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

Agency is defined very broadly by the Administrative Procedure Act (APA):
à “each authority of the government of the United States, whether or not it is within or subject to review by another agency.”
What is Administrative law?
–          law governing agency actions of various types
o   focus on process, not substance of decisions
–          major substantive areas of the course:
o   rulemaking; adjudication
o   judicial reviewà what are the specialized rules that cover courts’ reviewing of agency decisions?
–          additional goals:
o   understand why agencies act as they do
o   learn how to approach issues involving agencies
What do agencies do?
–          regulate private activity
o   enact, enforce rules
o   permit, license activities
–          administer entitlement programs
o   establish, enforce eligibility requirements
–          control of public resources
o   establish permitted/prohibited uses by area
o   issue various permits
–          plus, many other activities
Why do we use agencies to make these decisions?
1)      expertise
2)      efficiencyà big workload
3)      continuityà always dealing with same people for same issues
1)      accountabilityà counter-majoritarian
2)      efficiencyà lots of levels, etc… very complex, redundant
3)      unelected bureaucrats running amok
What can you do about it to get benefits? à make sure agencies don’t overstep their bounds and follow process
1)      Interested parties should have the ability to participate (process), making sure the agencies do things the right way
2)      Judicial Review (final agency actions are reviewable in court)
Types of Agency action
1)      Rulemaking: quasi-legislative function
a.       Agency is making law, much as Congress would
b.      Generally done through notice-and-comment process
2)      Adjudication: quasi-judicial function
a.       Agency is determining compliance with law
b.      Some, not all, adjudications are much like trials (some look nothing like them)
3)      Investigation: quasi-executive function
a.       Passing down reports, issuing subpoenas, inspecting premises for compliance
**None of these functions are inherent powers of an agency!
à authority comes from law that created the agency (statute that gave it particular program)
Administrative Procedure Act (APA): distinguishing types of action
–          not a substantive statute, but a procedural law
–          provides default rule as to how agencies are suppose to operate (and reviewing agencies)
–          Key distinction: Rulemaking v. Adjudication
o   Ruleà statement of future effect regarding law
o   Rulemakingà process of making a rule
o   Orderà final disposition NOT through rulemaking
o   Adjudicationà process of developing order
–          for both rulemaking and adjudication, substantive statute, agency rule, and APA dictate process
Rulemakingà establishing policy decisions applicable to everyone similarly situated
How does process start?
–          Agency must have statutory authority to make rule
–          Agency may be prompted by 1 or more factors:
o   Statutory mandate (with or w/o deadline)
o   Political pressure (Congress, White House)
o   Emerging issue (e.g. media stories)
o   Staff direction
o   Lobbying from outside actor
o   Rulemaking petition (usually a non-gov’tl actor)
Congressional Influence
–          Appropriationsà threaten to cut/decrease funding; limiting spending; directing spending
–          Hold Congressional hearings
–          Head of agencies (and many senior positions) are congressional appointments
o   Senate confirmation hearings
–          Modify substantive statute
–          Congressional media outlets
–          Congressional contactà phone call, individual pressures, etc…
–          Procedural statutes (notably the APA)
–          Appropriations ridersà directions in spending bills that direct agency what to do
–          Oversight—both formal & informal
–          Reviewing specific rules
Presidential Influence
–          Executive orders: binding on agencies
–          Removal power: threaten to fire “higher-ups”
–          Appointments: White House makes appointments subject to senate confirmation hearings
–          OMB review of proposed actions
–          Budget requests
–          Policy direction
Judicial Influences
–          Judicial review of agency action
–          Judicial review of agency inaction
–          Hear some enforcement cases
Non-Governmental Influences
–          Media coverage
–          Provide information
–          Lobby
–          Comment
–          Petitions for rulemaking issuance, amendment, or repeal
**ALL of these influences on agency behavior are pressure pointsà you can use these to help get results; and often they can equally work against you
Rulemaking petitions [APA § 553(e)] –          for an agency to accept petitions from the publicà agencies must give “interested persons” the right to petition for issuance, revision, appeal
–          some agencies (not all) will have rules for form/content of rulemaking petitions
–          agencies must decide the petition (eventually) and explain denial
–          denial is subject to judicial review
Telecommunications Research & Action Center (TRAC) v. FCC
à petitions must be de

& comment process
o   Limited judicial role in reviewing agency actions
Notice Requirements
–          APA § 553 doesn’t require that much:
o   Terms or substance of proposed rule, OR
o   Description of subjects/issues involved
–          Agencies typically give a lot more in proposal
o   Actual text of proposed rule (almost always)
o   Preamble: explains rule, flags issues, gives data
–          Here, as with other aspects of notice & comment process, statutes, rules, executive orders often require agency to do more
o   Judicial Review has also pushed agencies to do more
Chocolate Manufacturers Ass. v. Block
ànotice is adequate if the changes in the original plan “are in character with the original scheme,” and the final rule is a “logical outgrowth” of the notice and comments already given.
–          if the final 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.
–          An interested party must have been alerted by the notice to the possibility of the changes eventually adopted from the comments.
**Notice must let interested parties know that their interests are “on the table” in rulemaking.
–          a rule will be invalidated if no notice was given of an issue addressed by the final rules.
Comment Opportunity
–          APA § 553 doesn’t require much:
o   Agency must offer chance to comment in writing
o   No minimum comment period
–          Agencies often do much more:
o   Public hearings, especially if someone requests one
o   60-day comment period typical; may be extended
–          Agencies may accept comment even if its not submitted in accordance with proposal
Ex parte communicationsà communications made to decisionmakers in the agency outside of the prescribed (and public) procedures
à when private parties/lobbyists attempt to communicate with agency officials of the public record, then:
communication received before the formal notice need not be included in the public record, unless the communication formed the basis for agency action