I.What are the Threshold Questions?

  1. Does the court have ability for judicial review?

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

Is the court precluded by statute?[2]

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

Is it committed to agency discretion by law?[4]

  • Review isn't available when the governing statutes are drawn in such broad terms that in a given case there is no law to apply[5];
  • OR when Congress intended that the agency have final authority over a decision;
  • OR when agency action is traditionally committed to agency discretion.
  • It remains a narrow one, but within this exception are included agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise.
  • Presumption of Unreviewability for Agency Inaction: there is a rebuttable presumption of unreviewability of agency inaction, as this is a matter committed to agency discretion.[6]
  • WITH INACTION, remember STANDING and FINALITY as well

B.Is there standing?

1.Is there Standing under the Constitution? (Defenders of Wildlife)

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

2.Is thereStanding under the APA? (ADAPSO)

  1. The Zone of Interests Test: did Congress intend to put P within zone of protected interests?
  • Here, the court has held that to have standing the plaintiff must show two things: a constitutionally sufficient injury and that "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question."
  • "Competitive Injury; a Regulated Party, or Beneficiary?"[10]

3.Other limitations and responses:

  • Congressional creation and citizen suits[11]; Generalized grievances are generally disapproved[12]; Associational Standing[13]
  1. Is the timing proper for review? In some cases, judicial review may not be sought too soon (ripeness), too late (mootness), or without exhausting administrative remedies.

1.Is the matter final or ripe for review?[14] (Abbott Labs, Toilet Goods Assn, Ticor[15])

  1. Finality and judicial review of agency adjudications: agency adjudications are final when the adjudicatory process has completely ended (including whatever appellate review is available within the agency) and the agency has issued its order.[16]
  2. Finality, ripeness and judicial review of agency rulemaking:
  3. Promulgation of a rule is final agency action under APA § 553 and § 704.
  4. However, a rule may be ripe for judicial review upon promulgation (before enforcement) if and only if the issues are FIT for judicial review and the party seeking review would suffer substantial hardship if review was delayed until enforcement.[17]
  5. If the fitness [if no further factual development is needed or purely legal questions] and substantial hardship [if it would be very expensive to apply immediately or other special problems] tests are not met, then the party must wait until enforcement.
  6. Finality, ripeness and judicial review of informal agency actions: when an informal agency action has the effect of granting or denying permission to take a requested course of action, a court may consider it final agency action even though the decision was made without formal proceedings.
  7. Approvals without rulemaking or adjudication procedures are often final.[18]
  8. Informal responses to inquires may also be final agency actions.[19]
  9. Finality, ripeness and judicial review of agency inaction or refusal to act: if the agency answers a request for action with a firm statement that it has decided not to act, that decision can be a "final agency action;" if not, then it probably is not subject to judicial review.
  10. This is especially true in cases of agency-prosecutorial discretion, unless the statute contains criteria under which the agency is required to act.

2.Is the party required to exhaust administrative remedies, and if so, did they? Ticor

  • APA Exhaustion doctrine: if the agency action is final under §704, no further exhaustion is required and review is available immediately.[20] Under §704, exhaustion is required only of those remedies expressly required by statute or agency rule.
  • In rulemaking, the claim must be raised before the agency by someone (American Forest & Paper Ass'n (5th Cir. 1998)), while in adjudications, that person must typically be the claimant, unless in non-adversarial cases like social security (Sims v. Apfel (2000)).
  • Exceptions: A party is not required to exhaust administrative remedies if (1) doing so would cause undue prejudice to the protection of the rights at issue; (2) the administrative agency lacks power to grant appropriate relief, or (3) it would be futile because of agency biases.

3.Is the case moot?

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

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

  1. Is it a factual or legal determination?
  2. Factual["the agency misread the facts in this case; the facts do not support the outcome"]
  3. Formal proceedings? ("Substantial Evidence Test": seeUniversal Camera)[21]
  1. In considering the whole record, could a reasonable juror reach same conclusion as agency?[22]
  2. The agency's decision based on credibility of witnesses is granted high deference.
  3. An agency head may decide a case without personally reviewing the evidence or thoroughly reading briefs or hearing oral arguments.[23]
  4. If agency head disagrees with ALJ, the court will side with ALJ if case rests on witness credibility, and will side with agency if the case is based on text, transcripts.[24]
  1. Informal proceedings? ("Arbitrary and Capricious Standard;" see§706(2)(A)).[25]
  2. Generally, this means that the agency considered factors outside the statutory requirements.
  3. The facts are subject to trial de novo by the reviewing court? (De novo; §706(2)(F).[26]
  4. Either the agency action is adjudicatory and the agency fact-finding procedures are inadequate or
  5. Issues that weren't before agency are raised in proceeding to enforce non-adjudicatory action.[27]
  1. Legal["the agency activity is illegal, whether procedurally or substantively"]
  2. Is it a proceduralchallenge ["the agency failed to give me enough or correct procedure"]?

Look at where it fits in APA box. Key questions below:

Rulemaking / Adjudication
Informal / § 553 (notice & comment, general statement of purpose)
  • Vermont Yankee[28]
  • "The RM Assumption"
/ § 555 (ancillary)
DP clause
  • Chem. Waste Mgmt

Formal / § 556-557
  • Florida East Coast Railway
/ § 554, 556-57
  • Seacoast
  • "The AD Assumption"

I.Does agency have choice between rulemaking and adjudication? Chenery/Mead/Morton[29]

  1. If the agency does not have a choice, then agency must have applied the only choice; if not, case closed.
  2. When agencies have discretionary choice between rulemaking and adjudication, they will check for abuse of discretion, and balance retroactivity v. purpose of statute[30]
  3. The court may set aside agency action because it used the wrong procedure, either rulemaking or adjudication, when:
  1. the agency lacks statutory authority to use the particular technique;[31]
  2. the agency used adjudication to make a binding statement of law or policy that is to be applied only prospectively;[32]
  3. the agency has used rulemaking to make a regulation that is retroactive, in the sense that it changes the legal consequences of completed past conduct [such retroactive rulemaking is unlawful unless specifically mentioned in statute; never happens][33]
  4. the agency uses adjudication to overrule a prior adjudication precedent on which a private party has relied, and at the same time, wishes to impose a retrospective monetary sanction (as opposed to declaratory or injunctive relief) based on already completed conduct[34]
  5. the agency's choice of procedure is in some other respect a flagrant abuse of discretion[35]
  6. in some circumstances, using adjudication to narrow the scope of an entitlement[36]
  7. the agency used adjudication to alter, make an exception to, or disregard agency position as stated in a regulation that is still in effect (agencies are bound by their own rules)[37]
  8. the agency used rulemaking to decide a purported question of fact that arises on a recurring basis in adjudication, but has:
  9. failed to allow an "escape hatch," which may be required
  10. misused this practice by applying it to a question of fact that really isn't generic in nature and needs to be decided case-by-case[38]
  1. Definitions and Formal Proceedings
  1. § 551: Definitions
  • Rulemaking: agency process for formulating, amending, or repealing rule
  • Adjudication: agency process for the formulation of an order
  • Rule: whole or a part of agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice req. of an agency and includes the approval or prescription for the future of rates, wages, etc.
  • Order: “the whole or part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form . . . including licensing.”
  1. § 556: Hearings
  • At taking of evidence, following can preside: agency;one or more members of the body comprising the agency; or ALJ
  • Person presiding at hearing may: Administer oaths and affirmations; Issue subpoenas; Rule on offers of proof and receive relevant evidence; Take depositions when the ends of justice would be served; Regulate the course of the hearing; Hold conferences for the settlement or simplification of issues
  • Party entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts
  • 556(d)  certain types of adjudications, can limit to written evidence
  1. § 557: Initial decisions
  • Applies when a hearing is required to be conducted in with § 556
  • §557(d)(1) = governs ex-parte contacts in formal proceedings

Few/Individual / Many/Generic
Retrospective Application / APA: Adjudication
DP: Adjudication / APA: Adjudication
DP: Rulemaking (DPC imposes no hearing requirements)
Prospective Application / APA: Rulemaking (unless licensing, which is Adjudication)
DP: Adjudication / APA: Rulemaking
DP: Rulemaking (no hearing)
  1. Is it rulemaking? (§553; §556-57)

i.Factors favoring rulemaking: affects many; prospective; make general policy[39]

ii.§ 553: Formal and Informal Rulemaking

  • Notice §553(b): must publish proposed rule in Federal Register.
  • Comment §553(c): “agency shall give interested person an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation”
  • Concise General Statement§553(c):after consideration of relevant matter presented, the agency shall incorporate in therules adopted a statement of their basis & purpose.
  • Good Cause §553(b)(B): agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest

iii.Is it formal or informal:if rulemaking, strong rebuttable presumption against hybrid or for informal unless specifically stated – find magic language (Fla. East Coast Railway)

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

Substantive / Procedural
Legislative
(force & effect of law) / Yes: Notice & Comment Required; § 553(a), then ask if there is a subject-matter exception under § 553(a) (military, grants, / No: §553(b)(A) ("rules of agency organization, procedure, and practice"); see also §553(a)(2) ("relating to agency management or personnel").
Non-legislative:
(1) interpretative rules
(2) policy statements / No: §553(b)(A) ("interpretative rules, general statements of policy") / No/No
  • Interpretative rule: clarify what the agency thinks the law is
  • Policy statement: future-oriented, predictive about how agency will enforce.

Procedures for Formal Rulemaking[40](§553; §556 & 557; Fla. East Coast Railway)

iv.Was there proper notice?

v.Was comment period sufficient?[41]

vi.Did the agency give a proper statement of purpose?[42]

vii.Can you waive notice/comment?

  • Does good cause exception apply?[43]
  • Merely elaborate old rule (no notice/comment req'd.) or substantive departure?

viii.Were there improper ex-parte contacts?

  • President, Congress, parties, or public interest[44](Costle; §557(d)(1) ~ formal)

ix.Bias or pre-judgment[45]

x.Is it agency non-enforcement of a rule?[46]

  • But…is there pattern of non-enforcement? Heckler (J. Brennan, concurring)
  • Does the action violate constitutional rights?
  • Is the agency refusing to enforce own rule? (the Accardi doctrine)

IV.Is it adjudication? (§554, §556-57)

i.Factors favoring adj: few affected, particularized facts, specific parties.[47]

ii.§ 554: Formal Adjudications (with §556-557) ("to be determined on the record after opportunity for an agency hearing").

iii.§ 554(c)  agency shall give all interested parties opportunity for:

  • Submission and consideration of facts, arguments, offers of settlement when time, the nature of the proceeding, and the public interest permit
  • To the extent parties can’t reach a settlement, they get a hearing and decision on notice and in accordance with §§556-57

Procedures for Formal Adjudication

  • Notice: 554(b)
  • Present Evidence. Affirmative/impeachment evidence: 556(d)
  • Cross-examination: 556(d)
  • Impartial judge: 554(d), 556(d)
  • Counsel: 555(b) (catch-all)
  • Argument: 556(d)
  • On the Record—judge can only rely on evidence before him: 556(e)
  • Statement of Decision/Record: 557(c)
  • Review (appellate process): 557(b)
  • Public/Jury: no APA right to this

iv.Formal or informal: with adjudication, presume formal unless specifically mentioned otherwise[48] (Seacoast, but seeChem. Waste Mgmt)

v.Does statute say “on the record” or “after hearing?” Fla. East Coast Rlwy

vi.Proper statement of decision under § 557? Armstrong (‘substantially correct’)

vii.Improper ex-parte contacts? § 557(d)(1)(A)

viii.Bias and pre-judgment[49]

ix.Does action involve federal funds or licenses? Overton Park (if so, it’s adj.)

  • Does § 555(e) apply? (brief statement of grounds for denial)

IV.Can court require additional procedure?

  1. Usually not, unless required by one of the following[50]
  • Due Process considerations (adjudication only): see discussion below
  • Organic (creating) statute requires more than APA, or agency regulation
  • Unjustified departure from procedures or extremely compelling circumstances[51]
  1. Is it a substantive challenge ["the agency's interpretation is inconsistent with statute or the agency misapplied the law to my particular facts"]?

I.Is the agency interpretation inconsistent with the statute?[52](Chevron/Mead/Hearst test)

  1. Is the statute clear and unambiguous?(Rust, Mead)

ii.If yes …the challenge fails – courts will read the statute and resolve "de novo"[53]

iii.If it’s ambiguous, ask: is the agency action reasonable?

  • If yes, defer to agency interpretation (look for an express delegation by gap or ambiguity). (Chevron)
  • If ambiguous & lacks force of law (e.g. policy statement), apply Skidmore[54] deference (power to persuade/based on agency expertise).
  • If it raises constitutional questions, less deference? (Rust)
  • Is agency interpreting a law it is charged to administer? (if no, don’t defer)
  1. Does the agency action in rulemaking satisfy State Farmhard look review? (~A&C standard)[55]
  2. Rely on irrelevant factors or fail to consider important aspect of problem?
  3. Offer explanation inconsistent w/ evidence before agency?
  4. Did the agency rely on post-hoc justifications? Not allowed (Overton Park)
  1. Is agency rescinding an old rule? State Farm (courts scrutinize closer)
  2. Were political factors at play? State Farm (Rehnquist concurring) (generally ok)

Formal Adjudication + Informal RM = Chevron deference (Arbitrary & Capricious)

Informal Adj. = Skidmore (?)

Agency Interpretative Rule ≠ Chevron deference, see Skidmore/Mead[56]

III.Did the statute or agency action violate separation of powers?

A.Was there a delegation of judicial authority? (Remember to scrutinize more closely than other delegations).

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

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

  1. Public Rights: the adjudication of public rights (claims against the government) may be assigned to administrative agencies.
  • Since the gov't was generous enough to create these rights, then there is no need for Art. III court or jury trial.
  • Basically, if the claim is based on a public right and there is appropriate judicial review available ("de novo on law" and "substantial evidence on fact"), the use of a non-Art. III court is almost certainly fine.
  • Private Rights: the adjudication of private rights disputes (legal disputes between private parties) in administrative agencies is suspect and may occur only under certain circumstances.
  • De novo review for questions of law and questions of jurisdictional facts.
  • Deferential review for questions of fact: (1) agency function similar to fact-finding juries; (2) preserves judicial power by not overwhelming courts with cases, while maintaining the essence of judicial review.[57]
  • Basically, if the claim is based on a private right, there must normally be both (1) adequate pre-enforcement judicial review, and a narrowly-tailored adjudicatory scheme based on application of federal statutory law to make use of a non-Art. III tribunal acceptable.
  • Adjudication based on constitutional law, state statutory or state common law needs Art. III.
  • Pragmatic test[58]: (a) particularized area of law; (b) court enforcement; (c) judicial review [de novo on law; substantial evidence on facts]; (d) freedom to choose Art. III courts.

In general, the Supreme Court polices Congress’ delegation of judicial power more closely than Congress’ delegation of legislative or executive authority.