Substantive law deals with the regulations made by agencies, admin law deals with the laws that rule those agencies. Section 551 of Administrative Procedure Act defines what an administrative agency is. Basically anything but the courts, congress and, although the definition does not say so, the president (Franklin v. Massachusetts).

Independent agencies, unlike executive agencies, their heads don’t serve at the pleasure of president but are committees and stager and rotate members every so many years, no one party can rule the agency, multimember bodies that not one single president can change.

Agencies are created and empowered by legislations and some are set out as independent and some are executive agencies.

Either regulate private conduct or carry out entitlement programs (distribute benefits from the government).

Two main branches:

  • How agencies do their work: the processes they follow in doing their work. Administrative Procedure Act. Main statute we’ll be looking at: Formal procedure (spelled out) But we also will look at in practice how it’s done, so the informal procedural not really written down in manual or statutes. He’s hesitant to use the formal or informal names b/c they will have a different meaning later on.
  • Review and oversight. There are constraints on executive. Judicial review mainly, although the voters and congress also constrain the president and executive. We’ll mostly read about judicial review of executive action. How is that done, are there general standards for the power of the ct to look over the shoulders of government agencies. On what basis can a ct say to an executive agency that they’ve messed up. Those standards are not very precise. When agencies get too heavy handed there’s a general outcry for government to get off our backs and is interfering with people’s lives and with the workings of the free market place. So many times in the law itself there is a requirement that agencies engage in economic analysis of cost-benefit to balance the interests at stake: private and public.

Fundamental question addressed by Administrative law is how can the legal system establish limits on the pervasive power that those agencies have and at the same time allow them to do their work and not unduly restrict individual freedom. The new deal created a much more powerful government and recognized that we need it and we need the instruments to control society and yet we need to establish control over the controllers that have so much discretion. THIS is the broader issue, the policy behind the agencies and the concern of how do we protect individual rights. There is a lot of constitutional law and political theory.

So watch for general principles that apply to any agency and more specific applications for a particular agency. So the peculiarities of any agency will shape the way general principles apply.

01-09-08

The three functions of agencies:

Rule making

Adjudication and

Investigation.

Rulemaking: agencies publish their regulations in the Federal Register. And then the gov’t publishes them annually in the code of federal regulations (CFR).They are subject to judicial review of whether they have surpassed the agencies statutory authority. Only valid if agency follows the procedural requirements applicable to rulemaking.

Two types of rulemaking:

Formal and informal. Formal has three steps: notice, chance to participate and statement concise and general of their basis and purpose (of the regulations). Generally done this way except for interpretive rules, statements of policy, etc. or for good cause for bypassing the notice stage of rulemaking.

Adjudication: Some agencies cannot adjudicate violations of statutes they enforce and they can only sue in federal courts. Others can administratively enforce. Some can do compliance orders (like injunctions) and penalty orders (equivalent of fines). Clean water act allows EPA to issue orders and obtain penalties administratively w/o going to ct. Cases are tried in front of an administrative Law judge, usually someone from the agency but subject to salary paid by someone else and under review by someone else to ensure independence.

Investigation: some agencies have power to compel persons to turn over to them information or to inspect the premises where they work or reside.

APA is codified in title 5 of the US Code. Section 551 has the definition. Section 552 is actually seldom considered part of the APA because it is actually FOIA (Freedom of information act).

Let’s look at 551; How does the statute define rule making and adjudication? The statute applies to agencies and those are defined as each authority of the government of the US but basically not courts or congress and case law has determined that the president is also not an agency.

Agency action in 551 (13): includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failiure to act (so when they don’t act, you’re allowed to sue them for that too!)

(5)Rule making: agency process for formulating, amending or repealing a rule.

(4) Rule: agency statement of applicability whether general aplicability (or specific, but usually general applicability) of future effect, designed to implement a particular policy. KEY is that it is FUTURE effect. (see the whole definition).

PLEASE NOTE: Agencies promulgate regulations and/or rules, legislature pass statutes.

(7) Adjudication: agency process for the formulation of an order (NOT A RULE, PLEASE NOTE THIS) So orders come from adjudication, rules from rulemaking.

(6) Order: whole or part of a final disposition whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing. (so, in other words, anything that is not a rule, is an order.

Two Types of rulemaking proceeding under APA:

Informal: §553 (notice and comment). Usually the majority of rules are made this way.

Formal: §556 and 557. Nickname is trial type rule making. Conducted in a way you would expect a formal court proceeding to be done. “On the record” rulemaking. Meaning only information that can affect the rule is the information that goes to the record of that proceeding. Formal is seldom done. And the editors say that it really doesn’t make sense to engage in rule making through this process. That’s why almost no one does it. BUT there is a certain trigger that has to be in the agency’s governing statute that says it has to be “on the record” hearing for formal to be used.

But there is another type, not under the APA: hybrid. More than informal but less than formal. May require some input from public whether in writing, oral or electronically. So the APA does not require it but the statute does require it so the editors have called it a hybrid. So it reminds us that agencies are ruled not only by the APA but also by their own enabling legislations, the statute that creates the agency. So it is from those additional requirements specific to that agency that the hybrid procedures come.

Adjudication under APA:

1- formal adjudication is under §554, 556,557. Trial type on the record.

But mostly, day to day adjudication is informal. Since the APA does not address them, they are subject to judicial review on the basis of not being done according to the enabling statute, and they can also be subject to due process challenges.

Because these mirror the separation of powers in the government, we may have some problems perhaps even constitutional problems because these all are vested in the same agency and that may give them too much power. Historic background: note 2 on page 28. The APA in large part is a response to those concerns. It limits the powers and sets out ground rules and procedures that agencies must follow to do all their functions. The APA was a compromise between business and proponents of the New Deal and high regulation. Business lost in the sense that way more regulation is there, but they won a victory with the APA because they have limited those agencies’ powers to do what they do and the potential for abuse. The APA slows down the government and makes it so that things need to be on the record and there’s not as much arbitrariness. So APA comes out of a highly charged political context.

Also, on page 29 there are some objectives or purposes for APA:

  • Meaningful participation on government decision processes that affect your property and life. Very much a democratic value
  • Accuracy in the fact finding. Bring to light info that is relevant and necessary for agency to do its job.
  • Efficiency in getting the job done.
  • Acceptability of the fairness of the procedure by the general public and the participants.

There are also tradeoffs between the procedures and the substantive requirements. See note 6.

Note 7 pokes a hole in what you might be tempted to go for in a stereotype as to who favors more procedures in government. Not necessarily always the public.

Note to self: regarding Hanson. Look at California APA and the enabling statute for the state mining board to see if they are allowed to delegate the regulation of mines to counties, and whether the procedural requirements are also passed down to the county level.

1-14-08:

Lawyer Helen problem. Clean Water act and wetlands problem for building the retirement home. Why would she meet with Jay (lawyer from army corp of engineers)? Get information from him directly, identify what the specific problem or obstacle is under the agencies interpretation of regulation and get a quicker resolution to the problem.

Why should it be Jay? Why not the phone person who said a permit would be required? There might be a tribal custom here that lawyers prefer to talk to other lawyers. There’s a presumption that at least Jay would be able to direct you to the right person to talk to if it’s not true. Perhaps the assumption that the lawyer could influence the outcome of the case. Maybe the bureaucrat that gave you the advise had no clue of what he said.

Should jay meet with Helen? Maybe duck! That way you could potentially avoid a lawsuit. But his job is to serve the public, so shouldn’t he serve Helen? He could also just listen to her without any guarantees that he will say anything, but at least it gives him an idea as well as to what may be coming down the line as far as litigation maybe. Or if the agency has an outreach open door policy or clinic type thing.

What should her strategy be? Why not just sue the corps to find out if the permit applies or not? Time and money to litigate. She has not exhausted her administrative remedies. It is not reviewable yet because there is no final adjudication. She may want to do some legal research, photograph the area where she wants to build (lay of the land) (timing problem if the area doesn’t look the same all year round! Are there more ducks or less ducks? So if Jay thinks there are wetlands, do you shred them? Maybe not? So it may not be the best thing to do. As far as arguments:

  • Legal arguments: if you do some legal research as long as it doesn’t break the bank for the client, perhaps it’s even a good idea to give them a quasi-brief laying out your legal arguments. That way Jay can refer to them when presenting the case to higher ups, etc.
  • This may not be good precedent to set for the agencies from the point of view of resources. Public relations perspective, etc.
  • Personal: client had expectation of retiring in this property and does agency really want to defeat that expectation on a technicality?
  • Equitable consideration: why make them get a permit when others in the area don’t have it? It would set the agency after the others and may backfire as strategy, but maybe not, because your client’s interest is to be protected at the expense of everyone else.

Jay has an interest in not getting the agency sued. The Department of Justice are the litigators that represent federal agencies in litigations but agency lawyers would be involved anyway and agency budget is not going to be happy. Publicity which is not good for the agency. IN this case, not only the agency is blamed but the department under which it is and the president himself!

Problem 1-2 page 31. Jay knows SCOTUS decided a case that addressed one type of land and whether it was subject to the permit requirement. That land hosted migratory birds, was not navigable and was not connected to interstate waters so it was not subject to Clean Water Act. So Corps Chief counsel issues a memo to be followed by all divisions. Memo was never under notice and comment under 553. So it was not adopted as rulemaking process said under 553. The memo says that act does apply to lands where if there is degradation or destruction that would affect interstate commerce b/c it is used for recreational purposes. What is that memo? It is an interpretive rule because it has a future effect but it is within the exception to notice and comment under 553(b) saying that interpretive rules are not subject to notice and comment because it is a statement of policy or an interpretation of a court ruling, etc. So it probably has some weight since it was written by his superior and he’s supposed to follow it. BUT since it doesn’t go through notice and comment it is not published by federal registers so Helen does not know about it! But under FOIA they are supposed to publish an interpretation of law of general applicability, so Helen can find it and public knows about it. Except to the extent that a person has actual and timely notice of a person can not be made bound if the agency is supposed to publish it. Timely and actual notice is when Jay tells her.

January 16:

STUDY AIDS:

If we need extra help in this class get examples and explanations admin law second edition 2006 author is Funk, Seamon? One of the authors of our book. Also may check out Questions and answers by Weaver, another author of the book, but Ken does not do exams like that. There’s also a Understanding lexis nexis series book, and a nutshell for admin law. There’s also Admin law stories. Just like we had tort stories. The cases there are discussed thoroughly with contextualization etc. All of these should be in the library.

Problem 1-3 on page 32:

Jay says the wetlands are under the regulation b/c it may affect recreational waters nearby and as such interstate commerce. What is that letter reflecting his opinion?

Adjudicatory order? Sounds like he made a specific determination. But it has future effects and implements a policy, so since it sets precedent, it feels like a rule as well. Not a clear language to the question. But usually a rule is written in more general applicability language than an order. We’re probably on more solid ground saying it’s an order because it is more specifically applicable. HOWEVER, it’s also not a final disposition because he probably does not have the authority to issue an order, there’s been no process, and no request to issue a disposition from the agency. It sounds like it’s just an opinion. Does this have as much force as the General counsel memorandum? Probably not.

If it’s not a rule or an order, what is it under the APA? Nothing! Section 545 says the triggering requirements for going through trial proceedings are not called out in this situation. There’s no statutory language saying that before you write a letter like this you need a hearing.

But Helen does not like it. What should she do? File the permit. Jay may be wrong, and they still need a final adjudication and there are procedural requirements that need to be exhausted. You may also work with the agency to find some accommodations rather than sue immediately.

Problem 1-4:

Jay says it’s not subject to the regulation. And she can go ahead without a permit. What should the National Wildlife Federation do? How would they find out? His letter is not subject to the publication requirements because it’s not like the memorandum from general counsel. So I suggested having a mailing list of interested parties and organizations so they can be informed of any construction going on in the area.

If the NWF does not like jay’s letter, it can try to lobby Jay to change his mind and require a permit. All this lobbying and involvement of third parties will be covered later on. We have also issues of ripeness and standing.

Who is the client when you’re a government lawyer? Apparently the agency you represent.

Ethics: page 42.

Should Jay grant the permit and go along with the President or not grant it because it is inconsistent with the agencies’ view? According to Fein, the president is your boss and he was elected and his policy preferences should be respected. Assumption in electoral process is that where there are ambiguities, if a president directs an interpretation within the bounds of the law, you should obey it. But who is your client? The public interest broadly? How do you deal with that? Should your personal feelings about the public interest color your actions as lawyer for the organization?