Administrative Law Outline

Moskowitz
Administrative Law
Spring 2012
 
 
I.                   ADMINISTRATIVE LAW PRACTICE
a.      Agencies
                                                              i.      Defined=each authority of the Government of the US, whether or not it is within or subject to review by another agency (§ 551 (1))
1.      Created by Congress passing a statute
2.      Congress gives agencies their power within statute
                                                            ii.      Independent agencies=free standing agencies; not part of any department (ex. National Labor Relations Board)
                                                          iii.      Departments=agencies, have the highest status; generally headed by a Secretary
 
 
Independent Agencies
Executive Agencies
*more independent from presidential influence
*headed by multi-member groups
*heads can only be removed for cause
*serve a terms of year (usually 5)
*does not require political affiliation
*more presidential influence
*heading by 1 person (the Secretary)
*serve at the pleasure of the president
*serve until retired or fired
*generally have the same political affiliation as the presidentàpart of the executive branch
*ex. Dept of State Defense, Dept of Treasury
                                                          iv.      What agencies do:
1.      Federal agencies execute the law of the U.S.-àcan be distinguished by the types of law they execute
2.      Regulate private conduct
a.       Ex. EPA
3.      Administer entitlement programs
a.       Ex. Social Security
                                                            v.      Types of agency action
1.      Rulemaking=legislative action
a.       Informal–§ 553
b.      Formal–§ 553(c)—556, 557
c.       Defined: the agency process for formulating, amending, or repealing a rule
                                                                                                                                      i.      Rule=an agency statement of future effect designed to implement, interpret, or prescribe law or policy
                                                                                                                                    ii.      Has a future effect (similar to legislative process)
d.      Rulemaking is the interpretation of a statute
                                                                                                                                      i.      Judicial review of agency action is asking the court to interpret the statute to determine if the agency was right in its actions
e.       Legislative rule =binding; non-legislative rule=not binding
2.      Adjudication=judicial action
a.       Formal=§ 554a—556, 557
b.      Defined=the agency process for formulation of order
                                                                                                                                      i.      Order=the whole or part of a final disposition other than rule making but including licensing
                                                                                                                                    ii.      Applying an existing rule or statue to determine what outcome is required
 
 
 
Rulemaking
Adjudication
Formal
§ 556, 557
§ 554(a), 556, 557
Informal
§ 553
§ 555, 558, etc
 
3.      Investigation=executive action
a.       Collecting information pursuant
 
II.                RULEMAKING
a.      § 553àdesignates the procedure of informal rulemaking and determines when formal v. informal is used
 
 
 
§ 553
(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with the law. The notice shall include:
            (1) a statement of the time, place, and nature of public rule making proceedings;
            (2) reference to the legal authority under which the rule is proposed; and
            (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved
 
Except when notice or hearing is required by statute, this subsection does not apply –(exceptions to notice requirement)
(A)    to interpretative rules, general statements of policy, or rules of agency organizations, procedure, or practice; or
**these are non-legislative rules, therefore notice is not required
 
(B)    when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notices and public procedure thereon are impracticable, unnecessary, or contrary to the public interest
 
(c) After notice required by this section, the agency shall give interested persona an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purposes. When rules are required by statute to be made on the record after opportunity for an agency hearing, § 556 and 557 apply instead.
            **informal rulemaking requires 3 things: notice, comment, and a statement of purpose
            **when need to be made on the record-àformal rulemakingà556 & 557
                        -statute will deem if formal rulemaking required
 
(d) the required publication or service of a substantive rule shall be made not less than 30 days before its effective dates, except–            (must give notice of 30 days before rule is in place and effective—get prepared and ready for compliance)
            (1) a substantive rule which grants or recognizes an exemption or relieves a restriction;
            (2) interpretative rules and statements of policy; or
            (3) as otherwise provided by the agency for good cause found and published with the rules
 
(e) each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.
            **gives individuals the ability to aid in rulemaking process to petition for rule change
 
 
 
 
·         Forms of Rulemaking:
o   Informal:
§  Less formal, less procedure, most used
§  3 step process:
·         1) Noticeàagency is required to publish notice of the proposed rule in Federal Register UNLESS
o   it’s a non-legislative rule
o   agency has good cause for bypassing the notice stage
·         2) Commentàagency must give interested parties an opportunity to participate in the rulemaking process
o   allowing an oral presentation is at agency’s discretion
·         3) Decisionàagency must incorporate rules adopted in a concise general statement of their basis and purpose
o   final version published in Federal Register and eventually codified
§  ex parte communications not explicitly prohibited by the APA
·         Congress can/does prohibit or limit such in agency mandate
o   Formal:
§  Must follow procedures set out in § 556 & 557
§  Similar procedure as formal adjudication
§  Trial like procedure
§  Is required when the enabling statute requires rulemaking to be on the record
·         Agency’s statute must state that rulemaking be on the record to trigger formal rulemaking
o   The words “on the record” not necessary but  there needs to be more than a hearing requirement within the statute (hearing not sufficient to trigger formal rulemaking)
§  Ex parte communications are explicitly prohibited
o   Hybrid Rulemaking:
§  Statutes add various requirements that are not within the APA
§  Not autho