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

1. INTRODUCTION TO ADMIN LAW
a. Agency. Virtually any part of the government that is not the President, Congress, or the judiciary (“each authority of the [U.S.] whether or not it is subject to review by another agency”). APA § 551(1)
i. Executive agencies. Normally established as a dept or part of a dept.; headed by single individual removable at will by President.
ii. Independent agencies. Normally freestanding (not within a dept) and headed by board/commission (e.g., FEC, SEC, FDIC).
b. Agency roles. Either regulate conduct by private entities or administer entitlements. (Some are hard to classify, e.g., public information distribution.)
c. Agency advantages. Efficiency, expertise, bureaucratic neutrality.
d. Economic rationales for agency action.

Justification

Defect

Harm

Agencies

Inadequate information

Purchase wrong or dangerous product

Loss of money or physical harm

FDA, FTC

Noncompetitive conditions

Monopoly

High prices, low quality

Utility regulation

Excessive competition

Unsafe conditions, inadequate supplies

Transportation (deregulated), agriculture

Unequal bargaining power

Low wages, poor working conditions

NLRB

Spillover costs/externalities

Pollution, unsafe conditions

Safety and health

EPA, OSHA

Public goods

Free riders

Underproduction

Police, education, social welfare

e. Non-economic rationales for agency action. Society may wish to pursue values inconsistent with economic efficiency, e.g., re-distribution of wealth, nonmarket distribution of scarce resources (organs), regulating unacceptable behavior.
f. Essential admin law conflict.
i. Pro-agency. Agencies have expertise and time and are more efficient than legislature. Courts should defer. (Implications: loose separation of powers, streamlined procedures, substantive deference.)
ii. Anti-agency. “Headless” branch without constitutional controls; self-interested; interfere with private interests; prone to error and abuse. Courts should:
1. Courts should resolve close questions in favor of illegality.
2. Insist on strict compliance with legislatively enacted procedures.
3. Review substantive merits of agency decisions.
2. INTRODUCTION TO THE APA
a. Generally. APA is primary statute regulating federal administrative process. (Prior to APA, organic statutes controlled.) Interacts with organic statutes/enabling acts.
b. Structure. Two key groups of provisions governing procedures (§§ 550s) and review (§§ 700s).
c. Additional requirements. Some other statutes create procedures that supplement APA (e.g, FOIA). All agencies are subject to this with some exceptions.

II. RULEMAKING

GENERALLY

Rulemaking. Agency process for formulating, amending, or repealing a rule. APA § 551(5) Process through which most important agcy decisions are made (usually through N&C procedures in § 553).
Rule. A statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy, or that describes the organization, procedures, or practice requirements of an agency. APA § 551(4)
Exceptions. APA § 553 procedures do not apply to military/foreign affairs matters or management/personnel issues. APA § 553(a)(1), (2) (FOIA requires publication in FedReg of agency mgmt issues.)
Timeline. Initiation → notice of proposed RM → comment period → adoption → application → judicial review.

INITIATING RULEMAKING

Source of initiation.

i. Organic statute/court. Does the agcy organic statute require amending the agcy rule? Is there a court order to amend? (These would require RM; otherwise, agcy has discretion.)
ii. Internal. “Top-down” initiative to amend (politically driven) or “bottom-up” proposal from staff (experience driven).
iii. External. Lobbying the agcy itself. Lobby the national office (not regional) in the specific division that deals with the subject matter. Or lobby Congress (through applicable subcmte, state rep or rep with interest).
iv. Petition. APA requiresagcy permit interested persons to petition the agcy to initiate RM. APA § 553(e) Advantage is that agcy must respond, but drawback is agcy might resist being helpful because of confrontation.
1. Delay/denial of petitions. Difficult to force agcy to initiate RM after it doesn’t respond to petition. Courts are reluctant to order RM even if there has been a delay/denial. (Inaction is less coercive than action, so individual interests at stake don’t usually weigh toward action; agcy sets priorities, and courts want to defer to those priorities.)
a. Delay. Ifagcy delays, there is no final record for review. Excessive delay is an exception to finality requirement of § 704 for review. Must answer (1) jurisdiction and (2) merits questions.
i. Jurisdiction. Agcy “action” includes “failure to act.” APA § 551(13) Judicial review definition of “action” mirrors this. § 701(b)(2) Agcy shall conclude each matter presented within a reasonable time. APA § 555(b) Reviewing court can “compel agency action … unreasonably delayed.”
ii. New requirements. π must also assert: Norton v. Southern Utah
1. Agcy failed to take a “discreet agcy action.” (Broad actions (agcy is doing this improperly) vs. request for specific action.)
2. Agcy was required to take that discreet agency action (e.g., § 555(b) requires action within a reasonable time.).
iii. Unreasonable delay. Factors from TRAC v. FCC
1. Time must be governed by “rule of reason” (court less deferential when agcy commits to specific date and fails to meet it);
2. Statute provides deadline or timetable (but court might still defer to agcy);
3. Subject matter (less OK delay for health/social welfare than economic);
4. Effect of expediting delayed action on other high-priority agcy matters;
5. Nature/extent of injury caused by delay; and
6. No impropriety required to find unreasonable delay.
iv. Relief. Ask court to set deadline, but court still may defer to agcy.
b. Denial. Agcy must give prompt notice of denial with stmt of grounds. APA § 555(e)
i. Jurisdiction. Persons suffering legal wrong because of agency action are entitled to review. APA § 702 Final agency actions (with no appeal process) are reviewable. § 704 Denial is an agency action. §§ 701(b)(2), 551
ii. Scope of review. Subject to arbitrary & capricious standard (generally deferential to agcy). APA § 706(2)(A) Two versions:
1. Most deferential. Did the agency provide an adequate explanation of facts and policy on which it relied? Do the facts, as explained, have some basis in the record? Ark. Power & Light (p. 70)
2. Less deferential. Defers to agcy decision but undertakes “thorough, probing, in-depth review.” Looks for rational connection between the facts found and the choice made. (Incentive for agcy to have limited record.) Northern Spotted Owl (p. 71)
iii. Remedy. Court rarely orders RM. Am Horse Protection Ass’n (p. 73) Usually remands to agcy for explanation; if it can’t explain, take action sought by π. Northern Spotted Owl

EXCEPTIONS TO APA RULEMAKING PROCEDURES

General exceptions. Military/foreign affairs functions, management/personnel matters, and public property/loan/grant/benefit/contract issues are excepted from all of § 553 (including the petition requirement in § 553(e)). APA § 553(a)(1), (2)

i. FOIA. Requires publication of (a)(2) types in FedReg. FOIA § 552a(1)(D)

Notice and comment exceptions. Excepted from notice requirement of § 553(b) and, by definition, § 553(c), which applies only “after notice.”

i. Interpretive rules/policy statements/procedural rules.APA § 553(b)(3)(A)
1. Original test. Does it have a substantial impact on regulated parties? (Some things are hard to classify. This was scrapped.)
2. American Hospital. Does the action encode a substantive value judgment or put a stamp of approval/disapproval on a given type of behavior? Does it alter the rights/interests of the parties (and not just how they present themselves to an agcy)? Am. Hosp. Ass’n v. Bowen (p. 78)
3. ATA. Interpret these exceptio

t neared a full prohibition of ex parte communications in HBO (p. 113) before Vermont Yankee).
3. Current standard. No prohibition unless Sangamon Valley, but some communications must be entered into the record (relative significance to the outcome of the rule is a factor in whether disclosure is required): Sierra Club (p. 116) (tied to CAA!) (can’t rely on something received after N/C period is closed)
a. Documents of “central relevance” after close of comments.
b. Summaries of post-comment meetings of central relevance.
4. Improper considerations. If agcy relies on improper considerations, such as threats from Congress, its decision is invalid. (This goes to substantive review.) D.C. Federation Entirely appropriate for Congress to communicate with agcy so long as it sticks to the facts. Sierra Club
5. With President. OK so long as it is a background briefing. (Status reports excluded from ex parte definition in APA § 551(14).)

Publication. Rule must be published not less than 30 days prior to effective (with some exceptions). APA § 551(d)

HYBRID RULEMAKING PROCEDURES

Organic hybrids. Organic statutes can create procedures that mix elements of formal and informal procedures. E.g., Clean Air Act.
Impact analysis. Otheroverarching statutes, executive orders, and some proposed statutory reforms provide for procedures beyond § 553. Most common is an “impact analysis.” Seven questions (chart):

i. Does the statute/EO apply to the agcy at all?
ii. If it applies, does it apply to this particular action?
iii. If so, what kinds of analysis/procedures are imposed on the agcy?
iv. Is there an obligation to consult (with other agcies or soliciting comments)?
v. Do these statutes/Eos have any substantive requirements along with the procedural requirements?
vi. How is the agency required to interact/interrelate to other segments of the Executive Branch (e.g., OMB)?
vii. Is the agency’s alleged noncompliance with the statute/EO subject to judicial review?

Negotiated rulemaking. Regulated parties and public interest groups can come to a solution. Rarely practical.

JUDICIAL REVIEW

Generally. Court can take action on behalf of a person “suffering a legal wrong because of an agcy action.” APA § 702 Scope of review depends upon type of agcy action and scope of deficiency in the agcy decision.
Arguments.

i. Deference. Agcy expertise better than court’s; Congress has delegated substantive power to agcy (not court); agcy is more familiar with record (especially when determination involves fact-finding based on witness credibility).
ii. Review. Courts are vested with ultimate authority to determine laws; agcies are prone to abuse power delegated to them and judicial check is appropriate (more relevant when determination under review is agcy’s interpretation of statute it’s responsible for administering).

Judicial review of statutory interpretations. Review of a policy choice within the scope of agcy’s delegated power; allegation that agcy has incorrectly interpreted the governing statute. APA § 706(2)(C) E.g., trade statute requirements for poultry (problem).

i. Chevron. Two-part test: Chevron (informal RM case)
1. Is statute unambiguous? Has Congress directly addressed the precise question at issue? If so, no deference to agcy; adhere to statute. SCt isn’t consistent on how to determine whether statute is unambiguous.
a. Plain meaning. Look at “particular language” of the statute (dictionary) as well as the “design of the statute as a whole” (structure). K-Mart (p. 151)
Legislative history. Somewhat controversial, esp. recently