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Administrative Law
University of Toledo School of Law
Kilbert, Kenneth

Administrative Law

Ken Kilbert

Spring 2011

The Administrative Procedure Act:

· Provides administrative procedures and standards for judicial review of administrative decisions – the APA subjects administrative agencies to specific procedures and judicial review to check their power

· APA §551(a) – “Agency” means each authority of the Government of the United States, whether or not is it within or subject to review by another agency

o Does not include: Courts, congress, states, military commissions, etc

What Do Agencies Do?:

· Regulate private conduct (i.e. SEC, OSHA)

· Administer entitlement programs (i.e. Medicare, food stamps)

· Carry out other government tasks (i.e. NASA, National park service)

· What actions do agencies perform:

o Rulemaking (legislative function)

§ properly executed, rules have the force of law

o Adjudication (judicial function)

o Investigation (executive function)

Agency Actions:

· Adjudication: APA §551(7)

o “agency process for the formulation of an ORDER”

· Order: APA §551(6)

o “FINAL DISPOSITION other than rulemaking, but including licensing of an agency”

· Rule Making: APA §551(5)

o “agency process for formulating, authorizing, or repealing a RULE”

· Rule: APA §551(4)

o “agent statement of…FUTURE EFFECT designed to implement, interpret or prescribe the law or policy”

Agency Authority:

· Derives from TWO main sources:

o (1) Mandate Statutes – Created by Congress and articulating the agency’s purpose as well as the procedures for carrying out that purpose

o (2) APA

Rulemaking:

· Kinds of Rulemaking:

o Formal: When is formal rulemaking required?

§ Formal rulemaking triggered only by the language in the mandate statute “on the record after an opportunity for agency hearing” à which is found in the agencies mandate statute [U.S. v. Allegheny-Ludlum Steel Corp]

· “After hearing” language does not trigger more procedure than APA §553 notice & comment [U.S. v. Florida East Coast Railway]

§ Court can’t impose more procedures on agency during rulemaking than statute or agency requires [Vermont Yankee Power Corp.]

§ Rarely ever used

§ “On the record after agency hearing” – Governed by APA §§556,557

· Ex Parte communications are prohibited in Formal Rulemaking

o Informal:

§ Governed by §553 – APA §553 Requires:

· Explanatory notice of proposed rule published in federal register – §553(b)

o Must “fairly apprise” a party that their interests are at risk

· Provides interested persons opportunity to comment – §553(c)

o Failure to comment during this period might preclude you from challenging the rule at a later date

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

§ How different can the proposed and final rule be?

· Logical Outgrowth Test:

o It is adequate if the changes in the original plan are “one in character with the original scheme,” and the final rule is a “logical outgrowth” of the notice and comments already given

§ IOW: If the rule materially alters the issues involved in the rulemaking or, if the final rule “substantially departs from the terms or substance of the proposed rule,” the notice is inadequate.

§ What is the remedy for failure of notice?

· Court will set aside the rule since it did not go through notice and comment

· Sometimes, court will allow rule to stay in place during a notice & comment period

§ Ex Parte Communications:

· No prohibition on ex-parte communications in informal rulemaking

· Courts finds value in open access during this legislative-type enacting

§ Final Rule is Published with General Statement of the Rule’s Basis & Purpose:

· APA §553(c): Statement of the Rule’s Basis & Purpose

o Agency will usually include a full statement of basis and purpose for the rule including agency’s response to comments

§ Shows that the agency is not acting arbitrarily or capriciously

§ Shows that the agency has received and responded to comments

§ Publication: APA §553(d)

· Rule must be published at least 30 days before its effective date; EXCEPT:

o (1) Substantive rules which grant exemption or relieves restriction

o (2) Interpretive rule, policy statement

o (3) Good Cause (explanation must be published with rule)

o Hybrid:

§ Not part of the APA

§ Governed by the mandate statutes – where the individual agency’s mandate requires more procedure than r

(2) Less delay allowed when human health and welfare at stake

§ (3) Effect of expediting this action upon other priority agency actions

§ (4) Nature and extent of interests prejudiced by delay

o Standard to determine whether delay is unreasonable is tough to meet; a court is reluctant to order an agency to reorder their priorities.

§ Remedies for Delay:

§ Court can require agency to generate another date and timetable-if this doesn’t work court can eventually order rulemaking, but, it is still relatively difficult to get an agency to act if it doesn’t want to

o Sometimes a court may make an order knowing the agency will not act in order to conjure up support or to incite people to object to the agency inaction.

o Judicial Review for Denial of Petition:

§ Once an rulemaking petition has been denied-there is an agency action that can now be challenged

§ Standard of review for denial of petition: Arbitrary and Capricious

§ Arbitrary and Capricious Standard:

o Arkansas Power / Mass. EPA: Adequate explanation; denial is grounded in the statute and facts on the record à IF TRUE IT IS NOT A&C

§ Remedy for an arbitrary and capricious Denial of Petition:

§ Agency can be ordered to repeat the decision process

§ Agency may present another reason for denying the petition

· Exceptions to Rulemaking Process:

o Exceptions to Informal Rulemaking are found in §553

o APA §553:

§ §(a) – General Exceptions:

· (1) Military of foreign affairs function

· (2) Agency management/personnel OR public property

o This exception receives a lot of criticism for being too wide

§ §(b) – Notice & Comment Exceptions: (Exceptions are just for notice & comment and not publication)

· (A) Interpretive, general policy OR agency organization, procedure or practice