I. Can it be Reviewed?

A. APA Considerations
1. Judicial review is statutorily precluded when the statute
conferring authority plainly provides that a given action is not
subject to judicial review. Congress must speak clearly when it
wishes to preclude judicial review as there is a presumption
favoring interpreting a statute to allow judicial review. McNary.
Where a statute precludes some claims but leaves ambiguous
others (such as constitutional claims) those other claims are
afforded the presumption of reviewability.
2. Judicial review is precluded when an agency action is
committed to the agency discretion by law. The Court
interpreted this provision to mean review is precluded where “a
court would have no meaningful standard against which to judge
the agency’s exercise of discretion.” Heckler. However, where
Congress provides standards or guidelines for an agency to
consider when taking action, Courts have law to apply and the
presumption is overcome. When there are no such guidelines,
the agency action is committed to the agency by law. The
allocation of funds from a lump sum (void of statutory
restrictions, legislative history, etc.) appropriation is traditionally
regarded as committed to agency discretion. Lincoln v Vigil
a) Agency decisions not to prosecute are presumptively
unreviewable but can be overcome where congress provides
clear language on how the discretion should be used. Heckler.
B. Court Considerations
1. Standing
a) Constitutional standing requires 1) the plaintiff have
suffered an injury in fact, 2) a causal connection between the
injury and the conduct complained of so that the injury is fairly
traceable and 3) it must be likely the injury will be redressed by
a favorable decision. Lujan
(1) An injury in fact is a concrete and particular harm
as opposed to a generalized grievance shared by the
public. Akins
(2) The causation requirement demands the injury in
fact be fairly traceable to the government conduct.
 b) Prudential Standing requires the party suffer an injury
in fact and that they are within the zone of interest sought to be
protected by the statute. Thus, prudential standing is a matter
of statutory construction. The court must inquire as to whether
Congress intended the statute to protect against the injury
alleged. Postal Workers.
(1) Recognized competition as economic interest
where purpose of act was to regulate banking activities.
Assoc of data process.
(2) Not recognize competition as ZOI where
competition is merely incidental. Postal workers
(3) In determining the scope of the ZOI, the trend is
toward enlargement. Data Processors
(4) Associational standing: 1) there must be members
of the association with standing, 2) the issue must be
central to the purpose of the association and 3) the
absence of members of the association will not present a
problem in the case.
(5) Can be overridden by congress
2. Finality
a) Final Agency Action - 5 USC 704 allows judicial review of
agency actions made reviewable by statute and for final
agency action for which there is no other adequate remedy in
a court.” 5 USC 551 provides the definition of agency action to
mean “the whole or a part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure to
act.” An agency action is final where it marks the end of an
agency’s decision making process and where the action is “one
by which rights or obligations have been determined or from
which legal consequences will flow.” Bennett.
(1) Agency letters based on hypothetical facts rather
than fact findings are typically not final. NRDC. Agency
actions are not final where they are the ruling of a
subordinate official. Franklin. Where an agency may claim
Chevron deference, there likely exists a legal
consequence as Chevron applies to interpretations with
the force of law.
(2) Where the Secretary presents recommendations of
action to the President who may subsequently approve or
disapprove the actions, the acts are not final and thus not
subject to judicial review. Franklin. An exception exists for
constitutional claims. However, where a statute commits
decisionmaking to the discretion of the president, judicial
review is not available. Dalton.
 (3) The second prong of the finality test is judged
pragmatically. Legal consequences can flow where the
practical effects of an action make alternative means of
appeal lengthy or costly. Hawkes.(substantial compliance
cost v forgo lawful use of property)
3. Ripeness
a) Reviewing courts must ensure the agency action is ripe
for judicial resolution. Ripeness is a judge made doctrine that is
part of the “cases or controversies” requirement of Article III.
Ripeness asks whether 1) the issues presented are fit for judicial
decision and 2) withholding court consideration would cause
hardship on the parties. To the first prong - in deciding whether
an issue is fit, the court looks to the nature of the claim. A
purely legal question (as opposed to a factual question) is fit
because it goes to whether the rule was beyond the statutory
authority conferred to the agency. Further, an agency action
must be final to be fit. To the second prong - an agency action
causes hardship on a party where that party is required to make
significant changes in their everyday business practice, the
action is directed at them in particular, and where failing to
comply clearly exposes the party to sanctions. Abbott.
(1) However, where the agency act does not
immediately effect the day to day business operations of
a party and the party can challenge an enforcement
action when it comes, withholding consideration does not
cause hardship. Toilet Goods.
(2) Pre-enforcement review is generally available
unless congress explicitly precludes it or court determines
other factors are needed to address the legal issue. Toilet
goods.
(3) Rulemaking not available until enforcement unless
hardship (is it expensive to wait?)

II. Merits Worth Challenging

A. Bad (Due) Process
1. Should have used adjudication
a) Londoner - where an agency decision affects all
individuals, the agency can use rulemaking as opposed to
adjudication.
(1) Where the city imposed a tax on a few individuals
to pave a road, due process required a hearing.
2. Stigma Plus
 a) An individual's reputation alone is not an interest
protected by the due process. The stigma attached to an
individual's reputation must be coupled with the loss of some
tangible interest such as employment. Davis
(1) The local police placing Davis’ face on a flyer of
shoplifters did not require a hearing because he did not
lose a tangible interest.
3. Entitled to Property Interest
a) Due process demands a hearing only when the individual
is entitled to continued employment, typically by statute. This is
a determination of the nature of an interest instead of the
weight. Where that individual is free to seek other employment,
he has not suffered a grievous loss entitling him to due process
protection. Roth
(1) Where Roth was not rehired after a year of
employment, he had no due process claim because there
was no statutory claim entitling him to being rehired.
b) However, tenure of employment, and thus a due process
triggering interest, can be created by practice. Sinderman
(1) Sinderman was entitled to a hearing because the
practice of tenure entitled him to his position.
4. Insufficient Process
a) Mathews considers context when deciding what due
process procedural safeguards are appropriate. In determining
whether administrative procedures were sufficient to protect the
private interest affected, the court must consider: 1) the private
interest to be effected 2) the risk of erroneous deprivation of the
interest through the procedures used and the probable value of
additional safeguards and 3) the governments interest in further
safeguards including fiscal and administrative burdens.
Mathews.
(1) Mathews did not require a pre deprivation hearing
for social security benefits but opined that disability or
welfare benefits would entitle a party to a pre deprivation
hearing.
(2) Is there a statutorily recognized significant private
interest (ie welfare statutorily considers dire personal
circumstance)
5. Bad Timing
a) In an emergency, a post act hearing about the legality of
the act is sufficient to bring due process where the deprivation
is not “baseless or unwarranted.” North American Cold
Storage.
 (1) NACS concerned a public health crisis where bad
poultry could have caused widespread illness.
b) Where only property rights are involved, the
postponement of a judicial proceeding does not deny due
process where an adequate judicial determination is later made
and where an important government interest demands the
seizure. Phillips v IRS.
(1) In Phillips, the government’s interest in summary
collection of taxes overrode the need for a pre deprivation
hearing
c) The length and finality of a deprivation is relevant to
considering how a private interest is to be affected. Where the
deprivation is temporary, a strong state interest is likely to
outweigh the need for a pre deprivation hearing. Homar
(1) In homar, the employee was suspended without
pay prior to a hearing. The Court held the length and
finality of the deprivation was minimal compared to the
significant state interest in employing individuals who
havent committed felonies.
d) Where an agency issues an order that requires a party
comply or face a fine, but refusal to comply affords them a
hearing with procedural safeguards, the agency does not violate
due process. General Electric v Jackson. Further, reputational
harm and its secondary economic effects are not enough to
trigger due process protections. GE.
(1) In GE the court held a drop in stock price from
being issued a UAO is akin to solely being a stigma and
does not warrant a hearing.
6. Unbiased Decisionmaker
a) An agency can perform investigative and prosecutorial
functions without violating the due process rights of an
individual. Larkin.
B. Bad Procedure
1. Bad Informal Rulemaking
a) Bad Notice
(1) Notice requires the rule be published in the federal
register (subject to two exemptions). Further, notice need
include 1) a statement of time, place, and nature of public
rulemaking proceedings, 2) the legal authority
promulgated under, and 3) terms or substance or
description of the subjects and issues involved. 553(b)
 (a) The final rule is often different from the
proposed rule. An agency satisfies notice if the
changes to the proposed rule are in character with
the original scheme and the final rule is a logical
outgrowth of the notice and comments given.
Chocolate Milk. In essence, the court must ask
whether interested parties were or should have
been aware of their stake in the final rule by
looking at the original rule.
(i) In Block, the Court held there was no
logical outgrowth where the proposed rule
regarded sugar content in cereal and juice
but the final rule prohibited chocolate milk in
a welfare program.
(b) Response by the agency to a comment does
not constitute adequate notice or a logical
outgrowth. Shell.
b) Bad Participation
(1) Participation demands that where the basis for a
proposed rule is data or a scientific decision, the data or
scientific material supporting the rule must be exposed to
the public. Nova Scotia. Portland cement.
c) Bad Justification
(1) Justification - 553c demands that after
consideration, the agency shall adopt a concise general
statement of their basis and purpose.553c To provide
such sufficient justification, the agency must respond to
comments of “cogent materiality” to enable the public to
see the major policy issues considered. Nova Scotia.
d) Falsely claimed Exception
(1) The “Good Cause” Exception is an exception to
the notice and comment procedure where the agency
finds, for good cause, that that notice and public
procedure thereon are impracticable, unnecessary, or
contrary to the public interest. 5 usc 553 b3B. The
exception is typically construed narrowly though has been
recognized where delay could result in serious harm.
Dean
(2) Procedural Rules are typically related to internal
functionings of agency proceedings that do not implicate
substantive rights of the public.
(a) In Air Transport, the court held that
promulgating regulations governing civil penalties
altered the substantive rights of the public because
paying the fines was a legal effect.
(3) Interpretive Rules
(a) In delineating between legislative or
interpretive rules, the court in American Mining
Congress provided a four factor test: 1) whether in
the absence of the rule there would not be an
adequate legislative basis for enforcement action
or other agency action to confer benefits or ensure
the performance of duties, (if rule wasn't there,
could the agency have basis for enacting rule), 2)
whether the agency has published the rule in the
Code of Federal Regulations, 3) whether the agency
has explicitly invoked its general legislative
authority, and 4) whether the rule effectively
amends a prior legislative rule.
(i) When agencies base rules on arbitrary
choices carrying the force of law, they are
not interpreting but legislating and notice
and comment is required. Hoctor.
(a) In Hoctor, the agency interpreted
the statute to require an 9ft fence for
tiger cages. This is an arbitrary number
where the statute provided no number
and the agency had to make some value
judgement to reach it.
(ii) “A substantive rule modifies or adds
to a legal norm based on the agency’s own
authority.” Syncor
(4) In delineating between legislative rules and
general statements of policy, a reviewing court should
focus on the practical effect of the pronouncement. PG&E.
Where the pronouncement will have a legal effect in
subsequent administrative proceedings, the rule is likely
legislative. Where the pronouncement does not create a
binding norm and the agency can exercise discretion on it
in a subsequent adjudication, it is more likely to be a
policy statement. The agency’s own characterization is
often instructive over whether the agency intends the rule
to be binding or not. PG&E. However, the practical effects
of the pronouncement are also considered. Where an
agency implements a ‘policy statement’ that becomes
widely observed in the industry and reliably used in
adjudications, the policy statement is more likely to be
considered a legislative rule by the reviewing court.
(a) In PG&E, the agency issued statement was
merely a preference for curtailment with no force of
law and was thus a statement of policy.
 (b) In USTA, where the policy was only strayed
from 8 of 300 times, the statement effectively
carried a legal effect and should have been put
through notice and comment
(c) In Community Nutrition, the affirmative
language of the statement, the existence of
exceptions, and public statements claiming a legal
effect made the statement a legislative rule as
opposed to a statement of policy.
(d) A statement of policy can be made intending
to be used in a future rulemaking or adjudication.
2. Unfairness
a) Impartiality
(1) Parties in an adjudication are entitled to
impartiality. “whether ‘a disinterested observer may
conclude that the agency has in some measure adjudged
the facts as well as the law of a particular case in advance
of hearing it.’” Cinderella.
(a) However, there is a distinction to be made
between filing a press release alerting the public of
possible violations which the agency has reason to
believe occurred and statements made by an
agency official suggesting they have already
prejudged the merits of the adjudication.
Cinderella. This is a laxer standard than
adjudication as they serve differing functions.
Rulemakers must engage in discussion and policy
considerations. So long as they are not bound to
such a position forever, they are generally not
disqualified.
(2) In a rulemaking proceeding, an agency official is
disqualified where there is “a clear and convincing
showing that the agency member has an unalterably
closed mind on matters critical to the disposition of the
proceeding.” Natl Advertisers.
b) Ex Parte
(1) Ex parte communications refer to
communication between a judge and a party occurring
outside the presence of all parties. 5 USC 557(d)(1)
generally prohibits persons outside the agency from
knowingly communicating with any member of the
agency who may be reasonably expected to be involved
in a decision making proceeding.
 (a) Where ex parte contact nonetheless occurs,
a written summary of the communication must be
disclosed to the public in the rulemaking docket
immediately after so interested parties may
comment on it. HBO. This is a logical extension of
Overton whereby the public record must reflect the
representations made to an agency so reviewing
courts can appropriately review. Overton park.
(b) An agency determination must be reached
on the merits and in a manner prescribed by
statute. Where the decision is based on ex parte
contacts that are irrelevant or extraneous, the
agency has not done so. DC Civics Assoc.
C. Bad Constitutional Structure
1. Bad Appointment
a) The Presidential Appointment power is provided by Article
II Section II Clause 2. Under this clause, officers are either
Principal or Inferior Officers. Principal officers must be appointed
by the President and confirmed by the Senate. The clause also
provides that appointment of inferior officers may be vested in
the President alone, courts of law, or heads of department.
Employees, unlike officers, have no constitutional restraints on
appointment.
(1) Employee v Officer An Officer of the United States
is “any appointee exercising significant authority pursuant
to the laws of the United States.” Buckley. ‘Significant
authority’ is determined by assessing the extent of the
power wielded by the individual. Where the individual has
independent authority to conduct hearings and issue
decisions that are final, they are more likely to be an
officer. Further, Officers must occupy a continuing
position established by law. Lucia.
(a) In Buckley, the individual had authority to
make rules, formulate general policy, had primary
jurisdiction over civil enforcement and could
institute civil actions, they were an officer. Buckley.
 (2) Principal v Inferior Officer Whether an individual is a
Principal Officer or an inferior officer is governed by
Edmond. Edmond asks if 1) the officer has a superior and
2) if that officer is directed and supervised by another at
some level who was appointed by the President and with
the advice and consent of the Senate per Article II,
Section II, Clause 2. Morrison provides other relevant
factors asking whether the individual 1) is subject to
removal by higher office in exec 2) exercises limited
duties so as not to have policy 3) has assigned duties so
as to limit jurisdiction, and 4) has a temporary term of
office. Morrison.
(a) Morrison didnt limit presidential control
where AG could fire for good cause, their
appointment came from within the Executive, the
decision whether or not to appoint lied with
executive discretion, and they had to comply with
DOJ policy. Morrison.
2. Bad Removal
a) The President’s removal power is not explicitly provided
for in the Constitution. Instead, the removal power has been
inferred from the Executive’s vesting and faithful execution
clauses. A series of cases have given shape to the President’s
removal power of officers, among the most recent are Morrison,
Free Enterprise, and Seila. In Morrison, the Court upheld a
removal restriction on an independent counselour where the
restriction was of “such a natures as to not impede the
Presidents ability to perform his constitutional duty and
function.” Free Enterprise struck down a restriction on removal
which added a layer of protection to officers subject to ‘at will’
removal (i.e. the members of the PCAOB were only removable
by officers of the SEC who were in turn removable by the
President)
(1) Seila drew somewhat new lines around removal.
Seila recognized two exceptions to the unrestricted
removal power of the president: 1) allowing for cause
removal to multi-member, partisanly balanced, boards of
experts who performed legislative and judicial functions
but did not wield executive power (Humphries) and 2)
Inferior officers where the removal restriction does not
impede the president’s ability to perform his
constitutional duty. (Morrison).
(2) The POTUS may remove purely executive officials
at will. Myers.
 (3) Congress cannot retain removal power over officials
wielding executive power except using the impeachment
clause. Bowsher.
3. Bad Delegation
a) The nondelegation doctrine is a doctrine of
constitutional law whereby Congress cannot delegate its
Legislative power to any other branch of government. The
doctrine has its roots in Article I, Section 1 of the Constitution.
However, The Court has held that the non delegation doctrine
allows Congress to obtain the assistance of other branches.
Mistretta. Such a delegation is permissible where Congress’
delegation provides an intelligible principle to the
executive/agency, containing a general policy to be pursued and
setting boundaries on the agency’s authority. Gundy.
(1) Intelligible principles upheld: “to protect the public
health” Whitman, “public interest” National Broadcasting.
(2) The Subdelegation Doctrine bars Federal Agency
officials from further delegate decision making authority
to outside entities without affirmative evidence of
Congressional intent allowing authority to do so. US
Telecom.
(a) In Telecom, the Court struck down
subdelegation where Congress delegated authority
to FCC who subsequently subdelegated authority to
local regulatory commissions. US Telecom.

III. What’s the Review?

A. Question of INFORMAL Fact and Policy
1. Arbitrary and Capricious
 a) Arbitrary and Capricious review applies in informal
proceedings whereas substantial evidence review applies in
formal proceedings. While the arbitrary and capricious standard
is fairly differential, it is also referred to as a “hard look” review
and is searching and careful. Under Overton Park, reviewing
courts are to consider whether, given the administrative record
before the agency, the resulting decision was based on a
consideration of the relevant factors and whether there has
been a clear error of judgement.” State Farm elaborated,
noting an agency decision would be arbitrary and capricious
should the agency 1) rely on factors which Congress did not
intended it to consider, 2) entirely failed to consider an
important aspect of the problem, 3) offered an explanation for
its decision that runs counter to the evidence before the agency,
or 4) is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise. State
Farm.
(1) In State Farm, where the agency
(2) An agency changing its policy need not show the
new policy is better than the old one. Fox
B. Question of FORMAL Fact
1. Substantial Evidence Test
a) Substantial Evidence Review is outlined by Section
706(2)(E) whereby a court holds unlawful and sets aside agency
action findings, and conclusions found to be unsupported by
substantial evidence in a case subject to sections 556 and 557
of this title or otherwise reviewed on the record of an agency
hearing provided by statute. Section 706(2)(E). Substantial
Evidence Review is a fairly deferential standard and typically
applies in adjudications. Under Substantial Evidence Review,
reviewing courts should not substitute its judgement for the
agency’s. Universal Camera outlined the appropriate standard
of review for Substantial Evidence Review stating the evidence
supporting the conclusion must be more than a “scintila” and
should consider “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion . . .”
Moreover, under Substantial Evidence Review, the court must
take into account both the evidence supporting the agency
findings but also that evidence which detracts from the findings.
C. Question of Law
1. Meade
 a) Step 0 of Chevron - Where an agency interprets a statute
with the force of law, either Skidmore or Chevron deference will
apply. In determining which applies, the court should apply
Mead’s ‘step zero’ test. Under Mead, a reviewing court is to
determine 1) that congress delegated authority to the agency to
make rules carrying the force of law and 2) that the agency
invoked this authority when it interpreted the statute. Mead.
Congress delegates authority to the agency to make rules with
the force of law when congress authorizes the agency to use
rulemaking and adjudicative procedures. To the second step,
the agency has to then use that authority to claim chevron.
(1) Skidmore - Skidmore applies where agencies
interpret statutes without the force of law (i.e. a guidance
doc or informal adjudication). Under Skidmore deference,
ruling, interpretations and opinions of the agency are not
controlling but do constitute a body of experience that
should be afforded deference depending on the
thoroughness of the consideration, validity of its
reasoning, and consistency with other pronouncements.
Skidmore.
2. Chevron
a) Chevron deference most generally occurs when an
agency is making a determination of law. This could occur where
the act is contrary to constitutional right (2B), in excess of
statutory jurisdiction (2C), etc. Under Chevron’s framework, the
reviewing court must first “question whether congress has
directly spoken to the precise question at issue.” Where
congress has spoken to the issue, the reviewing court gives
effect to congress’ interpretation. If congress has not or if there
is ambiguity, the court must question “whether the agency’s
answer is based on a permissible construction of the statute.”
Chevron
(1) Chevron Step 0 - Chevron deference applies where
1) congress delegated to the agency the authority to
make rules carrying the force of law and 2) that the
agency determination claiming such deference was
promulgated using that authority. Meade.
(2) Step One requires the court apply traditional tools
of statutory construction to discern a clear meaning of the
statute. Where there is a clear meaning, that meaning is
applied and review ends.
(3) Step Two asks if the agency’s answer to that
ambiguity is “based on a permissible construction of the
statute.” Chevron.
3. Agencies interpreting statutes
 a) Judicial precedent only trumps agency construction when
the construction follows from unambiguous terms of the statute
leaving no room for discretion. Brand X. this applies temporally
and substantively.
b) A reviewing court must give chevron deference to an
agency’s interpretation of a statutory provision that is
ambiguous as to the scope of the agency’s jurisdiction.
Arlington.
4. Agencies interpreting own regulations
a) Agencies interpreting their own regulations are given a
large amount of deference. This type of deference is referred to
as Auer or Seminole Rock deference. Auer deference
provides the Agency’s interpretation of its own regulation is
controlling unless “plainly erroneous or inconsistent with the
regulation” though Kisor seemed to whittle it away to something
akin to Chevron (i.e. reasonableness). Auer. The rationale of the
defence rests in the logic that the author of the regulation is in
the best position to know what the regulation means. The Court
in Kisor expanded upon when Auer deference is due. Auer
deference applies when 1) the regulation is genuinely
ambiguous, 2) the agency’s reading is reasonable, 3) where the
character and context of the interpretation entitles it to
controlling weight (whether the interpretation was the agency’s
authoritative position and whether the interpretation implicated
the agency’s substantive expertise), and 4) the interpretation is
a fair and considered judgement and not a convenient post hoc
rationalization to aid in litigation. Kisor.