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Administrative Law
SUNY Buffalo Law School
Gelernter, Lise

ADMINISTRATIVE LAW GELERNTER FALL 2012
 
CHAPTER 1: ADMINISTRATIVE LAW PRACTICE
 
A. What Is Administrative Law and Why Should We Study It?
Administrative law in this course covers the way in which the agencies have to conduct themselves and how government works.
 
            How the system works and how the law works in the government:
            How exec branch interacts with Congress and the courts
            What happens to a statute after it is passed
            What goes into that statute before it is passed
 
 Tension between three branches of government
 
How the statutes work?
 
            Self-executing statute
            Nothing else has to happen for the law to be implemented, such as national anthem and criminal statutes.
            E.g. NY Penal Law  – Robbery in the 3rd Degree
 
            Not self-executing statute [refer to p. 15 of Supplement, Title 7 of Agriculture]             The Secretary of Agriculture has to act in order for statute to be enforceable.
            Secretary of Agriculture is authorized to promulgate rules that regulate or ban importation of honeybees or honeybee semen in order to prevent the spread of disease.
            Secretary can fill things in (will study how much authority the Secretary has).
 
Agencies are an anomaly, i.e. agencies are in the executive branch and perform executive functions BUT they also perform quasi-judicial functions (adjudication) and quasi-legislative functions (rulemaking).  To a certain extent, set policy.
 
            Looking at Table of Contents, what do titles tell you re the program Congress has set up?
            Implied purpose and desired goals
            E.g. unlawful importation and undesirable species
            Scope of authority granted to the agency
            Use of funds and procedure by which the agency operates
 
            Does the Secretary have to act under the statute?
            No, it is not mandatory.  “Secretary of Agriculture is authorized . . .” No words or phrases such as “must” or “has to” that would indicate otherwise.
 
Fund For Animals, Inc. v. Rice
Court of Appeals for 11th Circuit, 1996
(Significance)
 
Facts: Environmental groups sought to prevent construction of municipal landfill on wetlands site that was allegedly indispensable habitat for endangered Florida Panther and home to the threatened Eastern Indigo Snake.   FWS took no action to list these animals are endangered or threatened; therefore, not required to issue a biological opinion. Sarasota County received permit after 5 ½ years.  Litigation ensued.
 
Players: 1) Fish and Wildlife Service has authority under Endangered Species Act to determine which species are endangered or threatened. 2) United States Army Corps of Engineers issue building permits concerning special kinds of construction, including those which affect wetlands, under the Clean Water Act. 3) Environmental Protection Agency involved because has discretion to review the permit decisions of the Army Corps under the CWA for filling the wetlands, for consistency with environmental laws. 4) Sarasota County wants to build landfill.
 
The United States District Court for the Middle District of Florida granted federal agencies' and county's motion for summary judgment. Environmental groups appealed.
 
Issues:
 
            Whether the district court erred in finding that the Corps did not act arbitrarily or capriciously in making the following three decisions:
            Granting the permit to fill 74 acres of wetland as a county landfill;
            Not holding a public hearing on the project; and
            Not preparing an Environmental Impact Statement under NEPA.
 
            Whether the district court erred in finding that the Fish and Wildlife Service (FWS) did not violate the Endangered Species Act (ESA) by issuing “no jeopardy” Biological Opinions and in finding that the Corps did not act arbitrarily or capriciously in relying on those Opinions.
 
Holding: The Court of Appeals, Dubina, Circuit Judge, held that: (1) grant of permit under Clean Water Act practicable alternative analysis was not arbitrary and capricious; (2) Army Corps of Engineers was not required to hold additional public hearings; (3) decision not to issue environmental impact statement was not arbitrary and capricious; (4) reasonable justifications for issuance of “no jeopardy” opinions concerning panther and snake were given; and (5) disallowal of discovery on issue involving memorandum from senator was not abuse of discretion.
Affirmed.
 
Additional Notes:
 
            Should the legislature have stepped in at some point?
            Congress should step in only when it is clear that it is taking long due to confusion, not because of other things going wrong.
 
1. What Is an Agency?
 
            Departments are agencies.
            Have the highest status and are comprised of various sub-entities with specialized responsibilities.
            Headed by a Secretary.
            Exception: the Department of Justice which is headed by an Attorney General.
            Hold offices at the pleasure of the President.
            Have a General Counsel or its equivalent.
 
            Departments contain a host of subentities, each of which is an agency.
            The individuals who head most of these agencies within departments are appointed by the President with the advice and consent of the Senate, and serve at the President’s pleasure.
 
            Most agencies are freestanding agencies, i.e. not part of the department.
            Many of freestanding agencies are independent agencies (distinguish from executive agencies). Independent agencies are more independent than executive agencies.
            1) Independent agencies are headed by a multimember group, not a single person. Reaches decisions by a majority vote.
            2) Members of the group heading the independent agency normally can only be removed for cause.  In executive agencies, heads serve at pleasure of the President.
            3) Heads of executive agencies until they resign or are fired.  Heads of independent agencies serve for a term of years (usually 5 years) on a staggered basis.
            4) Independent agencies normally require that no more than a simple majority of the agency can come from a single party.  Executive agencies’ heads are usually members of the President’s political party.
 
            One difference between state and federal agencies: in states, many agencies are headed by elected officials rather than federal officials appointed by the governor.
 
            Definition of an agency:
            “Each authority of the Government of the United States, whether or not it is within or subject to review by another agency.” (APA)
            Franklin v. Massachusetts (1992): President is not an “agency” under the APA.
            Government corporations are an authority of government that may or may not be agencies under the APA.
 
2. What Do Agencies Do?
 
a. Regulate Private Conduct
            Regulatory agencies are agencies engaged in regulating private conduct.
            Address consumer protection, preservation of the environment, individual health and safety, economic welfare, and other social and economic goals.
            Regulatory programs and agencies at the state level.  Local government also executes many regulatory functions, e.g. serves as an administrative agency re zoning regulations or issues licenses.
 
            Two justifications for extensive regulation of private conduct:
            Country has a private market system, but markets are subject to imperfections that the government can remedy or mitigate.
            Operation of unregulated markets may produce results or consequences that a majority of the citizens consider unacceptable, even if they are efficient from an economic perspective.
            Legislators may adopt regulatory programs for noneconomic reasons, e.g. prevent discrimination and preserve social values.
b. Administer Entitlement Programs
            Agencies that administer the entitlements programs dispense federal and state funds for specified purposes to the proper recipients.  To assure that recipients qualify for the program and that persons who qualify will in fact receive the benefits.
 
            Justifications for entitlement programs
            Act as “public goods”
            Increase the general welfare of society because of the crime and social upheaval that would occur in the absence of these programs.
            Government charity done for altruistic purposes.
            Subsidiary or related regulatory effect
            Government induces persons to change their conduct in specified ways by offering benefits under certain conditions.
c. Everything Else
            Not all agencies regulate private conduct or administer entitlements programs.    Including:
            The Internal Revenue Service
            The U.S. Citizenship and Immigration Services
            The Customs Service
            The Department of State
            The Department of Defense
            The Forest Service
            The National Park Service
            The National Aeronautics and Space Administration
            ETC.
3. Types of Agency Action
a. Rulemaking
            Corresponds to legislative action.
            Promulgates a regulation that has t

From Congress
            Receive complaints from statutory beneficiaries.  Conduct a critical legislative investigation.  Can threaten to reduce the agency’s budget or to attach an appropriations amendment that limits future agency action.
            The public can be a source for proposed regulations
            Lobbyists representing a segment of the public, triggers top-down approach.
            Lobbying done at the staff level.
 
Method by which an agency engages in making a new rule:
 
            A head of an agency or a regular staff member may decide it is necessary because of: 1) outside pressure from outside group (President, Congress); or 2) internal review of its rules.
            Definition of a “rule”:
            “The whole or a 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 any agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefore or of valuations, costs, or accounting, or practices bearing on any of the foregoing.”
            Follow §553 as procedure, unless fall into one of the exceptions.
            Exceptions:
            A military or foreign affairs function of the United States; or
            A matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.
            Procedure:
            Publish a notice in the federal register re: proposed rulemaking.
            Agency gives interested parties the opportunity to comment, this time period is not stipulated.
            Publication must be at least 30 days prior to effective date.
            Right for persons to petition for the issuance, amendment, or repeal of a rule.
            General exceptions to notice procedure:
            Good cause 
            Interpretative rules
            § 553(b) a hearing is required, except when: interpretive rules, notice unnecessary or contrary to public interest
            § 553(c) after notice, agency shall give interested people an opportunity to participate in rule-making
            § 553(d) rule to be made not less than 30 days after its effective date
            § 553(e) each agency shall give an interested person the right to petition for issuance, amendment, or repeal of rule
            § 555(e)- prompt notice given to a denial of an application
            § 704- Actions reviewable- final agency actions
            § 706- scope of judicial review
 
            Formal hearings
            Often not required for the rulemaking process because it is a long, trial-type process.
            Scope of review a judge can have in reviewing an agency action.
2. Lobbying
            Getting the agency to act in a certain way requires certain policy advocacy skills.
            Have to know what the agency’s mission is, what is purpose is, what its causes are.  May enable you to argue that whatever action it is that they are proposing to take will damage their own interest.
            Have to educate yourself about the agency’s normal procedures.
            Try to understand the political environment that the agency is involved in.
            Know the rudiments of policy analysis, i.e. cost-benefit analysis, risk assessment, knowledge of market forces.
            Initiating Agency Action
            Knock on every door.
            Look for allies.
            Read the newspapers.
            Know your audience.
            Read the rules.
            If you can’t think of something nice to say, say it anyway.