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Admin Law
Prof. Moskowitz
Fall 2005
Introduction
I. General concepts
a. Involves 3 parties – private persons, regulated entities, and government agencies.
b. Agency
i. Departments – highest status as agency. (Department of Commerce,
Education, etc). Each will have a host of sub-agencies.
ii. Independent – freestanding agencies that are not a part of a department.
iii. Executive – Answer to the President.
iv. Operation
1. Regulate private conduct – Regulatory agencies – primarily
engage in regulate private conduct. Justifications
a. Country is a private market system subject to
imperfections that the government can rectify.
b. Operation of unregulated market may lead to result that
the vast majority of citizens disagree with.
c. Spillover costs – activity of individual or company
harms other person or the environment – someone else
must pay to fix the harm.
2. Administer Entitlement Programs
a. Social security, medicare, etc.
3. “other”
a. IRS, INS,
c. Types of Agency action – brief overview
i. Rule making – legislative action. Same effect as if a law had been
passed by Congress.
1. Publish regs in Federal Register
2. Authority to act limited to powers specified in mandate by
Congress.
ii. Adjudication – judicial function – think of the courts. Applies an
existing rule to a set of facts to determine what outcome is required by
the rule or statute.
1. Same force of law as if it had been decided by a court.
iii. Investigation – executive branch, law enforcement. Determine whether
someone may be in violation of an agency rule or mandate.
1. Subpoena power – most common tool.
2. Filing reports with the agency.
3. Inspections – think OSHA
d. The APA – Administrative Procedure Act
II. Rule Making
a. Rulemaking Initiation
i. Sources
1. Legislative mandate.
a. Specific regulations required
b. Protect safety, adopt rules for society.
2. Staff recommendations
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a. Identify problems
b. Enforcement
c. Formal system of priority setting.
3. Political Pressure
a. Avoid critical legislation investigation
4. Public
a. Lobbying produces political heat.
b. Petitions
i. §553(e) – agency is required to give “an
interested person the right to petition for the
issuance, amendment, or adoption of a rule.”
ii. Check the agencies’ rules.
iii. §555 (e) agency must give prompt notice if
petition is denied.
iv. §551(13) “agency action” includes a failure to
act.
v. §706 establishes an arbitrary and capricious
standard of review for rulemaking.
vi. DENIAL OF PETITIONS
1. Court review of denial or petition is very
narrow, overturn only in rare
circumstances. Arkansas Power &
Light v. ICC.
2. Agency must set forth the grounds on
which it acted. Northern Spotted Owl v.
Hodel
a. If agency didn’t set forth
grounds, then will likely remand
for more findings.
3. 706(2)(A) – judicial review will be
under arbitrary and capricious standard.
a. Analysis
b. Explanation for findings
c. Grounds are clearly set forth
d. Expert witnesses
b. APA Rulemaking Procedures §553
i. EXCEPTIONS
1. Military or foreign affairs
2. Rules for agency management or personnel
3. Rules involving public property, loans, grants, benefits,
contracts. (government not restricting or imposing its will on
liberty of private persons).
4. Many agencies have voluntary waived their exception through
regulations.
5. Even if excepted from 553, will not be accepted from FOIA
(552).
ii. Exceptions from Notice and Comment
1. Rules of agency organization, procedure, or practice
2. interpretive rules
3. general statements of policy
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4. other rules for which notice and public procedure are
impracticable, unnecessary, or contrary to public interest.
iii. Substantive v. Procedural rules – AHA v. Bowen
1. Substantive
a. Subject to notice and comment
b. “Legislative Rule”
c. Act gives agency the power to make rules
d. Creates legal rights/duties on someone
2. Interpretive rules §553(b)(3)(a)
a. Not subject to notice requirement
b. Not based on something the act gives to prescribe
c. A classification of the existing rule
3. Good cause §553(b)(3)(b). Mostly commonly used.
a. Notice does not apply when the agency for good cause
finds notice impracticable, unnecessary, or contrary to
public interest.
i. Notice would defeat the agency’s regulatory
objective
ii. Immediate action is necessary to reduce or avoid
health hazards or imminent harm
iii. Inaction will lead to serious dislocation in
government programs or marketplace.
iv. Impracticable - situation in which due and
required execution of agency functions
unavoidably prevented by it undertaking public
rule-making proceedings.
v. Unnecessary – so far as public is concerned.
vi. Public interest – lack of public interest warrants
an agency dispense with notice.
4. Critical feature of the procedure exception: “covers agency
actions that do no themselves alter the rights or interests of
parties, although it may alter the manner in which the parties
present themselves or their viewpoints to the agency.” JEM.
5. Procedural exception to notice normally does not apply where
agency encodes a substantive value judgment.
6. interim final rules sometimes used – dispense with notice, but
still allow some type of comment b/f the rule becomes final.
7. If rule is under exception from notice due to emergency – agency
may have to undertake notice and comment within 2 years of
promulgation of the rule.
c. Formal Rulemaking
i. Required to be formal when triggered by §553(c): rules are required by
the statute to be on the record after opportunity for a hearing. This
means follow procedure of §556-57: hearings and review by the agency.
ii. The enabling statute must say that the rules are required to be made “on
the record” US v. Allegheny Ludlum Steel Corp.
iii. Statute requiring “hearing” is not enough to mandate formal rulemaking.
U.S. v. Florida East. Enabling statute must be VERY specific.
iv. When agencies actually do have a hearing under formal rulemaking, the
agency will determine what formalities are used (unless directed
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otherwise by Congress), it is not up to the courts to provide even
procedure. Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, Inc.
d. Informal rulemaking Requirements
i. Notice
1. General notice of rulemaking shall be published in the federal
register. §553(b).
2. Notice is not required if the person already has actual notice –
this is not relied upon often.
3. Notice must include the time, place, and nature of the
proceeding. §553(b)(1). Normally will publish the entire text of
the proposed rule.
4. Legal authority under which the rule is proposed AND
5. Indicates either terms or substance of the proposed rule or a
description of the subjects and issues involved.
ii. Adequacy of Notice – common challenge to a new rule
1. Notice of proposed rulemaking must “fairly apprise interested
persons” of the issues in the rulemaking.
2. Chocolate Manufactures Assn. v. Block (proposal to reduce
sugar in WIC). Changes to rule after notice period
a. If changes in original plan are in character with the
original scheme
b. Final rule is logical outgrowth of notice and comment
already given
3. 7th Circuit approach. Notice is invalid when:
a. No notice was given of an issue addressed in a final rule
b. An issue was only addressed in the most general terms
c. A final rule changes a pre-existing agency practice
which was only mentioned in the notice in order to place
unrelated changes in context.
iii. Opportunity for Comment 553(c)
1. Interested persons must be allowed to comment through
submission of written data, views, or arguments.
2. Oral presentation or hearing is not required
3. final rule must be published 30 days prior to their effective date.
4. There is no prohibition on ex parte communications.
HBO
Information which is gathered ex parte from public which
becomes relevant will have to be disclosed at some point
Ex parte communication is completely appropriate so long as
it does not frustrate judicial review or raise substantial
questions of fairness
Communications which are received prior to the issuance of
a formal notice or RM do not in general have to be put in the
public file.
BUT, if info contained in ex parte communication forms the
basis of agency action, then that info must be disclosed to
the public in some form.
Sierra Club
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To evaluate whether ex parte communication violated fairness
consider: timing, source, mode, content, extent of disclosure on
the docket.
Standard:
o Did the agency follow procedures as required by law?
(enabling statute)
o If not, was the unlawful error of such central relevance
to rule that there is a substantial likelihood that the rule
would have been changed if such errors had not been
made?
Intra-executive branch meetings
o Unless explicitly forbidden by Congress, contacts can
take place during and after the comment period
o The only real issue is ether they must be noted and
summarized in the docket. Don’t have to be docketed if
agency made no effort to base its rule on the date from
those meetings.
Congressional pressure – two conditions before rule can be
overturned due to pressure
o Content of pressure upon Secretary of agency designed
to force him to decide factors not made relevant by
Congress in statute.
o Secretary’s determination must be affected by
extraneous considerations.
iv. Statement of Basis and Purpose
1. 553(C) mandates that the agency make the rules into a concise
general statement of their basis and purpose.
a. Enables the public to know the general idea and purpose
of the rules.
b. Statutes may require complicated and conclusive
preambles which are very complicated and cumbersome.
e. Hybrid Rulemaking
i. Statues can make any additional requirement they want regarding what
the agency must do in order to pass the rule.
ii. National Environmental Policy Act –
1. Agencies must make Environmental Impact statements before
doing activities (including rulemaking) that may impact the
environment.
2. Subject to judicial review
iii. Regulatory Flexibility Act –
1. RFA when agencies propose a rule that may have an economic
impact on a substantial number of small businesses.
2. Must include reasons why the agency is proposing the action, a
statement of objectives and legal basis, and description of the
affected entities.
3. Judicial review.
iv. Paperwork Reduction Act –
1. Agencies must engage in notice and comment prior to imposing
any reporting or recordkeeping requirements on persons.
f. Negotiated Rulemaking
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i. An agency and other parties with stake in rule participate in interaction
designed to reach consensus. Think alternative dispute resolution.
ii. Intermediate between formal and informal rulemaking.
iii. Helps to lower the costs, speed things up, and move along the political
process.
iv. Problems
1. Takes decision making to private parties, and reduces public
comments, creates more adversary
v. Negotiated Rulemaking Act – negotiated rulemaking committee must
comply with the requirements of the underlying statute.
g. Judicial Review
i. Statutory Interpretation
1. §706 reviewing court hold unlawful agency action “not in
accordance with the law” and action in excess of statutory
jurisdiction, authority, limitations, or short of statutory right”
706(2)(A) and (C).
2. Should the courts give deference to agency interpretations?
ii. Chevron
1. Look to the language of the statute
a. If clear, follow what Congress said
b. If unclear, or not precisely addressed, look to agency’s
interpretation
2. Is the agency’s interpretation reasonable?
a. Agency given extreme deference, Congress gave them
leeway
b. Regulatory scheme is technical and complex
c. Agency considered matter in a detailed and reasonable
fashion
d. Decision involves reconciling different policies.
3. Notes
a. If congress leaves a gap for the agency to fill, express
delegation of authority to fill the gap
b. How to decide if Ambiguous – step 1
i. K-mart approach (K-mart v. Cartier)
1. look to particular language of statute,
language and design of statute as whole
2. if silent or ambiguous with respect to
specific issue, consider whether reg is
permissible construction of statute
3. if permissible, give deffernce
ii. Dole v. US. Steelworkers
1. Determine Congressional intent under
traditional notions of statutory
construction
2. State with language of statute, examine
whole law, object and policy.
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Rule making Adjud
Informal 706(2)(a): arbitrary,
capricious, abuse of
discretion, otherwise not
in accordance with law
Formal 706(2)(e): unsupported 706(2)(e): unsupported
by substantial evidence by substantial evidence
iii. Substantive Decisions (Three issues)
1. What is the scope of review
a. See chart above.
b. Congress can require the use of substantial evidence
standard for hybrid or informal rulemaking.
c. Substantial evidence – court should uphold a rule if it
finds the agency’s decision to be reasonable or record
contains such evidence as a reasonable mind might
accept as adequate to support a conclusion.
i. Court does not have to agree with the
conclusions – it just must be reasonable.
d. Arbitrary and Capricious –
i. Was the decision based on consideration of
relevant factors?
ii. Was there a clear error of judgment?
2. What constitutes [the whole] record to be reviewed. (§706)
a. Formal RM
i. Evidentiary record created at the required
hearings of §556-557
b. Informal RM
i. Information that the agency actually used in
making their decision.
ii. Federal Register notices for the proposed and
final rule, comments submitted, and studies or
data created or used by the agency that were not
published.
c. When unknowable facts are being reviewed, the courts
should be highly deferential.
3. What obligation does the scope of review impose on agency to
explain its decision?
a. When agency lacks adequate reasons, its action will be
arbitrary and capricious.
b. Court will normally remand a rule to agency rather than
declaring it invalid.
c. Agencies will normally provide their explanations in
writing as part of the final rule.
d. There must be a rational connection between the facts
found and the choice made.
e. Court can not discern their own adequate explanation
from the record –that is the job of the agency.
Courts will take a hard look – scrutinizes agency’s reasoning, agency must deliberate
Courts can’t impose on agencies specific procedure requirements.
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III. ADJUDICATION
a. Basics
i. If the agency is not engaging in RM, then its an order (unless
investigation).
ii. There are no requirements in the APA for informal, follow min of 555.
see below.
iii. Due process challenges are unlikely to arise when using formal
adjudication b/c process already has enough procedural safeguards.
b. Formal or Informal Adjudication
i. Formal –
1. if § 554 applies “required by statute to be on record”. Will also
mean that §556 and §557 must be used as well.
2. When there was the opportunity for there to be a hearing.
3. Exclusions listed in §554(a) – military, matter with subsequent
trials, etc.
ii. Informal –
1. Watch out for §555 and 558, due process and statutory
requirements.
Seacoast –
The exact words “on the record” do not have to appear in the enabling statute to
make it formal rulemaking
Look to the substantive nature of the hearing that Congress was trying to provide.
Determinations made that are not on the record, case will turn on info that the
court will never get to see. Not the intent of Congress.
If the statute says “hearing” then presume that agency must use formal
adjudication.
City of West Chicago v. US Nuclear Regulatory Commiss.
“on the record” does not need to appear
But if not there, Congress must clearly indicate its intent to trigger the formal,
on-the-record hearing provisions.
Chemical Waste Management, Inc. v. U.S. EPA This is the current law
Use the Chevron framework
o Did Congress specifically require formal adjudication?
Do not presume that a “hearing” does or does not compel formal
adjudication.
o If silent, then determine if agency’s interpretation is reasonable using
normal tools of statutory construction.
Look to the agency to solve
Use legal history, structural inferences, circumstances to
determine if agency was reasonable.
c. Ad judicatory Procedures
i. Notice
1. §554(b)
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2. Notice must include time, place, and manner of the hearing, legal
authority for the hearing, matters of law and fact asserted by
whoever is bringing the proceeding.
NLRB v. Local Union 25,
ALJ can not decide issues which were not raised in the amended
complaint b/c the parties do not have notice that such things will be
decided.
Southwest Sunsites
Notice is satisfied when the party proceeded against understood the
issue and was afforded full opportunity to justify his conduct.
Changes in rules that make it harder for agency are allowed – do
not violate notice, petitioner knows what he is being charged with.
Copanos
Notice information must provide enough information for the
respondent to have a genuine opportunity to identify material
issues of fact.
ALJ goes outside testimony from the hearing, ALJ must give the
claimant an opportunity to comment and present evident, but also
the opportunity to cross-examine the authors of post hearing
reports when cross-examination is essential to the case. Wallace –
same thing – post hearing medical evidence about disability not
allowed
ii. Intervenors
1. 555(b) – interested person can appear before agency as far as the
ordinary conduct of public business permits.
2. Applies to all agency proceedings – formal and informal.
3. Appear?
a. If the person has standing to appeal the decision of
agency, as a matter of law the person has a right to
intervene.
iii. Settlement
1. APA says there should be opportunity for the parties to settle.
554(c), 556(c)(6).
2. Parties are allowed to use ADR – but it is never required.
iv. Administrative Law Judges
1. 3 people can preside: agency, or member comprising agency
(think Adminstrator or Secretary), or ALJ.
2. ALJ hears virtually all cases.
3. Allowed to issue oaths, subpoenas, rule of offers of proof, etc.
4. ALJ are employees of the agency – but agency can not rate,
evaluate, discipline, reward, punish or remove ALJ.
5. Separation of functions 554(d) –
a. Agency employee who investigates or prosecutes a case
can not advise ALJ decision, recommend decision, or
agency review
b. 3 exceptions.
i. Initial licensing
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ii. Validity or application of rates or practices of
public utilities or common carriers
iii. Head of the agency or members of commissions
and boards are not forbidden from both.
6. ALJ can be disqualified for personal bias or other reason from
hearing a case. 556(b).
v. Split enforcement arrangement
1. Exceptions to when the head of the agency is allowed to
participate in prosecution and decision.
2. OSHA and MSHA – see page 214.
vi. Burden of proof
1. The proponent has the burden of proof 556(d).
2. Burden is only for persuasion – not production.
3. Agency decision must be supported by reliable, probative,
substantial evidence 556(d).
4. Substantial evidence means the quality of evidence, not the
quantity.
5. Allows hearsay and other evidence which would not be allowed
under the federal rules of evidence.
vii. Testimony and Documents
1. 556(d) normally allows almost all kinds of evidence BUT
2. Adjudications for money or benefits or applications for initial
licenses, agency is allowed to provide fro submission of
evidence in written form, rather than orally.
viii. Record and Ex Parte Communications
1. Transcript of testimony and exhibits, papers filed in the
proceeding constitutes the exclusive record for decision. 556(e).
2. ex parte communications are not allowed during APA
adjudications.
3. Ex parte are communication to someone involved in decisional
process from an interested party OUTSIDE the agency with
respect to merits of the case that are not on public record.
§551(14), 557(d)(1).
4. APA denies ex parte communication in formal, but not in
informal.
5. 554(d) bars communication between employee and the ALJ or
any member of commission or board who is responsible for
making a decision in the matter in which the employee serves as
prosecutor or investigator.
Stone v. FDIC
Introduction of new and material information through ex
parte communication undermines the public employee’s
constitutional due process guarantee of notice and
opportunity to respond.
Factors to weigh
o Whether communications introduces cumulative
information
o Whether employee knew of error and had a chance
to respond
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o Whether ex parte communication are of type that
would likely amount to undue pressure upon ALG.
KEY – is the communication so substantial and so likely to
cause prejudice that no employee can fairly be required to be
subjected to a deprivation of property under such
circumstances.
ix. Appeals
1. 557(b) there are appeals that take place within the agency.
2. Agency will have de novo review – all of the review powers that
it would have in making the initial decision.
x. State adjudication
1. Most state mirror the federal code.
2. Some state have “central panels” of ALJ – not employees of the
agency but employees of central employment agency.
d. Due Process Hearings
i. When the APA doesn’t apply, look to statutes, procedural regulations,
DP clause. Due process applies to state and federal actions
ii. Query
1. Does DP clause apply?
2. What process is due.
iii. Moskowitz’s outline for Procedural DP
1. Is there a government or state action?
a. If no, then no claim.
2. Is it a legislative or adjudicative act?
a. If legislative, then no need for individual hearing –
entitled only to voting out the representative (think
taxes)
3. Even if adjudicative act – has there been a deprivation of liberty
or property?
4. If yes, what process is due?
iv. Due process clause applies only to Individualized decisionmaking.
Londoner
A few number of people would be affected by new taxes – they
should be provided a hearing.
Factors:
o Number of person affected
o Extent of impact on each person
o Factual basis for determining impact on each person.
Bi-Metallic
Increase in taxes for the entire state – would have been impossible
to allow everyone to participate in hearing.
Even though it may affect a person in an individualized way, does
not give that person a right to a hearing – see factors above.
v. Due process clause applies only to Protected Interests
1. Property interest
a. Life, liberty, and property. Includes the loss of
government entitlement program.
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Board of Regents v. Roth
Liberty includes freedom from bodily restraint but
also the right of the individual to contract, to engage
in any of the common occupancies of life, to acquire
useful knowledge, to marry, to establish a home and
bring up children, to worship God according to the
dictates of his own conscience, and generally to
enjoy the privileges long recognized as essential to
the orderly persuit of happiness by free men.
If a person’s honor or integrity is at stake b/c of
government action, notice and opportunity to be
heard are essential – think stigma.
2. Liberty interest
a. The right to engage in a profession. Think license to
engage in profession.
Paul v. Davis
Harm + Stigma test
Reputation alone, without some other tangible
interest is not enough for DP protection. (Some
other disability must be included).
Wolf
Where the government has created a right (good time
credit for prisoners), taking the right away is a due
process liberty right.
Shands
For DP to be triggered, must how that defendants made
untrue charges damaging reputation, forclosing
employment. Charges of insubordination alone is
normally not enough.
Must be so damaging, that the employee can not escape
the stigma of the charges.
3. What hearing Procedures must be used?
a. Goldburg
i. Welfare – must have post deprivation hearing.
ii. Effective notice, opportunity to defend, cross
examine, etc.
b. Richardson
i. No right to cross doctors on disability decisions
where creditability and veracity were not likely
to be an issue.
c. Gross
i. Minimal procedures for school suspension were
adequate. Provide student with opportunity to
hear his side of the story.
ii. Balancing approach – harm suffered by student,
costs imposed by due process.
d. Mathews
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i. DP is flexible and depends on the situation.
Factors:
1. private interest that will be affected by
the action
2. risk of erroneous deprivation of interest
3. probative value of additional procedural
safeguards
4. government’s interest – faction involved
and fiscal and admin burdens of
additional procedures.
ii. Financial costs alone are not enough to deprive
DP
iii. Final analysis – When DP must be used to
assure fairness.
e. Due not always need pre-deprivation hearing if there is
opportunity for full DP hearing subsequent to
deprivation.
f. Horowitz (med student – bad grades and smelly
kicked out of school)
i. She was already given DP
1. Adequate notice of problems with
performance
2. Decision was careful and deliberate
ii. Academic v. disciplinary
1. Academic – not like judicial, fact
finding
2. Academic has less DP procedures
required.
g. Osteen (expelled from school after fight)
i. Mathews facts Plus
1. Cost – very expensive for colleges
2. Danger – not a risk of a lot of
expulsions.
ii. No need for a lawyer to represent the bad kid.
4. Neutral Decision maker
a. Investigation + prosecution is not per se a DP violation
b. A presumption of integrity can be overcome with a
showing of bias.
c. Exposure to evidence alone is not sufficient to show
bias.
d. Predisposed view of the law alone is also not enough –
judges often hear multiple cases on the same thing.
5. Judicial Review
a. 706: establishes the scope of review
b. Substantial evidence 706(2)(e)
i. Applies only to formal agency action.
ii. Applies only to whole record.
iii. Highly deferential standard.
iv. Court is not to reweigh the evidence, but
determine if the evidence meets a specific
standard.
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v. Agency makes decision de novo and not
required to refer to ALJ’s findings and
conclusions. ALJ’s decision is part of the whole
record, should be taken into account upon
review.
vi. Must look at the entire record – both sides upon
review.
Penasquitos
Testimonial v. Derivative inference
Testimonial – based on demeanor of witnesses
Derivative – drawn from evidence itself.
Board members have more expertise/experience and have the
power from Congress.
Is Creditability an issue in this case?
Jackson
The board must articulate a sound reason for their decision to be
upheld.
Board cannot simply disagree with the presiding official.
Creditability will be a question of fact.
c. Mixed questions of law and fact
i. Sub. Evidence for questions of fact. Relates to
disputed facts and resolution of dispute doesn’t
require reference to statute under which agency
is operating.
ii. Questions of law – 706(a)-(c) Can be resolved
without the facts.
iii. Court has 2 functions
1. reviews the facts and determines
whether conclusions have “warrant in
the record”
2. reviews agency’s explanation for
decision to see if it has “reasonable basis
in law”
Kemp
ALJ decision will be upheld unless evidence as a whole does not
support and he is inconsistent with the law.
Durrah
Scope of employment – show that employment created a zone of
special danger, misconduct alone should not remove the
employment zone.
d. Arbitrary and Capricious Review
i. Informal Adjudication 706(2)(E). court can
overturn agency decision if it is “unwarranted by
facts to extent that facts are subject to trial de
novo by the reviewing court”
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Overton Park
De novo review used when 706(2)(F):
o Action is adjudicatory in nature and agency fact finding
procedures are inadequate.
o Issues that were not before the agency are raised in a
proceeding to enforce nonadjudicatory agency action.
Arbitrary and capricious
o Was the decision based on consideration of relevant
factors?
o Was there a clear error of judgment?
o Did the agency follow the procedures required?
If Arb. and cap, the court will set aside the agency finding.
Must be a rational connection between the reasoning and the
decision.
Review for “adequate reason”
Agency must state an explanation for its action and have
a rational connection between facts found and choice
made.
Review for Consistency
Like cases should be decided alike.
Agency decides inconsistent decision, explain why the
results are not the same or else will be used as evidence
of arb/cap.
IV. Choice of Procedures and Nonlegislative Rules
a. Nonlegislative Rules –
i. Agency pronouncement that advises the public of the agency’s view on
an issue.
ii. No binding legal effect on 3rd parties.
iii. 553 provides for two types. Both exempt from notice and comment
1. interpretive rules –
2. general statements of policy
b. Option one: Adjudication
i. Advantages
1. More flexible and can deal with specialized problems
2. Principles can then develop
3. Helps with foreseeable problems
4. Attracts less attention
5. Less expensive and time-consuming to protect again just one
entity
6. Can pick the defendant
ii. Disadvantages
1. May seem “unfair” – prosecute when don’t know what for
2. Only one defendant
3. Only binding on that one defendant
4. Not as clear as a bright-line policy/rule
c. Option two: rule making
i. Advantages:
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1. More than one defendant
2. All are bound to follow the rule
3. Availability of notice
4. Opens process to criticism/advice
5. Can establish a bright line policy/rule
ii. Disadvantages
1. Hard to convey meaning
2. Can’t anticipate every situation
3. Engages national attention and can be expensive
4. cost-benefit analysis and OMB/Congressional review create
extra burdens not around in adjudication
iii. Four Legal Issues with RM
1. Does the agency have authority?
a. Congress has given the agency power
2. Impact on Adjudication Rights
a. Can no longer argue that the rule is not bad – have to
argue that you did not break the rule.
b. No need to have adjudication hearing if there are no
facts to be decided – just apply the rule created by
agency.
3. Retroactive Rulemaking
a. Agencies do not have the power to make retroactive
rules, unless expressly given the power to do so by
Congress.
b. IRS has been given this permission by Congress.
4. Ambiguous Rules
a. The element of “surprise” of a new rule might not be
eliminated through notice if the rule is unclear or
ambiguous.
d. Option three: Nonlegislative Rules
i. Interpretive rule- issued by agency to advise the public of agency’s
construction of the statutes and rules which it administers
ii. Policy statement – issued by agency to advise the public prospectively of
the manner in which the agency proposes to exercise a discretionary
power.
iii. Advantages:
1. efficient: not subject to procedural requirements, exempt from
other admin procedures
2. Beneficial: means of informing, a management tool to issue
guidance (uniformity).
iv. Drawbacks:
1. Adopted without public input
2. Many treat as binding
3. Public who rely on it may be adversely affected by their reliance.
v. APA Procedures:
1. FOIA 552, requires publication of nonlegislative rules of
statements of general policy
2. If not published, then can’t enforce against a person unless they
have actual notice.
vi. Telling the difference between non and legislative rules
16
1. Policy Statements – announces that the agency intends on
adopting a new duty in some future adjudication or RM. 553
exemption.
a. Binding Effect test – Is this a new duty or just
announcing the intention to impose a new duty sometime
in the future. If Duty – then must use RM. Statements
made will then not be given legal effect.
b. Two part test – AHA v. Bowen
i. Pronouncement acts prospectively – then
binding norm.
ii. Policy – generally leaves the agency free to
exercise discretion.
c. Young – a rule is legislative if it is binding on the
agency, regardless of whether it is also binding on the
regulated entities.
2. Interpretive Rules – clarifies the nature of duties previously
established by agency’s statutory mandate. Not itself binding.
a. Allowed to ignore until adjudication or adopted in
legislative rule.
b. Does not establish any new duties.
c. If Congress did not give the agency the authority to grant
legally binding rules, then any rule agency makes must
be interpretive.
d. Two factors
i. Agency’s characterization. Court not bound, but
they give it deference.
ii. Source of the duty a party is obligated to pay.
American Mining Congress
Determine legal effect of a rule, consider:
o If the rule was not around, if the legislative basis for
agency enforcement would be inadequate.
o If the rule is published in Code of Federal Regulations –
then agency probably wanted to be legislative.
o Whether the agency has explicitly invoked its general
legislative authority
o Whether the rule effectively amends a prior legislative
rule.
If none of the above can be answered “yes” then you have an
interpretive rule.
Metro School District v. Davila
Agency’s classification of the rule
If the agency intends to create new law, rights, or duties, the rule
is property considered to be a legislative rule.
3. Reliance on Nonlegislative Rules
a. Public relies on government statement and then the
government refuses to follow it.
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Heckler
Estoppel – prevent the government from denying payments of
benefits that they previously promised
o Reliance
o Detriment
o The reliance was reasonable.
The government is not subject to normal estoppel rules. At a
minimum, the normal burden for estoppel must be shown.
People dealing with the government are expected to know the
laws, understand the complexity and realize that the government
statements are not always binding.
Oral advice is also less likely to lead to estoppel.
Office of Personnel Mangmt v. Richmond
Every case of estoppel against the government has been denied.
Also not estopped – would require funds from government to be
spent without approval of Congress –goes against treasury rules.
e. Judicial Deference
i. Chevron – used for informal rulemaking – very deferential.
ii. Skidmore – Interpretive rules; lower level of deference
1. The weight given to an interpretive rule will depend upon:
a. Thoroughness evident in its consideration
b. Validity of its reasoning
c. Consistency with earlier and later pronouncements and
d. Factors given power to persuade, if lacking power to
control.
iii. Christensen – interpreting their own statute through interpretive
rule/letter (this is not RM)
1. non-legislative rules are only entitled to respect and only to the
extent those interpretations have power to persuade. Not entitled
to Chevron.
2. Interpretations such as opinion letters, policy statements, agency
manuals, and enforcement guidelines all lack the force of law.
No Chevron.
iv. Mead - Agency was interpreting its own regulations
1. Skidmore deference
2. When Congress leaves open a gap to fill, that is itself a
delegation of authority – court must accept the interpretation if
Congress is silent and the interpretation is reasonable.
3. Classification rules are best treated as interpretations
v. Informal Adjudication and Judicial Deference.
1. Gonzalez –
a. Used Chevron deference.
b. Congress was silent, so then determine if reasonable.
c. This was interpretation of statute, not own regulation.
vi. REMEMBER – if Agency is interpreting its own regulation/rule, then it
will get Chevron deference.
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V. Reviewability
a. Introduction
i. Does the court have jurisdiction?
1. Standing – Constitutional claim, is the person the right person to
be bringing the lawsuit.
2. Statutory grant of jurisdiction – usually not a problem in admin
law
a. Statute provides for jurisdiction.
b. General federal question jurisdiction is available.
ii. Does the plaintiff have a cause of action (COA)?
1. Is there a judicially enforceable right created by the statute.
2. 4 requirements under the APA
a. Appeal is not excluded from review
i. 701(a) review is not for statutes that preclude
judicial review or agency action committed to
agency discretion by law.
b. COA limited to person suffering “legal wrong” or
“adversely affected or aggrieved” 702
i. Legal wrong – government interfered with a
person’s constitutional, statutory, or common
law rights.
ii. Must be within a zone of interest that Congress
intended to protect.
c. Finality is required. 704
d. Exhaustion of remedies 704
i. Agency action is final for purposes of judicial
review even if a person has not appealed within
the agency, unless agency requires such an
appeal.
iii. Is the issue ripe.
1. Purpose to assure that the case is in a posture appropriate for
judicial determination and courts will not unnecessarily interfere
in the administration process.
b. Standing
i. Has the plaintiff suffered an injury (or about to suffer an injury) caused
by the illegal action, would a favorable decision remedy that injury?
ii. Injury in fact
1. If government action or inaction injures a 3rd person in some real
fashion
2. Ideological standing does not count (taxpayers can not sue b/c of
illegal spending of funds)
3. Memberships – one of the members must
a. Have standing to bring the action
b. Lawsuit related to purpose of organization
c. Neither claim asserted nor relief sought requires
participation of individual members.
iii. Causation and Redressibility
1. Injury must be a result of the government action and favorable
court decision must be able to remedy the injury.
2. Cannot be speculative – but the courts are sometime lenient on
this in order to have the case heard.
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iv. Prudential Requirements
1. Not based on the Constitution.
2. Can not be a generalized grievance suffered equally by a large
number of people. Plaintiff can not assert the rights of a 3rd
person.
3. APA 702, relaxes this and provides for prudential standing even
if large numbers of people are affected.
4. FEC v. Atkins – prudential standing is satisfied when the injury
asserted by plaintiff falls into a zone of interest to be protected or
regulated by statute. Especially when given authorization by
Congress for the standing.
Lujan v. Defenders of Wildlife
Elements of Standing
o Injury in fact
Concrete and particularized
Actual or imminent
Can not “someday” have an injury – in intent to return to
Egypt is not enough.
o Casual connection between injury and conduct complained of
Must be fairly traceable to government’s action
o Must be likely, not merely speculative. Redressibilty
Court must actually be able to fix the problem.
Duke – (okay if there is substantial likelihood that the
plaintiff’s claims were true).
Citizen’s suit provision of the act.
o Congress gave everyone the ability to sue – Not allowed, this is
for the executive branch.
o Generalized grievance claiming harm to every citizen’s interest
in property application of the Constitution does not state an
Article III case or controversy.
c. Cause of Action
i. If statute establishes a COA, then nothing else needed.
ii. If not, then look to 702 for zone of interest.
1. Plaintiff show that his injury falls within the zone of interest
sought to be protected by the statutory provision whose violation
forms the legal basis of the complaint.
2. Allowed to look at any part of the statute to determine the intent
of Congress. Air Courier. But the complaint must include the
statute that is to be examine – can not just look at any statute.
National Credit Union
Whether the interest sought to be protected is arguably
within the zone of interest to be protected by the statute.
Bennett
The court can only look to the particular provision that is
being requested – can not link other provisions (like citizen
standing, in the same piece of regulation).
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d. Exclusions from Judicial Review under the APA
i. Statutory preclusion
1. 701 – judicial review can be excluded when
a. Statute precludes judicial review OR
b. Agency action is committed to agency discretion at law.
2. Will be narrowly interpreted by the courts.
a. Might be unconstitutional – court has not spoken to this.
b. APA normally presumes judicial review to those
adversely affected by agency action.
3. Statute can preclude judicial review implicitly.
4. Abbott 701(a)(1)
a. Clear and convincing evidence of Congress intent is
needed to preclude review.
b. There is a presumption of judicial review.
c. Legislatures intent must be fairly discernable in the
statutory scheme.
5. Block
a. Look to the statutory scheme to see if preclusion was
intended by Congress.
b. Presumption for judicial review.
c. Look to the statutory scheme as a whole.
ii. Committed to Agency Discretion
1. Very narrow exception – applied only when statute is phrased in
such broad terms that there was no law to apply.
2. Statute provides discretion to agency, and no standard to address
the exercise of the discretion, then Congress has committed the
action to agency discretion and no judicial review.
3. Heckler
a. Key – if there are no judicially manageable standards
available for judging how and when an agency should
exercise its discretion, then it is impossible to evaluate
agency action for abuse of disretion.
b. Under 701(a)(2) an agency’s decision not to take
enforcement action should be presumed immune from
judicial review.
4. Webster
a. Fired from the CIA for being gay –
b. 701(a)(1) – Congress intent to prohibit judicial review
c. 701(a)(2) – Statute gives no law to apply b/c too broad.
d. Not reviewable b/c the underlying statute gave the
director of the CIA complete discretion in hiring
practices.
e. HOWEVER, can not use 701(a)(2) to preclude the
review of constitutional claims. Congress can expressly
exclude review of constitutional claims – but can not be
implied under 701(a)(2).
5. Common law normally regards an agency’s refusal to grand
reconsideration of an issue b/c of material error as an issue
subject to 701(a)(2).
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e. Timing
i. Finality – 704 – “agency action made reviewable by statute and final
agency action are judicially reviewable.
1. Core question – whether the agency has completed its
decisionmaking process, and whether the result of that process in
one which will directly affect the parties.
2. Right and obligations have been determined, or from which legal
consequences will flow.
3. Taylor
a. Challenge of opinion letters from the DOL.
b. Advisory letters were not final or binding on the parties.
c. FACTORS for finality
i. Whether challenged action is a definitive
statement of agency position
ii. Whether actions have the statute of laws and
penalties for noncompliance
iii. Whether the impact on the plaintiff is direct and
immediate
iv. Whether immediate compliance was expected.
d. These opinion letters set out no definitive statement of
the DOL policy, and had no direct or immediate impact
on the District.
4. Appalachian Power Co.
a. Is the action binding? If yes to below, then binding.
i. If agency acts as if a document issued at
headquarters is controlling
ii. Agency acted in the same manner as legislative
rule
iii. Based enforcement actions on policy formulated
in document
iv. Leads private parties or state authorities to
believe it will declare permits based on the letter
b. Is it final?
i. Action must mark the consummation of the
decision making process.
ii. Action must be one by which rights or
obligations have been determined. Or legal
consequences will flow.
c. Just b/c the guidance is subject to change, does not mean
that it is not final – all laws are subject to change.
Deemed to be a final order.
d. Courts may treat agency inaction – failure to rule as the
equivalent of an order denying relief.
ii. Exhaustion
1. If the agency has internal means to review decisions, must use
those means before coming to court.
2. Could amount to preclusion under the applicable statue of
limitations.
3. McCarthy
a. Prisoner claiming violated Constitutional rights – lack of
medical treatment.
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b. Balance the interests of individual in retaining prompt
access against institutional interests favoring exhaustion.
c. Normally will have to follow agency procedures – but
there are factors when individual interest weight heavy
i. Requiring admin remedy may occasion undue
prejudice to subsequent court action.
ii. Doubt over the ability of the agency to grant
relief.
iii. Admin remedy is inadequate where admin
body is biased or has predetermined the
issue before it.
4. Darby
a. I – does the APA require that a plaintiff go through
all admin process even when not mandated by
statute before judicial review?
i. Exhaustion is the not the same as finality.
ii. Finality – did the initial decision maker
arrive at a definitive position on the issue
that inflict actual injury
iii. Exhaustion – admin procedures by which
injured party can seek review of adverse
decision and obtain remedy if decision is
found to be unlawful or otherwise
inappropriate.
b. 702 provides a general right to judicial review of
agency actions, but 704 established when such
review is available.
c. 704 limited exhaustion to those procedures clearly
mandated – does not require litigants to exhaust optional
admin remedies.
d. HOWEVER – once a person invokes the agency’s
appeal procedure, the agency’s decision is unfinal.
(even if it would have been final if the person had not
invoked the procedures.).
5. Difference between finality and exhaustion – finality looks to
conclusion of the activity by the agency, exhaustion looks to the
steps a litigant must take.
6. Issue exhaustion – judge made doctrine – courts will not
consider arguments not first presented in the admin proceeding.
The agency will have the opportunity to hear an issue before it is
appealed.
7. Information RM – unsettled whether there must exhaustion or
issue exhaustion – but the right answer is that there should not
be. Also unclear for informal adjudications.
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iii. Ripeness
1. When can the court review an agency action?
2. Abbott
a. Rationale – prevent the courts from entangling
themselves in abstract disagreements over admin
policies, protect agency from judicial interference.
b. EVALUATION
i. Fitness of the issue for judicial decision
ii. Hardship of the parties of withholding court
consideration.
c. Fit for review
i. Agency action was final
ii. Issue was purely legal (just interpreting the
statute)
iii. Impact was sufficiently direct and immediate.
3. Ohio Forestry Assoc. v. Sierra Club
a. Further defines Abbott
b. Hardship to parties
i. Whether delayed review would cause hardship
to plaintiffs
ii. Whether judicial intervention would
inappropriately interview with further admin
action
iii. Whether the courts could benefit from further
factual development of the issues
c. Here – not dealing with just legal issue – trying to apply
facts to a legal question.
d. Also the Sierra Club would have plenty of time to bring
action at a later date.
e. Ripeness doctrine reflect judgment that disadvantages of
premature review that may prove too abstract or
unnecessary outweigh the additional costs of repetitive
post-implementation litigation.
f. Congress could have provided for pre-implementation
review of the plans.
4. Toilet Assn v. Garnder
a. While a purely legal issue, this dealt with a reg that was
permissive in nature – not ripe.
b. Speculative inconvience is not enough to justify review a
claim.
5. Compare to exhaustion
a. Exhaustion – focus on position of the party seeking
review.
b. Ripeness – focus on institutional relationships between
the courts and agencies
6. Courts can statutorly preclude pre-enforcement review.
7. Non-legislative rules
a. Is it purely a legal issue .
b. More likely to be final if it’s the head of the agency
singing the letter.
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VI. Agency Structure
a. Introduction
i. Separation of powers
1. Art I: Legislative powers in Congress
2. Art II: executive power in President
3. Art III: judicial power in Supreme court, and inferior courts
Congress creates.
ii. Approach to interpretation of agency
1. Formalistic:
a. Literally as possible
b. Minimize the extent power overlap
c. Steel Seizure case – President was not allowed to make
law.
2. Functional approach:
a. Less strict about the separation of powers.
b. Increased overlapping of powers
c. Separation of powers determined according to common
sense and inherent necessities of government
coordination.
d. Can mix up the powers as long as one branch’s exercise
of power does not jeopardize the “core function” of
another branch.
b. Delegation of Legislative Power
* What are the limits to Congress’s power to delegate RM authority?
Court rejected all nondelegation challenges until the 1930’s, two cases – and has
since stricken down all other challenges.
i. First Phase
1. Big Aurora
a. Named Contingency Allowed for president to delegate
the power of Congress – trade embargos
2. J.W. Hampton
a. Intelligent Principle test replaced the named contingency
test.
b. Under this test justices can determine if President acted
within delegated authority. Allowed delegation of
discretion
c. Congress does not violate the prohibition again
delegating its legislative powers as long as it sets the
boundaries of the agency authority.
ii. Second Phase
1. Panama Refining Co.
a. Unconstitutional b/c Congress did not provide an
intelligible principle. Established no standard, policy,
laid down no rule.
2. Schechter Poultry Corp
a. Restrictions set up by Congress were not limited enough.
3. Carter Coal Co.
a. Delegated to mine owners and miners the authority to fix
max hours.
b. Unconstitutional b/c it delegated powers to private
parties.
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iii. Third Phase – THE CURRENT TEST
1. Since the 1930’s the court has approves all of the legislation it
has reviewed for compliance with the nondelegation doctrine.
2. Mistretta
a. Sentencing guidelines to agency from Congress
b. Congress is allowed to obtain the assistance of other
branches.
c. As long as Congress has an intelligible principle to
which the person or body authorized is directed to
conform.
d. Congress can not do its job without the ability to
delegate power under broad general directives.
e. Okay if Congress:
i. Clearly delineates the general policy
ii. Public agency which is to apply it
iii. Boundaries of this delegated authority
f. Congress is not confined to the method of executing its
policy which involves the least possible delegation of
discretion to admin officers.
c. Delegation of Judicial Power
i. Art III, Section 1
1. Gives judges certain protection (like lifetime tenure) –
adjudication may take away from a person’s right to have their
case heard by one of these judges.
2. Non Art III courts (these can be removed for cause)
a. Adjudication judges
b. Court of Veterans Appeals
3. Old Test – Public v. Private rights
a. If the agency is adjudicating a private right, there must
be review by an Art III court.
4. Now Congress is allowed to delegate – b/c 701(a) provides that
Congress can make adjudication w/out Judicial review.
5. Rejection of the private/public right. Commodity Futures
Trading Comm. V. Schor
a. S proceeded in non art III a counterclaim that could have
been under an art III court, court said this was an
election to forgo his right to state or federal courts.
WAIVED art III rights.
b. In reviewing challenges examine 3 factors.
i. Extent to which essential attributes of judicial
power are reserved to Art III courts, conversely
the extent which non Art III courts exercises
range of jurisdiction and powers normally vested
only in Art III
ii. Origins and importance of right to be
adjudicated
iii. Concerns that drove Congress to depart from
requirements of Art III.
c. Congress is allowed to make available a quasi-judicial
mechanism through which willing parties may choose to
resolve their differences.
26
6. Crowell – exception to above analysis. Agency can not finally
adjudicate “constitutional facts” Art III must make a de novo
review of such facts.
ii. The Seventh Amendment
1. Congress can assign adjudication to agency where there will be
no jury trial w/out violating 7th Amendment – jury trial is
preserved only for courts in common law.
2. Jury Trial are required:
a. Plaintiff’s cause of action historically was a legal claim
at common law
b. Cause of action was not known in common law, but is
analogous to legal action at common law.
3. Congress can fashion COA that are closely analogous to
common-law claims and place them beyond 7th Amend by
making them agency actions that are not judicially reviewable.
d. The Legislative Veto
i. Until this was held unconstitutional, Congress could delegate a lot of
discretion to agency and then disapprove of specific agency decisions.
ii. Presentment and bicameralism Immigration and Naturalization Service
1. Immigrant, was given exception for extreme hardship by attny
general and allowed to stay, congress wanted to overrule attny
general and kick him out.
2. Legislative veto is unconstitutional – only goes through one
house.
3. Violation of presentment – the president did not have to sign the
veto.
iii. RM vetoes are also unconstitutional.
iv. Post Veto Developments
1. Corrections day
a. House – correction of agency mistakes. Will consider
bill under fast track measures.
i. Limited time for debate
ii. Only chair of committee with jurisdiction can
move to amend
iii. Opponents are limited to one motion to
recommite the bill.
iv. Has to pass by 60%.
2. Congressional review of agency RM
a. Entire Congress has fast-track procedures.
b. Major rules can not take effect for 60 days after agency
submits required info to Congress
i. Major rule – annual economic impact of $100
million or more or has other significant
regulatory impacts identified in the legislation.
c. 60 day stay does not apply
i. Unless major rule
ii. President certifies by Executive order that
immediate implementation is needed
iii. Or good cause by agency for promulgating rule
without prior notice and comment.
27
d. Senate has 60 session days and House has 60 legislative
days to use fast-track to pass resolution.
e. Resolution can not amend the agency rule, it can only
disapprove it. Debate limited to 10 hours.
v. Appointment Power
1. Removal
a. Ability of the President to fire officers of the U.S.
implied from:
i. Executive power
ii. President must take care that the laws be
faithfully executed.
b. Limits on removal
i. Myers
1. While officer had to be confirmed by
senate, the ability to fire may involve
facts that only the president knows, so
no need to have Congress approval for
firing postmaster.
2. Constitution also does not give Congress
the authority to fire administrator, so the
president has this authority almost
exclusively.
ii. Humphrey’s Executor
1. Limits the scope of Myers
2. Look the nature of the agency that the
person works for.
3. Postmaster in Myers was executive
function, while FTC in Humphrey’s was
not.
iii. Morrison
1. Test: Does the standard for removal
under trammel the executive authority.
2. Statute only allowed pres to fire for
good cause – this did not interfere with
the pres authority.
VII. Inspections, Reports and Subpoenas
a. Inspections
i. Legal Authority to Inspect
1. Authority is defined in the enabling act. If not given authority in
act, then the agency can not inspect.
2. Camara v. Municipal Court
a. 4th Amendment – privacy and security of individuals
against arbitrary invasions by government officials.
b. Search of private property normally unreasonable unless
authorized by a valid warrant.
c. Can obtain a warrant even if agency lacks probable
cause that a particular individual or firm violated a
statute or regulation.
d. Still allowed in emergency situations without a warrant.
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3. Warrant protection expanded to businesses and business owners
as well.
4. EXCEPTIONS
a. Industry that had long been subject to close
governmental regulation
b. Reduction in expectation of privacy
c. Consent – think public business
i. Do the searches serve an important government
purpose
ii. Are warrantless searches necessary to achieve
that purpose
iii. Does the statute authorizing the searches provide
protection substituting for a warrant – providing
notice of searches to owners, limiting scope,
limiting discretion of inspecting officer.
5. What is probably Cause? Trinity cases
a. Specific evidence of an existing violation
i. Warrant issued only for that area
ii. Can not look at the entire workplace
iii. If want to inspect other areas – get another
warrant
b. Showing that an administrative plan search has been put
into place for a type of business (like random checks,
etc.) But must be a plan.
i. Barlow’s Test
1. Plan must be based on specific, neutral
criteria and
a. Examine the inspection plan
make sure neutral
b. As a whole is not susceptible of
neutral nonarbitrary application.
2. the warrant application must clearly and
adequately establish that a particular
company was selected for inspection
pursuant to the neutral criteria.
6. Burger
a. So long as a regulatory scheme is properly
administrative, it is not rendered illegal by the fact that
the inspecting officer has the power to arrest individuals
for violations other than those created by the scheme
itself.
ii. Remedies for Illegal Inspections
1. Tort law – trespass, etc.
2. Exclusion of evidence.
a. The exclusionary rule is used for criminal proceedings,
but not for administrative actions.
b. Janis
i. Info illegally obtained and excluded from
criminal side- but can it be used for admin
proceedings?
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ii. YES – There is not a sufficient likelihood of
deterring future unauthorized searches and
seizures, so not exclusionary rule.
c. Lopez
i. Agency illegally obtained info – but was still
allowed to use it again the defendant
ii. No deterrent effect to refuse to allow the
evidence.
iii. Cost/Benefit analysis –
1. Depends on how widespread the illegal
information gathering is
2. Look to fairness and creditable evidence
gathering.
b. Recordkeeping and Reporting Requirements
i. Subpoenas – are allowed if expressly authorized by statute.
1. Ad testificandum – person must show up and testify
2. subpoenas duces tecum – person must come and bring
information along with them.
ii. Statutory Authority
1. Must show statutory authority – express or implied allowing for
the recordkeeping requirement.
2. THERE IS NO IMPLIED AUTHORITY for SUBPOENAS
3. Information gathering does not have to be done by RM
4. Paperwork reduction act – might limit the amount of info if
trying to apply to 10 ore more persons. Page 589 – many
requirements that must be satisfied.
iii. 4th Amendment
1. Ok Press – no probable cause needed for subpoena (in conflict
with FTC v. American Tabacco earlier).
a. Balance the newspaper’s privacy interest against interest
of the government.
b. Info sought is relevant to lawful purpose
c. Disclosure is not unreasonable.
2. Morton Salt –
a. Extended to compelled disclosure of info through
required reports.
b. Agency is like grand jury – grand jury can investigate
without having a reason.
c. TEST
i. Within the power of the agency
ii. Demand is not too indefinite
iii. Info sought is reasonably relevant.
3. Freese – Three Step Test
a. Subpoena issued for proper purpose authorized by
Congress
b. Information sought is relevant to that purpose and is
adequately described in subpoena
c. Statutory procedures have been following the
subpoena’s issuance.
d. Probable cause it not required, but can’t engage in a
fishing operation.
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4. Adams
a. Broadness alone is not a sufficient justification for
refusal to enforce a subpoena, as long as the material is
relevant.
th
iv. 5 Amendment
1. Protection against self-incrimination.
2. Extends beyond criminal cases to any government compulsion to
testify in a manner that would criminally incriminate the person
testifying.
3. Not available to corporations.
4. Non-incorporated organizations also can’t use.
5. The person that responds for a corp can’t claim person 5th
Amendment.
6. Limited protection for sole proprietorships.
7. Does not apply to required records.
8. Does not apply to documents already in existence. Not
compelled testimony.
9. Will protect a person when the mere act of producing the
documents, as opposed to the contents of the documents, may
incriminate the person producing the documents.
VIII. Public Access to Agency Processes
a. 552 of the APA. Freedom of Information Act – FOIA
i. Admin staff manuals, statement of policy which are not published in the
Federal register must be made available to the public.
b. Time limits –
i. Agency has 20 days from receipt of a request to decide to comply. If it
denies, must state why and tell of any internal appeal opportunities. 20
days to decide an appeal. Each can be increased by 10 days in unusual
circumstances.
ii. Allowed to see judicial review.
c. FOIA fees
i. Very expensive – most requesters are private businesses or lawyers.
ii. Agencies can charges fees to recover direct costs of search, duplication,
and review associated with commercial requests.
d. Judicial Review
i. 552(a)(4)(B)
1. agency has the burden of proof
2. court determines case de novo
3. FOIA provides reasonable attorney fees and costs if plaintiff
wins.
4. Justice department responsible for FOIA litigation
e. FOIA request
i. Any person can make a request – foreign citizens, corps, governments,
etc.
ii. No need to show a need for the information or a purpose.
iii. Request must reasonably describe the records sought. Allow ee to find
the record with a reasonable amount of effort.
1. Will help relieve the agency from excessively burdensome
requests.
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iv. Agency records only – the agency must actually posses the information
in question.
f. EXEMPTIONS
If record contains exempt and non-exempt, no requirement to disclose the exempt
matters, - agency must reasonably segregate portions of the record.
i. Classified Information – National security. Set by Exec. Order, no limits
to the president’s discretion here.
1. Glomar denial – if confirming the existence of records would
itself disclose classified information, then can say “we will
neither confirm nor deny the existence of any such records.
ii. Internal Personnel Rules – Air Force Academy’s disciplinary
proceedings do not fall into this category. Refers to only trivial, internal
matters that the public could not reasonably be expected to have an
interest.
iii. Specifically exempted by statute
iv. Confidential business info – trade secrets, must be commercially
valuable, used in one’s business, and maintained by the company in
secrecy.
v. Inter or intra-agency materials – Most commonly used. Think
government privilege. Attorney work product, etc.
vi. Personal privacy – medical files and the like. Balance between public
interest in disclosing info and private interest in maintaining
confidentiality.
vii. Law enforcement records – 6 harms, see page 654.
viii. Financial institution records and oil well data.
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