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Administrative Law
| Question | Answer |
|---|---|
| 5 USC 551(1) | "Agency" means each authority of the government of the United States, whether or not it is within or subject to review by another agency |
| 5 USC 551(1) exceptions | Congress, courts, president, government of territories or D.C., and some military stuff |
| Types of Agency Actions | Rulemaking, Adjudication, Investigation |
| What is unreasonable delay? Trac Factors | 1. Rule of Reason* (8 years is unreasonable) 2. Congressional time table 3. Delay concern human health or welfare 4. Impact on higher or competing priorities 5. Nature & extent of interests prejudiced by delay 5. No need to show bad faith |
| Judicial reversal of denial of a rulemaking petition: Arkansas P&L | Review limited to: 1) whether the agency has adequately explained the facts and policy concerns it relied on 2) whether the facts have some basis in the record |
| Judicial reversal of denial of a rulemaking petition: Mass v. EPA | Highly deferential Follow the statutory requirements/command (i.e. the Clean Air Act required a reasonable explanation for not taking further action) |
| 5 USC 553 | Rule making |
| 5 USC 553(e) | Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule |
| 5 USC 533(b) | Notice |
| 5 USC 533(c) | Comment |
| 5 USC 533 Notice Exceptions | 1) Good cause that notice and public procedure are impracticable, unnecessary, or contrary to the public interest 2) A. Interpretative rules, B. General Statement of policy, or C. Rules of agency organization, procedure, or practice |
| 5 USC 533(d) | Publication |
| What is an agency rule that falls under the procedural exception to notice? (I.e. rules of agency organization, procedure, or practice) | JEM 1) Changes method of presentation, not substantive interests 2) Substantive effects not "sufficiently grave" to warrant rulemaking |
| Formal Rulemaking Definition | 553(c) When rules are required by statute to be made on the record after opportunity for an agency hearing |
| Formal Rulemaking Test | Allegheny-Ludlum: Must use words "hearing" and "on the record" |
| Hybrid Rulemaking Test | Florida East Coast: The word "Hearing" alone does not indicate hybrid, statute must name procedures |
| Judicial Review- Scope of Review (706)(2)(A) Arbitrary and Capricious | State Farm- 1) relied on factors Congress did not intend, 2) entirely failed to consider an important aspect of the, 3) explanation for decision runs counter to the evidence, or 4) so implausible that it couldn't be ascribed to view/expertise |
| Judicial Role in Statutory Interpretation (Skidmore "Deference") | Not controlling, but does provide guidance Weight of administrative rulings, interpretations, opinions depend on: 1) thoroughness 2) validity 3) consistency with earlier and later pronouncements 4) all factors that give it power to persuade |
| Judicial Role in Statutory Interpretation (Chevron Test) NOT CURRENT LAW | 1. Did Congress speak directly to the question? - If so, go with what Congress said - if not, look to agency 2. Is interpretation "based on permissible construction"? - if so, defer (even if you would interp diff) - If no, reverse/remand to agency |
| Judicial Role in Statutory Interpretation (Loper Bright) CURRENT LAW | The reviewing court must independently interpret the statute and decide what Congress meant Lower courts say Skidmore is the new rule Ends Chevron deference |
| Adjudication Definition 5 USC 551(7) | Means agency process for the formulation of an order |
| Order Definition 5 USC 551(6) | Means the 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 |
| Formal Adjudication 5 USC 554(a) | Every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing |
| Formal Adjudication Test | City of West Chicago: In absence of "on the record" language Congress must clearly indicate intent to trigger on the record proceedings |
| 5 USC 554(b) Notice | 1) Time, place, nature of hearing; 2) Legal authority and jurisdiction under which hearing is held; 3) Matters of fact and law |
| 5 USC 556(b) Presiding Employees | Agency, members of the body that comprises the agency, AJLs (appointment 5 USC 3105) |
| 5 USC 554(d)(2) Separation of Functions | An employee engaged in the investigation or prosecution of a case can not participate in the decision or agency review except as witness or counsel in public proceedings |
| 5 USC 555(b) Informal Adjudication Protections (4)(also included in formal) | 1. Entitled to counsel if compelled to appear 2. Right to appear so far as orderly conduct of business permits 3. Conclude with reasonable time matters presented to agency 4. Prompt notice of denials with brief statement of reasons for denial |
| 5 USC 558 Revoking a License | Generally must give notice and opportunity to comply |
| Burden of Proof 556(d) | Proponent of the order or rule has burden of proof |
| Admissibility 556(d) | No FRE Exclude irrelevant, immaterial, or unduly repetitious evidence |
| Admissibility 556(d) | Sanction/rule/order on consideration of whole record or those parts cited by party and supported with reliable, probative, and substantial evidence |
| Cross-Examination 556(d) | A party is entitled to present his case, to submit rebuttal evidence, and to conduct such cross as may be required for a full and true disclosure of evidence |
| Record 556(e) | |
| Appeals- Wrong Rule | NLRB v. IBEW- no notice because no one raised the issue with this provision, but the ALJ ruled it illegal Southwest Sunsites- look at whether def understood the issue and had an opportunity to effectively respond |
| Appeals- Ambiguous Regulation | Copranos & Sons v. FDA The regulation must have enough information to provide genuine opportunity to identify fact issues Read in context no significant ambiguity |
| Appeals- Admissibility | Reliable, probative, and substantial evidence |
| Appeals- Residuum Rule | Richardson- Hearsay may constitute substantial evidence to affirm a decision when defendant does not subpoena witness |
| Appeals- Cross-Examination | Conduct cross as may be required for a full and true disclosure of the facts Wallace v. Brown- Physician reports involved conclusions from medical records , but it was not clear how conclusions were reached |
| Ex Parte Communciations |
Created by:
edelee