Drafts posted on this web site express the views of the respective reporters who have written them. The
positions contained in these drafts have not been approved by the Council of the Section of Administrative Law and
Regulatory Practice, and they should not be ascribed to the American Bar Association, the Section or its officers.
Grounds for Reversal. The Court shall set aside an agency action if it finds that 
(1) The action exceeds the authority granted by, or violates limitations imposed by law.
Courts evaluate agency action under the Administrative Procedure Act based on law,
which can stem from various sources.
A. The Constitution:
The authority of the federal courts to keep federal agencies within constitutional limits is
unquestioned. As long as review is not otherwise precluded, courts must assess whether agency
actions comply with constitutional commands. Courts consider constitutional challenges both to
the status of agencies, see, e.g., Morrison v. Olson, 487 U.S. 654 (1988) (addressing
constitutional status of Office of Independent Counsel), as well as to the propriety of particular
agency actions. See, e.g., Marshall v. Barlows Inc., 436 U.S. 307 (1978) (addressing
constitutionality of agency search).
Moreover, courts will strain to determine that Congress did not intend to preclude review
of constitutional questions arising in challenges to agency action. Webster v. Doe, 486 U.S. 592
(1988); Johnson v. Robison; 415 U.S. 361 (1974); Traynor v. Turnage; 485 U.S. 535 (1988);
Bartlett v. Bowen, 816 F.2d 695 (D.C. Cir. 1987). Many believe that courts should refuse to
permit Congress to preclude review of constitutional issues. At a minimum, courts will entertain
constitutional challenges to legislation and regulations.
When exercising an adjudicative function, agencies themselves may consider a wide
range of constitutional issues. In determining whether agency determinations are consistent with
the Constitution, courts afford no deference to the agencies construction of the constitutional
principle at stake. Cf. United States v. Nixon, 418 U.S. 683, 703-05 (1974).
B. Federal Statute
C. Agency Rule Having the Force of Law
Agency rules having the force and effect of law are as binding on agencies as the
Constitution and statutes. Accordingly, courts may review agency action for conformance with
previously promulgated rules. Nader v. Bork, 366 F. Supp. 104, 108-109 (D.D.C. 1973) (an
agency regulation has the force and effect of law, and it is binding upon the body that issues it.).
Agency procedures must be followed as well. Vitarelli v. Seaton, 359 U.S. 535, 539-40 (1959).
Consider the recent Third Circuit decision in Furnari v. Warden, 218 F.3d 250 (3d Cir.
2000). There, an inmate challenged a parole commissions decision denying him a de novo
hearing which he claimed necessary in light of new evidence that had been uncovered. The Court
explained that, because the agency had bound itself to provide a statement of reasons for denying
1
parole, its failure to do so constituted an abuse of discretion. Id. at 255. See also Schroeder v.
West, 212 F.3d 1265, 1270 (Fed. Cir. 2000); Moret v. Karn, 746 F.2d 989, 992 (3d Cir. 1984)
(An agency abuses its discretion if it fails to follow its own regulations and procedures.).
The question of agencies compliance with their own regulations turns on two factors.
First, the regulation must have the force of law. Agency regulations more akin to internal
operating procedures bind the agency as a matter of politics but not law. Private parties cannot
sue the agency for failure to comply with such discretionary rules. See, e.g., Haitian Refugee
Center v. Baker, 953 F.2d 1498, 1508 (11th Cir. 1992); De Silva v. Smith, 773 F.2d 1021 (9th Cir.
1985); Pasquini v. Morris, 700 F.2d 658, 662-62 (11th Cir. 1983); cf. In re Surface Mining
Regulation Litigation, 627 F.2d 1346, 1357 (D.C. Cir. 1980) (stating that agency directive
implementing Presidents Executive Order to be treated as discretionary rule). Unlike the
situation in Furnari, such rules will be enforced at the discretion of the agency.1
Second, disputes more often arise over the meaning of the regulations that agencies must
follow. As with statutes, regulations can be, and often are, ambiguous. Courts must then decide
how much weight to afford the agencys interpretation of the regulation. Although courts would
have no reason to defer to an agencys construction of another agencys regulation, see Martin v.
OSHRC, 499 U.S. 144 (1991); Director, OWCP v. General Dynamics Corp., 982 F.2d 790, 795
(2d Cir. 1992), for reasons analogous to Chevron courts might uphold an agencys construction
of its own regulation as long as it is reasonable.
In Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), the Supreme Court held
that deference was due an agencys interpretation of its own regulation. In considering a dispute
over a regulation issued by the Office of Price Administration, the Court concluded that the
Secretarys own interpretation of the contested words highest price should control: Since
this [case] involves an interpretation of an administrative regulation a court must necessarily look
to the administrative construction of the regulation if the meaning of the words used is in doubt.
. . [T]he ultimate criterion is the administrative interpretation, which becomes of controlling
weight unless it is plainly erroneous or inconsistent with the regulation. Id. at 413-14. The
Court has often invoked Seminole Rock and reiterated its plainly erroneous or inconsistent
standard. See, e.g., Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994) (collecting
examples).
The rationale for deferring to an agencys interpretation of its own regulations is
analogous to Chevron. If Congress has delegated power to the agency to fill in legislative gaps,
then courts should defer to any reasonable interpretations that the agency forwards of its own
1
Even when agencies intend to bind themselves to particular rules or regulations, they
remain free to change their rules. However, they cannot do so only to gain advantage in a
particular adjudication. And, as elsewhere discussed [supra or infra], agencies must explain
why they are changing the rules of the game midstream.
2
gap-filling regulations. It is more legitimate for an agency than a court to undertake that
function. The agency has more expertise, and is more politically accountable than courts.
Congress, in other words, has entrusted agencies with the power to make law through regulations
and to define what those regulations mean.
Consider the Supreme Courts decision in Auer v. Robbins, 519 U.S. 452 (1997). The
dispute focused on the Department of Labors regulation fleshing out the meaning of the Federal
Labor Standards Acts exemption for employees acting in executive, administrative, or
professional capacity. 29 U.S.C.  213(a)(1). The agencys regulation determined that an
employee paid on a salary basis was exempted from the Acts protections. 29 C.F.R.
541.1(f). That exception included employees whose salary was not subject to reduction
because of variations in the quality or quantity of the work performed. 29 C.F.R. 54.118(a).
In litigation, the agency clarified that to qualify as a salaried employee, no deduction for
shoddy work could be made in practice, or there must be a significant likelihood that, if an
employee violates the pertinent work rules, the employee will be disciplined in a manner
inconsistent with the salary basis rule. Writing for the unanimous Court, Justice Scalia held
that the agencys interpretation of the regulation, even though forwarded for the first time in a
brief, should be entitled to Seminole Rock deference. According to the Court, the Secretarys
interpretation of the regulation is controlling unless plainly erroneous or inconsistent with the
regulation. Id. at 911 (quoting Seminole Rock). The Court explained that there is simply no
reason to suspect that the interpretation does not reflect the agencys fair and considered
judgment on the matter in question. 519 U.S. at 462. Auer suggests, therefore, that strong
deference always should be afforded agency interpretation of the regulations the agency has
issued. Many lower court decisions have followed Auers lead. See, e.g., National Wildlife
Fedn v. Browner, 127 F.3d 1126, 1130 (D.C. Cir. 1997); Public Citizen v. Carlin, 184 F.3d 900,
911 (D.C. Cir. 1999); Akzo Nobel Salt, Inc. v. Federal Mine Safety and Health Review
Commn, 212 F.2d 1301 (D.C. Cir. 2000).
Exactly how Seminole Rock deference compares to Chevron deference is difficult to say
with great confidence. The usual judicial formulations of Seminole Rock deference certainly
sound (even) more deferential than Chevron. For example, in Thomas Jefferson University v.
Shalala, the Supreme Court stated that it must give substantial deference to an agencys
interpretation of its own regulations. 512 U.S. at 512 (citations omitted). Explaining further,
the Court wrote: Our task is not to decide which among several competing interpretations best
serves the regulatory purpose. . . . In other words, we must defer to the Secretarys interpretation
unless an alternative reading is compelled by the regulations plain language or by other
indications of the Secretarys intent at the time of the regulations promulgation. Id. (quoting
Gardebring v. Jenkins, 485 U.S. 415, 430 (1988)). The Court added that this broad deference
is warranted especially where the regulation concerns a complex, technical regulatory program.
Id. Thus, it seems safe to conclude that, whatever its exact degree of deference, Seminole Rock
might be understood as Chevron plus deference, whereas Skidmore can be understood as
3
Chevron minus deference.
Nonetheless, despite the theoretical difference in strength of deference, the Seminole
Rock and Chevron formulations likely converge in practice. As the D.C. Circuit noted in
Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579, 584-85 (D.C. Cir. 1997), [i]n
the aftermath of Chevron, it may be that our deference to agency interpretations of ambiguous
regulations is not different than that which we afford to interpretations of ambiguous statutes. It
would seem that there are few, if any, cases in which the standard applicable under Chevron
would yield a different result than the plainly erroneous or inconsistent standard set forth in
Bowles. Similarly, the Supreme Court in Martin v. OHSRC, 499 U.S. 144, 180 (1991),
directed courts to defer to agency interpretations of regulations if the Secretarys interpretation
is reasonable. The Secretarys interpretation of an ambiguous regulation is subject to the same
standard of substantive review as any other exercise of delegated lawmaking power.
Some have criticized Seminole Rock deference, however, on the ground that agencies
should not have the power to both make and interpret the law.2 Fusing the power to fashion rules
and then interpret them might endanger civil liberties. Moreover, if agencies can both
promulgate regulations and then interpret them, they might have the incentive to issue overly
vague rules, knowing that they could then flesh out the rules through interpretations that would
avoid stringent review. Agencies can avoid procedures such as notice-and-comment rulemaking
merely by reinterpreting their own regulations in an enforcement action.
Commentators criticizing Seminole Rock argue instead that minimal deference should be
afforded such agency interpretations under Skidmore & Swift & Co. , 323 U.S. 134 (1944). The
Skidmore standard provides that an agencys interpretive position is entitled to respect and
that the weight of such a judgment in a particular case will depend upon the thoroughness
evident in its consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade, if lacking power to
control. Id. at 140. The more stringent review ex post would in turn sharpen the ex ante
incentives for clearer rules.
Such arguments, however, are not fully persuasive. First, Congress possesses the same
check of revising the delegation irrespective of whether the agency is interpreting a statute or a
regulation. Congress can overrule or modify the one just as easily as the other. Second, if a
court overturns an agencys interpretation, the agency can reissue a clarified regulation that
reflects its current interpretation. Third, the separation of powers argument is not dispositive
given that agencies widely interpret both statutes and regulations in enforcing their legislatively
2
See generally John F. Manning, Constitutional Structure and Judicial Deference to
Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996); Robert A. Anthony, The
Supreme Court and the APA: Sometimes They Just Dont Get It, 10 Admin. L. J. Am. U. 1
(1996).
4
delegated tasks. Indeed, agencies exercise a mixture of functions in many contexts. Cf.
Withrow v. Larkin, 421 U.S. 35 (1975). Fourth, one would think that agencies have greater
expertise in divining the meaning of agency regulation than courts. Courts construing regulations
might supplant agencies as subsidiary policymakers under delegated grants of authority from
Congress. Although agencies can always issue a revised regulation, a judicial gloss raises the
costs of maintaining the agencys preferred regulatory interpretation. Fifth, agency
interpretations of regulations must of necessity include interpretations of the statutory language
the regulations were designed to implement. Chevron deference to interpretations of statutes in
regulations, therefore, logically should extend to deference of interpretations of those regulations
themselves. Finally, at times clearer rules do not serve the public interest. A standard-like rule
may better protect the public than if the agency were compelled to issue bright-line rules.
Yet, a different argument against strong deference to agency interpretations of regulations
may be more convincing. In most contexts, the agencys interpretation is not preceded by notice
and comment; nor has it emerged from the agencys adjudicative role. Rather, the interpretation
often arises in the midst of enforcing the law, hardly a circumstance that gives one confidence
that the resulting interpretation has been well considered. From a political process perspective,
strong deference seems unwarranted if the agency interpretation has been hastily reached and
little discussed.
Indeed, the Supreme Courts recent decision in Christensen v. Harris County, 120 S. Ct.
1655 (2000), by curtailing Chevron deference for an opinion letter, might by analogy caution
against deference to agency interpretations of their own regulations. The Court in Christensen
concluded that interpretations contained in policy statements, agency manuals, and enforcement
guidelines, all of which lack the force of law[,] do not warrant Chevron-style deference. 120 S.
Ct. at 1663. Christensen suggests, see supra, that Chevron deference principally should be
reserved for agency interpretations issued as part of the rulemaking or adjudication process.
Viewed another way, a court should only accord an agency interpretation strong deference
when the agency is interpreting a regulation in a context in which Congress intended the agency
act to have the force of law.3 Agencies interpret regulations most often in contexts in which one
cannot easily infer a congressional delegation of the power to make law, whether in litigation or
opinion letters. Indeed, most agency interpretations of regulations are not the outgrowth of any
defined process, have not been tested by the crucible of public participation (through rulemaking
or adjudication before the agency), and may reflect nothing more than the result of litigation
pressures. Congress would not lightly imbue such interpretations with the presumption of
correctness.
Ultimately, the question of the degree of deference to afford agency interpretations of
3
See Robert A. Anthony, Which Agency Interpretations Should Bind Citizens and the
Courts?, 7 Yale J. on Reg. 1, 39-40 (1990).
5
their own regulations presents a close question that eventually will be resolved by the Supreme
Court. The Christensen process perspective suggests, however, that only Skidmore deference
should be afforded to agency interpretations of regulations that are forwarded outside of either a
rulemaking or adjudication. Cf. Mission Group Kansas, Inc. v. Riley, 146 F.3d 775 (10th Cir.
1998) (refusing to accord strong deference to agency interpretation of regulation because
interpretation not subject to notice and comment rulemaking); IAL Aircraft Holding, Inc. v.
FAA, 206 F.3d 1042, 1045-46 (9th Cir. 2000) (refusing to extend deference to agency
interpretation of its regulation on grounds that interpretation was litigating position that agency
had not expressed elsewhere before). Note that the question of whether to defer to agency
interpretations of their own interpretive rules or policy statements will seldom arise given that so
little turns on whether the agency interpretation is correct -- the interpretive rules and policy
statements themselves only warrant Skidmore deference. See, e.g., Shalala v. Guernsey Memorial
Hospital, 514 U.S. 87, 99 (1995) (relating that interpretive rules do not have the force and
effect of law and are not accorded that weight in the adjudicatory process.); Hoctor v. United
States Dept of Agriculture, 82 F.3d 165 (7th Cir. 1996).
On the other hand, some interpretations of substantive or legislative regulations will be
articulated in an agency adjudication or in a rulemaking. In those settings, the agencys
interpretation is reached only after consideration is given to future applications. Such
interpretations merit the full Seminole Rock deference. Thus, Christensen arguably augurs a
significant limitation of Auer, and the deference accorded agency interpretation of regulations
should hinge on the context in which the interpretation is forwarded.
D. Federal Common Law
Federal common law has never been a significant source of substantive regulatory policy,
but it does come into play on certain collateral matters presented during judicial review of agency
action. Relying squarely on their own lawmaking authority, courts have invalidated
administrative decisions on such grounds as res judicata and collateral estoppel. Tait v. Western
Md. Ry., 289 U.S. 620 (1933); Clark-Cowlitz Joint Operating Agency v. FERC, 775 F.2d 366,
373-76 (D.C. Cir. 1985).
For instance, consider the First Circuits decision in Bath Iron Works Corp. v. Director,
OWCP, 125 F.3d 18 (1st Cir. 1997). There, an employee injured on the job obtained benefits
pursuant to state workers compensation proceedings. He received an award of 25% disability
due to a serious knee injury and when the disability deepened over time successfully applied for
an increase to a 50% award. Thereafter, the employee sought a further award under the
Longshore Act, 33 U.S.C.  901, et seq. The Department of Labor Benefits Review Board
granted him full disability, rejecting the employers collateral estoppel argument. The First
Circuit, however, reversed the agencys determination, holding that the agency should have
given collateral estoppel effect to the state agencys prior determination: the tendency is plainly
in favor of applying collateral estoppel in administrative contexts. Id. at 21.
At other times, it is difficult to determine whether the limitation imposed on the agency
6
stems from common law, the courts exercise of review under the arbitrary and capricious and
substantial evidence standards, or an elaboration of related principles underlying the APA. For
instance, one can view court decisions invalidating agency determinations because of ex parte
comments as grounded in the common law. Although the APA plainly prohibits ex parte
comments in formal rulemaking and adjudication, see 5 U.S.C.  553(c), 554(a), 557(d), it does
not comment one way or another with respect to informal rulemaking and adjudication.
Nonetheless, some courts have curtailed ex parte comments in the informal rulemaking context,
either on the basis of an implied limit in the APA or because of common law requirements. See
Home Box Office v. FCC, 567 F.2d 9, 51-59 (D.C. Cir. 1977) (explaining that, where, as here,
an agency justifies its actions by reference only to information in the public file while failing to
disclose the substance of other relevant information that has been presented to it, a reviewing
court cannot presume that the agency has acted properly.); Sangamon Valley Television Corp.
v. United States, 269 F.2d 221, 223-24 (D.C. Cir. 1959) (basic fairness requires such a
proceeding to be carried on in the open).4
On the other hand, some courts have held that courts lack the power to impose a ban on
ex parte comments in the absence of statutory command. District No. 1, Pacific Coast District
Maritime Engineers Assn, 215 F.2d 37, 43 (D.C. Cir. 2000) (we have no jurisdiction to
review under the APA an agencys procedural decision regarding how best to make a substantive
decision); cf. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524 (1978)
(reviewing courts are generally not free to impose [new requirements] if the agencies have not
chosen to grant them.).
E. Any Other Source of Law That is Binding on the Agency
Subsection (E) is a catchall section that covers sources of law other than those mentioned
above. Courts may independently construe and redress violations of, all sources of law. For
instance, in United States v. Armour & Co., 402 U.S. 673, 681-83 (1971), the Court considered
applicability of a consent decree, and of growing importance, agencies must follow the law of
nations as well as domestic law. Cf. Weinberger v. Rossi, 456 U.S. 25 (1982) (construing
regulation narrowly to avoid conflict with the law of nations). At times agencies must abide by
executive orders. See, e.g. CIA v. Sims, 471 U.S. 159 (1985); Weinberger v. Romero-Barcelo,
456 U.S. 305 (1982). However, most executive orders stem from the Presidents inherent
authority to manage the executive branch and therefore do not provide an enforceable limit on
the agencys powers. The agency head may face political repercussions for not following such
orders, but no secondguessing in court. See Xin-Chang Zhang v. Slattery, 55 F.3d 732 (2d Cir.
4
In contrast, the Supreme Court has recently made it clear that courts cannot rely on the
common law to mandate exhaustion of administrative remedies in APA cases. In Darby v.
Cisneros, 509 U.S. 137 (1993), a unanimous court held that federal courts may not require
exhaustion of administrative remedies prior to APA judicial review unless the relevant statute or
agency regulations mandates that route.
7
1995) (For whatever reasons, the Attorney General did not adhere to this order and the Bush
Administration did not follow up on it. However, it is not the role of the federal courts to
administer the executive branch.); Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995); In
re Surface Mining Regulation Litigation, 627 F.2d 1346, 1357 (D.C. Cir. 1980); Independent
Meat Packers Assn v. Butz, 526 F2d 228, 234 (8th Cir. 1975).
NEED TO EXAMINE AGENCYS RATIONALE: In order to decide whether the
agency action violates the standards set out previously, the court shall examine the
agencys own proffered rational. If the standards do not appear to have been satisfied,
then the court may remand the action so that the agency can provide further justification.
The validity of any agencys exercise of discretion typically turns on the rationale used
by the agency at the time of its action. The Supreme Court in SEC v. Chenery Corp., 318 U.S.
80 (1943), held that discretionary administrative action will only be upheld on grounds
articulated by the agency. The record requirement permits judges to exercise meaningful review
of the merits of agency decisionmaking.
In Chenery, the SEC conditioned its approval of a public utility holding companys
reorganization on the officers willingness to disgorge shares of preferred stock they had
purchased during the reorganization period. The SEC had not found any wrongdoing, but based
its demand upon court cases exploring the common law duty of fiduciaries. The Supreme Court
vacated the SECs decision, holding that the administrative agency had misread judicial
precedents. Id. at 89. The Court refused to speculate whether any other reasons justified the
agencys conclusion: The grounds upon which an administrative order must be judged are
those upon which the record discloses that its action was based. Id. at 87.5 Accordingly, a court
must assess agency action based on the rationales forwarded by the agency itself at the time of its
decision: courts may not accept appellate counsels post hoc rationalizations for agency
action. Burlington Rock Lines v. United States, 371 U.S. 156, 168-69 (1962). The Chenery
decision has been widely followed. See, e.g., Navas v. INS, 217 F.3d 646, 658 n.17 (9th Cir.
2000); Massachusetts v. Daley, 170 F.3d 23, 31 (1st Cir. 1999).
The Chenery doctrine has two principal interrelated benefits. First, it serves as a check on
agency action, preventing agencies from making policy outside of public scrutiny; and second, it
prevents courts from substituting their own views of policy for those of the agency.
1. Reviewing courts will only allow agencies to defend their actions on the basis of
In reviewing the SECs action after remand, the Court later explained that a reviewing
court, in dealing with a determination or judgment which an administrative agency alone is
authorized to make, must judge the propriety of such action solely by the grounds invoked by the
agency. If those grounds are inadequate or improper, the court is powerless to affirm the
administrative action by substituting what it considers to be a more adequate or proper basis.
SEC v. Chenery Corp., 332 U.S. 194, 197 (1947 ) (Chenery II).
5
8
reasons articulated prior to judicial review. As conditions or personnel change, agencies cannot
substitute a different rationale without reopening proceedings. If agencies reopen the
proceedings, then they must subject their new reasoning to challenge by interested parties in
either a rulemaking proceeding or an adjudication. A continuity requirement prevents
circumvention of the process checks that control administrative action.
In this respect the Chenery doctrine is akin to the warrant requirement limiting
administrative and traditional law enforcement searches. The need for a warrant constrains
enforcement discretion by mandating that officials assert the purposes and aims of the search
before the search takes place. By creating a record prior to the search, the warrant requirement
prevents law enforcement personnel from changing the justification for, and the permissible
scope of, the search once it is under way. The ex ante requirement of a particularized warrant
demands continuity  the search generally is limited to the purposes, places, and individuals
detailed in the warrant. Like the warrant requirement, therefore, the Chenery doctrine forces
agencies to precommit to particular rationales for agency action.
The record requirement permits judges to check agency decisions by assessing whether
the asserted rationales are sufficient. For instance, for courts to determine whether certain
agency actions are arbitrary and capricious, they must first determine what the agency rationale in
fact is. A rationale that is internally inconsistent or incoherent will be set aside. Motor Vehicles
Mfgs. Assn v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43 (1983) (requiring agency to
show a rational connection between the facts found and the choice made).
Similarly, in Atchison, Topeka & Santa Fe R. Co. v. Wichita Board of Trade, 412 U.S.
800, 808 (1973), the Court articulated the principle that an agency action is arbitrary and
capricious if it represents an unexplained departure from an agencys prior policies and
precedents. But for the Chenery principle, such judicial control could not be exercised.
2. At the same time, the Chenery doctrine prevents courts from supplying their own
rationale for prior agency conduct. In contrast to rational basis review of legislative action,
courts cannot speculate as to the conceivable government purposes underlying the action.
On the one hand, agencies would prefer rational basis review in that reviewing courts
more frequently would uphold their determinations. Courts would not set aside agency action
even when convinced that the agencys rationale was wanting, as long as they could conceive of
an alternative, rational justification for the action. Congress has no quarrel with such deferential
review.
Yet, in the administrative context, the court supplied rationale might result in less
authority for the administrative agency in the future, or might conflict with some other agency
priority. Consider the facts of Chenery itself. Instead of remanding the reorganization petition
back to the agency, the Court might have upheld the action on the ground that all preferred stock
must always be disgorged before a reorganization can be approved, or on the ground that no
9
stock can be acquired by directors during a reorganization period. Either hypothetical ruling
would have gone far beyond what the agency in fact held on remand, and would have led to
results in other cases that the agency might well have disapproved. Because review of agency
action is far more stringent than review of legislation under the rational basis test, the rationales
selected for upholding agency action can have a broad impact on evolution of agency policy.
Several exceptions to Chenery nevertheless have been recognized. First, if the reviewing
court believes that the agency decision should be upheld on a rationale closely related to the one
relied on by the agency, and it is clear that . . . the agency would have reached the same
ultimate result if remanded, then no violation of Chenery is recognized. Salt River Project
Agricultural Improvement & Power District v. United States, 762 F.2d 1053, 1060 n.8 (D.C. Cir.
1985). See also Ward v. MSPB, 981 F.2d 521 (Fed. Cir. 1992). For instance, in Ward, the
MSPB had rejected the federal employees claim alleging that his failure to be promoted violated
the Whistleblower Protection Act. The agency reasoned that the employees complaint about a
colleagues travel did not allege whistleblowing because complaints about a single
employees travel to conference could not constitute a gross waste of funds as required to
come within the protections of the Act. Id. at 524-25. Without reaching that issue, the Federal
Circuit held that, under the circumstances, there was no way that the one colleagues travel could
have been considered a gross waste of funds. The court reasoned that its decision dealing
with particular travel by a particular individual was safely within the framework set by the
agency because it reflected a narrower application of the agencys interpretation. Id. at 527.
Presumably, the agency would have endorsed the narrower approach on remand. Thus, the court
upheld the agency without having to reach the broader question of whether one employees
travel could in different circumstances constitute a gross waste of funds. Id. at 527-28.
Second, the Chenery doctrine does not apply if the reviewing court concludes that the
decision made should properly be based on another ground within the power of the [reviewing]
court to formulate. 318 U.S. at 88. Thus, if the agencys decision did not depend upon a
factual or policy determination that it alone was authorized to make, then Chenery need not
apply. Shea v. Director, Office of Workers Compensation Insurance Co., 929 F.2d 736 (D.C.
Cir. 1991); Chae-Sik Lee v. Kennedy, 294 F.2d 231, 234 (D.C. Cir. 1961).
(1) An explanation issued contemporaneously with an agency action shall be treated
as containing the agencys actual rationale for taking the action, unless the party
challenging the action impeaches the explanation with a strong showing of bad faith or
improper behavior.
When an explanation of the agency action is articulated before or at the same time it takes
effect, application of Chenery is straightforward. As the Supreme Court noted in Camp v. Pitts,
411 U.S. 138, 143 (1973), where there is contemporaneous explanation of the agency decision .
.. [t]he validity of the . . .action . . must stand or fall on the propriety of that finding. Only a
strong showing of bad faith or improper behavior (Citizens to Preserve Overton Park v.
10
Volpe, 401 U.S. 402, 420 (1971)) will prompt a court to secondguess the agencys
contemporaneous explanation for its own action. See, e.g., San Luis Obispo Mothers for Peace
v. NRC, 751 F.2d 1287, 1327-28 (D.C. Cir. 1984) (refusing to find bad faith). Note that even in
informal adjudications, agencies typically compile records. Florida Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985).
Post hoc rationalizations, therefore, are not generally considered. Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402 (1971); Burlington Truck Lines v. United States, 371 U.S.
156, 168-169 (1962). A rationale articulated by agency counsel in litigation may not reflect the
agencys view; may have been hastily developed with an eye only toward prevailing in the
litigation; and has not been subject to the input of parties in either a rulemaking or adjudication.
Cf. FLRA v. U.S. Dept of Treasury, 884 F.2d 1446, 1455 (D.C. Cir. 1989) (a position
established only in litigation may have been developed hastily, or under special pressure, or
without an adequate opportunity for presentation of conflicting views).
(2) Where an agency action is not accompanied by a contemporaneous explanation,
the court may investigate the agencys rationale by receiving evidence. Under these
circumstances there shall be no presumption as to whether the explanation tendered by the
agency expresses the agencys original rationale
Applying Chenery to the many cases, as in informal adjudication, in which a
contemporaneous explanation does not arise is far more problematic. In Overton Park, the
Supreme Court suggested that agencies should provide explanations for their decisions either
through the testimony of officials involved in the decisionmaking or through litigation affidavits.
See, e.g., Bagdonas v. Dept of Treasury, 93 F.3d 422, 426-27 (7th Cir. 1996) (approving agency
efforts to furnish record by providing the court with an explanation for the agencys action
submitted by the officer who had the authority to act on the application); Lewis v. Babbitt, 998
F.2d 880, 882 (10th Cir. 1993) (we find that the district court properly relied on the agencys
affidavits by using them to explain the administrative record.); Sierra Club v. United States
Army Corps of Engrs, 772 F.2d 1043, 1051-52 (2d Cir. 1985); United States v. Garner, 767
F.2d 104, 118 n.20 (5th Cir. 1985). The record in such cases is created to facilitate judicial
review, and the ex post rationalizations of agency counsel or officials are inevitable. WIFE v.
USDA, 876 F.2d 994, 999 (D.C. Cir. 1989).6
Parties could attempt to demonstrate the agencys rationale at the time of its decision
through discovery. From both documentary evidence and depositions of agency officials, parties
would then attempt to recreate the bases for the prior agency action. Courts, however, have
roundly criticized such efforts to probe agency decisionmaking because of undesirable side
6
Moreover, the Supreme Court since has suggested that the preferred course when the
agencys rationale is unclear is to remand for further elaboration. PBGC v. LTV, 496 U.S. 633
(1990). See also Norinsberg v. U.S. Dept of Agriculture, 162 F.3d 1194 (D.C. Cir. 1998).
11
effects. Forcing agencies to participate in depositions or to answer interrogatories saps their
resources. Moreover, such probing of the agencys decisionmaking process is antithetical to the
respect owed senior agency officials.
In United States v. Morgan, 313 U.S. 409 (1941), the Supreme Court addressed the
perplexing difficulties arising out of lack of an administrative record. The controversy in that
case arose out a Secretary of Agriculture order fixing the maximum rates for buying and selling
livestock at the Kansas City stockyards. Morgan alleged that the Secretary never personally
heard or examined the relevant evidence and arguments presented in the case. When the case
originally was heard in the Supreme Court, the Court held that the allegation, if proven, would
violate the statutory right to a full hearing, and the Court interpreted the statute to require the
decisionmaker personally to consider the evidence and arguments. 298 U.S. 468, 481 (1936).
The district court on remand permitted the plaintiff to question the Secretary about his personal
role in setting the prices. On appeal, the Supreme Court reversed on unrelated grounds, but
observed that it was not the function of the court to probe the mental processes of the
Secretary. 304 U.S. 1, 18 (1938). After a third appeal, the Secretary issued a new rate order.
Morgan once again challenged the order, alleging that the Secretary was not sufficiently
involved, and deposed the Secretary to determine the extent of his involvement. The Supreme
Court this time condemned the examination: the Secretary should never have been subjected to
this examination . . . Just as a judge cannot be subjected to such a scrutiny . . . so the integrity of
the administrative process must be equally respected. 313 U.S. at 422. See also Florida Power
& Light Co. v. Lorion, 470 U.S. 729, 744 (1985).
Instead of depositions and interrogatories, agencies can rely upon representations of
counsel, affidavits of those officials involved, and other extrinsic evidence of what the agency
intended. Agency officials can attempt to recreate the administrative record after the fact.
Given the lack of indicia of reliability, however, agency efforts to supply an ex post
explanation should not be afforded any presumption that such explanation in fact underlay the
agency action. As the Court opined in Overton Park, such explanations will, to some extent, be
a post hoc rationalization and thus must be viewed critically. 401 U.S. at 420. Chenery
cannot apply when no contemporaneous record has been made.
Furthermore, the Chenery doctrine should apply to the policy and factual bases that
support an agency action, not to interpretations of law. Interpretations of law are addressed in  .
Agency interpretations of law even when articulated outside of the formal rulemaking or
adjudication context receive deference under Skidmore. Thus, post hoc rationalizations from
agency counsel as to interpretations of law are permissible. See Americas Community Bankers
v. FDIC, 200 F.3d 822, 835-36 (D.C. Cir. 2000) (permitting new arguments supporting agencys
statutory interpretation); FLRA v. Department of the Treasury,127 F.3d 1126 (D.C. Cir. 1997);
Saratoga Develop. Corp. v. United States, 21 F.3d 445 (D.C. Cir. 1994).7
7
Interpretations forwarded by the Solicitor General may be different, however, because
12
the Solicitor Generals views might not reflect those of the agency head to whom Congress has
delegated authority. See Bowen v. Georgetown Univ. Hospital, 488 U.S. 204 (1988).
13