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Administrative Law
SUNY Buffalo Law School
Meidinger, Errol E.

ADMIN LAW MEIDINGER FALL 2014

Topic: ADMINISTRATIVE LAW PRACTICE (BACKGROUND)

Agency (APA § 551): “each authority of the Govt of the US, whether or not it is w/in or subject to review by another agency.”

· Exempts Congress, Courts, President

· Agencies have accountability to both the EXECUTIVE & LEGISLATIVE branches

Ideas

· Agent/Principal

· Omission/Commission

· Interfering w/individual liberties vs. mgmt. of govt property

Where do we find Admin Law?

· APA

· Statutes governing agencies

· Executive Orders

· Judicial Opinions

· Agency rules

TYPES OF AGENCIES

Ø Departments

o Heads (Secretary) = make up cabinet

§ Except head of DOJ is Attorney General

§ Heads = Principal Officers =Appointed w/advice & consent of Senate

o Made up of sub-entities which are also agencies

§ Ex) FAA in Dept of Trans.; IRS in the Treasury Dept.

o All of these are part of EXECUTIVE branch

Ø Independent Agencies (Ex. FCC, NLRB, FTC, SEC)

o Not part of a department

o Called independent b/c they are more isolated from President’s control/politics

§ Headed by multi-member groups (not a single head)

§ Head members serve for a term of years, staggered basis (not changed w/each President)

§ No more than a majority come from 1 political party

§ Can only be removed for cause

o EPA & Soc. Security Admin. are Independent Executive Branch Agencies

WHAT AGENCIES DO & HOW

*WHAT: Agencies are the entities that actually execute the laws that Congress passes.

Ø Regulate private conduct

o OSHA, FTC, SEC

o Why? Fairness (unfair competition); prevent inadequate consumer info; safety, etc

Ø Entitlement programs

Ø Manage federal property

Ø Everything else

*HOW: Congress creates agency à gives a legislative mandate à as part of this, gives agency authority to make rules (and often allows them to “fill in the gaps”)

Ø Agencies are also governed by their own specific laws.

(1) Rulemaking

· Limited to what it has been delegated to do

(2) Adjudication

· Determine whether rule has been violated by a regulated entity

· DP Clause & APA are general sources of required process for federal agencies

· OR, issue permits, licenses, benefits, etc.

(3) Investigating

· Also, gathering info

· Find out if an entity is complying w/rules or has violated rules

· Ex) income tax returns are also included in this

*SEPARATION OF POWERS ISSUES

Ø In an agency, there is a blur of separation of powers – all 3 kind of come together.

Ø However, although agencies have power to make rules, its limited to what Congress tells them they can do – “QUASI-LEGISLATIVE”

Ø Congress also delegates adjudicative powers, but is “QUASI-JUDICIAL”

Ø Also, even independent agencies are subject to control by the other branches.

Topic: RULEMAKING

1. WHAT IS A RULE?

· “an agency stmt of general applicability” and “future effect”

o Unlike orders from adjudication, rules do not name particular persons.

o Future effect = cannot make a retroactive rule

· “designed to implement, interpret, or prescribe law or policy”

o includes procedural rules

Rulemaking: “agency process for formulating, amending, or repealing a rule”

Ø Section 553 of APA – procedures agencies must follow for rulemaking

2. INITIATION OF RULEMAKING

Ø Statutory mandates à may require agencies to adopt rules.

Ø Bottom-up approach à staff recommendations or public (lobbying & petitions)

Ø Top-down approach à Congress requires specific action; White House prompting

*Once an agency decides to initiate a rule, it must publish that info in the semi-annual Regulatory Agenda.

PETITIONS for Rulemaking

APA provides “right to petition for issuance, amendment, or repeal of a rule” (§ 553)

o Agencies might have further procedures

Ø Failure to Respond

o §555 à requires an agency to at least respond to the petition in a timely fashion.

o Cannot ignore a petition b/c of “prompt notice” req’mt

o If agency does ignore à “failure to act” à JUDICIAL REVIEW

§ § 706 (“unreasonably delayed” standard)

§ But, difficult for courts to assess “unreasonable” (not in agency’s position)

· Sometimes courts will tell agency to “give a timetable”

Case: TRAC v. FCC (TRAC sought judicial review b/c of FCC’s failure to respond – then FCC w/judicial action pending said it would resolve matter before a certain date, but court retained jurisdiction to supervise agency timetable).

Ø Denial of Petition

o Agency must have “brief stmt” of grounds for denial (§ 555)

o JUDICIALLY REVIEWABLE (Is Denial Lawful?)

§ Depends on applicable laws & why denied

Ex) Denied b/c it doesn’t have authority to adopt rule (LEGAL issue)

Ex) Denied b/c its views are different than petitioner (FACT/JUDGMENT issue)

Case: Mass v. EPA (EPA said it didn’t have authority to regulate greenhouse gas emission and even if it did, it would be “unwise” to do. Court said it does have authority & can only avoid taking action if it provides a “reasonable basis” as to why it will not. Remanded to EPA).

3. RULEMAKING PROCEDURES

Exceptions

General Exceptions from APA Rulemaking Procedures

· Agency mgmt. & personnel

· Military & foreign affairs

· rules re: public property, public loans/grants, benefits, contracts.

BUT, some agencies have waived exceptions and subjected themselves to 553’s req’mts.

gar. Final rule removed flavored milk from WIC. INADEQUATE NOTICE – NOT A LOGICAL OUTGROWTH. First time milk was mentioned was in new rule. Mention of sugar not enough. Invalid. New notice period needed w/new proposed rule).

FINAL OUTGROWTH TEST: if final rule materially alters the issues involved in the rulemaking, or if it “substantially departs from the terms or substance of the proposed rule,” notice is inadequate.

b. Opportunity for Comment

· No oral presentation or hearing req’mt

· APA doesn’t mandate any specific time period for comments.

Ex Parte Communications

· Oral or written communications NOT on the public record w/respect to which reasonable prior notice to all parties is not given.

o Includes communications by any interested person outside agency relevant to the merits of the proceeding.

· Informal rulemaking doesn’t prohibit ex parte communications

o BUT, Congress can and does and DP clause also limits them.

o Even if not a strict prohibition, many agencies don’t want it to take place b/c it suggests corruption and if rule is challenged in court they will ultimately need to defend the rule on the basis of info in the public record.

Case: HBO v. FCC (Court held that after publication of the notice of proposed rulemaking, agencies could NOT engage in ex parte communications w/interested person. If such communications did take place, agency would have to place them on the record and allow interested persons to respond to them.)

*RULE: §706 of the APA requires in reviewing agency decisions the court must be privy to the “WHOLE RECORD.” Any ex parte contacts must be placed in the record so others may comment.

Case: Sierra Club v. Costle ( “relevance” standard more liberal than in HBO. Not all communications had to be documented – ex) meeting w/President b/c it was intra-Exec. Statute gave EPA discretion to decide which communications must are of central relevance & must be docketed)

*RULE: If agency receives comments it must put them on the record “if they are relevant.”

c. Statement of Basis & Purpose

· Preamble – must incorporate in the rule.

· Meant to be GENERAL, but most aren’t.

o Statutes & court decisions can require agencies to include more in their preamble.

· Gives agency a chance to respond to comments accepted/not accepted.