PRECLUSION ADMINISTRATIVE LAW FLOWCHART No STOP Can Congress delegate Yes Is judicial review available Note Court is unwilling to find express preclusion Express Preclusion Is the language Yes clear and unamiguous No No Judicial Review Implied Preclusion When Where What Whom Whether When and Where Organic statute When Exhaustion Finality Ripeness ORGANIC STATUTE Exhaustion Whether all arguments are heard by the the agencies whether the agencies have reached their final decisions Finality Legal Force Test whether the agency makes a definitive statement of position that has a direct and immediate effect on the daily business of the parties Whom Standing Whether express language structure of the statutory scheme objectives legislative history nature of the administrative action involved Ripeness 1 whether delayed review would cause hardship to Ps 2 whether judicial intervention would inappropriately interfere with further adminsitrative action 3 whether the courts would benefit from further factual development of the issues presented If agency s discretion Whether Congress gives standard of law to judge the discretion Yes judicial No no judicial review review Constitutiona l Provision Statutory Provision 1 injury in fact 2 causal connection 3 redressable injury No preclusion A Remember Only reasoning made at time of the decisions will be considered Chenery I unless the new evidence is material to the decision and was would have been available at the time of the decision d e i f s i t a s t o n e n o r e h t i E If no preclusion C B SCOPE OF REVIEW LEGAL FACTUAL MERITS ADMINISTRATIVE LAW FLOWCHART A Scope of Review Note No deference if APA or a statute that applies to ALL agencies is at issue Factual Conclusion isolated disputed facts ex reason for termination Gap filling or Application of statute to facts involving technical determination or Extensive rulemaking record on disputed facts or Agency following intepretation in previous application or Agency applying a well established standard on facts Formal Proceedings Substantial Evidence Rule Whether there is relevant evidence as a reasonable mind might accept as adequate to support a conclusion Facts are correct sufficient and sufficient under the law Less deferential Informal Proceedings Arbitrary and Capricious Standard Arbitrary unrestrained tyrannical exercise of power Capricious impulsive unpredictable uncertain unsteady Note that J Scalia D C Cir treats it as the substantial evidence rule Yes Review on the Merits ex the amount of emitted gas Arbitrary and capricious standard or organic statute Benzene substantial evidence Ethyl State Farm Hodgson Puerto Rico Sun Oil Chevron Step 1 Plain Meaning Test Whether Congress has directly spoken to the precise question at issue Chevron FDA v Brown Williamson Massachusetts v EPA No Yes No Pure Legal Conclusion ex Ground water included Chevron Step 0 Mead Whether the agency administers the statute Yes No D Skidmore Degress of Deference 1 The thoroughness of the agency s investigations 2 The validity of its reasoning 3 The consistency of its interpretation over time and 4 Other persuasive powers of the agency later pronouncement STOP Defer to Congress Note Hard Look Review heightened scrutiny D C Cir in the 70s and maybe nowadays a style of review for all 3 buckets Chevron Step 2 Whether the agency s answer is based on a permissible reasonable construction of the statute arbitrary and capricious standard Agency usually win RULEMAKING v ADJUDICATION ADMINISTRATIVE LAW FLOWCHART B Procedures Prospectivity Generality More important Rule Whereas the effect has legal consequences for yet to be identified individuals only prospectively Term or other statutory language having the same meaning as on the record Yes Formal Rulemaking DEAD APA 553 Yes 1 No 2 Yes D No need for additional round of notice and comment Yes Adjudication The decision is made based on individual circumstances it does not concern the implement of an applicable statute or reflect cabining of its prosecutorial discretion Congress clearly indicates its intent to trigger the formal on the record hearing under the Yes Formal Adjudication APA 554 Will have chance to call and cross examine witnesses as well as get a chance to plead your case No Informal Rulemaking Interpretative Rule Policy Statement Legal effects test 1 whether the rule is a binding norm whether the statement of policy has a present effect that impose any rights and obligations Based on the rule s plain language and the agency s enforcement 2 Whether a purported policy statement genuinely leaves the agency and its decisionmakers free to exercise discretion No 1 Yes 2 No Notice APA 553 b General notice of proposed rulemaking shall be published in the Federal Register Comment APA 553 c Comment period with or without opportunity for oral presentation Statement of Basis and Purpose APA 553 c for final rule 1 After consideration of the relevant matter presented 2 Incorporate in the rules adopted a concise general statement of their basis and purpose APA Chevron 1 2 No Informal Adjudication APA 702 arbitrary and capricious standard a Actual reasoning from the ALJ not post hoc rationale b Statement and Purpose issued c No abuse of discretion d No failure to meet statutory procedural or constitutional requirements Yes Sustain No Reject Not Logical Outgrowth Proposed Rule whether the final rule is the logical outgrowth of the proposed rule Logical Outgrowth Test 1 Does it disclose information that a motivated rulemaking or b is discovered during rulemaking 2 Does the agency disclose what on mind 3 Does the agency pick the same remedy as in the notice Additional information must be supplementary clarify expand or amend other data that has been offered for comment not primary ex gap filling Note If hybrid rulemaking APA 553 additional requirements prescribed in the statute PROCEDURAL DUE PROCESS ADMINISTRATIVE LAW FLOWCHART C Due Process Challenge Deprive Person Life Liberty Property No due process required No entitlement Bailey No interest in civil service position Goldberg interest in welfare benefit Roth Sindermann whether there is any expectation of continuing employment can be created by implied promise or state law Perry K gives right to continued employment Gonzales no right to enforce restraining order McElroy McGrath badge of infamy branded stigma Yes entitlement Due Process is required but the type depends on the Mathews test Private interest grevious loss Homar