AdministrativeLaw Lubbers Fall2006 2

8/12/2019 AdministrativeLaw Lubbers Fall2006 2

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Administrative Law Outline

I. Introduction

A. Chief Executives Appointment Power

1. Appointment of Officers and Inferior Officers (see handout

Appointments Clause Article 2, Section 2

o The President shall nominate and appointall officers of the United States

whose appointments are not otherwise provided for in the Constitution ofb law, but Con!ress ma enact laws allowin! the President, "eads of#epartments, or Courts of $aw to appoint inferior officers

Buckley v. Valeo (1976)

o Principle officers

%ust be appointed b the President with the advice and consent of

the Senate Con!ress cannot appoint e&ecutive officers

Cannot ta'e power awa from the e&ecutive b appointin!

officers with e&ecutive dutieso (nferior officers

Con!ress ma allow inferior officers to be appointed b the

President, "eads of #epartments, or Courts of $aw Edmond

)enerall spea'in!, inferior officer connotes arelationship with some hi!her ran'in! officer or officersbelow the President

o *mploees

People who do not e&ercise si!nificant authorit pursuant to the

laws of the United States do not need to be hired pursuant to theAppointments Clause

Morrison v. Olsen (19)

o Special court appoints an independent counsel to investi!ate e&ecutive

officialso SC holds that the independent counsel was an inferior officer and,

therefore, a Court of $aw could appoint her "er appointment was temporar, she was limited in +urisdiction,

and was removable b the Attorne )eneral for causeo emoval

President could not remove her without !ood cause

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%ust loo' to whether a restriction on the President.s removal

impede the President.s abilit to faithfull e&ecute the law

/or !ood cause restriction does not

!. "emoval Power (see handout

Constitution is silent as to the removal of officers, but there is si!nificant case law

o Presidential emoval Power

Myers (19!6)

Purel e&ecutive officials ma be removed at will b the

President "ump#rey$s E%ecutor (19&') old standard

Con!ress can condition the President.s removal power0

President could not remove an /TC commissioner it#out

ood cause

o This was not a purel e&ecutive role but included*uasi+leislative and *uasi+,udicialpowers

Morrison (19) modern standard

See above

o $e!islative emoval Power

All e&ecutive powers must rest with e&ecutive officials

Con!ress ma not remove e&ecutive officials

Bos#er v. -ynar

Con!ress assi!ned the Comptroller )eneral authorit to

e&ecute an Act so he clearl had e&ecutive duties and is,therefore, not sub+ect to le!islative removal

II. #ele$ation of Power to Administrative A$encies

A. #ele$ation of Le$islative ("ulema%in$ Power to A$encies

*&ecutive A!encies

o A!encies created b Con!ress, but are within the *&ecutive 1ranch

The President has Appointment and emoval3 Powers and the

ta'e care power to ensure the laws are faithfull e&ecuted3o Tpicall Cabinet departments headed b a Secretar

(ndependent A!encies and Commissions

o Created to !ive these a!encies some independence from the *&ecutive

4fficers ma be removed onl for cause

Political part balance multi+memer oards

4nl a bare partisan ma+orit can be appointed b the

President and confirmed b the Senate

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4fficers have sta!!ered terms

%ost statutes allow them to represent themselves

%ost have independence from 4%1 in the bud!et process

o *&amples

5C, S*C, /CC

Article (, Section 6 Con!ress shall enact all laws that are necessar and proper to implement its other

functions

To what e&tent can Con!ress dele!ate its le!islative duties to the other branches7

o Since -899, it has been ver rare for the SC to overturn statutes as invalid

dele!ations of le!islative power to a!encies /anama (19&')

(n dele!atin! power, Con!ress declared no polic and

established no standards -c#ec#ter (19&')

Allowed Presidentto enact codes of fair competition forall areas of commerce

o 5o procedures or standards set

o So lon! as Con!ress provides sufficient standards, broad dele!ations of

le!islative power are acceptable Standards can even be in the le!islative histor

o The hard choices as to the substance of the statute need to be made b

Con!ress The fillin! in the blan's are all that should be left to the a!encies

&. #ele$ation of Ad'udicator Power to A$encies

Article (((

/ederal power to determine the ri!hts or duties of particular persons based on

their individual circumstances is vested in Article ((( +ud!eso $ife tenure and protection a!ainst salar reduction

"ow can Con!ress transfer such power from Article ((( +ud!es to Article ( +ud!es7

o Private vs: public ri!hts

0roell (19&!)

SC held dele!ation to an a!enc because it involved a

pulic ri!ht !ovt vs: private3 and there was the possibilit

of +udicial review Article ((( court3 later ort#ern /ipeline (19!)

(nvalidated a statute that !ave Article ( +ud!es power to

hearprivate ri!hts cases private vs: private3o -c#or (196)

1alancin! test for determinin! permissible dele!ation of

ad+udicator power to an Article ( court to hear common lawissues3

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The e&tent to which the essential attributes of +udicial

power are reserved to Article ((( courts

The e&tent to which the Article ( forum e&ercises the ran!e

of +urisdiction and power normall vested in Article (((

The ori!ins and importance of the ri!ht to be ad+udicated

The concerns that drove Con!ress to depart from there;uirements of Article (((

o Mc"u# (199)

An a!enc ma constitutionall hear cases so lon! asho presides over the decision7

E F b3

o %ost often it is the A$G who ma'es the initial decision

The initial decision can be the final decision, which if this is the

case, then there is +udicial review of that decision

Could have an appeal or an a!enc review without an

appealo There ma be a recommended decision

ecommended decisions must be reviewed b the a!enc before

the become finalo The a!enc head has broad review authorit

(f he disa!rees with the A$G, he can reverse the decision for polic

or other reasons

1UT, he cannot reverse for witness credibilit or demeanor

o The initial decision must be !iven to the parties, who then have the chance

to ar!ue or support it

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Separation of /unctions

E ? d3

o Prohibits hearin! officers usuall A$Gs3 from consultin! a person or part

on a fact in issue absent notice

This relates onl to information input and not from see'in!assistance from uninvolved a!enc persons in evaluatin! what isalread in the record

o "earin! officers ma not be responsible to or supervised b anone

en!a!ed in performin! investi!ative or prosecutive functionso Cannot serve as both an advocate and a decisionma'er in the same case

o A!enc heads canpersonall en!a!e in conflictin! functions

o Principle of necessit

A biased or otherwise dis;ualified +ud!e can decide a case if there

is no le!all possible substitute decisionma'er

Three cate!ories of a!enc emploees

o -3 #ecisionma'in! personnel

A$Gs, intermediate board members, a!enc heads

o 23 Adversaries

(nvesti!ators and prosecutors involved in the case

o 93 *verone else

(ncludes investi!ators and prosecutors not involved in the case

ules relatin! too these divisions

2s cannot provide off@record advice to -s -s ma advice or consult with other -s and 9s ma advise

or consult with -s or 2so (n practice -s refrain from this

&ias2 Personal Interest9 Pre'ud$ment9 Personal Animus

An ad+udicator is dis;ualified if tainted bhile administrative complaints need not meet the specificitre;uirements of criminal law, the must provide sufficient detail to apprisethe part of the char!es a!ainst him and allow him to ade;uatel preparefor a hearin!

Subpoenas

o A!encies need a statutor basis other than the APA in order to compel the

production of information 5ot inherent, so a!encies must put this power in their statutes

o This power is limited thou!h

A!encies cannot enforce their own subpoenas but must !o to court

-he 0earin$ Phase

*vidence

o /ederal rules of evidence do not appl

Under the APA, an oral or documentar evidence, includin!

hearsa so lon! as it is substantial, ma be received

4fficial 5otice

o Courts are allowed to ta'e,udicial noticetreat as provenof facts that

are commonl re!arded as true "owever, the court must first afford each part a reasonable

opportunit to present information relevant to the propriet ofta'in! +udicial notice

o 4nl where the professional si!nificance of underlin! facts seems

beond la comprehension must the basis for the notice be shown and anopportunit for parties to rebut

Proceedin!s ma be reopened if a part was not afforded this

opportunit

-he #ecision Phase

/indin!s

o e;uired for formal and informal ad+udication

o #ecisionma'ers must state findin!s of fact and reasons for their decision

>hen an a!enc.s opinion is not accompanied b the necessar

findin!s of fact, the usual remed is to remand the mattero Post@hoc rationali=ations

5ot allowed

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eviewin! court will review onl the reasons !iven at the time of

the decision

-he Effect of #ecisions2 "es +udicata and Collateral Estoppel

es +udicata claim preclusion3

o A valid and final +ud!ment is conclusive of a claim

(f the +ud!ment is for the P, the claim is e&tin!uished and mer!ed

into the +ud!ment (f the +ud!ment is for the #, P is barred from reassertin! the claim

Collateral *stoppel issue preclusion3

o >hen an issue of law or fact is actuall liti!ated and determined b a valid

and final +ud!ment, and the determination is essential to the +ud!ment, thedetermination is conclusive in a subse;uent action between the parties,even on a different claim

(f a person lac'ed a full and fair opportunit to liti!ate the issue inthe first action, collateral estoppel is improper

#ifferent tpes of Collateral *stoppel

4ffensive mutualcollateral estoppel

o P see's to bar a # from reliti!atin! an issue the # has previousl liti!ated

unsuccessfull in another action a!ainst the same part: JTpicalapplication4ffensive non4mutualcollateral estoppel

o P see's to bar a # from reliti!atin! an issue the # has previousl liti!ated

unsuccessfull in another action a!ainst a different part: JKe case hereis /arklane "osiery 0o. v. -#ore, ?98 U:S: 922 -8F83# lost a casebrou!ht b the S*C in /ederal #istrict Court, and estoppel applied when Pbrin!s private dama!e action:L Another e&ample< in case A, %r: Gonesloses his real estate license for fraud: (n case 1, victims of the fraud canrel on offensive collateral estoppel to resolve the fraud issue:

1ut it is discretionary: Court ma refuse to estop if -3 # in the first caselac'ed incentive to defend vi!orousl, 23 if the earlier +ud!ment wasinconsistent with other earlier +ud!ments, or 93 the second action offeredprocedural opportunities unavailable in first action that could cause

different result: Mendo:ama 54T be used a!ainst the !overnmentCourt allowed !overnment to reliti!ate issue a!ainst plaintiffs 1 after itdid not appeal district court rulin! a!ainst it in favor of plaintiffs A:L

1ut see8ntracircuit on+;c*uiescencebelow

#efensive mutualcollateral estoppel

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o # see's to bar a P from reliti!atin! an issue the P has previousl liti!ated

unsuccessfull in another action a!ainst same part: JElliott E-869action3: -tauffer allowed estoppel a!ainst !overnment as P when it hadlost case a!ainst same #, even if the second action is in another districtLElliotte&tends concept of liti!atin! in first case to administrative hearin!s

#efensive non4mutualcollateral estoppel

o # see's to bar a P from reliti!atin! an issue the P has previousl liti!ated

unsuccessfull in another action a!ainst different #: A!ain ma 54T beused a!ainst the !overnment

Preclusion a!ainst the !overnment

)overnment can be barred from reliti!atin! a leal issue it has lost in an action

involvin! thesamepart, even if the subse;uent action is brou!ht in anotherdistrict

1ut 54T a!ainst a differentpart

o #o not want the !overnment to have to appeal ever case it loses in a trial

courto >ant these issues to percolate to the SC

(ntracircuit 5on@Ac;uiescence

o The !overnment ma 54T reliti!ate an issue, despite havin! lost an

appellatedecision on the identical point in thesame circuit a!ainst adifferent part

(ntercircuit 5on@Ac;uiescence

o The !overnment (S allowed to tr the identical issue in anot#er circuit

a!ainst anot#er party

Principles of Consistenc in the Ad'udicator Context

Stare #ecisis

o A!encies ma chan!e course throu!h case@b@case ad+udication and

rulema'in!, but the must e&plain and +ustif chan!es in position (f the do not, the case will be remanded for better e&planation

o This is not limited to independent a!encies, but includes administrative

a!encies within the e&ecutive branch

*;uittable *stoppel

o )overnment cannot be held liable when one of its a!ents !ives bad advice

#eclarator 4rders

o Unli'e an a!enc advice letter, a declarator order is an administrative

ad+udication that binds all parties, includin! the a!enc itself

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o A part can rel on a declarator order without bein! concern about the

!overnment.s apparent immunit from bein! estopped

Administrative +ud$es and #ecisional Independence

A$Gs

o "ear cases of formal ad+udication !overned b the APA

o Selection

A!encies must choose from a !roup of people based on merit

determined in an 4P% e&amination process

Cases are then assi!ned b rotation

o (ndependence

Can onl be removed for cause

Salaries are paid b the a!enc but the amount is determined b statute

Tenured

Cannot be supervised b a prosecutor or investi!ator

Cannot be assi!ned other +obs within the a!enc

5o performance evaluations

AGs

o Term used for all non@A$G ad+udicators in the !overnment

(f on the record lan!ua!e is not used, A$Gs are not re;uired

o Preferable

#o not need to !o throu!h the 4P% e&amination process

*asier to fire

5o hearin! re;uired

Performance evaluations are allowed

$ower salaries

2. Rulemaking

a -he #efinition of 5"ule6

Statements of future effect desi!ned to implement, interpret, or affect law or

polic as opposed to orders, which !enerall concern past events and have

retroactive effecto There is alwas a presumption that statutes and rules do not appl

retroactivel and an a!enc ma not, as a !eneral matter, issue retroactivele!islative rules unless Con!ress e&pressl authori=es retroactivit

(nformal rulema'in! notice and comment rulema'in!3

o E 9 establishes the minimum re;uirements

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Publication of 5P%, opportunit for written comment,

publication of final rule, 9I wait period before the rule !oes intoeffect

$e!islative rules

ules issued b an a!enc pursuant to an e&press or implied !rant of authorit toissue rules or statements of polic with the bindin! force of law

4nce it has !one throu!h notice and comment and is published in the / in final

form, a rule has le!al effect and is bindin!

5on@le!islative rules interpretive rules or polic statements3

#o not !o throu!h notice and comment

#o not have the force of law because the are not based upon an dele!ated

authorit to issue such rules

* Initiatin$ "ulema%in$ Proceedin$s

Informal "ulema%in$ / ;


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The fact that there are a number of comments addressin! a certain

issue does not !ive ade;uate notice to parties when the issue wasnot addressed in the preamble or the 5P%

5otice must come from the a!enc

At the end of the comment period, in response to comments,

a!encies can place supportin! documents in the record, 1UT whenthe are more than +ust responses to comments and did not merelsupplement data, the public should have a chance to ;uestion them

8ormal "ulema%in$ / ;


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/ormal rulema'in!

o E F forbids e& parte communications, and if the occur, their contents

must be disclosed on the public record

(nformal rulema'in!

o 5ot addressed in the APA, but some cases have dealt with it

o -ierra 0lu (191)

$imits the holdin! in"BO

Con!ress ma represent their constituents before a!encies

en!a!ed in informal rulema'in!, so lon! as individualCon!ressmen don.t frustrate the intent of Con!ress

*& parte contacts are allowed throu!hout and onl need to be

disclosed if the are of central relevance to the rulema'in!

&ias and Pre'ud$ment

ulema'in! standard

o An a!enc member ma be dis;ualified from such a proceedin! onl

where there is clear and convincin evidencethat he has an unalteralyclosed mindon matters critical to the disposition of the rulema'in!

%uch hi!her threshold then for ad+udication

8indin$s and "easons

The statement should reflect the factual, le!al, and polic foundations for the

action ta'eno *ver sin!le item does not need to be discussed, but it should be a concise

!eneral statement of basis and purpose addressin! the ma+or polic issues

(t must show that the rule adopted is reasonabl supported b the material

!athered, how conflictin! interests were resolved and how that that resolution ledto the rule chosen, and show that the distinctions drawn are reasonabl supportedb the administrative record

Post hoc rationali=ations

o A reviewin! court will onl loo' to the te&t of the rule and its statement of

basis and purpose in reviewin! the a!enc action >ill not accept post hoc rationali=ations

d Issuance and Pu*lication

#ut to publish

o E 9 states that all le!islative rules with !eneral applicabilit must be

published in the /

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*&emptions from E 9 Publication e;uirement

o Sub+ect matter

%ilitar, forei!n affairs, personnel

o (nterpretive rules

o Polic statements

o Procedural ruleso )ood cause e&emptions

o (n order for someone to !et relief when such a rule was not published, the

must show that the unpublished rule affects his substantive ri!hts Substantive ri!hts test

>hether the rule chan!ed e&istin! rules, polic, or practice

>hether the interpretation deviates from the plain meanin!

of the statute or re!ulation at issue

>hether it is of bindin! force and narrowl limits

administrative discretion

#eferred effectiveness

o 9 d3

4nce the rule is published in the /, it does not become effective

sooner than 9I das followin!

e Exemptions from "ulema%in$ Procedures

:on4le$islative "ules

)uidance documents that do not have the force of law, as the are not based upon

dele!ated authorit to issue such rules

Commonl subdivided

o Polic statements

o (nterpretive rules

$oo' to the bindin! nature of the document and whether there is discretion

allowedo Critical factor is the e&tent to which the challen!ed directive leaves the

a!enc free to e&ercise discretion to follow, or not to allow, the polic inan individual case

ood Cause Exemptions Two 'inds

o /rom formal notice and comment procedures

o /rom delaed effectiveness

%ust show the normal procedures would behether the challen!ed action has caused the complainant in+ur

in factO economic or otherwise %ust be immediate rather than speculative, particulari=ed to the P

rather than !enerali=ed to man citi=ens, and concrete rather thanideolo!ical

Associations ma see' review of a!enc action on behalf

of their members so lon! ashen Con!ress does not e&plicitl re;uire e&haustion or sa that e&haustion is

not re;uired, federal courts must balance the interest of the individual in retainin!prompt access to a federal forum a!ainst countervailin! interests favorin!e&haustion

o *&haustion is therefore not re;uired in ever case over which an a!enc

has +urisdiction, but there is definitel a stron! presumption that it is

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Circumstances in which e&haustion should not applhere the challen!e is to the a!enc procedure itself

>hen an a!enc lac's the authorit to !rant the tpe of relief

re;uestedo An administrative remed ma be inade;uate where the administrative

bod is shown to be biased or has otherwise predetermined the issuebefore it

Partial e&haustion

o A federal court ma either dismiss the entire case and sent it bac' down to

the administrative a!enc, or it can send certain issues bac' down and waitand see how the are resolved before decidin! the other issues

Constitutional issues

o The !eneral rule is that a!encies lac' authorit to determine the

constitutionalit of statutes substance or procedure3 "owever e&haustion still ma be re;uired in several situations that

involve constitutional claimshere another statute precludes release

"omeland Securit Act, (S laws, etc?: Confidential private information

Trade secrets and commercial or financial

information obtained from a person or compan andprivile!ed or confidential

(f the information is submitted to the !overnment

voluntarily

AdministrativeLaw Lubbers Fall2006 2

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