Administrative Law-Kilbert-Winter ‘11 UT Law
I. Administrative Law Practice
· Admin cases usually involve gov’t agency/official and another party that is unhappy with what agency has done.
· For example: Gov’t granted permits to fill wetlands to build landfill in Sarasota county, environmental group sued arguing that it was arbitrary and capricious under the APA which controls federal administrative procedure.
· Parties influence
-What did ___ do to influence case. Sarasota County offered to decrease landfilled acres. Try to make it more palatable.
-Fund for animals-Stirred up involvement by releasing reports of endangered animals
—County won case, b/c received permit with the caveat of modifications like conditions.
i. What is an agency? Creatures of statute.
· APA denies broadly. Almost every authority of federal gov’t with exceptions like the Fed Energy reg Commision which is actually in the DEA.
ii. What Agencies Do/ Agency Functions
· Execute laws that Congress passes
· Duty of agencies stipulated by statute
1. Regulate private conduct
(SEC, OSHA, etc.)
2. Administer entitlement programs
(Medicare, food stamps, etc.)
3. Carry out other government tasks
(NASA, National Park Service, etc.)
iii. Types of agencies
1. Most executive agencies sit at pleasure of the president, and thus appointed by the president
2. However, some are independent agencies. Appointed by president for staggered terms. Can only be removed with cause; thus, don’t sit at pleasure of the president.
3. Sec 51- Congress and Judicial branch not agencies Statute doesn’t say if president is agency but frankin v. Massachusetts decided President wasn’t an agency.(though not excluded by expansive definition of what an agency is).
iv. Agency Actions
1. Rulemaking (Legislative)-Agency issues a rule (legislative). Fills in the gap of the statute. Properly issued have the force of law. Written on federal register.
2. Adjudication-(Judicial). Applies rules or statues to set of facts to figure out if regulated entity is complying or not with regulations. Ex-FDA issues order to enjoin drug manf. That would violate a regulation.
3. Investigation (Executive)- Agencies have subpoena power. Insect regulated community Ex- FDA food inspectors.
v. Constitutional Problems
· Power of three branches in one agency. Headless fourth branch of power?
· Thus, difficult to create checks and balances
· Brought about APA which subjects agencies to specific procedures and judicial review. Two categories: Adjudiocation and rulemaking.
vi. Agency Processes
1) Rulemaking-Agency process for formulating, amending, or repealing a rule/ 553
o Rule-agency statement of future effects designed to implement, interpret or prescribe law or policy
a. Formal-Rules required by statute (mandate statute-on the record…). Formal rulemaking procedures apply. Requirements: Trial like process. Formal rulemaking is very rare.
-Interpretive Rule: Slide…except when notice or hearing is required by statute, this subsection does not apply
—to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.
b. Informal- Req’s: 1) Notice 2) Opportunity for comment 3) published in federal register along with statement of basis and purpose eof the rule
o Most rulemaking is informal
c. Hybrid rulemaking- Congress included specific rulemaking procedure for applicable statutes. Add to rulemaking process above informal but not formal (trial lie process)
2) Adjudication-Agency process for the formulation of a
petus for rule. Ex—CAA required acid rain rule by specific date. However, usually not that specific, and has pretty broad discretion for the rules made. Can come up from agency workers (bottom up). Also, top down from the white house (prompt letter), could come from Congress (suggestions from members, and members that control budget and can ask for agency members to testify). Third, coming from the public—business, interest groups, channeled through lobbying
v DESTILLED: mandate statute authority/required to make rule on particular subject by a certain date/general mandate- “issue rules to implement the act”/presidential directives asking for a rule on a particular issue (cong does this too)/congressional bill that can eliminate agency or limit its authority
o -Lobbying to persuade lawmakers IMPORTANT part of admin law. Persuade/influence decision-makers
o -Need to know who to talk to try to style arguments to jive with goals of the agency. Also, keep in mind legal considerations aren’t always top; political pressure is a factor.
ii. Petitions for Rulemaking
· 553(e): Each agency shall give an interested person the right to petition for the issuance, amendment or repeal of a rule.
1) 555 (e): Prompt notice shall be given of the denial of a petition.
2) The notice shall be ACCOMPANIED by a brief statement of the grounds for denial.
· No APA deadline fro acting on a petition for rulemaking; Can go to adjudication for unreosnable delay or go to mandate statute to look for timeframe