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Administrative Law
University of Wyoming School of Law
Duff, Michael C.

Administrative Law Outline
Professor Duff – Fall 2009

1) Administrative Law
a) What is It
i) The laws that govern agencies (procedural)
ii) Administrative law is implicated whenever activities of government agencies affect individual rights
iii) The “deep issues” in admin law are:
(1) Separation of Powers- we will see that there is a concern about the conflation of all the power of government in to agencies… but the rebuttal is that there is a judicial review, but we all know judicial review is expensive and slow…
(2) Non-delegation doctrine- there is an issue of how much can congress delegate to an agency, how much we can allow the agency to do within some guidelines.
b) APA (administrative procedures act)
i) expansion of government vested great power in agencies
ii) Contest between those who wanted agencies to have power and flexibility to implement congressional policies and those who did not
iii) APA is a compromise, and this is our default in Admin law, this is where we get our rules and etc.
(1) It defines procedural rights of persons outside of government and structures the manner in which persons inside of government make decision.
c) What is an Agency?
i) APA sec 551 “ each authority of the Government of the United States
(1) Excluded (major):
(a) Congress
(b) U.S. Courts
(c) Governments of U.S. \territories/ possessions
(d) Military courts and commissions
d) Agency Forms
i) Departments
(1) Are agencies and they have the highest status, also the biggest… Often include sub-entities.
(a) The heads are titled Secretary.. EXCEPT DOJ
(b) Executive agencies- very directly linked to president and immediate presidential policies
(c) Secretaries are appointed by the president with advice of the senate
ii) Independent Regulatory Agencies
(1) These are agencies that are regulating and are not AS intimately tied to the presidents agenda, but this does not mean there is not political influence, there is a majority of president views, so if there are 5 members of this agency then 3 will be of the presidents view and 2 will not.
(a) Do not make policy directly at behest of the pres.
(b) Chief lawyer is also usually appointed by the Pres w/ senate consent
(c) Cant remove those who dissent so you usually have a lot of pushback from career people
iii) Independent Executive Agencies
(1) This “executive” suggests a close relationship to the current president’s policies. Follow policy of the President but not “housed” in a department.. i.e. EPA, SSA.. so they are not departments but have similar weight
iv) Key Point
(1) Structure of an agency comes from a statute that creates the agency.. its called the enabling statute…
(a) The first place you go to see if an agency can do something you should refer to the statute
(b) Congress creates Scheme of what the agency can do
(2) Usually an agency is using 2 statutes, the statute that set it up and then the one that gave the agency the power to act… could be more statutes in some cases… but when evaluating a case make sure to know the statute(s)
e) What Agencies Do
i) The regulate private conduct… how private parties interact with environment, trade, stocks, taxes.. and so on
ii) Administer entitlements
iii) Do what congress has told them to do
iv) The craft solutions in real time because congress cannot forsee every contingency so issues will arise and agencies have to fix that quickly
v) They represent compromise between statute addressing every question and congress doing nothing because too complex
vi) Theory: Agencies will develop expertise and fill in the gaps
f) Why Do Agencies Act
i) Public Interest Theory: agencies act to further public values and general good
ii) Interest Group Theory: agencies trade off claims for preferential treatment…the agency is like a passive broker to keep the peace and to balance and fairly solve disputes of competing agencies.
iii) Public Choice Theory: Agencies administer statutes “intentionally” left vague because no agreement could be reached… If a statute is vague then an agency has to work out the contradiction and complications
g) Types of Agency Action
i) Rulemaking – an agency promulgates a rule in response to a problem that it will apply in the future to all regulated entities which are defined by statute
ii) Adjudication – an agency uses judicial process to determine if regulated entity has violated a rule: results in order binding only with respect to parties to adjudication. HOWEVER, results put other regulated entities on notice: if you do this in the future, you will incur liability, so it functions as a rule.
iii) Investigation – Agencies that do not have rulemaking or adjudication then their function is usually to bring enforcement actions in federal court. They obtain information necessary for rulemaking or adjudication
h) Source of Authority
i) Enabling statute either creating agency or giving agency authority for administering statute (substantive & Procedural)
ii) Administrative Procedure Act (procedural)
i) APA – political compromise between unfettered agency discretion and tightly controlled quasi judicial process
i) Definitions
(1) Rule – an agency statement of… future effect designed to implement, interpret, or prescribe law or policy §551(4)
(2) Rulemaking- three types
(a) Formal Rulemaking – § 553 (c)/ § 556-557
(i) Formal (554, 556, 557) – 554(a): when agency’s enabling statute requires adjudicatory decisions “on the record after opportunity for hearing.”
1. 554: NOH, opportunity to settle, hearing in under 556 and 557, recom decision by presiding officer, no ex parte contact, separation of prosecuting & hearing officials
2. 556: Hearing procedures
3. 557: Decisional process within the agency – proposed findings, exceptions, form of agency decisions, ex parte prohibitions and remedies for violation
(b) Informal Rulemaking – § 553
(i) Informal: adjudication not required by statute to be determined on record after opportunity for hearing
(ii) Agency still required to follow whatever process statute does spell out
(iii) If party may be deprived of liberty/property constitutional due process triggered
(c) Hybrid- some mix defined b y statute
(3) Adjudication- like judicial functions of courts
(a) Application of some rule to a set of facts to assess required outcome, usually to determine whether party violated rule
(b) Culminates in order, which has a retroactive effect for future parties with similar facts
(4) Judicial Review
(a) Most actions by admin

ts, or contracts
ii) Exceptions from Notice and Comment
(1) 553 (b)(A)&(B) notice and comment exceptions
(a) No need to comply with 553(b) notice or 553(c0 comment requirements (narrowly construed)
(i) Rules of agency organization, procedure, or practice
(ii) Interpretive rules
(iii)General statements of policy
(iv) Impracticable, unnecessary, contrary to public interest (here is the catch all)
(v) Whether the rules are procedural or substantive is the big question
(2) AHA v. Bowen
(a) Issue: Did 553’s procedural exemption for N & C apply to directives/transmittals?
(b) Rule: Agency action requires N & C if it encodes substantive value judgment or places stamp of approval/disapproval on type of behavior
(c) Holding: Requirements of transmittal are classic, exempt procedural rules imposing NO NEW BURDENS on hospitals, so no N & C required
(d) Section 533 is the section governing rulemaking… it states that “notice and comment” procedures applicable to “informal rulemaking” and it directs persons to sections 556 and 557 if “formal rulemaking” is triggered
(3) ATA v. DOT
(a) Apparent Rule: Agency must use N & C when “procedural” decisions involve substantive choices about procedural issues
(b) Courts decision: contentious, adjudicative, due process issues implicated so parties should have input to procedures
(i) Property was not as implicated as it was in Bowen.. property is important cause of due process
(c) This case doesn’t live very long.. its overruled later, I believe by JEM (next case)
(4) JEM v. FCC
(a) Pursuant to its “hard look” processing rules, respondent Federal Communications Commission (FCC) dismissed petitioner broadcasting company’s license application without affording the broadcasting company an opportunity to correct the error in its license application. The broadcasting company sought review of the FCC’s summary dismissal of its application.
(b) Issue: is one of degree and we are to identify which substantive effects are sufficiently grave so that notice and comment are needed to safeguard the policies underlying the APA
(c) Disavowal of ATA – New two part test
(i) Agency rules not altering rights or interests of parties are procedural (though they might alter the manner in which parties present themselves/viewpoints to agency)
1. If rule does alter rights of parties, then substantive (and exception unavailable)
(ii) Even if rule does not directly alter rights of parties, N & C may be necessary if “substantive effects” sufficiently grave that APA policies must be safeguarded
(5) Case Law Results of N&C exception