Administrative Law—Spring 2009
January 14, 2009
A Walk through the APA (pages 22-32)
OVERVIEW: The APA has three major categories:
Rulemaking—an agency’s “quasi-legislative” role—creating law to govern future conduct
Adjudication—an agency’s “quasi-judicial” role—applying existing rules to make decisions regarding past conduct
Judicial Review—how may review of rulemaking and adjudicatory action be obtained? How can a regular citizen challenge the rulemaking and the adjudication of agencies?
5 USC § 551(5)—“rulemaking” means agency process for formulating, amending, or repealing a rule
5 USC § 551(4)—“rule” means the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization procedure or practice requirements of the agency
Three step process—5 USC § 553
Notice—5 USC § 553(b)(1)-(3)
General notice of proposed rule making shall be published in the Federal Register unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law.
5 U.S.C. § 553(b)(3) – Unless notice or hearing is required by statute, this subsection does not apply –
(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
(B) when the agency for good cause finds … that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest
Comment—5 USC § 553(c)
After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views or arguments with or without opportunity for oral presentations.
5 USC § 553(d)—the required publication or service of substantive rule shall be made not less than 30 days before it’s effective date
§ 553(c)—After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose
[Both the final rule and statement of basis and purpose appear in the Federal Register] Formal rulemaking
5 USC 553(c)—when rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection
For formal rulemaking, the detailed requirements of 556 and 557 replace the comment and publication portions of the informal rulemaking process in 553.
Agencies prefer informal rulemaking with its lack of structure and discretionary leeway that it provides.
Congress can, and often does, impose specific rulemaking procedures within specific statutory schemes.
These rulemaking procedures may be more detailed than the informal rulemaking procedures of 553 but less detailed than the formal rulemaking procedures of 556 and 557.
5 USC § 551(7)—“adjudication” means agency process for the formulation of an order
5 USC § 551(6)—“order” means the whole or part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form of an agency in a matter of other than rule making but including licensing
§ 554(a)—This section applies… in every cases of adjudication required by statute to be determined on the record after opportunity for agency action
Review 5 U.S.C. §§ 554(b)-(e), 556 and 557 for specific procedures that govern formal adjudication
Informal adjudication (not covered in APA)
If formal adjudication under 554(a) –“adjudication required by statute to be determined on the record after opportunity for agency hearing”—is not required, informal adjudication (not governed by the APA) may be nonetheless necessary if:
Statute authorizing agency action requires use of some hearing procedures or
Constitution principles of due process obligate…
5 USC 701—chapter applies except to the extent that
Statutes preclude judicial review, or
Agency action is committed to agency discretion by law
702—a person suffering legal wrong because of agency action or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof
this provision can provide constitutional “standing” if another statute does not provide such a right to review of agency action.
The reviewing court shall:
Compel agency action unlawfully withheld or unreasonably delayed and
Hold unlawful and set aside agency action, finding, and conclusions found to be
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law
(B) Contrary to constitutional right, power, privileged or immunity
(C) In excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) Without observance of procedure required by law;
(E) Unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) Unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
(a) It would be a good idea to take this meeting, even if just only for public relations reasons. He should want to project approachability and workability to the public and to make sure the Corps of Engineers does not come off as disinterested and cold. At the very least, he should direct her to someone within the agency who can address her questions correctly. Helen would also be wise to refer her friend to a lawyer who specializes in this type of work and has good connections and reputation with the agency. A working relationship with the front-line regulators could prevent further actions. Further action almost always favors the agency.
(b) At this point, the agency has not done anything that has harmed Helen’s friend. In fact, it is not even clear at this point if there is even a problem. Helen also can sue unless she had exhausted all her administrative remedies and the agency has issued a final determination. Helen’s strategy for this meeting should be to get something in writing regarding the wetlands and his opinion regarding them and the permit. She should go in with her legal position set out, maybe even in writing, justifying her reading of the statute. (prepare like she is getting ready for oral argument). She should also make sure that she brings plenty of factual information (pictures, maps, etc) so that Jay would not have to do any extra work. Emphasize the friendly position (I’m trying to pre
islature, effectively paralyzing them from doing what they really need to be focusing on.
o They have a specialized knowledge on matters which Congress and the people want to address through law and policy. By giving a specific subject matter to each agency, those agencies have the time and resources to address the matter on a level far more detailed than Congress would be able to address it.
§ Congress makes broad laws and leaves the detailed, day to day work to the agencies with more specialized, detailed knowledge regarding those matters. It is both more efficient and effective to do it this way.
· Non-Delegation Doctrine
o Non-delegation doctrine – under the Constitution, Congress may delegate its powers to an agency only under carefully controlled conditions, and those conditions must be expressly set out in the agency’s enabling act
o Through Supreme Court precedents, this has evolved into the “intelligible principle” requirement — when Congress delegates decision-making power to the agency, Congress must establish some “intelligible principle” within the language of the statute itself that constrains or limits the agency’s discretion in acting under its particular grant of authority
o Whitman v. American Trucking Associations, Inc.
§ Issue: whether 109(b)(1) of the Clean Air Act (CAA) delegates legislative power to the Administrator of the Environmental Protection Agency.
§ Basically, the EPA has no intelligible principle. They have construed the statute in a manner that gives them no intelligible principle and therefore is unconstitutional.
§ The DC circuit decided this based upon the idea that the EPA changed the National Ambient Air Quality Standard making it more strict with no criteria or guidance for why or how they came to such a decision. This is a scary amount of discretion that the EPA has regarding rulemaking. Without guidance or limitations (intelligible principle), this is unconstitutional.
§ If there is a non-delegation problem, the EPA cannot fix it. It is not a matter of interpretation. If Congress has given them too much discretion and must be addressed by Congress.
§ CAA 109(b)(1)—EPA must establish “ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on [the] criteria [documents of § 108] and allowing an adequate margin of safety, are requisite to protect the public health.”
· Looking at this section of the law, the Supreme Court said the guidelines are sufficient and “fit comfortably within the scope of discretion permitted by our precedent.” (the only 2 statutes which were struck down because of intelligible principle problems had no standards or limitations AT ALL.)