Background

I. Introduction
a. Agency Defined i. APA 551 1. Each authority of the US government, excluding a. Congress b. Federal courts c. DC/territorial governments d. Military authority, courts martial, military commissions 2. This is applicable in most administrative-law contexts 3. Authority a. Any officer or board, whether within another agency or not, which by law has authority to take final and binding action with or without appeal to some superior administrative authority (APA legislative history) b. E.g., DOJ and sub-units of DOJ (Antitrust Division; Solicitor Generals Office; FBI); cabinet-level officers (AG; Secretary of Labor) 4. In shorta unit of the US govt is an agency for APA purposes if its sufficiently important to be called an agency 5. President is not an agency for APA purposes. Franklin v. Mass (1992). ii. Constitutional Limits 1. Amtrak statute saying its not an agency doesnt count for constitutional issues dependent on whether its a state actor (successful 1A challenge). Lebron v. Natl RR Passenger Corp. Agency Structure i. Executive Agency 1. Agency head subject to unlimited presidential removal authority 2. Almost all single-headed agencies a. All Cabinet-level agencies are single-headed ii. Independent Agency 1. Agency head NOT removable at will by President 2. All the major multi-member boards and commissions a. most of the alphabet soup agencies that broadly regulate economic activity are multi-member boards or commissions Agency FunctionsRulemaking vs. Adjudication i. Agencies affect the rights and obligations of people through rulemaking and adjudication (binding agency action) ii. Rulemaking 1. General/abstract 2. Prospective 3. No application until it takes effect 4. Affects large numbers of people 5. Focuses on the substance of the matter iii. Adjudication 1. Specific 2. Retrospective 3. Applies norm to specific facts 4. Affects individual or small # of people 5. Deals with enforcement and application iv. Constitutional Review 1. Procedural due process is required for adjudication but not rulemaking. Londoner; Bi-Metallic.

b.

c.

II.

Theories of Agency Behavior

a. b.

2. Rulemaking procedural requirements = APA. v. APA 551 1. Rulemaking a. Rulefuture effect to make or implement law, can be general or specific 2. Adjudication a. Orderfinal disposition in a matter other than rulemaking 3. BUT Yesler (CA9 1994)court applied general vs. specific distinction despite text of APA

c.

d.

e.

First 100 years: 1789 1880 i. No Administrative State ii. Founders were mistrustful of government power Progressive Era: 1880 1930 i. Goal: good administrative government ii. Worried about large corporations and monopoly power iii. Created: ICC, FDA, FTC, Federal Reserve iv. Agencies are independent, expert, commission-based, etc. (legal realism) v. Limited judicial review New Deal: 1930 1968 i. APA (1946)creates checks (constitutional checks had about disappeared) ii. Created: SEC, FCC, NLRB iii. Agencies should solve problems; the law is generally not relevant iv. Pragmatism: experimentalism is good; there is no single, deductive truth; whats important is what works v. Shouldnt take separation of powers too seriously Capture Theory: 1968 1978 i. Agencies become pawns of industrywill always be captured by industry 1. Industry can monitor agencies much more effectively than normal people; collective action problem; public choice theory (self-interestedness: agencies dont want to be haled into court, so they take into account the regulated industrys perspective) ii. Created: EPA, OSHA, NHTSA, FOIA iii. Nader movementpublic interestwant agencies but dont trust them, so we want increased judicial review. Modern Era: 1978 present i. Move toward deregulation ii. Distrust of all political institutions (including courts) iii. Pluralist thinking: there are competing interest groups, its not that bad

The Constitution and the Administrative State

I. Separation of Powers
a. Formalism vs. Functionalism i. Formalism 1. Constitutional separation-of-powers provisions are important 2. Reason from premises to conclusions to determine constitutionality of statute 3. Theres some legislative-executive-judicial overlap, but we can draw lines 4. More judicial policing of Constitutioncourts should enforce boundaries 5. Administrative state and much of todays government would be unconstitutional under a strict formalism ii. Functionalism 1. Focus on practical governance needs

2. 3.

4.

II.

Delegation and Article I

a.

Assumes modern practices are constitutional until proven otherwise Each branch serves fundamental core functions, but otherwise believes the boundaries of the branches power are fuzzy and that any branch can perform functions of any other branch even where those functions do not so clearly overlap a. Courts should enforce only the separation of the most core functions Basic postulates: a. Few limits on congressional power b. Few limits on ability of Congress to delegate that near-limitless power to other actors c. Reluctant to draw any substantive lines among legislative, executive, and judicial powers d. Its OK to insulate government actors from political influence e. Governmental functions can be combined in one institution

b.

Art. I: all legislative power is with the Congress i. FunctionalistCongress can grant (revocable, modifiable) authority to President to do certain things ii. Formalisttheres a line, legislative power cant be delegated to executive Non-Delegation Doctrine i. Nondelegation doctrine holds that Congress cant delegate its legislative authority to the executive, judicial, or private actors ii. Early cases 1. Unconstitutional Delegation a. National Industrial Recovery Act is an unconstitutional delegation of legislative authority (only statute Courts held this about) i. Maybe importantAct delegated authority to private parties b. Panama Refining (1935)this delegation goes too far and exceeds constitutional limits because Congress: i. Declared no policy ii. Established no standard iii. Laid down no rule iv. Created no definition of circumstances and conditions to allow or disallow the transportation c. Schechter Poultry (1935)just seems like it went too far again i. Problem = virtually unfettered discretion of the Presidentno standards for trade industries/activities, didnt create rules, general principles were very broad iii. Modern testintelligible principle 1. Bottom line: a. Congress has very broad, open-ended authority to delegate b. Delegation to a private body prob. not okay 2. J.W. Hampton (1928)President can alter the amount of a duty to imported merchandise to equalize costs of production (still cited as good law) a. If a statute articulates an INTELLIGIBLE PRINCIPLE to which the person or body authorized to act is directed to conform, the legislation is not a forbidden delegation b. Amount of discretion Congress can give President must be determined according to common sense and the inherent necessities of the governmental coordination 3. Mistretta v. US (1989)Sentencing Guidelines promulgated by Sentencing Commission upheld as constitutional

c.

Intelligible principle guiding Commissions creation of Guidelines, so not unconstitutional (actually have a bunch of criteria here, underlying policies, specific directives for specific situations, etc.) b. Should apply canon of constitutional doubt in construing statutes c. Stands for the proposition that nondelegation doctrine is effectively nonjusticiable (except maybe in very extreme circumstances) 4. American Trucking v. EPA (2001)Clean Air Act upheld a. Requisite is enough of a standard for air quality because it means sufficient but no more than necessaryCongress doesnt have to give determinate standards b. Agencys interpretation of delegation is irrelevantits either an intelligible principle granting authority to agency or its not c. Scalia/majoritysome discretion, i.e. lawmaking, inheres in most executive (or judicial) action d. Stevens/dissentwould abandon the fiction that agency rulemaking is executive (rather than legislative) power under the Constitution Controlling Delegations i. Allocation of $$if agency doesnt have any money, it cant do anything ii. Statutory overridechange the law to overrule specific agency action, or amend organic statute to eliminate agency discretion or even eliminate agency altogether 1. Constitutionality not in doubt generally, but bicameralism and presentment constraints make it hard to get stuff done iii. Legislative vetogive agency discretion thats conditional on subsequent approval or lack of disapproval by Congress, either House, or a legislative committeeNOT ALLOWED 1. INS v. Chadha (1983)unicameral veto (of AGs discretionary decision not to deport deportable person) held unconstitutional a. Legislative action to be exercised in accord with a single, finely wrought and exhaustively considered, procedure, i.e. bicameralism and presentment b. Presentment protects executive branch from Congress and the whole people from improvident laws c. Bicameralism assures an opportunity for full study and debate in separate settings d. Supermajority override of presidential veto prevents final arbitrary action by one person e. Action by House here was exercise of legislative power because it had the purpose and effect of altering the legal rights, duties, and relations of people outside the legislative branch (Chadha, AG, INS officials) 2. Bicameral legislative veto is also invalid. Consumer Energy Council of Am. (1983). Appointments Clause (art. II, 2, cl. 2) i. Presidential appointment subject to advice and consent of the Senate for officers of the US for principal officers 1. Specifically includes ambassadors, SCOTUS Justices, public ministers and consuls, as well as all other officers who arent inferior officers ii. Congress may by law vest the appointment of inferior officers, as they think proper, in the President, the Courts of Law, or the Heads of Departments Officer vs. Non-Officer i. Buckley v. Valeo (1976)members of Federal Election Commission are officers

a.

III.

Article IIAppointment Power

a.

b.

c.

Any appointee exercising significant authority pursuant to the laws of the US is an officer 2. Employees are lesser functionaries subordinate to officers 3. Implied limitation of Appointments ClauseCongress may not appoint officers itself 4. Commissioners a. Investigative powers that Congress could delegate to one of its own committees are okay b. Administrative functions make them officers i. Administration and enforcement of public law ii. Performance of significant governmental duty exercised pursuant to public law iii. Discretionary power to seek judicial relief ii. Freytag (1991)special trial judges (tax court) are officers 1. Tax Court = Art. I court 2. Special trial judges (STJs) magistratesassist regular tax ct judges, hear cases, sometimes render decisions a. Bottom line: they do more than perform ministerial tasks iii. Landry v. FDIC (CA-DC 2000)ALJ who conducts formal hearing is not an officer 1. Like Freytag STJsoffice/duties/etc. established by law; exercise significant discretion; conduct trials and enforce compliance w/ discovery orders 2. Bottom lineunlike Freytag, no power of final decision in certain (any) classes of cases 3. DISSENTpower to render final decisions was an alternative holding in FreytagALJs perform functions essentially like magistrates and thus are inferior officersan ALJ is functionally comparable to a judge Principal vs. Inferior Officer i. Morrison v. Olson (1988)Independent Counsel (appointed to investigate and potentially prosecute high-ranking government officials for violations of federal criminal law) is an inferior officer 1. Line between inferior and principal officers isnt clear, but independent counsel (IC) clearly falls on the inferior side of that line 2. Four factors in this case a. Subject to removal by higher executive branch official i. May be removed by AG for good cause b. Empowered by Act only to perform certain, limited duties i. All investigative/prosecutorial functions of DOJ, BUT 1. No authority to formulate policy for govt or exec. branch 2. No administrative duties outside of those necessary to operate her office c. Office is limited in jurisdiction i. Only certain fed. officials suspected of certain serious fed. crimes ii. Can only act w/in scope of jurisdiction granted by Special Division (a special court) pursuant to AGs request d. Office is limited in tenure i. No time limit, BUT ii. Temporaryoffice is terminated when single task for which IC is appointed is accomplished (either by herself or by action of Special Division)no ongoing responsibilities beyond accomplishment of mission she was appointed and authorized for

1.

d.

e.

SCALIA DISSENTif not subordinate to a principal officer, then a principal officer (necessary but not sufficient condition for inferior-officer status) ii. Edmond v. US (1997)members of Coast Guard Ct Crim App = inferior officers 1. Not limited in tenure/jurisdiction under Morrison, but thats not a definitive test 2. TEST: inferior status depends on whether officer has a superior a. Clause is designed to preserve political accountability for important govt assignments b. Inferior officers are officers whose work is directed and supervised at some level by principal officers 3. JAG exercises admin oversight over Ct Crim App 4. Power to removeimportantJAG may remove from judicial assignment w/o cause 5. No final decisionsCt App for Armed Forces has review & reversal power 6. SOUTER/CONCURshould look at powers/duties in light of the constitutional scheme a. No single sufficient conditionhaving a superior officer is necessary for inferior officer status, but not sufficient to establish it Appointing Inferior OfficersBy Whom i. Congresss Choice 1. Congress has significant discretion b/c of as they think proper language. Morrison. a. But not unlimited i. Separation-of-powers concernsif provisions for appointment had potential to impair constitutional functions assigned to one of the branches ii. Incongruityvesting appointment power in the courts might be improper if there were incongruity between the functions normally performed by the courts and the performance of their duty to appoint ii. Heads of Departments 1. Doesnt include Speaker of the House or President pro tempore of the Senate. Buckley v. Valeo. a. NOT Congress or its officers b. Departments in, or at least having some connection with, the executive branch 2. Departments in the executive branch and created by Congress (and maybe have to be given the name of a department). Freytag. a. Does not include inferior commissioners and bureau officers b. Does include executive divisions like the cabinet-level departments c. Chief Judge of Tax Court head of dept (but = ct of law) iii. Courts of Law 1. FreytagChief Judge of Tax Court = court of law a. Not limited to Art. III courts (Tax Ct. is Art. III ct.) b. TEST: exercise of judicial power of the USit interprets and applies IRC in disputes b/w taxpayers and US govt c. Congress has wide discretion to assign the task of adjudication in cases arising under federal law to legislative tribunals d. SCALIA/DISSENTArt. III cts only i. Look at identity of officerthis is executive, so a head of a department Circumvention: congressional expansion of a previously appointed officers duties i. Weiss v. US (1994)additional appointment not necessary for military officers (already appointed to that role) to carry out duties of military judges

3.

1. 2.

Concern: congressional circumvention of the Appointments Clause by unilaterally appointing an incumbent (particular individual) to a new and distinct office TEST: are the additional duties germane to the offices already held by them? a. MAJORITYmight only be applicable if it looks like Congress is trying to appoint the officer, i.e. if Congress is aggrandizing b. SCALIA/CONCURconcern not just aggrandizementCongress cant lodge appointment power outside of President, heads of departments, or courts of law (JAGs dont fit, but finds germaneness)

IV.

Article IIRemoval Power

a.

b.

c.

d.

TextNo Removal Clause i. 4 possible text-based theories: 1. Only impeachmentits the only mode of removal of executive officers specifically mentioned in the text 2. Executive functionPresident has the executive power 3. Follow the mode of appointment 4. Congress can do whatever it wantsNecessary and Proper Clause Unitary Executiveall executive power vested in President, not executive dept i. President must have supervisory authority over all discretionary decisions vested by statute in executive officialsCongress cant vest executive power in subordinate executive officials ii. This is probably rejected by Morrison iii. Question: Vesting Clause, or the more specific (very limited) enumerations in Art. II, 2, 3? iv. Not just removalcould be important on whether President can personally make discretionary decisions vested in subordinates by statute Early law i. Decision of 1789implicit legislative endorsement of a presidential power to remove executive officials (debate in 1st Congress) ii. Myers (1926)Constitution creates a presidential removal power 1. At least heads of departments and bureaus (and maybe most important executive officials) subject to unlimited presidential removal power iii. Humphreys Executor (1935)Congress can limit Presidents ability to remove FTC commissioners 1. Congress was trying to create a non-partisan agency, which has to be free from political dominationthis upholds independent agencies 2. Distinguishes Myers a. Postmaster was a purely/exclusively executive position b. FTC is quasi-legislative, quasi-judicial body, and is not purely executive iv. Wiener (1958)statute creating War Claims Commission was silent; Court finds it implied that President can only remove for cause (b/c Commission acts like Art. I tribunal, providing adjudicatory-type function) v. Bowsher v. Synar (1986)Office of the Comptroller General case 1. Congress cant reserve for itself removal power over executive officials beyond its constitutional impeachment power 2. Expressly does not say anything about presidential removal power Modern law i. Morrison v. OlsonAG removal of independent counsel only for cause upheld 1. Do NOT ask whether executive can be classified as purely executive 2. TEST: do removal restrictions impede Presidents ability to perform his constitutional duty? a. Art. II responsibilities: (1) exercise the executive power; (2) take care that the laws be faithfully executed

3.

4. 5.

V.

Article IIIAgency Adjudication

a. b.

b. Analyze functions of the officials in light of this question Bottom line: Presidents need to control ICs discretion isnt so central to the functioning of the executive branch to constitutionally require that she be terminable at willAGs ability to terminate for good cause is enough to ensure that IC is competently performing her statutory responsibilities in accordance w/ the Act Dictum: maybe closer scrutiny if it looks like congressional usurpation of executive branch functions, e.g. Bowsher. Effective TWO-PART TEST: a. (1) What was Congresss intent? We dont like congressional aggrandizement. b. (2) Does it interfere w/ core functions of executive?

c.

d.

e.

Agencies have been upheld under the Constitution to perform adjudication Background: through Northern Pipelinehistorical recognition of 3 types of courts in which Congress could vest part of the judicial power of the United States i. Territorial courts ii. Military courts iii. Courts adjudicating disputes involving public rights 1. This is ORDINARY agency adjudicationthe difference in Schor is that its litigation of a private right as between individuals (counterclaim), and thats what Brennan has such a problem with 2. Rationale: sovereign immunitygovt is creating rights where otherwise youd have none CFTC v. Schor (1986)upholds Commissions jurisdiction over common-law counterclaims (here: contract) involving private rights between individuals i. 1st step: statutory interpretation ii. 2nd step: constitutional issue 1. Is it really interfering with essential attributes of judicial power? Is it impermissibly threatening the integrity of the judicial branch? a. BALANCING TEST3 factors i. Is it a power normally vested in Art III cts? ii. How important is the right being adjudicated? iii. Does Congress have valid concerns? iii. Important to the Court: 1. Narrowancillary claims onlyincidental and tied to the claim created by federal law, part of the same transaction or occurrence 2. Art III availabilitylitigant voluntarily brought it before ALJ and could have brought it in Art III court, and theres Art III review 3. ADR is good, we need prompt resolution thats cost-effective 4. Congress isnt trying to usurp power; intrusion on the judicial branch is de minimis 7A Jury TrialAtlas Roofing Co. v. OSHRC (1977) i. Where govt sues to enforce public rights and levies civil penalties (even thousands or millions of dollars), no 7A jury right if adjudicated in agency rather than federal court ii. Criminal penaltyDOJ has to prosecute in Art III court, get jury etc. Due ProcessWithrow v. Larkin (1975) i. DP requires a fair trial and forbids a biased decision makerapplicable to agency adjudication 1. Biasadjudicators pecuniary interest in the outcome, or having been target of personal abuse by litigant, creates constitutionally intolerable probability of bias

Will normally only be found with very strong evidence that agency adjudicator has prejudged both the facts and law of a particular case 2. Fair trialstructure does not itself violate procedural due processBoard may act as both investigative and adjudicative body ii. TESTwould what happened foreclose fair and effective consideration at the adversary hearing of what was developed from nonadversarial processes? 1. Presumptionthese individuals are acting fairly and independently

a.

Statutory Constraints on Agency Procedure

I. Intro: Administrative Procedure Act
a. b. Rulemaking i. Informal: 553 ii. Formal: 556, 557 Adjudication i. Informal: due process floor ii. Formal: 556, 557 + some procedures required by 554 US v. Florida East Coast Ry. (FECR) (1973)organic statutes after hearing language does not trigger formal adjudication i. Court says statutory language other than on the record can trigger formal rulemaking requirements if it carries that meaning, but this is a high bar that has NEVER been met Basically, magic words = on the record i. Very few statutes require this ii. Full hearing and full opportunity for hearing held insufficient to trigger formal rulemaking by DC Circuit iii. No court after FECR has found formal rulemaking required absent phrase on the record No SCOTUS case deciding what triggers formal adjudication US Lines, Inc. v. FMC (CA-DC 1978)apply FECR for adjudication as well i. No longer good law (at least in D.C. Circuit) City of West Chicago v. NRC (CA7 1983)Atomic Energy Acts hearing requirement is satisfied by an informal hearing (pre-Chevron) i. Absent magic words on the record, Congress must clearly indicate its intent to trigger formal hearing provisions of APA ii. No formal hearing required under NRCs own regulations; defer to administrative interpretation unless plainly erroneous or inconsistent with the regulation (Seminole Rock) Seacoast Anti-Pollution League v. Costle (CA1 1978)adjudicatory hearing subject to judicial review requires on-the-record hearing (pre-Chevron) i. Subject to rebuttal by evidence of contrary congressional intent, presume that organic statute requiring a hearing triggers formal adjudication 1. Adversarial hearings help guarantee both reasoned decision making and meaningful judicial review; require decision on basis of evidence adduced at hearing 2. Rulemakinghearing allows opportunity for expression of views ii. Overruled in 2006no longer good law in 1st Circuitcould still be good law, or persuasive authority, in some other circuit Chemical Waste Management v. EPA (CA-DC 1989)informal hearing okay for RCRAs hearing requirement i. Chevron deference

II.

Formal Rulemaking
a.

b.

III.

Formal Adjudication
a. b. c.

d.

e.

IV.

Informal Rulemaking
a.

1. 2.

Public hearing is ambiguous as to formal or informal hearing Defer to agency regulationpermissible construction of organic statute

b.

c. d.

APA 553minimal requirements for informal rulemaking i. Notice (time, place, nature of proceedings; statutory basis of authority; description of subject with which rule is concerned) ii. Comment (written comments or written comments + oral hearing) iii. Concise general statement (basis and purpose of rule) iv. 30 days from publication to when it takes effect Hybrid RulemakingDC Circuits judge-made test (liberal judicial activism) i. Noticestill good law 1. Need public to really know what its about so the comment section can be meaningful 2. Whats the basis of agencys thinking? Methodology? Etc. 3. This lets those who might be affected by it hire their own experts and contest stuff ii. Rulemaking proceedingoverruled, VT Yankee 1. Want to ensure agencies actually look at hearing, take in what participants think 2. Oral presentation might be required iii. Statement of basis and purposestill good law 1. We want a full record to review the basis for decision in order to conduct judicial review 2. Basically required to respond to all comments 3. Why they chose the rule they chose Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council (1978) i. Holding: cant require more procedure in the comment section ii. Dicta: courts cant require procedural devices beyond the 553 textual minima Post-VT Yankee developments i. VT Yankee limited to its holding w/r/t comment procedure 1. Hybrid rulemaking requirements for notice of proposed rulemaking and statement of basis and purpose are still good law ii. Key concepts 1. We want meaningful participation and a final rule based on public deliberation 2. We want meaningful judicial review to be possible iii. Connecticut Light & Power v. NRC (CA-DC 1982)NRC creates rules for more fire protection in nuclear power plants 1. Noticetechnical basis disclosure a. Studies werent mentioned in original notice, but due to context the technical background was sufficiently identified (barely) to allow for meaningful comment in the rulemaking process b. Must reveal portions of the technical basis for a proposed rule in time to allow for meaningful commentary. 2. Re-noticing: Differences between proposed system and system ultimately adopted a. Test: logical outgrowth (on notice of basic issues involved) b. Practical impact of new rules is close enough to that originally proposed that interested parties did have a chance to comment on the rules in their altered form. We dont want a perpetual exercise of never making improved rules. c. Again this is close, but the final rule isnt so far away from the postulated hazards that a new notice is required

10

e.

f.

g.

Agency must re-notice when the changes are so major that the original notice did not adequately frame the subjects for discussion. 3. Statement of basis and purposejustification for the final rules a. It needs to sufficiently indicate the agencys reasons for the rules selected so the court doesnt have to rummage through the record to piece together its own rationale b. Exemption procedure is apparently important here in allowing it to skate by iv. United Mine Workers (CA-DC 2005)notice requirements: 3 purposes: 1. Ensure that agency regulations are tested via exposure to diverse public comment 2. Ensure fairness to affected parties 3. Give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review Notice of Proposed Rulemaking3 forms of common challenges: i. Failure to disclose all the relevant data that animated agencys thinking 1. Failed to disclose important info in its possession when it issued its notice of proposed rulemaking 2. Challenge based on what agency knew when it issued its final ruledecision based in part on newly acquired information a. Did it reject or modify the hypothesis? b. Extent of reliance on extra-record materialssupply basic assumptions? Supplementary (clarify/expand/amend other data offered for comment) vs. primary evidence? ii. Final rule concerns subject not adequately flagged by notice 1. Cant give notice that considering A, B, and C, then adopt rule concerning D 2. Public must be made aware of the agencys proposals iii. Rules covering same essential subject matter but differing from initially proposed rule in substance and details 1. Courts try to stake out middle ground (CT Light & Power): logical outgrowth okay, but if it departs too drastically a new notice and new comment period are required Statement of Basis and Purposeagencys justification for its rule i. Procedural inadequacy 1. Might really mean that agency failed to adequately explain its decision on the merits 2. Agency doesnt need to respond to every comment, but must respond in a reasoned manner to those that raise significant problems 3. Must respond to comments which, if true, would require a change in the proposed rule ii. Statement refers to materials not specifically disclosed in notice 1. Courts are reluctant to order new notice and comment for this 2. We want agency to respond to comments made in the public-comment period Exemptions from Rulemaking Procedures i. APA 553says its provisions dont apply to: 1. 553(a)subject-matter exemption a. Rules w/r/t military or foreign affairs b. Relating to agency management or personnel or to public property, loans, grants, benefits, or contracts 2. 553(b)(3)(A)character exception a. Interpretive rules b. General statements of policy

d.

11

Procedural rules (rules of agency organization, procedure, or practice) i. Still have to give 30 days. 553(d). d. Good cause ii. Procedural Rules 1. No SCOTUS precedent 2. Air Transport Assn of Am. v. DOT (CA-DC 1990)vacated as moot; nonprecedential (majority + dissent = persuasive authority) a. MAJORITYdoes it involve important substantive values or effects? i. Does it substantially affect the rights or interests of regulated parties? ii. Does it encode a substantive value judgment? b. DISSENTprimary conduct test i. Substantive rules regulate primary conduct; procedural rules are furthest away from that ii. Partys interest in the agencys adjudicatory procedures isnt necessarily a substantive right 3. JEM Broadcasting v. FCC (CA-DC 1994)rules calling for rejection w/o opportunity for amendment of any broadcast license app that didnt unambiguously contain all information fall w/in procedural exception a. Disavows the Air Transport value judgment rationale, at least in its broadest form b. Agency housekeeping rules often embody a judgment about what mechanics and processes are most efficient. This is too broad to use for a substance/procedure test. iii. Interpretive Rules and Policy Statements 1. 4 tests for distinguishing from legislative/substantive rules: a. Legal-effects testIf the rule creates a binding norm on regulated parties, it is substantive; otherwise it is interpretive i. If a rule is substantive under this test, it WILL be considered substantive by ALL COURTS. But a rule not substantive under this test could still be found substantive under another test. b. Substantial-impact testSubstantial impact on regulated parties i. INVALID after VT Yankee c. Impact-on-the-agency testRequires considerable experience w/ agencys application of rule before you can say its actually substantive d. American Mining testsee below 2. American Mining v. Mine Safety & Health Admin. (CA-DC 1993)policy letters saying certain x-ray readings qualify as diagnoses w/in meaning of agency reporting regulations are interpretive rules a. Focus on whether agency needs to exercise legislative power b. Does rule have a legal effect? (If yes, rule = legislative) i. Adequate legislative basis for enforcement action (or other agency action to confer benefits or ensure performance of duties) in the absence of the rule? ii. Rule published in CFR? iii. Agency explicitly invoked its general legislative authority? iv. Amend a prior legislative rule? 1. Not an amendment just b/c it supplies crisper and more detailed lines than the authority being interpreted c. Interpretive rules vs. general statements of policy

c.

12

i. Interpretive rules advise the public of the agencys construction of the statutes and rules it administers ii. Policy statements advise the public prospectively of the manner in which agency proposes to exercise a discretionary power 1. i.e. articulate rather than apply a legal norm 3. Interpretation of substantive regulation is probably substantive if it effects a fundamental change in agencys interpretation of the substantive regulation iv. Good Cause 1. 553(b)(3)(B)agency for good cause finds (and explains) that notice and public procedure are impracticable, unnecessary, or contrary to the public interest 2. Tenn. Gas Pipeline Co. v. FERC (CA-DC 1992)vacates interim rule requiring advance notice/disclosure of construction/replacement of pipeline facilities a. Good-cause exception is not an escape clause to be arbitrarily used at agencys whim, but should be narrowly construed and only reluctantly countenanced b. Exception should be limited to emergency situations c. Grounds justifying agency use of the exception should be incorporated w/in the published rule d. Interim status of challenged rule i. Significant factor ii. Scope: the less expansive, the less need for public comment iii. BUT no matter how limited, agency MUST OFFER EVIDENCE or indicate the basis for its prediction beyond merely asserting its expertise

V.

Informal Adjudication
a. b.

c.

VI.

Choosing Between Rulemaking and Adjudication: Chenery

a.

APA textno procedural constraints Citizens to Preserve Overton Park v. Volpe (1971) highway through park; judicial review based solely on litigation affidavits is inadequate i. Reviewing court has to engage in substantial inquirymust find: 1. Decision was based on a consideration of the relevant factors; and 2. There was not a clear error of judgment ii. Review must be based on the full administrative record that was before the Secretary at the time he made his decision iii. Litigation affidavits alone inadequate for two reasons: 1. Post hoc rationalizations = inadequate basis for review 2. Not the whole record Pension Benefit Guaranty Corp.(PBGC) v. LTV (1990)decision to restore pension plans i. Courts are not free to impose upon agencies specific procedural requirements that have no basis in the APA. VT Yankee. ii. 706(2)(A) imposes a general procedural requirement that an agency must take steps necessary to provide an explanation that will enable the court to evaluate the agencys rationale at the time of decision. Overton Park. iii. Only specific procedural requirements in APA for informal adjudication are in 555 (you can bring your lawyer if you have to appear before agency; you can get an agency subpoena upon request) iv. APA does not create rights to be part of the decision-making process v. Due Process Clause may require certain procedures SEC v. Chenery (Chenery I) (1943) i. Chenery I Principle: A reviewing court must judge agency action solely on the grounds specifically relied upon by the agency.

13

b.

1. The court cannot accept post-hoc rationalizations for agency action. 2. Judge agency action based on what it did, not what it might have done. ii. Facts/analysisSEC made its determination based on judge-made rules (expressly limited order to that extentlegal interpretation of what fair and equitable means), and that did not support its decision. Chenery II (1947) i. Chenery I just means that a reviewing court must judge agency action solely by the grounds invoked by the agency in making its decision. 1. Corollaries a. Usual remedy is to remand back to the agency for further consideration rather than to reverse outright. b. Rationale for agencys decision must be clear enough to be understandable so courts can decide whether those reasons are adequate. ii. Facts/analysisSEC did exact same thing, but this time said it was acting on the basis of administrative expertise, which is okay iii. The agency can choose between rulemaking and adjudication for creating a new standard. 1. Rationale: admin process needs to be flexible, not everything should always be immediately cast into a rule 2. Rulemaking might provide better notice and wouldnt be retroactive, but too bad. Agency has discretion.

Scope of Judicial Review of Agency Actions

I. Introduction: Standards of Review
a. Doctrinal Approach vs. Legal Process Approach i. Doctrinal approachhas basically won out ii. Legal process approach 1. a.k.a. institutional competence approach 2. Ask directly which body is best suited to making the decision under review 3. Largely coextensive with the doctrinal approach Continuum in normal litigation: de novo clearly erroneous abuse of discretion jury standard (jury fact-finding) i. Agency review any of these APA 706(2)(E)only set aside agency findings unsupported by substantial evidence Universal Camera v. NLRB (1951)review of formal adjudication i. What does substantial evidence mean? 1. Less deferential than jury standard; more deferential than FRCP 52(a)s clearly erroneous standard 2. More than a mere scintillarequires such relevant evidence as a reasonable mind might accept as adequate to support a conclusion 3. Enough to justify refusal to direct a verdict on a question of fact for the jury (in a jury trial) ii. Courts must consider the whole record 1. Have to consider the whole record, not just the evidence in the record that could support the decision 2. Must consider ALJs findings. Evidence supporting Boards conclusion may be less substantial when ALJ and agency disagree. Allentown Mack v. NLRB (1998) i. Articulated the substantial-evidence standard as whether on this record it would have been possible for a reasonable jury to reach the [agencys] conclusion 1. This looks like the jury standard

b.

II.

Findings of Fact in Formal Proceedings

a. b.

c.

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d. e.

Courts recite this language but still use the Universal Camera intermediate standard 3. Even in this case the Court engaged in much closer scrutiny of a factual determination than an appellate court would w/r/t jury determinations of fact Kimm v. Dept of Treasury (CA-Fed 1995)court reverses b/c agency didnt explain why it disagreed w/ ALJthis means that agencies must account for findings of initial adjudicators i. Not a 706(2)(E) case? Laro Maintenance v. NLRB (CA-DC 1995)question of improper motive (failure to hire b/c of union membership) i. Will uphold decision if it is supported by substantial evidence considering the record as a whole (Universal Camera) ii. Will not displace reasonable agency findings (Allentown Mack) iii. EXTRA DEFERENCEfindings w/in agencys area of expertise (NLRB is good at determining improper motive) iv. Note that the court actually scrutinizes the record very closely in this case Two steps: i. First, look to organic statute. If its not there ii. APA APA 706(2)(A)arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law i. Catch-allthis picks up misconduct not covered by the more specific paragraphs ii. Not the same as the abuse-of-discretion standard for trial courts Data Processing v. Federal Reserve (CA-DC [Scalia] 1984) i. Take-away: with respect to determinations of fact, the arbitrary-and-capricious and substantial-evidence standards are the same 1. Difference: for formal proceedings, factual support must be found in closed record 2. A nonarbitrary factual judgment has to be supported by substantial evidence (in the APA sense), otherwise by definition it would be arbitrary 3. So you need enough to justify, if the trial were to a jury, a courts refusal to direct a verdict when the conclusion sought to be drawn was one of fact for the jury ii. This is all dicta, but its won out and is the law (at least in the DC Circuit) APA 706not really clear on this. Informed by pre-APA case law. Pre-APA cases i. NLRB v. Hearst Publications (1944)newsboys are employees w/in meaning of NLRA 1. NO deference to agency interpretations on abstract, naked questions of law a. Does NLRA incorporate common-law tort standard? 2. WILL defer to agency application of law to specific facts if reasonable and on the record a. Are newsboys employees? ii. Other doctrines 1. Is agency interpretation consistent? If an agency is inconsistent, then there are reduced grounds for a court to show deference. 2. Reenactment doctrine: if Congress reenacts or mends a statute, and in so doing its deemed to be aware of agency interpretations and doesnt change the agency interpretation, the implication is that Congress has accepted the agency interpretation. iii. Skidmore v. Swift & Co. (1944)does waiting time count as working time? 1. Deference may be appropriate even when not dealing with a formal rule or formal adjudication

2.

III.

Findings of Fact in Informal Proceedings

a. b.

c.

IV.

Review of Agency Legal Conclusions

a. b.

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c.

Continuum of deferencesliding scale based on the presence of a bunch of factors 3. We need very good reasons to have standards of public enforcement and those for determining private rights to be at variance 4. Agencys rulings, interpretations, and opinions that lack controlling authority are entitled to respect. Weighting factors: a. Thoroughness evident in its consideration b. Validity of its reasoning c. Consistency with earlier and later pronouncements d. All other factors which give it power to persuade, if lacking power to control 5. Casebooktwo things to take away from Skidmore a. Deference can be appropriate even when agency doesnt have formal responsibility for administering a statute b. Sliding scale for amount of deference to agency Current PracticeChevron etc. i. Chevron USA v. Natural Resources Defense Council (1984) 1. Applies to an agencys construction of the statute it administers 2. Step 1: Has Congress spoken to the precise question at issue? Is the intent of Congress clear or unambiguously expressed? If not 3. Step 2: Is agencys answer based on a permissible construction of the statute? a. Express delegationarbitrary/capricious or manifestly contrary to the statute b. Implicit delegationreasonable interpretation ii. Broad vs. Narrow Reading of Chevron 1. Broad readingreplace distinction between pure legal questions and questions of law application with a single, uniform principle of deference 2. Narrow readingthis is an unusual situation in which the traditional panoply of factors warranted granting an agency deference on a pure question of law iii. Where does Chevron apply? 1. An agencys construction of the statute which it administers. Chevron. a. Agencies administer statutes for which they have some special responsibility i. E.g. IRS administers tax laws; rate-setting agencies do not even though they often have to interpret and apply the IRC. b. Substantive provisions of the organic statutes they enforce 2. Agencys construction of its own regulations? Seminole Rock; Auer. a. Agencys construction of its own regulation is controlling unless it is plainly erroneous or inconsistent with the regulation b. This is probably the same as Chevron in practice, and some circuits have held that Chevron applies to agency regulatory construction. 3. NO DEFERENCE to a. Constitutional matters b. Agency interpretations of court opinions c. State agencies d. DOJ interpretations of criminal laws e. Agency interpretation of Ks, deeds, other legal instruments (but cts give some deference here in practice) f. Interpretive rules iv. Christensen v. Harris County (2000)deals w/ agency opinion letter on compelled compensatory time 1. No Chevron deference for an agency opinion letter

2.

16

d.

e.

Didnt arrive after formal adjudication or notice-and-comment rulemaking b. It lacks the force of law, like an interpretation contained in a policy statement, agency manual, or enforcement guidelines c. Would get Chevron deference if this was an agency interpretation contained in a regulation (but regulation doesnt address the issue) d. The touchstone is exercising delegated lawmaking authority 2. No Seminole Rock deference unless regulation is ambiguous 3. Still have Skidmore! a. Entitled to respect BUT only to the extent that the interpretation has the power to persuade v. US v. Mead (2001)tariff classification not intended by Congress to carry force of law [Chevron Step Zero] 1. Administrative implementation of statutory provision gets Chevron deference only if: a. Congress delegated authority to make rules [or orders] carrying the force of law; AND b. Agency interpretation was promulgated in the exercise of that authority 2. On Skidmoredegree of agencys care, consistency, formality, relative expertness, persuasiveness of agencys position 3. Interpretive rules arent promulgated in the exercise of the authority to make law (Court doesnt announce this per se, but casebook says it) Step 1: How Clear Is Clear? i. Dole v. Steelworkers (1990)finds statute clearly expresses Congresss intention (obtaining or soliciting of facts by an agency through reporting or recordkeeping requirements doesnt encompass disclosure rules) 1. Look to language, structure, and purpose of Act 2. Uses traditional canons of construction 3. Considers object and structure of Act as a whole 4. Purposes of statute wouldnt be furthered by agencys interpretation 5. [Degree of certainty: Confidence you have in the meaning that you ultimately find?] ii. Pauley v. Bethenergy Mines (1991)finds statute ambiguous (defers for shall not be more restrictive than) 1. Act produced complex and highly technical regulatory program; identification and classification of eligibility criteria require significant expertise and policy-based judgment 2. Notes the Byzantine character of the regulations 3. [Obviousness: Degree of effort required to find meaning?] iii. FDA v. Brown & Williamson Tobacco (2000)tobacco/cigarettes clearly not drugs or devices or combination products that FDA can regulate 1. Interpret statute as symmetrical and coherent regulatory scheme 2. Meaning of one statute may be affected by other Acts, esp. if theyre subsequent and more specific to the topic at hand 3. FDAs findings logically imply that if tobacco products were FDCA devices, FDA would be required to remove them from market, but other laws make clear that cigarettes cannot be removed from market 4. This may be extraordinary case where there may not be implicit delegation to fill gaps in statute w/r/t tobacco products Step 1: How Precise Is Precise? i. Texas Municipal Power Agency v. EPA (CA-DC 1986) 1. The court draws this very narrowly a. Act defines actual 1985 emission rate as [science] as reported in NURF-NAPAP database

a.

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f.

g.

Court: Act doesnt mention how EPA should treat utility unit whose emission rates were not included in the NURF-NAPAP database, and therefore precise question at issue isnt addressed by the statute and theres a gap for the agency to fill Step 2: How Reasonable Is Reasonable? i. Agencies almost always win here ii. Where agencies typically lose 1. Interpretation completely fails to advance goals of underlying statute 2. Interpretation is so bizarre that close analysis is unnecessary iii. Basically look at interpretations fit w/ the statute iv. AT&T v. Iowa Utilities Board (1999) 1. FCCs rule giving blanket access to network elements is unreasonable b/c Commission shall consider if the access is necessary and if lack of access would impair ability of telecommunications carrier to provide services this requires FCC to apply some limiting standard a. FCC has to determine on a rational basis which network elements must be made available, taking into account objectives of Act and giving some substance to necessary and impair requirements 2. SOUTER/DISSENTwords necessary and impair can carry the meanings identified by FCC; profits relate to necessity and impairment of business in a weak sense and thats enough Stare Decisis and Chevron i. Natl Cable v. Brand X Internet (2005)agency not bound by CA9 interpretation of communications service in earlier case 1. Only a judicial precedent holding that the statute unambiguously forecloses the agencys interpretation displaces a conflicting agency constructionneeds to hold that its the only permissible reading 2. Under Chevron, a courts reading as to the best reading of an ambiguous statute an agency is charged with administering is not authoritative; the agency is the authoritative interpreter a. Precedent remains binding law in all other respects (e.g. to agency interpretations where Chevron is inapplicable) 3. STEVENS/CONCURCOA interpretation doesnt foreclose contrary reading by agency, but a SCOTUS decision would remove any preexisting ambiguity and have stare decisis effect 4. SCALIA/DISSENT a. This is probably unconstitutionalArt III cts dont sit to render decisions that can be reversed by executive officers b. Every case that reaches Chevron step 2 will be agency-reversible c. If cts do this, it will be dictum anyway Above analyses apply to the extent that discretionary or policy determinations implicate or rest on factual or legal determinations APA 706(2)(A)arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [arbitrary-or-capricious standard] i. Applies to parts of agency decision-making process that cant be reduced to questions of fact or law ii. Potentially applies to all agency action, incl. action subject to other standards of review Agency discretion in various areas i. How agency allocates its budget (if not specified by Congress) 1. Technically this is arbitrary-and-capricious review, but really its total discretion ii. Agency proceeds through rulemaking or adjudication 1. Chenery

b.

V.

Review of Agency Discretion and Policymaking

a. b.

c.

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d.

e.

iii. Agencys prosecutorial powers 1. A different type of A&C reviewyoud have to show some form of bias or undue influence, real abuse of discretion iv. Policy issues (where statute is open-ended, doesnt involve Qs of fact or law, just policy choices) 1. Chevron still applies in the background b/c you could say it acted so far outside the legislative purpose of Congress as to be impermissible 2. Hard-look review Three possible types of review: i. Procedural review ii. Outcome review iii. Process review (hard-look doctrine, i.e. decisionmaking-process test) Hard-Look Doctrine i. Greater Boston Television v. FCC (CA-DC 1970)Bazelon creates hard-look test 1. We want agencies giving reasoned analysis to all the material facts and issues 2. TEST: Did agency (1) really take a hard look at the salient problems and (2) genuinely engage in reasoned decision making? ii. MVMA v. State Farm (1983)DOT revocation of airbag/seatbelt requirements is arbitrary/capricious 1. An agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency doesnt act in the first instance a. Rescinding a rule is like enacting a rulethe agency is adopting a policy decision 2. Arbitrary-and-capricious review: a. Agency needs to examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made b. Was the decision based on a consideration of the relevant factors? Was there a clear error in judgment? c. Agency rule is A&C if agency relied on factors Congress didnt want it to consider, failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before it or is entirely implausible 3. After-the-fact justifications not good enoughit has to be on the record 4. Bottom line: there needs to be enough there for the court to conclude that it was the product of reasoned decision making

Timing and Availability of Judicial Review

I. Preclusion
a. b. APA 701(a)review provisions apply except to the extent that (1) statutes preclude judicial review or (2) agency action is committed to agency discretion by law Express Preclusion i. 701(a)(1)statutes preclude judicial review ii. Courts often strain to avoid giving preclusive statutes their full effects iii. Constitutional claims are specialalmost non-precludable iv. Shaughnessy v. Pedreiro (1955)ambiguous word final construed to refer to finality in administrative procedure rather than cutting off the right of judicial review v. Bottom line: construed narrowly to avoid preclusion of judicial reviewneed clear and convincing evidence of congressional intent to preclude review Implied Preclusion

c.

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d.

i. 701(a)(1)statutes preclude judicial review ii. Block v. Community Nutrition Inst. (1984)consumer-initiated (not handlerinitiated) review impliedly precluded 1. Just a PRESUMPTION favoring judicial review of administrative action; may be overcome by a. Specific language or specific legislative history that is a reliable indicator of congressional intent b. Contemporaneous judicial construction barring judicial review and congressional acquiescence c. Hereinferences of intent drawn from the statutory scheme as a whole d. Basicallylook at everything to determine intent: express language, structure of statutory scheme, objectives, legislative history, nature of administrative action involved 2. Clear and convincing evidence standard is not a rigid evidentiary test, but a reminder to courts that where substantial doubt about congressional intent exists, the presumption favoring judicial review is controlling 3. Facts/analysis a. Milk market orders set minimum prices that handlers (processors) must pay to producers (dairy farmers) b. Act contemplates cooperative venture among Secretary, handlers, and producers in order to (1) raise price of agricultural products and (2) establish orderly system for marketing them c. Express provisions for participation by handlers and producers, but no express provision for participation of consumers in any proceeding d. Consumers not even required to pursue administrative remedies firstrestriction of administrative remedy to handlers suggests Congress intended similar restriction of judicial review of market orders i. Allowing consumers to bypass this would effectively allow handlers to circumvent the statutory requirement that they first exhaust their administrative remedies Committed to Agency Discretion by Law i. 701(a)(2)agency action is committed to agency discretion by law ii. Overton Park (1971)very narrow exception 1. Applies in rare instances in which statutes are so broad that there is no law to apply 2. Exception inapplicableSecretary only allowed to use public parkland for highways if no feasible and prudent alternative and all possible planning to minimize harmjudicial review is possible, so there is law to apply iii. Webster v. Doe (1988)CIA director fired gay employee as security threat 1. Distinction between 701(a) subsections a. 701(a)(1)concerned w/ whether Congress expressed an intent to prohibit judicial review b. 701(a)(2)statute drawn in such broad terms that theres no law to apply 2. Does a court have a meaningful standard against which to judge agencys exercise of discretion? 3. Must carefully examine statute on which claim of agency illegality is based 4. Facts/analysis a. Natl Security Act: CIA director may, in his discretion, fire employees whenever he shall deem it necessary or advisable in the interests of the US

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II.

Standing
a.

No basis on which reviewing court could assess agency termination decision i. Doesnt have to be necessary/advisable to US interests, just be deemed by Director ii. Not going to allow cross-examination of Director concerning his views of US security 5. Constitutional claimsmay bring colorable constitutional claim in district court a. Require a heightened showingcongressional intent to preclude judicial review of constitutional claims must be clear b. Not allowing any judicial forum for a colorable constitutional claim would raise a serious constitutional question c. NSA precludes challenges based on statutory language, but doesnt give CIA ability to 6. OCONNOR/CONCURat least in natl security context (expansive presidential authority), Congress can close the lower federal cts to constitutional claims (dont want inferior fed cts used to infringe on Presidents constitutional authority) 7. Scalia/dissent a. Commitment to agency discretion by law includes, but is not limited to, situations in which there is no law to apply b. Common law of judicial review of agency application is incorporated (by law); look at whether i. Decision involves a sensitive and inherently discretionary judgment call ii. Its the sort of decision thats traditionally been reviewable iii. Review would have disruptive practical consequences c. (This explains why commitment to agency discretion isnt reviewable for abuse of discretion.) d. Not all constitutional claims require judicial review/remedy in other contextstheyre not special iv. Lincoln v. Vigil (1993)Indian Health Services decision to discontinue program not reviewable under 701(a)(2) 1. 701(a)(2) also precludes judicial review of certain categories of administrative decisions that courts traditionally have regarded as committed to agency discretion, e.g. a. Agencys decision not to institute enforcement proceedings b. Agencys refusal to grant reconsideration of an action b/c of material error c. National security (special executive area) (Webster) d. Allocation of funds from lump-sum appropriation 2. Touchstone seems to be the impossibility of devising an adequate standard of review for the agency action 3. APA contemplates judicial review for colorable constitutional claims, absent a clear expression of congressional intent

b.

Constitutional Standing i. TEST 1. Injury in fact a. Concrete and particularized, distinct and palpablenot abstract or conjectural b. Actual and imminentnot speculative 2. Causation a. Fairly traceable link b/w unlawful conduct and injury 3. Redressability

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b.

Substantial likelihood that judicial relief requested can redress the injury ii. Friends of the Earth v. Laidlaw (2000)finds standing for private citizens who dont like mercury being dumped in their river 1. Injuryneed to show injury to the plaintiff, NOT injury to the environment 2. Redressabilitycan include civil penalties paid to the government a. Sanction that effectively abates the conduct and prevents its recurrence = redress b. Civil penalties encourage Ds to discontinue current violations and deter them from committing future ones i. Theoretical availability of civil penalties isnt enough availability and imposition are interdependent (credibility of threat creates deterrent value) Statutory Standing i. APA 702A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute, is entitled to judicial review thereof. ii. 1946 understanding 1. Legal wrongany kind of injury traditionally cognizable by courts a. Common law legal interest test(1) competitive injury not a legal wrong unless competitive acts were themselves illegal; (2) ideological or aesthetic interests not enough 2. Relevant statute = special review statute a. Expanded range of persons who could challenge agency action b. Typically described class of permissible plaintiffs as all person adversely affected or aggrieved by agency action iii. Erosion of 1946 understanding 1. Scenic Hudson (CA2 1965)non-economic interests as well as economic interests are protected (aesthetics, conservation, recreation); those with special interests in such areas are aggrieved parties 2. United Church of Christ v. FCC (CA-DC 1966)direct economic injury in the commercial sense not required; TV viewers can challenge, not limited to competitor stations iv. Modern Law: Zone of Interests 1. TESTis interest party seeks to protect an interest protected or regulated by the constitutional or statutory provision upon which her claim rests? 2. Assn of Data Processing Organizations (ADAPSO) v. Camp (1970)creates zone-of-interests test a. The legal interest test goes to the merits, not standing b. Is the interest sought to be protected by complainant arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question? c. Facts/analysis i. Organic statute prohibits bank service corps. from doing anything other than performing services for banks ii. Competitor data processing co. is arguably w/in zone of interests protected by the substantive terms of the organic statute, and thus is aggrieved under 702 3. Barlow (1970)tenant farmers w/in zone of interests of Food & Agriculture Act 4. Arnold Tours (1970)travel agents can challenge Comptrollers ruling that national banks can provide travel services 5. Investment Co. Institute (1971)investment companies have standing to challenge Comptrollers decision to allow national banks to operate mutual funds

a.

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6.

7.

8.

Applying zone testct must discern whether interest asserted by party in the particular instance is one intended by Congress to be protected or regulated by the statute under which the suit is brought. Control Data Corp. (CA-DC 1981). Air Courier v. Am. Postal Workers Union (1991)postal employees are not within zone of interests of the Private Express Statutes a. Two-step analysis i. 1stinjury in fact ii. 2ndw/in zone of interests b. Zone testmust determine Congresss intent in enacting the statuteswhat was the congressional concern? c. Relevant statute under the APA is the statute whose violation is the gravamen of the complaint d. Facts/analysisPES concerned w/ receipt of necessary revenues for Postal Service; labor-management provisions of PRA cant be used to support standing since complaint is based on alleged violation of PES Bennett v. Spear (1997)whether Ps interest is arguably protected by the statute requires that the injury fall w/in zone of interests protected by the statutory provision whose violation forms the legal basis for the complaint [re-articulation of Air Courier?]

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