Admin Law Checklsists

7/29/2019 Admin Law Checklsists

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Admin Checklist

Getting in the door

Standing – Injury in fact, fairly traceable to action, redressable by favorable verdict

Injuries – Aesthetic, economic, environmental, etc Sierra Club v Morton

Zone of Interests – when party not directly subject to agency action (rulemaking)

Liberal test

Public Actions/environmenta

Ripeness §704 – one suffering a legal wrong

IS the issue proper for judicial resolution – factual inquiry vs. question of law

Hardship to the parties if relief denied at this stage

Timing – finality and exhaustion

Finality – has agency completed decision making? Will result directly affect party?

Exhaustion – usually must exhaust agency remedies

Burden imposed, appropriateness of legal remedy, more factual inquiry?

Power issues

1) Non Delegation Doctrine

Is there an intelligible principle guiding agency action?

Agency can’t cure by narrow construction

Courts will construe potentially overbroad statutes narrowly – Benzene cases

2) Executive power

Appointment/removal issues – Buckley v Valeo, Humphrey’s Exec. Morrison’s inferior officer tests

Does restriction on removal impact President’s power to take care laws executed?

3) Is the executive branch delaying other agencies/independent agencies?

Court can enjoin – EDF v Thomas



Adjudication Issues

- long standing precedent that Congress can create art I courts

- Art III protects judiciary, but doesn’t stop agency adjudication – CFTC v Schor

Agency adjudication best where public rights are involved

Small number of individuals or whole population? – Bi-Metallic

Due process – 2 part test affirmed in Cleveland Board of Ed v Loudermill

1) Is this the kind of right that the Const protects – Life, Liberty, Property

Statutes can create property rights – Goldberg v Kelley, Perry v Sinderman

2) If so, how much process is due ?

Matthews v Eldridge 3 factor test

Compare any examples to Goldberg, Sinderman, Matthews

Hearing rights – APA 556-7

Oppurtunity to present case written or orally or by documents

Cross examine as required for true and full disclosure of factsNo bias/prejudgment

Rulemaking – agency must have authority to make legislative rules, but need not be explcit

Choice between adjudication/rulemaking largely within agency discretion, but see Bi- metallic, APAA v

Byrd due process constraints

Statutes can sometimes require hearings – Florida East Coast Railway

Courts are severely limited in interfering with agency procedural choices – Vermont Yankee

Agencies aren’t precluded from announcing new rules in adjudication – Chenery II

§553 requires notice and comment on leg rulesPromulgated rule needs to be responsive to public comments, APAA v Byrd

Can’t hide evidence – Nova Scotia

N&C doesn’t apply to interpretive rules

Ex parte comments might sometimes need to be docketed for Due Process

§706 scope of review – courts decide matters of law

Rule can’t be too far removed from purpose of Act – Brinegar

Decision makers in rule making can be removed for bias – but has to be severe

Arbitrary & Capricious – can apply to all agency acts, most deferential standard of review

No post hoc rationalizations – State Farm

Interpretive rule or legislative?

Force of Law? Pub in Fed Register? Basis for enforcement w/o rule? Modify leg rule?

Any rule not subjected to N&C is subject to more scrutiny



Judicial Review

§701 – presumption of review

Must be clear and convincing statement to prevent review – Abbot labs

Presumption of agency regularity

Courts cannot substitute their judgments for the agency’s

When Statute is clear both courts and agency bound to follow

Skidmore Deference – in informal settings, on issues of policy

Thoroughness, validity, consistency, other persuasive factos

Chevron – only applies to agency decision carrying force of law - Mead

When statute is silent/ambiguous and agency interp is reasonable –

Ambiguous- Brand X

But see INS v Cardoza, FDA v Brown Williamson for twists

Factfinding must be on whole record - § 706 & Substantial evidence test (+/-)

Committed to agency discretion by law? Clear and Convincing, no law to apply?

Admin Law Checklsists

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