. APA has a presumption of reviewability and a liberal reviewing scope. Need clear and convincing evidence to
overcome this in most cases.
3. §701:
i. §701(a)(1) – Statutory preclusion of judicial review
ii. §701(a)(2) – Agency action committed to agency discretion by law.
 Courts are going to assume there is judicial review. Congress can pass a statute with absolutely no
mention of judicial review, and §701 of the APA is still going to prove it. One of the most
important aspects of the APA.
4. §702 – People entitled to judicial review
i. A person suffering legal wrong because of an agency action is entitled to judicial review.
ii. Must be adversely affected or aggrieved within the meaning of the relevant statute to be entitled to
judicial review.
 Involves figuring out the purpose of the statute and whether P is within the zone of interest of the
statute.

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 iii. An action in federal court seeking relief other than monetary damages and stating that an agency or
officer of the agency acted or failed to act in an official capacity of legal authority shall not be dismissed or
denied on the ground that it is against the US or the US is a party.
 The waiver of sovereign immunity.
o Cannot sue in state court under the APA. US only consented and agreed to suit in
federal court, not state court
o Non-money damages – This is required. Think a declaratory judgement or injunction.
5. §703 – Don’t have to sue directly when the regulation is passed or lose your rights
6. §704 – Action entitled to judicial review
i. Agency action made reviewable by statute – statute can make reviewable many things normally not
reviewable. Statute itself giving a form of judicial review. Organic statute is always the first place to look,
may provide more, which is fine
B. “Whether”: Preclusion of Judicial Review
1. Express Preclusion
i. Courts will always read the express preclusions by Congress very narrowly. Goes against the liberal
judicial review viewpoint.
 Express preclusion better be pretty damn clear or the Court is not going to read in preclusion
within the statute.
ii. No explicit provision of a statute can bar judicial consideration of a constitutional claim.
2. Implied Preclusion
i. Block v. Community Nutritional Institute
 Secretary of Agriculture setting price minimums on milk. Organic statute states that dairy handlers
must exhaust the internal agency dispute resolution procedures first before going into court.
 Rule: There is a presumption favoring judicial review unless there is a “fairly discernable”
Congressional intent to preclude judicial review.
o Question of whether the milk consumers can sue or if they are implicitly precluded
from judicial review. Similar to a standing “who can sue” question for someone who is
inquired.
o Congress wouldn’t have passed a statute that requires handlers to exhaust admin
procedures, but allows consumers to sue directly in court. Handlers can explicitly sue
in certain ways, but consumers are not entitled.
 Implicit preclusion of judicial review, even with the presumption and judicial
review and the narrow reading of the express preclusion of judicial review.
 Structure of statute speaks to consumers not having the right. Congress would
not have forced one group to go through administrative procedures, but not force
the other.
 Can have a statute that does not, by its explicit terms, preclude judicial review but through its
structure, there is a strong implication for judicial preclusion.
o Lots of issues with this case – implicit preclusion, standing, and exhaustion.
ii. Bowen v. Michigan Academy of Family Physicians
 Rule: Unless explicitly insulated from review, matter is not precluded from judicial review
 Medicare Part A is a basic gov program of providing money to the elderly. Part V is an extra
program of buying private insurance that is still federally subsidized. Secretary determines
eligibility under A and B, and the amount under A. However, insurance provider decides the
amount under B. Secretary makes 3/4 decisions from the statute.
o Statute says if you are unhappy with the Secretary’s decisions of 3/4, then you get
judicial review. Appeal by individual is explicit for eligibility under A/B, and amount
under A,
o However, the question is about the amount under Part B which is not decided by the
Secretary. No judicial review provided under the organic statute for determinations of
the amount. The structure of the statute seems to indicate no judicial review, since the
30
 others are expressly given review and this one section is not. May show Congressional
intent to preclude.
 Previous Court ruling that the very amount of Part B is not entitled to judicial
review.
o Challenge here is not a challenge to the amounts itself, but rather a challenge to the
method of determining the amount. This is a whole different box, would be extending
preclusion.
 Court – Strong presumption that Congress intended judicial review of administrative actions. Will
not be overcome without persuasive reason to believe that was the purpose of Congress.
o Question is whether Congress barred a challenge to the method of determining the
amount under Part B when the Court has already held the amount itself is precluded.
 Argument is that method and amount go hand-in-hand. But this argument goes
against the idea of reading the express preclusions very narrowly.
o Here, Court reads the statute and preclusion very narrowly to allow
judicial review of the methods, but not the amount. Structural argument
isn’t strong enough here to support more preclusion.
 Takeaway – You don’t find a structural implication of judicial preclusion easily and the Court
maintains the idea that you want to read statute narrowly and don’t want to read in preclusion of
judicial review unless there is a strong implication.
o There are other determinations other than what is expressly provided for judicial
review under the statute. Not a strong structurally argument for those.
3. Committed to Agency Discretion by Law
i. Presumption that the action is not reviewable because it involves significant agency discretion.
 Refusal to Enforce: Presumption against reviewability unless:
o (1) The agency doesn’t think it has jurisdiction, or
o (2) Agency decides to not enforce the rule at all
ii. Heckler v. Chaney
 When discretion given to the agency is so broad that there is no standard for review that would
work (therefore, suing under abuse of discretion would have no standard to decipher).
 Decisions of whether to begin an enforcement action/not to instigate enforcement actions are
prescribed to agency discretion by law.
 There are certain decisions that are not just a matter of discretion, but are so discretionary, that
they are committed to the agency by law. Such a broad agency discretion that the court cannot
formulator workable standards. Categorically considered an area with such great discretion that
it is presumptively unreviewable.
o FDA regulates drugs, death row inmates claim they should regulate lethal injections.
Presumption that the refusal to enforce is not reviewable because of the countless
things that an agency can enforce, but chose not to in its discretion.
iii. Refusal not to make a rule – The decision to initiate a rulemaking is much less frequent, and a decision a
decision to not initiate rulemaking is more likely to be reviewable than a refusal to enforce
C. “Whom”: The Problem of Standing
1. Constitutional Standing – If you lack constitutional standing, there is no “case or controversy” that is hearable by the
Article III courts.
i. Lujan v. Defenders of the Wildlife
 Three Constitutional element for standing: –– If there is no constitutional standing, there is
no case of controversy.
o (1) The plaintiff must have suffered an injury in fact – an invasion of a legally
protected interest which is:
 Concrete and particularized; and
 Actual or imminent, not conjectural, speculative, or hypothetical
o Seeing injustice in the world is not an injury in fact.
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 o Being sad or upset about something, or the mere fact that illegality is
occurring, is not injury in fact.
o Officials not performing jobs correctly is not injury in fact.
o (2) There must be a causal connection between the injury and the conduct complained
of – the injury has to be fairly traceable to the challenged action of the defendant,
and not the result of an independent action of some third party not before the
court.
o (3) It must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.
 Money or injunctive relief against the threat of something illegal that actually
harms you.
 Redressability does not have to be guaranteed, more of a high probability.
 An opinion is not redressability; it is just an advisory opinion without any
action.
 Injury in Fact:
o Endangered Species Act narrowed to require consultation for actions only taken in the
US. Injury – these P’s might lose the ability to see the animals in Egypt and Sri Lanka.
Court says no standing – too speculative. P’s cannot saw that they saw the animals in
the past, and would like to see them in the future, but they are now dead and they are
sad. No firm plans to visit either location.
 No injury in fact – too speculative. No standing. s
 Redressability
o Scalia not speaking for the majority here. Scalia basically says no redressability
because the court cannot provide a remedy that would wholly alleviate the problem for
the P’s since the US only funds part of the international projects. This isn’t the law;
redressability doesn’t have to be fully guaranteed or fix the whole issue.
 Citizen Suit Provision
o Congress basically stated that if there is something illegal going on, anyone can sue.
Congress can say this if they want, but it is not necessarily constitutional. Congress
cannot override the necessary three elements of the standing test. The citizen suit
provision is unconstitutional for these P’s to use because they do not satisfy the
constitutional standing inquiry. Congress cannot take no injury and elevate it to support
standing just by passing a statute.
ii. Friends of the Earth v. Laidlaw
 Tension with Lujan, but does not overrule. Company dumping mercury into the water, and citizens
are concerned that the water is contaminated. However, the district court specifically found that
the water is not contaminated.
o There is a similar citizen suit provision here as in Lujan, allows suit by any citizen
having an interest that may be adversely affected. A little narrower since it requires the
person have an interest that is adversely affected, but still must conform with
Constitutional test.
 P’s say they are not injured by the environment or water, but rather for their
avoidance of recreational expenditures. They cannot take the routes they want,
cannot fish, hike, swim, or live near the water. They used to do all these things,
but now they cannot because of concerned involving the harmful effect of the
mercury discharges.
 Court says there is standing – these injuries are more concrete and not just merely speculative.
These people actually lived, worked, and drive near the water and their experiences are concrete.
Not so speculative, like no plans to visit again, but the actual possibility to do so at any time.
o Possible idea – A homeowner in the area may claim he is adversely affected because of
the fear of contamination and the price of his home. His home was worth X when he
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 bought it without the fear of contamination, but now since everyone thinks the water is
poisoned and nobody wants to buy the house, it is worth Y, significantly less. Doesn’t
matter if the water is actually bad or not, the fear is what is causing the injury. This
would be an easier way for the P’s to get injury in fact and avoid the DC finding of no
actual contamination. Homeowner losing money.
2. Statutory Standing – Whether the substantive organic statute allows this person to engage in judicial review
i. Congress cannot waive constitutional standing. Citizen suits cannot waive the three-part requirement.
However, once you are past the constitutional standing inquiry. The relevant statute is going to be highly
relevant.
ii. §702:
 Suffer a legal wrong because of an agency action; OR
 Affected or aggrieved by an action within the meaning of a relevant statute
o Classic definition was whether the relevant statute actually provided for judicial
review. Statute actually having language saying you could sue.
 Think of the citizen suit provision in Lujan. While it wasn’t enough for
constitutional standing, it would be more than enough for statutory standing.
o 702 provides standing for suit even if not mentioned in the statute,
but it must fall under one of the prongs required by 702.
o If the relevant statute does not say anything about judicial review– the zone of interest.
Must decide whether the P is arguably within the zone of interest provided by the
statute. If so, then 702 allows suit.
 Mean to be pretty loose – even a decent claim will get you in.
iii. Association of Data Processing Service Organizations v. Camp
 Is the interest sought to be protected by the plaintiff arguably within the zone of interest to
be protected or regulated by the relevant statute or constitutional guarantee in question?
o 702 grants standing to a person aggrieved by agency actions within the meaning of a
relevant statute.
 The trend is towards the enlargement of the class of people who may
protest an administrative decision. Within the class of aggrieved persons
under 702 entitled to judicial review.
 Look at the statute and its intended purpose from Congress. This statute is about
what banks can do and Congress wants to keep banks to a specific area and does
not want competition. This is the zone of interest that the statute is intended to
protect.
iv. Clarke v. Securities Industry Association
 Statute is a limitation on national bank branch offices and the relationship between national and
state banks. Question is whether new local brokerage offices count as branches.
 Same analysis: 702 grants standing to a person aggrieved by agency action within the meaning of
a relevant statute. Must be arguably within the zone of interest intended to be protected or
regulated by the relevant statute. The trend is towards the enlargement of the class.
o Zone of interest is a guide of Congress’s intent to make agency action presumptively
reviewable.
 In a case where the P is not itself the subject of the contest regulatory action, the
test denies a right to review if the ‘s interests are so marginally related to or
inconsistent with the purposes implicit in the statute that it cannot reasonably
be assumed that Congress intended to permit the suit.
o Congressional purpose to benefit the P.
 First – The phrase relevant statute must be interpreted broadly.
o Don’t look exclusively at the very narrow section under which you sue, but bring in
other relevant, related statutes. Read relevant statute broadly.

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  More than just the narrow statute suing under – Congressional intent to benefit a
particular P to see whether the P were arguably within the zone of interest of the
relevant statute.
 Second – Trend toward the enlargement of the class of people who may protest the administrative
action. Expanding the class of people – adding he word “arguably” to make it broader.
Arguably within.
o Not allowing every party adversely affected by an agency to see judicial review, but
just those that are arguably within the zone of interest to be protect or regulated by the
statue. Not infinite, but broader.
v. Air Courier Conference of America v. American Postal Workers Union
 Outlier case where the courts finds there is no statutory standing to sue. Not arguably within the
zone of interest Congress intended to protect the relevant substantive statue.
 USPS statute that provides it a monopoly over the mail carrying industry and the ability to
suspend the regulation and allow competition.
o They do this for urgent mailings and international remailing. Postal workers’ union
challenges the international remailing, claiming it is taking their jobs.
 Statutory standing – no standing. Not arguably within the zone of interests sought to be protected
by congress through the relevant statue.
o Employment of the mailmen are NOT the focus or purpose of the relevant statutes. The
organic, relevant statute was not concerned with employment of the mailmen, but
rather providing the USPS the monopoly protections in order for it to not have
competition and actually provide the service at a rate that would keep it in business.
The purpose of the statute was keeping other mail carriers from undercutting the USPS
so it can remain in business and recoup the money invest. The statue had nothing to do
with mailmen, in fact, mailmen didn’t even exist at that time.
 Mailmen were added by statute later, and there are various employment statutes
about mailmen, but the court is only looking at the relevant statue in play, the
original statute. History of why it was passed and its purposes, which
employment of mailmen isn’t one.
o Case flies in the face of the idea of reading the relevant statute
broadly and arguably being within the zone of interest. This goes
against the trend towards expansion.
o Court – Not going to read the whole US Coe on postal workers as a whole. Read the
specific statute in tandem with relevant statutes that are very closely and tightly
related. The postal monopoly does not seem tightly bound up with the labor
employment statue for the postal workers. Statues used in tandem must have an
integral relationship with one another.
vi. Bennett v. Spears
 The P must establish that the injury he complains of falls within the zone of interest sought to be
protected by the statutory provision whose violation forms the legal basis for his complaint.
o Seems to completely destroy the idea of arguably being within the zone of interests and
looking at the relevant section broadly.
 Volokh – At least you look at the narrow section, and it may grant statutory standing. Then you
can go broader and look at other sections if they are integrally related and tightly bound up.
However, you cannot go too broadly past an integral relationship.
vii. National Credit Union Administration v. First National Bank & Trust
 Whole point of the organic statute is to limit members of credit unions to specific groups. Limiting
the market federal credit unions can serve. It is a competition limiting statute – limits what
markets credit unions can serve.
o Whether the interest sought to be protected by the complaint is arguably within the
zone of interest – not a killer that Congress sis not explicitly consider the interests of

34
 this person. Enough that it is a competition limiting statute, and anyone that is in
competition is within the zone of interest.
 This is broader. How do you reconcile this case with the Postal Worker case?
Maybe the Postal Worker case was a very specific theory and the interests of the
postal workers just weren’t integrally related. No integral relationship between
protecting postal revenues by a monopoly and the labor management portions –
that is reading the statutes too broadly to bring in interests that weren’t
protected.
 Another theory is that the interest of the postal employees had no interest in
competition interest. Competition harms a corporation that is competing
directly, but the employees themselves are not harmed by competition and have
a contract with the employer. Connection with the competition interest is just
too attenuated and not integrally related. No interest in competition.
o If you get a question here, just lay out the broad, general rule, mention
Postal Workers case, then compare and contrast your facts with that
case and all these others. Remember that zone of interest is intended to
be broad and not a huge limitation on standing.
D. “When”: The Timing and Availability of Judicial Review
1. Exhaustion – Can you sue in court or must you go through all the inter-agency procedures first?
i. Statutory Exhaustion
 Congress can require parties to present arguments to an agency, more than once, before those
arguments can form the basis of a judicial action.
o It is all a matter of reading the relevant special review section of the organic statute to
see whether and how they may the appeals process to agency work.
 There is even the idea that parties cannot waive exhaustion if it is in the statute.
Courts are split.
ii. Common Law Exhaustion
 If the action provided an internal review or rehearing procedures, Courts typically insist litigants
employ those procedures.
 McCarthy v. Madigan (Exhaustion for Non-APA Cases)
o Issue is whether a prisoner must resort to internal grievance procedures promulgated by
the agency before initiating suit not under the APA. Case not subject to the APA.
 Case deals with judicial doctrine of exhaustion in the constitutional context, not
the APA. Suing under Bivens for monetary damages. Under the APA, you
cannot sue the government for monetary damages. You are going to lose.
o APA does not allow suits against the administrative agency under the
APA for solely monetary damages.
i. Bivens is a judicial doctrine to allow an individual to sue the
gov for money. Different type of administrative common law.
Federal Torts Claims Act is another type – special waiver of
sovereign immunity.
o Why is exhaustion a good idea?
 (1) respects the authority of the executive branch. Allows agencies to fix their
own problems internally with less intrusion by courts. Give the agency the first
chance to correct its mistakes. Agency expertise in the issue is important. May
weaken the agency’s power if everyone just rushed to court all the time and
didn’t follow the agency.
 (2) Promote judicial efficiency
o Judicial controversy not clogging u the system. Agency correcting its
own mistakes so court is not involved.

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  (3) Going through all the inter-agency procedures provides a good record for a
reviewing court to do off.
o Think of Overton Park
o Three Exceptions to Common Law Exhaustion:
 (1) Requiring parties to resort to the administrative remedy may cause
prejudice to subsequent assertions of a court order
o Ex) If the admin process takes a long time, then your evidence may be
stale or missing by the time it makes it to court. This would cause
undue prejudice to you.
 (2) An administrative remedy may be inadequate because if some doubt exists
as to whether the agency was empowered to grant relief.
o This is the situation in McCarthy. The agency cannot provide monetary
damages, so it is pointless for the prisoner to go through all the inter-
agency appeals when they cannot provide him what he wants. Money
damages or constitutional issue, for example.
i. However, if there were other claims, the agency may be
competent to adjudicate the issue presented, but still lack the
authority to grant the type of relief requested
 (3) An administrative remedy may be inadequate where the administrative
body is shown to be biased or has otherwise predetermined the issue before it.
o Futility to provide the monetary remedy sought is the most important here. While the
common law exhaustion principle applies in this case, the prisoner does not have to go
through all of them in this case, it applies, just not to the prisoner.
 Basic structure of the common law exhaustion doctrine applies whenever
the case does not arise under the APA.
 Darby v. Cisneros (Exhaustion for APA Cases)
o 704 of the APA creates a statutory exhaustion doctrine that supersedes the common-
law doctrine whenever a suit is brought under the APA. Case arising under the APA, so
the common law exhaustion doctrine does not apply.
o §702 suggests that there shouldn’t be any exhaustion if you are under the APA. You’re
already subject to the harm, so technically should be able to get judicial review.
o §704 – final action is important. Argument is that an agency can say that if the P hasn’t
gone through all the internal processes, then it is not a final agency action.
 Volokh says NO, final is just the final answer. The penalty on the person, not
going through all the processes.
o There is no requirement in the APA for administrative exhaustion and entitled to
judicial review even if you chose not to use those processes.
 APA cases – No administrative exhaustion requirement
 Non-APA cases – Common law administrative requirement that has two
rationales and the three exceptions
o Any sort of exhaustion requirement under the APA must arises under a statute or
an agency rule. Prescribed by statute or agency rule – these are the only things that can
require any sort of inter-agency exhaustion under the APA.
2. Finality
i. §704 declares that judicial review is available for agency action made reviewable by statute and final
agency action for which there is no other adequate remedy in a federal system.
 Thus, agency action must be final – a prerequisite to all judicial review in federal courts.
ii. FTC v. Standard Oil of California
 Issue is whether the notice of a complaint by the FTC is a final agency action.
o Finality – Definitive and has legal consequences
 Examples of non-final action:
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 o Warning letter that says you must change your actions or you will get
sued.
o Notice of proposed rulemaking
o Filing of a complaint
 An agency action is final if it is definitive and has legal consequences on your rights and
responsibilities flowing from it.
o The definitive statement of the agency and it affects legal rights and responsibilities.
o If it also has a direct, practical effect on you, this is an argument to make. Looser
concept, no bright line rule. Just make arguments.
iii. Bennett v. Spears
 Two-part test for determining whether an agency action is final within the meaning of the APA.
o (1) The action must mark the “consummation” of the agency’s decision-making
process. It must not be of a merely tentative or interlocutory nature
o (2) The action must be one by which ‘rights or obligations have been determined, or
from which legal consequences will flow.
3. Ripeness
i. Ripeness is purely a matter of administrative common law.
 Congress could pass a statute striking all this down. They can pass a law eliminating ripeness, just
like the Chevron doctrine. These are all administrative common law and Congress could change it.
 Basic rule was that a party can generally raise any legal argument it wants once a regulation is
enforced against it. At that moment when the law is enforced against the party.
 Question – what if the law has not been enforced against you, but you want to challenge it pre-
enforcement? Afraid that it will one day be enforced against you, so want to challenge it now
before it is in effect. Challenge at promulgation.
ii. Abbott Labs v. Gardner
 Ripeness doctrine – Basic rationale is to prevent the courts though avoidance of premature
adjudication, form entangling themselves sin abstract disagreements over administrative policies,
and also to protect the agencies from judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way by challenging parties.
o Two Factors:
 (1) The fitness of the issues for judicial review
 (2) The hardship to the parties of withholding court consideration
 The fitness of the issues for judicial decision
o (1) Purely legal question? Any effort to justify the regulation in factual terms or
distinctions?
 Government may say that case is not ripe because the case depends entirely on
hos the enforcement will take place. There are factual questions and decisions to
be made. This may defeat ripeness.
o (2) Final agency action; clearly definitive and no hint that the regulation was informal
or tentative. Within the meaning of §704.
 The hardship to the parties of withholding court consideration
o To show hardship – can use either legal effects or practical effects.
o (1) Impact of the regulations upon the petitioners is sufficient direct and immediate as
to render the issue appropriate for judicial review. Regulations are clear-cut and
effective immediately upon publication.
o (2) Requiring the petitioners to challenge these regulations only as a defense to an
action brought by the gov might harm them severely and unnecessarily
o (3) To allow a pre-enforcement challenge will not delay or impede effective
enforcement of the statue
iii. Toilet Goods v. Gardner

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  This one is not ripe. Abbott Labs was ripe, Toilet Goods is not ripe.
 (1) fitness for judicial resolution
o Final agency action
o Pure legal question
o May be outweighed by other considerations
 Specific application of the regulation. Agency needs to see what the actual
effects will be once it is enforced. Need specific application, not generalized.
 (2) Hardship on the parties if judicial review is denied
o Degree and nature of the regulation’s present effect on those seeking relief
o Primary conduct is not affected here
 Direct and immediate impact on primary conduct – Things you actually do
as part of your business.
o If the regulation does not affect primary conduct, probably going to
lose.
o Immediate adverse consequences flow from requiring a later challenge to the
regulation
 Not present here
 Difference between Abbott Labs and Toilet Goods – Pure legal question not satisfied in Toilet
Goods – court wanted specific enforcement. Not the same direct and immediate impact on primary
conduct because the regulation did not affect primary conduct.
 No hardship – The rule did not establish a legal duty requiring them to alter their primary
conduct.
iv. Ohio Forestry v. Sierra Club
 Resource management plan where logging will be allowed in certain places in the forest. Court –
No ripeness.
o (1) Whether delayed review will cause hardship.
o (2) Whether judicial intervention would inappropriately interfere with further
administrative actions
o (3) Whether the courts would benefit from further factual development of the issues
presented
 First – To withhold court consideration at present will not cause the party’s significant hardship
as this court has come to use that term.
o Merely saving on litigation expense is not an adequate hardship. The only hardship is
the litigation expense – whether you challenge it now or when they actually make a
logging plan doesn’t matter – the same result.
 Second – Immediate judicial review directed at the lawfulness of logging and clearcutting could
hinder agency efforts to refine its policies.
 Third – Review of the claims regarding logging now would require time-consuming judicial
consideration of the details of an elaborate, technically based plans.
o This would be an argument over abstract polices. Court is just working off speculation,
nothing specific or concrete. Abstract disagreements over administrative policies.
o Court can make a better decision when the agency has actually specifically located the
places it will log and enforced the plan. No pre-enforcement suit.
 Not ripe for review because courts could benefit by further factual development. The agency
could interpret circumstances in numerous different ways.

 Extras
o Some statutes which waive sovereign immunity and allow for money damages:
 Tucker Act
 Waives sovereign immunity when party is a contractual partner of the US, so can sue in cases
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 of breach of contract, which encourages people to engage in business with the US.
 Also waives sovereign immunity in cases of constitutional violation, like takings claims
 Court of federal claims hears these claims
 FTCA
 Allows you to sue US as though it were a private individual, and a private individual would
be liable. In such cases, incorporate the law of the state where the tort happened to see if have
a proper remedy
 Suits against individual officers, are essentially transformed into suits against the US in
federal district court—no individual liability under this act
 Exceptions (a lot, but some key ones)
o Discretionary function exception—actions involving exercise a discretion, then no
money damages
o Mishandling of mail—no liability when contracts lost in the mail, but if a postal
officer throws a package at you, probably face liability
o Intentional torts exception when officers performing in the scope of their duty,
except as to law enforcement officer
 Bivens Actions/constitutional torts
 42 USC §1983 (1871)-can sue state official for violating your rights (a reconstruction statute)
 Bivens—Bivens was searched by a bunch of agents, and never prosecuted. Sues under the
Fourth amendment. Court says there is realistically no way of vindicating this guy’s rights.
May give consent to search because intimidated, so would have no trespass action. So create
a remedy in this case, allowing suits to go forward. Extended over time to violations under
other amendments (fifth and eight)
 There has been a retrenchment of Bivens, when alternative remedies are available
o State remedies can be sufficient to prevent a Bivens action.
 §702. Right of Review: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by
agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the
United States seeking relief other than money damages and stating a claim that an agency or an officer or employee
thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief
therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The
United States may be named as a defendant in any such action, and a judgment or decree may be entered against the
United States
 §704. Actions Entitled to Review: Agency action made reviewable by statute and final agency action for which there is
no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency
action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise
expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there
has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the
agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency
authority
 §706. Scope of Review: To the extent necessary to decision and when presented, the reviewing court shall decide all
relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of
the terms of an agency action. The reviewing court shall:
o (1) compel agency action unlawfully withheld or unreasonably delayed; and
o (2) hold unlawful and set aside agency action, findings, and conclusions found to be—
 (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
 (B) contrary to constitutional right, power, privilege, or immunity;
 (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
 (D) without observance of procedure required by law;
 (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or
otherwise reviewed on the record of an agency hearing provided by statute; or
 (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing
court.
o In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a
party, and due account shall be taken of the rule of prejudicial error.

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