Admin Law

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Notice and Comment

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To fulfill requirement of the APA when making rulemaking functions, an agency must provide:

1. Public notice of proposed rules

2. An opportunity for, and full consideration of, comments; and

3. A sufficient rulemaking record

Informal Rulemaking

1. Participatory
--Agency must allow interested persons to submit written comments to an agency regarding proposed rules

2. Comprehensive
--Agency must consider all interests that are affected by a rule

3. Agency must publish a notice of proposed rulemaking in the Federal Register that contains the following elements:
(a) Proposed rule’s substance
(b) Legal authority for the rule; and
(c) Time, place, and nature of the rulemaking procedure

Absent specific language in the administrative procedure statute that provides for process of formal rulemaking, a strong presumption exists against that process

Informal rulemaking preferred

Formal Rulemaking
--“On the record”

--Record normally consists of all evidence and argument presented at rulemaking hearing

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Standing to Challenge Agency Action in FEDERAL Court

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Need to prove:
"Injury in fact, caused by the government, that will be remedied by a decision in her favor."

1. Injury

2. Causation

3. Redressability

4. Claim is within the "zone of interests" the statute was intended to protect

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Timing of Rule Challenge

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Cannot challenge an agency’s rule until and unless:

1. An agency’s rule is final

2. The case or controversy is ripe; and

3. Avoid litigating in abstract so regulation must be final agency action

A person has exhausted administrative remedies

--Must pursue all relief available from agency before seeking review in the courts

--Exception: if an agency predetermined an issue and made it clear that exhaustion of remedies would be a futile exercise

Ex: exhaustion not required where Board of Immigration Appeals had, in another case, already decided that it was not authorized to grant the type of relief sought by petitioner

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Challenge to Scope of Agency Authority

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• Court may set aside an agency’s regulation on basis that the agency exceeded the scope of its statutory authority (acting ultra vires)

• Legally required to “strictly comply” with its enabling statute

• In determining agency’s compliance, court may consider legislative intent and ends that statute designed to accomplish

• To analyze if agency exceeded scope by acting ultra vires, ask:

o Is the rule appropriate and necessary to fulfill agency’s statutory purpose?

o Does the rule infringe upon any fundamental constitutional rights?

o Is the agency without authority to issue the rule under the separation of powers doctrine?

o Is the rule necessary based on an emergency that requires it?

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Declaratory Judgment Challenge

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Aggrieved person with standing can challenge state agency’s final action may bring declaratory judgment action in state court

• Appropriate where person asserts present and cognizable rights that are affected by the agency action

• Declaratory judgment is an action in civil court in which court declares the rights, duties, or obligations of each party in a present dispute (such as under a contract)

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State Judicial Review of Agency Action

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Appellate court will review the determination of the agency, not the determination of the lower court

Person entitled to judicial review of state agency’s action where person has:

1. Exhausted all remedies

2. Is aggrieved by a final decision in a

3. Contested case before an administrative agency


State courts may set aside state agency’s rule if court concludes that the rule:

1. Lacks statutory authority, or

2. Conflicts with state law; or

3. Is arbitrary or capricious; or

4. Is unsupported by substantial evidence when the record is considered as a whole; or

5. Is improperly promulgated because the agency did not substantially comply with the rulemaking procedures

The standard is “substantial compliance” with rulemaking procedures

"Substantial compliance" means more than minimal compliance but less than strict or absolute compliance

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Federal Judicial Review

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There is a general presumption in favor of judicial review

To avoid review, Agency must prove by CLEAR AND CONVINCING EVIDENCE that Congress did not intend judicial review

APA provisions on judicial review apply unless:

1. Statute precludes it; or

2. A law commits agency action to the discretion of an agency

APA provides right to judicial review of:

1. A legal wrong suffered by a person because of agency action; and

2. An agency action that adversely affects or aggrieves the person within the meaning of a relevant statute

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Standards of Review for Questions of Fact

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Agency determinations regarding evidentiary questions are questions of fact

“Substantial Evidence” Test

--Remote possibility that any evidence present in the written record might have been believed by the person making the factual determinations

--Agency determinations made within the particular agency’s area of expertise will be given significant deference

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Standards of Review for Questions of Law

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If Congress has addressed the issue, then Congressional intent controls.

--When congressional intent behind the statute at issue is vague or difficult to ascertain, the court will assess the agency’s construction of the statute on the basis of reasonableness

If Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute

Rather, if the statute is silent or ambiguous with respect to a specific issue, the question for the court is:

o Whether the agency’s action is based on a permissible construction of the statute?

De novo review of the issue

o Means a hearing by the court as if the action had not previously been heard and as if no decision had been rendered

o Except that all testimony, evidence, and other material from the record of the previous consideration will be considered a part of the record on review

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Judicial Review of Mixed Questions of Fact and Law

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Bifurcation Approach

• Factual portions must meet substantial evidence test

• Legal portions are reviewed de novo

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Other Scope of Review Provisions

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Types of Dispositions upon Judicial Review

--Federal court may affirm, compel, or vacate agency action

Compelling Federal Agency Action

--Court must compel federal agency action when the agency UNLAWFULLY WITHHELD OR UNREASONABLY DELAYED such action

Finding Federal Agency Action Unlawful or Setting it Aside

1. Arbitrary and Capricious Review
--Standard that applies to informal rulemaking proceedings pursuant to APA

--Applies to other informal agency proceedings that are not on the record and beyond APA’s scope

2. Abuse of Discretion
--Agency findings or conclusions that are an abuse of discretion or otherwise not in accordance with law

3. Unconstitutionality
--Findings or conclusions that are contrary to constitutional power (particularly due process)

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Limitations on Judicial Review: Scope

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May not raise on appeal any questions that were not raised before the agency

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Limitations on Judicial Review: Exhaustion of Remedies

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No person entitled to judicial relief for an injury until any statutory administrative remedy has been fully exhausted

Exceptions:

1. No genuine opportunity for adequate relief exists

2. Irreparable injury will result if the complaining party is compelled to pursue administrative remedies;

3. An agency has predetermined an issue and made it clear that the exhaustion of administrative remedies would be futile

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Limitations on Judicial Review: Ripeness

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Claim must be ripe for judicial review:

1. Nature of the Issue to be Litigated
--Are the issues findings of fact, conclusions of law, or a combination of the two?

2. Finality of a Rule or an Agency Action
--Is the rule or action remote and abstract or immediate and definite?

3. Hardship to the Parties
--Do costs exist that cannot be redressed by future judicial review?

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Due Process

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• Provision of a notice and a hearing to a person whose legally protected interest in life, liberty, or property is subject to impairment, infringement, deprivation, or denial by a government agency

• Even in absence of a statutory provision for notice and hearing, a due process right may afford a person a right to notice and hearing from an agency

When Due Process Unavailable
• If agency action is procedural (not adjudicatory) in nature due process does not apply to taking of a person’s liberty or property

• When agency action is adjudicatory and particularly affects a person, procedural due process rights do not apply if no genuine issue of fact exists

---- Even where such an issue of fact exists, no hearing is required when an agency:

1. Lacks discretion in its adjudication of a matter; or

2. Has complete discretion in its adjudication of the matter

When Due Process is Available
--If agency action is adjudicatory and particularly affects a person, due process applies when a genuine issue

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Establishing Due Process Rights

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• To invoke right to a hearing on agency action, must show that the action will deprive you of a protected interest without the constitutionally required level of due process of law

--Once person established a right to due process protection, the level of process (for and timing of the hearing) must be determined

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Scope of Available Due Process Procedures

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• Procedures at an agency hearing must be consistent with certain minimum elements comprising a fair trial

• The range and type of procedures available in a hearing include:

1. Notice of proposed action (being informed of the claims or issues)

2. Description of the basis of an agency action

3. Opportunity to examine the agency’s supporting evidence

4. Opportunity to present evidence, witnesses, and reasons

5. Confrontation and cross-examination of adverse witnesses

6. Impartial decision-maker

7. Decision-maker’s written statement of the supporting evidence and the reasons for its decision; and

8. The right to counsel

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Application of Due Process Procedures in Hearings

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Determining Scope of Procedures for Hearings

--Mathews Factors to consider when determining the type and combination of procedures

1. How significant is the deprivation of the person's constitutional rights?

2. How important is the state's interest in the deprivation?

3. What is the risk of an improper deprivation under existing procedures?

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Record of Hearing

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Due Process requires the development of a record of a hearing for the purpose of subsequent review

--Must contain sufficient information for a court to determine whether any applicable rule of law and procedure were followed within the hearing

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Judicial Review

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• Determine if plaintiff has raised a constitutional interest in life, liberty, or property to which due process applies

• If yes, court determines the level of process due in terms of the proceedings that the agency used, or did not use, which affected the person’s constitutional interest.

• If agency action implicates a party’s constitutional rights, judicial review is available in the absence of an express legal provision for it.

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When Hearing Should Occur

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• When government action may result in immediate adverse effects upon a person, prior notice and a hearing are usually required

• When only property rights are involved, a prior hearing is not required

--Post-deprivation hearing will be sufficient

In certain cases, important government interests (such as in public health—possibly spoiled food) outweigh the need for a hearing before the government takes action

--Post-deprivation hearing will be considered sufficient even where the government takes drastic action

---State’s interest in protecting public safety permitted suspension of driver’s license before hearing

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Liberty Interest

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Statutes can create protected liberty interests

--Parolees have liberty interest derived from state parole statutes that provide them an entitlement to a period of conditional release from incarceration

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Property Interest

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Licenses are property interests

--Hearing should be held before revocation of a license but in cases involving public health and safety, a hearing can be held soon after revocation

--But liquor licenses may be in a suspect class

Real property

--Plaintiff has standing to challenge an administrative action or regulation that impairs his ability to use or develop his real property if:

1. Plaintiff suffered an actual or threatened injury in fact, which may be economic, aesthetic, or recreational

2. The injury may be fairly traced to challenged action (traceability)

3. Injury is likely to be redressed by a favorable decision (redressability)

Government benefits
--Person must demonstrate that they possess a right to the benefit in question
--Attending public school
--Obtaining a license
--Welfare benefits
--Unemployment compensation

A property interest in a specific government benefit constitutes a sufficient interest to qualify for due process when the person has a “legitimate claim of entitlement to i

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Requirements to Bring a Claim for Judicial Review (4)

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Plaintiff must have:

1. Exhausted all administrative remedies

2. Have standing

3. Claim must be ripe (real dispute between real parties over final agency action)

4. It must be a reviewable order (statute does not prohibit appeal or leave the matter to agency discretion)