Administrative Law Outline

ADMINISTRATIVE LAW OUTLINE – JUDGE ED FELTER – FALL 2011

Mechanisms and Procedures for Resolving Disputes

Administrative Law – body of law dealing with the functions of administrative agencies, how decisions are made by those agencies, and the methods of review by the courts

Branches of US Gov’t – (1) Executive (includes admin tribunals), (2) Legislative (adopts laws), Judicial (the court)

Federalism – Fed Gov’t

· Federal APA – Like a roadmap on how you deal with Federal Admin Agencies

· Federal ALJ’s – independent, in a separate office

· Federal AJ’s – tribal court judges, trial probate judges

Federalism – State Gov’t

· State APA – CO APA provides a lot of due process protection

· Central Panels of ALJ’s or Hearing Officers

· Hearing Officials within the Agencies

Constitutional Due Process – Guaranteed

· No CL of Admin Law

· Specific Law always controls the General Law

Functions of an Agency – All functions are combined. An agency can have 3 functions (E, L, J), but there has to be a separation of the 3 functions

Admin Law Adjudication Mechanisms

· Office of Hearings & Appeals (ALJ or Hearing Officers)/Central Panels of ALJs

· Admin Tribunals (Canada, UK, Australia)

· The Courts (specialized or general jurisdiction)

Basic Ingredients of a Due Process Hearing

· Notice and Opportunity to be Heard

· An opportunity to compromise before hearing

· Impartiality (not showing favoritism to one side or the other) and Independence

· Procedural Rules – More specific rules control.

· Opportunity for a full Evidentiary Hearing

· Written decisions stating reasons for legal basis for decisions

Anatomy of the Written Decision – (1) Preliminaries (time, place of hearing, jurisdiction, etc.), (2) Findings of Fact, (3) Conclusions of Law, (4) The Order, (5) Advisement of Appeal Rights

Admin Agency – Adjudication Mechanisms are generally Executive Branch creatures

· Congress can create inferior, statutory courts within the judicial branch

· Congress can also create statutory courts within the executive branch

Agencies have been described as the “headless” fourth branch. Because they do not fit neatly in the scheme of Separation of Powers

Agencies are created to implement specific legislative purposes. As such, Agencies have a combination of functions

· EXECUTIVE – Enforcement

· LEGISLATIVE – Rulemaking

· JUDICIAL – Adjudications

To do these functions, the agency must interpret any vague or imprecise language to:

· Identify scope of its authority

· Determine the exact meaning to be given to the imprecise language

· Identify the specific legislative goals to be achieved

· Identify the exact methods it is authorized to use to achieve the desired results

Delegation

· Admin agency has power to determine individual rights and responsibilities by deciding specific cases, the agency exercise a portion of power of the judicial branch

· Agency decisions are final and binding on the parties over whom the agency has jurisdiction unless set aside by a reviewing court

· Judicial review of agency decisions is generally limited in scope

· De novo review is almost unheard of because it would undermine the entire administrative agency concept

Sources of Administrative Law Research p.79

· Organic Legislation establishing the agency

· Relevant portions of the APA

· Other legislation generally applicable to the agency

· Agency rules: substantive (delegated authority), interpretive guidance documents, bulletins

· Constitutional requirements (check the rules against the Constitution)

· Agency adjudication decisions

· Court decisions relevant to the agency

You can have higher standards, but cannot have lower standards

APA sets a minimum – cannot have something lesser than the APA

Does the APA apply to Agency Rulemaking Procedures?

· Does the APA apply generally?

· Does the particular rulemaking proceeding fall within the coverage of the APA?

· Does agency legislation exempt the rulemaking proceeding from the APA?

Federal: the APA presumptively applies to virtually all federal agencies

State: APA presumptively applies to rulemaking although a specific regulatory scheme may be sui generis for other purposes

· Nevertheless, one can argue that there is a default to the APA when a specific statutory scheme (sui generis) is silent

Agency must take action to implement the legislatively mandated program

· Executive – through assertion of executive power, the agency may:

o Announce program policies

o Interpret legislative provisions (statutes)

o Advise those subject to its authority (bulletins)

o Prosecute (through the attorney general) those in violation of program requirements

· Legislative – agency may promulgate substantive rules that have the force of law

· Judicial – agency may adjudicate specific disputes that arise in the course of its administration of the program

Factors in Agency’s choice of powers to exercise

· Internal to Agency

o Age and experience of agency

o Complexity of policy issues

o Agency’s adjudication caseload

o Public relations

· External to Agency

o Legislative pressure and intrusion

o Executive pressure and intrusion – president or the governor

o Petitions for rule making by a member of affected public

o Judicial review considerations

***Exhaustion – Must exhaust all remedies before you go to court – unless agency has done something egregious.

2 principal applications of exhaustion doctrine:

1. A plaintiff may not forego the administrative procedure and file suit directly

2. Any claims or issues not presented in prior administrative proceedings may not be raised on judicial review

Standing for Judicial Review

· Is the injury too abstract?

· Is the line of causation too attenuated

· Is the prospect of obtaining relief as a result of a favorable ruling too speculative

Constitutional Reasons for Judicial Intervention, Failure to Adopt Rules

· Equal protection of the laws

· Without rules, the agency leaves its actions to the unfettered discretion of the individual adjudications

· Neither the public nor the courts can know in advance what evidence was material to a particular decision

Effect of Agency Not Adopting Rules

· Agency not paralyzed because it has not adopted rules

· It can publish interpretations of its statutes and expect compliance

· Or it can await the development of specific cases and establish policies by exercising adjudicative power to develop a clearer game plan for adopting substantive rules

Checklist of