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					                             ADMINISTRATIVE LAW – SPRING 2002
                                    PROF. GREENBERG
I.        INTRODUCTION ................................................................................................................................3
     A.  THE ORIGIN AND MANDATE OF ADMINISTRATIVE AGENCIES .............................................................4
       1. APA ................................................................................................................................................4
       2. Scope of Review..............................................................................................................................4
       3. Reviewability ..................................................................................................................................4
     B. FED GOV‟T STRUCTURE AND ADMIN AGENCIES .................................................................................4
       1. Structure of Admin Agencies ..........................................................................................................4
     C. APA OVERVIEW (2 PARTS) .................................................................................................................4
       1. Rulemaking .....................................................................................................................................4
       2. Adjudication ...................................................................................................................................5
       3. Judicial Review (JR) ......................................................................................................................5
       4. Odds & Ends ..................................................................................................................................6
II.            POLICY FORMATION ..................................................................................................................6
     A.  AGENCY AUTHORITY TO MAKE POLICY BY RULE ...............................................................................6
          1.National Petroleum Refiners Assoc. v. FTC (1973) [432] ............................................................6
     B. AGENCY DISCRETION TO MAKE POLICY BY ORDER AFTER ADJUDICATION ........................................6
       1. Excelsior Underwear, Inc., NLRB (1966) [445] ............................................................................6
       2. NLRB v. Wyman-Gordan Co. (1969) [449] ...................................................................................7
       3. NLRB v. Bell Aerospace Co. (1974) [461] ....................................................................................7
       4. Bowen v. George Town University Hospital (1988) [461] ............................................................8
     C. POLICYMAKING BY MANUAL? APA PROCEDURAL REQUIREMENTS: NOTICE AND THE CONCISE
     GENERAL STATEMENT ................................................................................................................................8
       1. Policymaking by Manual and the Agencies’ Obligation to Follow Their Own Procedural Rules 8
       2. Public Participation in RM Procedures .........................................................................................9
     D. APA PROCEDURAL REQUIREMENTS: THE REGULARITY OF THE ADMINISTRATIVE RECORD (EX
     PARTE CONTACTS, THE SANCTITY OF THE COMMENT PERIOD, AND IMPARTIAL DECISIONMAKERS) ..............9
       1. Home Box Office v. FCC, ex parte contacts (1977) [498].............................................................9
       2. Sierra Club v. Costle (1981) [508] ..............................................................................................10
     E. SHOULD RULEMAKERS BE IMPARTIAL? .............................................................................................10
       1. Association of National Advertisers, Inc. v. FTC (1979) [526] ...................................................10
     F. **TELLING THE DIFFERENCE B/W RULEMAKING AND ADJUDICATION ..............................................10
     G. HYBRID RULEMAKING ......................................................................................................................11
       1. Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission, DC Cir (1976)
       [541] .....................................................................................................................................................11
       2. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. US (1978)
       [544] .....................................................................................................................................................11
     H. EXEMPTIONS FROM NOTICE & COMMENT RM (§553(B)) ..................................................................11
       1. Nat’l Family Planning & Repro Health Assoc. v. Sullivan, D.C. Cir (1992) [552] ....................12
       2. Hoctor v. US Dept of Agriculture, 7th Cir. (1996) [559] .............................................................13
       3. Lincoln v. Gibil, US (1993) [567] ................................................................................................13
       4. Difference b/w Procedural Rules vs. Substantive Rules ..............................................................14
       5. Agencies invoke these as justification for waiving the requirements of §553: ............................14

                                                                                                                                                                  1
III.         ADJUDICATION AND THE DUE PROCESS CLAUSE .........................................................14
     A.  WHAT INTERESTS ARE CONSTITUTIONALLY PROTECTED? .................................................................15
       1. Types of Interests: ........................................................................................................................15
       2. Goldberg v. Kelly, US (1970) [641] overruled by Mathews v. Eldridge .....................................16
       3. Board of Regents v. Roth, US (1972) [652] “Liberty Interests & Stigma + Test” ......................16
       4. Perry v. Sindermann, US (1972) [658] ........................................................................................16
       5. Cleveland Board of Ed v. Loudermill, US (1985) [663] Rule trumps the Bitter s/Sweet Rule. ...17
     B. DIRECT VS. INDIRECT BENEFICIARIES ...............................................................................................17
       1. O’Bannon v. Town Court Nursing Center, US (1980) [667] .......................................................17
     C. HOW TO BREAK DOWN A DUE PROCESS QUESTION. ............................................................................17
     D. “HOW MUCH” PROCESS IS DUE – AND WHEN? ....................................................................................18
       1. Mathews v. Eldridge, US (1976) [680] overruled Goldberg rule................................................18
       2. Board of Curators of the Univ. of MO v. Horowitz, US (1978) [689] consultative model ..........19
     E. ADEQUACY OF COMMON LAW REMEDIES; RIGHT TO A NEUTRAL DECISION MAKER ...........................20
       1. Ingraham v. Wright, US (1977) [697] .........................................................................................20
       2. Tumey v. Ohio, US (1927) right to a neutral decision maker ......................................................20
       3. Gibson v. Berryhill, US (1973) [710] ..........................................................................................20
       4. Cinderella Career & Finishing Schools, Inc. v. FTC, D.C. Cir (1970) [715] ............................20
       5. Withrow v. Larkin, US (1975) [721] ............................................................................................21
     F. STATUTORY HEARING RIGHTS ..........................................................................................................21
       1. APA §554-557. .............................................................................................................................21
       2. Portland Audubon Society v. Endangered Species Committee, 9th Cir (1993) [726] ..................21
     G. CONTROL OF ALJ‟S; SUBSTANTIVE RULES FOR ADJUDICATION .......................................................22
       1. Association of Administrative Law Judges v. Heckler, D.C. Cir (1984) [740] Review and agency
       control over adjudicators .....................................................................................................................22
       2. Heckler v. Campbell, US (1983) [756] Substantive rules for adjudication: constraining the
       decisionmaker ......................................................................................................................................23
IV.          SEPARATION OF POWERS .......................................................................................................23
     A.  THE NON-DELEGATION DOCTRINE ...................................................................................................23
       1. Constitution Article I [1215-1216] ..............................................................................................23
       2. The Benzene Case, US (1980) [23] ..............................................................................................23
       3. Whitman v. American Trucking Assoc., Inc., US (2001) [course pack] ......................................24
     B. THE LEGISLATIVE VETO....................................................................................................................24
       1. Immigration and Naturalization Service v. Chadha, US (1983) [39] .........................................24
     C. APPOINTMENT AND REMOVAL OF EXECUTIVE OFFICERS ..................................................................24
       1. Appointment of Officers ...............................................................................................................25
       2. Removal of Officers ......................................................................................................................25
       3. Hypo from Study Guide, Clerks Selection ....................................................................................27
       4. Miscellaneous Appointment/Removal Power ...............................................................................27
     D. OTHER SUPERVISORY POWERS AND CONTROL W/N AGENCIES; DELEGATION OF ADJUDICATIVE
     AUTHORITY ...............................................................................................................................................27
       1. Commodity Futures Trading Commission v. Schor, US (1986) [626] ........................................27
V.        JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS (SCOPE OF REVIEW) .............28
     A.     INTRODUCTION TO SCOPE OF REVIEW ...............................................................................................28
          1. 5 U.S.C. §706 – Scope of Review [1243] .....................................................................................29
          2. Citizens to Preserve Overton Park v. Volpe, US (1971) [155] standards of review in the APA. 29
                                                                                                                                                              2
     B.  JUDICIAL REVIEW OF QUESTIONS OF LAW ........................................................................................30
       1. Chevron v. Natural Resources Defense Council, Inc. US (1984) [173] ......................................30
       2. MCI Telecommunications Corp. v. American Telephone, US (1994) [1009] .............................31
       3. Babbit v. Sweet Home Chapter of Communities for a Great Oregon, US (1995) [185] .............31
       4. U.S. v. Mead Corp., US (2001) [on line] .....................................................................................31
       5. Bowles v. Seminole Rock, US (1945) [192] .................................................................................31
     C. JUDICIAL REVIEW OF QUESTIONS OF FACT OR POLICY......................................................................32
       1. De Novo Review [194] .................................................................................................................32
       2. Substantial Evidence [195] ..........................................................................................................32
       3. Arbitrary and Capricious .............................................................................................................33
       4. HYPOS – April 1st…Review of Scope of Reviews. .......................................................................34
VI.            AVAILABILITY OF JUDICIAL REVIEW: REVIEWABILITY ..........................................34
     A.  JURISDICTION [246] ..........................................................................................................................34
     B.  REVIEWABILITY [250] .......................................................................................................................34
       1. Statutory Preclusion of Review ....................................................................................................35
       2. Committed to Agency Discretion by Law .....................................................................................36
       3. Enforcement Discretion ...............................................................................................................37
       4. Prosecution and Private Enforcement [804] ...............................................................................38
     C. STANDING TO SECURE JUDICIAL REVIEW ..........................................................................................38
       1. Regulatory Standing, the APA and the Data Processing Case ....................................................38
       2. The “Injury in Fact Fairly Traceable” Test ................................................................................39
     D. ZONE OF INTERESTS ..........................................................................................................................41
       1. FEC v. Akins, US (1998) [on line] ...............................................................................................42
       2. NCUA v. First Nat’l Bank, US (1998) [on line] brings us to a full circle w/”zone of interests.”
           42
     E. RIPENESS (TIMING OF JUDICIAL REVIEW) .........................................................................................42
       1. Abbott Laboratories v. Gardner, US (1967) [374] Pre-enforcement Challenges to Agency
       Rules: Prescription for Unripe Review? .............................................................................................43
       2. Gardner v. Toilet Goods Assoc, US (1967) [382] .......................................................................43
       3. Reno v. Catholic Social Services, US (1993) [386] “Benefits” ..................................................44
       4. Ripeness & Licensing ...................................................................................................................44
       5. Ripeness & Ruling/Opinion Letters .............................................................................................44
       6. Exhaustion of Administrative Remedies .......................................................................................44
VII.           FREEDOM OF INFORMATION ACT.......................................................................................45
     A.  THE FREEDOM OF INFORMATION ACT ...............................................................................................45
          1.Kissinger v. Reporters Committee for Freedom of the Press, US (1980) [1139] ........................46
          2.Distinction b/w “Executive Office of the President” and “Office of the President”...................46
     B. EXEMPTIONS FROM THE DISCLOSURE REQUIREMENT .......................................................................47
       1. NLRB v. Sears, Roebuck & Co. (1975) [1154] Deliberation.......................................................47
       2. Department of Justice v. Reporters Committee for Freedom of the Press, US (1989) [1187]
       Privacy .................................................................................................................................................47



I.             Introduction
**On final make sure to look to see if it is a statute that Congress has created or a regulation that an agency created.

                                                                                                                                                                3
A. The Origin and Mandate of Administrative Agencies
      CONSTITUTION  Article I, II, III.
      STATUTES  (1) Organic Statutes that authorize federal statutes (OSHA, FDA); (2)
      Administrative Procedure Act (APA), federal statute that provides default rules of how
      administrative agencies are suppose to operate.
      REGULATIONS ISSUED BY FEDERAL AGENCIES  these are statues like agencies; 2
      places to find these (1) Federal Registrar – publishes final statues at large; (2) Code of Federal
      Regulations – final regulations of agencies.
      JUDICIAL OPINIONS  supreme court reports.
      ADMINISTRATIVE ADJUDICATIONS  opinions are published.

        1. APA
           The APA ONLY deals with FEDERAL GOV‟T. Exam – if it involves state gov't it is not an
           APA case. Instead it is due process or the right to a neutral decision maker.

             §553 & 554  Triggers
             §553  RM “Notice & Comment”
             §556 & 557  Formal Procedures

        2. Scope of Review
            Chevron  Used by the courts when they are reviewing an agencies own interpretation of
              its organic statute. Has the agency properly interpreted what Congress meant when
              interpreting its own statute.
            Substantial Evidence  Court use when it involves agency fact finding in formal
              adjudication and occasionally formal RM.
            Arbitrary & Capricious  deferential form of review and used for factual and policy
              decisions that come out in informal adjudication and is a form of gap filler.

        3. Reviewability
            Whether … by whom? Some issues agencies are better making than courts. Statutory
              preclusion; committed to agency discretion by law; standing.
            When? Ripeness, finality, exhaustion of administrative remedies.
B. Fed Gov’t Structure and Admin Agencies
        1. Structure of Admin Agencies
            Cabinet Agency  a cabinet department where the cabinet secretary is appointed by the
              President. [Sec. of State Heads the Dept. of State]
            Sublevel Cabinet Agency  not every admin agency is a cabinet level agency, they can
              have an identifiable sublevel w/n another department.
            Free-Standing Executive Agency  Free standing or non-cabinet executive agencies
              [EPA]
            Independent Agency  These have a commission structure w/a 5 member board
              appointed for staggered terms. [FCC]

        Some agencies do both RM and Adjudication. OSHA – rulemaking and enforcement of the rules;
        OSHRIC – adjudication.
C. APA Overview (2 parts)
        1. Rulemaking
        * If Congress is silent on what form of RM to use, an agency is to use N&C. [Florida RR]
                                                                                                           4
JR is presumed unless not allowed by law or if an agency was only using its discretion when
promulgating a rule.
        a) Notice & Comment (Informal) RM §553.
        Notice of intent to issue a new rule. Opportunity for comments. The APA states you must
        publish in federal registrar 30 days before it becomes effective, and the rule must contain a
        general purpose statement. There are exceptions to the notice requirement when dealing
        w/foreign affairs, military affairs or gov't contracts.

                Exceptions to N&C:
                 §553(a) if it has to do w/military functions §553 doesn‟t apply at all. BUT,
                   “benefits” exceptions are often waived. The exception for publication is often
                   waived in the case of gov't benefits. Once it has been waived via an internal
                   regulation the courts will impose §553 regulations.
                 §553(b) exception to publish notice of proposed RM:
                        Interpretive Rules, general statements of policy & procedural rules.
                        “Good Cause” exceptions.
                 §553(d) w/the 2nd of the 2 notice requirements, the provision that deals
                   w/publishing 30 days before the effective date.

        **If a lot of dates are used chances are it involves §553 b/c the agency was obligated to use
        N&C RM or even formal RM.

        b) Formal RM §556 & 557.
        More trial like w/opportunities for evidence and cross-examinations. The trigger (last
        sentence of §553(c)) that signifies that a proceeding is to be formal is the phrase “on the
        record.” The agency must first justify its decision w/only those things on the record.
        Congress is suppose to make it clear when RM must be formal.
2. Adjudication
        a) Informal Adjudication §554.
        Not prevalent, most is formal.
        b) Formal Adjudication §554.
        “On the Record.” These trials are conducted by an administrative law judge (AJL). An
        AJL is not an actual judge. Testimony and cross-examination is common. Agency is
        generally allowed only to make decisions based on the record (evidence at the hearing).

                 Trigger in §554(a) for formal adjudication.
                 Procedures in §554 & 556-557.
                       Limits in ex parte contracts - §551(14) definition: “ex parte” means
                          oral or written communication not on the public record w/respect to
                          which reasonable prior notice to all parties is not given, but it shall not
                          include requests for status reports on any matter or proceeding covered
                          by this subchapter.
                       “Closed record” requirement
                       This looks more like a civil trial in an Article III court.
3. Judicial Review (JR)
    Exceptions to Review  §701(a)(1) & (2).
    Sovereign immunity waiver  §702.
    Final Action Required  §704.
                                                                                                      5
                 Scope of Review  §706.
            4. Odds & Ends
                Publication Requirement  552(a). This publication requirement is somewhat broader in
                 scope than the requirement in §553. Deals w/federal registrar and making available for
                 copying and public inspection.
                Right to Explanation of Denial Requests  §555(e). Prompt notice shall be given of the
                 denial in whole or in part of a written application, petition, or other request of an interested
                 person made in connection w/any agency proceeding. Except in affirming a prior denial or
                 when the denial is self-explanatory, the notice shall be accompanied by a brief statement of
                 the grounds for denial.
                Formal Adjudication like Proceedings for Licensing  §558(c). When application is made
                 for a license required by law, the agency, w/due regard for the rights and privileges of all
                 the interested parties or adversely affected persons and w/n a reasonable time, shall set and
                 complete proceedings required to be conducted in accordance w/§556 & 557 of this title or
                 other proceedings required by law and shall make its decision…


II.   Policy Formation


      A. Agency Authority to Make Policy by Rule
            1. National Petroleum Refiners Assoc. v. FTC (1973) [432]
                FACTS  FTC issued a rule declaring the failure to post octane readings on pumps was
                  unfair method of business. The FTC, through N&C RM made the rule.
                       It was hybrid RM.
                ISSUE  Does the Trade Commission Act include a provision that specifically provides
                  for RM by the FTC to implement its adjudicatory functions?
                HOLDING  The Trade Commission Act includes a provision that specifically provides
                  for RM by the FTC to implement its adjudicatory functions.
                REASONING  the statue says “may” make rules and regulations for the purposes of
                  carrying out the provision.

                    Lessons
                        The availability of substantive RM gives any agency an invaluable resource-saving
                           flexibility in carrying out its task of regulating parties subject to its statutory
                           mandate.
                        DC Cir – although Congress did not give the FTC express power to formulate
                           rules, certain provisions in the Act may allow for this power since it would be
                           more efficient to do so.
                        Example of how cases provide courts the opportunity to go through statutory
                           construction. Usually it is not normal to challenge agency‟s on their RM authority.

      B. Agency Discretion to Make Policy by Order after Adjudication
            1. Excelsior Underwear, Inc., NLRB (1966) [445]
                FACTS  Action challenging results of election to choose representatives of a company‟s
                  ee‟s. A union sought cert as bargaining rep for EU ee‟s and asked Excelsior to provide a
                  list of ee‟s so union could communication w/the ee‟s regarding the election. Excelsior
                  refused.
                SUBSTANTIVE ISSUE  Whether the company had to turn over the list of ee‟s names.

                                                                                                               6
    ISSUE Is one of the NLRB‟s functions to conduct elections in which ee‟s have the
     opportunity to cast their ballots for or against representation under circumstances that are
     free not only from interference, restraint or coercion, but also from other elements that
     prevent a free and reasoned choice? Yes.
    HOLDING  Promulgated a requirement that will be applied in all election cases. W/n
     7 days after approval of a consent-election or directed an election the er must file an
     election eligibility list containing names and address of voters. Applied prospectively
     only.
    REASONING  NLRB is to protect elections; to keep them free from restraint or
     coercion.

       Lessons
           Board had both RM & adjudication. They could act like a mini-court or a mini-
              legislature. (Octane case they acted like a mini-legislature).

2. NLRB v. Wyman-Gordan Co. (1969) [449]
    FACTS  NRLB ordered an election, ordered Δ to supply two unions w/names and
     addresses of its ee‟s. Δ refused.
    ISSUE  May the RM provision of the APA be avoided by making rules in the course of
     adjudicatory proceedings? No.
    HOLDING  The RM provisions of the APA may not be avoided by making rules in
     adjudicatory proceedings.
          It could not issue prospective only decisions unless it engaged in proper RM.
    REASONING  The Δ was specifically ordered to provide the list of names. Something
     the Excelsior holding allowed.

       Lessons
           As long as the matter involved could be dealt w/either satisfying the definition of
              either “adjudication” or “RM” under the APA, the Act should be read as conferring
              upon the NLRB the authority to decide whether to proceed by RM or adjudication.
           **The RM provision of the APA may not be avoided by making rules in the
              course of adjudicatory proceedings.

3. NLRB v. Bell Aerospace Co. (1974) [461]
    FACTS  whether buyers were “managerial ee‟s” and were covered by the NLRB.
    ISSUE  (1) may a board in an adjudicatory proceeding announce a new principle? (2)
     who decides when adjudication or RM will apply?
    HOLDING  A board can announce a new principle. In situations where the agency
     board is in the best position to determine which is appropriate, the Board‟s decision is
     given great weight.
    REASONING  Here the situation presented would be best suited by a case-by-case
     adjudication. This is not to say that a Board‟s decision can never be reviewed for abuse.

       Lessons
           ** The NLRB is not precluded from announcing new principles in an
              adjudicative proceeding and the choice b/w RM and adjudication lies in the 1st
              instance w/n the NLRB‟s discretion.
           Where agencies are given by Congress the authority to proceed RM and
              adjudication it is up to the agency to use its informed discretion to decide
              which procedure is better.

                                                                                                 7
                    It depends on what remedy the agency is handing down before you can determine
                     if the prospective rules apply. So to what do the prospective rules apply?

      4. Bowen v. George Town University Hospital (1988) [461]
          Important Note Case  an agency may not issue rules w/retroactive application unless
           Congress has expressly given the agency the authority to issue the retroactive rules.

C. Policymaking by manual? APA procedural requirements: Notice and the Concise
General Statement
      1. Policymaking by Manual and the Agencies’ Obligation to Follow Their Own
      Procedural Rules
             a) Morton v. Ruiz (1974) [470]
                    FACTS  Ruiz was denied benefit assistance b/c he did not live on a reservation
                     although they lived nearby. The BIA (Bureau of Indian Affairs) argued: (1)
                     congressional intent did not lend itself to giving assistance to non-reservation
                     natives; (2) w/n the BIA manual there is an on reservation limitation.
                    ISSUE  Before an agency may extinguish the entitlement of potential
                     beneficiaries, must it comply w/its own internal procedures? Yes.
                    HOLDING  Agencies have to comply with their own internal rules.
                    REASONING  Court disagreed w/BIA argument saying congressional intent is
                     ambiguous and that exceptions have been made before for those living near
                     reservations.
                          The APA does not require notice & publication when dealing w/benefits.
                              However, the BIA manual says it must if it affects a group. They did not
                              follow this.

                     Lessons
                         A substantive rule is one that affects “individual rights and obligations.”
                         Before an agency may extinguish the entitlement of potential
                            beneficiaries, it must comply w/its own internal procedures.
                         The APA §553 does not apply here b/c this is a legislative rule, not mere
                            statement of policy. It is also a benefit program so §553(a)(2) says §553
                            does not apply to benefits.
                                  §552 did apply – they did have to publish it.

             Cases like Bell Aerospace tell us that it is up to the informed discretion of an agency to
             make policy by adjudication or RM. An agency can make a new policy via an adjudication
             an apply it retroactively, but in Morton the agency is not making a new policy it is simply
             apply pre-existing policy.

             The APA does require that administrative staff manuals and other instructions to
             administrators that affect public members be published and that an agency may not rely on
             non-published materials to affect adversely members of the public.
             b) Notes on Agencies Obligations to Follow Their Own Procedural Rules [477]
             ** Agencies MUST follow their own formally established rules after §533 N&C.
                    Schweiker v. Hansen (1981) [478]
                    Manuals are not regulations, there is no legal force.


                                                                                                         8
       2. Public Participation in RM Procedures
       Why have notice? (1) improving the quality of RM by allowing the rule proposed to be “tested by
       exposure to diverse public comment.” (2) affording fairness to affected parties by giving them an
       opportunity to express their views; and (3) allowing more effective judicial review of the final rule
       by enabling the rule‟s critics to “develop evidence in the record to support their objections.”
               a) Chocolate Manufacturers Assoc. v. Block (1985) [485]
                      FACTS  P challenged, on inadequate notice grounds, that a USDA rule that
                       prohibited the use of chocolate milk in the federally funded Special Supplement
                       Food Program for Women, Infants and Children (WIC).
                      ISSUE  Must notice in the FR contain either terms or substance of the proposed
                       rule or a description of the subjects and issues involved? Yes.
                      HOLDING  The notice in the Federal Registrar that an agency must give of a
                       proposed RM must contain either the terms or substance of the proposed rule or a
                       description of the subjects and issues involved.
                      REASONING  An agency may promulgate a final rule different in some
                       particulars from its proposals, but it does not have free reign to establish a rule
                       contrary to its original proposal just b/c of suggestions it receives.

                       Lessons
                           TEST  to determine adequacy of notice of change of a proposed rule
                              occurring after N&C period is if the change is “in character with the
                              original scheme” and the final rule is a “logical outgrowth” of the N&C
                              already given.
                           TEST  LOGICAL OUTGROWTH TEST – the final rule will not be
                              based on adequate notice if the final rule is not a logical outgrowth of the
                              original N&C by the agency.

D. APA Procedural Requirements: The Regularity of the Administrative Record (ex parte
contacts, the sanctity of the comment period, and impartial decisionmakers)
Ex parte communications are not liked b/c of equal access, public record and fairness, openness and
closeness.

       1. Home Box Office v. FCC, ex parte contacts (1977) [498]
           FACTS  FCC used N&C informal RM to set competition standards for cable and free
            TV. Interested parties sought JR due to ex parte contacts after the comment period was
            over.
           ISSUE  Must the public record reflect what representations were made to an agency so
            that relevant information supporting or refuting those representations may be brought to
            the attention of the reviewing courts by persons participating in agency proceedings? Yes.
           HOLDING  Under the circumstances the contacts were unacceptable due to issues of
            fairness and equal access to be heard.
           REASONING  Court believed there were 2 records – 1 informal and 1 formal. §706 of
            the APA requires in reviewing an agencies decision the court must be privy to the “whole
            record” and therefore any ex parte contacts must be placed in the record so that others may
            comment.
                  Secrecy is inconsistent w/fundamental notions of fairness implicit in DP.

               Lessons


                                                                                                             9
                       Ex parte contacts make for a “hidden” record. A court doesn‟t have the chance to
                        go back and review what was said. §706 last sentence – “the court shall review the
                        WHOLE record.”

        2. Sierra Club v. Costle (1981) [508]
            FACTS  EPA set emission standards using a hybrid of RM and adjudication. After the
              N&C period was up ex parte contacts occurred with: (1) private citizens, (2) President
              Carter and other executive officials, and (3) an interested Senator.
            HOLDING  the EPA did not err procedurally b/c the comments not docketed were not
              relevant.
            REASONING 
                   Private Citizens – the statute itself said that when an agency receives comments it
                      must put them on the record if the agency thought these comments were relevant.
                      The statute only applies to written communications, but the court says this rule
                      should apply to all contacts relevant to the agency’s decision. The court believes
                      this is more democratic and best serves the public. This relevance standard is a
                      bit more liberal than HBO although the HBO court hinted at the relevance
                      standard as well.
                   President & Executive Officials – court says these contacts were allowed b/c
                      agency‟s decision involved weighing the costs, enviro and energy considerations
                      and have broad implications for national economic policy. Policymakers and
                      executives must not be isolated from each other.
                   Senate and Congressional Pressure – these people represent the people and
                      should be expected so long as they don‟t put an undue influence on the agency.

E. Should Rulemakers be Impartial?
        1. Association of National Advertisers, Inc. v. FTC (1979) [526]
            FACTS  The Chairman of the FTC declined to recuse himself from RM concerning
              children‟s television advertising after had had taken a public stand on the issue.
            HOLDING  An agency member should be disqualified from decision-making ONLY
              when it is shown he has an unalterably closed mind on matters critical to the proceeding.
            REASONING  DP imposes the restriction that decisionmakers consider contrary
              arguments.

                Lessons
                    Clear & Convincing Standard for impartialness (how it was used in this case):
                           Rulemakers are not judges and must be able to discuss, form opinions, and
                              test these opinions in order to do their jobs.
                           Nothing in the leg history suggests that §18 of the FTC (the procedures to
                              be used) are adjudicative.
                    It is ok to prejudice the law but not the facts.
F. **Telling the Difference b/w Rulemaking and Adjudication
Often times agencies use hybrid RM which includes more than bare-bones §553 and less than §556-557.
The way in these situations to tell if it is RM or adjudication is to remember to look at the nature of the
conduct, not the particular procedures used:

        RULEMAKING  is generally used to make future policy (look at APA definition of a rule) and
        includes the use of legislative facts (statistic like; not only one person holds the facts) which are
        general in nature and not specific to the present parties involved.

                                                                                                          10
           When an agency is authorized to conduct RM and its organic statute merely says
              something about an opportunity for a hearing – SC has said this is just a paper hearing – to
              take written comments. It has to say “on the record” to be formal RM.
       ADJUDICATION  is applying old rules to past and present conduct and includes the use of
       adjudicative facts (specific to the particular issue) which are specific to the parties (who, what,
       when, why, etc.)

G. Hybrid Rulemaking
Courts may not impose additional RM procedures on agencies apart from whatever is required by their
enabling act, the APA or the agency‟s own rules.

HYBRID RM  neither as skeletal as §553 nor al elaborate and time-consuming as §556-557. There is
no definition for this in the APA. It is merely somewhere in between informal and formal RM. Many
agencies use hybrid either b/c Congress has mandated it or on their own initiative.
       1. Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission, DC
       Cir (1976) [541]
            FACTS  Rulemaking proceedings were held, public hearing was held and materials were
              made available to the public, no discussion or cross was available for the public. Δ issued
              a rule then. Π claimed that the Δ‟s refusal to allow cross violated the requirement that
              adverse environmental effects be investigated to the fullest extent possible.
            ISSUE  Does an agency have discretion to select the most effective procedures to
              compile a record? Yes.
            HOLDING  An agency has discretion to select the most effective procedures to compile
              a record, but it must scrutinize the record as a whole to insure that genuine opportunities to
              participate in a meaningful way are provided to all.
            REASONING  Δ‟s procedures were capricious & arbitrary. It has to develop a record
              which the factual issues are fully developed.

       2. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council,
       Inc. US (1978) [544]
            FACTS 
            ISSUE  Whether a reviewing court has the power to order an agency to adopt hybrid RM
              procedures when the agency chooses not to do so and when Congress has said nothing in
              the enabling statute?
            HOLDING  In the absence of “constitutional constraints or extremely compelling
              circumstances” a court MAY NOT impose RM procedures on an agency beyond those
              set out in §553 of the APA.
            REASONING  to the extent an agency gives more process, it is w/n the agency‟s
              discretion to do so, not the court‟s.

               Lessons
                   Procedures set out in §553 are maximum RM procedures unless Congress demands
                      the agency do more, or unless the agency itself chooses, in its discretion, to
                      provide more.
                   **After this case most lower courts have been reluctant to overturn agency rules
                      for procedural deficiencies.
H. Exemptions from Notice & Comment RM (§553(b))

   Questions to be answered in the cases below:
    When is it permissible for agencies to announce policy w/o using at least N&C RM?
                                                                                                         11
               And, how do we distinguish b/w legislative and substantive rules on the one hand and so called
                interpretive rules, general statements of policy and procedural rules on the other hand?
               What is the good cause exception?

              3 General Types of Exemptions:
               Interpretive Rules, policy statements, rules of organization, procedure or practice  many
                 times these overlap
                     o Interpretive Rules – used to clarify a pre-existing rule.
                     o Policy Statement – agency statement of how it will act in the future in matters in which it
                         has discretion. The language of these statements are often tentative and qualified as
                         opposed to definite like legislative rules (“may…” vs. “shall…”)
                     o Procedural, Organizational, or Practice Rules - covers agency actions that do not
                         themselves alter rights/interests, although it may alter the manner in which the parties
                         present themselves or their viewpoints to the agency (it has a lot to do w/degree)
               Rulemaking involving military or foreign affairs as well as agency management of personnel,
                 public property, loans, grants, benefits, or contracts.
               Situations in which the agency has good cause – The Good Cause Exception. A good cause
                 finding is that notice is impracticable, unnecessary, or contrary to the public interest.

                          Legislative/Substantive                       Interpretive                 General Statement of Policy
How to                  Requires N&C RM                     Exempt from N&C.                     Clarifies an existing statute or
distinguish             Attempts to supplement and          Clarifies an existing statute or         regulation.
b/w the                  not just construe the statute           regulation.                       Reminds parties of pre-
types….             Effects, brings about, changes  Can interpret what a statute                     existing rights or obligations.
                         a policy in an existing rule.           says, can also interpret what a  Agency statement of how it
                    Legal Effects Test                         prior legislative rule says.          will act in the future.
                         Whether the policy directly         Reminds parties of pre-                  (“May”)
                         alters the publics rights and           existing rights or obligations.
                         obligations
                    “Makes Law” (“Shall”)
                    Used to supplement an act, fill
                         in gaps, enforce behavior,
                         grant rights and affect private
                         interests. (Nat‟l Family)
Why                Legislations take more procedure         Agencies shouldn‟t have to go
differences?       b/c it matters more. They directly       through all the procedural hoops
                   impact people and affected parties when making non-substantive
                   need chance to provide input.            clarifications.
To alter these  The new rule must be
                         legislative – agency must use
                         N&C procedures (Nat‟l Fam)
The difference b/w legislative & interpretive rules  is to ask whether the agency in explaining its policy has itself used
judicial like tools of statutory like construction. To the extent that the agency is acting like a court, construing the statute when
it makes policy, a court is likely to include that the agency has issued an interpretive rule rather than a legislative rule.
The difference b/w legislative & general statement  courts look at how tentative the language is. The more tentative the
language it is more likely a general statement of policy. A general statement of policy binds neither the agency or the public
vs. a legislative rule, if constitutional, will bind the agency and the public.


                  1. Nat’l Family Planning & Repro Health Assoc. v. Sullivan, D.C. Cir (1992) [552]
                      FACTS  Π filed suit against the Health and Human Services (Δ) challenging the validity
                        of new directives that relaxed the prohibition against Title X physicians informing patients
                        about abortion as an alternative.
                             HHS promulgated by N&C RM that any hospital receiving Title X funds couldn‟t‟
                                a have their doctors discuss abortion w/their patients as means of family planning.
                                                                                                                                   12
             Upheld by SC. President suggested a gag rule be lifted, w/o N&C RM HHS lifted
             the gag rule. Doctors filed suit b/c they wanted the nurses to be lifted from the gag
             rule as well. Π claimed that no N&C period was available where they could argue
             for the nurses.
    ISSUE  When an agency promulgates a regulation by N&C directly affecting the
     conduct of both agency personnel and members of the public, may it subsequently
     repudiate that announced meaning w/o proceeding through N&C RM normally required for
     amendments of a rule? No.
    HOLDING  to alter a legislative rule an agency has to use N&C procedures.
    REASONING  It would render §553 superfluous in legislative RM by permitting
     agencies to alter their requirements at their will.

       Lessons
           An Agency Rule that reminds parties of existing statutory duties is interpretive,
              not legislative. An interpretive rule clarifies a statutory term.
           Legislative Rule – does more than simply clarifying or explaining a regulatory
              term, or confirm a regulatory requirement, or maintain a consistent agency policy.
              It is subject to the APA‟s N&C requirements.

2. Hoctor v. US Dept of Agriculture, 7th Cir. (1996) [559]
    FACTS  USDA under the Animal Welfare Act said that any structure containing certain
      animals must be of a certain “structural strength.” Π who raised big cats, was told by a
      USDA vet that the fence should be 6 feet high. The following year the agency, w/o N&C,
      said the fences must be 8 feet high and Π was cited for failing to comply w/the “structural
      strength” provision of the Act.
           Gov't argued new rule was interpretive exempt from N&C.
    ISSUE  Whether a rule for the secure containment of animals, a rule promulgated by the
      Dept. under the Animal Welfare Act w/o compliance w/N&C requirements of the APA, is
      valid b/c it is merely an interpretive rule? No.
    HOLDING  Legislative rule b/c it wasn‟t saying what “structural strength” was, and b/c
      it was binding – therefore N&C RM was needed.
    REASONING  Decision of 8 feet was arbitrary. Many people who were affected were
      not allowed to participate.

       Lessons
           RULE  When agencies base rules on arbitrary choices they are legislating.

3. Lincoln v. Gibil, US (1993) [567]
    FACTS  Δ decided to close a clinic that provided health services for mentally,
      physically, and emotionally handicapped Native American children so they could focus the
      funds on a statewide basis to all clinics.
    ISSUE  Was this reallocation ok?
    HOLDING  It was ok b/c it could either be construed as a policy statement or a
      statement of agency organization.
    REASONING  Policy statement b/c this announcement was that the agency will
      discontinue a discretionary allocation of unrestricted funds from a lump-sum, even though
      the language was very definitive, not tentative as is common in policy statements.
            Court declined to say why it could be a procedural, organization, or practice rule
              although it hints that termination of a program is organizational (can make the
              argument for the other way.)

                                                                                               13
              4. Difference b/w Procedural Rules vs. Substantive Rules
                  Procedural Exception: (HO 2/5/02)
                         Critical Feature – it covers agency actions that do not themselves alter the rights
                           or interests of the parties, although it may alter the manner in which the parties
                           present themselves or their viewpoints to the agency.
                         Procedural impacts can always be described as affecting substance, but to pursue
                           that line of analysis results in the obliteration of the distinction that Congress
                           demanded.
                         The exception embraces cases…in which the interest “promoted by public
                           participation in RM are outweighed by the countervailing considerations of
                           effectiveness, efficiency, expedition and reduction in expense.
                         Rationale behind this – is it is a waste of time b/c there are some situations that are
                           unlikely to affect substantive rights that it should just be up to the agency to
                           decide.
                  Substantive Exception:
                         The issue is one of degree – the task is to identify which substantive effects are
                           “substantially grave so that N&C are needed to safeguard the policies underlying
                           the APA.
                  2 Step Process (to make distinction):
                         First, ask if the agency is directly impacting substantive rights and obligations or
                           directly affecting the manner in which people present themselves to the agency?
                                 Ex: If Kent said we are increasing the credits you need to graduate to 87.
                                    This would be a substantive change.
                                 Ex: If Kent said you now have to take all tests on laptops. This would
                                    merely be changing the manner you present yourself to the agency.
                                    Merely, procedural.
              5. Agencies invoke these as justification for waiving the requirements of §553:
              These are all read narrowly by the courts. Ex: pg. 574 – baby born w/corrective disease and
              parents said no surgery so the baby died. Agency created an interim rule w/o N&C b/c said it was
              an interpretive rule and there was “good cause” b/c of impracticability.
                      a) Good Cause [571]
                      §553(b)(B) permits an agency to dispense w/RM notice “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.
                           Impracticability  most frequently the one used. TEST is whether the execution
                               of the agency‟s function would be unavoidably prevented by its undertaking in
                               N&C RM.
                           Unnecessary  Rare, applies to minor or merely technical amendments that are
                               not a matter of substantial public concern b/c they do not substantially alter the
                               public‟s rights/duties.
                           Public Interest  contrary to public interest if advance notice and the delay of
                               N&C procedures would demonstrably worsen the problem the agency is trying to
                               combat.

III.   Adjudication and the Due Process Clause

       Primary Sources for procedural protections: FEDERAL - DPC 5th Amend to the C; APA (§554, 556,
       557); Procedural provisions of specific enabling statutes; Agencies. STATE – DPC of the 14th Amend;
       NOT governed by the APA.
                                                                                                               14
TRESHOLD QUESTIONS TO ASK FOR PDP: KNOW FOR FINAL
   Is there intentional state action? (HAVE to have intentional state action; cannot be just negligent)
   Look for adjudication – something that affects one or a very small group of people on an
     individual basis rather than affecting people across the board.
         o No constitutional based requirement when it is an across the board type of decisions that
             any of the people get to participate in the decision of making the new rule.
   Is there a constitutional protected interest?
         o Life, liberty or property.

A. What interests are constitutionally protected?
       1. Types of Interests:
               a) Life
               Rarely comes up in administrative law.
               b) Liberty
                    Definition – right to engage in common occupations in life, enjoy those privileges,
                     etc.
                          o Meyer v. Nebraska  “Freedom from bodily restraint, the right to K, to
                             engage in any common occupations of life (professionalism in general –
                             NOT a specific job), to acquire useful knowledge, to marry, establish a
                             home and bring up children, to worship God and generally to enjoy those
                             privileges long recognized as essential to the orderly pursuit of happiness
                             by free men.”
                    Reputation  some cases suggest when it stigmatizes a person (where they can‟t
                     get another job) it at least requires some hearing.
                          o Paul v. Davis  loss of reputation alone is not enough, even when caused
                             by the gov't, not enough to constitute a constitutionally cognizable interest.
                             Stigma + Test: indicates if you are going to have a constitutionally
                             cognizable interest to liberty interest you have to have reputation
                             concerns that impute you and ALSO brings about some change in legal
                             status – prohibits you from seeking further gov't employment, seeking
                             further housing, seeking housing, etc. The gov't impugning of your
                             reputation has to be made public. There also has to be contention that
                             the stigmatizing remarks are untrue.
                                   4 Factors of Test:
                                            Gov't must charge Π or stigmatize him.
                                            Charge must be published or made public.
                                            Π must dispute the facts.
                                            Π must suffer a change in status/legal rights. The gov't
                                                must take away a right or change your status themselves,
                                                it is not enough that at gov't er action causes someone else
                                                to take away a right or status.
                          o Seigert v. Gilley  harm to reputation and change in legal status have to
                             come hand in hand in order to satisfy stigma plus.
                          o Harm to reputation alone is NOT enough to be considered an infringement
                             on liberty. You need some gov't impressed harm and some legal
                             status.
                                   Ex: Your reputation is harmed and therefore you are banned from
                                      buying liquor in the neighborhood store – this is stigma +.

                                                                                                         15
        c) Property
             Definition – extends beyond actual ownership of real estate, chattels, or money.
             Roth v. Board of Regents  property is a safeguard of the security interests that a
              person has already acquired in specific benefits. A person MUST have a legit
              claim of entitlement to it. A person must have more than an abstract need or
              desire for it, must have more than a unilateral expectation of it.
             Contractual Rights – “for cause” a substantive property right exists if the gov't
              has told you, you can only be fired “for cause.” “At will” employees DO NOT
              have property interest.
             Bitter w/Sweet  even where the substantive property right is grounded in the
              same statute, regulation or K as the procedural limitations on that right…that
              substantive and procedure are different. The state (gov't) gets to define property,
              the scope of the substantive entitlement, but once it does so – even the “sweet” (the
              benefit) of the substantive entitlement – it is up to the court as to a matter of
              constitutional law to decide if the procedures offered by the state are
              constitutionally sufficient. The individual does not have to take the bitter w/the
              sweet.
                  o Arnett v. Kennedy [659]  the Bitter w/the Sweet Doctrine – substance
                       and procedure are different.

2. Goldberg v. Kelly, US (1970) [641] overruled by Mathews v. Eldridge
    FACTS  the Social Security Act added an amendment creating the Aid for Families
      w/Dependent Children program (AFDC). The AFDC promulgated a rule that said a person
      whose benefits are terminated may bet a post termination hearing. Citizens receiving
      federal aid said this violated their DP rights to be heard prior to the decision.
    ISSUE  Whether Π‟s had a constitutionally recognizable interests?
    HOLDING  private interests outweigh the gov't interests.
    REASONING  The welfare recipients have life interest in food, clothing and maybe a
      property interest in $. The Π‟s should be afforded a pre-termination hearing, right to be
      heard orally, option of counsel (not a right), right to confront and cross, conclusion to be
      based solely on evidence at hearing, impartial decision maker, informal written opinion.
      These are more than §554 requires.

3. Board of Regents v. Roth, US (1972) [652] “Liberty Interests & Stigma + Test”
    FACTS  hired for 1 year term as a teacher. K said when year was up they could refuse
      to rehire him w/o cause. He sued saying he should have been afforded a hearing.
    ISSUE  Was his DP rights violated by no hearing?
    HOLDING  University action was ok – there was no claim of entitlement for property
      interest. No liberty interest either.
    REASONING  Liberty interests (not exhaustive list): freedom from bodily restraint,
      right of an individual to contract, to engage in common occupations of life, to worship, to
      raise a family, to marry. Property interests legit claim of entitlement.

        Lessons
            Stigma + Test. Added above.
4. Perry v. Sindermann, US (1972) [658]
Same fact patter as Board except the college publications implied that he would be rehired if he
did a good job. In a public job context you look at the K, statute, or regulation to see if the ee has
some sort of substantive job protection. The K in Board did not contain one so no legit claim of

                                                                                                     16
        entitlement. However, the court said that these publications, in Perry, made an implied in fact K
        and therefore gave Π a legit claim of entitlement.

        5. Cleveland Board of Ed v. Loudermill, US (1985) [663] Rule trumps the Bitter
        s/Sweet Rule.
        Court says if the State sets up a provision where they hire you until they feel otherwise it is alright.
        But if the State gives you a K and says you will have your job until X, and they determine what
        procedures will protect you, this is not alright. RULE  the state may define substance of the
        right given, but it may not define the procedures protections given his right. The protection
        given are defined by the C.

B. Direct vs. Indirect Beneficiaries
        1. O’Bannon v. Town Court Nursing Center, US (1980) [667]
            FACTS  Town Court and 6 of its patients filed suit, protesting the Dept. of Health,
              Education and Welfare (HEW) decision, w/o a pre-termination hearing, that the Medicare
              benefits for those patients would not be paid after Town Court lost its designation as a
              “skilled nursing facility.”
            HOLDING  Π do not have a C protected interest here.
            REASONING  Agency action resulted in an indirect impact on the Π‟s (being moved),
              NOT a direct impact that could give rise to a life, liberty or property claim. No property
              interest b/c only right to a qualified home – which this nursing home is not.

                Lessons
                    Agencies cannot be responsible for the “ripple effect” by simply putting the ball in
                       play. This would create too many possible Π‟s.
                    Martinez v. California  just b/c they are setting something in motion doesn‟t
                       mean they are the direct effects for someone‟s death. Proximate cause argument.

C. How to break down a due process question.

Study Guide Question #5, February 12, 2002: LIBRARY TRAINEE.
Smith hired at public library on a probationary status and could be let go at the supervisor‟s discretion. If
he successfully completed his probationary term he could apply for a regular position. On his last day of
probationary period he was told he was not eligible to apply b/c he was suspected of stealing, and if he tried
to apply here or anywhere the supervisor would tell the er he is a thief. Smith admits to “borrowing” the
book, but meant to return it. The video camera confirmed he had taken a book. He wants a hearing to
explain himself. Has he been deprived a constitutionally protected interest?


        Ask Threshold Questions:
            Government employer? Yes.
            Adjudication? Yes.
            What interest is affected? Go through each one and explain.

        Affected Interests:
             Life Interest  No. (Almost never in administrative law).
             Property Interest 
                   o Define Property Interest First.
                   o Argue both Sides.

                                                                                                              17
                           No property interest b/c he was only a trainee and they could let him go at
                            any time.
                        Could make a property interest b/c they had told him he could apply for
                            the job. Smith is going to argue he was told (implicit K – Perry v.
                            Sinderman) that if he completed his training period in good standing he
                            would get to apply. The gov't is going to say he isn‟t in good standing –
                            but Smith should at least get to explain that he is not a thief.
                        **Courts have been unwilling to apply this to application process – to say
                            you get more procedural DP in the application process than termination.
           Liberty Interest 
               o Stigma + Type of Liberty (reputation) – recognize this, define it and go through
                   the 4 standards and make sure you discuss each one separately.
                        (Gov't) Injury to Reputation – type of charge they said could be injurious
                            to reputation.
                        Change in legal status - ??
                        Publication - probably not satisfied here. May be satisfied in an indirect
                            way.
                        Factually disputed – he is not really disputing the underlying facts. He has
                            admitted to the facts. Courts go back and forth w/saying you should get to
                            justify yourself – as here Smith should get to say he is not a thief, he was
                            mistaken about my character and whether that made me a responsible
                            person.
               o Traditional Definition of Liberty: he is not denied the b/c this is talking about a
                   SPECIFIC job, not the whole universe of jobs. He is not loosing a job b/c he
                   probationary period is over. The treat may go to the universe of jobs, but probably
                   not enough of a gov't position to go to court.

      If an interest is taken away then you must decide what process is due. The test to determine
      what amount of process is due is derived from Mathews v. Eldridge.
           Private Interest Affected  only losing opportunity to apply for a job, he is not losing the
              job itself.
           Risk or erroneous error  he can argue that his employer had sole discretion and is
              biased. Also could argue that, like Goldberg, the facts are subjective and therefore more
              DP is needed. Also argue, similar to Gross and Horowitz, when there are charges of
              misconduct, the nature of the facts in dispute are subjective and therefore more DP.
              Library says they got the tape and he should not be allowed to later say he borrowed it.
              This would set a bad precedent.
           Value of additional procedures  depends on what side you are on. See above
              arguments.
           Gov't interest  probably low, but library would argue differently.

D. “How much” process is due – and when?
      1. Mathews v. Eldridge, US (1976) [680] overruled Goldberg rule.
          FACTS  Eldridge was terminated benefits b/c they said his disability had ceased. There
            was a termination of someone who was already on the rolls, who was already receiving
            benefits.
          ISSUE  Whether DP of the 5th Amend requires that prior to the termination of SS
            disability benefit payments the recipient be afforded an opportunity for an evidentiary
            hearing?
          HOLDING  Evidentiary hearing NOT required prior to the termination of disability
            benefits and that the present administrative procedures fully comport w/DP.

                                                                                                     18
                   Lessons
                       4 Factors to be weighed to determine how much DP is due once it has been
                          determined that an interest has been deprived.
                               Private interest affected  ask first, is there an interest of a type/nature
                                  that triggers any constitutional DP protections. Second, once you have
                                  passed the threshold that there is a property/liberty interest you have to say
                                  how weighty is that interest/how important is that interest to the claimant?
                               The risk of erroneous deprivation of the interest by the procedures used
                                   the courts are talking about error rates. What kind of objective
                                  information can be provided.
                               Value of additional procedures.
                               Gov't interest in speedy and efficient resolution  administrative burden
                                  and money.
                       This test displaces the Goldberg Rule which says DP requires an evidentiary
                          hearing prior to deprivation of benefits. Goldberg held that b/c the benefits
                          awarded were based on financial need and therefore prior hearing is necessary.
                          The Mathews Test weighs factors and then determines whether a prior hearing
                          should be held. Financial need is one of the factors, it will not give rise to a
                          hearing by itself.

            2. Board of Curators of the Univ. of MO v. Horowitz, US (1978) [689] consultative
            model
                FACTS  Horowitz was dismissed from medical school for unsatisfactory performance,
                  she filed suit, alleging that the Board had not accorded her procedural DP prior to
                  dismissal.
                HOLDING  Enough DP b/c the decision to dismiss was made on criteria not readily
                  adapted to adjudication, but the court did not use the Mathews test.
                REASONING  The court referred to Goss v. Lopez (1975). This case made distinctions
                  b/w students who are dismissed for academic reasons and those who are dismissed for
                  disciplinary reasons. The court felt that suspensions for disciplinary reasons have
                  resemblance to adjudication and therefore call for a “hearing” before school authorities.
                  The court did not require a formal hearing. “We are not going to try to 2nd guess academic
                  decision making b/w that is not what the court is good at. Educators are experts at this.”

                   Lessons
                       Horowitz and Gross represent the Court‟s reluctance to deal w/education in a
                          formal way used in Mathews.



                     Goldberg v. Kelly              Mathew v. Eldridge                     Horowitz
 Private       Very Strong                       Not as Strong as Goldberg       Significant
Interests




                                                                                                             19
   Risk of          High RED & High value Addt‟l       Not so high. Much of the         High??? RED, but what the
  Erroneous         value b/c they couldn‟t            information is objective and     court is really emphasizing is
 Deprivation        write/express themselves well.     is the kind that is regularly    the additional process
 (RED)/Prob         Also they were subjective          submitted in written form.       requested would not have
value of more       facts/credibility was important.                                    helped matters.
   process                                                                              Subjective – mostly it was a
                                                                                        question if she was a good
                                                                                        doctor in a clinic setting.
Gov't Interest      A significant part of the courts   A significant part of the        The money issue may have
                    concern was how costly this        courts concern was how           been there implicitly they are
                    was going to be in terms of        costly this was going to be in   primarily concerned about the
                    money – how much of a burden       terms of money – how much        gov't in a different sense.
                    on the taxpayer.                   of a burden on the taxpayer      The court does not want to
                                                                                        interfere w/academic decision
                                                                                        making.


      E. Adequacy of common law remedies; right to a neutral decision maker
                 1. Ingraham v. Wright, US (1977) [697]
                     FACTS  Π says the school‟s use of corporal punishment before a pre-paddling hearing
                       violated his liberty interest (freedom from harm) by not affording him DP.
                     HOLDING  Court agrees there is a liberty interest; gov't action (public schools) and this
                       process is adjudication. Question is how much DP is required? DP does not require a pre-
                       paddling hearing b/c state common law provides remedies for impermissible corporal
                       punishment and this is enough to satisfy DP.
                     REASONING  Court distinguishes Gross that in this case the teacher sees the conduct
                       and therefore there is no risk of erroneous discipline.

                         Lessons
                             Court seems to be returning to Bitter w/the Sweet where one is allowed to define
                                a right given and also provide the procedures to protect that right. Where gov't
                                creates a property like entitlement and in the same statute provides the same
                                procedural protections for that entitlement then those should be the only
                                protections required. They should in effect define the scope and border of the
                                substantive right created. Courts should not be able to include more substantive
                                procedures than they have.

                 2. Tumey v. Ohio, US (1927) right to a neutral decision maker
                 Court held that a mayor who received a share of fines levied on person convicted in the town court
                 could not constitutionally preside over the hearing. Test  violates DP if a judge has a direct,
                 personal, substantial, pecuniary interest in reaching a conclusion.

                 3. Gibson v. Berryhill, US (1973) [710]
                 Parties w/substantial pecuniary interests in legal proceedings should not adjudicate such
                 disputes.

                 4. Cinderella Career & Finishing Schools, Inc. v. FTC, D.C. Cir (1970) [715]
                     FACTS  While the hearing examiner‟s ruling that the FTC brought false advertising
                       charges against Cinderella be dismissed was being appealed, the FTC chairman made a

                                                                                                                   20
              speech before a national newspaper association that hinted that he had a bias. Π claimed
              he should remove himself from the hearing.
             RULE  if a disinterested observer may conclude that a decision maker has
              prejudged the facts as well as the law of a particular case before hearing it, that
              decision maker must be removed.
             REASONING  an administrative hearing must be attended, not only w/every element of
              fairness, but w/the very appearance of complete fairness.

        5. Withrow v. Larkin, US (1975) [721]
            FACTS  agency brought action against doctor and then recommended criminal charges
              be brought as well why they were presiding over the criminal claim.
            RULE  DP does not require a strict separation of functions b/w prosecuting and
              decision making officials, and mere exposure to evidence presented in non-adversary
              investigative procedures in insufficient in itself to overcome the presumption that
              officials will decide impartially.

                Lessons
                    The APA tries to counter bias when an agency’s power overlaps by: (1)
                       insulating ALJ salaries; (2) exempting ALJ‟s from performance appraisals that
                       affect pay; (3) cases are assigned in rotation; (4) ALJ‟s may not communicate ex
                       parte w/anyone about the case, inside or outside the agency; (5) ALJ‟s may not be
                       assigned duties inconsistent w/ his or her ALJ responsibilities.
F. Statutory Hearing Rights
To the extent that specific statutory procedural provisions conflict w/the APA, they take precedence. For
the most part however, statutory procedural provisions are either duplicative or supplementary to the APA.
The very first sentence §554 states that the APA‟s adjudicative requirements must first be triggered by a
hearing requirement in a primary statute. Once that trigger has been pulled the APA fills in the blanks.

        1. APA §554-557.
            §554 – Adjudications.
                 o Says – the adjudicative requirements of 556 and 557 must be triggered by a
                     hearing requirement in the primary statute. The trigger is the hearing must be on
                     the record and after an opportunity for an agency hearing.
            §555 – Ancillary Matters.
            §556 – Hearings; Presiding Employees; Powers and Duties; Burden of Proof; Evidence;
             Record as a Basis of Decision.
            §557 – Initial Decisions; Conclusiveness; Review by Agency; Submissions by Parties;
             Contents of Decisions; Record.
                 o §557(d) prohibits ex parte communications during an administrative adjudicative
                     proceeding b/w agency officials and interested parties.

        2. Portland Audubon Society v. Endangered Species Committee, 9th Cir (1993)
        [726]
            FACTS  Gov't agency petitioned to get an exemption from the Endangered Species Act
              (ESA) so they could cut down a forest that contained an endangered owl. Weird b/c
              Congress is petitioning Congress. Committee approved the exemption and Π sued saying
              Presidential ex parte contacts tainted the committee‟s decision.
            ISSUE  (1) are committee proceedings subject to ex parte contacts ban of APA
              §559(d)(1)? (2) if so, was the President covered by the ban?

                                                                                                        21
           REASONING  The President is an interested party – the APA prohibits an “interested
            person outside the agency” as well as members of the agency from participating in ex parte
            contacts. President has an interest in all agency proceedings and an ex parte contact from
            the President is very influential.

              Lessons
                  Appropriate to apply ex part ban when 3 criteria of §554 are met:
                        Is it an adjudication? A informal or formal adjudication.
                        Is it determined on the record?
                        Is it determined after opportunity for an agency hearing?
                  3 types of interested parties: defined very broadly
                        Someone who has a curiosity or concern about the matter although he may
                           be neutral w/respect to the outcome. Only this one would fall out of
                           §557(d)’s ambit.
                        Someone can have a preference of a bias regarding an outcome but no
                           direct stake in that outcome. (financial stake but may not care about the
                           outcome)
                        Someone can be interested in a sense of having a legal interest in the
                           outcome. (financial stake)
                  Remedies for banned ex parte contacts (what are the agencies to do?)
                        Put the contact on the record  §557(d)(1)(C).
                        If contact comes from an actual party the agency may dismiss that party‟s
                           claim after that party has an opportunity to show why they shouldn‟t be
                           sanctioned  §557(d)(1)(D)
                        Any other sanctions under §557(d) including the ultimate sanction of
                           deciding against the party.
                  Ex parte contacts ban does not encompass status reports or update on time.
                  Public addresses are usually not ex parte contacts.

G. Control of ALJ’s; Substantive Rules for Adjudication
      1. Association of Administrative Law Judges v. Heckler, D.C. Cir (1984) [740]
      Review and agency control over adjudicators
          FACTS  Π‟s sued Δ‟s b/c they had used a method to review decisions based on the fact
            that ALJ‟s were giving large amounts of benefits under the SSA. Those who awarded the
            highest amounts were subject to review. B/c of these complaints the standards for review
            were lessened but Π still initiated a suit b/c they said this scrutiny affected their decisions.
          HOLDING  While the agency did create a hostile atmosphere, it has taken steps to
            lessen the stress and therefore there is no need for action. “Qualified right” was not
            violated.
          RULE  While ALJ‟s are not constitutional protected, in may aspects their job is
            functionally comparable to federal judges. On the matter of law and policy, ALJ’s are
            entirely subject to the agency. Although they may dispute the policy, the agency may
            impose its policy through the administrative process. In reviewing an ALJ decision
            the agency retains all the powers which it would have had in making the initial
            decision.
                  A program targeting allowance decisions made by ALJ‟s violates the rights of the
                     judges to decisional independence pursuant to the APA.




                                                                                                           22
              2. Heckler v. Campbell, US (1983) [756] Substantive rules for adjudication:
              constraining the decisionmaker
                  FACTS  Campbell was denied disability benefits when HHS using published guidelines,
                    a sort of “grid rule” determined she was not disabled. She sues, saying this is an
                    adjudication and should not sue a rule to decide. She claims she is entitled to an
                    adjudication. If a job existed – she would be denied benefits.
                  ISSUE  May Dept. HHS rely on published medical-vocational guidelines to determine a
                    claimant‟s rights to SS disability benefits? Yes.
                  HOLDING  Dept. of Health and Human Services may rely on published medical-
                    vocational guidelines to determine a claimant‟s rights to SS disability benefits.
                  REASONING  The findings were individualized; present methods give claimants ample
                    opportunity to present evidence.

                      Lessons
                          When an agency is given RM and adjudication, it has flexibility to determine how
                             and when to use them.

IV.   Separation of Powers
      A. The Non-Delegation Doctrine
      The doctrine finds its teeth in Article I §1, which states that “all legislative powers herein shall granted
      shall be vested in a Congress…” This doctrine states that Congress cannot delegate its legislative powers.
      Courts have struggled to define this.

      TEST  to determine if a delegation is valid, the court will look to see if Congress has provided the
      agency with an intelligible principle that will guide the agency in using the delegated powers. The
      rationale for delegating broad legislative powers is “governmental necessity” in lessening their load by
      allowing specialized agencies do to what they do best. Another rationale is the “necessary and proper
      clause” of Article I.

      Rationale for giving agencies the power to make these decisions:
           Congressional lack of time.
           Agency may have more knowledge, more experience, more expertise.
           Institutional competency/ability. That the agency is likely to be specialized and Congress is
              initially made up of generalists.

      Rehnquist‟s Defense of a Non-delegation Doctrine w/Teeth:
          Congress should do its own job and should not in effect delegate accountability.
          Hard to stay w/n the intelligible principle when powers are so broad.
          Makes it harder for courts do define the intelligible principle when the delegated powers are broad.

              1. Constitution Article I [1215-1216]


              2. The Benzene Case, US (1980) [23]
                  FACTS  OSHA, in an effort to protect workers, and coming to the conclusion that no
                    level of benzene is “safe”, determined that the limit be set at the lowest technologically
                    feasible level that would not impair the industries. Π‟s contend that this new standard was
                    not reasonably necessary.
                         The Act provided that – a standard must be one that “is reasonably necessary and
                             appropriate to provide safety” and that when dealing w/toxic chemicals, as here
                             w/benzene, that the standard must be promulgated “to the extent feasible.”
                                                                                                                 23
           HOLDING  Plurality – in an effort to avoid finding the act unconstitutional under the
            non-delegation doctrine b/c of a lack of an intelligible principle, the plurality read these 2
            provisions of the statute to require the Sec to establish that the original standard posed a
            significant risk. He had not done this before promulgating the new rule and therefore the
            court struck down the statute.
           REASONING  Rehnquist‟s concurring w/decision not w/reasoning: the real reason this
            statute should be struck down is b/c the phrase “to the extent possible” is not an intelligible
            principle.

       3. Whitman v. American Trucking Assoc., Inc., US (2001) [course pack]
           FACTS  Challenges brought by private parties and state gov't to the EPA standards for
            particular matter ozone.
           ISSUE 
           HOLDING 
           REASONING 

B. The Legislative Veto
       1. Immigration and Naturalization Service v. Chadha, US (1983) [39]
           FACTS  Chadha‟s visa ran out. He filed with the AG to suspend deportation hearings.
             The AG, under the Immigration and Nationality Act, had the power to suspend the
             deportation proceedings if immigrant had been in the country for 7 years, was of good
             character, and would be substantially harmed if deported. The AG then reports to
             Congress who may veto. The AG‟s determination was vetoed by the House alone, and
             Chadha appealed saying this legislative veto of the Act (not the entire Act) is
             unconstitutional.
           ISSUE  Is the legislative veto unconstitutional?
           HOLDING  Yes. Violates 2 provisions of the Constitution: (1) Presentment Clause –
             any legislation must be presented to the President for him to sign and veto; and (2)
             Bicameralism (Art. 1) – to pass legislation both houses must concur.
           REASONING  Congress had acted in a legislative way b/c the actions were to have the
             affect of law and affect Chadha‟s legal rights. Which sounds more like adjudication, not
             legislative action. The court struck down legislative vetoes w/n their entirety, not just
             unicameral legislative vetoes.
           Dissent  says that legislative vetoes are needed for checks and balances.

              Lessons
                  RULE  Legislative vetoes are unconstitutional.
                  What may Congress do when overseeing agencies after this holding:
                       May restrict agency‟s budget.
                       Bring in heads of the agencies and “grill them” or lean on them.
                       Use sunset provisions that give an act or an agency a shelf-life and forces
                         the agency to renew its authority. This is often done at the state level and
                         less often at the federal level.
                       Amend the statutes to constrict agency authority by limiting delegated
                         authority. (most popular)

C. Appointment and Removal of Executive Officers

Executive Control over Admin Agencies: 3 Main Issues

                                                                                                        24
     Implicit removal powers of the C  The powers of appointment are expressly stated, but aside
      from impeachment for treason, bribery, and high crimes and misdemeanors (majority of the House
      and 2/3 of the Senate approval), the C is silent on removal powers.
     Appointment Clause of the C  (Art. 2 §2 clause 2.) This clause empowers the President w/the
      power to appoint superior officers. Inferior officers are appointed by either the President, the
      heads of the departments or the courts of law (Art. 1 & 3 Courts). Congress decides, w/n their
      discretion, which one of these is to appoint inferior officers. Heads of Departments are those
      heads w/n the executive branch or have a significant connection w/the executive branch.
     Separation of Powers Doctrine  The main concern here is that the President‟s Article II function
      (“to make sure laws are properly executed.”) are not impaired with.

There is a 3rd group of employees, not considered superior or inferior officers, are mere gov't employees.
The difference is that officers have discretion in exercising significant authority pursuant to the US law and
therefore officers must be appointed.

Appointment Clause Problem Analysis:
    Officer or employee?
    Superior or inferior officer?
    Legislative, judicial, or executive function? If the officer is gathering information or doing
      investigative work (legislative functions) then not subject to Appointment Clause. If the officer
      engages in RM/adjudication/enforcement functions then they are subject to Appointment Clause.

        1. Appointment of Officers
                a) Buckley v. Valeo, US (1975) [79]
                     FACTS  Statute required that several members of the FEC be appointed by the
                      Speaker of the House, as well as by the President pro tempore of the Senate.
                     HOLDING  Court struck it down.
                     REASONING  Members of the FEC performed RM, adjudication, and
                      enforcement functions typical of those exercising great discretion under the laws of
                      the US. The officers being appointed by Congress were therefore superior
                      officers and needed to be appointed by the President pursuant to the Appointment
                      clause. If the officer is an inferior officer then Congress must vest the
                      appointment power. It cannot appoint by itself.
        2. Removal of Officers
                a) Meyers v. US, US (1926) [82] holding eliminated by Humphrey
                Statute wanted to limit President‟s ability to remove an official by requiring the Senate‟s
                consent and advice. Court says this is not needed. Doesn‟t matter if inferior or superior
                official, the President needs “at will” removal power over purely executive officers.
                b) Humphrey’s Executor v. US, (1935) [83]
                     FACTS  Statute allowed President to remove officer only for inefficiency,
                      negligence or malfeasance. Essentially the President needed cause.
                     HOLDING  This was a proper limitation of Presidential power. This narrowed
                      Meyers. The Court distinguished this case by saying a “with cause” provision is
                      needed here b/c the officer sought to be removed was not purely an executive
                      officer as the officer was in Meyer. Here the officer was engaged in both
                      legislative and judicial functions.




                                                                                                           25
c) Bowsher v. Synar, US (1986) [85]
    FACTS  An Act provided that if Congress and the President fail to agree on
     fiscal policies, that responsibility for the reduction of deficits, along w/calculating
     these deficits, would be vested in an officer removable by Congress.
    HOLDING  these functions were executive in nature b/c the officer was
     responsible for executing the law. Executive authority is defined by enforcing a
     statute or implementing a statute scheme. This Act, allowing Congress removal
     power would be unconstitutional.
    REASONING  Congress cannot remove an executive official unless for
     impeachment offenses.
    Dissent  this is a formalistic approach, the proper view of the separation of
     powers is a functionalist approach more concerned w/the practical outcome. This
     is the same as the dissent in Chadha and other cases dealing w/separation of
     powers doctrine.
d) Morrison v. Olsen, US (1988) [90] “Appointment & Removal”
    FACTS  Ethics in Gov't Act created the special prosecutor. Act said that upon
     receipt of evidence of wrongdoing the AG was to investigate. If AG finds grounds
     for action he would apply to a special court called the Special Division who would
     then appoint the special prosecutor. This Special Division was not allowed to
     oversee any proceedings brought forth by the special prosecutor. The special
     prosecutor may be removed by the AG at any time for good cause. The only other
     way the prosecutor could be removed is by Congress, if the prosecutor‟s job is
     done and refuses to step aside, or for acts giving rise to an impeachment.
          Someone being investigated sued, saying this act violated the Appointment
              Clause, the President‟s Article II functions, and the separation of powers
              doctrine.
    ISSUE 
    HOLDING 
    REASONING  Majority says that officer was an inferior officer and therefore
     no violation of the Appointments Clause.
          Inferior b/c:
                   He was removable by superiors and therefore was subordinate.
                   His powers were limited to investigation and prosecution, and
                      not the authority to formulate policy/RM for the Executive
                      Branch.
                   His office was limited in jurisdiction. Can only investigate
                      certain people w/n the scope of the jurisdiction given him by the
                      Special Division. Jurisdiction has nothing to do w/geography.
                   His office is temporary and limited in tenure.
          Majority also said that the fact the courts (Special Division) appointed an
              executive officer (interbranch appointment) and the fact that the
              prosecutor can be removed by the special division does not violate the
              Appointments Clause or trample on the President‟s Article II functions in
              violation of the separation of powers b/c:
                   The Exceptions Clause (Art. 2 §2 clause 2) allows Congress to
                      vest appointment power in the President alone, the courts of law,
                      or heads of the departments.
                   The fact that the Special Division can only “remove” once the
                      prosecutors job is up, and the fact that the AG, essentially acting
                      for the President, can remove at anytime, is enough to establish
                      that the President‟s Article II functions are being interfered with.

                                                                                         26
                                     Congress has not directly interfered w/the President’s removal
                                      power as Congress had done in Meyers. Direct interference
                                      not permitted (functionalist approach).
                             Majority does not believe that this Act violates the separation of powers
                              b/c:
                                    Regardless of whether the official is executive/legislative/ or
                                      adjudicative in nature (functionalist approach), the President
                                      still retains ample power through the AG to reside over the
                                      prosecutor. Therefore, his Article III functions are intact and are
                                      not violated by the separation of powers doctrine. The real
                                      question to ask is whether any limitations on appointment or
                                      removal impedes the President’s Article II functions?

                      Lessons
                          BLACK LETTER LAW  Abandonment of the distinction b/w
                             purely executive officer and other officers.
              e) Edmonds v. US [on line] (post Morrison, doesn’t overrule…use both tests)
              Clearest Test for inferior officers. If the officer is directed by other officers directly
              appointed by the President then probably inferior.

      3. Hypo from Study Guide, Clerks Selection


      4. Miscellaneous Appointment/Removal Power
          Doesn‟t matter if executive official is inferior, the President can remove them w/o cause
            unless Congress imposes indirect limitations. If in the executive branch and quasi-
            judicial/legislative then Congress will probably limit them.
          Remember that Meyers and Humphrey Executor are still good law even though there is
            some tension w/Morrison.
          Congress may only remove a purely executive official through impeachment. The
            President may not remove a legislative official or a judicial official, unless authorized, b/c
            this would violate the separation of powers doctrine.
          Advice and consent of Congress is not direct involvement. What is, is if Congress gives
            the President their advice and consent, and after the President has removed the official,
            Congress requires the President to come back to them so that they may review his decision.
          Remember that the power of removal and the power of appointment go together. That
            said, always be on the lookout for separation of powers issues.

D. Other Supervisory Powers and Control w/n Agencies; Delegation of Adjudicative
Authority
      1. Commodity Futures Trading Commission v. Schor, US (1986) [626]
          FACTS Commodities Exchange Act created the CFTC to prosecute fraudulent activity.
           CFTC promulgated a reg that allows them to adjudicate common law claims rising to of
           the transition set forth in the complaint. The decision to adjudicate these counterclaims
           before the agency was voluntary, the party could still choose to go before state/federal
           court. Schor lost his original claim as well as a counterclaim (breach) against him,
           challenged this regulation as in violation of Article III.
          ISSUE  What limits exist on Congress‟s ability to delegate Article III power to admin
           agencies?

                                                                                                           27
                  HOLDING  Court said if they wanted to be formalistic, it could decide this case by
                   finding that Schor waived his right to a federal trial.
                  REASONING  However, this would not decide the central issue. An individual cannot
                   waive the separation of powers doctrine, he cannot waive jurisdiction in one court, thereby
                   bestowing jurisdiction on another court in violation of Article III. Furthermore to rule this
                   way would essentially invalidate all agency adjudication.
                        The court says under the 3 factors, the intrusion into Article III land was minimal,
                           and therefore NO constitutional violation.

                     Lessons
                         3 Factors to determine if allocation of some judicial power interferes w/Article
                            III:
                                  (1) The extent to which the non-Article III court exercises its range of
                                    jurisdiction and power normally conferred to Article III courts. Here the
                                    jurisdiction is limited to only counterclaims arising from specific disputes.
                                    The range of power is small b/c the parties have a choice of jurisdiction
                                    and the ALJ decision is subject to “de novo” (little or no deference)
                                    review.
                                  (2) The origin and importance of the right to be adjudicated. The
                                    difference here is public rights (party v. gov't/agency and some party v.
                                    party where it has a significant effect on an agency) and private rights
                                    (party v. party where the court is acting like a neutral decision maker)
                                    which have generally been adjudicated by Article III courts throughout our
                                    history. Courts say possible violation of separation of powers doctrine is
                                    higher when non-Article III courts here private rights claims. This is
                                    peculiar b/c you would think it would be the other way around. This is a
                                    private rights claim (breach) but this is not final.
                                  (3) The concerns that led Congress to stray from Article III courts. Here
                                    the purposes were efficiency and the fact that the agency has a specialized
                                    knowledge over the original claim.
                         Dissent – says this balancing test is dangerous b/c once you give in a little it
                            snowballs and soon Article III courts are minimal. Exceptions to Article III power
                            are allowed for military courts-martial, some territorial courts, and certain disputes
                            concerning public rights. That is enough.
                         BOTTOM LINE  Agencies can adjudicate, but it is subject to this loose
                            balancing test.


V.   Judicial Review of Administrative Decisions (Scope of Review)
     A. Introduction to Scope of Review
     2 Questions to determine the Appropriate Scope of Review:
         What type of issue (nature of the case) is the court being asked to review? ex: agencies finding of
            fact, agencies construction of one of its own regulations, determine validity of an agency policy.
         In what type of administrative proceeding did the agency arrive at the decision being challenged?
            Formal RM vs. informal, etc.

     EXAM  you could have different scope of review applicable to different parts of the same case.

     JR is largely limited to either “substantial evidence” review (undertaken if the agency has made the
     decision after conducting a formal RM or adjudication) or “arbitrary and capricious” review. Both of
     these grounds are highly deferential to the determinations of the agency and generally require a court to

                                                                                                               28
uphold the agency‟s decision if the decision is one that a reasonable person could have made, irrespective
of whether the court itself would have made the same decision.

        1. 5 U.S.C. §706 – Scope of Review [1243]
        To the extent necessary to decision and when presented, the reviewing court shall decide all
        relevant questions of law, interpret constitutional and statutory provisions, and determine the
        meaning or applicability of the terms of an agency action. The review court shall –
                (1) compel agency action unlawfully withheld or unreasonably delayed; and
                (2) hold unlawful and set aside agency action, findings and conclusions found to be –
                        (A) Arbitrary and capricious, an abuse of discretion, or otherwise not in
                             accordance with law
                        (B) Contrary to constitutional right, power, privilege or immunity;
                        (C) In excess of statutory jurisdiction, authority, or limitations, or short of
                             statutory right;
                        (D) W/o observance of procedure required by law;
                        (E) (formal proceeding) Unsupported y substantial evidence in a case subject to §§
                             556 & 557, of this title or otherwise reviewed on the record of an agency
                             hearing provided by statute or;
                        (F) unwarranted by the facts to the extent that the facts are subject to trial de novo
                             by the reviewing court.
        In making the foregoing determinations, the court shall review the WHOLE record or those
        parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

        2. Citizens to Preserve Overton Park v. Volpe, US (1971) [155] standards of review
        in the APA.
             FACTS  A fact of concerned citizens sued the Sec of Transportation, challenging his
               decision to construct a highway through a public park.
             ISSUE  IN reviewing administrative decisions which are unembellished by formal
               findings of fact, must the court confine its evaluation to the contents of affidavits submitted
               by the agency at the trial? No.
             HOLDING 
             REASONING  There was a debate b/w the Senate and the House as to how much
               discretion the Sec has under this Act. The court said the Act is ambiguous as to the
               original intent of Congress. Court says the decision is open for review, but what standard?
                    The proper scope was (A) b/c the challenge was whether the agency relied on
                        correct factors in making its decision.

                Lessons
                The APA has several different standards for different challenges:
                    ARBITRARY & CAPRICIOUS, §706(2)(A)  “Arbitrary, capricious, abuse
                       of discretion, or otherwise not in accordance with the law.” This scope of
                       review can involve questions of law, fact, or discretion depending on the facts. For
                       our purposes usually fact/policy. Generally this is deferential and involves a 2
                       part test:
                            (1) has the agency relied on correct factors in making its decision?
                            (2) was the agency‟s decision a clear error in judgment?
                    CONSTIUTIONAL CHALLENGE, §706(2)(B)  “contrary to a
                       constitutional right, power, privilege or immunity.” Involves a question of law
                       in which the reviewing courts give little deference.
                    SCOPE OF AUTHORITY REVIEW, §706(2)(C)  “in excess of statutory
                       jurisdiction, authority, limitations, or short of statutory rights.” Involves a
                                                                                                           29
                     question of law; whether the agency exceeded its statutory authority. The question
                     asked is whether the agency understood the organic statute.
                    PROCEDURAL REVIEW, §706(2)(D)  “without observance of procedure
                     by law.” Allows courts to set aside a decision if the agency did not act correctly in
                     a procedural manner.
                    SUBSTANTIAL EVIDENCE REVIEW; §706(2)(E)  “not supported by
                     substantial evidence in a case not subject to §556 and §557 (formal RM and
                     adjudication) or otherwise reviewed on the record of an agency hearing
                     provided by statute.” Deals w/issues of fact. As the definition suggests this type
                     of review is triggered when the agency decisions was made after a formal
                     adjudication or RM (“on the record”). When reviewing under this standard the
                     reviewing court is to look at the “whole record.”
                    DE NOVO REVIEW; §706(2)(F)  “unwarranted by the facts to the extent
                     that the facts are subject to trial de novo by the reviewing court.” Deals
                     w/issues of fact and is a rarity in admin law. This is different from the regular
                     usage of de novo review when little if no difference is given the court‟s decision.
                     Under APA de novo review the reviewing court can be a fact finder and take new
                     evidence. Under the APA, as espoused in Overton Park this review is to be used
                     when:
                          (1) the agency action is adjudicatory, and
                          (2) the agency fact finding procedures are inadequate.

B. Judicial Review of Questions of Law
      1. Chevron v. Natural Resources Defense Council, Inc. US (1984) [173]
          FACTS  Debate over the term “source in the Clean Air Act Amendments. EPA
            promulgated a reg pursuant to N&C (informal) RM to fill in the gap. Their definition said
            that a course is the factors as a whole (bubble), not individual parts. NRDS sues.
          HOLDING  Court said definition is ok and gave the rule.

             Lessons
                 CHEVRON TEST: When you are reviewing an agencies interpretation of its
                    own statute 
                         (1) Ask did Congress clearly address the specific issues? This step deals
                             w/law. If Congress did so unambiguously then the Court will give effect
                             to the unambiguously expressed intent of Congress. To decide this a court
                             may use all its resources, including looking into legislative intent as well
                             as using cannon‟s of interpretation when looking at the statutory language.
                         (2) Is the agency’s interpretation permissible or reasonable? No post
                             Chevron case has ever set aside an agency answer for this reason. This
                             step deals w/policy. The inquiries into policy are quasi-political and
                             therefore the agency is in the best position. In general courts do not like to
                             make policy decisions, they generally “punt” on issues like these. Even
                             though this is a question of law, agencies are given deference.
                 RULE  §553 N&C (informal) will trigger Chevron rule. To trigger this you
                    must look at the issue and the procedure. This issue must be that the agency is
                    interpreting its own organic statute in N&C RM and Formal Adjudication.

      Chevron is NOT TRIGGERED – when rule is espoused in an opinion letter, manual, policy
      statement or other “interpretive regulation” although these interpretive regulations may be
      given some weight but won‟t trigger Chevron substantial deference. This lesser form of deference
      given “interpretive regulations” comes from Skidmore.
                                                                                                        30
Formal Adjudication, advisory opinions (different from opinion letters) and possibly informal
adjudication will also trigger Chevron.

2. MCI Telecommunications Corp. v. American Telephone, US (1994) [1009]
    FACTS  Act originally said that all carriers must file their fees so that competitors of
     AT&T (a monopoly at the time) would know what they were charging so they could enter
     the market. Act said agency could make “modifications” to the Act. Agency then changed
     the requirement to allow for non-dominant competitors to not file
    ISSUE  Is whether this is a modification?
    HOLDING  Congress was not unambiguous – so court stops at #1 step of Chevron.
    REASONING  It is not a modification, it is a substantial change from what Congress
     intended. Congress says file, the modification says you don‟t have to.
         o Dissent – not good application of test – too formalistic.

3. Babbit v. Sweet Home Chapter of Communities for a Great Oregon, US (1995)
[185]
    FACTS  Sec promulgated a reg under the Endangered Species Act. Act says you can‟t
      “take” endangered animals and includes harm in the definition of take. Regulation
      interpreted harm to mean direct and indirect harm (altering habitat).
    HOLDING  Upheld the validity of the regulations.
    REASONING  The Act is ambiguous so moves to step #2 to determine if reasonable –
      court says yes b/c:
          o (1) indirect harm is plausible under the regular dictionary definition of harm.
          o (2) the agency‟s definition of harm is consistent w/the goals of the ESA.
          o (3) Legislative history upholds the agency‟s definition.

        Lessons
         **When Congress has trusted the Sec w/broad discretion, we are especially
           reluctant to substitute our view of wise policy for his.
         RULE  Legislative regulations will trigger Chevron.

4. U.S. v. Mead Corp., US (2001) [on line]
Procedural trigger ONLY if the agency interpretation at issue has been determined via one of the
following: (1) formal adjudication, (2) formal RM, (3) informal N&C RM, (4) possibly informal
adjudication.

Ex: Congress can implicitly give the agency to fill in the gap. And if we decide by looking at the
history of the statute – it may still be Chevron deference. BUT – if the agency is merely doing
interpretations that are not precisely authorized by Congress then not Chevron but Skidmore. With
Skidmore two things are looked at: (1) how careful has the agency been, (2) how consistent
has the agency been over time, (3) how formal or informal the agency has been, and (4) all the
other things that give the power to persuade although not the power to control.

5. Bowles v. Seminole Rock, US (1945) [192]
Should a reviewing court give deference to an agency‟s interpretation of its own regulation? YES
– there should be great deference given – more than given under Chevron. Just b/c the agency is
given deference it still doesn‟t mean they won‟t loose under Chevron b/c the regulation can still be
unreasonable interpretation of the organic statute.

                                                                                                   31
              Seminole Rock Deference should be used when agencies interpretations of their own
              regulations – they must be upheld unless plainly erroneous or inconsistent w/the regulation
              provided that they are neither unconstitutional or inconsistent w/the statute.

Skidmore is triggered if the agency construed its own statute WITHOUT N&C. QUESTION w/ Skidmore is 
Did the agency get it right? Did the agency correctly interpret the statute?

       C. Judicial Review of Questions of Fact or Policy
              1. De Novo Review [194]
              Very rare that agency decision of fact or policy will ever be reviewed under a de novo standard. 3
              circumstances when a reviewing court may use it:
                  1. When the agency action is adjudicatory in nature and the agency fact-finding procedures
                     are inadequate. This is very rare. Reviewing courts would much rather remand than
                     engage in fact-finding.
                  2. When issues that were not before the agency are raised in a proceeding to enforce a non-
                     adjudicatory agency action. This is more common. Ex: criminal trials. Prosecutorial
                     agencies make determinations of fact or policy in doing an investigation and deciding what
                     charges to bring. But these determinations are given no deference at the trial. We do not
                     generally think of criminal trials as a judicial review of agency fact or policy but that is
                     what it is.
                  3. When Congress expressly provides for de novo review in a statute. Ex: EEOC.

              2. Substantial Evidence [195]
              §706(E) provides for “substantial evidence review” of formal proceedings, formal adjudication
              and RM (§556 & 557)

                   How much evidence? Must be that a reasonable jury would find what the reviewing court
                    would find – could a reasonable finder of fact reach the conclusion that was reached?
                   Triggers for substantial evidence review:
                       o If the enabling statute says so.
                       o If the statute doesn‟t say what the standard of review is look to the APA –
                            substantial evidence when the agency ahs been required to use or has used formal
                            RM or formal Adjudication (§556/557).

                      a) In the Matter of Universal Camera Corp, NLRB (1948) [199]
                      DOCTRINE  This reviewing court must use the “whole record” which includes the
                      examiner’s original finding. In reviewing the agency‟s decision a reviewing court uses
                      the “substantial evidence” standard of review. Substantial evidence means the court must
                      “decide whether on this record it would have been possible for a reasonable jury too reach
                      the Board‟s conclusion.” This is less evidence than preponderance of the evidence.

                      When an agency makes a decision it must be based on a preponderance of the evidence.
                      When a reviewing court reviews the agency decision it looks to see if the agency has
                      substantial evidence (lesser standard than preponderance) on which to base its
                      decision.

                      b) NLRB v. Universal Camera Corp., 2nd Cir (1950) [200] [207]
                      c) Universal Camera Corp. v. NLRB, US (1951) [202]

                                                                                                              32
        d) Industrial Union Dept v. American Petroleum Institute, The Benzene Case, US
        (1980) [215] Informal Rulemaking
        HOLDING  OSHA didn‟t have substantial evidence to conclude that lowering the
        benzene level in workplaces from 10 ppb to 1 ppb was necessary to eliminate a significant
        risk of harm.
        REASONING  Court uses “substantial evidence review” b/c OSHA says so.
        DOCTRINE  The burden of proof in an administrative hearing is on the agency
        promulgating the rule. Unless Congress has shifted the burden, the agency must
        prove the validity of its decision.
                  The Court said to meet the burden in this case the agency is not required to
                    support their factual findings (not their legislative findings) with anything
                    “approaching scientific certainty. However, the finding of risk must be
                    supported by a “body of reputable scientific through” to uphold substantial
                    evidence.

3. Arbitrary and Capricious
§706(2)(A) Arbitrary & Capricious. It may be applied to any agency process, but as a practical
matter it is used almost exclusively for determinations not subject to substantial evidence review
such as informal RM and informal adjudications involving decisions of fact/policy and where
otherwise provided for by the act.
     When an agency conducts informal N&C RM, as opposed to formal RM, and it reaches a
         specific fact/policy conclusion – that decision is reviewed if challenged in court under
         A&C standard.

Generally this is deferential review and asks 2 questions:
   1. Did the agency rely on the correct factors in making its decision?
   2. Was the agency‟s decision a clear error in judgment?

See Overton Park – When do you use it? In questions of fact/policy?
        a) Motor Vehicle Manufacturers Assoc. v. State Farm, US (1983) [229]
             FACTS  Dept. of Transport standard 208 which required installation of seatbelts
              in all cars. Later proposal to airbags or seatbelts. Modified and left choice to
              manufacturers. Reopened RM due to change in economic circumstances and
              difficulties in auto industry. After written comments, public hearings NHSTA
              issued a final rule that rescinded the passive restraint requirement contained in
              modified 208.
             ISSUE  Whether NHTA‟s rescission of the passive restraint requirement
              Standard of 208 was arbitrary and capricious?
             HOLDING  The agency acted arbitrary and capricious.
             REASONING  Court said they failed to consider a key alternative to rescind the
              rule completely.

                Lessons
                    4 Prong Test for A&C [233]  the agency has to fail just one, NOT ALL
                       4
                          (1) If an agency relies on factors that Congress did not intended
                            for them to.
                          (2) If an agency failed to consider an important aspect of the
                            decision.
                          (3) if the agency explanation runs counter to the evidence.

                                                                                                 33
                                                (4) if the decision is so implausible that it cannot be ascribed to a
                                                 difference in view or the product of the agency expertise.
                                       “Hard Look” Doctrine  [238] the “hard look” version of A&C is less
                                        deferential and takes a hard look at whether the agency has taken into
                                        account all the relevant evidence. In cases whether the decision rests on
                                        scientific evidence some courts will give a little more deference.
                                             Ex: even when the agency did not have to use formal proceedings
                                                 the reviewing court will want to make sure the agency took a hard
                                                 look at the data.

               4. HYPOS – April 1st…Review of Scope of Reviews.

VI.    Availability of Judicial Review: Reviewability

§701 – 706 Judicial Review
§701  Application; Definitions
§702  Right of Review
§703  Form and Venue of Proceeding
§704  Actions Reviewable
§705  Relief Pending Review
§706  Scope of Review

       A. Jurisdiction [246]
       JURISDICTION  deals w/the question of which court, the District Court or Court of Appeals? APA
       §703 doesn‟t answer this question, it just says you may bring the case in any competent court of law. Use
       to be if there was no record (informal proceedings) then it goes to the district courts b/c these courts are
       better at fact finding. The trend today is to allow it to go forward in the court of appeals even if informal
       proceedings.

            A waiver of sovereign immunity in the APA §702. IF someone brings a claim against an agency,
             or against the US – for non-monetary damages – the mere fact the party could be deemed to be the
             US does not prevent the suit.
            SC has held if someone is seeking money – if that monetary claim can be interpreted as a claim for
             specific performance as a statutory obligation to pay – these are included in the APA‟s waiver of
             sovereign immunity.
            Federal Torts Claims Act  under certain circumstances it permits tort claims to be brought
             against the federal gov't. didn’t talk about.
            Tucker Act  permits certain contract claims and other non-damages types of claims in the Court
             of Claims against the gov't. Appeals go to the federal circuit.

       B. Reviewability [250]
       The APA Supreme Court (Abbott Labs) has interpreted the APA as embodying a presumption of judicial
       review (§702 & §704). However, the APA says this may be rebutted. §701(A) of the APA provides that
       the APA‟s provisions relating to JR apply “except to the extent that”:
           1. The statute precludes review, (§701(a)(1)) or
           2. Agency action is committed to agency discretion by law.




                                                                                                                    34
1. Statutory Preclusion of Review
      a) Gott v. Walters, D.C. Cir., (1985) [253]
          FACTS  Section of the Veterans‟ Administration Act said no judicial review of
           agency determination regarding fact or law under any law administered by the
           agency. The agency, w/o N&C or publication of a proposed rule, issued a program
           guide laying out the procedures for claims. A group of veteran‟s bringing claims
           for injuries claimed that the publication of this guide was in violation of this guide.
           §553 doesn‟t require N&C when making rules about benefits.
          ISSUE 
          HOLDING  Court says the purpose of this preclusion is: (1) keeping the courts
           out of the day-to-day business of the VA; (2) prevent different courts from
           interpreting the same provisions differently (promote uniformity).
          REASONING 
      b) HYPOS, Study Guide April 1st.
      c) McNary v. Haitian Refugee Center, Inc. US (1991) [262]
          FACTS  Act established an amnesty program whereby aliens could have their
           status reviewed by the board, possibly leading to citizenship. Πs bring claim
           alleging procedures used denied applicants DP of the law by not allowing them to
           introduce evidence, cross examine, etc. Πs filed in district court.
                 INS said they were precluded b/c of the statute that provided for JR of
                    such denial only after a final order and deportation. Δ‟s said there was no
                    deportation proceeding yet and they filed in the wrong court. They should
                    have filed in the appeals court as the statute provided.
          ISSUE  Does a statutory bar of JR for individual case determinations prevent a
           court from reviewing collateral constitutional challenges? No.
                 Congress’s bar is to review of IRCA claims and not to constitutional
                    or statutory claims.
          HOLDING  DOCTRINE: When statutory preclusion rules are ambiguous
           the court may look to the overall statute, congressional intent, the language
           itself and the presumption of review in constitutional challenges to reach its
           decision.
                 The intent of Congress, the statue as a whole, and the presumption did not
                    intend to preclude constitutional challenges.

      d) Block v. Community Nutrition Institute, US (1984) [on line]
          FACTS  A group of consumers challenged a marketing order in which the Sec
           of Agriculture had established minimum prices that adairy farmers could charge
           handlers/processors of their milk products. The purpose was to regulate prices and
           competition.
          ISSUE 
          HOLDING  DOCTRINE: The presumption of reviewability is evidence
           unless there is “clear and convincing” evidence that Congress intended to
           preclude review. However, the test is not literal, presumption may be overcome
           whenever intent to preclude is “fairly discernable in the statutory scheme.”
                To see if fairly discernable you look at language, legislative scheme,
                   history, and congressional intent. However, remember that for
                   constitutional preclusion it must be a clear statement (see Johnson).



                                                                                               35
             REASONING  Looking at all factors the court decided that there was a fairly
              discernable intent to preclude ultimate consumers from challenging the order even
              though no express preclusive language in the statute.
                   The statue did provide for review of complaints brought by
                      handlers/processors but was silent when dealing w/consumers.

PRECLUSION = deals w/issues in a case and determines whether those issues are precluded
either by statute or b/c they are committed to agency discretion by law.
Preclusion can pertain to parties, not just issues.
     Proposition that there can be statutory preclusion w/o express language
     PRECLUSION TEST:
             o (1) Fairly Discernable – from legislative history, congressional intent, etc.
     Preclusion can be as broadly to include all kinds of JR or temporarily as in Gott or it can
        only include some challengers like in Block.
     Court‟s are reluctant to read preclusion provisions to preclude everything.
             o Veteran‟s administration broad language – courts have held that constitutional
                  challenges may be brought.
             o McNary – interpreted to permit pattern and collateral attacks on the agencies
                  procedures in district court even though statute on its face tended to channel it to
                  the court of appeals and after a deportation hearing.

STANDING  investigates the ability of a particular Π or group of Π‟s to bring a particular
action.

2. Committed to Agency Discretion by Law

COMMITTED TO AGENCY DISCRETION BY LAW TEST:
  1. There is no law to apply. (Overton Park) or
         a. Here the court is basically saying we are not going to get involved.
  2. The statute is drawn so that a court would have no meaningful standard against which to
     judge the agency‟s discretion. (Heckler). These standards seem to be the same.
        a) Webster v. Doe, US (1988) [273]
        Case deals w/the 2nd part of the APA §701(A): preclusion of review b/c “agency action is
        committed to agency discretion by law.”
            FACTS  Doe fired by the CIA. Claims include APA claims for abuse of
               discretion, A&C conduct, etc. Also included constitutional claims b/c he says he
               was fired b/c he was gay.
                    o Statute very discretionary – says director can terminate whenever he
                        “deems necessary for the interests of the US.”
            HOLDING  Court says “no law to apply” b/c there is no statute (including this
               one) which outlines the agency‟s use of discretion. Therefore APA claims are
               precluded from review.
            REASONING 
                    o If there is no law to apply why doesn’t the statute fall under the non-
                        delegation doctrine for lack of an intelligible principle? The answer is
                        courts will construe issues to avoid non-delegation problems.
                    o Test different for constitutional claims. Heightened standard in that there
                        must be clear statement by Congress to preclude constitutional claims. If
                        any doubt then no preclusion. There is no clear statement to preclude.
                        Furthermore there is law to apply – equal protection.

                                                                                                         36
      b) Lincoln v. Vigil, US (1993) [286] Resource Allocation and Appropriations
          FACTS  gov't gave a lump sum appropriation to HHS. Although this $ wasn‟t
           earmarked for any specific program, HHS gave some of this $ to a program to
           establish health facilities for Indians. Agency opted to cancel program and use $
           for other programs and Πs sued.
          HOLDING  “No law to apply” b/c $ was discretionary and not earmarked.
          DOCTRINE  Court cited Scalia‟s dissent in Webster saYing that lump sum
           appropriations are those “other categories” that are “committed to agency
           discretion by law.” This tends to expand the doctrine of “committed to agency…”

         Ex: If agency used $ to build the chief a home then you could review b/c the money
         was suppose to be spend on welfare and therefore the agency acted out of its scope.
         READ THE STATUTE CLOSELY.

3. Enforcement Discretion
      a) Dunlop v. Bachowski, US (1975) [292]
          FACTS  Bachowski was a loser in a union election and wants the election set
           aside. The Sec of Labor dismissed the claim after an investigation b/c although
           there were problems he would have lost anyway. Act said that he Sec shall
           investigate a timely complaint and shall bring suit if there is probable cause.
           However, a previous case said that if the violation would not affect the election he
           did not have to bring suit. The goal is to give the Sec wide discretion.
          HOLDING  Not SO “committed to …” as to preclude review.
               o Court remands to district court for review of the Sec reasons and the facts
                    he based his decision on. The court is not to review the validity of the
                    facts. The review is to be conducted under the A&C standard. If the Sec
                    doesn‟t get it right then send it back to the agency for further explanation.
          REASONING  The court does not reach the issue of whether the courts,
           once they find a decision to be A&C, they can force the agency to use its
           prosecutorial discretion. The courts would rather assume the agencies will get it
           right on remand.


      b) Heckler v. Chaney, US (1985) [306]
          FACTS  Π argue that the use of certain drugs for executions are not approved
           for this purpose by the FDA.
                 Case dealt w/non action. (Moog & Rundle deal w/selective enforcement)
          HOLDING  Court holds that there is “no law to apply” in regards to agency
           discretion to prosecute and therefore “committed to…” The decision whether or
           not to prosecute are best left to the agencies.

             Lessons
                 Prosecutorial discretion is presumptively unreviewable. Courts give
                    even more deference when discretion is not used to prosecute (best left to
                    agency).
                 RULE OF LAW  Non enforcement decisions are presumptively
                    unreviewable.
                         Action decisions are presumptively reviewable.
                 Case stands for the proposition that agency decisions NOT TO
                    ENFORCE (not to have an adjudication or not go to court) are

                                                                                               37
                                 presumptively non reviewable. The court is not completely settled if
                                 agency decisions not to engage in RM are similarly non-reviewable.
                                      §555(e) the agency may need to explain why or the agency might
                                        actually engage in the process of proposing the rule and then not
                                        adopt it – but there would be something substantive to review.
                                        The agencies decision not to adopt the rule would probably be
                                        judicially reviewable.

        4. Prosecution and Private Enforcement [804]
                a) Remedies for Discriminatory Enforcement: Target Shooting at the FTC [805]


                b) Moog Industries v. FTC, US (1958) [811] & FTC v. Universal Rundle Corp, US
                (1967) [813]
                Both cases – the companies were given cease and desist orders by the FTC when the
                agency determined that these companies were engaged in anti-competitive behavior. The
                companies argue for a stay b/c they are a little fish and if they case while the big fish
                continue than they will suffer irreparable harm. They say investigate the others as well.
                     HOLDING  Court says although they don‟t really have jurisdiction over
                        prosecutorial discretion (Heckler), they can investigate for a patent abuse of
                        discretion.
                     DOCTRINE  Agencies may bring selective enforcement so long as not a “patent
                        abuse of discretion.” This may be distinguished form Heckler in that here we have
                        selective enforcement and in Heckler there was non-enforcement.

C. Standing to Secure Judicial Review
Standing gets harder and harder to satisfy as the case proceeds b/c more and more evidence is being
admitted. The Π has the burden to prove standing. “Injury in fact” doesn‟t have to be concrete in the
pleading stages, the injury in fact standard is more relaxed. However, the further along in the pleading
stage the more particularized it has to be – why in Lujan they were struck down b/c it was on SJ and the
requirement was stricter.

Standing questions begin w/the Constitutional Test:
     Injury in Fact:
           o It must be concrete and particularizes;
           o Actual or imminent.
     Fairly Traceable – causation.
     Redressability.

    If an association is involved – use the Association Standing Test: the constitutional test is
    incorporated within it.

    Zone of Interest Test: as a historical matter it may be argued that this test is only used in APA cases,
    but some courts have expanded this and used it outside of APA cases.

        1. Regulatory Standing, the APA and the Data Processing Case
                a) Assoc. of Data Processing Service Organizations, Inc. v. Camp, US (1970) [323]
                     FACTS  Data suing comptroller of the currency who regulates the national
                      banks b/c comptroller said the national banks could engage in data processing
                                                                                                           38
            services but the statute says that no bank may perform non-banking services.
            Court says in jury in fact (competition/$) and that they are arguably w/n the zone.
           Court says to have STANDING you must have:
             (1) INJURY IN FACT  can be spiritual, $, environmental, etc.
                    o It is a pretty loose test although there are limitations (generalized
                         grievance, injury not concrete and personal, and other prudential
                         concerns). These prudential concerns are not set in stone like the
                         “case in controversy” requirements of Article III. Therefore they are
                         flexible. Lujan gives definition of injury in fact.
             (2) the interest sought to be protected is arguably w/n the “ZONE OF
                INTEREST” to be protected or regulated by the statute in question.
                    o This means the party must be protected or regulated by the statue in
                         question.

2. The “Injury in Fact Fairly Traceable” Test
      a) Sierra Club v. Morton, US (1972) [331]
      Court disallowed standing b/c the organization didn‟t plead that any of its members were
      actually injured by the development of wilderness area. The court conceded that aesthetic
      and environmental issues will suffice but this was a generalized grievance.

      b) Hunt v. Washington Apple, US (1977) [341] Association Standing Test
           ISSUE  Can an association sue on behalf of its members? Yes.
           TEST for Association Standing:
            1. STEP #1  Its members would otherwise have standing to sue on their own
               right.
                   a. This is where you review the constitutional issue of standing.
                             i. Injury in Fact. At least one member would have to have
                                 standing. They would have to show injury in fact and if sued
                                 under the APA would have to satisfy the zone of interest test.
                                     1. Actual/Imminent.
                                     2. Concrete and Particularized.
                            ii. Fairly Traceable Causation.
                           iii. Redressability.
                           iv. Zone of Interest.
            2. STEP #2  The interests it seeks to protect are “germane” to the
               organization‟s purpose; and SC has not had occasion to clarify the meaning of
               the “germaneness” prong.
                   a. Human Society v. Hodel (DC Cir) the court said the germaneness test
                       would seem to require only that an organization‟s litigation goal be
                       pertinent to its special expertise and the grounds that brings it
                       membership together.
                   b. NOT a hard prong to satisfy.
            3. STEP #3  Neither the claim asserted nor the relief requested requires the
               participation of individual members in the lawsuit.
                   a. These are the class action lawsuits.
                   b. To not run into trouble w/this prong you have to seek an injunction.




                                                                                              39
c) Simon v. Eastern KY Welfare Rights Organization, Inc. US (1976) [345]
Causation: Traceability of the Injury
    FACTS  When the IRS issued a revenue ruling reducing the amount of indignant
       care a hospital must provide in order to qualify for exemptions, a welfare
       organization sued the gov't (the Sec. of the Treasurery).
    HOLDING  no causal link b/w the gov't action and the injury. They sued the
       wrong people.
    REASONING  Redressability – only speculative. Court says that even if you go
       back to the old system it is purely speculative whether the hospitals would still
       treat them. They may choose not to anyway just b/c of the costs.
            Injury-in-Fact  the complainants have sufficiently pleaded injury in fact.
                They were being denied services. HOWEVER – the hospitals are not the
                Δ‟s it should be the gov't. They injury has to be fairly traceable to the Δ‟s
                and this is where they loose.
    RULE OF LAW  Members of the public lack standing to challenge the tax
       treatment of organizations in which they have no interest.

        Lessons
            Class Action  just b/c a suit is a class action, it adds nothing to standing
               b/c even named Π’s who represent a class “must show that they
               personally have been injured, not that the injury has been suffered by
               other, unidentified members of the class to which they belong and to
               which they purport to represent. Warth v. Seldin [348]
            PRONGS OF TEST:
               1. Injury in Fact.
               2. “Fairly Traceable”
               3. Relief requested must be capable of remedying the injury being
                   complained about.
d) SCRAP case
Indicates that at least occasionally courts will be fairly lenient in recognizing standing even
where there is very indirect causation chains. SCRAP (a group of students) said that
higher tariffs for railcars carrying recyclable materials would result in enviro pollution of
parks that they use. The court brought this attenuated line of causation and remanded to
see if the organization could prove its allegations. This attenuated line of causation was
tightened in Simon.
e) Affirmative Action & Standing [345]
Π‟s have to establish that the rule makes the field un-level. For certain equal protection
claims the court has reasoned in order to withstand a motion to dismiss you don‟t have to
demonstrate “but for” the challenged statute you would have gotten the specific job. You
merely have to establish that you were treated unfairly b/c you didn‟t get to compete on a
level playing field.
     Ex: You want to move to a community and challenge a zoning policy 
            o NOT standing in Warth v. Seldin b/c the court said it hasn‟t been shown
                 that the gov't actions/policies were really the cause of the reason for the
                 people not being able to move where they wanted to. Allegations were
                 insufficient to support an actionable causal relationship b/w the zoning
                 practices and petitioner‟s alleged inability to find housing.




                                                                                            40
                f) Lujan v. Defenders of Wildlife, US (1992) [353] Congressional Power to Grant
                Standing: Citizen’s Suit
                        FACTS  Enviro group sued b/c EPA did not extend its policies oversees to
                           protect wildlife there, and therefore if they were to go oversees their interests
                           would be injured. The statute allowed for a citizen suit which said that “any
                           person can sue…”
                        HOLDING  No imminent threat of harm b/c the Π‟s cannot prove they are
                           going oversees anytime soon.

                             Lessons
                                 Injury in Fact  must be concrete and particularized, actual or
                                    imminent, and hot hypothetical.
                                 Doctrine You can claim a PROCEDURAL INJURY by claiming
                                    that the agency failed to carry out the procedures that the statue
                                    required. A procedural injury can be “injury in fact” if the
                                    procedural violation is connected to a harm that is concrete and
                                    particularized (and meets the other requirements of injury in fact.)
                                          When claiming a procedural injury – redressability and
                                             immanency are relaxed, you do not need to prove that you will
                                             win your case, the redressability is the procedure.
                                          Ex: Someone living adjacent to a site proposed for building of
                                             a damn has standing to challenge the agency‟s failure to
                                             prepare an enviro impact statement even though he cannot
                                             prove that the statement will cause the license to be denied.

                g) Friends of the Earth v. Laidlaw Envit’l Services, US (2000) [on line]
                          FACTS  Π‟s bring a citizen suit under the Clean Water Act. The Δ says
                           there is no redressability b/c the penalty under the statute is civil, and therefore
                           the fine goes to the gov't and not the Π‟s. So the Π‟s argue for an injunction.
                          HOLDING  Doesn‟t matter where the $ goes b/c it is still a deterrent and
                           therefore you have redressability.
                          REASONING  However, b/c the conduct has already ceased there is no
                           redressability for the injunction sought. The lesson is – standing is all or
                           nothing, you can’t have standing on one of your requested relief’s and not
                           the other.

D. Zone of Interests
Note cases [330-331] one said postal workers did not have “zone of interest” b/c statute was written w/
public interest in mind not the postal workers. Another said the “zone of interest” test was not especially
demanding and did not require an indication of congressional intent to benefit the Π‟s.

NOT constitutional in nature! (NCUA v. First National Bank). It can be viewed as a judicial gloss.
Reminds us that zone of interest is a VERY EASY TEST to satisfy. The question is NOT is this Π a
member of the group that Congress intended to benefit or protect when it passed the statute. The question
IS  “is the interest being asserted by the litigant arguably w/n or of the same type of interest
congress had in mind when passing the statute.

You merely have to demonstrate that the interest is arguably w/n the interest that Congress meant
when it passed the statute – even if the interests were for a different group.


                                                                                                              41
               1. FEC v. Akins, US (1998) [on line]
                   FACTS  The FEC said that a certain organization is not a “political committee” as
                    defined by the Act and therefore does not have to disclose their membership information.
                    A group of voters challenged this finding.
                   HOLDING  Court says they have injury in fact – the inability to get the information.
                   REASONING  Voting at issue and one of most basic political rights – concrete and
                    specific. Nothing in the Act excludes voters – they satisfy prudential standing.

                       Lesson
                           Doctrine  Even if a grievance is widespread and can be claimed by many, if one
                              can prove injury in fact (and other aspects of standing) then it will NOT be a
                              generalized grievance.
                                   Generalized Grievance  court has determined where a large # of
                                       Americans suffer alike, the political process, rather than judicial process,
                                       may provide the more appropriate remedy for a widely shared group.
                                            Prudential Standing: Congress has the ability to say we want
                                                virtually everyone to be able to sue. These are court made
                                                concerns.
                                            Constitutional Standing: Congress cannot say we want virtually
                                                everyone to be able to sue. Deemed in Article III which prohibits
                                                the courts from issuing only advisory opinions.
                           PRUDENTIAL STANDING  is satisfied when the injury asserted by Π
                              “arguably falls w/n the „zone of interests‟ to be protected or regulated by the
                              statute in question.”

               2. NCUA v. First Nat’l Bank, US (1998) [on line] brings us to a full circle w/”zone of
               interests.”
                    Doctrine  in determining when a Π‟s interests are arguably w/n the “zone of interests”,
                      the courts should not look into congressional intent to see if Congress intended to benefit
                      the would be Π‟s – you simply look at the statute itself and determine what it regulates.
                    Majority and Dissent  both said the purpose was not to protect banks from common
                      bond – but somehow to limit the geographical reach of credit unions which would have
                      some affect on competition. So, the banks that had this in interest had standing to sue.


 Basically chart relevant to             Is the interest concrete?                   Is the interest abstract?
      “Injury in Fact”
1 or few persons are affected                     Standing                              NO Standing
       Widely Shared              Standing – as long as the interest being     NO Standing – classic “generalized
                                 asserted is concrete it doesn‟t matter how            grievance” case.
                                   widely it is shared (majority in FEC).

      E. Ripeness (Timing of Judicial Review)
      Like standing, the timeliness doctrine of ripeness, exhaustion of remedies, and finality can be traced in part
      to the “case or controversy” requirements of Article III and in part to the various prudential concerns, such
      as judicial economy and competence. They also arise form the APA since §704 restricts JR to “agency
      action made reviewable by statute and final agency action for which there is no other adequate remedy in a
      court.” Generally, the exhaustion requirement refers to steps the petitioner must take before securing
      judicial review.


                                                                                                                  42
       Ripeness and finality refers to steps the agency must take before its actions may be
        challenged in the courts.

Some statues have mandatory pre-enforcement provisions which say if you do not file w/n 60 days (or so)
after the law goes into effect, you have lost your right to challenge. These have been occasionally upheld
but most courts will read these as permissive, in effect saying you can sue w/n 60 days but you don‟t have
to. Thunder Basin Coal v. Reich.

        1. Abbott Laboratories v. Gardner, US (1967) [374] Pre-enforcement Challenges to
        Agency Rules: Prescription for Unripe Review?
            FACTS  Congress enacted a statute saying if a drug company puts a trade name on its
              products it must also include the generic name. The FDA promulgated a reg that said
              every time the trade name appears, so should the generic. Drug companies, although not
              affected right at this moment, challenged the regulation.
            ISSUE  Is this pre-enforcement decision ripe for review?
            HOLDING  The case is ripe b/c the N&C period was up and the reg was on the books,
              therefore it was a matter of statutory interpretation (hardship was easy).
                   If the case turns on a matter of statutory interp then it is likely ripe b/c there
                      is no more fact-finding needed for the agency. If there are still issues of fact
                      then not ripe, but this questions of law or statutory interp then ripe.

                Lessons
                    Pre-enforcement Challenge  When are they ripe? 2 Prong Ripeness Test:
                         (1) Is the case fit for JR?
                                o This is a balancing test which takes into account whether this is a
                                    final agency action,
                                o and whether the challenge raises purely legal issues. If so, more
                                    likely to be ripe.
                                o Under an APA claim the agency decision must be final unless the
                                    statute says it doesn’t have to be final.
                         (2) What is the hardship to the parties if the court withholds from
                            taking the case?
                                o Factors include whether the hardship has a “direct and immediate”
                                    impact on the primary conduct and day to day operations of the
                                    petitioner.
        2. Gardner v. Toilet Goods Assoc, US (1967) [382]
            FACTS  Reg required companies using color additives in cosmetics to give FDA
              inspectors “free access” to their plants. If the company does not comply the FDA will not
              certify its product and therefore the company will not be able to put it on the market.
            HOLDING  Unlike Abbot Labs the legislation here was discretionary in that the statue
              said that the inspectors “may” inspect the companies and “may” decide not to certify. B/c
              of this the Court said they could get more facts b/c it is not final.
              REASONING  “hardship” is not really here b/c nothing changes, the inspectors can
              come in regardless, just not given a “free pass.” The fact the inspectors are inspecting does
              not change the operations.

                Lessons
                    Less likely an issue is ripe for pre-enforcement review if not a risk of primary
                       conduct. In this case there is NOT a risk of primary conduct b/c the only thing
                       that is being changed is the regulation of the inspectors.

                                                                                                         43
3. Reno v. Catholic Social Services, US (1993) [386] “Benefits”
The court reasoned that in most cases involving criteria for benefits, the “hardship prong” of Abbot
Labs is not met when no application has yet been made and rejected. RULE  when an
individual brings a pre-enforcement challenge to regulations concerning the disbursement of
benefits, the challenge will generally not be ripe until the individual applies for benefits and is
turned down and therefore has endured hardship.

4. Ripeness & Licensing
In a formal sense licensing is a form of a gov't benefit – it is permission to do something. It is not
the gov't giving money or a job, but the gov't is giving you a ticket to make money or charge the
public rates. Often you cannot do this w/o the gov't license. In a sense it is a type of benefit
program. SC doctrine of ripeness rose out of licensing cases. [cases in intro of chapter]

5. Ripeness & Ruling/Opinion Letters
This question occurs if the agency gives you a negative answer when you ask a question. Court‟s
are split on whether this is ripe for review or not. The answer depends on:
     How specific the question is that was asked. The more specific – the more likely to be
         deemed ripe. If you phrased it hypothetically most likely not ripe for review.
     How definite the agencies disapproval was.
     How high or low the decision maker was in the food chain. Abbott Labs dictum said the
         higher up in the agency the person is who wrote the opinion letter the more ripe for review.

6. Exhaustion of Administrative Remedies
EXHAUSTION of Remedies  is when the agency has initiated a specific enforcement
proceeding against (or otherwise threatened to visit adverse consequences upon) a party, who then
seeks to enlist judicial aid prior to completing all available steps for challenging the action at the
administrative level.

If you strictly applied the Abbot finality test to these cases the courts may say these cases are not
final b/c, although they do involve a question of law, there are many questions of FACT as well.
Abbott is probably the best test, but these cases flesh out the rule although they involve some
exhaustion of remedies issues as well. Exhaustion is highly discretionary, except in APA
mandated cases and Congress has mandated it.

    Courts may generally REQUIRE exhaustion (when they have authority) when:
       1. They want to conserve judicial resources.
       2. prevent parties from „skirting‟ the administrative process
       3. allow agencies to use their expertise
       4. show respect to the agency by giving it a chance to correct its mistakes
       5. help the courts b/c the record will be fuller

    Courts are allowed to EXCUSE exhaustion when:
       1. there is a risk of irreparable injury
       2. there is an extreme and unreasonable delay of the administrative process
       3. The Futility Doctrine says you will not be forced to exhaust if futile b/c:
           a. The agency doesn‟t have to competence/ability to give the remedy sought
           b. Agency doesn‟t have the authority to give the remedy sought (you want $ and the
               agency is not authorized)
           c. The agency is closed-minded (almost never going to get this in practice)


                                                                                                        44
                          d. If Petitioner‟s challenge is to the procedures (exhaustion procedures) the agency is
                             trying to force on the petitioner.

                      a) #1  Enviro Defense Fund v. Hardin, D.C. Cir., (1970) [391] #2  Enviro
                      Defense Fund v. Ruckelshaus, D.C. Cir., (1971) [392]
                      b) Nor-Am Agricultural Products, Inc v. Hardin, 7th Cir., (1970) [398]

  Type of Notice               Denial                             Grant                               No Action
   Suspension      REVIEWABLE                      NOT REVIEWABLE b/c not a              REVIEWABLE  b/c the
                   immediately b/c it is final.     final order. There are still steps    refusal to decide is the same as
                    EDF #1 – would cause           to take before exhaustion of          the refusal to suspend and
                      irreparable harm to the       remedies. (NorAm)                     therefore final and ripe (if
                      petitioners.                                                        harm).
                    EDF #2 – says only the             EDF #2 – disagrees saying
                      standard used in making the        same as denial b/c same
                      decision was reviewable,           procedures follow a grant as
                      not the determination b/c          they do a denial and the
                      the agency is the expert.          harm to the company the
                                                         grant would cause.
    Notice of      REVIEWABLE  b/c final           NOT REVIEWABLE  b/c                  MAYBE  sometimes it is
   Cancellation    (still have to prove harm)       not final, still a hearing to come,   reviewable.
                                                    this is only a complaint.


                      c) Darby v. Cisneros, US (1993) [407]
                             Federal courts may not require exhaustion of admin remedies prior to APA, JR
                              unless the relevant statute or agency rules mandate it.

                              Lessons
                                  Doctrine  If the case is brought under the APA then courts can
                                     require exhaustion ONLY IF:
                                          o (1) the organic statute requires it, or
                                          o (2) an agency regulation requires it and the agency agrees to stay
                                              the effects of its ruling pending internal administrative review.
                                  This rule is a very strict reading of last sentence of §704. If an APA case
                                     is brought and neither of these situations arise, then the courts cannot
                                     require exhaustion. If case is not brought under the APA then look at
                                     factors (harm, etc).


VII.   Freedom of Information Act
       A. The Freedom of Information Act
       FOIA allows any person, corporation, etc. to access agency records. The agency must determine if the
       documents exist in the agency and whether they are exempt from release (9 exceptions). If the agency
       refuses to provide non-exempt records FOIA gives the federal district courts jurisdiction to issue
       injunctions to comply if the agency has improperly withheld agency records (3 prong test). Agency has
       the burden. Under FOIA, the nature of the petitioner is mostly irrelevant.
                 All three have to be met (1) improperly, (2) withheld, (3) agency records. Judicial
                    authority can only be invoked if the agency ahs contravened all 3 components of this
                    obligation.


                                                                                                                         45
There are 3 theories behind non-disclosure (keeping documents private):
   1. Need to encourage open and candid deliberations b/w decision-makers.
   2. preserve the secrecy of intelligence sources.
   3. protect the legitimate private interests of citizens and companies.

**A court can always use in camera inspection to separate materials that should be produced and those that
should not be disclosed. Furthermore, an agency can always release even if not obligated, although this
may open it up to suits (“reverse FOIA suits”) which are APA suits subject to abuse of discretion standard.

        1. Kissinger v. Reporters Committee for Freedom of the Press, US (1980) [1139]
            FACTS  Kissinger kept transcripts of telephone records which members of the media
              wanted. The records were made while he was Sec. of State and while he was Nat‟l
              Security Advisor. One request was made after the docs were already given to the Library
              of Congress and another while they were still in possession.
                    You CANNOT make a request to the Library of Congress b/c an agency under
                       FOIA (§552f) is an executive agency similar to an agency under the APA §551
                       which excludes judicial and legislative agencies.
            HOLDING  (1) Court did not withhold documents b/c they non longer had the
              documents. FOIA does not require the agency to retrieve docs not in its possession.
              (2) the court said these are NOT docs b/c they were created when he was the NSA which is
              not an agency.
                    The PRESIDENT is NOT an agency under FOIA or the APA and the closer
                       you get to him the more likely you will not be an agency as well.
                    Even though the docs were held at the state dept it doesn‟t matter b/c they were
                       produced when he was the NSA. The present location of the docs is not
                       determinative, but it is relevant…
                            Multi-Factor test  to determine if docs physically located in the
                               building should be considered agency records for FOIA purposes:
                                    o Physical location
                                    o If the agency used the documents.
                                    o Generated by the agency
                                    o Controlled by the agency  if the docs were gotten rid of before
                                        the request was made or not.

                Lessons
                    Docs are more likely to be agency docs if they are (factors weighed):
                         Generated by the agency or while in the agency.
                         Contained or controlled by the agency.
                         Used for Agency purposes.
        2. Distinction b/w “Executive Office of the President” and “Office of the President”
                a) Franklin v. MA [1151]
                     HOLDING  the President is NOT an “agency” for purposes of §551(1).
                b) Soucie v. David
                     HOLDING  FOIA applied to the Office of Science and Technology, a unit w/n
                      the Executive Office of the President created by executive reorganization plan.
                     REASONING  Although it advised the President it also had authority to
                      initiate support and research on its own.



                                                                                                        46
              c) 3 Factor Test  determining whether entity is an “agency” for FOIA purposes:
                   How close the entity is to the President operationally,
                   Whether it has a self-contained structure, and
                   The nature of its delegated authority.
                       o Ex: The NSA is a white house insider primarily responsible for advising
                           the President and is therefore NOT covered by FOIA.

B. Exemptions from the Disclosure Requirement
      1. NLRB v. Sears, Roebuck & Co. (1975) [1154] Deliberation
          FACTS  Someone runs to the NLRB regional office to file a complaint. The initial
           decision to bring a complaint is decided by the Regional Director. If he decides not to
           bring a complaint a charge the Π can appeal to the Appeals Board which issues an appeals
           memo to the Director giving him advice. If the Regional Director still cannot decide he
           goes to the DC office which issues an advice memo on whether to bring a charge or not.
                 Sears brings a FOIA suit to disclose these advice and appeals memos to see how
                    the NLRB thinks b/c Sears thinks the yare going to be subject soon.
          HOLDING  Docs recommending a charge be brought are NOT to be disclosed but those
           recommending that no suit be brought ARE to be disclosed.
          REASONING  Exception #5 of FOIA: permits an agency to withhold docs that a
           private party would not have privy to in litigation. This is based on the doctrines of
           executive privilege (says sty out of the Executive‟s decision-making processes and the
           deliberations of the Presidential advisors by not allowing access to staff papers, opinions,
           etc). attorney-client privilege, and work product.
                 Here, when the NLRB has brought suit it shows its decision-making process and
                    therefore is protected, but when the recommend not to bring suit their decision-
                    making process is over and no need to protect.

              Lessons
                  Balance the interests. Final decision of the agency are of high interest to the
                     public and low interest to the agency, while ongoing decisions are far more
                     important to the agency.

      2. Department of Justice v. Reporters Committee for Freedom of the Press, US
      (1989) [1187] Privacy
          FACTS  Reporters wanted FBI rap sheets of reputed gangsters (3 alive and 1 dead) b/c
             of their alleged association w/a Congressman.
                   The agency claims FOIA exemption #7 (disclosure could reasonably be
                      expected to warrant an invasion of personal privacy)
          DOCTRINE  this exemption holds even if much of the information is already public
             knowledge and could be looked up in court documents, newspapers, etc. Privacy
             interests in protecting further disclosure outweighs the public’s interest.
                   The public interest is not very high b/c disclosure of this information would not
                      shed light on the workings of the agency (the PURPOSE OF FOIA) or the
                      agency’s operations.




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