Administrative Process Outline

Thomas G. Field, Jr.

Agencies within the macrogovernmental context
Delegation (of law-making authority)
Political control of agencies
Justiciability generally
Scope of review generally
Review of adjudication
Review of rule making
Review of rules
Miscellaneous (Some topics beyond the scope of the introductory course)

I. Agencies within the macrogovernmental context

A. All agencies are creatures of statute.
As expanded in III.A., below, legislatures may enact all sorts of specific and general controls on agency power and conduct.

B. Delegation, expanded in II, below, usually deals with how much authority legislatures may give to agencies.
However, agencies cannot exercise power they have not been given -- one must also consider how much authority any particular agency has.

C. Sometimes it is useful to consider agencies as dependent or independent of close executive supervision. This is treated in III.B., below.

D. Most of this document concerns judicial review, e.g., of statutes that empower agencies and of agency compliance with substantive and procedural legislative requirements. However, awareness of political controls is important if for no other reason than that courts often defer to them.

II. Delegation

A. When and why do legislatures delegate law-making powers to agencies?

1. Efficiency: delegation unnecessary (ministerial)
2. Expertise, e.g. FDA, OSHA, NHTSA
3. Political compromise: NLRB, also often health and safety agencies (see Chevron)

B. Possible concerns affecting permissible scope of delegation

1. Separation of powers
- a. Making vs. enforcing/interpreting law
- b. Appointed officials making law without public participation
2. Secret law (Sun Ray, Panama Refining)

C. Court responses to excessive delegation

1. Interpret the grant to make it acceptable: Industrial Union
2. Require rule making Sun Ray (OR) or publication of standards
3. Find statute unconstitutional: Guillou (NH)

III. Political control of agencies

A. Separation of powers (See above; Ch. 6, Ch. 11)

1. Appointment (Eltra)
2. Structure (dependent v. independent agencies; removal) (Weiner)
3. Nondelegation (Industrial Union)
4. Legislative veto (Chadha)

B. Legislative control

1. Ask for recommendations -- no delegation
2. Scope of delegation (Tire Dealers, Public Citizen)
3. Oversight
- a. Amend statute -- not "veto" agency action (Chadha)
- b. Fiscal
5. Pervasive control
- a. Process concerns: APA, FOIA, Equal Access to Justice . . .
- b. Substantive concerns: Agency Practice Act, NEPA
C. Executive control (often subject to statutory limits)
- 1. Who is named decision-maker? (Butterworth)
- 2. Who submits budget?
- 3. Who decides to litigate; litigates? (Wyden)
- 4. Veto (very limited Duracell)
- 5. Impact analyses (rulemaking) (E.O. 12866 (OIRA))

IV. Justiciability

A. Whether?

1. Review is presumptive if action is final. (§§ 702 & 704; Overton Park)
2. Legislative limits -- Congressional capacity to limit review of actions affecting, e.g., liberty or property interests is suspect at best.
3. Prosecutorial/managerial discretion (Chaney, Am. Horse)
4. The following questions can also raise the same basic issue, e.g., if not now, when?!

B. Who?

1. Constitutional limits on standing: case or controversy, e.g., does decision affect parties not effectively represented?
2. Statutory control (Distinguish private causes of action, Chrysler)
- a. implicit (Block)
- b. explicit

C. When?

1. Constitutional limits (beyond facial challenges -- ripeness, e.g. adequate record for case or controversy, e.g., Toilet Goods)
2. Finality presumptively required (§ 704; SOCAL, but see ANA)
3. Statutory control: id. (Be alert to exclusive statutory routes of review)
4. Exhaustion (Darby)
5. Distinguish preemption and primary jurisdiction (Nader)

D. What, where and how? (See e.g., Ch. 3)

The PTO as an example

1. For some agencies, e.g., the PTO, distinguishing between matters subject to statutory and non-statutory review can be very difficult (yet compelling). Transfers are possible under 28 U.S.C. § 1631.
2. "Statutory" review -- trumps non-statutory, sometimes directly to appellate courts (that otherwise lack original jurisdiction).
3. "Non-statutory" review -- district courts have original jurisdiction under 28 U.S.C. § 1331 (Rydeen)

V. Scope of review generally

A. See generally § 706(2), particularly last sentence (prejudicial error)

1. § 706 (2)(A): arbitrary, etc. (Depends very much on context)
2. § 706(2)(B): unconstitutional (Courts usually avoid constitutional issues if possible; J.B. Williams, Industrial Union.)
3. § 706(2)(C): not in accordance with "law" (Chevron, Mead)
Also consider general rules of statutory construction (e.g., plain meaning), stare decisis, etc.
4. § 706(2)(D): improper procedure (constitutional or statutory)
Also consider general rules of statutory construction (e.g., plain meaning), stare decisis, etc.
5. § 706(2)(E): substantial evidence (same as standard for reviewing jury decisions)
6. § 706(2)(F): de novo (loosely used term with many meanings)
7. Effect of expert courts, e.g., CAFC? (See Zurko)

B. Review on the merits

1. Sources of authority
- a. Constitution (e.g., free speech)
- b. Organic or enabling legislation
- c. Effect of overlapping jurisdiction, expertise, e.g. Brown-Forman, Chrysler v. Brown
- d. Agency rules, manuals
2. Standards of review: See A, supra. (Overton Park discusses virtually all of the options. Coupled with, e.g., Chenery II or Jacob Siegel that case suggests that "merits" review may amount to a search for reasonable explanations -- provided by agency heads, not their attorneys -- rather than, e.g., weighing the factual support for alternative outcomes)
- a. Facts § 706(2)(A, E & F) -- regarding the last, see Rydeen.
- b. Law § 706(2)(B & C)
- c. Remedy § 706(2)(A-C)
3. Record for review
- a. Formal procedure §§ 556-57, 706(2)(E)
- b. Informal procedure § 706(2)(A)(Overton Park)
- c. Capacity to supplement (Overton Park, Rydeen, also, e.g., 35 U.S.C. § 145.)

C. Process review

1. Prejudicial error is fundamental to process review § 706
2. Sources of authority
- a. Constitution (state or federal)
- b. Organic or enabling legislation
- c. General legislation, e.g., APA (§§ 553, 554, 706(2)(D)
- d. Power to interpret b and c in light of tradition (J.B. Williams, Goyan)
- e. Agency rules and practices (Kaghan, Nielson)
3. Rule making or adjudication?
- a. Considerations
  - i. Number of parties affected (class actions?)
  - ii. Prospective vs. retrospective (injunctions?)
  - iii. Class open or closed?
  - iv. Licensing as a hybrid
  - v. See generally Londoner, Bi-metallic, Fla. E. Coast Ry.
- b. Process presumptions (The figure is an image map.)
VI. Review of intramural adjudication
A. Process
- 1. Prejudicial error is fundamental to process review § 706
- 2. Process effect of rule making, e.g.:
  - a. Issue preclusion: e.g., FDA rules
  - b. Shifting the burden: National Petroleum Refiners
  - c. Agency must follow own rules & practices, e.g., Kaghan
    E.g., APA doesn't require discovery, but agency rules may.
- 3. Informal adjudication: right, entitlement or privilege?
  - a. Constitutional concerns
    - i. Whether process is due? (Cogar, DEC v. Parker, McGinley)
    - ii. How much process is due? (See Matthews, also, e.g., Cogar)
    - iii. Consider why such issues are much less likely to arise in extramural (court) adjudications
  - b. Statutory construction (in light of tradition?) (See, e.g., J.B. Williams)
- 4. Formal adjudication: §§ 554, 556-7
  - a. If statute requires
  - b. If agency rules or practices require (e.g., discovery)
- 5. General concerns
  - a. Notice of procedural and substantive requirements
  - b. Bias (See Pillsbury)
  - c. Institutional decisions
    - i. Ex parte communications
    - ii. Adequacy of notice
    - iii. Reasons
  - d. Burden of proof: usually preponderance, but sometimes clear and convincing
  - e. Intramural "appeals" § 557(b)
B. Merits & remedy
- 1. See V.B, above re hierarchies of authority, standards of review & record
- 2. Prior adjudications may also contain substantive or procedural precedent that is aprt to bind the agency if not distinguished.
C. In collateral actions
- 1. Involving same agency -- see e.g. McKart, related to exhaustion
- 2. Involving other parties -- effect of capacity to participate in previous adjudication? E.g., patent infringement actions
VII. Review of rule making (process)
A. If clearly "rule making," is "formal," hybrid or "informal" process required?
- 1. § 556-57 (formal) only if required by statute; see diagram.
- 2. § 553
  - a. Implied authority to use: Petroleum Refiners
  - b. Florida East Coast Ry.
  - c. Vt. Yankee: additional requirements improper
- 3. § 553 limits
  - a. Subject exclusions: § 553(a)
  - b. Exceptions, e.g., interpretative rules, policy statements, procedure
B. "Ad hoc" rule making (See Chenery II, Petroleum Refiners)
- 1. Clearly OK if a case of first impression
- 2. Retroactive rules may be OK if "fair," but see § 551!
- 3. Can juggle remedy to make fair (See Retail Union)
C. General concerns (Be careful to distinguish adjudications)
- 1. Bias: e.g., ANA
- 2. Ex parte communications: formal vs. informal
- 3. Institutional decisions, e.g., adequacy of notice
- 4. Reasons (process or merits?) (See Chenery I; Nova Scotia)
VIII. Review of rules (merits)
A. Direct review
- 1. Available for all kinds of "rules" (if ripe, etc.); Abbott Labs and Toilet Goods
- 2. Standards of review
  - a. Basics, e.g., constitutional, within delegated grant of authority?
  - b. § 553 -- capricious and arbitrary
  - c. §§ 556-7 -- substantial evidence
  - d. Form of the record aside, differences between the standards are problematic, i.e., both supposedly require agencies (and courts) to take a "hard look." Also, State Farm uses them both.
B. Collateral review
- 1. So-called legislative rules, see e.g., the NHTSA cases, must be made by §§ 553 or 557. They are likely to be subject to statutory -- but only at the time they become final. Fundamental challenges or interpretation aside, they are likely to be unreviewable in the context of enforcement. See V.A.4.
- 2. Interpretative rules need not be made by § 553, but those that are are likely to get additional deference. See, e.g., National Petroleum Refiners and Mead.
- 3. Substantive rules, policy statements, etc. rules promulgated other than by §§ 553 or 557 may get onlySkidmore deference, but that is substantial. See Mead.
- 4. Procedural rules (or choices made in individual situations), if consistent w/, e.g., statutory obligations, seem to be entitled under Vermont Yankee o total deference.

IX. Miscellaneous

A. Information acquisition
- 1. By government: related to nature of proceeding
- 2. From government: Sears v. NLRB
- 3. Third party interests: privacy, Chrysler v. Brown
B. Beneficial or collateral enforcement, etc. (actions against other private parties)
- 1. Explicit cause of action
  - a. Who may bring? (See Colligan.)
  - b. What relief is available?
  - c. Is agency notice required? (See, e.g., 17 U.S.C. § 411 (a).)
- 2. Implicit cause of action: difficult to establish (See, e.g., Chrysler; Cort.)
  - a. Effect on enforcement?
  - b. Remedy otherwise available?
C. Collateral effects of regulation; Nader
D. Monetary relief against federal agencies/personnel
- 1. Private bills
- 2. The Tucker Act (actions not sounding in tort) 28 U.S.C. § 1491
- 3. Federal Torts Claims Act, e.g., 28 U.S.C. §§ 1346, 2674 & 2680.
Field's Course Page
Modified Apr. 25, 2007
URL: www.piercelaw.edu/tfield/apro/aprool.htm
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