Judicial Review
What are the two main categories of challenges to agency action?
(1) Questions of fact and (2) Questions of law.
What is required under the substantial evidence standard?
That the agency’s factual findings are supported by relevant evidence a reasonable person could accept as adequate.
Congress passes a law stating that “no compensation shall be paid for damages caused by any park ranger, forest warden, or other environmental protection officer.”
Samantha is a hiker who claims that a city sanitation officer negligently damaged her camping gear while cleaning a public park. She files a lawsuit seeking compensation.
Can Samantha bring her suit? What canon(s) of construction might she invoke to support her claim?
How might the city defend the exclusion?
Under ejusdem generis, general terms are limited to the same kind as listed specifics. Courts also consider ordinary meaning and context.
Samantha: Argues that “other environmental protection officer” should be limited to roles like park rangers and forest wardens (natural resource protection). A sanitation officer, focused on urban waste, is different and outside the statute’s scope.
City: Argues ordinary meaning includes sanitation officers because they protect the environment. Points to the broad wording as showing legislative intent to cover a wide range of roles.
A federal agency terminates an individual’s welfare benefits upon learning that the individual is no longer eligible to receive benefits. The individual is not provided with the right to a hearing.
Did the federal agency violate due process?
Yes, remember that welfare benefits are considered property that is protected by due process.
An agency must provide the right to a hearing when depriving an individual of property that is protected by due process.
The Equal Employment Opportunity Commission (EEOC) issues a guidance document (non-binding) interpreting a statute to cover certain gig workers. A company challenges the interpretation in court.
How much weight does the court give EEOC’s guidance?
Skidmore Deference: Courts give respect proportional to persuasiveness, consistency, thoroughness, and expertise.
What standard of review applies to factual determinations in informal procedures?
Arbitrary and Capricious:
Court ensures the agency has a rational basis and considered relevant factors.
What was Chevron deference, and what is its current status?
Chevron required courts to defer to reasonable agency interpretations of ambiguous statutes, but it was overruled in Loper Bright (2024); courts now apply de novo review.
The Clean Water Act directs the Environmental Protection Agency to set “standards adequate to protect aquatic life.” The EPA issues a rule banning all fishing in rivers with high pollution levels. A fishing company sues, claiming the EPA exceeded its authority.
Is the EPA’s rule valid under the statute?
What interpretive arguments could each side raise?
Agencies must act within the scope of their delegated authority. Courts use textual analysis and may apply the Major Questions Doctrine when agency action has broad economic/political significance.
Application:
EPA: Argues that banning fishing is a standard that directly protects aquatic life, fitting the statute’s purpose. Points to broad language (“standards adequate”) supporting flexibility.
Fishing Company: Counters that the statute is about setting environmental quality standards, not economic bans. May invoke Major Questions Doctrine, arguing that Congress would have spoken clearly if it intended to give EPA power to shut down entire industries.
Conclusion:
If the court finds the fishing ban too far afield from traditional pollution standards—or a major question without clear authorization—the company likely prevails.
The Wage and Hour Division (WHD) of the Department of Labor was responsible for enforcing labor laws pertaining to minimum wage, overtime, and child labor. The WHD issued a guidebook with rules concerning hiring and promotion of WHD attorneys. The guidebook stated that only attorneys with significant experience litigating wage-theft cases were eligible to be promoted to supervisory positions. The WHD then issued a memorandum explaining its interpretation of the phrase "significant experience."
For which of the documents, if either, was WHD required to use notice-and-comment rulemaking?
Neither document bc guidebooks are non-binding and the memo is an IR not a substantive rule
The Occupational Safety and Health Administration (OSHA) enforces a regulation requiring “adequate protective equipment” for workers handling chemicals. OSHA interprets this to require full hazmat suits for a new chemical. An employer challenges, arguing this goes beyond the reg’s text.
What deference (if any) does the court give OSHA’s interpretation?
Auer/Kisor Deference: Interpretation of agency’s own ambiguous regulations; applies if the reg is ambiguous and the interpretation is reasonable, authoritative, and within expertise
What standard of review applies to factual determinations in formal adjudication/rulemaking?
Substantial Evidence standard:
Requires reasonable evidence supporting the agency’s findings.
If an agency issues a policy statement with informal procedures, what deference applies?
Skidmore deference — only persuasive weight, no binding effect.
A criminal statute penalizes the destruction of “any record, document, or tangible object” to obstruct an investigation. A company executive destroys a prototype device (not a document) during an SEC probe. He is prosecuted and challenges whether the statute applies.
Should the prototype count as a “tangible object” under the statute?
What interpretive tools apply
Courts typically start with ordinary meaning, but may apply noscitur a sociis or ejusdem generis if a list of terms suggests a narrower scope.
Application:
Prosecution: Argues “tangible object” has a broad, ordinary meaning—any physical thing, including a prototype.
Defendant: Invokes noscitur a sociis, noting “record” and “document” suggest the statute is about informational objects, not physical items unrelated to documentation.
Conclusion:
If the court applies a broad, plain-text approach, the government wins; if it narrows meaning based on context, the defendant has the advantage.
A federal law stated that individuals seeking federal disability benefits had to first make an application. The law further stated that an individual who was wrongfully denied benefits initially was entitled to retroactive benefits, dating back to when the individual first applied. The agency in charge of disability had promulgated a rule interpreting the federal law to require a written application.
On June 1, a woman went to an agency office where she told an agency employee that she was applying for disability benefits. The employee informed the woman that her condition did not qualify for disability benefits. The woman left the office without filing a written application for benefits. The woman later learned that she was eligible for disability benefits and filed a written application, which was approved. The woman sued, seeking retroactive benefits dating back to June 1st. The court ruled against the woman.
What explantation would best support the court's decision?
The agency had promulgated a rule interpreting the federal law to require a written application.
Agencies are legally bound by their own rules, but generally not by their employees' statements or actions. United States v. Nixon, 418 U.S. 683 (1974)
Here, the woman orally applied for disability benefits on June 1. Although an agency employee erroneously told the woman that she was not eligible for benefits, this would not, by itself, prevent the woman from receiving retroactive benefits to that date, because a federal law stated that retroactive benefits were available to the date when an individual first applied. Since, the agency had promulgated a rule interpreting the federal law to require a written application, the woman's oral application for benefits on June 1 would not qualify as an application. The rule is just as binding on the agency as a federal law. Therefore, the woman would be entitled to benefits only from the date of her first written application.
The Consumer Product Safety Commission (CPSC) proposes a rule to ban lead paint in children’s toys. The notice explains the health risks of lead and provides detailed scientific studies. After the comment period, the CPSC expands the final rule to ban all paints containing any heavy metals, not just lead.
A toy manufacturer sues, arguing the rule is invalid because the agency failed to provide proper notice.
Is the final rule procedurally valid?
Rule: Under the APA and cases like Chocolate Manufacturers, a final rule must be a logical outgrowth of the proposed rule. The proposal must give fair notice of what changes are under consideration, allowing meaningful public comment.
Application:
Toy Manufacturer’s Argument:
The proposal was limited to lead paint; banning all heavy metals (e.g., mercury, cadmium) is a different category of regulation.
The public and industry had no reason to anticipate the broader ban and thus no fair chance to comment on it.
The change is not a logical outgrowth because it introduces new subject matter not reasonably foreseeable from the proposal.
CPSC’s Counterarguments:
The rule’s purpose was to protect children from toxic substances in paint; heavy metals share similar health risks and concerns.
Public comments raised concerns about other toxic metals, which signaled to stakeholders that the agency might broaden the rule.
The ban on heavy metals is a natural extension of the original proposal and thus a logical outgrowth.
Conclusion:
The outcome hinges on whether banning all heavy metals was reasonably foreseeable based on the proposed focus on lead. If not, the court may find a procedural violation and require the agency to reopen the comment process.
How do courts review constitutional issues in administrative law?
De Novo — courts give no deference and independently decide legal issues.
What deference applies to an agency’s interpretation of its own regulations?
Auer Deference (for now) — deference if regulation is ambiguous and interpretation is reasonable, authoritative, and within expertise
A federal education law provides grants to “public high schools established by the state.” A new charter school, created by a private nonprofit but funded by the state, applies for a grant and is denied. The school sues, arguing it qualifies.
How should the statute be interpreted?
What canons or policy considerations apply?
Rule:
Interpretations hinge on textual meaning and may consider legislative purpose if ambiguity exists.
Application:
Charter School: Argues that it is a public school because it is funded by the state and serves the public, fitting the broader purpose of the statute (expanding education access).
State: Argues the plain text (“established by the state”) excludes schools created by private entities, even if publicly funded. Relies on a strict textual reading.
Conclusion:
Outcome depends on whether the court emphasizes literal text (favoring the state) or statutory purpose and function (favoring the charter school).
The Department of Transportation proposes a rule requiring all trucks to install rear safety lights. After comments, the agency finalizes a rule requiring both rear and side safety lights.
A trucking association sues, arguing the side light requirement is invalid because it was not in the proposed rule. Will they prevail?
Issue: Was the final rule a logical outgrowth of the proposed rule?
Rule: A final rule must be a logical outgrowth of the proposal; it must give fair notice of possible changes (Chocolate Manufacturers).
Application: The side lights requirement is related to vehicle safety and might be expected as part of improving rear lighting; however, if the proposal never mentioned side lights, the new rule might be a surprise.
Conclusion: Likely depends on whether side lights were reasonably foreseeable from the proposal. If not mentioned at all, the court may rule for the trucking association.
The Federal Communications Commission (FCC) is required by statute to process license renewal applications within 12 months. TechCo files a renewal application. 3 years later, it’s still pending. TechCo sues for unreasonable delay under the APA.
Issue: Has the FCC’s delay become unreasonable under the APA?
Rule (TRAC factors): Courts evaluate:
Statutory timetable.
Agency’s competing priorities.
Nature and extent of interests at stake.
Effect of expediting one case on others.
Need for caution in judicial interference.
Application:
Factor 1: Statute says 12 months → already 3x the limit.
Factor 2: FCC may argue high caseload, resource limits.
Factor 3: TechCo’s business relies on license → strong private interest.
Factor 4: Expediting may impact other cases, but statutory deadline favors TechCo.
Conclusion:
The long delay beyond the statutory deadline likely weighs heavily in TechCo’s favor; court may find the delay unreasonable and order agency action.
What must courts ensure when reviewing under the arbitrary and capricious standard?
That the agency considered relevant factors and gave a rational explanation for its decision
What is the key test for when Auer deference applies?
The regulation is clear, and the agency’s interpretation is reasonable, authoritative, and within its expertise.
A federal statute imposes penalties on anyone who “operates a vehicle or other motorized equipment on public land without proper authorization.”
Emily is cited after riding her electric bicycle (which has a motor but can also be pedaled manually) on a public trail without a permit. She challenges the penalty, arguing that the statute doesn’t cover electric bikes.
Does the statute apply to Emily’s e-bike?
What arguments support each side?
Rule:
Ordinary Meaning: Courts start with the plain meaning of the statute’s terms at the time of enactment.
Ejusdem Generis/Noscitur a Sociis: If a general term follows specific ones, it’s limited by the nature of the specifics.
Canon Against Absurdity: Courts avoid interpretations that yield absurd results.
Legislative Purpose: Courts may consider the purpose of the statute if ambiguity exists.
Analysis
Emily’s Argument:
Ordinary Meaning: “Vehicle” generally brings to mind cars, trucks, and larger machinery, not a bicycle, even if motorized.
Ejusdem Generis: If “vehicle” is interpreted narrowly (like cars/trucks), then “other motorized equipment” should cover similar large machines, not small devices like e-bikes.
Purpose: The statute’s goal is likely to prevent environmental harm from large vehicles; an e-bike’s impact is minimal.
Absurdity: Including e-bikes could make even motorized scooters or kids’ toys illegal, which seems overbroad.
Government’s Counterarguments:
Ordinary Meaning: An e-bike has a motor and is used for transportation—both fitting the plain language of “motorized equipment.”
Textual Breadth: Congress used broad language (“other motorized equipment”) to cover evolving technologies.
Environmental Concerns: Even small motorized equipment can cause harm or conflict with trail use, justifying regulation.
Policy Question: If e-bikes should be excluded, that’s a job for Congress, not the courts.
Conclusion: The case turns on whether the court favors a narrow reading (Emily) or a broad, plain-text approach (government). If the statute is seen as targeting larger, more disruptive vehicles, Emily may win. If the court applies the ordinary meaning broadly and emphasizes textual clarity, the government likely prevails.
The State Housing Authority provides subsidized housing vouchers. Maria receives a voucher but is notified it will be terminated immediately due to suspected fraud. The agency sends a letter outlining the reason and allows Maria to submit written explanations but does not offer an in-person hearing before termination. Maria sues, arguing she was denied procedural due process.
Was the process sufficient?
Rule (Mathews Test):
1️⃣ Private interest affected.
2️⃣ Risk of erroneous deprivation and value of more procedure.
3️⃣ Government interest (efficiency, cost, administrative burden).
Application:
1️⃣ Maria’s interest in housing benefits is substantial—it affects her basic shelter and well-being.
2️⃣ The agency allowed written explanations but no hearing; fraud cases often involve factual disputes and credibility issues, so a live hearing could reduce error risk.
3️⃣ The government’s interest is avoiding fraud and administrative burdens. Live hearings are more resource-intensive.
Conclusion:
A court might find that because housing loss is serious and factual disputes require credibility assessments, a live hearing before termination is necessary. Maria’s claim has strength under Mathews.
You are the general counsel for a major biotech company. Your company recently applied for EPA approval of a new pesticide. After what became (at least in your view) a somewhat politicized process, EPA denied the application. EPA gave a series of reasons for its denial, which your attorneys and scientists have now spent several days reviewing. Their conclusions are as follows, are they arbitrary and capracious:
A) This information does not provide a strong basis for an arbitrary-and-capricious claim. If there are a few studies in favor of agency then agency decision will win. As long as some evidence and the agency provides reason
B) This information provides a strong basis for an arbitrary-and-capricious claim. Includes things congress did not intend to