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Administrative Law Outline Funk Fall 2010

Administrative Law Outline Funk Fall 2010

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Published by Travis M. Clements

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Published by: Travis M. Clements on Sep 26, 2012
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Administrative Law
OutlineFall 2010
What is an agency:
Not congress, the courts, the states, military, or the President.-
Process for formulating, amending, or repealing a rule.
Rule: an agency statement of future effect designed to implement, interpret orprescribe law or policy-
Process for the formulation of an order
Order: whole or part of a final disposition other than rulemaking, but includes licensing
A lawyer employed by an organization represen
ts the organization and must act in the Agency’s
best interest, even to the detriment of certain agency members.-
The lawyer must notify the members of the agency of his responsibility
must identify his client-
“The Public” is not the governmental lawyer’s
client, the client is the employing agency.-
A lawyer can be held responsible for the actions of another lawyer if:
The lawyer supervises (or is an equal with) the unethical lawyer and does not stop him if he knows
The lawyer orders the ethical violation or ratifies it-
Government lawyers have the ability to essentially veto government action by declaring it
“illegal”, so must use that authority very carefully
As a general rule, a lawyer cannot disclose information related to representation of his clientexcept to:
Prevent the client from preventing a crime or fraud
Prevent death or substantial bodily harm
Prevent a substantial financial interest if such interest will be harmed by the clientsillegal or fraudulent action
Secure advice about compliance with the requirement to keep information confidential.
To comply with a court order-
There is a government-lawyer privilege, but the privilege exists between the lawyer and theagency, not an individual.
Violations of law by government employees must be reported to the AG.
Government lawyers are not intended to defend against criminal charges
The lawyer’s representation of any individual is for the benefit of the public.
Rulemaking can be initiated by a statutory command from Congress, through admin staff recommendation, from political pressure from the President, or by a rulemaking petition fromthe public.-
Petitions for Rulemaking
§553(e): each agency shall give an interested person the right to petition for issuance,amendment, or repeal of a rule.
To get an agency to act, you probably need to be able to align your problem with the
agency’s mission, be able to justify your solution in the political climate, and be able to
offer proper analysis to the agency.
You need to convince the agency that the world will be a better place for your rule beingpasses/amended/repealed.
§555(e): Prompt notice shall be given of the denial on whole or part of a writtenapplication, petition, or other request of an interested person made in connection withany agency proceeding and the notice shall be accompanied by brief statement of thegrounds for denial.
An agency cannot ignore a petition for rulemaking
it must promptly givenotice of a denial and state the grounds therefore.
If an agency does not respond properly, the petitioner can seek relief under§706(1), which allows the court to compel agency action withheld orunreasonably delayed.
§551: “Agency Action” includes failure to act.
Failure to act may not be a final action, and courts may be reticent to take jurisdiction over an interlocutory petition.
The court will take interlocutory appeals for failure to act, because the APA§555(b) requires the agency to act in a reasonable time.
Test to compel action:
The time agencies delay must be governed by the
“rule of reason”
Look to the statute giving the agency authority
is there a timetable?
Economic rules can delay longer than rules related to health or humanwelfare.
What else is the agency doing that is competing with the petition fortime and resources?
What interest is prejudiced by the delay?
The agency need not be found to delay with malice, court can compelaction absent malice.
Look to the same issues that apply to “speedy trial” considerations
(short test)
Once an agency denies a petition for rulemaking, that denial can bereviewed by a court.
The scope of review of denial of a rulemaking petition is very narrowunder the APA
such review is limited to determining whether theagency adequately explained the facts and policy concerns it reliedupon, and that those facts have some basis in the record.
(SIDE NOTE): An agency’s refusal to bring an ENFORCEMENT action is
not generally subject to judicial review.
Refusals to promulgate rules are susceptible to judicial review, thoughsuch review is extremely limited and highly deferential.
Although deferential, the agency’s action or inaction must still
conform to the authorizing statute.
The agency must offer a reasoned explanation, not a meredenial.
If it offers a mere denial, the agency is action in a manner that is
“arbitrary, capricious, … or not otherwise in accordance withlaw.”
Under the “arbitrary and capricious” standard of review:
The agency is obligated to “examine the relevant data and
articulate a satisfactory explanation for its action including a
‘rational connection between the facts found and the choicemade.’”
An order to institute rulemaking proceedings is rarely an appropriateremedy
typically the court merely remands to the agency toreconsider and determine if circumstances have changed andrulemaking is now appropriate.-
Procedures in Rulemaking
The typical requirements are notice and opportunity to comment §553. The first
step is to determine whether or not these “requirements” are required.
§553 does not, by its terms, apply to: military or foreign affairs functions, or
matters “relating to agency management or personnel or to public property,loans, grants, benefits, or contracts.”
The focus of the APA is on protecting individual rights and for protection forstatutory rights.
Agencies who are otherwise immune from the requirements of notice andcomment have voluntarily subjected themselves to the requirements.
Other statutes may cause otherwise exempt agencies to be subject to therequirements.
Even when NOT subject to §553, agencies are still subject to §552 (FOIA) andmust publish in the Federal Register changes being made
may also giveaffected persons actual notice if they choose not to publish in the Red. Reg.

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