Quiz 3Quiz 3DO ONE OF THE FOLLOWING ITEMS, BUT NOT BOTH : 1. Under ordinary circumstances administrative agency

personnel are required to obtain a search warrant before conducting inspections of homes and businesses. But in some instances inspections may be conducted without a search warrant; describe those circumstances or conditions.

2. When administrative personnel are required to obtain a search warrant to conduct routine inspections of businesses, they are not obligated to conform to the same requirements that a police officer does to obtain a warrant in the process of a criminal investigation. What’s the difference?

Quiz 3Quiz 3DO ONE OF THE FOLLOWING ITEMS, BUT NOT BOTH : 1. Under ordinary circumstances administrative agency personnel are required

to obtain a search warrant before conducting inspections of homes and businesses. But in some instances inspections may be conducted without a search warrant; describe those circumstances or conditions. Social services caseworkers’ home visits (if prior notification

given) “Closely regulated” and “pervasively regulated” businesses Public areas of any business, including things in “plain sight”

from ground adjacent to or airspace above the business

Quiz 3Quiz 3DO ONE OF THE FOLLOWING ITEMS, BUT NOT BOTH : 2. When administrative personnel are required to obtain a search warrant to

conduct routine inspections of businesses, they are not obligated to conform to the same requirements that a police officer does to obtain a warrant in the process of a criminal investigation. What’s the difference? No showing of probable cause required; no “particularity”

requirement re: things to be seized Only have to show that the inspection (“search”) is part of a

comprehensive plan for enforcing agency’s statutory mandate

Purpose for this modest warrant requirement is to prevent repeated searches which could amount to harassment.

Agency Policymaking ActionsAgency Policymaking Actions

InformalInformal

RulemakingRulemakingFormalFormal

InformalInformal

AdjudicationAdjudicationFormalFormal

See p. 547

Rulemaking v Adjudication: Bi-Metallic CaseRulemaking v Adjudication: Bi-Metallic CaseDoes the agency action affect a small number of specifically-identified people so that the agency can reasonably hear those affected?Does the agency action depend at least in part on facts about specific-named people or organizations, so that a hearing where they may present additional facts can influence the action one way or another?Is agency decision-making resting primarily upon past events and looking to “punish” someone for prior actions or alleviate the suffering someone has experienced because of another’s actions?Is the agency action primarily concerned with setting the boundaries for the control of future actions rather than being focused on remediation for past actions? Is the agency action “retroactive” or “proactive”

Degrees of Formality in RulemakingDegrees of Formality in Rulemaking Classical rulemaking – highest degree of Classical rulemaking – highest degree of

informality; only such procedures as decision informality; only such procedures as decision makers choose to impose on themselves - “feet makers choose to impose on themselves - “feet on the desk” or “man law” style of rulemakingon the desk” or “man law” style of rulemaking

Notice and Comment Rulemaking:Notice and Comment Rulemaking:APA, APA, §§553553

Agency must publish general notice of proposed rule in Agency must publish general notice of proposed rule in the Federal Register the Federal Register Giving time, place, and nature of proceedingsGiving time, place, and nature of proceedings Reference to the legal authority under which the rule is Reference to the legal authority under which the rule is

proposedproposed Description of subjects or issues involved (or text of proposed Description of subjects or issues involved (or text of proposed

rule)rule) Agency must give interested persons/organizations a Agency must give interested persons/organizations a

reasonable chance and time to comment on the proposal reasonable chance and time to comment on the proposal Agency has discretion about allowing oral comments or notAgency has discretion about allowing oral comments or not

Then agency must incorporate in the final rule a concise Then agency must incorporate in the final rule a concise statement of the basis and purpose of the rulestatement of the basis and purpose of the rule

Then agency must publish the final rule at least Then agency must publish the final rule at least 30 days before it goes into effect 30 days before it goes into effect Not for purpose of allowing additional comment but Not for purpose of allowing additional comment but

to give adequate time for complying with the to give adequate time for complying with the requirements of the rule requirements of the rule

Unless new rule is less stringent than an old one it replacesUnless new rule is less stringent than an old one it replaces Unless rule merely interprets/clarifies an existing ruleUnless rule merely interprets/clarifies an existing rule Unless it merely governs internal agency policyUnless it merely governs internal agency policy

Finally, agency must give interested persons & Finally, agency must give interested persons & organizations the right to petition for further organizations the right to petition for further changes in existing ruleschanges in existing rules

Degrees of Formality in RulemakingDegrees of Formality in Rulemaking

Reg-neg (regulation-negotiations); Congress amended Reg-neg (regulation-negotiations); Congress amended the APA to permit a more informal form of the APA to permit a more informal form of rulemaking from that initially provided for in rulemaking from that initially provided for in §553; it §553; it is embodied in §561-569. Ironically, it the very nearly is embodied in §561-569. Ironically, it the very nearly the procedure the S.Ct. declared unconstitutional in the procedure the S.Ct. declared unconstitutional in Schechter Poultry and Panama Oil cases of 1935.Schechter Poultry and Panama Oil cases of 1935. Private interests who want a rule adopted propose a Private interests who want a rule adopted propose a rule and negotiate with those to be impacted by it with rule and negotiate with those to be impacted by it with the agency serving as referee. Reg-negs must still go the agency serving as referee. Reg-negs must still go through through §553 procedures before final adoption of rule, §553 procedures before final adoption of rule, so it is hardly a more informal procedure on the front so it is hardly a more informal procedure on the front end; it merely hoped to avoid rule resistance and end; it merely hoped to avoid rule resistance and litigation after the rule was adopted.litigation after the rule was adopted.

§554 rulemaking “on the record after the §554 rulemaking “on the record after the opportunity for an agency hearing”opportunity for an agency hearing” A section of the APA which was originally designed to A section of the APA which was originally designed to

cover adjudications has been appropriated by cover adjudications has been appropriated by Congress to cover some agency rulemakingCongress to cover some agency rulemaking

This form of rulemaking occurs only when the This form of rulemaking occurs only when the agency’s authorizing statute requires itagency’s authorizing statute requires it

Hybrid rulemaking – intermediate stage between Hybrid rulemaking – intermediate stage between §553 “notice and comment” and §554 “on the §553 “notice and comment” and §554 “on the record” rulemakingrecord” rulemaking §553 procedures are efficient but criticized for not §553 procedures are efficient but criticized for not

allowing sufficient participation by publicallowing sufficient participation by public §554 procedures maximize opportunities for public §554 procedures maximize opportunities for public

participation but criticized for being too expensive participation but criticized for being too expensive and time consumingand time consuming

Hybrid procedures add one or more steps beyond Hybrid procedures add one or more steps beyond what §553 requires, but stops well short of those what §553 requires, but stops well short of those required in §554 procedures required in §554 procedures

Requirement for submission of oral testimonyRequirement for submission of oral testimony Cross-examination of witnessesCross-examination of witnesses Advanced noticeAdvanced notice Disclosure of methodology and/or “intent to rely”Disclosure of methodology and/or “intent to rely”

  STANDARDS FOR ADMINISTRATIVE RULEMAKING  

Does agency's authorizing statute specify rulemaking procedure to be followed?

                        Yes                                                                                                   No

 "on the record after opportunity for an agency hearing"?         §§553 of APA applies

 

           Yes                                        No                               Does rulemaking qualify for an exception to §§553?

full trial-like proceeding                                                                          Yes                             Nounder §§554-557 of APA                                                                                                                   

                                       proceed to next level Classical      Notice-Comment            rulemaking "after a hearing" :agency develops its own procedures to guarantee at least minimum due process protection adequate in the context of the substantive matter and potential sanctions

Levels of Informality in Levels of Informality in AdjudicationAdjudication

Informal determination of facts constituting Informal determination of facts constituting an infraction, informing violator, application an infraction, informing violator, application of penaltyof penalty

Academic evaluations resulting in removal – Academic evaluations resulting in removal – Horowitz: “far less stringent procedural Horowitz: “far less stringent procedural requirements” standard than for disciplinary requirements” standard than for disciplinary dismissaldismissal

Academic suspension/dismissal – Goss: notice, Academic suspension/dismissal – Goss: notice, explanation of evidence, chance to tell side of explanation of evidence, chance to tell side of story in an “informal give and take” contextstory in an “informal give and take” context

Increasing number of Goldberg ingredientsIncreasing number of Goldberg ingredients All 10 Goldberg ingredientsAll 10 Goldberg ingredients Full adjudicatory hearingFull adjudicatory hearing

Adjudications

Does authorizing statute require adjudication to be "on the record after opportunity for agency hearing?"

Yes                                   No 

            §§ 554-557 of APA                          agency develops its own procedures to guarantee at least minimum due process

protection adequate in context of the substantive

matter and potential sanctions