Administrative Law - Yale - Mashaw - Fall 2004 - Free Law School Outlines

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OUTLINE DETAILS:
School: Yale
Course: Administrative Law
Year: Fall, 2004
Professor: J. Mashaw
Text: Administrative Law: The American Public Law System (West Group, 5th Ed. 2003)
Text Authors: J. Mashaw, R. Merrill, & P. Shane

Administrative Law – Fall 2004

History of Administrative Law 3
Agency Statutes Contain 3
Views of Administrative Law 4
Is exercise of power legitimate? 4
Nondelegation Doctrine 4
Irrebuttable Presumption Doctrine 5
Legislative Control 6
Generally Applicable Statutes that Affect Agencies 6
Appointment and Removal of Officers 7
Presidential Discretion 8
Administrative Adjudication 8
What can they take away from courts? 8
What process is due? 8
Federal Statutory Hearing Rights 10
Adjudication Roadmap 11
Tradeoffs in Adjudication 12
Administrative Rulemaking 13
No ex parte contacts in rulemaking 16
Claim – you need a rule 17
Rules must be followed unless changed by rules 17
Is judicial review available? 18
Critiques about judicial review 23
Does court defer to agency? 23
Substantial Evidence Test 24
How does agency interpret statute? 25
Review of Science Decisions 25
Preliminary Objections to Reviewability 26
Are allegations too speculative? 31
Varieties of Regulatory Standards 32

History of Administrative Law
o tension between efficacy (any problem solved by nat’l govt.) and liberty (no nat’l govt)
o Constitution says virtually nothing
o Article II establishes president and vice president
o appointments clause – officers are appointed by the President; inferior officers are appointed by president, heads of departments, or courts
o some activity post-Civil War but really began with New Deal
o Great Society Era (1964-1973) – outpouring of regulation  especially antidiscrimination law, externalities regulation (e.g., air quality) and consumer regulation
o political and legal accountability
o delegated regulation (to agencies)
o participatory rulemaking – FOIA, Govt. in Sunshine Act
o current era of reduction and reform (1980s-current)
o deregulation and reduction in size
o micromanagerial behavior of Congress
o role of oversight by president and Congress has grown substantially
 National Environmental Protection Act – environmental impact statements
 Paperwork Reduction Analysis
 Analysis of Effect of Regulation on Small Entities (businesses)
 Federalism Analysis
• Mashaw’s Negative View on Current State
o Paralysis by analysis – so many analyses required slows down activity; lots of Congressional management
 this is problem with regulatory reform movement
o Incompetence – govt. tries to do everything without resources
o Unresolved problems – new departments which don’t solve anything
o Private sector management reform does not work because most agencies do not serve a distinct group of “customers” but have broad and diverse groups with divergent interests

Agency Statutes Contain
• Purpose for establishment
• Powers (rulemaking, prosecutorial, research)
o grant and contract (NSF)
o research and report (Bureau of Labor Statistics)
o search and seizure (ATF)
o prosecutorial
o adjudicatory (can’t mix with prosecutorial under APA)
o Congress can limit – e.g., FTC can’t make rules but only adjudicate so can’t do much b/c by time hearing is finished, business has changed its practice
• Sanctions
• Procedures – supplement APA
• Organization – subject matter, function, clientele, OR geography
• Placement within government (what department)
o independent agencies are outside executive branch
• Remedies against agency
Views of Administrative Law
o Legal idealists – about defining public values and designing institutions to implement them; value transparency and process
o democratic liberalism – concerned w/ rule of law, so emphasizes accountability
o normative pluralism – concerned w/ ensuring access to diverse groups of policy/interest groups (shift here post new deal)
o Realist – question whether public-oriented goals of legal ideologists can be instituted and question behavioral motivation of agency heads
o critical theory – admin about power dynamics of socio-economic class (lesser focus on dynamics of race and gender)
o public choice/positive political theory – legislation embodies the interest of groups with proper incentives to mobilize and wield influence
 politics is a market for legislation
 based on assumption that all actors behave rationally to maximize wealth, status and power
o lobbying when there are narrowly dispersed benefits or costs

JM - two basic promises of liberal democracy are democratic accountability and liberty; bulwark for ideas is rule of law

Is exercise of power legitimate?
Consent Impersonality (apply same law to everyone)
Conflict Vote – don’t claim rationality; doesn’t have to make sense to be legal Adjudication
Cooperation Negotiation/contract Administration (this is claim of instrumental rationality) - deliberation

Nondelegation Doctrine
Congress cannot transfer power to enact legislation to administrators or president
o Very lenient doctrine – basically just rhetorical formalism
o just need to give meaningful standard (intelligible principle – See Touby) in statute
o only two violations of doctrine to this date (both in 1935)
o Amalgamated Meat Cutters v. Connally (D.D.C. 1971) – p. 65: Pres. Nixon delegated authority (under statute) to Cost of Living Council to stabilize prices and wages
o not unconstitutional because standards [1) statute demarcated limited time period; 2) power to be exercised was general, not industry specific; 3) history of price-wage controls; 4) APA applied; 5) agency will develop standards; and 6) subject to judicial review]
o shows non-delegation doctrine isn’t much because agency had a lot of power, standard is “anything you deem appropriate” and judicial review not much
 statute had no baseline standards
 APA didn’t apply because no rules adopted
o Touby v. United States (1991) – p. 77: amendment to Controlled Substances Act allowing AG to deem a drug a controlled substance if imminent hazard to public safety provided specific enough standards to be constitutional
o Whitman v. American Trucking (2001) – p. 81: EPA can’t take restrictive interpretation of statute b/c that’s meaningless interpretation of non-delegation doctrine; EPA tried to be own authority by adopting rules to set out criteria for air quality levels but can’t restrict itself. Either constitutional or not and here it was.
o Agency can’t cure unlawful delegation of legislative power by adopting its discretion in limiting construction of statute – so contra Sun Ray
o DC Circuit had said that should make rules to provide accountability
o JM – Nondelegation doctrine difficult because it’s synonymous with substantive due process
o if statute too specific, may make mistake b/c agency better suited
o if too general, agency may not carry out statute as we desire
 every agency has agenda and discretion
o Sun Ray Drive-In v. Oregon Liquor Control Comm’n (Or. Ct. App. 1973) – p. 78: Court cannot review facts (of denial of liquor license) because no standard for granting license  if legislature doesn’t make standards, agency must
o order vacated with instructions on commission to develop standards
o cites “common law” of agency accountability which SC in Whitman tells us doesn’t exist in federal law (but APA has common law basis)
o essentially agency makes authority legitimate – focuses on procedural due process via rule of law rather than traditional non-delegation doctrine
o Court has begged question of whether admin action is reviewable
o So compare Whitman (either valid or invalid) to Sun-Ray (cure invalidity by adopting standards)
o JM - doctrine basically non-issue but some appeal for dealing w/ accountability and rule of law claims
o some people suggest non-delegation should be used for delegation to private parties (e.g., Medicare decides insurance claims)

Irrebuttable Presumption Doctrine
legislation is too specific
o SC never rejected but stopped talking about
o U.S. Dept. of Agriculture v. Murry (1973) – p. 128: irrebuttable presumption contradicts due process because often contrary to fact (here rule of no food stamps if someone in household is dependant of someone else so Murry lost food stamps)
o problem is disqualified without procedural due process (no opportunity to prove)
o last case to use was Cleveland Bd. of Educ. v. LaFleur (1974): invalidated school board regs that mandated disability leave for teachers after 4th month of pregnancy
o problem is every law has some presumption

Legislative Control
o Saccharin Ban controversy – p. 134 - Delaney clause said to ban cancerous food additives; FDA banned saccharin under clause and said no choice
o Public Citizen v. Young (D.C. Cir. 1987) – p. 138: no de minimis exception to Delaney Clause for dyes
o problem is that Congress didn’t give authority
o Problems of specificity v. vagueness
o Rules of control
o rule (e.g., 22 miles per gallon)
o adopt process standard which relies on technical or scientific process (e.g., Delaney clause)
o one goal (Whitman – public health, not cost)  tunnel vision
o balancing test – costs and benefits
o cost – only do to extent that benefits exceed costs
o risks (safety standard for drugs – risk of taking, less than risk of not)
o cost effectiveness – most cost effective way
o can have sunset provision
o legislative veto unconstitutional
o INS v. Chadha (1983) – p. 95: Legislative veto provision in deportation statute (Congress voted to deport over immigration judge’s suspension) is unconstitutional because it violates presentment clause (all legislation must be presented to president) and bicameral requirement of Article I (all legislative must pass both houses)
o Test: Is it legislative in character?
 but what is legislation?
• formal test – Congress acted
• Functional/effects test – effect of changing powers, rights, privileges and immunities
o Dissent (white): legislative veto essential because Congress trying to save some of delegated power for self
 shows interplay w/ nondelegation doctrine
o shows Congress can’t reserve legislative power for self
o if legislative veto is struck down, ? of severability is would Congress have enacted the provision without offending portion (See Alaska Airlines v. Brock (1987))

Generally Applicable Statutes that Affect Agencies
o National Env. Policy Act (NEPA)
o contract out environmental impact statements so environmental people not associated with decision makers; can only be sued for non-comprehensiveness
o FOIA – agency must make available any record that doesn’t fall into 10 specified categories
o sunshine act – must provide advance notice of meetings unless exempted
o but can say not a meeting
o Federal Register Act – must publish new rules in Federal Register
o Regulatory Flexibility Act (RFA) – must gather info. about impact on small businesses
o Administrative Procedure Act (5 U.S.C. § 551 et seq) – minimum procedural standards for agencies

Appointment and Removal of Officers
o Constitution – president will appoint “officers” and has responsibility to see laws faithfully executed
o unclear about removal and who removes inferior officers
o Appointment
o Buckley v. Valeo (1976) – p. 190: Any appointee exercising significant authority (making and applying law) pursuant to the laws of the US is an “Officer of the US” and must be appointed as prescribed by Article II.
 Test – something that is not just legislative
 appointing members of FEC by combo of president, speaker and house, and president pro tempore of Senate violates appointment clause
o Mistretta v. U.S. (1989) – upholds creation of sentencing commission (at least 3 federal judges); no impairment b/c sentencing not area of core executive power; also no threat to independence of judiciary
o Removal
o Bowsher v. Synar (1986) – p. 202: Congress can’t remove official with executive function
 Comptroller general appointed by president, but removal by Congress for cause – Congress can’t retain removal power
 Executive function because interpreting provisions AND determining what budget cuts to make
 Violates separation of powers
o Humphrey’s Executor (1935) - p. 224: For cause restriction on President’s power to remove is constitutional when officer is not purely executive
o Statute creating FTC had “for cause” removal requirement – upheld
o Compare Myers v. U.S. (1926) – Congress can’t restrict removal of postmaster because purely executive officer
o Morrison v. Olsen (1988) – p. 231: Congress can regulate president’s power to appoint and remove so long as it does not “unduly trammel” on executive authority
 Independent council statute – job is to prosecute president – is Constitutional
 doesn’t violate separation of powers because president can still act
 Dissent (Scalia): pure executive function so violates separation of powers
o So
o Congress can’t appoint people outside the legislative branch (Buckley v. Valeo)
o inferior officers can be appointed by the court
o Congress can’t remove people if they do things non-legislative (Bowsher v. Synar)
o Congress can regulate removal if not purely executive function (Humphrey’s Executor)
 test is do the restrictions “unduly trammel President’s ability to perform constitutional duty”

Presidential Discretion
o Analyze presidential authority through Youngstown framework
o Jackson concurrence
 1) Express or implied statutory authority – highest power
 2) Contrary to Congress’s express or implied power – lowest authority
 3) No Congressional grant or denial – middle ground
 Shows that Congressional policy determines presidential power
o Can make law through executive orders (e.g., Emancipation proclamation; enemy combatants) – need authority from constitution or statutes
o law straight out
o add substantive authority to agency
o exercise coordination (e.g., coordinate things related to auto industry)
o Environmental Defense Fund v. Thomas (D.D.C. 1986) – p. 288: OMB can’t engage in activities to increase delay
o OMB held up EPA regulation by reviewing it
o Can’t sue president under APA

Administrative Adjudication
o what can they take away from courts?
o Crowell v. Benson (1932): agencies can adjudicate public rights, but private/common law rights adjudicated by court
 didn’t really work out but somewhat resuscitated in Granfinanciera v. Nordberg (1989) (if statutory right not closely intertwined w/ federal regulatory program and right does not belong to or against fed. govt. need article III court)
 JM finds distinction hopelessly confusing
 Thomas v. Union Carbide (1985): some Congressionally created private rights are so integrated into regulatory scheme they’re appropriate for agency adjudication
o Northern Pipeline (1982) – p. 124: statute giving jurisdiction to bankruptcy justices, not Article III courts, unconstitutional because conferral of jurisdiction is very large
 So shows that Congress won’t give too much away
o Commodity Futures Trading Commission v. Schor (1986) – p. 115: agency can adjudicate common law claims pendent to agency claims
 does not violate Article III because chosen forum
 So delegation of adjudicative power okay as long as it doesn’t invade Article III
o What process is due?
o need entitlement to get due process
 Board of Regents of State Colleges v. Roth (1972) – p. 354: not being rehired as professor does not implicate liberty or property interest so no need for hearing
• Dissent (Marshall): giving reasons not burdensome and safeguard against arbitrariness  Mashaw approach – always give a reason (e.g., not admitted to college b/c more qualified applicants)
 Perry v. Seiderman (1972) – p. 360: remand to determine if informal tenure creates entitlement
 JM – any interest should automatically be considered issue of life, liberty or property and govt. should always have to give a reason (modest process)
• Q1: Have you asserted claim about which hearing would be relevant?
• Q2: How significant is claim given cost of providing process to defend it? (e.g., school admission is important but difficult to keep process same without hearing)
o interpretations when statute outlines process
 legislature defines entitlements  whatever process provided in statute is what’s due (Rehnquist dissent to Loudermill)
• “bitter with the sweet” approach
 bifurcated process – substantive provisions create interest and Constitution determines process (Cleveland Bd. of Educ. v. Loudermill (1985) – get hearing so chance to respond before terminated for cause)
• JM – but need theory about what due process clause about
 SC vacillates between two in determining if statutes create entitlements
• entitlements only things that change your position conclusively (e.g., prison cases)
o defer to administrative concerns (See Goss v. Lopez (1975) – pre-suspension hearing but procedures defer to concerns of school administrators)
o Goldberg v. Kelly (1970) – p. 324: due process requires welfare recipient be afforded hearing before termination
 notice, opportunity to be heard, confront witnesses, attorney if desires
o CURRENT TEST - Mathews v. Eldridge (1976) – p. 337 – cost benefit analysis
 no evidentiary hearing before termination of disability benefits
 private interest
• how measured? just money?
 risk of error
 government’s interest (public interest and admin burden)
 JM – three problems with Mathews
• no attention paid to process values – sole purpose of procedure is enhancing accuracy
o lack of participation causes alienation and loss of dignity
• predicated on fact that social value is impossible to measure
• balancing analysis is insufficient to protect due process rights
o Hamdi v. Rumsfeld (2004): detention authorized but due process requires meaningful opportunity for enemy combatants to contest detention
 used Mathews-esque reasoning
 neutral decision-maker
 notice of classification
o Other approaches – not what court does
 tradition – what is normally due?
 natural law – does this produce fundamental fairness?

Federal Statutory hearing right
o look to whether statute requires and whether required under APA or other rules
o No formal hearing required where rule not premised on anyone’s individual facts – legislative type decision)
o See United States v. Florida East Coast Railway - ICC set per diem charge for freight car use; terminal railways complain special burden on them
o See also Airline Pilot’s Assoc. v. Quesada (2d Cir. 1961) – p. 460: FAA regulation that no one over 60 can serve as a pilot upheld b/c general rule so didn’t need adjudicative hearing for each pilot
o general rule, not particular one so more legislative than adjudicative
o hypo: no hearing if everyone’s taxes go up 10% but hearing where special assessment tax for benefit from improvement (e.g., abutting sewer improvement)
o third party hearing rights
o comparative hearing – if deciding X’s case already deciding mine, so need hearing on X and me
 Ashbacker Radio Corp. v. FCC (1945) – p. 402 – if interests mutually exclusively (you get license or I do to broadcast on frequency) then get hearing
o intervention – sometimes in statute (e.g., radio license renewal must be in public interest) (United Church of Christ v. FCC – district court held that petitioners could participate b/c FCC supposed to consider public interest)
o question of what happens when someone wants to exercise someone else’s right (e.g., O’Bannon - residents can’t get hearing on requalifying nursing home)

Adjudication Roadmap
o Initiation – notice of time, place, nature of hearing and legal authority
o Opportunity to settle
o Impartial decision maker (usually ALJ)
o but has investigatory (for both sides) and decisional function
o doesn’t matter that fines increase budget/institutional livelihood
o American Cynamid v. FTC (6th Cir. 1966): vacated ruling because FTC chairman had been part of legislative history that addressed same issue
o Cinderella Career & Finishing Schools, Inc. (D.C. Cir. 1970): public statement that advertising was deceptive showed he had prejudged the case
o Decision-maker separate from prosecutorial functions
o supposed to be independent
 if not only thing you can do is remove – less than 10 ALJs have ever been removed
o e.g. labor dept. decides prosecutions under OSHA and commission (outside dept. hears case
o AG argues for internal separation – p. 434
o BUT SC never said complete separation required
o Need record
o Decision must rely on evidence in record
o No ex parte contacts except with presiding officer and agency members
o Appearance personally or through parties
o Discovery – APA mostly silent but subpoenas may be available
o Can present evidence and cross-examine witnesses
o APA says entitled to cross-examination but don’t always get it
o Hearsay acceptable (See Richardson v. Perales (1971) – p. 413: written medical reports adequate in disability case – no cross examination rights)
 case said they could have subpoenaed doctor but SSA almost never grants subpoenas
 rejects the residuum rule that “substantial evidence” requires record to contain at least a “residuum” of non-hearsay support for fact-finding
o Burden of proof
o on party proposing order (usually agency but person in license case)
o preponderance of the evidence (See Steadman v. SEC; APA is silent)
o Mashaw – Bureaucratic Justice – p. 426
o Base adjudication on moral judgment – who deserves what; values OR
o Base on bureaucratic rationality – accurate, cost effective
o Product of hearing is final or tentative decision that agency must adopt
o Appeals as of right or discretion
o Agency has “all the powers which it would have had in making the initial decision (See § 557(b))
o agency decision must be supported by substantial evidence – less than preponderance and more than scintilla
 can be hearsay (See Richardson v. Perales)
o examiner does not get same deference as trial court (See Allentown Broadcasting Corp. (1955), but reviewing entity should be careful in reviewing ALJ who heard witnesses when findings turn on credibility (See Universal Camera (1951) – p. 431)
o Res judicata has less force (e.g., can contest welfare denial multiple times)

*Equitable estoppel doesn’t apply to statements of admin employees

Tradeoffs in Adjudication
o Adjudicatory processes v. exigencies of administration
o institutional decisionmaker okay
o Being fair to parties v. making policy
o Nash v. Califano (2d Cir. 1980) – p. 443: about tradeoff (SSA established policies to eliminate backlog and delay – quotas; monitoring; holding is ALJs have standing to claim it harms their independence)
o One solution is to make rules with hard edges (See Heckler – upheld Secretary of HHS relying on published medical-vocational guidelines to determine right to disability benefits)
 guideline provide uniformity

Administrative Rulemaking
o Aim is to take statute and use agency (scientific) expertise to devise means to satisfy goals
o Rules more important than adjudication to make policy
o General Model
o Goal  Facts  Policy (based on analysis)  Rationale
o (Interpretation) (Investigation) (Policy Choice) (Explanation)
 Analysis often a predictive judgment (e.g., NHTSA must predict response to restraints)
o most often done by outside contractors who write memos
o could skew to big interest groups or lawyers
 ? is whether judgment based on investigation or something else (e.g., prejudgment; ex parte contacts)
o similar to adjudicative process because ultimately want administrators to be responsive and act responsibly
o Formal - § 556-57 – similar to trial (cross exam etc.) – full information and record but high cost and delay
o only required if language in statute
o Judicial review – substantial evidence (under § 556)
o Informal - § 553
o Steps
 provide notice of proposed rule
o ? of what needs to be there to provide fair opp to comment
o prudent advice is to issue new notice every time proposal changes, but unclear when notice actually required
o See Wagner Elec. Corp. v. Volpe (3d Cir. 1972) – rule exceeded notice so interested parties denied right to participate
o Compare South Terminal v. EPA (1st Cir. 1974) – changes were substantial from proposal but consistent with original scheme
 allow for comments (usually written)
 publish final rule that considers and responds to public comments and has statement of rule’s purpose (usually in preamble)
 Only need on-the-record communication when proceedings involve “competing claims”/adversarial (Action for Children’s TV v. FCC (D.C. Cir. 1977) – p. 559)
o Okay that industry proposed self regulation
o Exemptions
 rules relating to military or foreign affairs and “public property, loans, grants, benefits, or contracts)
 Interpretative rules, general standards of policy, or rules of organization or procedure
o Am. Mining Congress v. Mine Safety & Health Admin. (D.C. Cir. 1993) – p. 587
o Notice and comment is required if
 in the absence of the rule there wouldn’t be an adequate basis for enforcement action (non self-executing)
 the agency has published the rule in CFR
 the agency has explicitly invoked its general legislative authority
 the rule amends a prior legislative rule
o policy letters that x-ray readings qualify as diagnoses are interpretative rules so no notice and comment required
o Compare U.S. v. Nova Scotia Food Products Corp. (2d Cir. 1977) – p. 535: Notice and comment required to add whitefish to FDA regulations
o unlike retreaded tires case, this was decided on procedural grounds – procedure was inadequate b/c didn’t indicate what data it relied on; therefore regs are arbitrary
o distinguish from Fla. E. Coast (RR) case because enforcement proceeding, not pre-enforcement – here posture focuses on rulemaking process
o constant source of litigation whether § 553 should have been used
o hypo: SSA issues instructional memo that says alcoholism is medical condition but need evidence of organic damage
o close case b/c essentially amending eligibility statute
o See Hector (7th Cir. 1996) – determination that regulation requiring structural strength of fences containing wild animals implies fences must be 8 feet tall was rule/legislative so need notice and comment
o Compare Shalala (U.S. 1995) – determination that regulation stipulating use of “standardized . . . accounting” did not require use of GAAP was interpretation
o often intent to use as a rule is clear for enforcement (e.g., FTC requires octane level posting on pumps and punishes violations automatically)
 when the agency finds “good cause” and documents that notice and public procedure is “impracticable, unnecessary, or contrary to the public interest”
o must invoke at issuance not when challenged
o judicial review under arbitrary and capricious standard
 initially must just be reasonable (See Pacific States Box & Basket Co. v. White (1935) – 493: Oregon administrative order providing for specific form and dimensions for berry containers is fine under rational basis review)
o ? – is there a conceivable state of facts that would support the rule?
 Now need evidence (See Automotive Parts & Accessories v. Boyd (D.C. Cir. 1968) – p. 500: NHTSA rule requiring head restraints valid because substantial support in record for conclusion)
o need material to support rule in record and evidence showing that rule makes sense
o question of whether this requires agency to do a quasi-legislative job
 courts reject post hoc rationalizations (See Nat’l Tire Dealers & Retreaders)
 JM unsure this standard is any different than substantial evidence because if all your evidence is unsubstantial hard to say it’s not arbitrary
o See Nat’l Tire Dealers & Retreaders Assoc. v. Brinegar (D.C. Cir. 1974) – p. 512: NHTSA Rule requiring permanent labels on retreaded tires is arbitrary and capricious because not “practicable” or necessary to protect against “unreasonable risk”
o no on the record evidence to outweigh counterevidence
o shows reformulation of arbitrariness from substantive meaning to procedural one – need to consider alternatives and produce evidence
o NHTSA has lost 50% of judicial proceedings under standard b/c of unavailability of scientific evidence
o same standard for rescission of rule as promulgation (See Motor Vehicle Manufactures Assoc. of U.S. v. State Farm (1983) – p. 520: couldn’t rescind new rule that motor vehicles must have passive restraints w/o evidence of reasoned and adequate basis for change)
o Courts should not impose – absent rare circumstances - additional requirements beyond APA and statute in interest of creating better record (See Vermont Yankee – nuclear power plant licensing; appellate court said add cross examination to process but court said no)
 no common law of rulemaking procedure
o time consuming (famous case where Jif was going to have to be labeled imitation peanut butter because not enough peanuts; hired lawyers to delay and eventually agency gave up)
o requirement of evidence means many agencies fail to aggressively pursue mandates
o so judicial review has made agencies ineffective
o 1) rules not being made; 2) out of date rules not being updated; (3) unnecessary regulations not being enforced
o instead of rules we have lots of private standards and standard setting organizations (SSOs) (e.g., plugs in outlets)
 but private standard setting doesn’t work when people have real conflicts of issues (e.g., hospital regulation doesn’t impose regs on drug interactions)
o Reform
o Need to democratize process – more participation
 bias toward written comments
 bias toward big guns and lawyers
o JM – what if only can attack rule as arbitrary or irrational during enforcement proceedings
 would treat like legislation
 reduces problem of trying to determine whether rule is arbitrary or irrational w/ limited information
o scale back from arbitrary and capricious to rational basis
o negotiated rulemaking
 people with bigger stakes participate
 But USA Group Loan services Inc. v. Riley (7th Cir. 1996) – p. 639 – act did not make promise enforceable
o soft-law rather than hard-law – publicize best practices and gold stars for exceeding standards
o ways to gather information
o public meetings
o advisory committees w/ experts and interested persons
o advanced notice of proposed rule making
o criticism – captured by private organizations; skewed in favor of some individuals/groups

No ex parte contacts in rulemaking
o Advantages of ex parte: Efficiency; speed; check on reliability of staff info.; more information
o Disadvantages: Arbitrariness increased; risk of capture; info. less carefully prepared (not on record); difficulty of review
o Rule – (1) must disclose to public when they form basis for action; (2) prohibited between formal notice of proposed rulemaking and decision (HBO v. FCC (D.C. Cir. 1977) – p. 558)
o here allowed ex parte contacts where rulemaking looks like bipolar adjudication – two interests – the networks and the cable company
o Can hear experts (See Seacoast Anti-Pollution League – p. 409)
o Can have ex parte contacts where they’re not reason for rule (See Sierra Club v. Costle – ex parte contacts with coal industry)
o SO motivations irrelevant; only police to make sure they have reason
o Don’t have to reveal internal communications, but can’t be sole basis (See Morgan – p. 430)
o Morgan IV – once you show decision maker considered evidence inquiry stops – doesn’t matter how long and hard
o Agency official disqualified only when (Association of Nat’l Advertisers v. FTC (D.C. Cir. 1977 – p. 577)
o clear and convincing showing
o unalterably closed mind on matters critical to disposition
o FTC chairman could make rules re: children’s advertising despite public statements against ads
o JM – no rule ever set aside on grounds of prejudgment

Claim – you need a rule
o agency has discretion to adopt policy in adjudication instead of via rule (SEC v. Chenery Corp. (1947) – p. 602: SEC said people involved in merger can’t trade stocks during reorganization)
o okay because based on “substantial evidence”
o Dissent (Jackson) – majority approving power to decide without law JM – thinks abuse of adjudicatory authority since agency could make rules
o JM – should shift burden to agency to show there’s reason to make decision in adjudication and not rulemaking process
o can’t rely on rule in manual but must have notice and comment (See Morton v. Ruiz (1974) – p. 612: invoke manual to deny assistance to Indian living outside reservation; can’t rely on standard without notice)
o holding: must put all rules in Federal register
 case never cited for holding – lots of decision based on manuals
 nonetheless sits out there as precedent for required rulemaking, but in direct conflict to Chenery
o would fall under benefits exemption of § 553 but manual said they’d use § 553 process – ironic that you use BIA manual to attack manual
o alternative to making rules is issuing “guidance” (statement of policy)
o no notice and comment procedure
o but SC required FDA to adopt binding regs based on guidance so fine line

Rules must be followed unless changed by rules
o US ex rel Accardi v. Shaughnessy (1954) – once AG acceded authority to Board of Immigration Appeals, AG can’t dictate decision
o Service v. Dulles (1957) – removal of foreign service officer on basis of board recc was violation of own rules
o But there are exceptions (e.g., U.S. v. Caceras – didn’t overturn conviction where did surveillance w/o DOJ approval)

Is judicial review available?
o No review if statute precludes review (APA § 701(a)(1))
o more likely to enforce preclusion if alternative (e.g., admin remedy – See Weinberger v. Salfi)
o may not enforce preclusion in interest of fairness (e.g., Adamo Wrecking Co. v. United States (1978) – p. 889-90)
o Can challenge constitutionality of statute (See Johnson v. Robinson (1974) – p. 878: Interpretation of educational assistance statute as not covering conscientious objectors review because challenging constitutionality of statute not individual case. Statute says no review)
 would not have standing if not denied individual benefit
o Also implicit preclusion – should not review on separation of powers grounds
 ? – how likely is this to interfere with agency’s abilities to do actions
 functional considerations (See Block (1984) – no actions by consumers since Congress explicitly authorized actions by dairy producers)
o Also no review for act committed to agency discretion by law (§ 702(a)(2))
o Webster v. Doe (1988) – p. 895: no review on discharge of CIA employee but review on constitutional claim b/c statute can’t preclude such claim
 Dissent (Scalia): predicts – probably accurately (JM) – than can get at everything
o non-enforcement/inaction presumptively unreviewable (See Heckler v. Chaney (1985) – p. 922: prison inmates petitioned FDA that capital punishment drugs violated Food, Drug, and Cosmetic Act; Court upheld decision not enforce)
 Dissent (Marshall): should review but extremely differential – just need a reason
• JM – may be that this wins out over Dunlop but probably irrelevant because have broad discretion
 But decision may be reviewed under narrow standard of just requiring reason (See Dunlop v. Bachowski (1975) – p. 914: required reason for decision not to bring action to prosecute election irregularity
• review is extremely limited
• question is whether it’s rational
 problem under statutes w/ no obligation to give reason is that if you say anything, can review questionable basis and then get review
 reasons not to interfere
• shortage of resources so would effect capacity to administer mandate
• decisions require agency expertise and coordination
• no need for judicial relief – not exercising coercive power over liberty or property rights
• separation of powers and political accountability – discretion
• interference might undermine rather than promote enforcement
• possibility for private alternative relief (e.g., torts)
 Doesn’t apply to rulemaking (See American Horse Protection Assoc. v. Lyn (1987) – p. 934: Org challenged failure to make regulation on horse soring devises and court remanded to give secretary chance to apply reason)
• rulemaking is different than adjudication because not akin to prosecutorial discretion; decisions turn on law rather than fact; and APA § 555e requires reasons
• But failure to act is not same thing as denial (See Norton v. S. Utah Wilderness Society (2004) – Blackboard: failure to make rule to prevent off-road vehicles from coming into parks is not reviewable under the APA because just a policy decision; didn’t consider rule and refuse to make it)
o relates to standing – can’t litigate generalized grievance
o Presumption that all constitutional ?s for courts (See Webster v. Doe)
o potential problem of couching everything in due process claims but courts have attempted to foreclose
o agencies have no advantages over courts in deciding constitutional ?s
o Scalia in Webster raises ? of why constitutional questions taken more serious
o Garden variety – government v. private party
o remedy – injunctive or declaratory judgment
o court is normally appellate court if under statutory review provision, but district court if no review provision
o APA § 706 – scope of review – should decide all applicable ?s of law; compel action unlawfully upheld or delayed; set aside conclusions found to be arbitrary, capricious or contrary to law
o Presumption of limited review (Citizens to Preserve Overton Park v. Volpe (1971) – p. 784: remanded to determine if “feasible and prudent” alternative to building highway through town)
 don’t need formal findings but affidavits (post hoc rationalization) are also insufficient
o American review is basically procedural
 Israel review is substantive – proportionality test (See Beit Sourik Village Council v. Govt. of Israel (2004) – order to construct wall between Israel and Palestine was invalid under proportionality test – small security gains and large lifestyle losses)
• JM – although substantive review more intrusive might be used more sparingly
 ? I think is who has competence to decide
o Beneficiary suits to enforce statutory requirements
o much harder to get review if benefited party than regulated party
 why Congress has tried to even out with citizen suit provisions
o ? – does this translate policy discretion from agencies to courts?
 arguably only thing is style of enforcement – might want more cooperative enforcement
 might have underresouced agencies
o Explicit cause of action
 qui tam – money for private enforcement action - statutes upheld as not violating Article III (See Vermont Agency of Nat. Resources v. U.S. ex. rel. Stevens (2000) – p. 1182 – individual is assignee of part of claim)
 most environmental statutes have citizen suit provision – question is standing
o implicit cause of action
 more common than explicit remedies
 J.I. Case Co. v. Borak (1964) – p. 1187: Implied right of action b/c private enforcement necessary to supplement Commission action and effectuate purpose (stockholder alleges merger effected by circulation of false and misleading statements)
• JM – puzzle is why public can’t derivatively pursue rights of public if shareholder can sue on behalf of corporation
• JM – big missing discussion is federalism b/c we’re talking about corporations law
 Test (Cort v. Ash (1975) – p. 1193 – no private cause of action for stockholders in statute prohibiting corporations from contributing to election – secondary purpose of statute, no leg. history and remedy available under state law)
• Does statute create federal right in favor of P?
• Is there any indication of legislative intent to create or deny remedy?
o problem is leg history often silent
• Is remedy consistent with underlying purpose of statute?
o this is cautionary prong
• Is COA specifically relegated to state law?
o problem is area doesn’t define itself so picking area answers question
 Formally normal to imply right of action
• Cannon v. University of Chicago (1979) – p. 1198: Title IX provides a private right of action
o applied Cort test: (1) enacted for benefit of P; (2) legislative history indicates intent to create remedy b/c said interpret like Title VII; (3) remedy furthers congressional purpose; (4) discrimination not state concern
o Concurrence (Rehnquist): shouldn’t imply COA, but get from statutory construction
o Dissent (Powell): no explicit remedy so one doesn’t exist; separation of powers problem
 Now presumption against implied right of action in federal statutes
• Alexander v. Sandoval (2001) – p. 1209: No cause of action to enforce DOJ disparate impact regulation
o doesn’t matter that private right of action to enforce § 601 (intentional discrimination) because we’re talking about § 602
o Dissent (Stevens): question already decided because private right of action under § 601 according to Cannon
 JM agrees majority interpretation is pretty bizarre
• JM – problem here is SC interpreting older legislation adopted when SC hospitable to implication of private remedies
o public rights (statute) substitute for private rights
 possibilities for relationship b/w public and private rights
• co-existing public and private remedies
• common law approach – borrow standard from law as standard of conduct (e.g., duty of care) or to imply additional duty
• staged interface – need public law ruling to bring claim
o primary jurisdiction doctrine – similar to exhaustion (Abilene Cotton)
 does not apply where issues to be decided by agency and court not inconsistent (See Nader v. Allegheny Airlines)
 could discuss Sprunt (ICC’s determination rates were discriminatory) on primary jurisdiction or exhaustion grounds
• public law supersedes and eliminates common law
o more likely the more comprehensive regulatory section is (unlikely to be able to pursue plane for design defect if certified as airworthy by FAA)
 presumption that state law not preempted
• Need intention to supersede or impossible to comply with state and federal law (See Geier v. Am. Honda (2000) – p. 1284 (can’t sue for failure to put in passive restraints because interferes with statute requiring phase-in of restraints)
• Not true with federal action (See Sea Clammers – common law action based on federal interstate pollution law pre-empted by pollution act – federal agency determined what was reasonable)
• ERISA says state benefit law preempted (e.g., can’t have state universal healthcare) – lots of litigation in this area
• What sort of deference to agencies saying their actions preempt?
o agency could justify on grounds it can adopt ALL rules and regulations necessary to adopt goals of statute
o Chevron deference?
o other view – unless Congress says pre-empt it doesn’t
• ultimately federalism question

o 42 U.S.C. § 1983
 claim is failure of state to follow provisions in federal programs
• states not persons within meaning of section
o so sue individuals – fiction under Ex Parte Young is that you’re suing the officer and not the state
o officials have qualified immunity – protected if reasonable belief in legality of action
o immunity protects states from damages (can’t sue if money comes out of state treasury – e.g., welfare benefits) but not injunctive relief
 § 1983 applies to all laws of United States, not just equal rights statutes (See Maine v. Thiboutot (1980) – p. 1223)
• Need federal law being violated and person acting under color state law
• Dissent (Powell): 1982 just protects civil rights
o this is consistent w/ fact that § 1983 was passed under Congress’s section 5 power
 For federal statute to create rights, must be clear that condition is mandatory under grant program (See Pennhurst State School & Hospital v. Halderman (1981) – p. 1225: bill of rights in statute about mentally disabled children that says care in least restrictive environment does not provide substantive rights)
 To have right under federal grant must show 
• statute benefits YOU
• Blessing test (See Blessing v. Freestone (1997) – p. 1245: P can’t sue state for failure to carry out child support provisions b/c no intent to benefit P)
o right not vague and amorphous – judicially enforceable standard
o unambiguously imposes binding obligation
o no other indication in statute that Congress intended enforcement by other means (So can’t have exclusive means of enforcement)
• unambiguous statement of right (See Gonzaga v. Doe (2002) – p. 1249: holding no right to sue for privacy violation under FERPA because statute doesn’t CREATE personal rights)
o Almost same standard for finding implied right of action (but don’t need to show intent to create remedy)
o since Congress wants all interpretations of FERPA to be centralized, certainly couldn’t have wanted individual actions
o suggests that since state remedy available Congress doesn’t want to act – presumption almost to go after state remedies
o Blessing alone would argue for finding rights
o Gonzaga brings back to interpretation of § 1983 as only creating remedies for violations of federal civil rights

Critiques about judicial review
o advantages
o ensuring individual justice
o maintaining rule of law
o legitimating the administrative state
o democraticizing bureaucratic choices among competing values
o irrelevant – only matters to individual cases
o impertinent – not able to do things it says it can
o Winter critique – b/c only decide ?s of law, allow board to submerge legal decisions as decisions of fact to evade review
o JM’s proposal
o only review rulemaking at enforcement
o for adjudicatory systems set up quality assurance system to sample – certain percentage and criteria
 if they find problems, focus attention on correction of problems (e.g., evidence not good enough)
 judicial review of how running system
 could also have safety valve for certain types of cases (e.g., constitutional claims; statute that applies to multiple agencies)

Does court defer to agency?
o Must defer to reasonable interpretation if statute unclear (See Chevron U.S.A. v. Nat’l Resources Defense Council (1984) – p. 795: upheld EPA’s interpretation of Clean Air Act)
o Two step approach
 Has Congress spoken directly? If yes, that is answer
 Is statute silent or ambiguous? If yes, is agency’s answer reasonable
o As result agency may be driven to state rationale as statutory interpretation
o Court not bound by Chevron to give deference but tone changes post Overton Park – don’t assume ? for court but must see if statute sufficiently vague
o Only get Chevron deference when Congress intended to delegate rulemaking authority (See U.S. v. Mead (2001) – p. 802: tariff classification for day planners by customs service doesn’t deserve deference b/c no intent to delegate)
o Otherwise get Skidmore deference where expertise justifies it
o Dissent (Scalia): should have applied Chevron b/c more closely approximates Congressional intent; reversing presumption of Chevron (JM thinks this is overreading)
o Skidmore deference relies on capacity and competence
o if law is non self-executing, complete delegation to agency’s authority
o Courts often don’t apply Chevron (See Leocal – INS removal for DUI because felony; SC said INS interpretation was wrong)
o But once court upholds decision as proper, agency can’t change its decision
o seems inconsistent with Chevron
o Chevron applies to interpretations that weren’t subject to notice and comment rulemaking (See Barnhart v. Walton (2002) – p. 814)
o SSA policy in manual is if someone goes back to work w/in 12 months they don’t get disability manuals
o SC says Chevron applies because longstanding
o Concurrence (Scalia) - ? is whether agency has authority not whether it’s longstanding
o Should Chevron apply to question of whether agency has jurisdiction to act? SC hasn’t answered yet (p. 817)
o Chevron doesn’t trump canon that favors construing statutes to avoid constitutional difficulties (See Rust v. Sullivan)
o Why not just have legislative rational basis standard?
o Courts take sep. of powers seriously so more likely to get deference if you explain why you like it
o Courts more likely to review individual rights/personal liberty cases (constitutional cases) than economic or political ones
o Deference goes to agency with primary responsibility of enforcing statute where interpretations of 2 agencies conflict (martin v. OSHRC)

Substantial Evidence Test
(APA § 706) – for review of facts determined in agency adjudication
o Pre-APA standard of extreme deference
o Need “warrant in the record and a reasonable basis in law” (See NLRB v. Hearst Publications (1944) – p. 825: deferred to NLRB to say newsboys were employees by saying that was a factual finding)
 court basically got to determine jurisdiction
o substantial evidence later defined as more than a scintilla
o procedural approach – is there any evidence related to all the elements necessary to make out the case?
o APA made more demanding – “manifest weight of the evidence”
o Distinguish from Chevron which deals with law, not facts
o Winter proposes using Chevron for legal principles but requiring strong warrant in record for facts (See Allentown Mack Sales (1998)
o Must be based on substantial evidence in light of ENTIRE record (See Univ. Camera Corp. v. NLRB (1951) – p. 832)
o So agency considers positive and negative evidence
o in increasing strictness standards are arbitrary and capricious, substantial evidence (could reasonable mind accept record as adequate), and clearly erroneous (court standard – does reviewing judge have definite conviction error has been committed?)
o Scalia said arbitrary and capricious is same as substantial evidence in ADAPSO but most people disagree

How does agency interpret statute?

Agency Court
Follow presidential directions unless outside authority X
Interpret to avoid constitutional questions -no duty to avoid constructing contra Constitution (e.g., Bob Jones) X
Use legislative history as guide X
-agents of Congress
-also about avoiding error in interpretation
Interpret to give energy to all legislative programs w/in jurisdiction X

Activist lawmaking X
-need to be somewhat activist to have legitimacy
Respect judicial precedent
-not inferior courts so ruling only binding in litigated case X
Lend coherence to overall legal order X
Interpretive efficiency X
Hierarchical control over subordinates X
-need rules w/ hard edges in SSA b/c so many judges and decisions
Contemporary political milieu X
-gain political capital by heeding preferences of president and Congress

-lots of agency nonacquiescene to decisions
-legal interest in not treating as binding to get more courts to weigh in

Review of Science Decisions
o Agency needs evidence to show necessary and feasibility analysis (See Indus. Union Dept. v. Am. Petroleum Institute (Benzene Case) (1980) – p. 946: Standard for benzene that reduced acceptable level from 10 ppm to 1 ppm is invalid because didn’t show reasonably necessary and didn’t show reasonable correlation b/w costs and benefits)
o NOTE: pre-Chevron so little deference
o can’t show 1 is different from 10 – need to base decision on feasibility
o Concurrence (Rehnquist): Congress violated non-delegation principle by allowing Secretary to set standard
o Dissent (Marshall): should defer to secretary
o problem here is will have uncertainty regardless
o Hodgson: if research on “frontier of science” and fully informed factual decision impossible don’t need factual certainty but persuasiveness – so deference

Preliminary Objections to Reviewability
o Non-reviewability – balance impact of judicial review and agency functioning
o Timing – is this appropriate for judicial resolution now?
o Finality
 To determine if it’s final (1) agency completed process; and (2) process had legal effect (Dalton v. Specter (1994) – p. 948: decision to close bases not final b/c nothing happened without presidential approval)
 Finality is established on basis of inaction (just need to show immediate harm AND end of agency process) (See D.C. Circuit DDT cases – p. 955: EDF asked EPA to cancel licenses for and suspend all use of DDT)
• So doesn’t always require change in legal position (See also AMP v. Gardner – review on whether product was drug or device)
 Solomon amendment litigation – DOD said we think you’re in violation but wouldn’t make finding
• court said final – failure to act does not prevent you from having finality
 tobacco case (NEED name) – release of information not coercive act because didn’t change rights
o Ripeness
 Test (Abbott Laboratories v. Gardner (1967) – p. 961: Congress amended Food, Drug & Cosmetic Act to require prescription drug manufacturers to print name EVERY time – court said issue is ripe for resolution; no reason to believe review will delay enforcement)
• (1) fitness for judicial consideration
• (2) hardship of withholding review
 Compare Toilet Goods Assoc. v. Gardner (1967) – p. 968: Regulations permitting inspections not ripe for review
• SC distinguishes on grounds of uncertainty (no idea how regulation affects parties in Toilet Goods, but result is clear in Abbott) and primary conduct not affected
• JM – unless you need further factual development to understand how regulation going to be applied, get review
o SO court won’t be better informed in individual compliance proceedings
o See Ohio Forestry v. Sierra Club (1998) (could not challenge regulations that made “logging more likely” but did not authorize logging because issue not ripe)
 availability of alternative relief relevant (NYSE v. Bloom – p. 977 – could bring private action)
 JM thinks better to enforce first, sue later, so argument not abstract
 if criminal prosecution, definitely ripe so only issue is exhaustion
o Exhaustion
 Must exhaust administrative remedies (See Myers v. Bethlehem Shipbuilding (1938) – p. 978: NLRB charged company with unfair labor practices; need to proceed w/in agency, not in court)
• JM – could have decided on finality grounds
 Myers was easy because important factual inquiries to resolve, disputable legal claim, and no burden to company – later courts have taken more flexible, functional approach (See AMP v. Gardner: allowing court review of whether product was a drug or device because FDA drug licensing process didn’t answer question at all; distinguished from Myers by noting burden of pre-market approval procedures and fact that ? was a legal one)
 could apply retrospectively but sometimes don’t because of fairness concerns (e.g., McKart v. United States – p. 981: claim is I’m exempt from draft because sole surviving son)
• not complex factual issue (Compare McGee – refusing to permit draftee convicted for failing to report to raise conscientious objector classification defense)
 idea is agency is expert
 only need to exhaust as far as statute says (See Darby v. Cisneros (1993) – p. 989)
 also only need to pursue far enough to determination if non-constitutional basis for resolving dispute (See Mathews v. Eldridge – didn’t need to exhaust administrative remedies b/c clear he wasn’t going to get pre-termination issue) – surely get review if you’re challenging nature of proceedings you’re supposed to exhaust
• but post Chevron does it make sense to saw law ?s are separate from administrative process? JM says we don’t know
• might be that under Mead no deference to interpretive rules
 rejected issue exhaustion in Sims v. Apfel (2000) – p. 986 so can (OR CANNOT) bring new claims not raised before agency

Does Plaintiff have standing?
o pre-1970
o Is there a legal wrong? (See Sprunt (1930) – p. 994 – need legal right or protected interest; didn’t have standing to challenge ICC RR rates – act not directed at him; RR not ICC was proximate cause)
o is the claimant trying to protect private rights (See Sanders Bros. (1940) – p. 998: Party has standing if “aggrieved or adversely affected” w/in meaning of EXPRESS review provision of statute – holder of broadcast license had standing to challenge license to another broadcaster)
 don’t have to allege legally protected interest
o Test
o Injury – required to have “case or controversy” under Article III
 must be concrete and particularized – direct stake (See Sierra Club; Lujan)
 aesthetic, conservational and recreational injury counts, but must be to P (See Sierra Club)
 injury need not be tied to legal claim (See Duke Power (1978) – p. 1019: injury was radiation from nuclear plants but legal claim was liability)
 statute can make generalized grievance a particularized injury (See Havens Realty Corp. – testers had standing because fair Housing Act provided right to truthful information)
• but isn’t this Congress creating an injury? Concern in all these cases is Congress can give standing to anyone
o but is this problem? – Congress can create rights so why can’t create injury?
• if statute says “any person aggrieved” may confer broad standing (See Dept. of Commerce – p. 1023 – voter who could lose state rep because of statistical sampling had standing)
o Contrast Sinkfield v. Kelly – no standing to challenge majority/minority districts b/c no one lived in district; claim is constitutional not statutory
• Fed. Election Commission v. Akins (1998) – p. 1025: group of voters has standing to challenge FEC’s failure to treat AIPAC as a “political committee” under Act b/c statute said “any party aggrieved”
o injury is lack of information
 But Congress can’t simply redefine anything as a right you’re entitled to pursue
• Lujan v. Defenders of Wildlife (1992) – p. 1057: Ps don’t have standing to challenge decision not to apply ESA to foreign projects because no definite plan to go back and visit
o unclear why this different than Japanese whaling statute – maybe because effect less direct – trade sanction v. consultation requirement here
• But see Bennett v. Spear (1997) – p. 1072: Standing to challenge “biological opinion” that irrigation project would jeopardize fish
o didn’t show OWN water supply would be reduced
o maybe difference is claim at pleading, not summary judgment stage
o also here harmed by action, not beneficiaries (see Lujan)
o causation
o redressibility – can’t sue if no remedy
 Steel Co. (1998) – p. 1048: No standing to sue for failure to file reports when company responds by filing reports
• complaint is past violation not ongoing
 Lyons (1983) – p. 1049: No standing to sue for injunctive relief on chokeholds because can’t show you’re likely to be subject to policy again
 not moot unless behavior is not reasonably likely to occur (Laidlaw)
• also not moot if “capable of repetition yet evading review” (Doe v. Sullivan)
o within zone of interests
 interests among those arguably to be protected by statute; intent irrelevant (See Nat. Credit Union)
 JP – zone of interests basically dropped out b/c anytime affected by statute satisfies interests (See Clarke v. Securities Indus. Assoc. (1987) – p. 1006 – association of securities dealers has standing to challenge authority of comptroller to permit banks to sell brokerage services – not really in banking statute)
• But See Air Courier (1991) – p. 1007 – postal workers union doesn’t have standing to challenge decision to suspend postal service monopoly; statute designed to protect postal revenues, not jobs
o So here need causal relationship b/w illegality and injury
o ADAPSO (1970) – p. 1001: Data process company has standing to challenge ruling by comptroller that banks can sell data processing services
o Need injury and within zone of interests protected by statute – prudential standard
 need to be regulated party or beneficiary of statute
o Nat. Credit Union (1998) – p. 1007: union had standing to challenge interpretation of act to permit unions to be composed of multiple unrelated employee groups
o Test is not whether Congress specifically intended to benefit P
o Qs are (1) what are the interests arguably to be protected by statute? 2) is P’s interests among them?
o Friends of Earth, Inc. v. Laidlaw (2000) – p. 1074 (standing to bring suit to enforce compliance with pollution discharge provisions)
o must show that wrongful behavior could not be reasonably expected to occur to be moot
 so voluntary cessation is not enough
o relevant injury is to P
 so didn’t matter that no injury to environment
o Taxpayer standing doesn’t really exist except for establishment cases (See Flast – p. 1023 – standing to challenge tax support of religious schools)
o U.S. v. Richardson (1974) – p. 1021: taxpayer challenging non-publication of CIA budget did not have standing  just a generalized grievance no particular harm
 in cases like this (unlike Sierra Club) no standing means non-reviewability
o different under FOIA – Congress gave right & can get judicial review for anyone aggrieved
o Associational Standing (Hunt test – p. 1036)
o Test - just need members to have an interest so association can pursue interests on their behalf
o so long as case not too particularized (requires individualized members) can bring it
o associations may have more competence and less vulnerable to coercion
o Why weaker requirements to claim officials’ actions illegal?
o public interest in government not behaving illegally
o liberty interests not to allow officials to do thing they’re not authorized to do
o Should we eliminate standing?
o Reasons to eliminate
 historically had prerogative writs – just alleged illegality under statute – consistent with this could allow
 if you don’t give standing to general public, action might be non-reviewable, so no policing
 difficult to see what standing doctrine is protecting b/c other doctrines (reviewability, separation of powers, ripeness, finality) do work
o Reasons not to
 mandated by Article III
 seems to place little faith in judiciary to block suits
• removing standing increases power to judges, but is this bad?
• shifts decision-making away from exec and legislative branches
 interest groups too adverse – so no settlement possibilities
 maybe standing doctrine is essentially substitute for cause of action
 if we think standing is excluding lots of lawsuits, might have problem with enough judges
 might have bad representatives bringing suit
• but could exclude
o Given requirement of showing particularized harm, why do procedural claims ever get standing?
o could say denial of procedural rights increases risk of unfavorable outcome but cases don’t say this
o what matters is independent right to participate
 hard case is SCRAP (ICC didn’t file env. impact statement – problem of how rates affect you and at most changing risk) but NEPA says anyone aggrieved has right to file suit
 Lujan – proc. violation (failure to consult) so harder to demonstrate standing and connect with injury
o SC doesn’t seem to be harder on procedural claims
o Doctrine is confusing b/c can decide cases on other grounds
o Lujan v. Nat’l Wildlife Federation (1990): Challenging withdrawal of land from environmental program – no standing b/c need PARTICULARIZED interests in parcels
 could have decided on finality b/c no final action and ripeness b/c need to look at particularly hearings and actions

Are allegations too speculative?
(BUT this sounds like ripeness)
NO YES
SCRAP (1973) – p. 1050: GW law students sue ICC for increasing rates to carry recyclables

Rates go up on recyclable materials  people use non-recyclable materials  materials discarded in D.C. area  students offended by trash Simm v. EKWRO (1976) – p. 1053: IRS changed regulation from requirement that hospitals provide all the charity you can afford to req that emergency rooms be open

court said too speculative that hospitals will provide less care

Japan Whaling – people who like to watch whales sue Commerce Dept. for failure to classify Japan on list of countries acting to detriment of whales; claim if we do that, Japan will respond better and will help whales Warth v. Seldin (1975) – inability of low income people to reside in community could not be shown to be remedied by injunction against restrictive zoning

Duke Power –standing based on plants’ ability to attract financing b/c of liability limitation in event of catastrophic nuclear accident Linda R.S. – P wants agency to enforce child support criminal statute; no standing b/c can’t show redressability (if in jail less likely to send money)

Could have resolved on reviewability grounds (inaction)
Allen v. Wright – parents of black children challenge IRS for not denying tax exempt status to racially discriminatory schools

Also inaction case

-JM – could say injury is increased risk of unfavorable outcomes and b/c statute is trying to protect me from unfavorable outcomes I have injury – BUT SC doesn’t buy that
But this basically eliminates standing

-If you ask standing ? seriously in Bakke likely to decide he has none b/c only small mathematical possibility affirmative action policy why Bakke was excluded

Varieties of Regulatory Standards
o managerial regulations – heterogeneity of regulated parties; non-observable outputs (e.g., inputs – e.g., 1 teacher per 20 students)
o almost never have rights
o design standards – non-observable outputs, but homogeneity of parties (e.g., you must apply best available technology)
o almost always have rights
o performance standards – observable outputs (e.g., measure parts per billion of chemical)
o sometimes have rights
o used in State Farm – said need restraints – but could have had design standard of requiring airbags – idea is agency shouldn’t be in business of designing technologies