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Administrative Law
University of Toledo School of Law
Kilbert, Kenneth

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
v       Agencies are all creatures of statute
Ø       Look at the mandate statute to define their powers
v      Regulate private conduct
v      Administer entitlement programs
Ø       Medicare, food stamps, etc
v      Carry out other gov’t tasks
Ø       NASA, nation park service, FAA etc.
v      Rulemaking
v      Adjudication
v      Investigation
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
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.
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