Administrative Law

ALJ

Administrative Law Judge

Adjudication

Administrative power by agency to make decisions which have nearly the same force of law as federal courts, also called a quasi-judicial power.

General Prohibitions to Administrative Law

Bias and prejudment; conflicts of interest; functions of agencys must be separated if they create bias in the performance of adjudicative functions (separation of functions)

Required Reports:

Businesses and individuals subject to the agency review are required to produce reports of the information and produce it to the agency

FCC

Federal Communications Commission, independent agency, created after Depression

Informal Adjudication

Means either: 1) Congress has not created any procedural requirements or 2) Congress requires a few procedures. Even when not specified, constitutional due process must be provided.

Motion to Quash

Method to nullify or limit an administrative subpoena.

Legislative Facts

Things that can be proved by objective evidence and which resolve broad, social questions

Administrative Agency

governmental unit charged with the responsibility to implement and administer statues adopted by a legislative body

Exemptions from Notice and Comment Rule

"Good Cause" justifications: Impracticable, unnecessary; or contrary to public interest

Informal Rulemaking

"Notice and Comment" procedures. Announce rule and give time to comment. No hearings required, but can if they want to.

Hybrid Rulemaking

"Notice and Comment" procedures. Announce rule and give time to comment. No hearings required, but can if they want to. Additional procedures as set in their enabling act.

Unreviewable Decisions

(i) when statute precludes review; and (ii) action is left to agency discretion

FOIA Exemptions

9 exemptions to disclosure under FOIA. Secrecy, Personnel, Statutory Nondisclosure, Private Business Information, Agency Memoranda, Personal Privacy, Investigation Records, Financial Institutions, Geological Exploration.

Informal Rulemaking Requirements

APA § 553 requires 1) notice, 2) opportunity to comment, 3) statement of reasons, and 4) publication (rule published in Federal Register 30 days before effective.)

Enabling Act

Act passed by Legislature to establish administrative agency; determines its functions, structure, power and operational standards. Defines the powers it possesses (rulemaking, investigative or adjudicative)

Commencement of the Case

Adjudication begins when agency begins enforcement of rule, or when private party requests government grant (license, rate increase, welfare benefit or public service)

APA

Administrative Procedure Act, adopted in 1946, established procedures when agencies engage in quasi-legislative (rulemaking), or quasi-judical (adjudication) functions

Rulemaking

Administrative power by agency to promulgate (make) regulations to supplement or clarify its statutory mandate. Rulemaking may be Informal, Hybrid, or Formal.

Investigation

Administrative power of agency compelling persons to turn over information in possession. Also used for compiling and disseminating information for other purposes. Administrative subpoenas, administrative summons, inspect private premises, and required reports are some of the methods used.

Administrative Investigations

Agencies gather, compile and disseminate info; now have almost total freedom to compel access to info. Info collected through Administrative Subpoenas, Administrative Summons, Inspection of Private Premsies and Required Reports

Investigation Powers

Agency can compel disclosure of evidence, power to subpoena document, compel depos, inspect premises.

Premises Inspections

Agency demand for inspection closely supervised; must obtain search warrant before inspection, and provide reasons for inspection. Exceptions are: Emergency Searches, Consent, Public View or Closely regulated Businesses

Regulatory Agency

Agency given comprehensive authority to oversee a wide spectrum of economic activies of a specific industry

Regulatory Agency

Agency given comprehensive authority to oversee wide spectrum of economic activities of specific industry

Standards to Review

Agency interprets the law assigned under its statutory mandate; finds facts in relation to specific situation and uses its discretion in applying the law to the situation that exists.

Investigation

Agency is authorized to compel persons to turn over information in their possession to agency

Adjudication

Agency is authorized to determine whether a party is in compliance with the agency's statutory mandate or regulations

Rulemaking

Agency is authorized to promulgate regulations to supplement or clarify its statutory mandate

Amendment, Repeal and Waiver

Agency may do these at any time after rule is established.

Inpect Private Premises

Agency may seek physical access to gather information, but may require a warrant. Warrant exceptions include: emergency searches, consent, public view and closely regulated businesses.

Legislative Veto

Agency regs could be vetoed by Congress. In INS v. Chada, the Court ruled that a veto was a legislative act, and was invalid unless approved by both houses and signed by President. No longer exists (Statutes now override administrative rules)

Non-Regulatory Agency

Agency that typically (not always) dispenses money to promote social and economic welfare (SS, Unemployment, Welfare, Veterans Assistance)

Sunset Laws

Agency will cease to exist after a period of time unless Congress reinacts its statutory authority

Non-Acquienscence Policy

Agency will comply with the judicial ruling but will not change the general policy in regard to other, similar cases.

Categories of Evidence Rules

All evidence admissable in a formal hearing; may exclude irrelevant, immaterial or unduly repetitious evidence; or so far as practicable

Legislative Rule

Also called substantive rule or agency-made law, made according to the agency's delegated authority to make rules. Have force and effect of law

Adjudication Order

Any disposition that is not a rule. (Defined by APA)

Appellate Review Board

Appointed in some agencies to review decisions, sometimes intra agency

Non-Statutory Review

Arises when (i) Congress has failed to provide statutory procedure in enabling act or (ii) prescribed procedure cannot provide adequate relief

AEC

Atomic Energy Commission (public relations powers reassigned to Dept. of Energy, and restructured as Nuclear Regulatory Commission - NRC)

Reverse FOIA Suits

Attempts to block the governments release of information concerning a corporation to others

Presiding Officers

Can be referee, hearing officer or Administrative Law Judge (ALJ). Presiding officers are expected to be experts, not general judges.

Rulemaking Powers

Can make rules that have the force of law

Adjudication Powers

Can use their power to determine civil penalites for violation of law or reg; whether persons are entitled to a government benefit or grants, or student loans

Ratemaking

Category of economic regulation which establish minimum and maximum rates to charge consumers for regulated products.

Licensing

Category of economic regulation which issues certificates of "public convenience and necessity" to qualified applicants

Business Practices

Category of economic regulation which oversees purchases, mergers, consolidations, interlocking BoDs, issuance and sale of stock and antitrust.

CAB

Civil Aeronautics Board, created after Depression, powers transferred to Dept. of Transportation in 1985

Ex parte communication

Communication with the decisionmaker outisde the presence of the other person(s) interested in the controversy.

Intelligible Standards

Congress cannot delegate its power to tax; cannot delegate its power to private persons

Legislative Oversight

Congress creates and can eliminate administrative agencies, or can re-assign certain powers from one agency to another, or expand or restrict powers delegated to an agency. Legislative veto, process by where House or Senate could veto agency regulations, was used for a time, but ended with INS v. Chada, 462 U.S. 919 (1983), when S. Ct. decided veto was legislative act, and needed to be approved by both House and Senate and signed by President to be effective. Statutes enacted overriding agency rules could be enacted. Congress can limit appropriations, and retains some control over personnel through approval of Senate for some appointments.

Legislative Oversight

Congress has power to create and eliminate agencies. Also can restructure, expand or restrict agency powers

Administrative Procedure Act (APA)

Controls much of the administrative process by establishing procedures that must be followed when an agency engages in its quasi-legislative function (rulemaking) or quasi judicial function (adjudication) Regulate dissemination of info gathered by Agency.

Safeguards

Controls such as procedural due process, adoption of standards by agency, and judicial review

Safeguards

Controls such as procedural due process, adoption of standards by the agency and judicial review.

Federal Question

Court to hear any case arising under constitution. can be used to seek declaratory judgment or injunctive relief or booh

Independent Agencies

Designed to function without excessive political pressure, created by Congress, governed by commission or board appointed by President, and confirmed by Senate.

Standard of Evidence

Different from that used by Court; "Reliable, probative and substantial evidence" (Court interpretation - preponderance)

Non-Legislative Rule

Do not have force of law, but may be persuasive. Also known as interpretations, policy statements, guidelines and rulings.

Order

Either compels compliance with the law or grants (or denies) a benefit

Paperwork Reduction Act

Enacted in 1980 to eliminate redundant and costly required reports. All reporting requirements must be approved by OMB, but oversight may be reduced if agency regulates its own required reports through rulemaking.

EPA

Environmental Protection Agency, executive agency, only agency not within Cabinet Dept.

EEOC

Equal Employment Opportunity Commission, established by the Civil Rights Act of 1964 (Title VII)

Negotiated Rulemaking Act of 1990

Establishes statutory framework to conduct negotiated rulemaking and is incorporated into APA.

E.O. 12291

Executive Order prohibiting agencies from making regulations unless benefits exceed costs (names OMB to enforce compliance.)

E.O. 12291

Executive order which prohibits agencies from creating regulations uunless their benefits exceed their costs; Names OMB to enforce compliance

Secrecy

Exemption under FOIA request which excludes classified documents which must be shielded in the interest of national defense and foreign policy. So classified by Executive Order

Statutory Nondisclosure

Exemption under FOIA request which excludes documents forbidden for disclosure under another statute. Very narrow.

Investigation Records

Exemption under FOIA request which excludes information interfering with enforcement proceedings, deprive defendant of fair trial, disclose identity of confidential source, or similar.

Private Business Information

Exemption under FOIA request which excludes information likely to harm the competitive position of the business disclosing it, or would impair the agency's ability to obtain similar information. Trade secrets, financial info, privileged communications included.

Personnel

Exemption under FOIA request which excludes internal personnel rules and practices to protect the privacy of agency employees

Agency Memoranda

Exemption under FOIA request which excludes intra-agency to protect open discussion within the agency.

Geological Exploration

Exemption under FOIA request which excludes maps and geophysical information regarding location and drilling of wells.

Personal Privacy

Exemption under FOIA request which excludes personnel, medical or similar files which would constitute an invasion of privacy.

Financial Institutions

Exemption under FOIA request which excludes records relating to the examination or supervision of financial institutions.

FACA

Federal Advisory Committee Act requiring federal advisory committees to meet in open session, and to minimize number of citizens' adviory committees used and ensure public is aware of activities. Must provide advance notice of meetings and open to public unless President or other administrator determines meeting may be closed under Sunshine Act.

FERC

Federal Energy Regulatory Commission, independent agency

FPC

Federal Power Commission, created after Depression, powers transferred to FERC in 1977

FRB

Federal Reserve Board, independent agency.

FTC

Federal Trade Commission, created in 1914, independent agency

FDA

Food and Drug Administration, executive agency, within Dept. of Health & Human Services

FOIA

Freedom of Information Act, requires disclosure of all governmental information unless exempt under Act.

Discretion

Freedom of administrator, board or commission to make decisions. May be unrestricted or confined depending on degree of authority granted or restricted by agency's enabling act. Usually important in administrative law cases.

Discretion

Freedom of an administrator, board or commission to make decisiions, can be limited to limitless

Fourth Branch of Government

Generic term for Admin agy

Examples of Executive Agencies

IRS; Social Security Agency

Hearing on the Record

If agency is required to do this, it must be specifically stated in the enabling act.

INS

Immigration and Naturalization Service, executive agency, within Department of Justice

Exhaustion of Remedies

In addition to standing, party must have done this before seeking judicial review

Certify the Record

In lieu of an initial decision, presiding offiicers may leave the entire decision making process to agency head, commissioner or board

Rulemaking Record

Information that the agency actually considered in formulating the rule

Rulemaking Record

Information which the agency considered in formulating the rule.

IRS

Internal Revenue Service, executive agency, within Treasury Dept.

ICC

Interstate Commerce Commission, created by Congress in 1997, first independent regulatory agency.

Initial Decision

Issued by Presiding Officer, and will become decision of agency unless appealed.

Recommended Decision

Issued by Presiding Officer, and will become final only when adopted by agency.

Judicial Oversight

Judicial review of agency action under Constitution, existing statutues, and agency's regulations.

Petition for Review

Judicial review of agency decision established in enabling act. Final decision may be appealed by filing this in a federal court of appeals

Rule Content

Judicial review of substantive content to rules is very limited.

Judicial Oversight

Judicial review to determine validity of agency action under Constitution, statutes and regulations

Delegation Doctrine

Judicially enforced principal which reflects the type and degree of legislative power that Congress may delegate to agency.

Delegation Doctrine

Judicially enforced principle reflecting the type and degree of legislative power Congress may delegate. Two limitations placed on Congress regarding power delegation is: power deciding who or what to tax, and delegation of power to private persons.

Sunset Laws

Law appended to agency's enabling act making the agency cease to exist after a certain date.

Administrative Law

Law practice specialty area which deals with legal rules that create, affect, and generated by administrative agencies.

Types of Economic Regulation

Licensing; Ratemaking; and Business Practices

Official Notice

Like judicial notice; decision makers see facts developed outside the adjudication process and incorporate them into decision

Fourth Amendment Protections

Little to no protection provided to individual information, and documents in possession of third parties cannot be protected at all

Negotiated Rulemaking

Major interests are represented, and willing to negotiate a rule to accommodae others.

Dissemination of Information

Method of enforcing agency's laws, or preventing violations by others by releasing information, i.e., press release announcing recall of defective product.

Required Reports

Method used under investigation powers of agency to gather information, which may be enforced by nonrenewal of license or fine. Organizations and businesses can claim virtually no protection. Individuals are protected by 5th Amendment, 4th Amendment provides little protection for individual information, and docs possessed by 3d parties generally have no protection. Limited by Paperwork Reduction Act of 1980.

MSAPA

Model State Administrative Procedure Act, enacted in 1946, revised in 1961 and 1981.

Intelligible Standards

Modern application of standards set by Congress for administrative agencies with regard to specific rules to carry out standards & policies.

Due Process requirement

Must have some kind of hearing; Agency cannot deprive a party to life, liberty or property without it. Property includes entitlements

NLRB

National Labor Relations Board, independent agency, created after Depression

Consent Decree

Negotiated settlement between agency and party. (Like a Stip)

Sanctions

No Administrative agency can impose imprisonment, but sanctions for violations of regulations of the agency.

Rules of Evidence

No requirement under Due Process to adherence to these rules, nor requirement that the decision be based on eviddnce admissable in a civil or criminal trial. Can rely on hearsay evidence

Administrative Sanction

No sanction can include imprisonment; Any violation must be prosecuted in federal courts. No jury trials in administrative hearings. Usually take the form of a penalty

Requirements of Informal Rulemaking

Notice; Opportunity to Comment; Statement of Reasons; Publication

NRC

Nuclear Regulatory Commission (restructured from Atomic Energy Commission.)

OSHA

Occupational Seafety and Health Administration, executive agency, within Dept. of Labor

OMB

Office of Management and Budget

Cease and Desist Order

Official warning. Allows offender to stop conduct or more serious sanctions may be imposed

Certify the Record

Phrase used leaving the entire decision-making responsibility up to the agency head, governing board or commission.

Executive Oversight

Power of the President to appoint or remove leaders of many executive administrative agencies. Oversight of agency's budget (by OMB which is under President's control). E.O. 12291 forbids adopting regulations where costs exceed benefits. President also controls representation from Dept. of Justice for litigation.

Administrative Powers

Powers bestowed upon most administrative agencies by Congress: Investigation, rulemaking and adjudication

Executive Oversight

President appoints heads of adm agy; commissioners cannot be removed by President (except for cause) ; term must expire before new commissioner is appointed. Also control through DOJ - agy lacks authority to litigate on their own behalf; must use DOJ

Initial Decision

Presiding officer issue this. Becomes the decision of the agency unless appealled to a higher authority

Counsel at Hearings

Private person or Organization does not necessarily have the right to attorney at hearings. Representation may be limited in some matters. No court appointed counsel.

Formal Adjudication

Procedures nearly identical to civil trial. Appeals heard in civil court system

Formal Adjudication

Procedures which are nearly identical to those used in a civil trial. Losing party can typically appeal to commission or administrator. Appeal process resembles appellate procedure; no new trial is held.

Separation of Functions Doctrine

Prohibits only those combinations that create bias in the performance of adjudication functions. Does not apply to rulemaking.

Presiding Officer

Referee, hearing officer, administrative law judge (ALJ)

Procedural Issues

Relate to the rules which dictate the methods or steps used to reach an administrative decision

Preponderance of the Evidence

Reliable, probative, and substantial evidence. Majority of the evidence in terms of weight.

Privacy Act

Requires agency to disclose record of any person which is filed for purposes of retrieval under that person's name.

Privacy Act

Requires and agency to divulge any record to a person that is filed for purposes of retrieval under that person's name (5 USC 552a)

Sunshine Act

Requires any agency headed by a multi member commission to meet in public (5 USC 552b)

Freedom of Information Act (FIOA)

Requires disclosure of all governmental information unless exempted by the Act (5 USC 552) Docs must be produced within 10 days of request

Federal Advisory Committee Act (FACA)

Requires federal advisory committees to meet in open session

Motion to Quash

Respondent files this in an effort to not have to produce the information demanded, or to limit or nullify the subpoena

Order

Result of adjudication. Federal APA defines an oder as any disposition that is not a rule.

Legal Issues

Rule based on social choice made by a source outside the administrative process

Legal Issue

Rule based on social choice made by source outside administrative process (Constitution or statutes.)

Policy Issue

Rule based on social choice made by sources in the administrative process

Policy Issue

Rule based upon social choice made by administrative officials carrying out their mandate. Policy is "agency-made" law.

Publication Requirements

Rule must be published in Federal Registter 30 days before it take effect. Court will invalidate any unpublished rule.

Procedural Issue

Rules which dictate the methods or steps used to reach an administrative decision. Sources include Constituion, statutes, agency regulation, past practices or tradition.

Examples of Independent Agencies

SEC, ICC, FTC, Fed Reserve Boaad, FCC, NLRB

Amendment, Repeal and Waiver

Same rulemaking process applies to Amend, Repeal or Waive the rule as was required for passage.

Exemptions to Records to be Disclosed

Secrecy; Personnel; Statutory Non-Disclosure; Private Business Information; Agency Memoranda; Personal Privacy; Investigation Records; Financial Institutions; Geological Exploration

APA § 555(d)

Section of Administrative Procedure Act which deals with subpoena and summons power.

SEC

Securities Exchange Commission, independent agency, created after Depression

Mandamus

Seeks to compel an official to perform his duty

SBA

Small Business Administration, executive agency, within Dept. of Commerce

SSA

Social Security Administration, executive agency

Non-acquienscence policy

Some agencies will comply with court decision in specific case only, but will not change its general policy

Recommended Decision

Sometimes issued by presiding officer. Does not become fiinal until adopted by agency

Enabling Act

Statute passed by Congress establishing an administrative agency, determining structure, functions, powers (rulemaking, investigative or adjudicative), and operational standards. Sometimes statute also authorizes Executive Order to create agency.

Administrative Subpoenas

Subpoena issued by administrative agency which must be enforced by courts when properly issued. Civil contempt of court may be charged for noncompliance.

Legislative Rules

Substantive rule or agency-made law, made according to the agency's delgated authority to make quasi-legislative rules.

Vaughn Index

Summary of each record held by an agency refusing to release record under a FOIA request, stating the statutory basis for withholding, and citing affidavits explaining why exemption should apply. Name comes from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), case where index was first used. FOIA authorizes court to examine contents in camera (privately, in chambers.)

Vaughn Index

Summary of each record withheld, states the statutory basis on which it is withheld, and cites affidavits to explain why the exemption should apply

Administrative Summons

Summons issued by administrative agency (IRS in example) for information.

Fourth Branch of Government

Term sometimes used for administrative agencies

Hearing on the Record

Term used by Congress when formal rulemaking is the required procedure desired.

Adjudicative Facts

Things proven by objective evidence and concern individuals (or businesses) relating to what they did or what happened to them. Answers questions of who did what, when, where, why and how.

Legislative Facts

Things proven by objective evidence which resolve broad, social questions such as factors producing economic growth; dangerous workplace practices, persistence of glass ceiling for woman executives in corporations, etc.

Adjudicative Facts

Things which can be proved by objective evidence and which concern individuals in relation to what they do or did; answer questions of who did what, when, where, why and how

Licensing, Ratemaking, Business Practices

Three categories of economic regulation

Formal Rulemaking

Trial Type Rulemaking. Interested parties can appear and cross examine witnesses. Agency is only required to use this type if its enabling act specifies it. Persons affected can seek judicial review.

Rulemaking Procedure Types

Trial type in formal rulemaking; informal notice and comment; little or no public participation. Informal notice and comment most used.

Hybrid Rulemaking

Type of rulemaking power which incorporates all informal rulemaking procedure plus additional ones required by enabling act, such as a hearing where interested parties may appear.

Formal Rulemaking

Type of rulemaking power which uses a "trial-type", and includes a hearing similar to adjudication, where interested parties may not only appear but may also cross-examine witnesses. Agency is required to use formal rulemaking only if enabling act specifies. Generally avoided by Congress.

Informal Rulemaking

Type of rulemaking power which utilizes the "notice and commnet" procedures found in the APA. Agency must announce proposed rule, and allow interested parties to file written comment. No hearings are required, but agency may do so.

Non-regulatory agencies

Typically agencies that dispense money to promote social and economic welfare in form of government insurance and pensions.

Executive Agencies

Units within executive branch of government, typically headed by one individual, and appointed by President (some require Senate approval).

Executive Agencies

Units within the executive branch of Govt. Headed by one individual, appointed by President. Serve at the pleasure of President

Informal Adjudication

Used when (i) Congress did not specify procedural requirements or (ii) Congress only set few procedures in agency's enabling act

VA

Veterans Administration, executive agency, within Dept. of Health & Human Services

Commencement of Case

When an agency begins enforcement proceedings to address possible violation of the law under its authority, or when a private party requests a government grant (license, rate increase, welfare benefit, or public service.)

Questions of Law Review

Whether agency has committed a procedural error; Whether Constitution has been violated; Whether agency has exceeded its statutory authority

Discretion

Whether the decision is arbitrary, capricious or an abuse of discretion

Questions of Fact Review

Whether there is substantial evidence on the record to support the result; whether the decision is arbitrary, capricious or abuse of discretion; De Novo review, where permitted

Negotiated Rulemaking

Works best wheen major interests are concentrateed only in 2 or 3 sources, are convinced that unilateral agency action would be undesirable; and when they are under pressure to resolve the matter.

Sunshine Act

a/k/a Government in the Sunshine Act, requring any government agency headed by multiple-member commission to meet in public

Non-Legislative Rules

a/k/a interpretations, policy statements, guidelines, and rulings. Do not have the force of law but are persuasive.

Independent Agencies

created by Congress, governed by commission or board appointed by President, subject to confirmation by Senate