Attack Outline Checklist:

Process:
- Read policy q
- Read question at end of 13 pgs
- Read entire fact pattern
- Outline (90 mins) detailed answers on each part (see below)
o Refer to attack outline primarily
- Go policy question
o Outline an answer
- Return to issue spotter flesh out answers, review parts w/ transcript outline and general
outline
- Reread fact pattern to ensure I didn’t miss anything
- Edit policy q
- Edit, polish, word count cut

Big 3:
Is there Const standing? Need injury. Goldberg/Mathews.
Is there stat standing? Pl-ZOI. Action-[INSERT]
 If not APA, does the statute include a provision for jud rev at all? If not, note the
expresio unius argument from is theoretical but has been overruled in the case after
Brown…? Abbott Labs makes this weakened.
Do we defer under either SR or Chevron?
 What’s the ambiguity at issue – is it interpreting a reg or a stat?

Is there an outside entity?

 Consider making it covered by FACA (if you need more info, suggest this!)
 Consider impermissible subdelegation

Is a hearing req’d?
Is there any cooperative federalism on the scene? If so, Riley. Clear statements.

BIG PICTURE – It’s always EXPERTISE, EFFICIENCY, ACCOUNTABILITY, FLEXIBILITY

Key points:
- APA is a default; Congress can establish different procedures, subject to Constitutional
due process limitations.
o Schor test for private rights used regardless of whether APA adopted.
o “Who must adjudicate” completely separate inquiry from “What procedures
required”
- In general, can seek “legal hooks” from APA, organic statute, and constitution. Be
sure to look to all 3!
- Standards of review: Chevron, Skidmore, De Novo, Seminole Rock, Procedurally Invalid

TOPICAL OUTLINE

1) Adjudication of individual disputes.

A) Constitutional limits
I) Right to Article III forum (private/public right, balancing, adjunct theory)
 Crowell, Northern Pipeline, Union Carbide, Schor
II) Right to Administrative Hearing (liberty/property interest, more/less people,
agency/legislature, cost of error)
 Yamataya, Londoner, Bi-Metallic, Goldberg, Eldridge
III) Right to Impartial Adjudicator (dual roles, prior statements,
rulemaking/adjudication)
 Cement Institute, Withrow, Cinderella, National Advertisers
b) APA regulation of Agency Adjudication
i) Impartial adjudicator (does APA protection apply? Lawful ALJ review)
 Wang Yang Sung, Marcello, Heckler, Nash v. Bowen
ii) Formal vs. informal adjudication (hearing on the record)
 Seacoast, Chemical Waste Management
iii) Hearing procedures: participation, evidence, findings (agency standing, record,
administrative notice, agency adoption of ALJ opinion)
 United Church of Christ, Envirocare, Seacoast, Castillo-Villagra, Armstrong
iv) Review of agency fact finding (substantial evidence)
 Universal Camera, Allentown Mack
v) Using Rulemaking to resolve disputed facts (statutory analog to Londoner)
 Airline Pilots, Yetman, Heckler, WNCN Listeners
vi) Adjudicative consistency and administrative precedent (fess up, how change itself
should be evaluated under A&C)
 Weingarten, Gilles, International Union, Shaw’s, Fox
vii) Administrative Retroactivity (in adj and rulemaking context, mischief balancing,
reliance, retroactive sanction)
  Chenery II, Bell Aerospace, Laidlaw, Retail Union, Int’l Ass’n of Machinists,
Bowen, Smiley
2) Judicial review of agency action
a) Chevron and Interpretive Canons (chevron vs. constitutional avoidance and federalism)
i) Chevron, (De Bartolo, Rust, Morales,) (Solid Waste Agency, Riley)
b) Chevron’s Domain (agency implementation, force of law, procedural formality)
i) Adams Fruit, Christensen, Mead
c) Deference and Interpretive Inconsistency (agency precedent, judicial precedence)
i) Cardozo-Fonseca, (Neal, Brand X)
d) Deference and Overlapping Jurisdiction (vertical split, horizontal split, exclusive vs.
overlapping jurisdiction, law application vs. law interpretation)
i) Rapaport, Martin, Collins
e) Agency Interpretation of Agency Regulations (Seminole Rock’s domain, inconsistency,
drafter identity, time lapse, procedural formality)
i) Auer, Shalala, Paralyzed Veterans, Paragon, Talk America
f) Complex Questions of Agency Legal Interpretation (how everything interacts. Chevron,
Seminole Rock, Skidmore, Inconsistency, Interpretive Canons, jurisdictional splits, etc.)
i) Oregon v. Ashcroft, Gonzales v. Oregon
3) External participation in agency decision making
a) Presidential Oversight of Rulemaking (appointment, removal, presidential directives,
OIRA)
b) Agency Sub-delegation (internal, external, cooperative federalism, data gathering,
advice giving, emphasis on decision making authority)
i) Batterton, Towne Construction, USTA, Hilario-Paulino
c) FACA Advisory Committees (transparency vs. candor, presidential right to candid
discussion, member vs. consultant/staff/visitor)
i) Public Citizens, American Physicians, In re Cheney
d) FOIA (reverse FOIA, exceptions – high/low 2, 4, 5, 6, 7)
i) Sears, Milner, National Parks, Critical Mass, Chrysler, FCC v. AT&T
4) Access to judicial review of agency decisions

1. Is judicial review available?

a. Does the statute specifically authorize it?
b. Does the statute specifically preclude it?
c. Is there a constitutional violation?
d. Is the matter “committed to agency discretion”  no law to
apply?
e. Is there a final agency action?
f. Does the plaintiff have standing?
i. Constitutional standing?
ii. Prudential standing or zone of interest?

a) Standing
 i) Constitutional Standing (concrete, particularized, imminent, procedural standing,
causation & redressibility, separation of powers)
 Lujan, Akins, Mass v. EPA, Earth Institute
ii) Statutory Standing (zone of interests, anti-competition, no congressional intent)
 Data Processing, Copper & Brass, Clark, Air Courier, Bennett, National Credit
Union
b) Reviewability
i) Statutory Preclusion of Review (clear statement presumption, expressio unius
inference improper, zone of interest in disguise?)
 Abbot, Block v. CNI, Bowen
ii) Unreviewable Discretionary Acts (Overton Park “no law to apply” test,
constitutional carve out, one off vs. class, rule making vs. adjudication, Scalia’s
agency common law test)
 Heckler, Webster