Rizzardi: Spring 2012 Administrative Procedure & Practice 4th Edition Funk
– What is an agency:
o §551(1)
o Not congress, the courts, the states, military, or the President.
– Rulemaking:
o Process for formulating, amending, or repealing a rule.
o Rule: an agency statement of future effect designed to implement, interpret or prescribe law or policy
– Adjudication:
o Process for the formulation of an order
o Order: whole or part of a final disposition other than rulemaking, but includes licensing
Ethics
– A lawyer employed by an organization represents the organization and must act in the Agency’s best interest, even to the detriment of certain agency members.
– The lawyer must notify the members of the agency of his responsibility – must identify his client
– “The Public” is not the governmental lawyer’s client, the client is the employing agency.
– A lawyer can be held responsible for the actions of another lawyer if:
o The lawyer supervises (or is an equal with) the unethical lawyer and does not stop him if he knows
o The lawyer orders the ethical violation or ratifies it
– Government lawyers have the ability to essentially veto government action by declaring it “illegal”, so must use that authority very carefully
– As a general rule, a lawyer cannot disclose information related to representation of his client except to:
o Prevent the client from preventing a crime or fraud
o Prevent death or substantial bodily harm
o Prevent a substantial financial interest if such interest will be harmed by the clients illegal or fraudulent action
o Secure advice about compliance with the requirement to keep information confidential.
o To comply with a court order
– There is a government-lawyer privilege, but the privilege exists between the lawyer and the agency, not an individual.
o Violations of law by government employees must be reported to the AG.
o Government lawyers are not intended to defend against criminal charges
o The lawyer’s representation of any individual is for the benefit of the public.
Rulemaking
– Rulemaking can be initiated by a statutory command from Congress, through admin staff recommendation (bottom up), from the President(top down), or by a rulemaking petition from the public.
– Petitions for Rulemaking
o §553(e): each agency shall give an interested person the right to petition for issuance, amendment, or repeal of a rule.
o To get an agency to act, you probably need to be able to align your problem with the agency’s mission, be able to justify your solution in the political climate, and be able to offer proper analysis to the agency.
o §555(e): Prompt notice shall be given of the denial on whole or part of a written application, petition, or other request of an interested person made in connection with any agency proceeding and the notice shall be accompanied by brief statement of the grounds for denial.
§ An agency cannot ignore a petition for rulemaking – it must promptly give notice of a denial and state the grounds therefore.
§ If an agency does not respond properly, the petitioner can seek relief under §706(1), which allows the court to compel agency action withheld or unreasonably delayed.
§ §551: “Agency Action” includes failure to act.
o DELAY:
§ Failure to act may not be a final action, and courts may be reticent to take jurisdiction over an interlocutory petition.
§ The court will take interlocutory appeals for failure to act, because the APA §555(b) requires the agency to act in a reasonable time.
§ Test to compel action:
· The time agencies delay must be governed by the “rule of reason”
· Look to the statute giving the agency authority – is there a timetable?
· Economic rules can delay longer than rules related to health or human welfare.
· What else is the agency doing that is competing with the petition for time and resources?
· What interest is prejudiced by the delay?
· The agency need not be found to delay with malice, court can compel action absent malice.
· Look to the same issues that apply to “speedy trial” considerations (short test)
§ DENIAL OF PETITON:
· Once an agency denies a petition for rulemaking, that denial can be reviewed by a court.
· The scope of review of denial of a rulemaking petition is very narrow under the APA – such review is limited to determining whether the agency adequately explained the facts and policy concerns it relied upon, and that those facts have some basis in the record.
· (SIDE NOTE): An agency’s refusal to bring an ENFORCEMENT action is not generally subject to judicial review. (Prosecutorial Discretion)
· Refusals to promulgate rules are susceptible to judicial review, though such review is extremely limited and highly deferential.
o Although deferential, the agency’s action or inaction must still conform to the authorizing statute.
o The agency must offer a reasoned explanation, not a mere denial.
o If it offers a mere denial, the agency is action in a manner that is “arbitrary, capricious, … or not otherwise in accordance with law.”
· Under the “arbitrary and capricious” standard of review:
o The agency is obligated to “examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’”
· An order to institute rulemaking proceedings is rarely an appropriate remedy – typically the court merely remands to the agency to reconsider and determine if circumstances have changed and rulemaking is now appropriate.
– Procedures in Rulemaking
o EXCEPTIONS TO REQUIRED PROCEDURES:
§ The typical requirements are notice and opportunity to comment §553. The first step is to determine whether or not these “requirements” are required.
§ §553 does not, by its terms, apply to: military or foreign affairs functions, or matters “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.”
§ The focus of the APA is on protecting individual rights and for protection for statutory rights.
§ Agencies who are otherwise immune from the requirements of notice and comment have voluntarily subjected themselves to the requirements.
§ Other statutes may cause otherwise exempt agencies to be subject to the requirements.
§ Even when NOT subject to §553, agencies are still subject to §552 (FOIA) and must publish in the Federal Register changes being made – may also give affected persons actual notice if they choose not to publish in the Fed. Reg.
o Exceptions from §553: 1) Agency organization, procedure, or practice 2) interpretive rules 3) general statements of policy, and 4) other rules for which notice and comment are impracticable, unnecessary, or contrary to the public interest (aka Good Cause).
§ These exceptions are narrowly construed and only reluctantly countenanced.
§ Good Cause: Exception allowed when notice and comment would defeat the agency’s regulatory objective or immediate action is necessary to prevent harm to persons or property.
§ Agency Organization, Procedure, or Practice:
· Agencies need to retain latitude in the internal operations.
· Applies if the agency rule does not alter the rights or interests of parties – is ok if they alter the manner in which parties present themselves to the agency.
· The critical feature of the procedural exception is that it covers agency actions that do not themselves alter the rights or interest of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency.
· The test is one of degree, and the court’s task is to identify which substantive effects are sufficiently grave so that notice and comment are needed to safeguard the policies underlying the APA – does the rule control primary conduct?
o FROMAL RULEMAKING:
§ §553
§ 1) The content of the pressure must be designed to force the agency to decide upon factors not made relevant by Congress in the applicable statute
§ 2) The agency’s decision must be affected by those extraneous considerations.
· STATEMENT OF BASIS AND PURPOSE (p125)
o §553: After the notice an comment agencies are required “to incorporate in the rules adopted a concise general statement of their basis and purpose.” (PREAMBLE)
o HYBRID RULEMAKING
§ Statutes outside of the APA may add various requirements to the basic APA informal rulemaking procedures
§ The Regulatory Flexibility Act requires agencies to create a Regulatory flexibility Analysis (RFA) whenever they propose a rule that may have a significant economic impact on a substantial number of small businesses, organizations, or governments.
· The RFA must include: reasons for the regulation, statement of the objectives and legal basis for the rule, description of the affected entities, reporting or recordkeeping requirements, identification of overlapping or conflicting rules or statutes, and a description of regulatory alternatives that may have a lesser impact.
· After comment on the proposed rule, the final rule must include 1) a summary of the comments received, 2) the agency’s response to them, and 3) an explanation why an alternative was not adopted that would reduce the impact on small entities.
· Judicial review is available (but courts cannot review the substance of the RFA but can consider it when determining whether rule is A&C under § 706), and courts may defer enforcement
· Special Procedural Requirements: for EPA and OSHA
o A’s must create a special advisory committee of members of the small entities to review the proposed rules before they are published for comment.
§ The Paperwork Reduction Act requires agencies to engage in notice and comment procedures prior to imposing any reporting or recordkeeping requirement on persons.
· Info must be necessary for the proper performance of the agency, not duplicative, uses information tech. to reduce burden, is written in plain language, and takes account of the particular problems faced by small entities.
§ Executive Order 12866 requires executive agencies to perform a cost-benefit analysis of major rules and submit the analysis to OIRA to comment on before publishing for notice and comment.
· ExO does not allow judicial review it was intended to improve management of the federal government.
§ Unfunded Mandates Reform Act requires agencies, before promulgating either a proposed or final regulation that would include a “mandate” resulting in costs over $100 million annually on state, local, or tribal governments or the private sector, to prepare a statement assessing the effect of the regulation and they must consider alternatives and must select the best rule on a cost-benefit analysis.
· A must select the least costly, most effective, or least burdensome alternative that achieves the objective of the rule
§ Congressional Review of Agency Rulemaking Act requires agencies to delay the effective date of rules by 60 days to allow Congress to pass a resolution and present it to the President to reject the regulation.
