Admin Law Fall 2009
I. Chapter 1 Introduction
a. Agencies: their origins, forms and functions
i. What is an agency?
1. Admin law is the law governing the forms, functions, and activities of government agencies.
2. An agency is:
a. Any Authority of the US government except congress, federal courts, territorial governments and certain military entities.
b. An authority can be an agency even if it is in or subject to review by another agency.
3. A person could be an agency if they had sufficient responsibility to make them an authority.
4. An Authority is:
a. Any officer or board which by law has authority to take final and binding action with or without appeal to some superior administrative authority.
ii. Where do agencies come from?
1. Behind every agency lies a legislative act (called an organic act) that creates, empowers, defines, and limits the agency.
2. Every federal office except the few created by the constitution must orgininate in this type of legislative act.
iii. The structure of Federal agencies
1. Single headed OR Multi member agencies
2. Executive agencies
a. President can remove head of that agency at will
b. These are more ‘policitally accountable’
3. Independent agencies
a. Cannot be removed at will by president.
iv. Agency functions: The distinction between Rulemaking and Adjudication
1. Non binding Agency action
a. Agency action can either have formal legal effects…or not.
2. Rule Making and Adjudication
a. When agencies affect the rights and obligations of people, they do so through either RULE MAKING or ADJUDICATION
b. Rule making:
i. Looks like legislation passing a law.
ii. Results in a RULE.
iii. Can be fined/jailed if rule is broken
i. Looks a lot like a court deciding a case.
ii. Results in an ORDER
iii. Functions like a court judgement and can be legally enforced.
d. Dickinson excerpt:
i. What distinguishes legislation from adjudication is tha the former affects the rights of individuals in the abstract and must be applied in a further proceeding before the legal position of anyone will be touched by it while adjudication operates concretely upon individuals and their property.
e. FUCHs excerpt
i. General Regulations VS Orders of specific application
1. Can be distinguished in the manner in which the parties subject to it are designated.
2. If parties named or identified by relation to a property in specified then the order is of specific application.
3. If not named by order applies to designated class of persons or situations the order is a general regulation or rule.
f. Londoner V City and County of Denver.
i. Street paving assessment tax case.
ii. Charter gave public works board, upon the petition of a majority of owners of the frontage assessed may order the paving of a street.
iii. Issue: does the charter
of a final disposition of an agency in a matter other than rule making but including liscencing.
iii. (7) adjudication means agency process for the formulation of an order.
i. Executive order 12866
i. Regulation or rule means any agency statement of general applicability and futue effect which agency intendes to have force and effect of law designed to be law or policy or describe the workings of the agency.
j. YEsler terrace community council V Cisneros
i. The Washington housing authority could dispense with grievance hearings for crime related evictions.
ii. YEsler brought action because they said the housing authority did not provide notice and opportunity to comment and violated due process.
iii. The HUD says that they aren’t following a rule but an order from an adjudication.
iv. Court disagrees
v. Adjudication is any agency action which is not rulemaking.