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gaud wrote:This thread helped me in the spring: http://www.top-law-schools.com/forums/v ... 3&t=172414

Good luck. Admin is awful.

Tom Joad wrote:Hey. How is the arbitrary and capricious standard used to evaluate factual determinations in an informal rulemaking or adjudication.

Substantial evidence for formal rulemaking and adjudication makes since to me, but this one confuses me.

State Farm analysis: Where the issue is the agency's fact-finding, the agency will lose only if:
(1) agency entirely fails to consider an "important aspect" of the problem. e.g., regulatory alternatives. 'Important aspect' is made 'important' by the lawyers. Agencies fail to respond to these 'alternatives' at their peril. This was the airbag alternative the Court in State Farm found probative.
OR (2) the agency decision "runs counter" to the evidence before it. (oddly worded standard. The court doesn't weigh the evidence and make a choice, it only asks whether the agency has grappled with the evidence and gives a reason the court can understand. Whether the court actually agrees with the agency's conclusion is irrelevant. The agency loses if it fails to respond to key evidence against its position. 'Key' can mean crucial to the intellectual underpinnings of the agency's standard.

*There are two more factors, but they're dead letter or irrelevant per Chevron: agency relies on 'factors' other than those Congress intended (But this is ACTUALLY 'not-in-accordance with law'. This factor is irrelevant because Chevron takes care of it.) The other dead letter is that the agency decision is "too implausible."