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Administrative Law
Penn State School of Law
Mathews, Jud

ADMINISTRATIVE LAW OUTLINE—SPRING 2017 MATHEWS

WHAT IS AN AGENCY
An agency is any authority of the US government except Congress, the federal courts, territorial governments, and certain military entities.
Administrative Procedure Act (1946)
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—
The Congress;
The courts of the United States;
The governments of the territories or possessions of the United States;
The government of the District of Columbia; or except as to the requirements of section 552 of this title—
Agencies composed of representative of the parties or of representatives of organizations of the parties to the disputes determined by them
Courts martial and military commissions;
Military authority exercised in the field in time of war or in occupied territory; or.
Authority—means any officer or board, whether within another agency or not, which by law has authority to take final and binding action with or without appeal to some superior administrative authority.
This is allowed because Congress was given power “[t]o make all Laws which shall be necessary and proper for carrying into execution.”
Agencies are either single-headed  or multi-headed, meaning simply that there is either a single person at the top of the organizational chart or more than one person sharing (at least in theory) ultimate decisional authority.
Agencies whose heads are subject to unlimited presidential removal authority are generally referred to as executive agencies
Other agency head are, by statute, given some form of tenure office, such as a term of years along with a provision allowing removal for cause.
Cause is typically thought of as misconduct such as criminal dishonesty or gross incompetence, NOT simply making a policy choice different than
Misconduct can have one meaning in one statute and another meeting in another statute.
Administrative law is the law governing the forms, functions, and activities of government agencies.
Yates v. United States
Commercial fisherman, caught undersized red grouper in federal waters in the Gulf. To prevent federal authorities from confirming that he had harvested undersized fish, Yates ordered a crew member to toss the suspect catch into the sea. The question is: Whether fish are tangible objects under 1519 the obstruction statute, and thus covered under 1519.
The majority used ejusdem generis, noscitur a sociis, and the rule of lenity.
The plainness or ambiguity of statutory language is determined not only by reference to the language itself, but as well by the specific context in which that language is used, and the broader context of the statute as a whole.
Noscitur a sociis—a word is known by the company it keeps—to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, this giving unintended breadth to the Acts of Congress.
In this case the words were not read as any tangible object but specifically to the subset of tangible objects involving records and documents.
Ejusdem generis—Where general words follow specific words in a statutory enumeration the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.
Basically what was the point of providing examples at all if Congress meant the statute of have more breadth than the examples.
Rule of Lenity
Ambiguity concerning the ambit of criminal statues should be resolved in favor of lenity.
Where there is a possible 20-year prison sentences for tampering with any physical object, the court decided to follow the rule of lenity.
RULEMAKING VS ADJUDICATION
Action by agencies falls into two categories: action that has formal legal effects on people and action that does not.
Rulemaking—when an agency engaged in rulemaking, it does something that looks very much like a legislature passing a law. I you violate a rule, you can be heavily fined, punished in other ways, or even sent to jail under appropriate circumstances. Agency rules can even preempt otherwise valid state laws.
5 U.S.C. § 551(4)-(9)—For the purpose of the APA—
Rule means the whole or in part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rate, wages, corporate or financial structures or reorganization thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting or practices bearing on any of the foregoing;
Rulemaking means agency process for formulating, amending, or repealing a rule
Order means the whole or part of a final disposition, whether affirmative, negative, or injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing;
Adjudication—means agency process for the formulation of an order;
License—includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission.
Licensing—includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license.
Adjudication—this looks more like a court case. It results in an order which functions in most ways like a court judgement. If you violate an agency order, the order can be legally enforced.
Londoner v. City and County of Denver
Wanted to tax a road that went through this property and people had the opportunity to send in complaints for this rule, but not in person at a hearing, the only people who got taxed were the people along this road. Whether the charter provision authorizing such a finding, without notice to the landowners, denies to them due process of law. Whether the assessment was made without notice and opportunity for hearing to those affected by it, thereby denying to them due process of law.
More is required than an opportunity to submit in writing objections and complaints, “[b]ut even here a hearing in tis very essence demands that he who is entitled to it shall have the right to support his allegations by argument however brief, and, if need by, by proof, however informal.
Bi-Metallic Investment Co. v. State Board of Equalization of Colorado
Wanted to increase the taxes in Denver but it was alleged that the council did not provide any opportunity for hearing and this thus violates his due process rights.
Where a rule of conduct applies to more than a few people it is impracticable that everyone should have a direct voice in its adoption. The constitution does not require all public acts to be done in town meeting or assembly of the whole. There must be a limit to individual argument in such matters if government is to go in.
This differs in the disposition of Londoner, here you can differentiate these from each other because one constituted an entire city, and one only matter one road in a city.
The other difference is that in this case the change affects all people equally. However, more people have an electoral power to vote people who appoint the board out, while a small subsect of people (like in Londoner) have no electoral power, because the tax in Londoner effected everyone but hurt only the people on his road so the tax was done disproportionately not about the tax in and of itself.
Yesler Terrace Community Council v. Cisneros
Evicted public housing residents without a opportunity for hearing.
Usually the right to hearing before eviction, but in some instances for criminal activity in Public Housing they can evict without hearing.
Was this a rule or an adjudication and therefore was there was a violation of due process. The court held that this was a rule, because it was adjudications resolve disputes among specific individuals in specific cases, whereas rulemaking affects the rights of broad classes of unspecified individuals, thus subject to notice and comment.
The only defining part of a rule is an agency statement of future effect
Shell Offshore Inc., v. Babbitt
It is clear from interior’s denial of Shell’s internal memoranda and correspondence with Shell that interior’s denial of Shell’s request was the

ngress under its power: [t]o make all Laws which shall be necessary and proper for carrying into execution all powers vested in the institutions of the national government.
Appointment Clause
The President shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme court, and all other officers of the US, whose Appointments are not herein otherwise provided for, and which shall be established by law; but the congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
Officers refers to some class of especially important government workers—such as high-level agency officials, federal judges, and other figures such as at least in earlier days) justices of the peace for the District of Columbia.
This creates two modes of appointment:
Presidential appointment subject to advice and consent by the Senate; and
This is the default mode for all officers and the only for principle officers.
Appointment without Senate participation, by the President, the courts, or department heads.
This mode is only available to inferior officers and only when Congress chooses to utilize that mode.
In Freytag, the Supreme Court unanimously held that Chief Judge of Tax court could constitutionally appoint special trial judges, the court decided this was because the chief judge was a “court of law” not a head of a department because the term department refers only to a part or division of the executive government as expressly created and given the name department of a department by congress. Does not include inferior commissioners and bureau officers.
SCALIA DISSENT: he felt courts of law only includes article III courts not any court and since the Tax court is not an article III court.
Buckley v. Valeo—Who is an Officer of the US
Whether, in view of the manner in which a majority of its members are appointed, the Commission (Election) may under the Constitution exercise the powers conferred upon it.
The Terms officers of the US as used in Art II is a term intended to have substantive meaning. Any appointee exercising significant authority pursuant to the laws of the US is an officer of the US. Therefore they must be appointment in the manner in the appointments clause.
Congress cannot have it both ways. If the Legislature wishes the Commission to exercise all of the conferred powers, then its members are in fact Officers of the United States and must be appointment under the appointment clause. But if Congress insists upon retaining the power to appoint, then the members of the Commission may not discharge those many functions of the Commission which can be performed only by Officers of the US.
Landry v. FDIC—Whether the FDIC method of appointing ALJ’s violates the appointment clause of the Constitution when the FDIC assigned a case to an ALJ for a formal on the record, administrative hearing. The disposition was appeals to the FDIC’s board of Directors for a final decision.
Because ALJs cannot issue final decisions like special trial judges and only issue recommendations and the decisions are reviewed de novo. This makes them actually NOT inferior officers but actually even lower as employees.
Right now there is a current circuit split