Administrative Law Outline – Fall 2013
Professor Christina Ho
Introduction: Checklist and Flowchart
1) Types of Challenges
a. Procedural: Challenge based on the procedures by which the agency made the decision
b. Substantive: You followed all the right procedures but the result is wrong. The agency violated in terms of the substance of what it regulates.
2) Formality Arguments
a. Is Formality Required?
i. Informal Proceeding Prohibited: The agency needs to proceed by formal adjudication requirements rather than informal but the agency chose an informal proceeding
b. What Does Formality Entail:
i. Specific Requirements: While the agency is behaving in the formal box, they are violating the specific requirements of formality
3) Statutory Effect Argument: Under 559, subsequent statutes may modify unless they do so expressly.
4) Bootstrapping Arguments
a. Judicial Review Under 700s: Since judicial review is required, the court must have enough information to perform this function adequately.
5) Applicable Laws: ConstitutionàStatuteàRegulationàFederal Common Law
6) Argument Flow Chart:
a. Generally:
i. Applicable Statute?
ii. Agency Action?
iii. Basis for Challenge
b. Access to the Court
i. Statutory Preclusion
ii. Committed to Agency Discretion
iii. Right of Judicial Review
1. Standing
2. Ripeness
3. Finality
4. Exhaustion
c. Procedural Arguments:
i. Adjudication or Rulemaking: Chenery
1. Constitutional: Does Due Process require adjudication?
a. Specific Facts: (Londoner/Bi-metallic)
b. Deprivation:
i. Protected Interest (Goldberg, Roth, Sinderman, Wisconsin)
ii. What Process is Due (Matthews, Medina, Lassiter, etc).
ii. Formality or Informality: On the record and Chevron Deference
1. Formal Adjudication
a. Discovery Matters (555d, Citizens Awareness)
b. Official Notice (556e, Castillo-Villagra)
c. Intervention (555, Envirocare)
d. Exclusive Record (556e)
e. Statement of Findings (557c, Armstrong, Gunderson)
f. Impartial Hearer (554d, Grolier, Esso Standard)
g. Ex Parte Contacts (551(14), 556e, 557d, 551, PATCO, Portland Audubon, Texaco)
2. Informal Adjudication 555
a. 555 Requirements: (555, PBGC, Friends of the Bow, Roelofs, Finer Foods)
i. Notice
ii. Brief Statement
iii. Additional Procedures: Organic Statute, Constitution, Regulations
3. Informal Rulemaking: 553
a. Notice
b. Opportunity to Comment
c. Publication of Concise General Statement
4. Subinformal Rulemaking: 553(a), 553(b)
d. Substantive:
i. Constitution:
1. Invalid Statute: The agency does not have the power to do this act under the statute (ultra vires)
a. Delegation
b. Appointment
c. Removal
d. Legislative Veto
2. Due Process
a. Notice
b. Consistency and Clarity Requirements: (Holmes, Hornsby, Morton, Lightfoot)
i. Post-Deprivation Remedies
c. Impartial Hearer and Bias
ii. Impartial Hearer
iii. Judicial Review
1. Reviewable Questions
a. Law
b. Fact
c. Banana (Mixed Question, Policy, Rule of Thumb)
2. Standards
a. Substantial Evidence
b. Arbitrary and Capricious
c. Chevron
d. Skidmore
e. Auer
f. De Novo
7) Administrative Procedure Act Checklist:
a. 551: Definitions
b. 552: Public information; agency rules, opinions, orders, records and proceedings
c. 553: Rulemaking
d. 554: Adjudications
e. 555: Ancillary Matters
f. 556: Hearings; presiding employees; powers and duties; burden of proof; evidence; record as a basis of decision
g. 557: Initial Decisions, conclusiveness; review by agency; submission by parties; contents of decisions; record
h. 558: Sanctions, Applications, Suspension, Revocation, and Expiration of Licenses
i. 701: Application of Judicial Review
j. 702: Right of Judicial Review
k. 703: Form and Venue
l. 704: Actions Reviewable
m. 705: Relief pending review
n. 706: Scope of Review
Introduction to Reviewability of Agency Action: Statutory Preclusion
1) Judicial Review Under the APA 704: Judicial review is available for agency action made reviewable by statute and final agency action for which there is no adequate remedy in a court.
a. Enabling Act: If a statute other than the APA provides for judicial review of a particular agency action, the action is reviewable under that provision.
b. No Other Adequate Remedy: If Congress has provided a remedy other than APA judicial review for a particular agency action, APA review is not available unless the alternative remedy is not adequate.
c. Effect on Stay: The institution of litigation to a challenged agency action does not stay the effectiveness of the challenged regulation under APA 705.
2) Statutory Preclusion for Review Under 701(a)(1): Judicial review is not available when statutes preclude judicial review.
3) Presumption of Reviewability (Abbott Labs v Gardner): The courts have a strong presumption that judicial review should be freely available for agency actions.
4) Congressional Intent Requirement: Judicial review of final agency action will not be cut off unless there is a clear and convincing evidence to believe that this was the intention of Congress.
a. “Fairly Discernible” Standard: Congressional intent to preclude judicial review had to be demonstrated by clear and convincing evidence, which is not a strict evidentiary application but must be “fairly discernible” in the statutory scheme.
5) Overcoming the Presumption (CNI v Block): Explicit preclusive language in the statute in controversy is not necessary.
a. Three Ways to Overcome Presumption (CNI v. Block): The Court has held three ways to overcome the presumption that judicial review should be freely available.
i. Specific Language: Specific language or legislative history that is a reliable indicator of congressional intent,
ii. Congressional Acquiescence of Judicial Decision: By contemporaneous judicial construction barring review and the congressional acquiescence in it or
iii. Inferences from Legislative Scheme: By the collective import of legislative and judicial history behind a statute or by inferences of intent drawn from the statutory scheme as a whole
b. C
lute discretion
1. Initial Decision Applicability: Remember the initial decision whether to take action is unreviewable but if the agency proceeds with enforcement, the enforcement action is normally subject to judicial review.
ii. Refusal to Grant Reconsideration: Refusals to grant reconsideration of an action because of material error and
iii. Decision for Employment Termination: Decisions to terminate an employee in the interest of national security and
iv. Decision for Allocating Lump-Sum Funds (Lincoln v. Vigil): A decision to allocate funds from a lump-sum appropriation is an administrative decision traditionally regarded as committed to agency discretion
1. Permissible Statutory Objectives Requirement: The agency must allocate funds from a lump-sum appropriation to meet permissible statutory objectives to allow preclusion.
b. Determining Categories Subject to Tradition Preclusion (Rehnquist Rationale): The Court determines whether tradition shows a general unsuitability for judicial review of certain types of agency decisions using three factors:
i. Expertise: The Court looks to the expertise of the agency
1. Balancing of Factors: The agency decision involves a complicated balancing of a number of factors which are within its expertise
2. Prioritization: The agency must determine whether its resources are best spent on one violation or another,
3. Policy Decision: The agency must determine whether it will succeed, whether it best fits the agency’s policies, and whether the agency has enough resources.
ii. Lack of Coercive Power: When an agency refuses to act, it generally does not exercise coercive power on the individual’s liberty or property rights and does not infringe on due process
iii. Prosecutorial Discretion: The Court looks at the agency’s prosecutorial-like discretion.
1. Similar Characteristics to Executive Branch: The agency’s refusal to institute proceedings has characteristics of a prosecutor’s decision in the Executive Branch not to indict, which is a special province of the Executive.
a. Applicable Executive Characteristics (Farmworker Justice Fund):
i. Type of Decision:
1. Fact-Based: If the decision is fact-based and requires deep involvement in the details of the individual case and little analysis, the decision may be committed to agency discretion
2. Law-Based: If the decision requires consideration of broad issues that are likely to become or turn upon issues of law, the decision may not be committed to agency discretion.
ii. Frequency of Decisions: If the decision is not frequent and turns upon the scope of the agency’s authority, the decision is not committed to agency discretion.
