Script_M09_Scope of Judicial Review for Adjudication Video JD Law Administrative Law

Today we move into our next module, examining adjudication and as we mentioned previously, there are three large sections of administrative law, and you should conceptually be able to always locate where you are in the material. For the first section of administrative law we addressed was rulemaking. We learned about the different kinds of rulemaking. Now we are in the second section of Administrative Law and we're deep into it, in fact we’re past the middle of the course, getting on toward the end, we're now looking at the question of adjudication. Now today's class looks at the scope of judicial review for adjudication. As you recall within adjudication there are different types and yet notwithstanding how those different adjudications take place and what those procedures are depending on whether it’s a formal adjudication conducted pursuant to 554, 556 and 557or an informal adjudication conducted pursuant to

555. We have certain ways that the court under the administrative procedure act, reviews the way that adjudication took place and in terms of going over or examining that review, we begin that with this lecture.

So as you learn previously and as you recall we were learning about rulemaking, we learned that 706 establishes what the scope of the courts review of an agency rulemaking is. Well now that we are looking at the way judicial review relates to agency adjudications, we learn that section 706 of the APA does double duty, it both gives the courts direction on how they're supposed to review agencies rulemaking, but it also gives courts direction on how they're supposed to review agencies adjudication. So the same three primary standards of review, used by courts to address challenges to agency rulemaking, are also used by courts to address challenges to agency adjudication. They are the arbitrary and capricious standard, the standard of substantial evidence, and the trial de novo. The same standards that we examined under rulemaking in terms of the way the court review an agency’s rulemaking process for adequacy under the APA, we see also apply to the courts review of an agency’s adjudication for adequacy under the APA, coming from the exact same provision of the act.

So as we go back to 706, we see that under 706(2)(A), the court is directed to hold unlawful and to set aside any agency finding or conclusion or action that was arbitrary and capricious. And so the arbitrary and capricious standard we see at 706(2)(A), is one standard that guides the court to overturn any agency decision that is found to be arbitrary and capricious.

Then when we look to 706(2)(E), we see that reviewing courts are also directed to hold unlawful and set aside any agency actions, findings, and conclusions that are found to be unsupported by substantial evidence, as we said previously.

Finally at 706(2)(F) the same directives occur with regards to the agency holding unlawful and setting aside, agencies actions as well as findings and conclusions, that are unwarranted by the facts. So to the extent the facts are subject to trial de novo by the reviewing court. So, in another words, when the factual

record, as we said previously, is so poorly established within the agencies proceedings, that the reviewing court has to gather its own facts, that is the trial de novo standard and when that has to happen then the agency's findings are set aside.

Now we want to say something a little more about the substantial evidence standard and the arbitrary and capricious standard. These are the two most commonly applied standards by reviewing courts and arbitrary and capricious standard is the most heavily applied standard, and substantial evidence would be next. We will talk about the arbitrary and capricious standard after we finish this discussion on substantial evidence. So what is the substantial evidence standard? So as we’ve said previously with regards to a formal rulemaking process, the court has to find that the on the record rulemaking is supported by substantial evidence. In this case we are not talking about formal making we’re talking about formal adjudication. Well, the same standard applies to formal adjudication's that apply to formal rulemaking that means that the factual findings that the agency develops in a formal adjudication have to be supported by substantial evidence on the totality of the record. That means that anything that the Administrative Law Judge or the person presiding over the adjudication finds as a fact, has to be supported by substantial evidence. When courts fine that an agency's factual findings in a formal adjudication are supported by substantial evidence and the courts will defer-defer-DEFER to those factual findings. Even at the court finds or decides within itself, that it would not have made the same factual findings based in the record they will uphold the agency's factual findings, as long as they have an adequate support in the record. So that means that when the court reviews the work that the agency has done governing and adjudication, an agency comes to certain factual determinations based on the transcripts, the evidence that submitted, the testimony that's been received, then the court says, well we may not of made the same factual finding that the agency has made with regards to the consequences of this evidence, but as long as we find that there is substantial evidence in the record to support the factual conclusion that the agency has drawn.

We will uphold it by saying that it is supported by substantial evidence.

Now the next standard which is the most commonly applied standard in all formal adjudications is arbitrary and capricious standard. Let me back up, I said in all formal adjudications, I should've said, is the most commonly applied standards in courts review of agency adjudications, that's what I meant to say.

And so arbitrary and capricious review of agency adjudications, is what's used whenever there's an informal adjudication that the courts have undergone and when there’s an informal adjudication, 706 directs the court to use the arbitrary and capricious standard to make sure that the agency's findings can be upheld. Now some courts have argued that the arbitrary and capricious standard is really the same as the substantial evidence standard, but one way to really best understand it is the arbitrary and capricious standard means that there has to be a rational basis between what the agency ultimately finds, and the conclusions that it draws, and the evidence in the record. So you remember that whenever an adjudication occurs, there has to be a findings of fact and conclusions of law, which are issued by the person presiding over that adjudication. And so you also recall that there is an administrative record that is created associated with any kind of agency rulemaking. The administrative record consists of all the evidence taken all of the data provided, all of the testimony received in that rulemaking process. Well the same applies to agency adjudication. Whenever there is an agency adjudication, there is an administrative record that is created. That administrative record consists of all the testimony that is provided, all the evidence that's received, all of the exhibits that are submitted into evidence, all of that information that relates to the adjudication is provided by the agency and provided by the party or parties to the adjudication, makes up the administrative record. So where a court is reviewing the agencies adjudication it's going to look at all the information in that record and it's going to look at the findings of fact and conclusions of law that is issued by the decision-maker in the adjudication. And the arbitrary and capricious standard means, that the court will uphold the findings that the decision-maker and makes as long as the court can connect those findings of fact and conclusions, with evidence in the record, using a rational basis. So there's a rational relationship between the finding and conclusions and the evidence in the record then that meet the arbitrary and capricious standard.

The trial de novo standard basically is where we see that the courts are freed up from the obligation to accept the agency's findings that they have drawn and then the court itself acts like a trial court. It becomes a factfinder itself, it takes testimony, it sees evidence so when that happens the court then is empowered to substitute its judgment for any of the preceding findings or conclusions that the agency is made. So basically the trial de novo is a do over where the court basically acts like the agency adjudicator and makes a determination. The court does not have to overturn all of what the agency found, but it has the ability based on the inadequacy of information in the record, to shore up specific parts of the agency's findings, or information that it has in the record or it could just completely substitute its judgment for everything that the agency has done.

Class so in continuing our discussion, we now move into our discussion of the cases. So we have three cases that were part of this assigned reading, they are Torres versus Mukasey, Jackson versus The Veterans Administration and Citizens to Preserve Overton Park versus Volpe. We will have a very short discussion of Citizens to Preserve Overton Park versus Volpe, last, it goes to the arbitrary and capricious standard and we talked about it previously in an earlier lecture. But we begin the case discussion with Torres versus Mukasey and Jackson Versus Veterans Administration, and as I said previously, these cases I think are fairly straightforward so for those of you who feel comfortable with the cases based on what you’ve read and your understanding of them, you can stop listening now. For those of you want to hear on my synopsis and breakdown of what's important from the cases, just go ahead and keep listening so in the Torres versus Mukasey and Jackson Versus Veterans Administration cases, we basically have a similar issue going on and that issue is whether or not the evidence that's been collected and that's been provided in these adjudications, should be upheld by the court. In the Torres v. Mukasey case, we have a situation where an immigration judge is overseeing someone’s request for asylum and so as the judge is listening to the person give their testimony regarding the request for asylum, the judge begins to interject their own opinion and their own knowledge of the country into the discussion and testimony that's given. Further, as the judge continues to discuss the matter with the person making the application, the judge in the way, seems to almost cross-examine the witness. That's not the appropriate approach for asylum proceedings and so the court is very critical of how this immigration judge acted in these proceedings.

The court ultimately have to make a determination of whether or not the findings that the judge has found are adequate in light of the way the judges interjected himself into this entire process. The court will ultimately is uncomfortable with what the judge is done because the judge has acted in such a way, that the judges doubts of the witnesses credibility are not based on information in the record. They concluded ultimately that when the judge decided that the witness was not credible, it wasn't based on what they called specific cogged reasons that bear legitimate nexus to the findings. Accordingly they found that the judge’s decision to deny the petition for asylum and withholding the witness’ removal and protections under the convention against torture’ were not supported by substantial evidence. As a result they went ahead and vacated the order and remanded it for additional proceedings consistent with their opinion. So, in this sense they are finding that there wasn't substantial evidence in the record to support the judge's conclusion’s that the person applying for asylum was not credible. They said that was not sufficiently supported and directed because the judge spoke to what were alleged inconsistencies in the records or in the testimony that the court found was actually not in the record. The information that led to the inconsistencies was merely the fact that in some cases, the person had provided additional information in providing their oral testimony that was not included in the affidavit. The court found that the additional information that was given any oral testimony was not substantially different than what was given in the affidavit it was just a more specific and detailed. The court found then therefore that the decision by the immigration judge that the fact that this additional information was given at a level of detail that was absent from the affidavit, was not supported by evidence in the record with the judge found that made the witness not to be credible. So the court overturned it because it did not feel there was substantial evidence in the record to support it. IN other words, the court did not feel that there was a rational relationship or a reasonable determination by the judge to say the witness was not credible, simply because the oral testimony was more detailed than the affidavit. In the Jackson v. VA case, or Jackson v. Veterans Administration, here we see a person being brought up on charges of sex assault. And there were two specific incidences that would be considered by an administrative law judge that were now being reviewed by the court. In each of those instances, had something to do with a supervisor who was working with a woman who was a subordinate and that supervisor either asked for a kiss in one instance or actually physically kiss the person in another instance. In that case, the presiding officer over the matter found that there was not a preponderance of the evidence to withhold the finding that the supervisor had in fact acted inappropriately. The board overturned the decision of the adjudicator and found that there was a preponderance of evidence finding that the person had engaged in misconduct. So what we have going on here now is the court is reviewing both the initial findings by the person presiding over the initial adjudication and then the subsequent decisions by the board on appeal that are then overturning decisions of the original person who presided over the adjudication. So you basically have, within the agency, an appeals process that allows the original decision itself to be rejected by the agency, and that's exactly what happened. So we have three levels of review here and we're really opinion of the third level review which is the court and this federal Circuit Court is now deciding whether or not they're going to go along with what they felt the board decided in overturning initial conclusions of the overseeing or presiding officer, or the judge overseeing the initial administrative hearing, or they're going to go with the board's decision. So the court looks at both incidents to determine whether or not there could be substantial evidence in the record to support them and in both cases, these are formal proceedings that are going forward, so they are being held under substantial evidence test. And in doing so the court looks at them separately. The first instance where the person allegedly was involved in physically assaulting or being unburdened, kissing the person on the cheek. There were two persons who testified and said this event had occurred. The person who alleged she had been kissed on the cheek and I should be clear, I’m not sure it was the cheek and the person she was talking to on the phone who said she told me that she been kissed and then the person who denied that this event had happened. And so in that instance what occurred was we had three persons to testify, the original officer who was overseeing the adjudication decided that he felt that the person who was testifying and denied that this event occurred, was credible and the person who was testifying was not viewed as being credible, the one was making the allegation, because there was some inconsistency in her testimony as to when the event occurred between her and the person she was on the phone with. So the person who was overseeing adjudication made a determination that there's a lack of credibility because of the inconsistency in the testimony that's provided. And they found that the person who denied the event had occurred, in observing his demeanor found him to be credible. The court looks at this instance and this is an important matter for administrative law purposes, as obscure as it may seem, what it stands for in principle is the fact that when a person is an adjudicator in the first instance of fact finding they actually have the ability to make findings with regards to the demeanor of witnesses. They give them a basis to find the witness either is, or is not credible. There isn't anyone who has the ability, more or less, to second-guess their demeanor findings with regards to witnesses. So credibility that is based on an observation of the demeanor is something that is normally not going to be overturned. However, what we do find is credibility findings that are based on testimony that is provided, and that is recorded, and is part of the transcript, that actually can be overturned, because a reviewing agency, as occurring in this case with the Veterans Administration, or a reviewing court, has ability to look at the same testimony and decide that that is not an inconsistency that should lead to finding that someone is not credible. So in this case, what we learned is about the fact that when there is an adjudication that’s taking place in an agency level, when a person is making a finding with regard to demeanor, testimony that is normally something that there's a deference to that adjudicator. However when they're making findings with regards to testimonial evidence and finding inconsistency in the statements, there is no deference that they receive. So ultimately, the court found that with regards to the first instance, the board overturned the decision of the original adjudicator and found that there was misconduct in this case. The court in this case overturns the board saying there really isn't substantial evidence to support a finding of misconduct. The reason being is that there were only two people who were present the person who allegedly made the kiss and the person who alleged that is made was on the phone. The third person who testified who the person making the allegations of the kiss had occurred that they were talking to on the phone, was not present so they could actually not say whether or not a kiss had happened. They could only say that they were told the kiss had happened and so the court found that there wasn't any substantial evidence to support the board’s finding that that incident had occurred. With the next incidents however where the person who made the allegations of being kissed made further allegations that whenever she wanted to go out or leave early, the supervisor would say yes you can leave but you have to give me a kiss first. And she had a friend who came to pick her up one day, and that friend also testified that when she asked to leave early or her friend asked if the worker could leave early, she was told by the supervisor, only if you give me a kiss first and so because the court said there was corroborating testimony of two persons saying that this event had occurred, and it was a third person the one who the judge felt his demeanor suggested that he was credible, there was still a preponderance of the evidence because there were two people testified that it occurred and only one who denied it, defined that there was in fact, misconduct in that incidence by making those statements. So what we see here then is two things, one we see substantial evidence is being located and found by the reviewing court, because the substantial evidence test is a preponderance of the evidence test, the court says, and that there is a preponderance of the evidence to support a finding that this is that this is incident occurred about the supervisor asking for a kiss before the worker was able to leave. So we see that lesson about substantial evidence corresponding with the preponderance of the evidence. More importantly, we see the idea that there has to be a reasonable relationship between the evidence in the record and the finding. And in this instance there was a reasonable relationship for the board to overturn the original adjudicator. The original adjudicator said that he believed the demeanor evidence of the person who was alleged to have acted improperly and that person had claimed that this event had not occurred. But that original adjudicator had disregarded the testimony of the friend/witness who said she was told the same thing that the worker had. Therefore there were two witnesses who testified that this event had occurred, one who had not. That provided substantial evidence for an adjudicator to make a finding that in fact the event had occurred since there was evidence in the record to support it. So we see here how substantial evidence actually works in practice. So the next case is the Citizens to Preserve Overton Park versus Vole case. We talked about the case previously on the slide in a prior module, so the only thing I will say about that case, is it that case is important because it established how the arbitration and capricious standard today is being reviewed. And that basically means that whenever there is a case there has to be an adequate record that's developed and that adequate record has to be enough provide a rational basis to explain why the agency came to the conclusion it did, with regards to its decision. So the context of an adjudication, there has to be found that there was an adequate record to support the decision that the agency did in fact act properly making its ruling and in the Citizens to Preserve Overton Park ,what occurred was the agency didn't have a developed record and the court said we're going to have to call in the administrator of the agency now, to come and testify unless you give us a record to explain what administrator made there, what was the basis of administrative decision. And that led to the idea that a decision has to be rationally related to the evidence in the record, to satisfy the arbitrary and capricious standard. And that's what we should really get out of the Citizens to Preserve Overton Park v. Volpe. Okay, that ends our discussion of the scope of review with regards to adjudications and judicial review. We will talk to you when we move into the next module.

Script_M10_Judicial Review=Deference Revisited Video JD Law Administrative Law

Good afternoon, good morning, good evening, I'm exactly not sure what time of the day it is that you all are watching this But welcome to our next lecture in administrative law. Now in our last class we were examining the judicial review of adjudication and now we come to judicial review but now it's not necessarily exclusively considering judicial review of adjudication, it’s looking at judicial review more broadly, and so we reconsidering the question of deference that we discussed in our last class, and as we reconsider deference, not in our last class, but a little while ago, and as we reconsider deference, we are examining now how does deference work when it's either adjudication or rulemaking, it's not clear what kind of agency action has to been undertaken. We’re going to learn what kind of agency actions do qualify for deference.

So in doing so, we begin with considering how administrative implementation of statutes get deference, so you'll recall Chevron deference is what's applied by the court, when an agency is interpreting what is otherwise an ambiguous legislative directive and its agencies have been given certain level of authority to make that kind of determination. And so, the court looks at the agency, looks at the level of authority that it has, and then decides whether or not deference is appropriate. So when you look at the slide, you’ll see, one of the things that's part of this process is the court does make a determination then discriminates between agencies that have not been granted the authority to create regulations or to hold formal adjudications in their enabling legislation from those that do. Agencies that have been given more authority in the legislation are much more likely to be found worthy of deference by the court. An agency that lacks the authority to promulgate regulations or to hold formal adjudications or formal rulemaking is an agency that normally is not going to be likely to get deference from the court. The reason being is that those agencies have not been implicitly empowered by Congress or delegated authority by Congress to create law and because they haven't been implicitly delegated that authority by Congress to create the law, the courts does not provide them deference when they act in a way that is lawmaking. So to determine whether or not an agency has that kind of delegation from the Congress, we go back to what I just mentioned a second ago, in this slide. And that is that looking at what kind of power Congress has given them in the enabling legislation, so they look to see do they have the power to engage in adjudications, do they have the power to conduct notice and comment rulemaking, is there any other language given in the enabling legislation that reflects a congressional intent to allow this agency to make laws. When it's not found that kind of authority has been given to the agency then as we’ve said the court does not look to provide deference.

So what happens then when the agency is not engaged necessarily in a formal rulemaking or a formal adjudication and it wants to interpret its own regulations? So that means the agency has gone through a rulemaking process and it is now going to interpret its own rule, so when an agency promulgates a rule, that one becomes a regulation, and that means if it's a rule that guides other parties who are nongovernmental actors in the way they conduct themselves, that rule is a regulation. So when an agency is interpreting its own regulation, there is a level of deference that the court will give that agency and that level of deference is one that establishes that the court will normally uphold the agency's decision unless it finds that the agency's decision is plainly erroneous or otherwise consistent with the

regulations that the agency had passed previously. So one level of deference we are now encountering, beyond what we learned about with Chevron, is that agencies have not only deference when they interpret the statute, or statute that is ambiguous, agencies also have some deference when they are interpreting a regulation that they have themselves promulgated, that is itself ambiguous in some ways. Note, even though the slide doesn't reflect that, the courts have found that if it is no ambiguity in the regulation, the court is not going to deferred to the agency's interpretation of its regulation, it only does so as it does with the idea of Chevron deference to agencies interpretations of statutes, it only provides deference when there is an ambiguity.

So we can see two cases that kind of point out how this deference works when an agency is interpreting its own regulations that is the Bowles versus Seminole Rock and Sand case and the Auer versus Robbins case, and in both of those cases, the court held that when an agency is going through a process of interpreting its own regulation, it is going to find that agency's interpretation should have a weight that controls the day, and normally the court will then defer to that agencies interpretation, unless they find it is inconsistent with the regulations or is plainly erroneous. As we said previously, however, that agency regulation itself has to be ambiguous or the court will not refer to an agency's interpretation if they feel the regulation itself is clear and lacks ambiguity.

The kind of deference this is, is what we call Seminole Rock or Auer deference. Today, Seminole Rock being the older case, Auer is the most frequent title that's used to describe this kind of deference. And you can find this kind of deference in a wide range of agency publications or pronouncements. So an agency can adopt an interpretation of its regulations in memos, can adopt them in briefs, they can adopt them in letters, that means that the court will defer to an agency position in a memo, or in a brief, or even a letter, when that interpretation is an interpretation of the agency's own regulations that it itself ambiguous.

So in thinking about deference, there is one note that is worth paying attention to, in a case a little over a decade ago, and that is in the Gonzales versus Oregon case, the court said that when an agency's regulation doesn't actually do anything to interpret the statute but instead merely reflects the statutory language. So the agency has the authority to promulgate a regulation, to implement the rules about automotive emissions, and when the statute defines the type of vehicles, it provides a list that is not exhausted. So the agency can go in and identify other kinds of vehicles beyond those that have been provided in the statute by the Congress and the agency rather than doing that, merely takes the exact same definition used in the congressional legislation and puts that into its regulation. When that happens, an agency's interpretation of that regulation will not receive the Auer or Seminole Rock deference. That's because it’s seen as parroting the statute and therefore the agency doesn't have or has not acted in a way to use the ambiguity in the statute to develop a certain level of expertise and experience using its expertise and experience to further define the meaning of certain terms or further define the approach to deal with things that are otherwise are not made clear in the legislation. So when that happens Supreme Court says there's no deference that the agency is entitled to because the agency hasn't done the work, so to speak, to apply expertise and experience to interpret the statute, the agency is merely parroted the statute, so therefore when an agency comes up with a more informal interpretation of the meaning of the statute by just interpreting the regulations that parrot the statute, the court will not give them deference. A quick note I just want to highlight before we move on, and that is that we think about the agencies deference that they receive in particular administrative actions, like when they're issuing rules or when they are issuing orders, it's not mutually exclusive that the court will say oh this rule or this order that the agency's issued is entitled to Chevron deference or is entitled to Aeur deference, is entitled to Skidmore deference as mentioned in your reading. It could be that in one case, the court will apply multiple types of deference, they can apply Chevron and Skidmore, they can apply Chevron and Auer or they can apply Auer and Skidmore, they could even apply all three different types of the deference depending on the specific details of the agency's actions and activity. So you just want to note, you shouldn’t look at cases and say oh either this thing that the agency done is going to get one kind of deference or another, it depends on the agency's activities whether or not there might be multiple forms of deference. It could be one part of a rule that an agency promulgates or an order that the agency promulgates, is entitled to Chevron deference and another section of the same rule or the same order, may be entitled to a lesser level of deference because of the way it was promulgated, because of the language that it uses, because of the experience that the agency has working with it, because of the expertise that the agency applied in developing it. Those things can vary with in a particular rule or order and therefore, the level of deference also vary.

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The second note I want to draw your attention to is that agencies have the authority to take a turn. So they can change course so to speak from previous interpretations that they've had of statutes or regulations, and when that happens, the agency can still get deference either Chevron or Aeur deference, when an agency’s interpretation, is a new interpretation over old approaches, they can still get deference in those cases because the court may feel that even though there's been a change, the change reflects agency experience and/or expertise.

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So what are the things it's worth remembering the Chevron case was that the court basically said that when the agency promulgates or develops its interpretation of the statute, it needs merely to be reasonable, and if the interpretation of an ambiguous part of the statute is reasonable, then the court will differ. In some cases however if an agency is making a switch from a former interpretation of the statute, and it decides to use a new interpretation, the court may require the agency to explain why they're rejecting the former interpretation, in order to meet the reasonableness standard. So sometimes it's just a matter of political changes that happen in an administration, so one president interprets, directs the agency to interpret the statue one way, another president comes in and directs the agency or appoints a new director who interprets the statute in another way, it's not always enough just to recognize it's been a change of administration, the court will actually look for the agency to explain why a new interpretation of the statute is appropriate, before it decides that the agency's new interpretation is reasonable and that it is worthy of deference.

Alright so before we wrap up, we come to now the cases that are in the reading for this week, there are three cases for this particular section on a judicial review and judicial deference revisited. And also for those of you who have already read these cases and feel comfortable with their meaning, feel free to go ahead and wrap up the lecture here and then pick up in the next module. We will talk to you all then. And for those of you who are interested in hearing a few words from me on these three cases and just a quick and brief summary of what they stand for, just hang on and we'll go directly to our first case. In our first case Christiansen versus Harris County, we are dealing with the same issue we are in the subsequent two cases, the United States versus Mead Corporation and Barnhart versus Walton and that is what level of deference should be given to the agencies determination? Looking at this from an administrative law standpoint, the basic question in each of these cases is what deference should the court give the agency’s determination. In the first case, the Department of Labor had offered an opinion letter about what compensation rules were required for people who had what's called comp time, comp time is time when people work and you're supposed to get time off for the additional time they work, rather than getting overtime, and so the question that came up was about whether or not an employer could force or require someone to use their comp time, and so the department of labor issued an opinion letter saying, yes they can require someone to use the comp time. The court however looked at the agency’s regulations and felt that the agency’s regulations were ambiguous. It wasn't clear on the face of the regulations that someone had to use comp time, it was clear that someone could be compelled to use comp time, the regulations were ambiguous, the court felt and it felt that under the terms this matter was really open based on those terms, a person could either use comp time or not use comp time, but it wasn't clear that the agency had prohibited an employer from requiring someone to use comp time. So the court held that there was no deference required to this agency's opinion letter interpreting its own regulations. The countervailing argument was that this should've at least been an Auer deference because as we saw per earlier in this lecture, the agency was interpreting its own regulations and when agencies interpret their own regulations, they're supposed to receive Aeur deference. The court said, yes, agencies do get Aeur deference for interpreting their regulations, when the regulations are ambiguous on a question. The court said here the regulation was not ambiguous it did not prohibit employers from requiring that their employees use their comp time. They felt that employers had leeway under the clean plain meaning of the regulation and therefore the agency's interpretation that employers were prohibited, they felt, was contrary to what the express meeting of the regulation was. Therefore they denied them the Auer/Seminole Rock deference. They did however say that the opinion letter from the Department of Labor on the question was entitled to Skidmore v. Swift deference and Skidmore v. Swift deference as you're reading indicates, is merely a different standard that says we will defer, if you are able to persuade us. So the court basically says that the agency has the power of persuasion, if their argument is persuasive to the court and the court will differ. In this case the court did not find the Department of Labor’s argument persuasive, it did not differ and it ruled against the agency, saying that this employer, this local county, did have the authority to demand that their employees use their comp time. The next case in United States v. Mead, we were dealing with a question about customs. United States customs service and the classification of different kinds of materials that were in the import/export market, in this case there was a question about whether these Mead Corporation products were diaries or notebooks and those kinds of classifications were of the sort the court felt, that the customer service should have the regular ability to make determinations about. However if they had some problem giving them Chevron deference which was what the customs service was asking for and they felt it was inappropriate to give them Chevron deference because they issued literally of over 10,000 of these kind of classification rulings in a year and it felt no agency that's issuing that many classifications could be engaged in lawmaking in every case, particularly in light of the fact that they were coming from 46 different kinds of offices around the country. In this case, this ruling came from the headquarters office but that they said did not change the fact that they were issuing so many classifications to give them the force of law was itself troubling to the court, and they did not feel that this reflected an intention by Congress to make this lawmaking.

Nonetheless they did feel that these were in fact a reflection of the agency engaging in an interpretation in a policy statement and they highlighted how agencies interpretations that are reflected in policy statements or other very informal kind of engagements, were in fact entitled to again, Skidmore deference, and so the tariff classification ruling, they said was, entitled to Skidmore deference and in fact that deference should have been afforded to the custom service by the lower court. So the court remanded it to the lower court for them to make a determination based on Skidmore deference whether

or not the court should defer to custom services decision about exactly what these products should be classified as, and so in that case, we can see that the custom service had a directive from the Congress to make these kinds of classifications but the court felt that these were less than lawmaking because of the large number of them that were done and the fact that the custom service has ability to modify or revoke them without any prior notice. So that certainly sounded a lot less like lawmaking which is what happens when an agency goes through a formal rulemaking or informal rulemaking process, goes to notice and comment, promulgates a rule, or goes to a formal adjudication and it has to follow quite a few rules to do so. They thought it was a lot less like lawmaking and it was a lot more like an agency interpretation through a policy statement that was entitled to Skidmore differences. The third case is the Barnhart v. Walton case which is a very interesting case because in that case the agency was in fact engaged in the process of making an interpretation of a regulation that it had just in fact issued and arguably that it had in fact issued because of the litigation itself. The court said that didn't matter, what happened was there was an argument about what constituted a disability under the Social Security administration and the administration had a long-standing interpretation that said that the statute should be interpreted in a way that allows for a person to be excluded from disability, if they don't show that they have had both a disability that has lasted for 12 months or more and that impairment resulting from that disability that lasted 12 months or more as well. Because the agency had had a long-standing interpretation of the statute to say that both the impairment and the disability had the last 12 months or more, their application of this interpretation to this individual had one to last for 11 months and the other went to last for more than 12 months was being a challenged. The court felt that long-standing interpretation entitled them to Chevron deference because they were interpreting the statute. As we said the agency had recently promulgated a regulation and that regulation had reflected the long standing interpretation that the impairment and the disability both had the last 12 months or more. So the court in that case, told or made the decision that Social Security Administration was entitled to Chevron deference and they provided some very important language that's kind of worth thinking about at the end of the case. They noted that the interstitial nature of the questions, the related expertise of the agency, the importance of the question to the administration the statute, the complexity of administration, and a careful consideration the agency is given the question for a long period of time, all indicates that Chevron provides the appropriate legal limbs through which to view the legality of the agency interpretation. And so they found interpretation lawful, giving the agency the benefit of Chevron deference, in the way they interpreted the statute, and that was very important because they demonstrated that in some cases an agency can get Chevron deference even when it hasn't gone through a formalize rulemaking process and when I say formalized I don't mean a formal rulemaking process but I mean a notice and comment rulemaking process even when a comment and notice rulemaking process has not been followed and no formal adjudication has taken place, in those cases, the court can still find that deference is appropriate. Now note the distinction here it's not that the agency lacked the ability to promulgate regulations, it’s that the agency had not used his authority to promulgate regulations. That's different than what we said at the beginning of the lecture when I noted that agencies are not likely to get deference when they've not been given the authority to promulgate regulations or rules through notice and comment processes. So in this case you had an agency that didn't have the authority to promulgate those rules and even to hold adjudications, but it just hadn't used that authority to promulgate the rules. In that case the court felt that their long-standing interpretation dealing with a complex issue was itself worthy of Chevron deference. Alright that covers these three cases and hopefully helps you get a better sense of the different levels of deference that a court may provide and under what circumstances you'll find those levels of deference are provided. We’ll talk to you soon.

Script_M11_ Standing Video JD Law Administrative Law

Hello class, we continue our exploration of judicial review and now we've moved out of our former examination of judicial review within the context of adjudication, or within the context of rulemaking, and we talk more broadly about judicial review. That means what has to happen before a person is able to challenge the decision of an agency in a Federal District Court. We talked about it before we talked about what is the APA require to challenge an agency undergoing a rulemaking. We talked about what does the APA require to challenge an agency undergoing adjudication. Then we talked a little bit about what is the approach that the court uses when is reviewing agencies adjudication decision. Then we talked about what is the courts approach when it is reviewing and agency’s interpretation of its regulations, or interpretations of policy statement, or interpretation of its regulations, and it interprets its regulations in different kinds of ways, it can interpret its regulations through adjudication, it can interpret its regulations through policy statements, it can interpret its regulations through other kinds of decision-making. And so we consider that, what is the level of deference that the court will provide an agency as it goes through that process. Today begins the question of what does it take to get the court to review an agency’s action. Period, end of story, it doesn't matter whether it was adjudication, it doesn't matter whether it was rulemaking, this is outside now the boundaries of the APA. We are now flying freely in the realm of the federal courts and as we are flying freely in the realm of the federal courts, the Constitution is going to dictate, in fact, how courts are going to receive persons who bring challenges. Now because the challenge is to administrative agency, we are going to find that the APA is going to sneak back in to create one additional requirement above what the Constitution does, in terms, of challenges to agency action. So we look at that probably in our next class and just introduce it in this lecture. So let's begin with standing.

So what's necessary, and many of you have already been exposed to standing, I expect in your common law class, so this should be a review. So if you're going to get standing, you’re going to have to show some basic things at the stage of pleading, that means that allegations that are filed when a person files at the trial court level, have to include, certain kinds of terms. And so one of the terms that have to be included in the allegation, is that a party has been injured in fact, that means that there will be an injury or there is a threatened injury at the time the case is filed. Now courts have shown that these injuries can be an esthetic, or they could be environmental, but they have they have to be experienced by the plaintiff themselves. And as long as they're experienced by the plaintiff, they can relate to the plaintiff’s esthetic view of nature or esthetic enjoyment of a river, or they can relate to harm to a forest, or harm to an animal species, as long as the person who is the plaintiff makes clear in her allegation, of how the heart of the forest, or how the harm to the species, is also going to be a harm to them.

Secondly, you have to say not only that the injury is an injury, in fact, but it also has to be an injury that is redressable by judicial action. That means you have to show that the harm that is caused, can be redressed by the courts. It doesn't it have to be completely fixed but it means the courts have the ability to provide some benefit to persons who were injured by the harm that is going to help to alleviate some of the consequences of the harm.

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Thirdly, it has to be shown that the injury that was suffered can be traced to the action that the person is complaining about. So from an administrative law standpoint, you're claiming that the agency an agency is promulgated, or the agency has failed to act in a certain way, and that failure to act in a certain way, is traceable to harm that you personally may have experienced in your life. If you can show that the injury or harm that you suffer can be traced back to an agency's action, or failure to act, then that is considered an action that is fairly traceable or an injury that is fairly traceable to a contested action.

Alright, the fourth aspect of standing that is particular to administrative law that I told you would sneak in there, is this whole idea of the zone of interest test. So any injury that is resulting from a governmental action has to show that it actually occurred within the zone of interest protected by the statute. That means that courts are going to examine the statutory language, that’s going to again be what kind of act, it’s going to come out of the enabling act, normally that is used to give an agency the authority to address a particular issue. Courts are going to examine that enabling legislation to look and see if the alleged injury was of a type of interest that is indicated in the statute and was intended to be protected by the statute, overall, or with any particular provision or section of the statute. And again, we are going to go more in-depth with examples of kinds of elements of standing include the zone of interest test when we talk about o9ur cases. But the important thing for you to pick up is that there are these requirements that there's an injury in fact, that it be an injury that is redressable by the courts action, that the injury be fairly traceable to the challenged action, and that the injury that occurred is within the zone of interest, and again the zone of interest goes not to the APA it's required by, but goes to the enabling legislation a person is complaining about. So if you're complaining that the Environmental Protection Agency has failed to promulgate regulations that they were required to promulgate and you want standing to sue the agency for failing to promulgate the regulations, which they were required to under the statute, you are going to have to show that you are within the zone of interest of the persons that Congress intended to protect when in the statute, they required that the agency promulgate those regulations. That’s what the zone of interest test is all about.

Now after the zone of interest test, the last thing that we need to look at to get a broad overview of standing, is the idea of associational standing. And associational standing is basically the concept that allows organizations to bring lawsuits. When you think about it, we know all the time, organizations are involved in bringing lawsuits. To use the environmental context, you can think of some of these big green organizations like Green Peace, or Earth Justice, or Natural Resources Defense Council, we’ve see some cases brought by them, and so these organizations have the ability to bring cases and get standing, because the court has a set of laws that allows organizations to base their standing challenge, on the actions and interests of their members. So the organization is able to show that if it's individual members would have standing and the interest that the organizations trying to protect, is germane to the organizations purpose then the organization is allowed to have standing as well. So that basically means if we would go with the Natural Resources Defense Council, we can say that the Natural Resources Defense Council is bringing a suit in order to challenge a determination by, let's see, the Forest Service, that a certain area that is going to be a clear-cut, should be clear-cut, then Natural Resources Defense Council, to get standing, not to win the case or to prove the merits but just to be able to represent their concern before the federal courts, just to be able to be a player, just to sit down at the table, just to get in the game, they have to show they have members who would have standing. So they have to show that they have members, for example, visit the area or the forest that is going to be clear-cut or members who are in the region of the area of the forest that is going to be clear-cut, and that that forest provides benefits that those members are going to lose if the clearcutting occurs. So they would bring literally, affidavits from those individual members making those claims and those will be provided at the point of pleading. Next the association, the Natural Resources Defense Council, in my hypothetical, would also have to show that the complaint that they are raising is consistent with their purpose. So they are an environmental protection based nonprofit organization and they try to preserve natural resources, so they would show that their purpose is to preserve natural resources, which includes but is not limited to, forests, parks, lakes, rivers, streams, mountains, mountain ranges, valleys, so they will be able to show that protecting this forest from being clear-cut would be germane to the organization's normal purposes. So associational standing is accessible to organizations because they show both their members would have standing and that the purpose that they're trying to accomplish through the litigation and interest

they’re trying to protect is germane to their purpose as an organization. Alright, that covers our overview of standing. Now there's another video talking about standing where we're going to dive in more deeply into this question of standing, we are going to look at some particular cases, we are going to flesh out more depth, each of these elements we've already exposed you to. I will talk to you in that lecture.

Script_M12_ Standing Part 2 Video JD Law Administrative Law

Welcome to Standing, Part 2, now we are examining judicial review and we're exploring, as the third aspect of administrative law, how judicial review functions, what is the set of activities that parties have to take in order to challenge administrative law actions in the United States federal courts. And one that we've established in our last session together was the fact that you have to obtain standing in order to get the court to allow you to represent your concern before them. And the standing requirement is a basic requirement of which the court is saying, hey, should you be the person or party or parties or organization who argues this case to us, standing says that only people who have a part in cases and controversies, should actually be able to appear before the court, standing fleshes that question out.

We see this in a set of elements that the court has established that are necessary to show standing and what that goes to is allegations, right, that means that at the time of the complaint the parties have to allege that certain things have occurred, and the first allegation as we established in our prior lecture, is that the party must allege that they have been injured in fact. If there is no injury, in fact, there is no basis to obtain standing. Now what does it mean to allege an injury in fact, alleging an injury in fact, means that you have to allege that there is either a threatened injury or an actual injury that has already occurred.

More specifically the court requires that the allegations establish that the challenged action will result in injury or has resulted in an injury that is concrete and particularized and actual or imminent. Now in establishing those requirements the court is saying they want injuries, or threats of injuries, that are concrete not abstract, and they have to be particularized to the persons who are requesting standing. Further they have to show that they are actually injuries that have taken place already, or that will imminently take place. The court rejects allegations that it views as being conjectural or hypothetical, that means that when you provide affidavits to the court to support the allegations in the complaint, those affidavits need to establish that there is an actual or threatened injury that is that has already occurred or will imminently occur and that that injury is one they can be specified as to the person who is filling out the affidavit, so that it is concrete and that it is particularized to the party who was making the challenge. So the allegations have to lay out these kinds of claims in order to establish an injury in fact. In the Lujan case, Lujan v. Defenders of Wildlife case that we'll talk about later, we'll see that this note applies because the allegation is being made is that there's a harm that you could argue is either environmental or aesthetic but the allegations have to go to how that harm relates to the plaintiff who is arguing that they have been injured in fact and so we will talk about that for those of you listen to discussion on Lujan.

The next requirement in standing and these aren’t in a set order by the court, but these are the three obligations, is that the injury is fairly traceable to the contested action, and what does that mean that the injury is fairly traceable, it basically means that you can show that the allegations that are made, establish that there is a causal connection between the injury and the conduct complained of. So this is administrative law standing, so we're talking about making an argument that there's a connection between the government agency action, which is being complained about and the injury which is being alleged.

So, you have to show that there is a causality or causation between the government action and the injury and that's what the fairly traceable element of standing is all about.

The third element is the element of redressability, and that means that parties have to allege, again, that the injury can be fixed or lease helped in some way by the court. So the allegation has to establish that it is likely, as opposed to speculative, that the injury will be helped by a favorable decision. Doesn't mean it has to be a complete cure, doesn't mean it has to be has to take away or make the injury as if it never happened, it just has to show or at least allege, that the court is likely to be able to provide redress if a favorable decision is issued.

The fourth thing goes to the zone of interest and we talked about zone of interest previously, and will have an entire lecture just on zone of interest, so I just mention it here passing again, it is the fourth element of standing, when the standing is based on a claim that there is a statutory based harm that persons are suffering. So if there's a statutory based harm, you have to show that you are in the zone of interest. That means if you are bringing a claim as it does in Lujan under the Endangered Species Act, or you’re bringing a claim under Internal Revenue Code, or you’re bringing a claim under the fair labor standards act, anytime you're bringing a claim under any of these pieces of legislation that enable and establish administrative agencies to act under their authority, then the person who is bringing the claim as a plaintiff or challenger to the governmental action, has to also allege that the harm they suffered is within the zone of interest that the statute intended to protect. So they have to show that they are the kind of person that Congress was looking at protecting, and they need to point to particular provisions within the statute when they make the claim that they should have standing that demonstrate that persons in similar situated to themselves, were intended to be protected by the Congress. So how do you think about making this kind of showing? You should think about it sort of like torts, making an argument that they are a foreseeable person in light of the language that Congress used in the statute. So you don't they don't have to show to legislative history that Congress directly at them in mind, they merely need to establish that based on the language of the statue it was foreseeable that they would be a party that would be affected by the law and that was intended therefore to be protected by the law. You sort of think about this like the Palzgraf case, there's a hypo that I'll share with you that's rooted in the idea that there was during the 1970s, a gas energy crisis and it really had to do with the fuel being scarce, so for example, in California, there was rationing that took place and in the rationing legislation, it established that people could only get fuel on certain days of the week and only certain providers can provide fuel if they had followed certain kinds of procedures. And so there was a person who lived in a neighborhood near a gas station, that had fuel on a much more frequent basis and in light of that gas station’s popularity, lines would pile up of people waiting in line at the gas station to get gas. The lines became so long that they snaked into the nearby neighborhood and people would be in line at such levels that they would block the driveways of homes in the neighborhood near the gas station. So the party who brings this case argues that they are within the zone of interest that is protected by the statute that relates to the rationing of gasoline because it was foreseeable the gas rationing would lead to long lines and long lines near gas stations would ultimately affect people in their homes. And so the argument is made that the homeowner who can't get out of their driveway to get to work in the morning because of the long lines of cars waiting to get gasoline, was foreseeable and therefore was within the zone of interest protected by the statute. As I said we’ll say more about the zone of interest in an entirely separate lecture, but for now just use that as a way of getting thought through about what the allegations have to include when you're making a claim for standing.

Lastly, we go back to the point of associational standing, we’ve already mentioned that in a prior slide, but I continued here just to emphasize in all the things we just mentioned in the prior slides, in this lecture, in terms of the injury in fact having to be concrete and particularized, and actual or imminent, not conjectural or speculative, and that it has to be fairly traceable to the challenged conduct and it has to be likely redressed by the courts behavior. The members of an organization that wants to get standing, have to all, or have to independently and individually, meet each of those elements that we just talked about. So for each of the members the allegations need to be made that they were injured in fact, that their injuries are fairly traceable to the challenged action and that their injury can be redressed by the court. An associational standing claim is the claim is based on an organization that is in fact, working on a case, or a party to a case, or seeking to be a party to the case, that their challenge to administrative action relates to the organization's purpose otherwise. So in the Lujan case, you had an organization that was defenders of wildlife, a wildlife protection organization or an environment organization, and they were in fact complaining about a change under the Endangered Species Act interpretation by administrative agency. And so because of that, they were alleging that their individual members met all of the elements of standing that we've just gone through, and for associational representational standing the only thing that's necessary's organization is to show the individual members, through allegations, meet these prior elements of standing that we talked about. That means that the members have to file affidavits at the time that the charges brought in order to show that they're standing. And those affidavits have to allege the things that we just discussed in terms of injury in fact, causation and redressability. And so ultimately that goes through the kinds of allegations that are necessary for persons who want to establish standing in the context of an administrative agency based case.

Lastly that brings us to our case discussion, we have two cases, the Lujan versus the Defenders of Wildlife case, and then we have this interesting relatively new case that is on Monsanto and Alfalfa Seed Growers and I will talk about both of those cases. But as I do each time we come to case discussions, and particularly in this class because many of you all have had standing in constitutional law, you may have developed a clear expertise on it, and you don't really need a refresher, in light of that you could stop the lecture here on part 2 standing, but for those of you who are interested in continuing to listen on and hear my take, or at least my Reader's Digest version, or just a brief synopsis of what's happening in these cases, continue to listen on and I will just give a little bit of the cases and how they relate to

standing and then we’ll be done. So for those of you are continuing to listen, let's take a moment minute and talk about the Lujan v. Defenders of Wildlife case. That's a big case in standing law and what that was going on in this case was, as I said earlier, one of the administrative agencies that has responsibility for interpreting and dealing with the Endangered Species Act is the Fish and Wildlife Service, and so those organizations along with the National Marine Fisheries Service, on behalf of the Secretary of Interior and Secretary of Commerce, promulgated joint regulations stating that the obligations that were in fact associated with the Endangered Species Act did not relate to activities that were taking place outside of the United States, or at least on the high seas. That was a change to the former policy that had been established back in the late 70s and so when that change occurred there was a challenge that was brought to that effort to withdraw from looking at how the Endangered Species Act related to species that are in other countries. And so that change, which removed arguably from the federal government’s purview concerns about endangered species protection among countries that we interact with, maybe give grant money to, etc. was challenged by the defenders of wildlife. This nonprofit organization based on members, alleged that their members in fact, had were going to be harmed as result of the change in this policy. And so the court considered whether or not their members really established an injury in fact. To do that affidavits were provided by the members stating that they had attended or reviewed, I should say, some of these endangered species in other countries like Egypt, and that they hoped to go back and view the species again and that if this rule was going forward that would prevent the United States from expecting that other countries were also address this endangered species act issue, particularly those countries that the country was providing grant money to, working with, then in fact, they would be harmed because they would not be able to enjoy the aesthetic value, and the recreational value, of watching the species. And this gets to the note that says that an injury can be environmental or aesthetic, it has to be based on a human being though, who is alleging that they're going to be deprived of the benefit of certain aesthetic values or certain environmental attributes. So this is a claim that's made, the court was really, really not satisfied with the affidavits, and the court found that in fact, those affidavits failed to establish that these were actual or imminent injuries. The court argued that the affidavit did not show anything other than a speculative or a conjectural injury, and that the person said that they had visited these places in the past and watch the species, and they hoped to return in the future, and they didn't show that had had any plane tickets, any travel reservations that were made, or anything it indicated that they had anything beyond a hope or a speculation that they might return and watch the species. As a result of that, the court found that this was not in fact a sufficient allegation to establish that there was an injury in fact. That was the key discussion in the case, however, the court also considered the question of redressability and they argued that there was no clear redressability in this case, the Secretary of the Interior was the agency actor here that they wanted to revoke the regulations that had been put in place or proposed. And the court argued that it was not clear that a change those regulations would actually result in a change to the practices in the foreign countries. Even though federal grant money was being used for the projects that were threatening the endangered species, the court said it wasn't clear that a removal of the kind of funding and they argued that in some cases, for example, the American agency was giving less than 10% for the funding of the project that was being brought up as the threat to the endangered species. It's not clear that removing that 10% funding would mean that the project would not go forward and have 10% of the funding was removed because the agency was required to change their proposed regulation then it is not clear that the species would still not be harmed by the project, the project would still go forward, presumably with the 10% coming from somewhere else. So the court said, in light of the fact, that we have not only a failure to establish something beyond speculative injury, the court says there is no clear redressability, because even if we ruled that the regulations need to remain in place as they were, that doesn't mean that the funding will be withdrawn, and even if it is withdrawn that doesn't mean that the project won't go forward. So the court argues that there is really a failure of standing here, based on the fact that there is no plaintiff whose made allegations showing that they been injured in fact, or facing imminent injury, and that there's no redressability.

The next case is the Monsanto Company versus the Geertson Seed Farm case which is a really interesting case because it's a new case, and it deals with genetically modified organisms, and the argument made by the Geertson Seed Farm that the decision by the Animal and Plant Health Inspection Service to take a variety of genetically engineered alfalfa and deregulate them, and just allow them to go forward and be used commonly in the environment, was going to bring it harm to them as organic alfalfa growers. Their claim is that once the deregulation of the genetically modified alfalfa seeds goes into effect, then they will have financial difficulty continuing to sell their organic seeds, because the seeds have a way of being spread and they're not under control, and it's not clear that once those seed spread, the organic seed company will be able to continue its operation. Because if there is any genetically modified seed that shows up on the organic seed corporation’s fields, they potentially will lose their organic designation. And they have very stringent rules to have that organic designation, and so once it's off that would create a great harm to the company. The company also showed how they've already spent money trying to protect their crops in the event that there is this deregulation which is proposed. And so they had to hire consultants, they had to have people do investigative work, etc. and all of these relate to damages to their business because their company will be harmed as result of this. So, the court has to determine whether or not this is too speculative a harm for them to be able to establish that they should have Article 3 standing and they claim that they have an imminent injury which will occur to them and that further they already have an actual injury and that they already are in fact spending money which is harmful, it's money that's taking away from their business and therefore the deregulation is leading to an injury in fact, that correct that doesn't mean they’re going to win the case but it means they should at least be able to come and talk about how they are being harmed as a result of this deregulation. So the court considers the argument and the court basically says that these allegations that they have made, demonstrate that they have increased costs and that those increase costs and the other costs that they're going to occur and the adverse impact of their business, even if their crops aren’t actually infected by the genetically modified organism, was sufficiently concrete to satisfy the injury in fact prong of the standing analysis. They showed that those farms were attributable to the deregulation decision and the District Court already found that there was a significant risk of the genetically modified version of the alfalfa to actually get into the atmosphere and impact of other alfalfa that already was being grown. And then lastly they argued that a court found that a judicial order which prohibited the selling and growing of the genetically modified alfalfa which was proposed to be deregulated would remedy their injuries, it would eliminate or minimize the risk of any of those genetically modified organisms, or seeds, or alfalfa plants getting into the organic alfalfa crops. So therefore they concluded that there was constitutional standing to give them adjunctive relief, to stop the deregulation order from going forward. So here we see two cases where the standing requirements are kids of parceled out and they're applied and we see how the court addresses these different elements. With that, that resolves them in our discussion of Standing Part 2, I will talk to you in the next module.