Administrative law outline
Three Themes of course:
1. What powers do agencies have under law?
2. How do they actually operate?
3. How do you get remedies if injured by and administrative agency?
I. Chap 1 – ADMINISTRATIVE LAW PRACTICE
A. Two facets of this law
a. Law that governs agencies
b. Law that agencies make
What is an agency?
APA defines “agency” as “each authority of the Government of the US, whether or not it is within or subject to review by another agency.”
Franklin v MassàPresident is not an agency
Government corporations may or may not be agencies under APA—statute usually says if is or not
If gov uses for gov’ biz then usually not subj to APA
Department has highest status of agencies
Headed by Secretary [except DOJ-Attorney General]
Can be fired by president
All have general counsel
Not directly respons to electorate
Collapses 3 branches
APA is attempt to avoid concentration of pwr by reg and proceduralizing agency action
Independent agencies: not part of a department; tend to be slightly more independent
1. headed my multimember group, not a single individual
2. decisions by a majority vote
3. members of group that head can only be removed for cause
4. heads serve for term of yrs & on staggered basis; pres can’t replace entire group in one term
5. statutes creating these req only simple majority of agency can come from one poli party
Executive Agencies: part of a department; ex NLRB, SEC, FTC
What do agencies do?
Agencies execute the laws of the US
Regulate Private conduct
Regulatory Agencies: regulate private conduct
Ex. Local gov’ when gives ordinances, etc.
Reg mkt to make more efficient—Spillover Cost: responsible persons or Co. will not pay for damages cuz it’s unreg mkt
o Administer Entitlement Programs
§ Entitlement Programs: dispense fed and state funds for specified purps to proper recipients
· Increases pub welfare (ex Medicaid, welfare)
· Can influence priv persons to change conduct
· Not taxes
· THREE TYPES OF AGENCY ACTION
1. Rulemaking (legislative)
-limited to what is delegated in mandate
-not all agencies have
-only quasi-judicial leg pwr
-regs always pub in Fed Register
-annually collect and put in CFR
-subj to jud rev to make sure didn’t exceed pwr delegated to it
-must have adequate reasons for adopting
-APA 706(2)(D) have to follow rulemkg procedures
2. Adjudication (judicial)
-many agencies do not have this pwr
-MT: give auth for compliance orders (=injunctions) and penalty orders (judicially imposed fines)
-quasi-adjudicating” limiting to its enabling act
-subj to jud rev to make sure didn’t exceed auth and followed procedure
3. Investigation (executive)
-can’t compel production of info-unless otherwise auth
-auth to order production: subpoena, auth to compel reg entities to file periodic or special reports w/agency, inspect premises of reg entity to see if in compliance w/regs
Walk through APA
Defines procedural rts of persons outside of government and structures the manner in which persons inside of gov’ make decisions
Def of Adjudication and Rulemaking
Adjud:is agency process for formulation of an order(551(7))
Order:is whole part of final disposition other than rulemkg, but including licenses(551(6))
§ Rulemaking:agency process for formulating, amending, or repealing a rule(551(5))
· Rule: an agency statement of…future effect designed to implement, interpret or prescribe law or policy(551(4))
1. Rulemaking- APA 553
· Procedures here apply except when rule concerns:
o 1. Military or foreign affairs
o 2. matters relating to agency management or personnel or to pub property, loans, grants, benefits, or contracts
A. INFORMAL RULEMAKING
· 553(b) – agency is req to publish a Notice of proposed rule in Fed Register, unless persons that will be affected can be personally served
o needs stmt of time, place, nature of public rulemkg procedures
o reference to the legal authority under which the rule is promulgated
o either the terms or substance of the proposed rule or a description of the subjects and issues involved
· Two Exceptions:
· 1. 553(b)(A) – if it is interpretive rules, general statements of policy, or rules of agency organization, procedure, and practice
· 2. 553(b)(B) – when agency has “good cause” for bypassing notice; has to have FINDING and a BRIEF STMT OF REASONS for rule issued
· 553(c) – agency must give interested persons an opp to participate in rulemkg thru submission of written data, views, or arguments with or w/o opp for oral interp”
● have to also “incorp in the rules adopted a concise general stmt of their basis and purpose.”
· 553(d) – have to
to petition for issuance, amendment, or repeal of a rule.”
702 – rt to judicial review of an agency’s action or inaction
701 exceptions to 702’s jud review of agency action:
701(a)(1) – excludes from jud rev agency decisions that have statutes that preclude jud rev in the substantive statute
Sep of pwrs issue: only congress can do this
701(a)(2) – excludes agency action from jud rev that is committed to agency discretion by law
704 – agency action must be FINAL
706 – tells what ct may do on review
· Lobbying/ initiating agency action
· 1. look for supporters (media)
· 2. look for allies, especially political
· 3. know audience – they are not just lawyers
· 4. read the rules – know rules of ex parte communications
· Petitions for Rulemaking 553
o 555(e) give prompt notice of denial of petition – agency can’t ignore petition for rulemkg; they have to give prompt notice of denial and reasons for denial
o 702 rt to jud rev for denial of petition
o 551(13) Agency inaction – agency action includes “failure to act”
o 555(b) Matters must be decided w/I a reas time
o 706 agency unlawfully withheld or unreas delayed:Cts will compel agency action unlawfully withheld or unreasonably delayed
§ hard for the cts to apply cuz agencies have limited resources, many commitments and they haven’t even addressed question of whether to begin rulemkg or not
§ 1st inquiry: is agency’s delay so egregious as to warrant a mandamus? Telecommunications research and action center v. FCC
§ guide in assessing claim of unreas delay [telecommunications v FCC]:
· 1. time agencies take to make decisions must be gov’ by rule of reason
· 2. where cong has provided timetable or other induction w/I which it expects agency to have rule, then that statute may supply content for this rule of reason
· 3. delays that might be reas in eco reg are less tolerable when human health and welfare are at stake
