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Administrative Law
Penn State School of Law
Colburn, Jamison E.

Administrative Law Outline—Fall 2013 (Colburn)

I. Agencies

a. Definitions

i. APA 5 U.S.C. § 551

(1) “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include–

(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or possessions of the United States;

(D) the government of the District of Columbia;

or except as to the requirements of section 552 of this title–

(E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time of war or in occupied territory; or

(H) functions conferred by [various provisions of the U.S.C.]

1. Not Agencies

a. Congress

b. Courts

c. à Other government offices in the Legislative and Judicial branches

d. President – Franklin v. Massachusetts.


a. (A)–(D) are exempt from APA entirely.

b. (E)­–(H) are still subject to FOIA.

c. FOIA Definition of “Agency” – Broader than APA. See p. 7.

ii. Definition – Entities that have substantial authority independent of the President are agencies. CREW v. Office of Administration.

1. Process – Begin with definition in § 551(1). For entities that are not explicitly excluded by the APA definition, ask whether the entity represents an “authority” of the U.S. government.

2. CREW v. Office of Administration

a. Office of Administration in the EOP was NOT an agency because:

i. It was entirely operational;

ii. Acted at President’s discretion;

iii. Its duties were to support the President; and

iv. Director of OA is not accountable for program b/c management falls to the head of each unit for which OA acts.

b. Court refuses to extend FOIA to an EOP unit that lacks substantial independent authority.

c. Where the purpose and function of a unit of the EOP is to provide to the President only operational and administrative support, the unit lacks the substantial independent authority required to be an “agency” covered by FOIA.

b. Traditional/Executive Agencies

i. Cabinet-level agencies

ii. Agencies within Cabinet-level agencies, e.g., OSHA; MSHA; FDA; NIH; BLM; etc.

iii. à Not Agency – Subgroup within a single agency.

c. Independent Agencies

i. Exist and function outside of control of traditional Executive Branch departments although they may be couched within a Cabinet department, e.g., SEC.

ii. Structured to insulate themselves from political pressure and direct control by Congress or the President.

iii. These are the “alphabet agencies.”

iv. Characteristics:

1. Headed by multi-member commissions, boards, or councils, rather than individuals.

a. Decisions generally are taken by majority vote.

2. President appoints heads of independent agencies.

a. Some may be removed by President on will and caprice.

b. Some may not be removed except for malfeasance. For-cause limitations on removal.

3. Statutes generally establish staggered, fixed-year terms of office.

4. Statute may specify that only a certain number of members may belong to the same political party.

5. à Look at statute creating the agency. May call it an “independent regulatory agency.”

v. Paperwork Reduction Act of 1980, 44 U.S.C. § 3502(5), lists several agencies that are considered independent agencies, e.g., FCC; NLRB; CPSC; SEC; etc.

d. Hybrid Agencies

i. Do not fit comfortably into either category.

ii. FERC; SSA; IRS; etc.

II. APA (Generally)

a. Generic statute that applies to most federal administrative law decisions.

i. Provisions are vague and open to interpretation.

ii. Enacted in 1946 after Great Depression and creation of New Deal agencies.

b. Hepburn Act of 1906 established judicial review of agency action.

c. Two Views:

i. Government needs to exercise lots of power; agencies need broad power with discretion; and courts should be involved in a loose and highly deferential manner.

ii. There must be elaborate procedures for agencies to follow that are the same as the procedures of adjudication in courts. Courts should have de novo review of agency actions.

d. Judicial Review §§ 701–06

e. Procedures §§ 551–59

i. Formal Adjudication §§ 554–57

ii. Informal Rulemaking § 553

iii. Formal Rulemaking §§ 553, 556–57

iv. Informal Adjudication § 555

f. APA must be read in conjunction with organic statutes.

g. Characterization as Other Forms of Actions:

i. Quasi-Judicial?

1. Trial is closed and politically neutral.

ii. Quasi-Legislative?

1. Legislative action is open and intensely political.

iii. Bureaucratic Decisionmaking?

1. Impersonal and institutional.

2. Minimizes sum of decisional costs and error costs by applying objectively verifiable criteria subject to institutionally imposed quality-control mechanisms.

3. Inherent antipathy to bureaucracies.


III. Due Process & Adjudication

a. Sources of Procedural Protections

i. Due Process Clause;

ii. Statutes;

1. APA;

2. Organic statute;

iii. Agency’s own rules.

b. Generally

i. DPC applies to a small fraction of disputes. Most are resolved with reference an agency’s own procedural rules or its organic statute.

ii. DPC influences agency procedures.

1. Congress requires agencies to adopt certain procedures based on its beliefs about the requirements of due process.

2. Congress gives agencies considerable discretion to establish their own adjudicatory procedures.

c. Elements of a judicial trial. When are these required?

i. Notice;

ii. Opportunity to present oral evidence;

iii. Opportunity to cross-examine;

iv. Counsel;

v. Impartial decisionmaker;

vi. Decision based solely on formal record;

vii. Written findings and conclusions;


i. Does the governmental act raise due process concerns? Does the DPC apply at all?

1. Government harms you based on characteristics unique to you or your conduct à Due process applies. (Adjudication)

2. Government harms you as a member of a group or class of individuals à Due process does NOT apply. (Rulemaking)

a. Recourse is to political process.

ii. If so, does the governmental act deprive a person of life, liberty, or property?

1. What is the interest at stake?

2. Is that interest within the scope of life, liberty, or property?

iii. If so, what processes are required?

e. APA §§ 554–57

i. Formal Adjudication – APA only requires formal adjudicatory procedures when organic statute requires adjudicatory decisions to be made on the record after agency hearing.

1. Statute must have this language in order to require formal adjudication procedures of APA.

2. Elements of Formal Adjudication:

a. Adequate notice;

b. Proponent of order, i.e., the agency, has burden of proof;

c. Subject to some form of evidentiary rules;

d. Before a neutral decisionmaker, i.e., an ALJ;

e. Ability to present evidence and cross-examine witnesses;

f. Decision may be (1) final or (2) a recommendation to the agency;

g. No ex parte communications.

ii. Informal Adjudication – APA only requires minimal procedures in § 555 for informal adjudication, which are merely to comply with “due process,” i.e., no person may be deprived of life, liberty, or property, without due process of law.

f. When Due Process Applies – Adjudication v. Rulemaking

i. Applies to adjudications—NOT rulemakings.

1. Adjudication – Agency process for formulation of an order.

2. Rulemaking – Agency process for formulating a rule.

ii. If government harms you based on some determination of an adjudicated fact (court fact), an individual cannot be deprived of prope

added procedures

f. Distinction of Mathews from Goldberg

i. Courts’ stated reasons:

1. Disability beneficiaries have less need for benefits than welfare beneficiaries.

2. Doctors have better ability communicate in writing than AFDC participants.

3. Issues in disability cases are more objective in nature.

ii. Unstated reasons

1. Agencies were complaining about compliance costs w/Goldberg

2. Studies supported finding that Goldberg just made initial determinations more thorough.

3. Questionable value of oral hearings.

3. Tenured Government Job

a. Board of Regents v. Roth

i. Property interest in a government job when an employee could be removed only for cause or when the job appears to be tenured.

ii. Employer and Employee’s Recognition – “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”

iii. “We have held today in Board of Regents v. Roth that the Constitution does not require opportunity for a hearing before the nonrenewal of a nontenured teacher’s contract, unless he can show that the decision not to rehire him somehow deprived him of an interest in ‘liberty’ or that he had a ‘property’ interest in continued employment, despite the lack of tenure or a formal contract.” Perry.

b. Perry v. Sinderman

i. A person who has a contractual right to retain his government job unless he is terminated for cause, commonly referred to as tenure, has a property interest in his job that cannot be deprived without due process of law.


i. Applies only to government employment contracts, not other types of government contracts, e.g., supply contracts.

d. Property and liberty interest. Perry.

e. Unconstitutional Conditions Doctrine – Government cannot condition the availability of a benefit such as a government job on an individual’s willingness to relinquish a constitutional right. McAuliffe.

iii. Liberty – Rights v. Privileges

1. Rights – Due process protection.

2. Privileges – No due process protection.

3. Right to be Free from Official Stigmatization

a. Paul v. Davis (1976)

i. Stigma “Plus” Test – Recognizes a deprivation of a liberty interest when the government simultaneously (1) stigmatizes a person and (2) deprives that person of something tangible.

1. Tangible Deprivation – Need not be a protected property interest itself. E.g., right to purchase alcohol, untenured government job, etc.

2. Timing – Stigmatization and deprivation must be contemporaneous.

a. Placing Stigmatizing Reason in Employee’s records – Courts are divided.

ii. Distinguished from Constantineau b/c shoplifter was stigmatized by city posters around town, but was not coupled with a deprivation of another tangible right. In Constantineau stigma as drunkard meant you couldn’t’ buy alcohol. Not the case here.

4. Prisoners’ Liberty Interest – Prisoner has a liberty interest protected by due process only when prison authorities impose “atypical and significant hardships on the inmate in relation to the normal incidents of life.” Sandin v. Conner.

a. See p. 261.