Administrative Law Outline

ADMINISTRATIVE LAW

DUFF

SPRING 2013

I. Agency Structure

a. Dictated by enabling statute

b. Purpose:

i. Regulate Private Conduct – environment, taxes, labor

ii. Administer Entitlements – social security, Medicare, Medicaid, welfare (New Property)

iii. Any other functions directed by Congress

c. Actions:

i. Rulemaking – Agency promulgates rule in response to problem

1. Applied in the future to all regulated entities (prospective)

2. Quasi-legislative

ii. Adjudication – ‘judicial’ process to determine if regulated entity violated existing rule

1. Quasi-judicial

2. Functions like rule – puts you on notice

iii. Investigation – Agency obtains information necessary for rulemaking or adjudication

1. Subpoena, filing reports, granting access to premises

d. Authority

i. Enabling Statute

ii. APA

II. Rulemaking – fill in gaps within boundaries of enabling statute (force of law)

a. Definition of a Rule: APA 551(4): 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…

b. Initiation

i. Congress

ii. President

1. Agency heads serve at the pleasure of the president

iii. Petition for Rulemaking

1. Inaction (no response) – TRAC v FCC

a. 555(b) – cannot unreasonably delay

b. 706(1) – Court can compel agency action unreasonably withheld or delayed

2. Refusal to initiate Rulemaking (Denial) – Arkansas Power v. ICC; Mass v. EPA

a. 701

b. Arbitrary or capricious denial?

c. To avoid court ordered rulemaking (which is rare)

i. Adequately explain facts and policy concern

ii. Facts have some basis in the record

d. Agency must have authority to act under enabling statute

c. Procedures – Notice/Comment/Statement of Basis and Purpose

i. Notice & Comment – Exceptions 553(a) and interpretations

a. Military or foreign affairs

b. Related to agency mgt, personnel, public property, contacts, loans, grants or benefits

c. Notice & Comment 553(b)(A)

i. Interpretive rules, general policy statement of policy, rules of agency organization, procedure or practice

1. BOWEN – agency actions that do not themselves alter the rights or interests of parties, although it may alter the manner in which parties present themselves or their viewpoints to the agency

2. BOWEN – Value Judgment Test – agency action requires notice and comment if it encodes substantive value judgment or places stamp of approval on type of behavior– NO NEW BURDENS ON INDVIDUALS

3. ATA

a. Apply where agency is setting up a civil adjudication system – no other time

b. N&C is required

4. JEM BROADCASTING – use to define what a procedural rule is (assumes broader class than ATA for not requiring N&C – brings back Bowen)

a. N&C exceptions “narrowly construed and only reluctantly countenanced “ – most rules must go through N&C

b. Agency actions not altering rights/interests of parties are procedural

i. If rule does alter rights of parties, then substantive – requires N&C

c. “Substantive effects” – sufficiently grave that N&C needed to safeguard APA policies

i. Says nothing, so on final just use quote

ii. 553(b)(B) – Agency for good cause finds notice/procedure impracticable, unnecessary, or contrary to public interest

1. Must provide find/statement with rule

2. Surprisingly common

ii. Informal Rulemaking §553

1. Basic Requirements: The basic requirements of informal rulemaking are:

a. Published notice of the proposed rulemaking;

b. Opportunity for public for comment; and

c. After consideration of the comments, publication of the final rule together with a concise general statement of the rule’s basis and purpose.

2. Provide notice (federal register)

a. 553 Requires notice of either the text of a proposed regulation or a description of the subjects or issues involved in the rulemaking

b. Courts have required that the rules ultimately adopted be the logical outgrowth of the proposal, that they not substantially depart from the original proposal, or that the final rule may not materially alter the proposal.

c. Has to accept comments but doesn’t have to respond to them

d. Notice may be actual or constructive (federal register)

e. Notice Standard

i. Notice must “fairly apprise interested persons” of the issues in the rulemaking

ii. Standard is satisfied when the r