Extremely Short Outline for Admin Law Rule Making
Public can petition - Denial raises certain procedures Notice and Comment waived under certain circumstances – biggest is procedural rules (no new rights/duties created). FORMAL o On the record – required by legislature INFORMAL o Notice adequate to “fairly apprise interested persons” of the issue of rulemaking. Publish in fed. Register. o Comment – no oral, written data, views, arguments. o Statement of general purpose. Hybrid – Congress can create additional requirements of the RM Negotiated – similar to alternative dispute resolution – parties with interest participate to reach a consensus. Judicial Review- CHEVRON o Clear language of statute (traditional notions of statute construction). o If unclear – is the agency interpretation reasonable? o Scope of review for substantive decisions – see chart. o Look at the whole record (formal – 556-557, informal – federal register, comments, studies, data, etc.).
Adjudication
If not RM, then an order which is adjudication Formal or informal – use Chevron above. FORMAL – Is this for formal, or informal, or both? Procedures: o Notice – issues decided must be raised in complaint. o Interveners are allowed –formal and informal o Allowed to use ADR, but never required. o ALJ – requires separation of functions (agency head can’t argue) o Burden of proof on proponent – decision supported by reliable, probative, substantial evidence. o Testimony and documents – allowed almost any form. o Ex-parte not allowed. (communicated to someone outside agency involved in judicial process). Banned in formal, but allowed informal. “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.” o Appeals – take place inside of the agency. De novo review. Due process – o Is there a government action? (no, then no claim) o Is it legislative or adjudicative act? (leg – then no individual hearing) o Has there been a deprivation of property or liberty interest o If yes, then what process needed? o Protected Interests – life, liberty, and property. Harm + Stigma test. Government taking away their own rights is included.
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What hearing is required – Depends on the situation. Factors: private interest that will be affected by action, risk of erroneous deprivation of interest, probative value of addl safeguards, government’s interest. Financial cost no justification for depriving D.P. Judicial Review - formal adjudication, factual disputes. o Factual disputes – substantial evidence. Action is unlawful if unsupported by sub. Evidence in a case. Think evidence necessary to survive motion for directed verdict. Use 706(2)(e). Board must articulate a sound reason for decision to be upheld – not just disagreeing with an official. Creditability is a question of fact. o Issues of law: 706(a)-(c). o Information: Arbitrary and capricious is the standard. Court can overturn agency decision if “unwarranted by facts to extent that facts are subject to trial de nove by the reviewing court” 706(2)(f). Was the decision based on consideration of relevant factors, was there a clear error of judgment, did the agency follow the procedures required? If Arb and Cap – the agency will set aside the findings. o
Choice of Procedures and Nonlegislative Rules 4 legal issues to consider for RM: does the agency have authority, impact on adjudication rights, retroactive RM, ambiguous rules. 2 types of nonlegislative rules o interpretive – issued by agency to advise public of agency’s construction of statutes and rules which it administers o policy – advise public prospectively of manner in which agency proposes to exercise discretionary power. o No procedures required other than FOIA, Binding effect test – if the action created new duty, then use RM. Reliance on nonlegislative rule – fact pattern – the public relies on agency statement and then the agency refuses to follow it. Try to argue estoppel – but this has never worked against the government. Judicial deference o Skidmore deference – lower level than Chevron. o Weight to give interpretative rule will depend on: thoroughness evident in its consideration, validity of its reasoning, consistency with earlier and later pronouncements AND factors given power to persuade, if lacking power to control. IF agency is interpreting its own regulation/rule – then it will have Chevron deference.
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Reviewability 1. Does the court have jurisdiction? a. Standing – constitutional , right person to bring lawsuit i. Injury in fact. (concrete and particularized, actual or imminent, can’t “someday” have an injury). ii. Causation and redressability – injury is a result of government action and favorable court decision will be able to remedy. iii. Prudential – not generalized grievance, not 3rd person right, zone of interest is okay. b. Statutory grant of jurisdiction – not normally a problem 2. Does the plaintiff have a cause of action (COA)? a. Appeal is not excluded from review. If the stature creates a zone of interest, nothing else is needed. i. Narrowly interpreted by courts. C&C required for Congress intent. Presumption for judicial review. ii. Committed to Agency discretion – 701(a)(1) 1. very narrow exception. No law to apply. 2. But can still be protected with constitutional claims – 701(a)(1) does not apply to con law claims. b. Plaintiff has legal wrong, or adversely affected or aggrieved. i. Legal wrong – gov. interfered with a person’s const., statutory, or common law rights ii. Must be within zone of interest that Congress intended to protect. D c. Finality i. 704, Has the agency completed its decisionmaking process, and whether the results of that process directly affect the parties. ii. Factors: definitive statement of agency position, statute of laws and penalties for non-compliance, impact on plaintiff is direct and immediate, immediate compliance expected? d. Exhaustion of remedies: final without appeal in agency, unless the appeal is required by the agency. i. Must use internal agency methods for review first. ii. 704 limits exhaustion to those procedures clearly mandated, litigants do not have to exhaust optional remedies. 3. Is the issue ripe? a. Ready for judicial determination and courts will not interfere in admin process. b. Factors: agency action was final, issue was purely legal, impact was sufficiently direct and immediate. Balance the hardships to parties.
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Agency Structure Delegation of Legislative Power o Only two cases have found delegation unconstitutional. o Since the 1930’s the court has approved all of legislation it has reviewed for compliance with the nondeligation doctrine. Delegation of Judicial Power o Non Art III courts. Old test was private v. public rights. But not Congress can delegate under 701(a). Factors (extent to which essential attributes of judicial power are reserved to Art III courts, origins and importance of right to be adjudicated, concerns that drove Congress to depart from Art. III). o 7th Amendment – Can assign to agency without jury trial. Jury trial limited to actions at common law. Legislative Veto – Unconstitutional. o Corrections day allowed – fast track, major rules not effective for 60 days, Appointment Power o Removal – executive will have a lot of power to remove agency officials, but not unlimited, do not put too limit on the president’s discretion. Inspections, Reports and Subpoenas Inspection – authority to inspect comes from the enabling statute only. 4th Amendment – guards against search and seizure unless probable cause. o Exceptions: Industry long subject to close gov regs, reduction to the expectation of privacy, consent (3-part test). o Probable cause – specific evidence of violation, showing an admin plan (two part test). o Remedies – removal of evidence used for criminal, evidence not excluded from admin proceedings. No deterrent effect. Recordkeeping and Reporting Requirements o Subpoenas – allowed if authorized by enabling statute. (No implied) o 4th Amend – No probably cause, no fishing expedition. 5th Amendment - self incrimination protection. Not available to corps and generally not to business records. Does NOT apply to required records. Can argue that the mere act of producing the documents, as opposed to the contents of the documents, may incriminate the person producing the documents. Public Access to Agency Processes 552 APA – FOIA. Strict time limits (20 days – never followed); There is judicial review (de novo, agency has the burden of proof). Exemptions – classified, internal personnel records, specifically exempted by statute, confidential bus info, personal privacy, law enforcement records, financial records, etc.
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