ADMINISTRATIVE LAW
WHAT IS AN AGENCY?
v Def’n APA§551(1) Each authority of the gov’t of the US whether or not it is w/in or subject to review by another agency w/ some exceptions
Ø Exceptions: Courts, Congress, President
Ø Departments – agencies with the highest status
§ Headed by a secretary
§ Appointed by president w/ advice and consent of the Senate
§ Serves at the pleasure of the President
v Executive Agencies
Ø Headed by Administrator
Ø Appointed by president w/ advice and consent of the Senate
Ø Serves at the pleasure of the President
v Independent Agencies
Ø Headed by a panel whose members are appointed by the President.
Ø Can only be removed for cause, serve a term typically 5yrs staggered usually no more than a simple majority from one party
§ Federal Reserve Board. FCC
Ø
v Agencies are all creatures of statute
Ø Look at the mandate statute to define their powers
WHAT DO AGENCIES DO?
v Regulate private conduct
Ø SEC, OSHA,EPA, FTC, FCC
v Administer entitlement programs
Ø Medicare, food stamps, etc
v Carry out other gov’t tasks
Ø NASA, nation park service, FAA etc.
AGENCY ACTIONS:
v Rulemaking
v Adjudication
v Investigation
APA:
v One reaction to perceived unchecked power of administrations set up after the New Deal
v Sets procedural requirements to check agencies’ power
v Applies to all federal agencies
v Must look to the mandate statute of the agency
Ø APA is the baseline requirement, the mandate statute may have further requirements for agency action
DISTINCTION B/W RULMAKING AND ADJUDICATION:
Adjudication:
v §551(7) “adjudication” means agency process for the formulation of an order
v §551(6) “order” means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, or an agency in a matter other than rulemaking but including licensing
Formal Adjudication:
v Necessary in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing
Ø §§ 556, 557 Requirements for formal adjudications
§ Hearing resembling a trial in front of an ALJ (employee of agency not a federal judge)
§ Can appeal to Administrator or delegate thereof
§ Judicial Review
Informal Adjudication:
v No per se requirements for informal adjudication in the APA
Ø Some agencies set their own guidelines
Ø Some guidelines are set in agency’s mandate statute
Ø If the adjudication includes due process issues i.e. taking life, liberty, or property then the adjudication must satisfy due process requirements.
Rulemaking:
v §551(5) “rule making” means agency process for formulating, amending, or repealing a rule
v §551(4) “rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or pr
n Rulemaking Process:
v Agency has the power to issue rules only if it is given authority to do so in the mandating statute.
v Mandating statutes may include deadlines for agency rulemaking
v More often agency given general authority to make rules to implement & enforce the statute
Sources for initiating rulemaking:
v Executive branch – top down
v Staff recommendations – bottom up
v Public pressure
Ø Lobbying Executive, Congress or Agency staff
§ Know who to talk to – get in on the staff level, know who is making the decision
§ Match client’s goals w/ agency/statute goals. Legal arguments may not be the best look at policy and political
§ Can only go to the well so often – constant pressure turns into background noise
v Petitions for rulemaking
Ø APA §553(e): each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule
§ Prompt notice shall be given of the denial of the petition accompanied by a brief statement for grounds of denial
Ø Aggrieved petitioner can seek judicial review
Ø No deadline under the APA for taking action on the petition
Look to the mandate statute
