Select Page

Administrative Law
University of Toledo School of Law
Kilbert, Kenneth

Administrative Law Outline

Spring 2012

I. Administrative Law Practice

A. General Rule: Administrative law cases almost always involve at least one government agency (or some government official) and someone outside the agency who is unhappy with what the agency has done.

1. Fund for Animals, Inc. v. Rice – Permit regarding wetlands and whatnot. Talk about clean water act.

· Agency decisions are usually reviewed by a court, pursuant to the APA.

· This is a question of whether it was arbitrary or capricious for the Corps to issue this permit, and whether the Corps erred in not holding a public hearing regarding the permit application.

o This is really a challenge to the procedure the agency used before issuing the permit.

2. What is An Agency?

· Agencies have no inherent powers; they only have the power they are granted.

· Executive agencies: headed by appointee of the president.

· Independent agencies: typically headed by a panel, members of whom were appointed by the president and who serve for a certain period/term.

3. Agency Actions:

· Rulemaking (legislative). Where the agency issues a rule, essentially to fill in the gaps of the statute that the agency is supposed to be administering.

· Adjudication (judicial). Agency, when acting as an adjudicator, applying rules/statutes to the set of facts to determine if the regulated entity is in violation of a rule, or is entitled to something, etc.

· Investigation (executive).

B. APA Definition Section – APA §551

1. General:

· Adjudication: agency process for the formulation of an order. APA §551(7).

· Order: final disposition of an agency in a matter other than rulemaking, but including licensing. APA §551(6).

· Rulemaking: agency process or formulating, amending, or repealing a rule. This can be formal or informal. APA §551(5).

· Rule: agency statement of…future effect designed to implement, interpret, or prescribe law or policy. APA §551(4).

2. Formal v. Informal:

· Adjudication – APA §554(a).

o “On the record after opportunity for an agency hearing.” This means it is going to be a formal adjudication. Does mandate statute require a formal adjudication? APA §§ 554, 556, 557.

§ Formal – evidentiary hearing, typically in front of an administrative law judge who makes an initial decision, which can be appealed by either side up to the head of the agency, to make it the agency’s final decision.

o When mandate statute does NOT require adjudication be formal, it is going to be informal. No specific procedures under the APA for informal adjudications. APA § 555.

§ Still need some type of hearing/process in the course of adjudication. The mandate statute might require some procedures; also governing is due process.

· Rulemaking – APA §553(c).

o “When rules are required by statute to be made on the record after opportunity for an agency hearing, APA §§ 556 and 557 of this title apply.” Does mandate statute contain these magic words? If SO, formal rulemaking requirements are going to kick in.

§ Formal: same formal procedures as we saw in adjudication. Same, trial-like process except this is for rulemaking. Formal rulemaking is VERY rare – almost never. Most of the time we’re talking about under the APA.

o Where the mandate statute DOES NOT require formal procedure, then see informal rulemaking procedures in §553.

o Hybrid rulemaking: Congress has included some particular rulemaking procedures after the mandate statute. Something Congress has decided to add to the rulemaking process over and above informal process, but short of formal full-blown trial.

3. Judicial Review – person aggrieved by agency action has recourse through the court. There are some restrictions/limits:

· Congress in mandate statute may state that judicial review is precluded.

· Agency action has to be final before you can obtain judicial review. Action has to be ripe, and you have to have standing to challenge the action.

o Scope of review is going to be limited – can only look at the same material that the agency had.

II. Rulemaking

A. General: Rulemaking is an “agency process for formulating, amending, or repealing a rule.” APA §551(5).

1. Rule: “agency statement of future effect designed to implement, interpret, or prescribe law or policy.” APA §551(4).

· A rule/regulation has the force of law.

· It’s the rules that are going to define what the law is, and serve as a basis for enforcement of violations.

2. What happens before you get into rulemaking?

· An agency has the power to issue rules only if it is authorized by statute.

o Often is it the mandate statute itself that is going to require agencies to issue a particular rule by a particular time.

o Sometimes a prompt letter is issues, requiring the agency make a rule (could come from President, Congress, etc.). Sometimes this could come from the public (can do this via lobbying, etc.).

3. Petition for Rulemaking:

· “Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” APA §553(e).

· “Prompt notice shall be given by the denial…of a…petition. [T]he notice shall be accompanied by a brief statement of the grounds for denial.” APA §555(e).

4. Agency Delay:

· Court has power to “compel agency action unlawfully withheld or unreasonably delayed.” APA §706(1).

· “Agency actions” INCLUDES failure to act. APA §551(13).

· TRAC v. FCC (pg. 64) – Establishes a multi-factor test to decide whether agency delay is unreasonable. Unreasonable delay factors:

o 1. The time agencies take to make decisions must be governed by a “rule of reason.”

o 2. Timetable supplied by Congress.

o 3. Less delay allowed when human health/welfare at stake.

o 4. Effect of expediting this action upon other priority agency actions.

o 5. Nature and extent of interests prejudiced by delay.

5. Denial of Petition:

· Going to overturn agency action if it is arbitrary or capricious.

· “Arbitrary and capricious” standard:

o Highly deferential, but requires explanation and basis in the record.

B. Exceptions to Rulemaking – not all rules promulgated by an agency need to go through notice/comment/publication type procedures.

1. APA §553 Exceptions:

· Subsection (a) – General

ing” doesn’t trigger any sort of hybrid requirements.

· “After hearing” does not trigger more procedure than APA §553 notice and comment rule.

3. Vermont Yankee v. National Resources (pg. 93) – Deprived of meaningful opportunity to participate in rulemaking process.

· Supreme Court said you cannot require additional requirements above and beyond §553; just because the court thinks there ought to be more procedure doesn’t mean the court can require it.

· Court can’t impose more procedure on agency during rulemaking that statute or agency requires.

D. Informal Rulemaking

1. APA §553 Requirements:

· General notice of proposed rule published in the federal register. §553(b).

o Notice must fairly apprise interested persons of what the rule is. Fairly apprised where the final rule is a “logical outgrowth” of the proposed rule.

· Provide those interested persons opportunity to comment. §553(c).

o Usually written comments, which is all that is required under §553(c), but the agency might allow oral comments as well.

o Common for agency to take 60 days, but there is no specific time period for comments, and the agency may take more or less time depending on the complexity of the rule.

· Final rule published with general statement of its basis and purpose. §553(c).

o Generally takes the form of a preamble, explaining the final rule, and then the text of the rule itself. Agency will also publish a summary of the comments received, and the agencies responses.

· APA §553(d) Publication: Rule must be published at least 30 days before its effective date, except:

o 1. Substantive rule, which grants exemption or relieves restriction.

o 2. Interpretive rule, policy statement.

o 3. Good cause (explanation must be published with rule).

2. Chocolate Mfg. Association v. Block (pg. 103) – chocolate milk manufacturers challenge a final rule, which deleted flavored milk from federally funded foods available through the WIC program; argue that notice was inadequate, because proposed rule included flavored milk, and final rule did not.

· Was the final rule a logical outgrowth of the proposed rule? Court here says no. Chocolate milk had always previously been included in the WIC program, and manufacturers weren’t fairly apprised that the rule was going to affect their interest in the way it did.

· What actually happened here: instead of sending the rule back, court allowed the rule to stay in effect, pending notice, comment and publication of a final rule (which would take place of procedurally deficient rule).