Admin Outline
Spring 2016
Adell Amos- Professor
Themes & Overriding Questions
Questions to ask as you review cases:
How did the agency get to its decision?
Were the appropriate procedures followed?
Is the agency acting within the scope of its power?
Did the agency follow the appropriate procedures in adjudicating your client’s case?
Franklin v. Mass., 11: The president is not an agency.
Structure of an agency:
Enabling statute:
Enabling act tells the agency who it is and what it does
APA defines procedures that an agency must follow
Rulemaking (48-152; 551-559; 159-164; 173-183) § 553
Definitions:
Rule: agency statement of future effect
Rulemaking: Agency process for formulating, amending, or repealing a rule.
Types:
Formal: When the rules are required by statute to be made on the record after an opportunity for agency hearing
Hybrid: Rulemaking with Congressionally added procedural requirements on programs or agencies
Informal: Notice in the federal register, public participation period, publication of final rule
Rulemaking is the agency equivalent of legislation.
Of general applicability
Of future effect
Petition for rulemaking, 553(e):
An interested person has the right to petition for an issuance, amendment, or repeal of a rule.
Prompt notice shall be given of the denial, accompanied by a brief statement of the ground for the denial. Prompt mandate ensures that the agency cannot ignore the request. 555(e).
Responses to agency inaction:
Mandamus: A request to the court to force the agency to act because it has a duty to perform that is required by law.
Interlocutory appeal: An appeal in the midst of the proceeding. Courts generally avoid this, but if an agency is not acting the court may need to do something about it. Avoid interfering because the court wants to give deference to agencies until the proceedings are concluded so it can create a factual record, create a record of its expertise, and to avoid piecemeal appeals.
TRAC test, 64: (in determining undue agency delay)
The time agencies take to make decisions must be governed by a “rule of reason”
Statutory timetable?
Is there a danger to human health and welfare?
Is there a higher or competing priority?
What is the nature and extent of the interests prejudiced by delay?(equity argument)
It is not necessary to find impropriety behind agency delay
Denial of rulemaking, §§
If an agency denies a petition for rulemaking, judicial review is initiated:
Arkansas Power, 69:
AP argued that the ICC should have created a big database about shipping rates, because it believed there are shippers gaming the system. ICC denied the petition because the existing system worked and it would’ve been too expensive to create a new one.The court accepted this explanation.
Court will compel an agency to institute rulemaking only in extremely rare instances
When it is necessary to ensure that the agency has adequately explained the facts and policy concerns it relied upon.
The facts have some basis on the record.
Mass v. EPA, 70: (72-73)
States and private groups petition EPA to rulemake on GHG.EPA opens up a notice and comment and gets 50K responses.EPA responds that it does not actually have the power to rulemake, and even if it did, it could not regulate GHG.
Court holds that there is no rational basis for refusing to regulate.
It is a legal error for EPA to say it has no authority to regulate under the CAA.
This gives the court more discretion over the decision.If it is a legal error, it is the court’s wheelhouse.
EPA has a statutory mandate to deal with air pollutants and can act within the parameters of their duty.It does not have the ability to adjudge and issue outside of its parameters without going through the agency procedure.
The use of the word “judgment” is not license to ignore statutory text, but to use discretion within the statutory limits.
Administrative issue: This case creates standing for coalitions. It is a good result for coalitions, but other coalitions may emerge that impact the result.
Formal rulemaking, § 553(c)
Very similar to formal adjudication
Look for the trigger words “on the record” with “an opportunity for a hearing.”
U.S. v. Allegheny-Ludlum Steel Corp., 91:
When does § 553 trigger the requirement of formal rulemaking?
§§ 556 and 557 need only be applied where the agency statute, in addition to providing a hearing, prescribes explicitly that it be “on the record.”
U.S. v. Florida East Coast Railway, 92:
When does the “hearing” requirement trigger the need for a trial-type proceeding?
§ 559 says that the APA is the floor for agencies, and that statues can impose greater standards on a proceedin
a concern. If someone submits a negative comment, it goes back to the notice and comment period. If no one does, it becomes a final rule.
Exemptions to informal rulemaking, 553(d): Rationale for rulemaking is from perspective of regulated entity, so actions that do not restrict or impose will on the liberty of individuals are exempted. Recent readings of the APA extend this reading to the APA creating protection for statutory rights.
Military and foreign affairs
Agency management and personnel
Matters involving public property, loans, etc.(huge for enviros)
Rules of agency organization, procedure, and practice (specific exceptions to § 553)
AHA v. Bowen, 77: AHA petitioned for the HHS to rulemake on the Peer Review Organizations, because it felt the existing procedures were incomplete and piecemeal.
Rule: § 553 exemptions are to make sure that the agencies have the flexibility they need to organize internal operations and covers actions that “do not themselves alter the rights or interests of the parties.”
Asks if there is a substantial impact on the parties and whether there is a substantive value judgment being made.Does not impose a new burden, but asks for more examination.
ATA v. DOT, 80 (Vacated – not good law to cite): The FAA promulgated regulations regarding the adjudication of administrative civil penalty actions and the ATAA challenged the use of § 553 exemptions to notice and comment. FAA responded that it was a procedural action.
Rule: The exemption should have a narrow scope for those actions that the public would not have a legitimate stake in influencing the outcome. It should not apply to all rules that can be deemed “procedural.”
Dissent: This is a procedural rule and the court is obliterating the decision between a substantive and procedural rule.Rules are no less procedural because they are thought to be important or affect outcomes.
