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Legislation Regulation Administrative Law Exam Outline

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Table of Contents
(1) Is the case reviewable at this time at the behest of this plaintiff?.......................................3
(a) Standing........................................................................................................................................3
(b) Reviewability................................................................................................................................5
(c) Finality, (d) Ripeness, (e) Exhaustion.............................................................................................7
(f) Primary jurisdiction.......................................................................................................................8

(2) Is there a constitutional problem?......................................................................................9
(a) Nondelegation..............................................................................................................................9
(b) Role of the President..................................................................................................................10
Appointments...................................................................................................................................10
Removal............................................................................................................................................10
Directive and supervisory authority..................................................................................................11
(c) Article III......................................................................................................................................12

(3) Is the agency's interpretation of the statute lawful?.........................................................13
Step 0: Does Chevron apply?............................................................................................................13
Chevron Step One............................................................................................................................14
Chevron Step Two............................................................................................................................15
Auer: Agency Interpreting Its Own Regulations................................................................................16

(4) Has the agency acted arbitrarily or abused its discretion in making policy determinations?
..............................................................................................................................................17
Arbitrary and capricious cost-benefit analysis..................................................................................18

(5) Has the agency properly found the facts?.........................................................................20
(6) Has the agency followed appropriate procedures?...........................................................21
Must the agency go through formal proceedings? Have the formal provisions of the APA been triggered by the statute?..................................................................................................................21
Informal rulemaking (N&C)..............................................................................................................21
Exceptions to §553 notice and comment requirements in informal rulemaking...............................23
General statements of policy............................................................................................................23
Good cause.......................................................................................................................................24
Foreign affairs...................................................................................................................................25
Interpretive rules..............................................................................................................................25
Ways to make rulemaking faster......................................................................................................26
Direct, final rulemaking.....................................................................................................................26
Interim final rule...............................................................................................................................26
Remand without vacating.................................................................................................................27
Negotiated rulemaking.....................................................................................................................27
Has the agency followed its own regulations?..................................................................................28
Retroactivity problem?....................................................................................................................28
Economic bias violative of due process?...........................................................................................28
Has the agency separated its functions internally, if required to do so?...........................................28
Does the Due Process Clause require rules or a hearing?.................................................................29
When does the due process clause require standards, as opposed to case-by-case adjudication?..29 When does the due process clause require a hearing? (Londoner cases)........................................30
Did the agency permissibly choose between rulemaking or adjudication (if not required by APA or statute)?...........................................................................................................................................31
Has the agency complied with the ban on ex parte contacts?..........................................................32

Table of Contents (1) Is the case reviewable at this time at the behest of this plaintiff?
(a) Standing
When the plaintiff is themselves the object of the action or forgone action, there is ordinarily little question of standing. But when the asserted injury arises from the government's regulation or non-regulation of someone else, much more is needed (Lujan).
 A state receives "special solicitude" in asserting standing to challenge an agency action in federal court, such that the traditional requirements are relaxed (Mass. v. EPA).
After Data Processing, standing to challenge an agency decision requires that the plaintiff satisfy Article III requirements and prudential requirements. The Article III requirements are that (1) the plaintiff must show an injury in fact, (2) the injury must have been caused by the challenged action, and (3) it must be possible for a victory on the merits to redress the injury.
To meet the injury in fact requirement, the injury must be concrete and particularized, and, if it has not already occurred, must be actual and imminent (Lujan).
 Procedural rights: Under Lujan, a person accorded a procedural right to protect their concrete interests can assert that right without meeting all the standards of redressability and immediacy. Thus, the plaintiff may have standing to challenge the agency's failure to carry out [procedure in question] without showing that [the procedure] would cause the agency to change [agency action], and even if the results of the [agency action] would not come to fruition for many years.
Here, plaintiff may argue that the injury in fact is [XYZ], which is concrete (rather than abstract or ideological), and affects plaintiff particularly.
 Concrete

The injury does not need to be economic or physical. It can be a dignity interest, for example.
o Lujan forecloses citizen suits where the interest is purely ideological.
o Abstract stigmatic injuries, without more, are insufficient to establish concrete injury (Allen).
o Aesthetic injury can be concrete (Duke Power).
 Particular

The injury is particular if it affected the plaintiff in a personal and individual way (Lujan).
o While the dissent in Mass. v. EPA states that the particularity requirement means that injury cannot be widely shared, under Akins "where a harm is concrete, though widely shared, the Court has found injury in fact."
 Actual or imminent

Under Lujan, injuries are speculative unless the plaintiff "bought the ticket to see the critters." Showing that the plaintiff regularly [goes to some place or does something] could be sufficient. Otherwise, the plaintiff may need to 2 have actually [purchased the ticket, made plans or done whatever] in order for the injury to be actual and imminent.
o The injury must be certainly impending, and actions taken to avoid a merely probably harm are insufficient to constitute an actual or imminent injury.
 Heightened risk or lost opportunity

A substantially increased risk of harm and a substantial probability that the harm will in fact occur can constitute an injury in fact (Public Citizen). Other cases have indicated that a "reasonable probability" of harm resulting from the agency action was sufficient (Monsanto). This is particularly true where the purpose of the regulation is to reduce risk, not certainty of harm.
o However, a statistical likelihood that at least one member of an organization will suffer actual injury is not sufficient for standing (Summers).
The injury must also meet the "nexus" requirements of causation and redressability.
 Causation:
o The injury will meet the causation requirement since it is fairly traceable to the challenged action of the defendant, and does not result from the independent action of some third party (Simon).
o The case may not meet the causation requirement, since the connection between [injury] to [mediator] to the [agency action] is attenuated and may not be fairly traceable to the challenged action (Simon).
 Redressability

The case will satisfy redressability, since a favorable decision would [reduce the risk even a little (Mass v. EPA)/cause X to do Y/prevent the injury].
o The case may not meet the redressability requirement, since it is unclear that
[effect of favorable decision] would cause [desired change to occur] (Allen).
 If subsidy/tax: However, as in the Allen dissent, the plaintiff could argue that there would be at least some redress on the margins. If
[injuring activity] becomes more[/less] expensive, there will be less[/
more] of it.
The prudential requirements are that the plaintiff is (1) arguably within the zone of interests to be regulated by the statute or constitutional guarantee in question, (2) not asserting a generalized grievance, and (3) alleging a violation of their own legal rights.
 The zone of interests test is met when the plaintiff themselves is the subject of the regulatory action.
 For zone of interests, where the plaintiff is not themselves the subject of regulatory action, the inquiry is whether Congress intended for the plaintiff's class to be relied upon to challenge agency disregard of the law. Here, the zone of interests requirement will be met since the plaintiff's interests are sufficiently related or consistent with the purpose of the statute that it can be assumed Congress intended to permit the suit
(Clarke).
The generalized grievance requirement will [not] be met for much the same reasons as the particularization requirement, and the requirement that the plaintiff is asserting their own rights will be met since they themselves[/at least some of their members] suffer the injury.

Table of Contents 3

(b) Reviewability
There is a strong presumption in favor of reviewability of agency action (Abbott Labs), except to the extent that the statute precludes judicial review or agency action is committed to agency discretion by law (APA §701).
 The statute's explicit preclusion of review may present some difficulty. However, Courts have read the preclusion by statute exception very narrowly (Block). Accordingly, the court will likely find that the exception does not apply to judicial review of [xyz agency action], since the exception covers [abc agency action], and, narrowly read, [xyz action]
is outside of that category (Johnson).
 Although there is no explicit preclusion in this statute, a statute may implicitly preclude review where there is a complex regulatory scheme with no valid role for the plaintiff
(Block). But this must be shown clearly and convincingly, and may preclude only one type of review and another. [XYZ statutory language is ambiguous/applies to one type of review and not another] Accordingly, here we do not have a sufficiently strong indication that the statute as a whole implicitly precludes review.
The standard view is that agency action is committed to agency discretion when there is "no law to apply."
 Where the plaintiff is alleging a constitutional violation, there is always law to apply -
namely, the Constitution.
 Where the plaintiff is alleging a misconstruction of a statute, there are at least standards to apply that relate to interpretive principles (such as the presumption against retroactivity) and legislative history. Given the strong presumption in favor of reviewability, this should be sufficient for the court to evaluate [alleged misconstruction].
 Where the plaintiff alleges an erroneous finding of fact or abuse of discretion, the court will typically find there is no law to apply when the statute is too broad for judicially manageable standards. For example, "wherever he shall deem such termination necessary or advisable in the interests of the United States" (Webster) was found to commit the action to agency discretion. On the contrary, the standard of "feasible and prudent alternative route" (Overton Park) does provide law to apply. At first pass, the standard here of "[standard]" appears to be closer to that of [Webster/Overton Park].
o The court may also apply a multi-factor balancing test that takes into account the nature and importance of the parties' interests, the complexity of the issues, and the obviousness of violations of the law. As demonstrated in Scalia's Webster opinion, even vague standards have limits. Likewise, the standard of "[xyz standard]" would, at the very least, exclude [xyz action] for reason of [ridiculous reason]. Accordingly, the court might exercise wider latitude in finding reviewability if it determines that the interests at stake are sufficiently important relative to the costs of decision and likelihood of error.

Table of Contents 4
For agency inaction or non-enforcement, there is a presumption against review, which may be based on the non-coercive nature of inaction (as opposed to coercive action against common law interests, which is presumed reviewable), or on the putative analogy between prioritysetting in agency inaction and prosecutorial discretion (Heckler). The exercise of prosecutorial discretion typically falls under the category of "no law to apply." Accordingly, there can be no review unless the agency fails to take a discrete action (such as a rule, order, license, sanction or relief) that is required by law (Norton). Additionally, the non-reviewability of such discretion implicates key separation of power concerns - in particular, the principle that enforcement decisions should be the prerogative of a different branch than the branch that creates law.
Enforcement decisions traditionally belong to the executive branch under the Take Care clause,
and the court is likely to be deferential to executive decisions to prosecute or not prosecute,
especially if the decision is based on well-established reasons for deference to agency prosecutorial discretion such as limited agency resources.
 Because the statute requires [mandatory language] by the certain deadline of
[deadline], there will be reviewability as constituting a statutory violation.
 Where the statute in question includes mandatory language but no deadline, inaction may be reviewable where it amounts to an "unreasonably long delay" (Norton).
However, it will be difficult to argue that the delay is so unreasonable as to overcome the protection of agency priority-setting. Moreover, while the Heckler court suggested that review is available where an agency has "consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities," the court has not found such abdication in over 25 years, and is unlikely to do so in the present case.
 As an exception, an agency's decision to deny a petition for rulemaking is subject to review (though that review will be highly deferential), since rulemaking is less frequent,
and tends to involve legal rather than factual analysis as well as formal public explanation (Mass v. EPA).
 As an exception, reviewability will be found where a plaintiff alleges that the inaction amounts to a constitutional violation.
 Where the agency has refused to act because it lacks jurisdiction over the class of the thing to be regulated, this is typically reviewable because jurisdiction is a question of law. However, if an agency refuses to act in a particular enforcement case on the grounds that it lacks jurisdiction over the particular thing to be regulated, this may be in the category of unreviewable one-shot enforcement actions, which typically turn on issues of fact. In the instant case, the court will likely find that there [is/is no]
reviewability, because the agency's claimed grounds for inaction are based on lack of jurisdiction over the [class of the/particular] [thing to be regulated].

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(c) Finality, (d) Ripeness, (e) Exhaustion
Agency adjudications are final and ripe when the agency issues a final order and all administrative remedies have been exhausted.
 The plaintiff will satisfy the requirements for finality, ripeness, and exhaustion, since the decision in question marks the consummation of the decision-making process, including all available administrative appeals, and determines the plaintiff's rights and obligations,
from which legal consequences will flow (Bennett).
 The plaintiff will not satisfy the requirements for finality and ripeness since they have not exhausted all available administrative remedies (Myers v. Bethlehem).
o Administrative remedies must be properly exhausted, rather than simply unavailable because they have been allowed to expire (Woodford).

Finality entails a decision by which rights were determined or from which legal consequences will flow (Bennett).
 Not final:
o The case will not satisfy the requirements for finality and ripeness since the plaintiff has not exhausted all available administrative remedies (Myers v.
Bethlehem).
 Administrative remedies must be properly exhausted, rather than simply unavailable because they have been allowed to expire or the plaintiff did not raise the claims during agency proceedings (Woodford; McKart). This can apply to failure to participate in notice and comment, given that the proposed rule should have made the plaintiff aware that their interests were at stake.
 Interlocutory review of a claim or argument that is part of ongoing agency proceedings is not permitted. The agency's issuance of a letter requesting voluntary action or a complaint merely averring it has reason to believe a violation has occurred is not a final agency action subject to judicial review (FTC v. Standard Oil).
o Agency inaction is not final, unless it meets the Norton "unreasonably long delay" exception or has made clear that it does not intend to act.
 Final:
o Under Abbott Labs, an agency's promulgation of a rule is a final action fit for pre-enforcement review. This is particularly true when the issue is strictly legal,
rather than fact-intensive, and the subject of the regulation faces a choice between risking sanction and paying the cost of compliance (Toilet Goods).
 However, promulgation of interpretive rules or general statements of policy are not ripe until they have been applied (National Park
Hospitality). The challenge is not ripe because the interpretation/statement does not itself constitute a hardship or adverse legal requirement, and resolution of the issue would benefit from seeing

Table of Contents

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