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Administrative Law
University of Kansas School of Law
Glicksman, Robert L.

Administrative Law
I. Administrative Law Practice
A. Introduction to Administrative Law
-APA allows bringing a suit if agency acted unlawfully by not complying with required procedures applicable- Fund for Animals v. Rice (11th)
Government is administrative agencies.
2 facets-1) the laws that governs how agencies do what they are created to do
2)- the laws that agencies make (not addressed in this course)
1. What is an agency?
“agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency
-President is not an agency- Franklin (He’s a principal)
-Departments are agencies with highest status-headed by secretary (excep AG) -can be fired for any reason
-Freestanding agencies- these can either be independent or executive
-Independent agencies (FEC, SEC, FDIC,EPA)headed by a multimember group, -only fire for cause, serving term of years, can have limits on party affiliat
-Executive Agencies are subject to more presidential ctl, headed by a sec’y
-can be fired for any reason
2. What do agencies do?
Execute the laws by which they are established and give them authority
a. Regulate Private Conduct- regulatory agencies, can include local governments
b. Administer Entitlement Programs (ie MediCare, Medicaid, social security)
c. Everything Else- Economic Inefficiency and market failure
Agencies can require public disclosure to rectify market failure
Justifications for Intervention in the Market (page 2 in class notes)
3. What form of action should an agencies intervention take?
a. Rulemaking- corresponds to legislative action- published in the federal register, then the CFR, must have an adequate reason for any regulation
(legislature is either not equipped, or not inclined)
agencies must issue rules in accordance with procedural requirements
-much more detailed requirements than congress legislation
agency rules are subject to judicial review for compliance with requirements set forth by the agency’s enabling legislation
b. Adjudication- corresponds to court action- some agencies don’t have this power and have to bring cases in courts
1) agencies have adjudication scope limited to just decided focus
2) adjudication is still then subject to judicial review
c. Investigation-corresponds to the executive branch, typically the subpoena power, compel testimony subject to judicial review (also called prosecution)
-can require regulated entities to generate and keep records
-some agencies have power to inspect facilities
-can bring administrative compliance proceedings
-or can bring an action in court
4. US constitution doesn’t mention administrative agencies anywhere
-Thus there’s a confused attitude toward the agencies
Pro-Agency position Anti-Agency
When dealing w/ agencies cts should -views agencies as 4th head of gov.
1) give close call of constality to agency -have own agendas self-interest, not public
2) overlook minor noncompliance w/ procedures -tend to infringe on individual rights
3) defer to substantive agency decisions
1)close callof constlity agency structure as illegality
2)require strict adherence to agency procedures
3) no satisfied by superfic review of subst decisions
B. Introduction to the APA
Administrative Procedure Act- primary statute that governs federal administrative law
-adopted in 1946 as a compromise between both sides of regulatory activities
-debate was about how burdensome the procedures should be
-opponents of agencies won on adjudication, proponents of agencies won on rulemaking
-sometimes the provisions of an organic act supersedes sections of the APA
-sometimes create procedures that supplement the procedures of the APA (FOIA)
-agencies may be subject to additional procedures due to constitutional provisions
-residual common law doctrines also come back at times and supplement the APA
Summary of APA Procedural Requirements
Kind of agency action when applies formal or informal action applicable provisions
Rulemakin 553(a) 553(c) Formal- 553(b), 556-57
551(4)-(5) Informal- 553(b)-(d)
Hybrid-check organic statute
Adjudication 554(a) 554(a) Formal-554(b)-(3), 555-57
551(6)-(7) Informal-organic stat;due proc
1. Definition of adjudication and Rulemaking
Adjudication- is the agency process for the formulation of an order
An order is the whole part of a final disposition other than rule making but including licensing- If it’s not rulemaking it’s adjudication
Rulemaking- is the agency process for formulating, amending, or repealing a rule
A rule is an agency statement of future effect designed to implement interpret or prescribe law or policy
2. Rulemaking
Procedures for rulemaking (553) apply unless concerns military or foreign affairs or matters relating to agency management
Informal Rulemaking- 3 step process
1) agency must publish a notice of the proposed rule in the federal register (unless for interp rules, gen’l statements of policy or rules of agency org., proc. & practice, or good cause)
2) agency must give interested persons opportunity to particip. in rule making through submission written data, views, or arguments w/ or w/o opportunity for oral presentation- 553(c)
3) agency must incorporate in rules adopted a concise general statement of their basis and purpose
Formal Rulemaking- must follow the same type of trial that it would use for formal adjudication- few statutes require formal rules
-required when rules are required by statute to be made on record after an opportunity for an agency hearing See Sections 556-557
Hybrid Rulemaking- Congress imposing particular rulemaking procedures on particular agencies that are between formal & informal ex FTC
3. Adjudication
APA only has formal adjudication procedures there in, if they’re not triggered by 554(a) then the APA is silent on what procedures govern the adjudication.The organic statute, or its own regulation may govern infor

a) legislation requiring specific regulations by a particular time or upon events
b) §553(e)“each agency shall give interested person right to petition for issuance amendment or repeal of rule”—but can look confrontational
c) §555(e)- “prompt notice shall be given of denial in whole/part of written app., petition, or request of interested person made in connection with agency proceeding” & notice shall be accompanied by a brief statement
2. Lobbying
Remember that lobbying an agency is not a courtroom
Remember top down and bottom up, do a lot and say what you mean
3. Petitions for Rulemaking
one of two ways the public can initiate rulemaking
§553- agencies are required to give an interested person the right to petition for the issuance, amendment or repeal of a rule—can look confrontational
But no real rules for how to petition, But §555 agency cant ignore rulemak petit
a. Agency Inaction
§551(13)- agency action includes “failure to act” à can be applied to judicial review under §701(b)(2)
Telecommunications Research & Action Center v. FCC (DC Cir 1984)
Reluctance of courts to step in before final action (full record)
But if the agency is just stalling (no record)
Delay violates §555(b) mandate to decide matters in a reasonable time
Courts can compel agency action unreasonably delayed §706(1).
1) consider whether the agency’s delay is egregious as to warrant mandamus
a) the time agencies take to make decisions governed by rule of reason
b) where congress has provided a timetable or other indication of the speed it expects the agency to proceed (may supplant)
c) delays that might be reasonable in the sphere of economic regulation are less acceptable when human health and welfare at stake
d) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority
e) consider the nature and extent of the interests prejudicing delay
f) no need to find impropriety as the culprit
–If an agency ignores a statutory deadline, less leniency
Norton v. Southern Utah Wilderness(US 2004)
Under §706(1) can only proceed if
1) agency failed to take discrete agency action
2) it was required to take that discrete agency action
b. Denial of a Petition
denial is action, so question becomes is the denial lawful?
Arkansas Power & Light Co. v. Interstate Commerce