Coenen Admin Outline Spring 2014

I. What is Administrative Law?

 A. Definition
o Administrative law is the branch of law that regulates the
exercise of authority by executive officials.

 B. Branches of the Administrative Process

o 1. Congress
 Has the responsibility to create agencies and delegate
powers to them.
o 2. President
 Oversees administration of the agencies. There are both
formal and informal means of control over the agencies.
 Involved in the appointment and removal of officers.
o 3. Courts
 Review the decisions of the agencies.
o 4. Agencies
 ex. EPA, NASA, DoJ

II. The (Lack of) Constitutional Limits on Delegation

 A. Nondelegation Basis
o Reasons to Delegate
  1. Expertise
 If issues are delegated people with a greater
amount of expertise can deal with the problem.
 2. Efficiency
 By delegating issues, rules can be created more
efficiently.
 3. Compromise
 Delegation allows congress to agree on the
general idea, and that it is generally a good idea
but allows them to delegate the specific details
that they can’t agree on. This way congress can
reach a compromise and pass something.
 4. Independence

 B. Old Nondelegation Cases

o 1. Hampton v. US
 There was a challenge to Congress’s delegation of
authority to the President to alter tariffs when he found
that statutorily established tariffs did not equalize the
cost of production between the US and foreign
countries.
 Intelligible Principle
 The court attempted to create a general standard
for distinguishing lawful and unlawful delegations.
 Under Hampton, a delegation is permissible when
Congress lays down, by legislative act, an
intelligible principle to when the person authorized
is directed to conform.
 There must be an intelligible principle to guide
administrative action.

o 2. Schechter Poultry v. US
  During the New Deal, a provision granted the President
the power to approve and make codes of unfair
competition that would be drafted and submitted by
private trade organizations. This was invalidated
because it contained insufficient standards guiding the
presidents discretion over the approval of a code.
 The problem is that the President could legally decline
to take action under any circumstances.
 The court also criticized the rule for granting private
organizations the power to create the codes without
notice or public procedures. The existence of statutorily
mandated agency procedures was an important
safeguard against the “evils of delegation.”
 The Court has only rarely invalidated congressional
action on the ground that it unlawfully delegates
legislative power from Congress to an agency.
Schechter represents the last time the S. Ct. struck
down a statute on nondelegation grounds.

o 3. The Benzene Cases

  The Court relied upon the nondelegation doctrine to
narrowly construe the OSHA’s authority to prescribe
occupational health and safety standards. Several
petroleum company’s challenged the OSHA’s regulation
that severely reduced permissible occupational
exposure to benzene, arguing that the rule was not
adequately supported by evidence that it was necessary
to protect health. The agency argued that it had a
statutory duty to regulate carcinogens to the lowest
possible level of exposure that was technologically
feasible. The court rejected the agency, and construed
the statute to require a threshold finding of a significant
risk in the workplace before they agency was authorized
to promulgate a workplace safety standard. Without the
significant risk requirement, the statute might be
unconstitutional under the nondelegation doctrine. The
violation would be the lack of guidance on when the
agency was authorized or expected to pursue a goal of
a virtually risk free workplace.
 Concurrence
 The concurrences argues that the statute violates
the nondelegation doctrine because the agency’s
choice of when to pursue the goal of a risk free
workplace is unconstrained.
 It also argues that the court should reinvigorate
the nondelegation doctrine because
 It forces congress to make policy choices
 It increases agency guidance
 It facilitates judicial review by requiring
more definite statutory standards.

 D. Whitman v. American Trucking Associations Inc.

 o Deals with the Clean Air Act which instructs the EPA to set air
quality standards for levels of particulate matter “requisite to
protect the public health” with an “adequate margin of
safety”. The American Trucking Assn challenged the EPAs
standard for ozone and particulate matter.
o (1) Statutory Question
 The statute says to set air quality standards based on
“public health”. The EPA says that since it doesn’t
mention costs, it shouldn’t have to consider them. The
defense says that “public health” should include the
damage to the public from damaging industry. The
court says that since the clean air act mentions costs
elsewhere but not here then the costs aren’t included in
public health.
o (2) Validity of Delegation
 Disagreement between majority and Steven’s
concurrence.
o The court found a violation of the nondelegation doctrine
because the EPA had not adopted an intelligible principle to
confine its own discretion. The problem was that there was no
preexisting principle in the statute, or in the rule.

III. Sources of Administrative law

 A. Sources of Administrative Law

o 1. Constitution
 The Constitution limits the types of power that agencies
may exercies, and limits the methods agencies may
employ to exercies that power.
o 2. APA
 The Administrative Procedure Act. A federal statute that
prescribes the procedures agnecies msut follow, and
establishes a framework for judicial review.
o 3. Enabling Acts
 The statute that establishes each agency and prescribes
its mission. They provide specific rules for each agency,
and can modify the APA with regard to that agency.
o 4. Common Law
 Before the APA, administrative law was regulated by the
common law. Courts still refer to common law doctrines
to explain the meaning or application of the APA.
o 5. Additional General Statutes

 B. APA

o 1. Rulemaking/ Adjudication
 There are two main forms of agency action. Rulemaking
under § 553 and Adjudication under § 554.
 Rulemaking is an agency process for the formulation,
amending or repealing of a rule.
 Adjudication is the agency process for the formulation
of an order. Infinite numbers of informal agency
adjudications occur every day.

o 2. Formal/ Informal
 If the language “Made on the record, after opportunity
for a hearing” is used, then the rule is formal and made
under § 556 and § 557. If that language is not used,
then the rule is informal and was created under § 553.
 The vast majority of rulemaking from agencies is
informal. Although formal rulemaking occurs, it is not
very common. The reason is because agencies were
designed to be efficient, and because congress has not
required formal rules.
Administrative Rulemaking
§ 553. Rulemaking

(a) Exclusions. This section applies, according to the provisions thereof,

except to the extent that there is involved -
(1) a military or foreign affairs function of the United States; or
(2) a matter relating to agency management or personnel or to
public property, loans, grants, benefits, or contracts.

(b) Notice. General notice of proposed rule making shall be published

in the Federal Register, unless persons subject thereto are named and either
personally served or otherwise have actual notice thereof in accordance with
law. The notice shall include -
(1) a statement of the time, place, and nature of public rule
making proceedings;
(2) reference to the legal authority under which the rule is
proposed; and
(3) either the terms or substance of the proposed rule or a
description of the subjects and issues involved.
Except when notice or hearing is required by statute, this
subsection does not apply -
(A) to interpretative rules, general statements of policy, or
rules of agency organization, procedure, or practice; or
(B) Good Cause Exception. when the agency for good
cause finds (and incorporates the finding and a brief
statement of reasons therefore in the rules issued) that notice
and public procedure thereon are impracticable, unnecessary,
or contrary to the public interest.
 (c) Comments and Concise General Statements. After notice
required by this section, the agency shall give interested persons an
opportunity to participate in the rule making through submission of written
data, views, or arguments with or without opportunity for oral presentation.
After consideration of the relevant matter presented, the agency shall
incorporate in the rules adopted a concise general statement of their basis
and purpose. When rules are required by statute to be made on the record
after opportunity for an agency hearing, sections 556 and 557 of this title
apply instead of this subsection.

(d) Publication. The required publication or service of a substantive

rule shall be made not less than 30 days before its effective date, except -
(1) a substantive rule which grants or recognizes an exemption or
relieves a restriction;
(2) interpretative rules and statements of policy; or
(3) as otherwise provided by the agency for good cause found and
published with the rule.

(e) Petition. Each agency shall give an interested person the right to
petition for the issuance, amendment, or repeal of a rule.

I. Rulemaking Basics

 A. Types of Rulemaking
o (1) Formal Rulemaking
o (2) Notice and Comment Rulemaking

 B. Demise of Formal Rulemaking

o Florida East Coast Railways establishes that the Supreme
Court, and thus all courts, have a very strong presumption
against reading an enabling statute as requiring formal
rulemaking procedures. If there is any indication of doubt
about congress’s intention, the court will assume that they
were not requiring formal rulemaking.
 o This means that unless congress specifically says “made on
the record, after an hearing,” or reference the trial
procedures in § 556 and 557 by name, an administrative
agency doesn’t have to use the formal process. Because it is
time and money consuming, they don’t.

 C. Vermont Yankee v. Natural Resources Defense Council

o Facts: Vermont Yankee Nuclear Power Corp sought permits to
build a nuclear power facility from the Atomic Energy
Commission. The NRDC objected to the issuance of a license,
and hearings were held. The AEC held hearings to assess the
environmental consequences of the spent fuel, but did not
offer the opportunity for formal trial type proceedings under
formal rulemaking. The issue is if the courts can require
additional procedures for agency rulemaking beyond those
expressed in the APA.
o The court held that courts did not have the authority to
require additional procedures beyond those found in the APA
except as might otherwise be required by other statute or the
Constitution.
o The internal tension of informal rulemaking is that always that
the rule creates efficiency and saves time for the agency, but
lessens the amount of time and individualization for each
case.
o Before creating the rule, the council had a hearing, however
this hearing would not be enough to satisfy formal rulemaking
because there was no cross examination.

II. Notice and Comment Procedures

 A. § 553 Requirements
o (a) Exclusions
o (b) Notice
o (c) Comments and Concise General Statements
o (d) Publication
o (e) Petition
 B. Notice Requirement

o 1. What is it?
 Under Notice and Comment rulemaking, the first step is
for the agency to give notices to the public of their
intended rule.

o 2. What is Required?

 a. § 553(b)
 The notice shall include—
 (1) a statement of the time, place and
nature of public rulemaking proceedings
 (2) reference to the legal authority under
which the rule is proposed and
 (3) either the terms or substance of the
proposed rule or a description of the
subjects and issues involved.

 b. Terms or Substance
 While the APA does not require the agency to
publish the actual proposed rule, practically every
notice does contain the actual text of the rule.
They also explain what they are trying to do in
the rulemaking and the provisions of the rule in a
preamble.

 c. Time, Place, Nature

 Time is the time when comments will be received,
and the time of any oral hearing.
 The place is the address where persons should
send comments and where any hearings will take
place.
 The nature is whether the rulemaking is formal,
informal, or notice and comment.
  d. Legal Authority
 Gives the public the citation of the legal basis for
the rule.

 C. Concise General Statements

o The response to comments received by the agency is a
“concise general statement of their basis and purpose.” This
statement repeats the agency’s explanation of the what the
rule is trying to accomplish, but modified in light of the
information and comments received.
o The statement must contain a reasoned explanation for the
agency’s decision and respond to substantial comments on
important issues in the rulemaking. This is intended as a
safeguard against arbitrary agency decision making because
it requires the agency to give reasons for rules.
o Agencies are not required to explain every factual legal or
policy element of the decision, but they must inform the
public of their views on the major issues that were decided in
the rulemaking.

 D. US v. Nova Scotia Food Products

o 1. Facts
 The FDA created a rule requiring a certain heat and salt
level in smoking fish as a means of reducing cases of
botulism. Nova Scotia did not like this rule because the
speicific requirements would ruin the production of
certain white fish. They refused to follow the new rule
and the FDA sued them. As a defense, Nova Scotia said
that the rule was invalid because it did not fulfill
rulemaking requirements.
o 2. Procedural Problems
 a. They did not disclose their data.
  The FDA did not share their data they used in the
creation of the rule. This means that those people
who commented on the new rule were unable to
adequately address all of the issues.
 b. Failure to respond adequately to comments.
 The FDA did not respond to any of the comments
on their new rule. In response to the new rule,
the manufacturing company commented on the
fact that some fish had a much lower risk of
botulism than others, and that the new required
process would ruin the commercial viability of
some types of fish both by the cooking
requirements making the fish unpalatable and by
making the process more expensive. Both of
these issues supported their idea that different
standards for each type of fish would make a
better rule. The FDA did not respond to these
comments in their new rule.
o 3. Reconciling with Vermont Yankee
 Nova Scotia said that although there was a show of
fulfilling the notice requirement, it was not actually
done because the commenters did not have the data
the rule was based on, and because their comments
were not considered or responded to.
 The concern with Nova Scotia wasn’t that the FDA’s
concise general statement didn’t respond to every
comment, but because it failed to respond to the most
important issues raised by the comments.
o 4. Concise General Statement
 The concern in Nova Scotia wasn’t that the FDA’s
concise general statement didn’t respond to every
comment, but because it failed to respond to some of
the most important issues raised by the comments.

III. Exceptions
 A. Military, Foreign Affairs, Contracts

o 1. § 553 Exclusions
 § 553(a) excludes certain types of rulemaking from
having to fulfill the requirements in § 553.
 Excluded Areas
 Military and Foreign Affairs functions of the US
 Rules about agency management and personnel.
 Rules about agency contracts and loans.
 These types of rules are exempted from ALL of § 553’s
requirements.

o 2. Military and Foreign Affairs Exemption

 There is an exemption for military and foreign affairs
functions, which is based on a desire not to impede
military operations or interfere with foreign relations by
subjecting decisions in these areas to publicity.
 This exemption is only to be applied as necessary to
serve its purposes.

o 3. Agency Management and Contracts

 Although this might appear to apply broadly to
regulatory actions, most agencies have voluntarily
waived this exemption, or must used notice and
comment rulemaking because of requirements in their
enabling statute.

 B. Good Cause Exception

o 1. § 553(b)(3)(B)
 “When the agency for good cause finds (and
incorporates the finding and a brief statement of
reasons therefore in the rules issued) that notice and
public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.”
 o 2. The Good Cause Exception
 Requirements
 The Agency must find that there is good cause not
to provide notice and opportunity for public
participation, because doing so would be
 Impracticable
 Unnecessary or
 Contrary to the public interest.
 The agency must also put their finding of good
cause, and their reasoning into the rule when it is
adopted.

o 3. US v. Dean
 Dean is a sex offender who was moving to a different
state. Under new statute SORNA, a sex offender has to
register in the new state they move to. The issue is if
SORNA is retroactive, and reaches back to people
whose move occurred before SORNA was enacted.
 Congress refuses to answer the question, and delegates
the decision to the attorney general. They essentially
delegate it to the Department of Justice, an agency.
Why would they delegate the decision to the DoJ?
 (1) Expertise
 The department of justice has greater
expertise on the number of sex offenders
and their crimes.
 (2) Lack of Management
 (3) Escape Accountability
 Congress can escape accountability with the
public if the decision was made by the DOJ.
 (4) Ensure Flexibility
 The DoJ can change and modify their rule
easily, while it is very difficult for Congress
to change a rule once made.

 D. Nonlegislative Rules
o 1. What are They?

 a. Legislative Rule
 A legislative rule is a rule that adds to or changes
legal requirements. A legislative rule effects an
actual change in existing law or policy and it
creates new rights or duties. A legislative rule has
actual legal effect in subsequent agency
proceedings, while a nonlegislative rule does not.

 b. Interpretive Rules
 An interpretive rule is one that interprets existing
legal duties, without adding anything to existing
legal rules. It must merely inform the public of
the agency’s views on the meaning of existing
regulations. These often have substantial impact
on the actions of regulated parties, because they
following the interpretation of the agency in an
effort to avoid getting sued.
 Agencies often issue guidance to the statutes they
pass. These guidance documents can either be a
nonlegislative rule, or a legislative rule.
 If the guidance document is nonlegislative, it does
not have to follow the requirements of § 553,
including notice and a hearing. However if the
guidance is legislative it does have to follow the
requirements.

 c. Guidance Documents
 A guidance document advise regulated parties of
agency policy without legal effects. They are an
attempt by the agency to avoid notice and
comment rulemaking.
 However, the problem is that agencies often treat
these documents as if they are binding.
  d. General Statements of Policy
 A general statement of policy informs the public
of the agency’s policy views, but does not add to
or alter existing legal rules. An agency cannot rely
on a general statement of policy as law, because
it only announces what the agency seeks to
establish as policy.

o 2. Why Except Them?

 § 553 exempts interpretive rules, general statements of
policy, and rules of agency organization.
 That is because these types of rules are not binding
law, and therefore do not need notice and comment
before they can be enacted.

o 3. When is a Rule Interpretive?

 a. Substantial Impact Test

 Prior to Vermont Yankee, the court looked to the
practical effect of the rule to determine if it had
substantial impact. If it did, then it required notice
and comment. However, Vermont Yankee held
that courts do not have the authority to require
additional procedures beyond those found in the
APA.
 This transformed the test into what constituted an
interpretative rule. If the rule did not have
substantial impact it was interpretative, and did
not require notice and comment. If the rule did
have a substantial impact, then it was not
interpretative and did require notice and
comment.
 This rule is highly disfavored.

 b. Force of Law Test

  If the rule is legally binding on persons outside
the agency, by creating rights, imposing
obligations or changing existing law, it cannot be
an interpretative rule. Whether the rule is “legally
binding” is determined based on a number of
factors.

 c. “Force of Law” Factors

 (1) Whether in the absence of the rule there
would not be an adequate basis for enforcement.
 With or without the rule, the agency can
enforce the commands of the statute, as it
interprets them.
 (2) Whether the rule interprets a legal standard or
makes policy
 The use of interpretive tools indicates that
the rule is interpreting a legal standard.
 The level of specificity of a rule also
indicates when it is interpreting a standard.
For example, turning “reasonable” into a set
number.
 (3) If an agency is interpreting a legislative rule,
whether the claimed interpretative rule is
consistent with the rule it’s interpreting.
 If a rule is inconsistent with the legislative
rule, it cannot be accurately interpreting it.
 (4) Whether the interpretive rule is inconsistent
with prior, longstanding, definitive interpretation.

 (5) Whether the agency contemporaneously
indicated that it was issuing an interpretative rule.
 Courts often give substantial weight to the
agency’s characterization of a rule. By
announcing a rule as interpretive, the
agency is telling the public that it is not
blinding.
  (6) Whether the person signing the agency
document had the authority to bind the agency or
make law.

o 3. General Electric v. EPA

 A guidance document was invalid without notice and
comment because the applicant following it was assured
that it had satisfied certain requirements for a permit.

o 4. Center for Auto Safety v. NHTSA

 The court places a lot of weigt on the fact that most of
the language in this guidance gives a lot of wiggle
room.

o 5. Jurisdictional Issues
 In both GE and NHTSA the court considers jurisdictional
issues, and in both cases in solving the question of
jurisdiction they solve the issues in the merits of the
case.
 In determining whether there has been a final rule or
not, you apply the same basic distinction between a
legislative and an interpretive rule that is in debate in
the case. The question at the heart of jurisdiction is the
same question at issue on the merits.

IV. Presidential Involvement in Agency Rulemaking

 A. Structure of the Executive Branch

o The president oversees regulatory processes
o OIRA
 The Office of Information and Regulatory Affairs
 EO 12866 creates an area of centralized review of all
regulatory agencies before they reach people.
o EO12866 was issued by President Clinton, and has been
amended and supplemented by late executive orders.
 o The purpose of EO 12866 is to reform and make more
efficient the regulatory process, which it does in four ways.
 It prescribes principles of regulation for agencies to
follow to the extent permitted by law and where
applicable.
 It requires each agency annually to prepare a
regulatory agenda that includes a regulatory plan,
which identifies the most important regulatory actions
the agency plans to take the next year.
 The Administrator of OIRA convenes meetings and
conferences that bring together a regulatory working
group of agency heads and regulatory advisors.
 It requires “centralized review of regulations,” requiring
that the agency sent OIRA a detailed assessment of
each significant regulatory action.

 B. EO 12866

o 1. Mechanics

 a. Section 4 Planning Mechanisms

 i. Agency Policy Meeting
 “The Vice President shall convene a meeting
of the Advisors and heads of agencies to
seek a common understanding of priorities
and to coordinate regulatory efforts to be
accomplished in the upcoming year.
 Meeting planned by the vice president of the
advisors and head of agencies to find a
common understanding of priorities.
 ii. Unified Regulatory Agenda
 “Each agency shall prepare an agenda of all
regulations under development or review.”
 iii. Regulatory Plan
  “Each agency shall prepare a regulatory
plan of the most important significant
regulatory actions that the agency
reasonably expects to issue that year.”
 iv. Regulatory Working Group
 “The Administrator of ORIA shall convene a
regulatory working group, which shall
consist of representatives of the heads of
each agency… The working group shall
serve as a forum to assist agencies in
identifying important regulatory issues.”
 v. Conferences
 “The Administrator of OIRA shall meet
quarterly with the representatives of State
and local governments to identify existing
and proposed regulations that may uniquely
affect them.”

 b. Section 6 Centralized Review of Regulations

 (1) Nonsignificant
 No OIRA action.
 (2) Significant
 Cost Benefit analysis
 Test of the action
 Description of the need for the action.
 (3) Economically Significant
 Same as significant, but a more detailed
cost benefit analysis and an assessment of
regulatory alternatives.

o 2. Consequences
 Section 10
  This is a section on judicial review, stating that
nothing in the executive order shall affect any
part of judicial review of agency action. The order
is only intended to improve internal management,
and not to create any substantive or procedural
rights or benefits that are enforceable at law.
 If courts cannot punish you for ignoring the order,
why would an agency official follow OIRA review?
The president can deal with the issue by firing or
replacing personnel.

 C. The Pressure Rule

V. Ex Parte Contacts in Rulemaking

 A. Ex Parte Contacts
o An oral or written communication relevant to an agency
proceeding between the agency and another party that is not
on the public record.
o These types of communications are prohibited. After
publication of the notice of proposed rulemaking, there can be
no ex parte communications with interested persons. If any
take place, the agency must place them on public record and
allow others to respond.

 B. Concerns about Ex Parte Contacts

o 1. Public Not Aware

 The public is not aware of the content of ex parte
contacts, which means they are not fully aware of all
information and reasoning that went into the creation of
the rule. This makes it difficult to make comments and
responses on the rule that are fully relevant to the
agency’s decision.

o 2. Incomplete Record
  The ex parte contacts are not on the public record. If
the rule is challenged in court, the agency will have to
defend the rule on the basis of the information on the
public record. An ex parte contact could therefore not
be used in court.

o 3. Undue Influence/ Agency Capture

 An Ex Parte Contact may gain undue influence over the
agency, and their communications need to be public in
order to prevent that. There is the risk that the Ex Parte
Contact could “capture” the agency, and only have
regulations passed that they approved of.

 C. Benefits of Ex Parte Contacts

o 1. Futility
 It is essentially futile to try to eliminate communication
between the agency and other parties outside of notice
and comment. There will always be some
communication.

o 2. Inefficient
 The need to make public record of any communication
any one may have with the agency creates
inefficiencies. A very important person outside the
agency, who would have a lot of influence over the final
regulation, would be able to tell the agency what they
will or won’t say during notice and comment, so that
the agency doesn’t bother with it for a rule that will
have to be changed anyway.

o 3. Facilitate Helpful Negotiation and Information

Sharing
  Outside contacts often have very useful information that
the agency may need to create the regulation. The
requirement of public notice means that that
information cannot be shared as easily and will hinder
the development of the regulation.

 D. HBO v. FCC
o The decision seems to say that a rule was invalid because
there were communications that weren’t on the record.
o This case was decided before Vermont Yankee and has been
significantly scaled back from when it was first passed.
However, it has not been entirely overruled. Now the only
situation where the holding really applies is where the
communications were so egregious and substantial to the rule
making process that to not put them on the record is
detrimental.
Administrative Adjudication
§ 554. Adjudications

(a) Exceptions. This section applies, according to the provisions

thereof, in every case of adjudication required by statute to be determined
on the record after opportunity for an agency hearing, except to the extent
that there is involved -
(1) a matter subject to a subsequent trial of the law and the facts
de novo in a court;
(2) the selection or tenure of an employee, except an
administrative law judge appointed under section 3105 of this title;
So in original.
(3) proceedings in which decisions rest solely on inspections, tests,
or elections;
(4) the conduct of military or foreign affairs functions;
(5) cases in which an agency is acting as an agent for a court; or
(6) the certification of worker representatives.

(b) Notice. Persons entitled to notice of an agency hearing shall be

timely informed of -
(1) the time, place, and nature of the hearing;
(2) the legal authority and jurisdiction under which the hearing is
to be held; and
(3) the matters of fact and law asserted.
When private persons are the moving parties, other parties to the
proceeding shall give prompt notice of issues controverted in fact or
law; and in other instances agencies may by rule require responsive
pleading. In fixing the time and place for hearings, due regard shall
be had for the convenience and necessity of the parties or their
representatives.

(c) The agency shall give all interested parties opportunity for -
(1) the submission and consideration of facts, arguments, offers of
settlement, or proposals of adjustment when time, the nature of
the proceeding, and the public interest permit; and
 (2) to the extent that the parties are unable so to determine a
controversy by consent, hearing and decision on notice and in
accordance with sections 556 and 557 of this title.

(d) The employee who presides at the reception of evidence pursuant

to section 556 of this title shall make the recommended decision or initial
decision required by section 557 of this title, unless he becomes unavailable
to the agency. Except to the extent required for the disposition of ex parte
matters as authorized by law, such an employee may not -
(1) consult a person or party on a fact in issue, unless on notice
and opportunity for all parties to participate; or
(2) be responsible to or subject to the supervision or direction of an
employee or agent engaged in the performance of investigative or
prosecuting functions for an agency.
An employee or agent engaged in the performance of investigative
or prosecuting functions for an agency in a case may not, in that or
a factually related case, participate or advise in the decision,
recommended decision, or agency review pursuant to section 557
of this title, except as witness or counsel in public proceedings. This
subsection does not apply -
(A) in determining applications for initial licenses;
(B) to proceedings involving the validity or application of
rates, facilities, or practices of public utilities or carriers; or
(C) to the agency or a member or members of the body
comprising the agency.

(e) The agency, with like effect as in the case of other orders, and in
its sound discretion, may issue a declaratory order to terminate a
controversy or remove uncertainty.

I. What is Formal Adjudication and When is it Required?

 A. APA Adjudication Provisions

o 1. § 554 Adjudications
  This is exclusively about formal adjudication. There is
also some rules in § 556 and § 557 on formal
adjudication.
 The APA is silent on informal adjudications.
 The big question is “How do you know when formal
adjudication is Required?”

o 2. Notice Requirement
 A person being brought before the agency must be
provided with notice of
 the time, place, and nature of the hearing,
 the legal authority and jurisdiction where the
hearing is being held, and
 the matters of fact and law asserted.
 The purpose is to inform the defendant as to the nature
of the charges against him, and the facts supporting
those charges so that he may mount a defense.

 B. When is Formal Adjudication Required?

o 1. Pre Chevron
 When there was doubt about what sort of adjudication
should be required, that doubt should be resolved in
favor of the requirements of the APA.

o 2. Post Chevron
 Accord Chevron deference to agency determinations
about when on the record adjudication is required.

 C. What does formal adjudication entail?

o § 554 requires that in cases of an adjudication that is
statutorily required to be determined on the record after
opportunity for an agency hearing, the agency must follow
procedures outlined in § 556, and 557. These are:
 1. The agency must give notice of legal authority and
matters of fact and law asserted. § 554(b)
  2. The oral evidentiary hearing must be presided over
by an officer who can be disqualified for bias. § 556(b)
 3. Presiding officers cannot have ex parte
communications. § 554(d), 557(d)(1)
 4. Parties are entitled to be represented by attorneys. §
555(b)
 5. The proponent of an order has the burden of proof. §
556(d)
 6. A party is entitled to present oral or documentary
evidence. § 556(d)
 7. A party is entitled to conduce such cross examination
as may be required for a full and true disclosure of the
facts. § 556(d).
 8. Orders can be issued only on consideration of the
record of the hearing. § 556(d).
 9. The transcript of testimony and exhibits is the
exclusive record for decision and shall be made
available to all parties. § 556(e).
 10. The decision must include findings and conclusions,
and the reasons or basis therefor, on all the material
issues of fact, law, or discretion presented on the
record. § 557(c)(3)(A).

 D. Note Cases

o 1. Seacoast Anti-Pollution League v. Costle

 (p. 270) The New Hampshire public service company
sought a permit to discharge water that had been
heated to remove bacteria. Heat is considered pollution
and under FWPCA, it’s dischare is prohibited without an
EPA permit. This means they need an exemption,
which requires an “opportunity for public hearing”
  The specific words “on the record” are not necessary to
trigger the APA. In order for on the record adjudication
to be required, it must be the substantive nature of the
hearing intended in the statute creating the agency.
Establishes a rebuttable presumption that a statute that
calls for a public hearing should be read to require an
hearing in compliance with the formal provisions on the
APA.
 Pre Chevron.
 It applies a pretty strong presumption of formal
adjudication. If there is any suggestion of formality, the
court will assume that § 554 applies.

o 2. Chevron v. NRDC (Part 1)

 Under Chevron, if congressional intent is unclear and an
agency’s interpretation of a statute that it administers is
reasonable an inquiring court must defer to that
interpretation.

o 3. Dominion Energy Brayton Point v. Johnson

 Post Chevron.
 Like Seacoast, about an request for a discharge permit
for heated water, this time water used to cool a nuclear
power generator. They had been approved for 30 years,
when the EPA decided not to renew their permit, and
refuse to grant a hearing. Dominion sued.
 Discusses the supreme court’s holding in Chevron v.
NRDC. Chevron instructed courts to defer to agencies’
own interpretations of their enabling statutes, rather
than evaluate these interpretations de novo.
 Why does the court’s holding in Chevron carry
significance with respect to the issue of determining
when a statute calls for formal, rather than informal
adjudication.

 E. Citizens Awareness Network v. US

 o What does formal adjudication entail?
o Study guide for the requirements for formal adjudication. (p.
267)
o The Nuclear regulatory commission was created with a statute
requiring a hearing upon the request of any person who may
be affected. This was interpreted as requiring on the record
hearings in accordance with the APA. Licensing hearings were
taking years and years, so the agency created a new set of
procedures that:
 Did not provide for traditional discovery and instead
allowed mandatory disclosures.
 Made cross examination no longer available as of right,
but could be granted on request if it is necessary to
ensure the development of an adequate record.
o The citizen awareness network sued, saying the new
procedures did not satisfy the APA.
o The court said that they did satisfy the APA. Following
Vermont Yankee, they could not impose procedural
requirements above and beyond those mandated by statute.
The APA requires only that the agency provide a hearing
before a neutral decision maker that allows each party the
opportunity to present his case with oral or documentary
evidence, and to conduct what cross examination in
necessary for full and true disclosure of the facts.
o They said that discovery was not mandated by statute,
because there is no way to say that with out it, there is no
means for a petitioner to adequately present their case.
o They also said that cross examination by right is not required,
because allowing cross examination upon request is
satisfactory under the APA’s requirements.

II. Separation of Functions

 A. Structure of Administrative Adjudication

o 1. Overview of the Process

  Begins with an official hearing by an agency official.
This is held by an administrative law judge.
 The ALJ will render a decision by holding a hearing, and
finding facts. This decision can be appealed to an
agency appeals board. Their decision can be appealed
to the head of the agency, and eventually the agency
will reach a final decision. That decision can go up for
judicial review in federal courts.

o 2. Requirement of an Impartial Presiding Officer

 There are two main concerns about a presiding officer
that is not partial, or has taken some role in the
investigation.
 1. That officer is biased towards a particular
decision, because he’s already put substantial
effort into supporting it.
 2. That officer knows much more about the issue
than will ever be on the record, so the defendant
cannot fully refute any of the decisions.
 § 554(b)
 gives various rules about the impartiality of the
presiding officer.
 The ALJ is technically an employee of the agency over
whose adjudications he will preside, however he is
supposed to be neutral and impartial in deciding cases
before him, even though the agency will be a party to
the proceeding.
 This impartiality is preserved through personnel laws:
 Agencies have little control over who is hired, as
hirings are controlled by the office of personnel
management. The agencies must choose from the
top three candidates, and cannot pass over a
veteran.
 Agencies cannot reward or punish ALJs, who are
exempt from annual performance ratings.
  ALJs have a right to a formal adjudication before
they may be fired, heard by another independent
agency.

 B. Separation of Functions

o 1. § 554(d)
 Part one bars the ALJ from consulting a person “on a
fact in issue” unless notice to and with an opportunity
for all parties to participate.
 Part two insulates the ALJ and his decision for the
agency likely to be involved in litigating the issue before
the ALJ.

o 2. Separation of Functions
 The second part of § 554(d) prohibits any employee or
agent of the agency, who is involved in the investigative
or prosecuting functions of the agency, from
 being in a position of authority over the ALJ or
from participating or
 advising on the ALJ’s decision or its review,
except as counsel or witness.
 This is known as the separation of functions provision,
as it requires that the agency separate fully the
functions of investigating and prosecuting cases, and of
advising the agency.

o 3. Exceptions to Separation of Functions

 a. Initial Hearings
 The separation of functions does not apply to
formal adjudications that involve applications for
initial licenses, or the validity of rates, facilities or
practices of public utilities.
  Basically, when a court is holding an initial
hearing, they may consult off the record on a fact
at issue with someone else from within the
agency. However the ex parte communication bar
in § 557(d) still applies to outside persons.
 The theory is that the agency is not in an
adversary relationship with the outside party in an
initial hearing. This means the safeguards in the
separation of function are not necessary to
protect fairness.
 Reasons for the exception:
 The routine character of most initial
licensing decisions
 The need for unusually full engagement of
an agency’s expert staff
 The improbability that license applications
will involve the kinds of disputes for which
we demand trials
 The likelihoods that issues that affect the
license applicant’s particular interests also
affect a wide range of community interests.

 b. Inagency Hearings
 The separation of functions also does not apply to
the agency or a member of the body comprising
the agency.
 A “member” is a member of the board or
commission that constitutes the ultimate
decision making body in the agency.
 This exception exempts the head of the agency
from the prohibitions on consulting with the ALJ
on a fact at issue, on having authority over the
ALJ, and on participating in the ALJ’s decision or
the agency review of that decision.
  The theory behind this exception is one of
necessity. The head of the agency is necessarily
involved in prosecutorial and investigative
functions, but the head of the agency is also
necessarily has authority over the ALJ who is
technically an employee of the agency.

 D. Grolier v. FTC
o There is a concern that if the requirements for an impartial
presiding officer are too stringent there will be a lack of
expertise. One of the benefits of an ALJ from the agency is
that they will have some of the necessary expertise to
adjudicate the case.

 E. Nash v. Bowen
o There are three reforms proposed:
 1. A peer review program.
 2. Requires a minimum number of dispositions per
month.
 One concern is that it’s much easier to confirm a
decision than it is to reverse. If you’re under a
time pressure to decide a certain number of
decisions a month it might correlate to a pressure
to affirm cases.
 3. A quality assurance program.
 The basic idea is that the head of the agency
wants the ALJs to come out on the side of the
plaintiff approximately 50% of the time.
 The court expresses the most concern with this
requirement, but ultimately upholds it because it
is a soft aspirational policy, not a requirement.

 F. FTC v. Cement Institute

o asdf

III. Ex Parte contacts and Outside Influences

 A. Ex Parte Rules

o 1. Two Governing Rules

 § 554(d) bars the ALJ from consulting a person, even
one inside the agency” on “a fact in issue.”
 § 557(d) bars ex parte communications “relevant to the
merits of the proceeding” with persons outside the
agencies.

o 2. Ex Parte Communications
 Ex parte communications are a communication to a
judge by a party or outside person, to a proceeding
outside the presence of all other parties. They are
defined as “an oral or written communication not on the
public record with respect to which reasonable prior
notice to all parties is not given”

o 3. Prohibition of Ex Parte Communications

 Ex parte communications that are “relevant to the
merits of the proceeding” between any ‘interested
person outside the agency” and a member of the
agency, an ALJ, or any employee who is involved in the
decision making process.
 They are usually prohibited because they
undermine the fundamental fairness of a
proceeding that rests upon adversary
presentations.
 The limitation to communications relevant to the
mertis means that it is not a violation to talk
socially with an ALJ.
 It also extends beyond communications by a
party to “any interested person.”
 This also includes communications initiated by
someone from within the agency.
o 4. Remedies for Ex Parte Communications

 a. Public Record
 If a prohibited ex parte communication occurs, it
must be placed on the public record. If there is a
communication the parties don’t know of, the first
response is to notify them and give them the
opportunity to respond.

 b. Reverse the Decision

 If the communication is not discovered until after
the proceeding, a court could reverse the decision
if they believed there was any reasonable
likelihood that the ex parte communication
affected the agency’s decision.

 c. Find Against Party

 If an communication is “knowingly” made by a
“party” the ALJ or agency may find against the
party on the grounds of having knowingly violated
the prohibition. However this is an extreme
remedy, not to be used unless it is consistent with
the interests of justice.
 554(d) 557(d)
Who Presiding Anyone
does it apply officer (ALJ) “reasonably expected to
to? be involved in
adjudication”
Other Anyone Interested persons
party to the outside the agency
contract?
Subject “fact at Issue relevant to
of issue” the merits of the
communication proceeding
Remedy Disqualificat Reverse an agency
ion of the ALJ decision if undixclosed
Disclosure EPCs that “taint” the
of ex parte outcome of the case.
Exempt Agency No exemptions
heads
 B. PATCO v. FLRA
o Illustrates the requirements of APA § 557(d), and to a lesser
extent the related ex parte provision in §554(d).

 C. Portland Audubon v. The Endangered Species Committee

o Touches on the important separation of powers issues.

 D. Pillsbury v. FTC
o asdf

IV. Informal Adjudication

 A. Informal Adjudication

o 1. Informal Adjudication Requirements

 1. There is a right to counsel
 Not a right to be provided counsel, just a right to
bring your own counsel.
 2. Render the decision within a “reasonable time”
 A year is considered a reasonable time.
 3. Statement of the “grounds for denial”

o 2. Informal v. Formal
 The particular statutes under which informal
adjudications take place may specify certain
procedures.
 Typically, agencies also adopt regulations specifying the
procedures for their informal adjudications. These
procedures often come close to those required for
formal adjudications.
 The most notable differences is that only an ALJ may
hear an APA adjudication, while they almost never
preside over an informal adjudication
  The most important requirements on informal
adjudication comes from the Due Process Claus, which
applies to adjudications regardless of their formality.
The procedural requirements of the APA fully meet due
process requirements.

o 3. § 555
 § 555 contains provisions applicable to all agency
proceedings, including formal and informal
adjudications.
 It provides that
 Persons required to appear before an agency may
be represented by counsel, that they must supply.
 A party has a right to appear in person or by
counsel in an agency proceedings.
 Interested persons who are not parties, are
allowed to appear before the agency “for the
presentation, adjustment, or determination of an
issue, request, or controversy in a proceeding.”
 Agencies are required to conclude matters “within
a reasonable time” and to give “prompt notice” of
denial of any application.

o 4. PBGC v. LTV Corp

 The pension benefit guaranty is a federal government
security that secures pensions for employees in case a
company goes bankrupt.
  LTV goes bankrupt. PBGC comes in and says that they
will help fulfill employees pension plans but at a
reduced rate. The employees are not happy because
they’ve been reduced and they complain. PBGC says
that’s okay because they now have federal government
support, and they can redo the pension contracts so
that the employees get the same amount. The federal
government is upset, because they’re coming into help
out the bankrupt LTV and they should be doing so at a
reduced rate that the original pensions. (Generally, the
facts are incredibly complicated, so reread them)
 Extends the logic of Vermont Yankee to the context of
judicial review of informal adjudication.

 B. Immigration Courts
o Immigration proceedings are informal proceedings, even
though they have a very strict set of procedures.
o The only way to know for sure if a proceeding is formal or
informal is to check the enabling statute.

V. Using Adjudication to Set Agency Policy

 A. Choosing Policymaking Mode

o 1. Using Adjudication for Making Policy

 Agencies can make policy through adjudication. As they
adjudicate different cases, and issue opinions explaining
their reasoning, people would eventually come to know
the requirements they need to follow to get through
adjudication.
  The problem with this is the consequences for the first
few people who are brought in for adjudication. They
will have no real notice or knowledge of the necessary
standards, so they have know way to know what they
can and can’t do. If they are heavily fined, or if they are
prohibited from action based on rules they didn’t even
know, it’s a problem.

o 2. Adjudication v. Rulemaking
 asdf

 B. SEC v. Chenery
o Chenery Principle
 The scope of judicial review of an administrative policy
has to be isolated to the particular grounds that the
agency used in the court below. This doesn’t prohibit
the agency from using those defenses and justifications
for their ruling later on remand, but they cant bring
them in to an already existing case.
o Jackson Dissent

 C. NLRB v. Bell Aerospace

o asdf
Due Process Limits on Administrative Action
I. When Does Adjudication Occur?
 A. Intro to Procedural Due Process
o 1. Due Process Clause
 The Constitution states that “no person is to be
deprived of life, liberty, or property without due process
of law.”
 Only deliberate decisions of government officials may
trigger due process concerns. When citizens are
deprived of live, liberty, or property by government
accidents, their recovery is through torts.
 Due process also does not apply to general lawmaking
by the government. A new tax created by law does not
required due process.
 Due process is required only when “A relatively small
number of persons was concerned, who were
exceptionally affected, in each case upon individual
grounds.” This means ude process is required when the
proceeding is fuctionally an adjudication, as opposed to
rulemaking.
o 2. Questions
 (1) Adjudication or Rulemaking?
 Has the government engaged in adjudication or
rulemaking? If the government is just engaging in
rulemaking, then procedural due process does not
apply.
 (2) Deprivation of Life, Liberty, or Property?
 The question that comes up the most often is
Property. Has there been a deprivation of a
property interest?
 (3) What Process is Due?
 The specific protections that an individual receives
is going to vary based on the factual
circumstances.
o 3. Reasons for the Adjudication/Rulemaking Distinction
 (1) Politics
  Because the people already have a means of
protection in the form of the political process. If
people don’t like the rules, they can elect a new
government that will change them.
 (2) Usefulness
 When government action is targeted, it is most
likely going to turn on factual questions that the
targets of that action are going to have useful
things to discuss about.
 Legislative Facts
 Adjudicative Facts
 (3) Practicability
 It is more practical to hold a hearing when there
is only a small number of affected people.
 B. Londoner v. Denver
o The court held that an agency with delegated authority to tax
property owners for street paving was constitutionally
required to hold individual hearings. The agency taxed the
property owners based on the benefit conferred on the
particular piece of property. Because the agency’s decision
was particularized to the situation of each property owner,
the Court held that due process requires a hearing with the
right to present arguments and evidence.
o The Supreme Court is concerned only with federal questions.
They don’t have the right to make a decision on how a state
statute applies.
 C. Bimetallic Investment v. State Board of Equalization of Colorado
 o The Court held that when an agency imposes a tax on an
across the board basis, without attention to the particulars of
any taxpayer, due process odes not require individualized
hearings. In Bi Metallic, and agency increased the value of all
taxable property in the city of Denver by 40%. The Court
rejected a due process challenge to the lack of hearings
stating that when “more than a few people” are affected,
legislative procedures are sufficient and the normal channels
of government accountability provide the only practical
safeguard.
o These cases establish the basic proposition that the
Constitution’s procedural due process protections govern
agency adjudication but not agency rulemaking.
o The criteria these cases introduce for determining whether
agency action qualifies as adjudication are distinct from the
criteria set forth in the APA, although in practice courts have
tended to interpret the APA’s statutory definitions of rule
making and adjudication as paralleling the definitions set for
them in Londoner, and Bimetallic. Unlike statutory
requirements of the APA, the Constitution’s duce process
protections govern both federal level and state level agency
actions.
II. Defining Deprivations
 A. Right/Privilege Distinction
o Deprivation of Life, Liberty, Property
 The Due Process Clause provides that no person shall
be “deprived of life, liberty, or property, without due
process of law.”
 Prior to Goldberg v. Kelly, courts had understood the
clause’s reference to “property” to encompass
traditional forms of ownership, such as ownership rights
over land, stock certificates, personal effects, and so
on.
  But Goldberg presented the question whether
individuals might also have a “property” interest in
benefits they receive from the government—such as
retirement payments under the Social Security Act,
welfare benefits, salaries for public employment, and so
forth.
 The stakes of this question were and remain high. If
government-furnished benefits count as “property,”
then governments cannot deprive individuals of these
benefits without due process.
 B. Goldberg v. Kelly
o In Goldberg, new York had terminated welfare assistances to
Mrs. Kelly because her landlady had reported that she had a
live in male friend, at a time when only single parents could
qualify or welfare. New York provided a two step
administrative procedure for the termination of welfare:
 First, an informal hearing procedure in which the
welfare recipient could tell her side of the story.
 If the state determined that the person no longer
qualified for welfare as a result of evidence after that
hearing, they would immediately terminate it. The
recipient could then seek a de novo formal
administrative hearing with retroactive payments if the
person’s benefits were found to have been erroneously
terminated.
o The Court held that the loss of a government entitlement
such as a welfare benefit had the same impact as when
government deprives someone of traditional private property.
o However it did not make it clear when a personal interest in a
government benefit would rise to the level of becoming a
right protected by Due Process.
o “The extent to which procedural due process must be afforded
the recipient is influenced by the extent to which he may be
condemned to suffer grievous loss.”
 C. Follow Up Cases
o 1. Board of Regents of State Colleges v. Roth
  A person hired as an Assistant Professor for a year at a
state university for a hear was informed that he would
not be rehired for the next year without being given a
hearing where he could challenge the basis for that
decision.
 An analysis of if government employment is a property
right as discussed in Goldberg.
 They find that the employee is not entitled to due
process protection, because he does not have a
property interest in his employment with the university.
 Roth had no tenure whatsoever. He had nothing but a
unilateral expectation of being rehired. The Court held
that Roth had no protectable property interest under
Due Process.
 “To have a property interest in a benefit, a person must
have more than an abstract need or desire for it, and
more than a unilateral expectation of it. He must have a
legitimate claim of entitlement to it.”
o 2. Perry v. Sindermann
 A teacher who was a full professor who had taught at a
state junior college for ten years, but the college did not
have an explicit tenure system and the professor was
hired each year on a one year contract. He was not
rehired and he was not afforded a hearing at which to
challenge the cause and basis for the failure to rehire.
 Has very similar facts to Roth.
 They find that the employee is entitled to due process
protection.
 The handbook of the college stated that they “wish the
faculty member to feel that he has permanent tenure as
long as his teaching services are satisfactory…” The
question was whether that was enough to constitute a
legitimate claim of entitlement.
  “Property denotes a broad range of interests that are
secured by existing rules or understandings. A persons
interest in a benefit is a property interest for due
process purposes if there are such rules or mutually
explicit understandings that support his claim of
entitlement to the benefit and that he may invoke at a
hearing.”
 Property interests are created through state law.
 D. Bishop v. Wood
III. What Process is Due?
 A. What Process is Due?
o Why Have the Due Process Clause?
 Prevent erroneous deprivation. Due process protects
citizens from an erroneous deprivation of their property
rights.
 Prevent abuses of power.
 Allows for case by case adjudication
 Perception of legitimacy
 “Process Values” – dignity, fairness, peach of mind
 B. Mathews v. Eldridge
o Deals with disability benefits provided to someone who has
become unable to work due to disability. This is controlled by
social security, as they’re kind of like an early receipt of social
security.
o Eldridge, who is getting benefits, is sent a questionnaire to
determine if his disability benefits should be eliminated. His
disabilities are anxiety and back pain. He fills out the
questionnaire saying that he hasn’t improved, but his doctors
send in medical reports that say that he has, so the agency
decides to terminate his benefits.
 C. Defining the Mathews Test
o Mathews Balancing Test
 Factors
 1. Private interest
 2. Risk of erroneous deprivation
 3. Government Interest
  Private Interest
 The private interest, is the personal property
interest in a government rights.
 D. Applying the Mathews Test
IV. Defining Interests in Terms of Procedures
 A. Cleveland Board of Education v. Loudermill
o You only need some sort of hearing prior to termination that
presents a reasonable basis. It doesn’t have to be a full on
formal hearing until after termination.
 B. Due Process in Prison
o Wilkinson v. Austin
 The first time we confront a Liberty interest, rather than
a property interest.
V. Post Deprivation Procedures
 A. PDP Liberty Interests
 B. PDP in Schools
o 1. Goss v. Lopez
o 2. Ingraham v. Wright
 Deals with the need for procedural due process prior to
corporal punishment in schools, specifically the need for
some sort of procedure prior to physical education.
 The court holds the view that the child has a liberty
interest in avoiding corporal punishment.
 So what process is due?

Outside Control Of Administrative Agencies
I. Congressional Control
 A. Legislative Vetos
o Congressional Requirements
 Bicameralism
 Both houses have to approve of a bill to turn it
into law.
 Presentment
 The president must also see and sign the bill or
veto the bill. If vetoed, 2/3 of the house and the
senate can pass it anway.
o INS v. Chada
 There are federal immigration laws, and when an
immigrant has found to have violated one of those laws,
they get deported. Congress was uncomfortable, so for
particular people they began to pass private bills which
allow a single person to not get deported.
 Private Bill Procedure
 The passing of bills about one particular person.
 This is not a bill of attainment, because those are
specifically only those bills that punish a particular
person. Because these are granting a benefit on a
person, they are not banned.
 However, they did finally reform this procedure.
 New Procedure
 AG suspends
 Legislative Veto
 Under the old procedure, both the house and the senate
had to sign off and affirmatively approve someone.
Under the new procedure, after the attorney general
has approved, they merely have to not veto it. There is
no affirmative action required.

 B. Spending, Conditions on Removal and Other Techniques
o 1. Other Mechanisms of Control
 a. Spending
  Two Types of Spending
 (1) Discretionary Spending
o Discretionary spending is determined
through the annual appropriation
process.
 (2) Mandatory Spending
o Mandatory spending is required for
entitlement programs. Their level of
spending cannot be changed through
the annual appropriation process.
 b. Committee Oversight
 c. Appropriation
 d. Removal Authority
o 2. Bowsher v. Synar
 Congress has passed a statute intended to limit the
annual appropriation in order to reduce the deficit. The
act has a sceudle of annual maximum deficit amounts
that declined over five years to $0. The white house
budget office and the congressional budget office were
each to estimate the federal budget deficit. A
Comptroller, who is appointed by the president, and
removable by congress, was to review these reports
and if the deficit exceeded the limits in the act, was to
make a set of across the board cuts. The president was
to issue a sequestration requiring those cuts.
 The comptroller is removable through impeachment or
through a joint resolution of both houses. The president
has the veto power of the joint resolution, and that veto
can be overridden by a 2/3s vote from both Congress
and the House.
 Legislative removal of someone with executive power is
not allowed. Legislative Removal + Executive Power =
BAD!!!
 Chada doesn’t apply because the Comptroller is
exerting executive power, and thus is not subject to
bicameralism and presentment requirements.
II. Presidential Control
 A. Appointment and Removal
o 1. Removal Power Background
o 2. Morrison
o 3. Free Enterprise Fund
 B. Directing Regulatory Outcomes
o 1. Appointments
o 2. Directing Regulation Outcomes
 a. Rulemaking
 b. Adjudication
III. Private Control?: A Brief Overview of the FIA
 A. Disclosure as an Oversight Strategy
 B. FOIA
 C. Milner v. Department of Navy

Judicial Review of Agency Action: Scope of Review
I. Judicial Review of Facts
 A. § 706(2)
 B. Universal Camera
o 1. “Whole Record” Required
o 2. ALI Findings
 C. ADAPSO
o 1. Informal
o 2. Formal
II. “Hard Look” Review
 A. Judicial Review of Agency Policymaking Under the Arbitrary and
Capricious Standard
o 1. Overton Park
o 2. State Farm
o 3. Evaluating Hard Look Review
 B. Variations on State Farm
o 1. Evaluating Hard Look Review
o 2. FCC v. Fox
 a. Overview
 b. “Changes” a Policy
 c. Independence
 d. Rulemaking/ Adjudication
 e. First Amendment
 III. Judicial Review of Agency Interpretations of Enabling Statutes: The
Chevron Doctrine
 A. FCC—Final Thoughts
 B. Chevron
o 1. Overview
o 2. State Farm
o 3. Judicial Precedent (Brand X)
IV. Chevron and Statutory Interpretation
 A. Intro to Statutory Interpretation
 B. Chevron Step One
 C. MCI v. AT&T/ FDA v. Brown & Williamson
V. Chevron Step Zero: The Mead Doctrine
 A. FDA v. Brown & Williamson
 B. Defining Chevron’s Domain
 C. Barnhart v. Walton and US v. Mead

Access to Review
I. APA Reviewability
 A. Availability of Judicial Review
o 1. Reviewability
o 2. Statutory Prerequisites
 B. Types of Review
o 1. APA Review
o 2. Statutory Review
o 3. Nonstatutory Review
 C. Statutory Preclusion
 D. Committed to Agency Discretion by Law
o 1. Non Enforcement Decisions
o 2. Denial of Rulemaking
II. APA Standing: The “Zone of Interests” Requirement
 A. Overview of Standing
 B. APA § 702
 C. “Zone of Interests”
III. Constitutional Standing: Injury in Fact
 A. Injury in Fact
o 1. Constitutional Standing
o 2. Injury in Fact
o 3. Procedural Injury
 B. Causation
o 1. Procedural Rights and Lujan
o 2. Friends of the Earth v. Laidlaw
o 3. Mass v. EPA
 C. Redressability
IV. Finality/ Exhaustion
 A. Ripeness
 B. Finality/ Exhaustion
o 1. Rationales
o 2. Doctrine