I. What are the Threshold Questions?

A. Does the court have ability for judicial review?

1. Presumption of Reviewability under the APA: there is a longstanding rebuttable presumption that
judicial review of agency action is available, allowing review in favor of persons who "suffered legal
wrong because of agency action, or adversely affected or aggrieved by final agency action within the
meaning of the statute," subject to two APA exceptions.1
Is the court precluded by statute?2

The statute must specifically mention judicial review, and it must either preclude judicial
review completely or provide for a particular form of judicial review and preclude other forms.3

Is it committed to agency discretion by law?4

Review isn't available when the governing statutes are drawn in such broad terms that in a
given case there is no law to apply5;

OR when Congress intended that the agency have final authority over a decision;

OR when agency action is traditionally committed to agency discretion.

It remains a narrow one, but within this exception are included agency refusals to institute
investigative or enforcement proceedings, unless Congress has indicated otherwise.
Presumption of Unreviewability for Agency Inaction: there is a rebuttable presumption of
unreviewability of agency inaction, as this is a matter committed to agency discretion.6
WITH INACTION, remember STANDING and FINALITY as well

See APA 701-706; Abbott Labs v. Gardner (1967) (holding that issues were fit for judicial resolution and hardship from precluding
court consideration to plaintiffs, which were nearly all of prescription drug manufacturers was demonstrated, warranting entertainment
of action for pre-enforcement injunctive and declaratory judgment remedies concerning statutory construction of Commissioner of
Food and Drugs by way of regulations requiring labels, advertisements, and other printed matter relating to prescription drugs to
designate the established name of the particular drug involved 'every time' its trade name is used anywhere in such material).
2
See APA 701(a)(1); Dalton v. Specter (1994) (no judicial review of action of the Defense Base Closure and Realignment Comm'n
in recommending bases for closure was not reviewable under APA, since ultimate decision specifically rested with President.
3
See Abbott Labs (1967) (requiring an indication that Congress sought to prohibit judicial review and a showing by certainly no
'showing of 'clear and convincing evidence' of a legislative intent' to restrict access to judicial review).
4
See APA 701(a)(2); Abbott Labs (1967) (no specific language); Overton Park (1971) (no specific language).
5
See Heckler v. Cheney (1985) (finding that statutory language did not limit FDA's discretion to remain inactive and broad policy
language did not provide guiding law); but see Dunlop v. Bachowski (1975) (rebuttable presumption satisfied in action against the
Sec. of Labor for refusal to bring a lawsuit challenging the results of a union election because, under some circumstances, the Sec. was
required to sue based on probable cause, although courts are deferential and agencies need supply any reason).
6
See Cheney (1985) (holding that there is presumption of unreviewability of decisions of agency inaction to undertake enforcement
action (adjudicate), and that presumption was not overcome in the instant case by the prison inmates, who brought action to compel
the FDA to take enforcement action with respect to drugs used for lethal injections); AHPA v. Lyng (D.C. Cir. 1987) (holding that
Cheney does not overrule prior decisions allowing review of agency refusals to institute rulemakings, since it must be explained).

B. Is there standing?
1. Is there Standing under the Constitution? (Defenders of Wildlife)
The basic constitutional requirement is that the plaintiff has suffered an injury-in-fact that is fairly
traceable to the challenge conduct and redressable by a favorable judgment, and is governed by
prudential considerations and case-or-controversy requirement of Art. III," 1.
The plaintiff's burden is much lower at the pleading stage than summary judgment stage.
a. Cognizable Injury-in-Fact (concrete and particularized):
An injury-in-fact "is an invasion of a legally protected interest which is concrete and
particularized and actual or imminent rather than conjectural or hypothetical."7
"In order for injury to be 'particularized,' it must affect the P in a personal and individual way." 8
Regulated parties or beneficiaries almost always have standing!
b. Fairly Traceable to Conduct Challenged: "There be a causal connection between the injury and
conduct complained of so that the injury is fairly traceable to the challenged action of the defendant
and not the result of the independent action of some third party who is not before the court."
c. Redressability: "That it be likely, as opposed to merely speculative, that injury will be redressed by a
favorable decision."9
2. Is there Standing under the APA? (ADAPSO)
a. The Zone of Interests Test: did Congress intend to put P within zone of protected interests?

Here, the court has held that to have standing the plaintiff must show two things: a
constitutionally sufficient injury and that "the interest sought to be protected by the complainant
is arguably within the zone of interests to be protected or regulated by the statute or
constitutional guarantee in question."

"Competitive Injury; a Regulated Party, or Beneficiary?"10

3. Other limitations and responses:

Congressional creation and citizen suits11; Generalized grievances are generally disapproved12;
Associational Standing13
7

See Lujan v. Defenders of Wildlife (1992) (holding that the desire to protect and observe animal species is a cognizable interest for
standing, but the plaintiffs did not have standing to sue b/c they failed to submit evidence showing not only that listed species were in
fact being threatened by unregulated funded activities abroad but also that any of the groups' members would be directly affected,
apart from their special interest); Warth v. Seldin (1975) (holding that various plaintiffs did not have standing to challenge adjacent
town's zoning ordinance which effectively excluded persons of low income because it was a 'generalized grievance,' and none of the
petitioners showed personal injury-in-fact); Sierra Club v. Morton (1972) (holding that in absence of specific allegations that
corporation or its members would be affected in their activities or pastimes by the proposed ski resort project, the membership
corporation, which claimed special interest in conservation of natural game refuges and forests, lacked standing under the APA to
maintain the action).
8
See Sierra Club v. Morton (1972) (holding that abstract interest in environmental protection is not enough for standing).
9
See Lujan v. Defenders of Wildlife (1992) ("when the plaintiff is not himself the object of the government action or inaction he
challenges, standing is not precluded, but it is ordinarily 'substantially more difficult' to establish").
10
See Nat'l Credit Union Adm. v. First Nat'l Bank & Trust Co. (1998) (holding that because the statute regulating banks was concerned
not only with financial interests of banks, but also with the interests of competing banks, the competing banks were in the zone of
interest and thus had standing); ADAPSO v. Camp (1970) (holding that data processors were in zone of interest of a statute and
agency action that governed how nat'l banks were to sell certain data-processing services to others); but see Air Courier Conference of
America (1991) (postal workers were not in zone to challenge Postal Service's decision to give up its monopoly over international
remailing services).
11
See Friends of the Earth, Inc. v. Laidlaw Environmental Services (2000) (held that groups had standing to bring citizen suit seeking
both injunctive relief and civil penalties; and action was not rendered moot by permit holder's compliance with permit limits or its shut
down of facility, absent showing that violations could not reasonably be expected to recur;
12
Compare US v. Richardson (1974) (dismissing taxpayers' broad suit for non-publication); Schlesinger (1974) (dismissing challenge
under incompatibility clause) with Havens Realty Corp (1982) (allowing Congress to confer on all persons a statutory right to truthful
information in housing availability).
13
See UAW v. Brock (1986) (holding that an association has standing to bring suit on behalf of membership when (1) its members
would have standing; (2) the interests are germane to organization's purpose; and (3) neither the claim nor relief requires members).

C. Is the timing proper for review? In some cases, judicial review may not be sought too soon (ripeness), too
late (mootness), or without exhausting administrative remedies.
1. Is the matter final or ripe for review?14 (Abbott Labs, Toilet Goods Assn, Ticor15)
a. Finality and judicial review of agency adjudications: agency adjudications are final when the
adjudicatory process has completely ended (including whatever appellate review is available within
the agency) and the agency has issued its order.16
b. Finality, ripeness and judicial review of agency rulemaking:
i.
Promulgation of a rule is final agency action under APA 553 and 704.
ii.
However, a rule may be ripe for judicial review upon promulgation (before
enforcement) if and only if the issues are FIT for judicial review and the party seeking review
would suffer SUBSTANTIAL HARDSHIP if review was delayed until enforcement.17
iii.
If the fitness [if no further factual development is needed or purely legal
questions] and substantial hardship [if it would be very expensive to apply immediately or other
special problems] tests are not met, then the party must wait until enforcement.
c. Finality, ripeness and judicial review of informal agency actions: when an informal agency action
has the effect of granting or denying permission to take a requested course of action, a court may
consider it final agency action even though the decision was made without formal proceedings.
i.
Approvals without rulemaking or adjudication procedures are often final.18
ii.
Informal responses to inquires may also be final agency actions.19
d. Finality, ripeness and judicial review of agency inaction or refusal to act: if the agency answers a
request for action with a firm statement that it has decided not to act, that decision can be a "final
agency action;" if not, then it probably is not subject to judicial review.
i.
This is especially true in cases of agency-prosecutorial discretion, unless the
statute contains criteria under which the agency is required to act.
2. Is the party required to exhaust administrative remedies, and if so, did they? Ticor

APA Exhaustion doctrine: if the agency action is final under 704, no further exhaustion is
required and review is available immediately.20 Under 704, exhaustion is required only of those
remedies expressly required by statute or agency rule.

In rulemaking, the claim must be raised before the agency by someone (American Forest &
Paper Ass'n (5th Cir. 1998)), while in adjudications, that person must typically be the claimant,
unless in non-adversarial cases like social security (Sims v. Apfel (2000)).

Exceptions: A party is not required to exhaust administrative remedies if (1) doing so would
cause undue prejudice to the protection of the rights at issue; (2) the administrative agency lacks
power to grant appropriate relief, or (3) it would be futile because of agency biases.
3. Is the case moot?
14

See APA 704(a) (grants judicial review of "final agency action for which there is no other adequate remedy in a court").
See Ticor Title Insurance Co. v. FTC (D.C. Cir. 1987) (affirming decision to dismiss suit against FTC, but unable to decide if it is
because of finality, ripeness or exhaustion).
16
See FTC v. SoCal (1980) (holding that the FTC's issuance of a complaint alleging violation of FTC Act was neither "final agency
action," nor "collateral order" under APA and was not judicially reviewable before the conclusion of the administrative adjudication).
17
See Abbott Laboratories v. Gardner (1967) (holding that the case was fit for review because the question of whether the FDA could
require generic & trade name "every time" was a purely legal question and substantial hardship shown because of cost of changing all
labels, risk of criminal sanctions, and sensitivity of drug companies' reputation); but see Gardner v. Toilet Goods Assn., Inc. (1967)
(finding that the issue of whether FDA officials would have "free access" to factories was not fit for review because it was unclear
when the FDA would actually order inspections).
18
See Citizens to Preserve Overton Park, Inc. v. Volpe (1971) (the Sec. of Transportation's approval of the interstate highway was final
agency action, even though it was made without rulemaking or adjudication proceedings).
19
See Nat'l Automatic Laundry & Service Council v. Shultz (D.C. Cir. 1971) (then, apply the fitness and hardship test).
20
See Darby v. Cisneros (1993) (holding that there is no general exhaustion requirement beyond APA 704 unless specifically stated in
statute or agency rules).
15

A case is moot if there is no longer a live controversy between the parties, such as if the
agency repeals the rule or if a party is no longer subject to the agency's decision.
However, there are two exceptions: (1) if the claim is "capable of repetition yet evading
review," or (2) when the defendant voluntarily ceases the challenged action but remains free to
reinstate.

II. What Type of Judicial Review Should the Court Use?

A. Is it a factual or legal determination?
1.
Factual ["the agency misread the facts in this case; the facts do not support the outcome"]
a.
Formal proceedings? ("Substantial Evidence Test": see Universal Camera)21
I. In considering the whole record, could a reasonable juror reach same conclusion as agency?22
II. The agency's decision based on credibility of witnesses is granted high deference.
i.
An agency head may decide a case without personally reviewing the evidence or
thoroughly reading briefs or hearing oral arguments.23
ii.
If agency head disagrees with ALJ, the court will side with ALJ if case rests on
witness credibility, and will side with agency if the case is based on text, transcripts.24
b. Informal proceedings? ("Arbitrary and Capricious Standard;" see 706(2)(A)).25
I. Generally, this means that the agency considered factors outside the statutory requirements.
c. The facts are subject to trial de novo by the reviewing court? (De novo; 706(2)(F).26
I. Either the agency action is adjudicatory and the agency fact-finding procedures are inadequate or
II. Issues that weren't before agency are raised in proceeding to enforce non-adjudicatory action.27
2. Legal ["the agency activity is illegal, whether procedurally or substantively"]
a.
Is it a procedural challenge ["the agency failed to give me enough or correct
procedure"]?
Look at where it fits in APA box. Key questions below:
Rulemaking
Adjudication
553 (notice & comment,
555 (ancillary)
general statement of purpose)
DP clause

Vermont
Chem.
Yankee
Waste Mgmt

"The
RM Assumption"
Formal
556-557
554, 556-57

Florida

Seacoast
East Coast Railway

"The AD
Assumption"
Does agency have choice between rulemaking and adjudication? Chenery/Mead/Morton28
Informal

I.
I.
I.
I.

21

See Universal Camera Corp. v. NLRB (1951) (holding that the APA provides that court shall set aside agency action in a formal
unsupported by substantial evidence and review the whole record); APA 706(2)(E) ("[t]he reviewing court shall hold unlawful and set
aside agency action, findings, and conclusions found to be unsupported by substantial evidence in a [formal proceeding under 556
and 557 or as required by statute]"); Richardson v. Peralas (1971) (medical evidence, probably hearsay, may be enough alone to
constitute substantial evidence if they are sufficiently reliable).
22
See Allentown Mack Sales and Service, Inc. v. NLRB (1998) (reasonable juror standard).
23
See Morgan v. US (1941) (judicial review does not allow inquiry into how deeply the agency head reviewed the trial record).
24
See Universal Camera Corp. (1951) (holding that judicial review will focus on agency decision, but the reviewing court must take
the initial ALJ's opinion into account when deciding whether agency's conclusions are supported by substantial evidence).
25
See APA 706(2)(A) ("[t]he reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law").
26
See APA 706(2)(F) ("unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court").
27
See Overton Park (1971).
28
See SEC v. Chenery I (an administrative agency's decision can only be affirmed on the agency's record); Mead Corp v. US (2001).

i.

If the agency does not have a choice, then agency must have applied the only
choice; if not, case closed.
ii.
When agencies have discretionary choice between rulemaking and adjudication,
they will check for abuse of discretion, and balance retroactivity v. purpose of statute29
iii.
The court may set aside agency action because it used the wrong procedure, either
rulemaking or adjudication, when:
A. the agency lacks statutory authority to use the particular technique;30
B. the agency used adjudication to make a binding statement of law or policy that is to be
applied only prospectively;31
C. the agency has used rulemaking to make a regulation that is retroactive, in the sense that
it changes the legal consequences of completed past conduct [such retroactive rulemaking
is unlawful unless specifically mentioned in statute; never happens]32
D. the agency uses adjudication to overrule a prior adjudication precedent on which a private
party has relied, and at the same time, wishes to impose a retrospective monetary sanction
(as opposed to declaratory or injunctive relief) based on already completed conduct33
E. the agency's choice of procedure is in some other respect a flagrant abuse of discretion34
F. in some circumstances, using adjudication to narrow the scope of an entitlement35
G. the agency used adjudication to alter, make an exception to, or disregard agency position
as stated in a regulation that is still in effect (agencies are bound by their own rules)36
H. the agency used rulemaking to decide a purported question of fact that arises on a
recurring basis in adjudication, but has:

failed to allow an "escape hatch," which may be required

misused this practice by applying it to a question of fact that really isn't generic in
nature and needs to be decided case-by-case37

II. Definitions and Formal Proceedings

i. 551: Definitions

Rulemaking: agency process for formulating, amending, or repealing rule

29

See SEC v. Chenery II (1947) (an agency has broad discretion to chose between RM and AD; here, the agency could announce a
new prospective statutory interpretation); NLRB v. Wyman-Gordon Co. (1969) (can announce new principles in an adjudication, but
cannot apply them prospectively in adjudication unless made into rule?); NLRB v. Bell Aerospace Co. (1974) (holding that NLRB is
not precluded from announcing new principles in an adjudicative proceeding, and its a discretionary choice to develop its standards in
a case-by-case manner).
30
See Nat'l Petroleum Refiners Ass'n v. FTC (D.C. Cir. 1973) (holding that the FTC is empowered to promulgate both substantive and
procedural rules of business conduct and "trade regulation").
31
See Wyman-Gordon Co. (1969)
32
See Bowen v. Georgetown Hospital
33
See dicta Bell Aerospace (1974).
34
See Ford Motor v. FTC (9th Cir. 1981) (should have used rulemaking in nationwide attempt to formulate policy).
35
See Morton v. Ruiz (1974) (here, using adjudication to redefine Native American entitlements).
36
See Morton v. Ruiz (1974) (the internal regulations were not published according to agency rules and therefore the agency could not
rely on them in adjudication/licensing); Accardi v. Shaughnessy (agencies' duty to follow its own rules).
37
See Heckler v. Campbell (1983).

Adjudication: agency process for the formulation of an order

Rule: whole or a part of 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 req. of an agency and includes the approval or
prescription for the future of rates, wages, etc.
Order: the whole or part of a final disposition, whether affirmative, negative, injunctive, or
declaratory in form . . . including licensing.

ii.

556: Hearings
At taking of evidence, following can preside: agency; one or more members of the
body comprising the agency; or ALJ
Person presiding at hearing may: Administer oaths and affirmations; Issue subpoenas;
Rule on offers of proof and receive relevant evidence; Take depositions when the
ends of justice would be served; Regulate the course of the hearing; Hold conferences
for the settlement or simplification of issues
Party entitled to present his case or defense by oral or documentary evidence, to
submit rebuttal evidence, and to conduct such cross-examination as may be required
for a full and true disclosure of the facts
556(d) certain types of adjudications, can limit to written evidence
iii. 557: Initial decisions

Applies when a hearing is required to be conducted in with 556

557(d)(1) = governs ex-parte contacts in formal proceedings

Retrospective
Application
Prospective
Application

Few/Individual
APA: Adjudication
DP: Adjudication
APA: Rulemaking (unless
licensing, which is Adjudication)
DP: Adjudication

Many/Generic
APA: Adjudication
DP: Rulemaking (DPC imposes
no hearing requirements)
APA: Rulemaking
DP: Rulemaking (no hearing)

III.Is it rulemaking? (553; 556-57)

i. Factors favoring rulemaking: affects many; prospective; make general policy38

ii. 553: Formal and Informal Rulemaking
Notice 553(b): must publish proposed rule in Federal Register.
Comment 553(c): agency shall give interested person an opportunity to participate

in the rulemaking through submission of written data, views, or arguments with or

without opportunity for oral presentation
Concise General Statement 553(c): after consideration of relevant matter presented,
the agency shall incorporate in the rules adopted a statement of their basis & purpose.
Good Cause 553(b)(B): agency for good cause finds that notice and public procedure are
impracticable, unnecessary or contrary to the public interest

iii.

Is it formal or informal: if rulemaking, strong rebuttable presumption against hybrid or for

informal unless specifically stated find magic language (Fla. East Coast Railway)

Procedures for Informal Rulemaking (is notice & comment required?)

Substantive
Procedural
Legislative
Yes: Notice & Comment
No: 553(b)(A) ("rules of
(force & effect of law) Required; 553(a), then ask if
agency organization, procedure,
there is a subject-matter
and practice"); see also 553(a)
exception under 553(a)
(2) ("relating to agency
(military, grants,
management or personnel").
Non-legislative:
No: 553(b)(A) ("interpretative
No/No
(1) interpretative rules rules, general statements of
(2) policy statements policy")
Interpretative rule: clarify what the agency thinks the law is
Policy statement: future-oriented, predictive about how agency will enforce.
Procedures for Formal Rulemaking39 (553; 556 & 557; Fla. East Coast Railway)
Was there proper notice?
Was comment period sufficient?40
Did the agency give a proper statement of purpose?41
Can you waive notice/comment?

Does good cause exception apply?42

Merely elaborate old rule (no notice/comment req'd.) or substantive departure?
viii. Were there improper ex-parte contacts?
President, Congress, parties, or public interest43 (Costle; 557(d)(1) ~ formal)
iv.
v.
vi.
vii.

38

See Bi-Metallic Investment Co. v. State Bd. of Equalization of Colorado (1915) (property owners who challenged Denver tax
board's tax on properties were not entitled to oral hearings because it was a rulemaking).
39
See US v. Fla. East Coast Railway Co. (1973) (APA applies only if the statute specifically commands; mention of a hearing not
enough; must say "on the record," after opportunity for etc.)
40
See US v. Nova Scotia Food Products Corp. (2d Cir. 1977) ("when there is scientific data that agency relies on in formulating rule, it
must make available for interested parties," and there must be an opportunity to respond).
41
See Independent U.S. Tanker Owners Committee v. Dole (9th Cir. 1987) (Doles statement of basis and purpose failed to give an
adequate account of how the rule serves statutory objectives, and why alternative measures were rejected in light of them).
42
See 553(b)(B) (stating that an agency may waive comment/notice for good cause, if it incorporates its finding and brief statement
of reasons in the rule that notice/comment are impracticable, unnecessary or contrary to the public interest).
43
See Sierra Club v. Costle (D.C. Cir. 1981) with Vermont Yankee (1974) (in informal RM, NO BAN on private party contacts;
WHITE HOUSE contacts normally permissible unless of "central relevance," then they must be documented and available for judicial
review under an arbitrary and capricious test; for CONGRESS, ex parte contacts allowed unless forces the agency to decided on
impermissible grounds and actually causes the agency to do so).

ix.
x.

IV.

Bias or pre-judgment44
Is it agency non-enforcement of a rule?45
Butis there pattern of non-enforcement? Heckler (J. Brennan, concurring)
Does the action violate constitutional rights?
Is the agency refusing to enforce own rule? (the Accardi doctrine)

Is it adjudication? (554, 556-57)

i. Factors favoring adj: few affected, particularized facts, specific parties.46
ii. 554: Formal Adjudications (with 556-557) ("to be determined on the record after
opportunity for an agency hearing").
iii. 554(c) agency shall give all interested parties opportunity for:

Submission and consideration of facts, arguments, offers of settlement when

time, the nature of the proceeding, and the public interest permit

To the extent parties cant reach a settlement, they get a hearing and decision
on notice and in accordance with 556-57
Procedures for Formal Adjudication
Notice: 554(b)
Present Evidence. Affirmative/impeachment evidence: 556(d)
Cross-examination: 556(d)
Impartial judge: 554(d), 556(d)
Counsel: 555(b) (catch-all)
Argument: 556(d)
On the Recordjudge can only rely on evidence before him: 556(e)
Statement of Decision/Record: 557(c)
Review (appellate process): 557(b)
Public/Jury: no APA right to this
iv. Formal or informal: with adjudication, presume formal unless specifically mentioned
otherwise47 (Seacoast, but see Chem. Waste Mgmt)
v. Does statute say on the record or after hearing? Fla. East Coast Rlwy
vi. Proper statement of decision under 557? Armstrong (substantially correct)
vii. Improper ex-parte contacts? 557(d)(1)(A)
viii. Bias and pre-judgment48
ix. Does action involve federal funds or licenses? Overton Park (if so, its adj.)
Does 555(e) apply? (brief statement of grounds for denial)

44

See Ass'n of Nat'l Adv., Inc v. FTC (D.C. Cir. 1979) (in informal rulemaking, disqualification only if there is a "clear and convincing
showing of an unalterably closed mind); Cinderella Career & Finishing School (D.C. Cir. 1979) (formal rulemaking, disqualified for
prejudice on both facts and law of the matter).
45
See Heckler v. Cheney (1985) (no judicial review of agency non-enforcement).
46
See Londoner v. Denver (1908) (holding that, in adjudication, citizens entitled to notice and opportunity to be heard (oral hearing)
by argument and proof, but not necessarily trial-like hearing).
47
See SeaCoast Anti-Pollution League v. Costle (1st Cir. 1978) (Absence of on the record in laws language was not dispositive,
absent clear Congressional intent that the adjudication not be on the record or informal) but see Chemical Waste Management (D.C.
Cir. 1999) (holding that EPA regulation established procedures for hearings, said informal proceedings proper for corrective actions; it
upheld on theory that Chevron doctrine said court must defer to EPAs meaning of public hearing).
48
See Withrow v. Larkin (1975) (no DP violation for investigator to later judge, such as head of agency); Gibson v. Berryhill (1973)
(financial bias should lead to disqualification); Cinderella Career & Finishing School (D.C. Cir. 1970) (ALJ should be disqualified
when he has prejudiced both the facts AND the law in the case).

IV.
i.

Can court require additional procedure?

Usually not, unless required by one of the following49
Due Process considerations (adjudication only): see discussion below
Organic (creating) statute requires more than APA, or agency regulation
Unjustified departure from procedures or extremely compelling
circumstances50

b. Is it a substantive challenge ["the agency's interpretation is inconsistent with statute or the

agency misapplied the law to my particular facts"]?
I. Is the agency interpretation inconsistent with the statute?51 (Chevron/Mead/Hearst test)
i.
Is the statute clear and unambiguous? (Rust, Mead)
ii. If yes the challenge fails courts will read the statute and resolve "de novo"52
iii. If its ambiguous, ask: is the agency action reasonable?
If yes, defer to agency interpretation (look for an express delegation by gap or
ambiguity). (Chevron)
If ambiguous & lacks force of law (e.g. policy statement), apply Skidmore53 deference
(power to persuade/based on agency expertise).
If it raises constitutional questions, less deference? (Rust)
Is agency interpreting a law it is charged to administer? (if no, dont defer)
II. Does the agency action in rulemaking satisfy State Farm hard look review? (~A&C
standard)54
i.
Rely on irrelevant factors or fail to consider important aspect of problem?
ii.
Offer explanation inconsistent w/ evidence before agency?
iii.
Did the agency rely on post-hoc justifications? Not allowed (Overton Park)
III.Is agency rescinding an old rule? State Farm (courts scrutinize closer)
i.
Were political factors at play? State Farm (Rehnquist concurring) (generally ok)
Formal Adjudication + Informal RM = Chevron deference (Arbitrary & Capricious)
49

See Vermont Yankee v. Natural Resources Defense Council, Inc. (1978) (holding that courts cannot add additional procedure if not
required by the APA).
50
See Vermont Yankee (1978) and the Accardi doctrine (agencies' duties to follow its own rules until modified).
51
See Chevron, USA, Inc. v. Natural Resources Defense Council, Inc. (1984) (holding that unless Congress has directly spoken to the
precise issue in question, courts should defer to agencies on pure questions of statutory interpretation as long as the agency arrived at a
reasonable or permissible construction of the statute); Rust v. Sullivan (1991) (agencys construction of statute may not be disturbed as
abuse of discretion if it reflects a plausible construction of statutes plain language and doesnt otherwise conflict w/ Congress
expressed intent); NLRB v. Hearst Publications (1944) (court reviews agency determinations of pure law de novo. If applying law to
facts, significant deference to agency decision, as long as warrant in record (substantial evidence) and reasonable basis in the law
(arbitrary and capricious); US v. Mead Corp. (2001) (holding that a tariff classification is not entitled to Chevron since Congress did
not intend it to carry the weight of law because it was subject to independent review, no precedential value (1,000s per year), but under
Skidmore, interpretative rules get that deference).
52
See Chevron, USA, Inc. (1984).
53
See Skidmore v. Swift & Co. (1944) (on questions of policy, deference available based on persuasiveness of agency decision);
Christensen v. Harris County (2000) ("interpretations contained in policy statements, agency manuals, and enforcement guidelines).
54
See State Farm Mutual Automotive (1983) ("arbitrary and capricious" gets closer to substantial evidence test; here, the agency did
not consider viable alternatives and failed to respond to each important criticism properly); Tire Retreaders (D.C. Cir. 1974) (if the
agency defaults and does not address the concerns on the record, the court will side with opponent and agency loses; this is to ensure
that agencies have given it reasoned consideration).

Informal Adj. = Skidmore (?)

Agency Interpretative Rule Chevron deference, see Skidmore/Mead55
III. Did the statute or agency action violate separation of powers?
A. Was there a delegation of judicial authority? (Remember to scrutinize more closely than other
delegations).

[Art. III, 1]: "The judicial power of the United States, shall be vested in one Supreme Court,
and in such inferior Courts as Congress may form time to time ordain and establish."

[Art. III, 2]: Scope of Judicial Power

1.

Public Rights: the adjudication of public rights (claims against the government) may
be assigned to administrative agencies.

Since the gov't was generous enough to create these rights, then there is no need for Art.
III court or jury trial.

Basically, if the claim is based on a public right and there is appropriate judicial review
available ("de novo on law" and "substantial evidence on fact"), the use of a non-Art. III court is
almost certainly fine.
2.
Private Rights: the adjudication of private rights disputes (legal disputes between
private parties) in administrative agencies is suspect and may occur only under certain
circumstances.

De novo review for questions of law and questions of jurisdictional facts.

Deferential review for questions of fact: (1) agency function similar to fact-finding juries;
(2) preserves judicial power by not overwhelming courts with cases, while maintaining the
essence of judicial review.56

Basically, if the claim is based on a private right, there must normally be both (1)
adequate pre-enforcement judicial review, and a narrowly-tailored adjudicatory scheme based on
application of federal statutory law to make use of a non-Art. III tribunal acceptable.

Adjudication based on constitutional law, state statutory or state common law needs Art.
III.

Pragmatic test57: (a) particularized area of law; (b) court enforcement; (c) judicial review
[de novo on law; substantial evidence on facts]; (d) freedom to choose Art. III courts.
In general, the Supreme Court polices Congress delegation of judicial power more closely than
Congress delegation of legislative or executive authority.

55

See AMC v. Mine Safety & Health Admin. (D.C. Cir. 1993) (finding that clarifying prior interpretative rule [congressional authority
to define gaps + whether agency meant to use that power] is not legislative rule, but changing positions is).
56
See Crowell v. Benson (1932) (approved the adjudication of a private rights dispute, involving workers' compensation claims by
longshoremen against their employers, by an administrative agency).
57
See CFTC v. Schor (1967) (approving agency adjudication of a small category of common-law claims that were closely related to
the regulation of the businesses of marketing securities); but see Northern Pipeline Construction Co. v. Marathon Pipeline Co. (1982)
(finding that jurisdiction grant to agency court was unconstitutional because it covered a wide-range of common law actions).

10

B. Violation of non-delegation of congressional power? (Whitman)

Delegation: governs Congress' power to excessively relinquish any of its power to

enact legislation through grants of policy-making power to administrators.58

Non-Delegation Principle: Congress may not delegate its broad legislative power to
another branch because a law cannot be made by the body that executes or interprets the law
(violates SOP).

[Art. I, 1]: "All legislative Powers herein granted shall be vested in a Congress
of the U.S."

In early decisions, the Supreme Court insisted that the Constitution forbade
abdication of Congress' monopoly on legislative power, but never invalidated such delegations.59

There are only two cases where the Court has found a violation of the nondelegation doctrine60, and since then, there has been "an apparent futility of nondelegation
challenges to regulatory legislation since Schechter [but it] has not stifled all claims that
Congress has unconstitutionally surrendered its authority and responsibility to set
governmental policy."

In foreign affairs, this doctrine has even less bite.61

Congress may delegate authority sufficient to fulfill its purposes.

Congress can authorize the courts, President, or administrative agency to make rules in areas
specified by and subject to congressionally specified guidelines, or condition legislation upon a
finding of fact by the President or agency (it must guide agency discretion with an intelligible
principle).

Did Congress provide an intelligible principle? To do either validly, Congress must

(1) declare a policy and (2) define the circumstances in which its command is to be effective (3) by
legislative act an intelligible principle to which the person or body authorized to take action is directed
to conform.62

Under non-delegation, "public safety" standard meets the requisite "intelligible principle."

Note that the presence of alternative legal and political safeguards against agency overreaching
may help validate an otherwise questionable delegation. 63

58

See Whitman v. American Trucking Co. (2001) ("whether the statute delegates legislative power is a question for the courts, and an
agency's voluntary self-denial has no bearing upon the answer").
59
See Field v. Clark (1892) (upholding provision of Tariff Act that allowed president to suspend favorable tariff treatment for nations
that imposed "any duties or other exactions which [he] may deem unequal and unreasonable," despite delegation arguments).
60
See A.L.A. Schechter Poultry Co. v. U.S. (1935) (striking provisions of the Nat'l Industrial Recovery Act that allowed President to
approve Codes of Fair Competition because the Act failed to provide criteria beyond statement of congressional policy or contain any
procedural safeguards); Panama Refining Co. v. Ryan (1935) (striking down executive order, issued under NIRA prohibiting
transportation of excess petroleum in interstate and foreign commerce but containing no criteria governing president's action).
61
See Yakus v. U.S. (1944) (upholding Congress' WW II delegation of authority to control rent and price ceilings); U.S. v. CurtissWright Export Corp. (1936) (upheld joint resolution of Congress authorizing the President, on his own findings and decision, to
prohibit sale of arms to Bolivia and Paraguay, who were involved in armed conflict).
62
See Whitman (2001) (allow delegation to agency when EPA is told by Congress to set "primary ambient air quality standards" at
level "requisite to protect public health" with "an adequate margin of safety"); Touby v. U.S. (1991) (upheld a delegation of power to
AG to place a drug on a list of controlled substances, thus creating criminal liability for sale or manufacture of drug, if doing so was
"necessary to avoid an imminent hazard to public safety"); Mistretta v. U.S. (1989) (allowed Congress to establish the U.S. Sentencing
Commission within the judicial branch, to set standards for sentencing, based on morality, justice, fairness, utilitarianism, etc, to come
up with guidelines for crimes); Industrial Union Dept., AFL-CIO v. American Petroleum Institute (1980) (Benzene cases) (upholding
OSHA statute that required the agency to "set the standards which most adequately assure that no employee will suffer any
impairment of health," since there was a threshold finding of a "significant risk" in the workplace).

11

Even if Congress may delegate its authority, the agency or president must establish guidelines
and standards for the court to judge.64 Make sure constitutional, then statutorily allowed.
In Whitman, Congress may give away its power broadly to the President's discretion, but can't
regain its power without the legislative procedure: Bowsher, Chadha
In Franklin v. Mass. (1992), the court held that the President is ordinarily not an "agency"
whose decisions are subject to judicial review under the APA, but it may apply if the President
subordinates his specific administrative authority to another agency OR if it presents a constitutional
question.
Note policy disagreement of allowing Congress to flee from choice on critical issues, not by
postponing action but by adopting ambiguous statutes to allow agencies to balance competing
interest.65

C. Unconstitutional Congressional Control of Administrative Agencies?

1. Did it affect Removal power?

Congress may not participate in the removal of administrative officials, other than impeachment
by the House and conviction by the Senate.66 As such, the courts have held that the President has the
right to remove executive officials at will, subject to congressional limitations.
But, Congress has broad power and discretion to restrict the President's removal power by
imposing "good cause" restrictions on certain administrative officials or assign the authority to
remove to another official under presidential control.67
4 Test Cases
Congressional Mechanism to
The Officers Involved
Control Removal
Myers68 (not okay)
Senate approval req'd for removal
Lower Postmaster (not imp't)
Humphery's Executors69
Statutory, exclusive criteria for Pres. FTC Commissioners
[Independent Agency heads]
Bowsher (not okay)70
House + Senate vote and President
Comp. General
71
Morrison v. Olson
AG may remove w/good cause
Independent Counsel (imp't)

NOTE: Congress may restrict with criteria, but may not reserve a vote (such as Chadha
mechanism, joint resolution, or approval) in removal matters.

63

See Amalgamated Meat Cutters v. Connally (D.D.C. 1971) (rejecting a delegation challenge to Economic Stabilization Act of 1970,
which allowed the President [and "Cost of Living Council" under executive order] "to issue such orders and regulations as he may
deem appropriate stabilize prices, rents, wages and salaries," because there were enough guidelines in the legislative history, which
gave short timelines, allowed judicial review, prior history of price wage control, told president to regulate generally, and created
pricing floor to trigger presidential action to prevent inequities); the Ashwander principle (ambiguous statutes should be construed in a
manner that avoids even arguably unconstitutional interpretations), and "clear statement approach" (which courts use to limit radical
agency action based on broad, unclear delegation).
64
See Yakus v. U.S. (1944); Sun Ray Drive-In Dairy, Inc. v. Oregon Liquor Control Comm'n (Ore. C.A. 1973) (invalidated agency's
decision because "[a] legislative delegation of power in broad statutory language such as the phrase 'demanded by public interest or
convenience' places upon the administrative agency a responsibility to establish standards by which that law is to be applied").
65
Compare Industrial Union Dept. (1980) (J. Rehnquist, dissenting from practice) with Chevron, USA (1984) (J. Stevens).
66
See Bowsher v. Synar (1986) (holding that the Comptroller General, an official subject to removal by joint resolution of Congress
(with presentment) could not exercise executive authority, and thus, could not establish potentially binding spending restrictions under
the Balanced Budget Act).
67
See Morrison v. Olson (1988) (upholding the Independent Counsel Act, under which a prosecutor appointed to investigate alleged
wrongdoing by executive officials could be removed only by the AG and only for cause).
68
See Myers v. US (1925) (holding that Congress may not statutorily require the President to seek the Senate's permission before
removing a local postmaster, an official considered to be performing purely executive functions).
69
See US v. Humphery's Executor (1935) (holding that Congress may require a finding of cause before an official exercising quasilegislative and quasi-judicial power may be removed).
70
See FN above
71
See FN above

12

However, Congress may not limit the president's power to fire someone [presumably
principal officers] if that office is central to function of executive branch, presumably like the
AG or Solicitor General. (Myers, Morrison).

2. Did it affect Appointment power? (Morrison)

[Art. II, 2, Cl. 2]: "[The President] shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint all other Officers of the United States, whose
appointments are not herein otherwise provided for, and which shall be established by law; but
the Congress may by Law vest the Appointment of such Inferior Officers, as they think proper, in
the President alone, in the Courts of Law, or in the Heads of Departments.

The Unitary Executive Theory: holds that the Constitution vests all executive power in
the President, and any attempt by Congress to insulate officials and agencies from complete
presidential control is suspect and probably unconstitutional.

Congress may not appoint or directly participate in appointment of administrative

officials.72

Did it pertain to a principal or inferior officer?

Principal Officers: high-level officials in the executive branch and heads

of independent agencies, often with long tenure or speaking authority. Principal Officers
must be appointed by the President with the advice and consent of the Senate (Morrison).

Inferior Officers: lower-level executive officials beneath the President

who may be appointed by the alternative procedures specified in the clause.73 (Buckley).

Employees: Congress may not appoint lower employees. (Bowsher).

In dicta, the Court argued against incongruous appointments of inferior

officials, such as appointments made across departmental lines, or courts appointing nonlegal personnel.

Congress may limit discretion by a bipartisanship or "learned in the law"

requirement.

Congress may also change appointee's task, but new job must be "germane
to old job."74
3. Members of Congress may not serve as administrative officials

The Incompatibility Clause: Art. I, 6, Cl. 2 forbids members of Congress from

holding an executive appointment during their congressional term.

Separation of Powers doctrine

72

See Buckley v. Valeo (1975) (holding that the Fed. Elec. Comm'n could not engage in executive functions such as rulemaking and
enforcement because 4 of its 6 members where appointed by members of Congress, although it could collect info and make reports).
73
See Morrison (1988) (finding that the independent counsel is an inferior officer, who was appointed by the court of appeals to
investigate executive wrongdoing, and could be removed only by AG and for cause; inferior even though he was not under any
supervision, because of limited scope and duration of prosecutor's appointment, and AG's removal power, AND in footnote 31, the
court found that the FTC Commissioners in Humphery's Executors were principal officers).
74
See Weiss v. U.S.

13

D. Is legislative control of executive branch implicated?

1. Did the action aggrandize the legislative branch? (Chadha, Bowsher, Metropolitan WA Airport)

Congress cannot participate in the execution of the law

OR legislate by a subgroup of Congress without bicameralism/presentment75

OR delegate authority to agency over which it has control (Congress can delegate
boundless discretion to agency over which it has no control, but cant delegate authority to
agency over which it has control).76

AND all legislative vetoes are unconstitutional, as they violate the requirement of
bicameralism and presentment.77

Under legislative vetoes, Congress reserved the power to reject agency action
(usually regulations) with a vote, depending on the particular provision, of both houses of
Congress, by one house of Congress, or in some cases even by a single congressional
committee.

[Art. I, 1]: "All legislative Powers hereby granted shall be vested in a Congress of the United
States, which shall consist of a Senate and House of Representatives."
[Art. I, 7]: "Every bill which shall have passed the House of Representatives and the Senate,
shall, before it become a Law, be presented to the President of the United States."
Bicameralism: Every bill and legislative act must pass both houses and President to become law.
Presentment: Every legislative act must be presented to the President for signature or veto.
A House may not act alone if act is an exercise of legislative power and does not
meet a specific exceptions to presentment or bicameralism: (a) House's impeachment; (b) Senates
power in impeachment trials; (c) Senates power over Presidential appointments; (d) Senates treaty
power
Significance of Chadha: All legislative vetoes are banned. Congress now it must
decide whether to remove agency discretion (thus forcing Congress to become bogged down with
complex and time consuming tasks), or trust agencies to use their discretion wisely (with little
immediate check)

Does it circumvent the presentment or bicameralism clauses? (Clinton v. N.Y.;

2.

Chadha)
75

See Metropolitan Washington Airport Authority (1991) (struck down the board that administers the D.C. airports, which had
members of Congress appointed by Congress).
76
See Bowsher v. Synar (1986).
77
See INS v. Chadha (1983) (struck down a one-house legislative veto unconstitutional; the Immigration and Nationality Act allowed
one congressional house to override a suspension of deportation issued by the Attorney General by resolution).

14

Neither President nor Congress may bi-pass the presentment or bicameralism requirements
for vetoes.78

3.

Did the action encroach upon the Legislative Branch? (Youngstown Sheet & Tube)
The Presidents power to issue an order must either stem from an Act of Congress, an absence
of denial of authority, a duly-enacted treaty or the Constitution. There was no statute in this case

President claims that it is implied in his other powers; in particular the aggregate of his
powers under Article II, 2 as Com. in Chief, "the executive power," "faithfully execute the laws."

JACKSONS CONCURRENCE: This has been very influential. Presidential powers are not
fixed; they are fluctuating depending upon the situation. These powers derive from what Congress has
adopted. The President has more or less power depending upon what Congress has done:
When President acts pursuant to an express act or implied authorization of Congress, this is wholly
permitted. If it is not, that must mean that the government AS A WHOLE is acting improperly. Any
challenges to Presidents actions would carry a heavy burden.
When the President acts in absence of either congressional grant or denial of authority, he can only
rely on own independent powers. There may be concurrent authority here: "zone of twilight." This
requires more scrutiny and his power likely depends on imperatives of event, contemporary
imponderables rather than abstract theories of law, but this is a more flexible test.
When President takes measure incompatible with acts of congress, his power is at lowest ebb: this
must be scrutinized very, very carefully. He must have exclusive constitutional authority to do this:
example = pardon power (this is the case HERE)
4.
Other Forms of Legislative Control:
A. STATUTORY

"Report & Wait Statutes": requires agencies to submit all new rules for legislative review,
stays the implementation date of major rules to give Congress a review opportunity before they are
effective, and establishes special procedures to adopt legislation that would bar an agency from
adopting a regulation.

Generic Procedural Legislation: APA, FOIA, Sunshine Act, Privacy Act (how agencies
behave)

Generic Substantive Legislation: NEPA, Paperwork Reduction Act (must run information
demands by OMB), Regulatory Flexibility Act (consider impact of rules on small businesses)

Overrule specific agency decisions by passing legislation OR subsequent amendments

General Personnel Legislation: who may work and where

Pass specific statutes (but difficult to pass and forecast)

Appropriation riders to reward or punish agencies for their decisions

B. AGENCY STRUCTURE governed by organic or program legislation

Structure and Location:
i.
independent or presidential: absolute/limited presidential removal power;
fixed terms; bipartisanship requirements; tenure/good faith/cause, etc.
ii.
collegial or single-headed: leadership structure
iii.
located within existing department or creating a new one: for example,
whether to place pesticide control under the EPA or Dept. of Agriculture.
iv.
restrictions on sub-delegation
1.
Independent Budgetary Request Authority: usually, agencies
must run through OMB, but certain agencies get direct access to Congress
2.
Independent Litigating Authority: most agencies must be
represented by DOJ, but some agencies may bring suits on their own, whether to sue or defend suits,
in the nation's courts.
3.
Splitting of Roles and Functions within Agency or Among
Agencies
4.
Revolving Door and Ethics Statutes
78

See Clinton v. N.Y. (1998) (invalidating the use of the presidential line-item veto); Chadha (no legislative vetoes).

15

C. NON-STATUTORY

Non-statutory pressure, such as Congressional oversight and hearings (committee reports,

oversight, direct communications with administrators, budgetary analysis)

"Consultation Requirements": these require agencies to report to Congress before they

act, by utilizing the General Accounting Office to investigate agency conduct, and by employing the
Congressional Budgetary Office to consider the economic effects of government programs.

5. Irrebuttable Presumption doctrine: see Vlandis v. Kline (1973) (invalidate a Conn. Statute that required
students at the state University to pay higher tuition rates for out-of-state students whenever their
residence at the time of application was outside the state the student was barred from showing that he
had subsequently moved into the state); U.S. Dept. of Agr. v. Murry (1973) (holding that it is irrational
to assume that a child is not indigent this year because the parent declared the child as a dependent in his
tax return from prior years; it rests on an irrebuttable presumption often contrary to fact, especially
without process, hearing, finding of fact).

IV. Did the agency action violate Ps procedural due process rights?

DP governs whether an agency is required to provide a hearing and, if so, what process is required at
a hearing. Once it is determined that a hearing is required, federal due process standards govern.
A. Step One: Is this an adjudication? (Bi-Metallic v. Londoner)
B. Step Two: Is there a protected liberty or property right?
1. Property interest?
a. Look to independent sources, such as statutes or state common law.
b. Must have legit claim of entitlement.
I.
A party has property interest in gov't benefit, license or job if that law creates
an entitlement by prescribing criteria under which benefit, license or job will or won't be
granted.79
Must be substantive and not procedural protections.
For example, government employees at will have no claim for a hearing, but employees
terminable only upon "good cause" do.
II.
Does administrative scheme give much discretion to agency? If so, not strong
entitlement.
79

See Goldberg v. Kelly (1970) (holding that welfare benefits could not be terminated without first holding a hearing to determine the
recipient's continued eligibility because statute created an entitlement to benefits); compare Bd. of Regents v. Roth (1972) (applying
"positive law test" to find that there was no property interest in continued employment as professor because there was nothing in state
law or contract that constrained the government's decision whether to hire beyond initial contract period) with Perry v. Sinderman
(1972) (holding that professor had property interest in tenureship because although his contract did not explicit create an entitlement,
there was an implicit entitlement found in faculty handbook, campus practices, and other assurances that employment would continue
based on "satisfactory performance," and thus a hearing was needed to determine if he was satisfactory).

16

2. Liberty interest? (liberty from bodily harm or restraint; generally, stigma not enough)
a. Look to Constitution, Supreme Court cases,80 and positive law.81
C. Step Three: How much process is due? (Mathews v. Eldridge (1976) Balancing Test)

Here, the court has rejected the "bitter with the sweet" doctrine and will determine independently
how much process is due.82

Core DP requirements are:

1.
Notice: advance notice of the issue, time and place of hearing
2.
Oral hearing, testimony, and argument before action (usually more important than after)
3.
Right to counsel
4.
Right to confront the evidence
5.
Right to neutral decision-maker
1. The strength of the private interests.83
2. Risk of error and likelihood of gain if additional safeguards given.84
3. Government interest in summary adjudication (fiscal and administrative concerns).

80

See Ingraham v. Wright (1977) (corporal punishment deprives paddled students of liberty); Parham v. J.R. (1978) (being confined
and label "mentally ill" infringes on a liberty interest).
81
See Bd. of Pardons v. Allen (1987) (liberty interest exists when statute specifies that parole board "shall" grant parole under
specified conditions); but see Paul v. Davis (1976) (held that reputation alone does not implicate any "liberty" or "property" interests
sufficient to invoke the procedural protection of the due process clause); Sandin v. Conner (1995) (in prison contexts, due process and
liberty claims apply only when the deprivation of liberty imposed on prisoners entails pronounced and atypical hardship for prisoner).
82
See Cleveland Bd. of Ed. v. Loudermill (1985) (rejecting that a statute can limit the procedure used on the entitlement).
83
Compare Goldberg (1970) (grievous loss; terminate welfare and livelihood); Londoner (1908) (requiring oral arguments and
hearings); and Loudermill (1985) (strong private interest in continued government employment, so they deserve a pre-termination
hearing) with Mathews (1976) (disability).
84
Compare Goldberg (1970) (oral hearing b/c of uneducated recipients and social workers) with Mathews (likely to have lawyers, and
medical nature of evidence meant less chance for error).

17