American Jurispurdence - Administrative Law

ADMINISTRATIVE LAW
by
Joanne Constantino, J.D., Kathy E. Hinck, J.D., Kristin C.McCarthy, J.D., Melissa K.
Stull, J.D.
TOPIC SCOPE
Scope of Topic:
This topic is a broad view of administrative law as it impacts all federal and state
agencies. It covers the general aspects and principles of the law relating to the
jurisdiction, powers, functions, and procedures of federal, state, and local governmental
bodies, other than the courts and legislatures. It considers these matters with regard to the
investigatory, legislative, rulemaking, determinative, and adjudicatory functions of these
bodies and agencies. It includes a basic treatment of the federal Administrative
Procedure Act and the 1961 and 1981 versions of the Model State Administrative
Procedure Act. This topic also discusses the creation, membership, and liabilities of
administrative agencies, and administrative and court review of administrative action,
decisions, and orders.
Federal Aspects:
The federal Administrative Procedure Act generally governs federal agencies. Other
federal statutes control aspects of judicial review of agency action, such as judicial
procedure and remedies. In addition, there are federal statutes governing advice and
assistance of the Attorney General to agencies; assessment of fees by federal agencies;
and publication of agency documents. The Freedom of Information Act (5 USCS §
552), which discusses what information an agency must disseminate to the public, and
the Privacy Act of 1974 (5 USCS § 552a), which governs maintenance of, disclosure of,
and access to, agency records on individual citizens or residents, are discussed in 66 Am
Jur 2d, Records and Recording Laws. (Generally, see "Federal Legislation," infra, for
USCS citations.)
Treated Elsewhere:
Appeal by public boards from judgments, orders or decrees, see 4 Am Jur 2d, Appeal
and Error § 233 ; appeal bonds requiredof such boards, see 4 Am Jur 2d, Appeal and
Error § 331
Copyright © 1998, West Group

Appeal to United States Supreme Court: impropriety of, from state administrative
agency decision, see 32A Am Jur 2d, Federal Practice and Procedure § 622 ; failure to
appeal toadministrative agency as barring,see 32A Am Jur 2d, Federal Practice and
Procedure § 682
Arbitration, generally, see 5 Am Jur 2d, Arbitration and Award
Blasting damage, prior administrative action as affecting availability of judicial relief for,
see 31A Am Jur 2d, Explosions and Explosives § 155
Constitutional provisions, administrative construction of, see 16 Am Jur 2d,
Constitutional Law § 127
Corporations, immunity from suit when created as state agencies, see 72 Am Jur 2d,
States, Territories, and Dependencies §§ 105-107
Due process requirements: as affecting state and federal agencies, see 16A Am Jur 2d,
Constitutional Law §§ 822 , 823 ; as met byhearing before board or commission or
administrative officer ortribunal, see 16A Am Jur 2d, Constitutional Law § 854
;requirements of fair and impartial tribunal as applicable inadministrative hearings, see
16A Am Jur 2d, Constitutional Law § 855
Equal protection requirements, application to state agencies, see 16A Am Jur 2d,
Estoppel as affecting governmental agencies, boards or commissions, see 28 Am Jur 2d,
Estoppel and Waiver § 133
Federal corporations as agencies of federal government, see 36Am Jur 2d, Foreign
Corporations § 115
Federal diversity jurisdiction, citizenship of federal and state agencies and officers for
purposes of, see 32A Am Jur 2d, Federal Practice and Procedure §§ 1417 , 1419 ,
1424-1427
Finality: in administrative proceedings, see 32A Am Jur 2d, Federal Practice and
Procedure § 654 ; remand to nonjudicialbody as affecting,see 32A Am Jur 2d, Federal
Practice and Procedure § 633
Immunity of school boards, commissions, and similar agencies or authorities, see 57 Am
Jur 2d, Municipal, County, State, and School Tort Liability §§ 42 et seq., 67 et seq.
Initiative or referendum, judicial review of administrative determinations as to
sufficiency of petition for, see 42 Am Jur2d, Initiative and Referendum § 53
Injunction: against acts or orders of administrative bodies, see 42 Am Jur 2d,
Injunctions §§ 175 et seq., 186 et seq., 193,194 et seq.; exhaustion of administrative
remedies as prerequisiteto issuance of, see 42 Am Jur 2d, Injunctions § 47
Judicial notice of rules, regulations, and orders of administrative agencies, see 29 Am Jur
2d, Evidence § 42
Judiciary, distinction between administrative agencies and, generally, see 16 Am Jur 2d,
Libel or slander, privilege exempting responsibility for defamatory statements in judicial
proceedings as extending to administrative proceedings, see 50 Am Jur 2d, Libel and
Slander § 234
Licenses and permits, aspects outside coverage of administrative procedure acts, see 51
Am Jur 2d, Licenses and Permits
Negligence based on violation of administrative regulation: generally, see 57A Am Jur
2d, Negligence §§ 799 et seq.; contributory orcomparative negligence as defense to, see
57A Am Jur 2d, Negligence §§ 924 , 940 , 1174 ; assumption of risk as barringrecovery,
under rule of Restatement of Torts 2d, for,see 57A Am Jur 2d, Negligence § 832 ;
excuse or justificationas affecting determination of, see 57A Am Jur 2d, Negligence §
753
Obscene matter, validity of legislation authorizing in first instance administrative

agencies to protect public against, see 50Am Jur 2d, Lewdness, Indecency, and
Obscenity § 14
Obstruction of justice, interference with administrative proceedings as, see 58 Am Jur 2d,
Obstructing Justice §§ 28 et seq.
Particular federal administrative bodies and regulation thereby, generally, see applicable
articles, as, for example: CivilService Commission, see 15A Am Jur 2d, Civil Service
§§ 8 etseq.; Environmental Protection Agency,see 61A Am Jur 2d, Pollution Control ;
Equal Employment Opportunity Commission, see 45A, 45B Am Jur 2d, Job
Discrimination ; Federal Aviation Administration and the Civil Aeronautics Board, see 8
AmJur 2d, Aviation ; Federal Housing Administration, see 40 Am Jur2d, Housing
Laws and Urban Redevelopment § 13 ; Federal Energy Regulatory Commission, see 64
Am Jur 2d, Public Utilities §§ 292 et seq.; Federal Trade Commission,see 17 Am Jur 2d,
Consumer and Borrower Protection §§ 185 etseq.; Immigration and Naturalization
Service, see 3A Am Jur 2d, Aliens and Citizens §§ 6 et seq.; Internal Revenue
Service,see 33-34A Am Jur 2d, Federal Taxation; InterstateCommerce Commission, see
13 Am Jur 2d, Carriers §§ 33 et seq.; National Labor Relations Board, see 48, 48A Am
Jur 2d, Labor and Labor Relations ; Nuclear Regulatory Commission, see 6 Am Jur 2d,
Atomic Energy ; Patent and Trademark Office, see 60 Am Jur 2d, Patents ; Securities
and Exchange Commission, see 69 Am Jur 2d, Securities Regulation – Federal ;
Veterans' Administration, see 77 Am Jur 2d, Veterans and Veterans' Laws §§ 24 et seq.
Privileges and immunities of state agencies as not within protection of Fourteenth
Amendment of Federal Constitution, see 16A Am Jur 2d, Constitutional Law § 721
Public officers and employees, generally, see 63A Am Jur 2d, Public Officers and
Employees
Public records, inspection and disclosure of, see 66 Am Jur2d, Records and Recording
Laws
State or local administrative authorities and regulation thereby, generally, with regard to:
drainage and sewage, see 25Am Jur 2d, Drains and Drainage Districts §§ 6 et seq.;
food,see 35 Am Jur 2d, Food § 5 ; highways, see 39 Am Jur 2d, Highways, Streets, and
Bridges §§ 13 et seq.; hotels,restaurants, or similar places, see 40 Am Jur 2d, Hotels,
Motels, and Restaurants §§ 30 , 43 ; housing, see 40 Am Jur 2d, Housing Laws and
Urban Redevelopment §§ 9 et seq.; insurance, see 43Am Jur 2d, Insurance §§ 22 et seq.;
pollution control, see 61AAm Jur 2d, Pollution Control § 6 ; public utilities,see 64 Am
Jur 2d, Public Utilities §§ 9 et seq., 230 et seq.;schools, see 68 Am Jur 2d, Schools §§
52 et seq.; securities,see 69 Am Jur 2d, Securities Regulation – State §§ 153 et seq.;
workers' compensation, see 82 Am Jur 2d, Workers' Compensation §§ 55-58 ; zoning,
see 83 Am Jur 2d, Zoning and Planning §§ 709 et seq.
Will, prosecution of or intervention in administrative proceedings as election to accept or
renounce provisions of, see 80 Am Jur 2d, Wills § 1630
Wrongful discharge claims as affected by prior administrative decisions, see 82 Am Jur
2d, Wrongful Discharge § 202
RESEARCH REFERENCES
Annotation References:
ALR Digests: Administrative Law
ALR Index: Administrative Law
Practice References:
1 Federal Procedural Forms, L Ed, Actions in District Court §§ 1:91, 1:392, 1:872,

1:873; 1A Federal Procedural Forms, L Ed, Actions in District Court §§ 1:2191, 1:2192,
1:2194, 1:2252, 1:2255, 1:2257; 1A Federal Procedural Forms, L Ed, Administrative
Procedure; 2 Federal Procedural Forms, L Ed, Appeal, Certiorari, and Review §§ 3:474,
3:521, 3:527, 3:1373, 3:1376; 6A Federal Procedural Forms, L Ed, Contempt §§ 16:76,
16:80; 8 Federal Procedural Forms, L Ed, Declaratory Judgments §§ 21:21, 21:22,
21:31, 21:35; 9 Federal Procedural Forms, L Ed, Environmental Protection §§
29:31-29:47; 9 Federal Procedural Forms, L Ed, Foods, Drugs, and Cosmetics § 31:68;
10 Federal Procedural Forms, L Ed, Habeas Corpus §§ 36:131, 36:139
1A Am Jur Pl & Pr Forms (Rev), Administrative Law ; 2 Am Jur Pl & Pr Forms (Rev),
Appeal and Error, Forms 1180, 1241-1249; 11A Am Jur Pl & Pr Forms (Rev), Federal
Practice and Procedure, Forms 1221 et seq.
19 Am Jur POF2d 435, Lineups and Showups: Admissibility and Effect of Pretrial
Identification; 40 Am Jur POF2d 517, Suspension or Revocation of Mariner's License,
Certificate, or Document
19 Am Jur Trials 123, Defense on Charge of Driving While Intoxicated § 9
Federal Legislation:
5 USCS § 302 (delegation of agency authority)
5 USCS § 500 (administrative practice; general provisions)
5 USCS §§ 551 et seq. (Administrative Procedure Act, generally)
5 USCS §§ 552b, 557(d) (Government in the Sunshine Act)
5 USCS §§ 553, 601 et seq. (rule making)
5 USCS § 554 (adjudications)
5 USCS § 555 (ancillary matters)
5 USCS § 556 (hearings)
5 USCS § 557 (administrative decisions and agency review thereof)
5 USCS § 558 (imposition of sanctions)
5 USCS §§ 571-576 (Administrative Conference of the United States)
5 USCS §§ 701-703; 28 USCS §§ 1331, 1332, 1361, 1391, 1406, 1631, 2341, 2342,
2343 (judicial review of agency action, including jurisdiction and venue)
5 USCS §§ 704, 706 (scope of review)
5 USCS §§ 703, 705, 706; 28 USCS §§ 2112, 2344-2350 (procedure on judicial
review)
5 USCS §§ 901 et seq. (executive reorganization)
5 USCS § 3105 (appointment of Administrative Law Judges)
5 USCS § 7521 (discipline of Administrative Law Judges)
7 USCS §§ 3804, 3805 (swine health protection; permits to operate garbage treatment
facilities; civil penalties for violation)
8 USCS § 1182 (aliens excluded from admission to the United States)
18 USCS § 207 (disqualification of hearing officers)
18 USCS § 1905 (trade secrets)
18 USCS § 2515 (prohibition of use as evidence of intercepted communications)
18 USCS § 3500 (demands for production of statements and reports of witnesses)
18 USCS § 3504 (litigation concerning sources of evidence)
18 USCS §§ 6002, 6004 (immunity in administrative investigation)
28 USCS §§ 512, 514 (Attorney General advice and assistance to agencies)
28 USCS § 1291 (appeal of order enforcing administrative subpoena)
28 USCS § 1651 (writs)
28 USCS §§ 2201, 2202 (judicial remedies)
28 USCS §§ 2241 et seq. (habeas corpus)
28 USCS §§ 2341-2343 (review of orders of certain administrative agencies; jurisdiction

and venue)
28 USCS § 2412(d) (recovery of attorneys' fees under Equal Access to Justice Act)
31 USCS § 9701 (assessment of fees by federal agencies)
39 USCS § 3628 (judicial review of certain decisions of the Board of Governors of the
United States Postal Service)
42 USCS §§ 7604, 7607 (citizen suits, administrative proceedings and judicial review
with respect to air pollution control)
44 USCS §§ 1501 et seq. (publication of agency documents in the Federal Register and
the Code of Federal Regulations)
USCS Rules of Appellate Procedure, Rules 3, 4 (appeal as of right)
USCS Rules of Appellate Procedure, Rules 15-20 (review and enforcement of orders of
administrative agencies, boards, commissions and officers)
USCS Rules of Appellate Procedure, Rules 33, 40, 41, 55 (general provisions)
USCS Rules of Civil Procedure, Rules 3, 5 (commencement of action; service and filing
of pleadings and other papers)
USCS Rules of Civil Procedure, Rules 8, 10, 12, 15, 16 (pleadings and motions)
USCS Rules of Civil Procedure, Rule 24 (intervention)
USCS Rules of Civil Procedure, Rule 54-63 (judgments)
Administrative Rules and Regulations:

1 CFR § 305.69-8 (rulemaking)
1 CFR § 305.71-6 (recommendation of Administrative Conference on public
participation in rulemaking)
1 CFR § 305.74-4 (evidence used in determining factual basis of adopted rules)
1 CFR § 305.77-3 (public inspection file)
1 CFR § 305.85-5 (negotiated rulemaking)
1 CFR § 305.92-1 (exemption from rulemaking of procedural rules)
1 CFR § 305.92-2 (recommendation of Administrative Conference on policy statements)
20 CFR § 404.923 (provisions for expedited appeal of decisions under Social Security
Act)
Insta-Cite(R):
Cases and annotations referred to herein can be further researched through the
Insta-Cite(R) citation verification service. Use Insta-Cite to check citations for Bluebook
styling, parallel references, prior and later history, and annotation references.
I. INTRODUCTION [1-23]
A. In General [1-14]
Research References
5 USCS §§ 591-596; 28 USCS § 514
1 CFR § 301.1
ALR Digests: Administrative Law §§ 1-3
1. Overview [1-3]
§ 1 Generally; definition of "administrative law"
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Go to Parallel Reference Table
The term "administrative law," while well recognized by judicial and other authorities,
has no authoritative definition. 1 Administrative law is concerned with the legal
problems arising out of the existence of agencies which combine in a single entity
legislative, executive, and judicial powers which were traditionally kept separate. 2 It
is also generally concerned with the problems of administrative regulation, rather than
with those of administrative management. 3
Generally speaking, administrative law deals with officers and agencies exercising
delegated powers and not with the exercise of the constitutional powers of the executive.
4 However, the chief executive as well as other executive officers may be made a
delegate of powers by the legislature and the exercise of such powers by the President or
Governor is within the scope of administrative law. 5
 Caution: This article attempts to show what the courts have done in situations
frequently presented in the establishment and working out of the administrative
process, apart from peculiarities of statutes and policies affecting particular agencies.
Whether such statements, or a limited or contrary rule, apply in regard to particular
agencies can ultimately be determined only by a study of such statutes and the cases
applying them. 6
Footnotes
Footnote 1. Harriman, The Development of Administrative Law in the United States. 25

Yale LJ 658 (1916).
Footnote 2. Mitchell v Wright (CA5 Ala) 154 F2d 924, cert den 329 US 733, 91 L Ed
633, 67 S Ct 96 (concurring opinion); Handlon v Belleville, 4 NJ 99, 71 A2d 624, 16
ALR2d 1118; Floyd v Department of Labor & Industries, 44 Wash 2d 560, 269 P2d 563.
Footnote 3. See Dickinson, Administrative Regulation and the Judicial Process. 89 U of

Pa L Rev 1052 (1941).
Footnote 4. State ex rel. Hardie v Coleman, 115 Fla 119, 155 So 129, 92 ALR 988.
Law Reviews: Schoenbrod, Separation of Powers and the Powers That Be: The
Constitutional Purposes of the Delegation Doctrine. 36 Am U LR 355 (Winter, 1987).
Footnote 5. § 33.
Footnote 6. See, for example, Floyd v Department of Labor & Industries, 44 Wash 2d

560, 269 P2d 563, stating that under the doctrine of stare decisis, it would be impossible
for a court to set a precedent to be applied to all administrative agencies in a case dealing
with an appeal from a decision of only one administrative body.
§ 2 Concern with private and public rights
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Sometimes the language of "private rights" is used in the administrative context. 7

However, this language may simply signify a policy relevant to administrative law
encompassing both public and private rights. 8 Because administrative agencies serve in
part to effectuate the constitutional obligation of the executive branch to see that the laws
are faithfully executed, the public interest is an added dimension in every administrative
proceeding. 9
In addition, the public rights doctrine impacts administrative agencies. In certain areas,
the principle applies that particular administrative agencies are created to protect the
public interest and not to vindicate private rights. Sometimes the distinction is made
between legal rights and duties enforced through the administrative process and those left
to enforcement on private initiative through the legal system. 10 In essence, the public
rights doctrine reflects simply a pragmatic understanding that when Congress selects a
quasi-judicial or administrative method of resolving matters that could be conclusively
determined by the Executive and Legislative branches, the danger of encroaching on the
judicial powers is less than when private rights which are normally within the purview of
the judiciary, are relegated as an initial matter to administrative adjudication. 11
Where private, common law rights are at stake, the courts' examination of the
congressional attempt to control the manner in which those rights are adjudicated will be
searching. 12 However, Congress may create a private right that is so closely
integrated with a public regulatory scheme as to be a matter for agency resolution with
limited involvement by the federal judiciary. 13 These separation of powers
concerns 14 are diminished where parties are not required to, but merely have the option
of, proceeding in an administrative forum. 15 When an agency refuses to act, it
generally does not exercise its coercive power over an individual's liberty or property
rights, and thus does not infringe upon areas that courts often are called upon to protect.
16
Footnotes
Footnote 7. Re St. Joseph Lead Co. (Mo) 352 SW2d 656.
Footnote 8. Re St. Joseph Lead Co. (Mo) 352 SW2d 656.
Footnote 9. Hackensack v Winner, 82 NJ 1, 410 A2d 1146, 104 BNA LRRM 2259.
Footnote 10. Garner v Teamsters, Chauffeurs & Helpers Local Union, 346 US 485, 98 L
Ed 228, 74 S Ct 161, 33 BNA LRRM 2218, 24 CCH LC ¶ 68020.
Footnote 11. Commodity Futures Trading Com. v Schor, 478 US 833, 92 L Ed 2d 675,
106 S Ct 3245 (among conflicting authorities on other grounds noted in Mokal v
Derwinski, 1 Vet App 12) and (among conflicting authorities on other grounds noted in
Re Davis (CA11 Ga) 899 F2d 1136, 23 CBC2d 555, CCH Bankr L Rptr ¶ 73369, reh
den, en banc (CA11 Ga) 908 F2d 980 and reh den, en banc (CA11 Ga) 908 F2d 980 and
cert den 498 US 981, 112 L Ed 2d 522, 111 S Ct 510); Thomas v Union Carbide
Agricultural Products Co., 473 US 568, 87 L Ed 2d 409, 105 S Ct 3325, 22 Envt Rep
Cas 2033, 15 ELR 20698 (among conflicting authorities on other grounds noted in Re
Davis (CA11 Ga) 899 F2d 1136, 23 CBC2d 555, CCH Bankr L Rptr ¶ 73369, reh den, en
banc (CA11 Ga) 908 F2d 980 and reh den, en banc (CA11 Ga) 908 F2d 980 and cert den
498 US 981, 112 L Ed 2d 522, 111 S Ct 510).
Law Reviews: Fallon, Of Legislative Courts, Administrative Agencies, and Article III.
101 Harv L Rev 916 (March, 1988).
Levinson, The Public Law/Private Law Distinction in the Courts. 57 Geo Wash L Rev
1579 (August, 1989).
cert den 498 US 981, 112 L Ed 2d 522, 111 S Ct 510).
Footnote 13. Thomas v Union Carbide Agricultural Products Co., 473 US 568, 87 L Ed
2d 409, 105 S Ct 3325, 22 Envt Rep Cas 2033, 15 ELR 20698 (among conflicting
authorities on other grounds noted in Re Davis (CA11 Ga) 899 F2d 1136, 23 CBC2d 555,
CCH Bankr L Rptr ¶ 73369, reh den, en banc (CA11 Ga) 908 F2d 980 and reh den, en
banc (CA11 Ga) 908 F2d 980 and cert den 498 US 981, 112 L Ed 2d 522, 111 S Ct
510).
Footnote 14. As to effect of separation of powers on administrative agencies, generally,

see § 68.
cert den 498 US 981, 112 L Ed 2d 522, 111 S Ct 510).
Footnote 16. Heckler v Chaney, 470 US 821, 84 L Ed 2d 714, 105 S Ct 1649, 15 ELR
20335.
§ 3 Factors in development of administrative law
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Both administrative agencies and the administrative law resulting from them proceed
from the increased functions of our various governments, 17 the complexity of our
modern social, economic, and industrial systems, 18 the inability of the legislatures 19
or the courts 20 to perform these functions directly, the necessity for constant
supervision by experts and specialists and the experience acquired by such specialists in
difficult and complicated fields, 21 and the flexibility which is the mark of the
administrative process in contrast to either the legislative or judicial process. 22
Administrative law resulted from the increased functions of government, the recent
tremendous growth in administrative agencies, and the fact that the agencies created in
this period of growth were much more than conventional administrative officials such as
had existed under earlier legislation, 23 but, with their extensive investigative, 24
rulemaking, 25 and adjudicating 26 powers, represented a fusion of different powers of
government. 27 Administrative law originated in the development of constitutional
perimeters to circumscribe the administrative process. 28 Later, these constitutional
limitations were codified by statute, in such acts as the federal Administrative Procedure
Act, 29 and the State Administrative Procedure Act. 30
Footnotes
Footnote 17. Morgan v United States, 304 US 1, 82 L Ed 1129, 58 S Ct 773, 58 S Ct

999, 1 CCH LC ¶ 17033, 1 CCH LC ¶ 17037; Bowen v Department of Social Secur., 14
Wash 2d 148, 127 P2d 682.
As to administrative agencies, generally, see §§ 24 et seq.
Footnote 18. United States v Storer Broadcasting Co., 351 US 192, 100 L Ed 1081, 76
S Ct 763, 1 Media L R 1983; Handlon v Belleville, 4 NJ 99, 71 A2d 624, 16 ALR2d
1118.
Footnote 19. United States ex rel. Chapman v Federal Power Com., 345 US 153, 97 L
Ed 918, 73 S Ct 609; Pue v Hood, 222 NC 310, 22 SE2d 896; Brown v Humble Oil &
Refining Co., 126 Tex 296, 83 SW2d 935, 99 ALR 1107, reh overr 126 Tex 314, 87
SW2d 1069, 101 ALR 1393.
Footnote 20. Handlon v Belleville, 4 NJ 99, 71 A2d 624, 16 ALR2d 1118; Ex parte
Anderson, 191 Or 409, 229 P2d 633, 29 ALR2d 1051, reh den 191 Or 452, 230 P2d 770,
29 ALR2d 1073.
S Ct 763, 1 Media L R 1983; Ex parte Anderson, 191 Or 409, 229 P2d 633, 29 ALR2d
1051, reh den 191 Or 452, 230 P2d 770, 29 ALR2d 1073; Robinson v Olzendam, 38
Wash 2d 30, 227 P2d 732.
One of the purposes which led to the creation of administrative boards was to have
decisions based upon evidential facts under the particular statute made by experienced
officials with an adequate appreciation of the complexities of the subject entrusted to

their administration. International Union of Electrical, etc. v NLRB, 366 US 667, 6 L
Ed 2d 592, 81 S Ct 1285, 48 BNA LRRM 2210, 42 CCH LC ¶ 16966.
Footnote 22. Barsky v Board of Regents, 347 US 442, 98 L Ed 829, 74 S Ct 650; Ward
v Scott, 11 NJ 117, 93 A2d 385; State ex rel. Kappa Sigma Bldg. Ass'n v Bareis, 226
Wis 229, 276 NW 317, 113 ALR 985.
Footnote 23. Commonwealth v Anheuser-Busch, Inc., 181 Va 678, 26 SE2d 94.
Footnote 24. As to investigations, see §§ 122 et seq.
Footnote 25. As to rules and rulemaking, see §§ 152 et seq.
Footnote 26. As to adjudications, see § 261 et seq.
Footnote 27. § 1.
Footnote 28. Virginia Electric & Power Co. v Public Service Com., 162 W Va 202, 248
SE2d 322.
Footnote 29. As to the federal Administrative Procedure Act, generally, see §§ 15 et seq.
Footnote 30. Virginia Electric & Power Co. v Public Service Com., 162 W Va 202, 248
SE2d 322.
As to the Model State Administrative Procedure Act, generally, see §§ 18 et seq.
2. Relation of Administrative Process to Legal Process [4-6]
§ 4 Generally
View Entire Section

The administrative process has had a different development and pursues somewhat
different ways from those of courts. 31 Administrative agencies belong to a different
branch of government than judicial courts. 32 They are separately created and exercise
executive power in administering legislative authority delegated to them by statute. 33
This is not to say there are not strong similarities between administrative agencies and
judicial tribunals. The power exercised by administrative agencies, having legislative
and executive as well as judicial characteristics, has been termed "quasi-judicial" when it
takes the form of adjudication in contested cases. 34 Much of the jurisdiction formerly
residing in the courts has been transferred to administrative tribunals, and much new
jurisdiction involving private rights and penal consequences has been vested in them
rather than in the courts. 35 The administrative system substitutes administrative
agencies for courts in making many determinations in the establishment and definition of
individual rights. 36 However, differences in the origin and function of
administrative agencies and courts prevent the wholesale transplanting of the rules of
procedure, trial, and review which have evolved from the history and experience of the
courts. 37 Nevertheless, administrative proceedings may not be conducted so as to
violate fundamental rules of justice or permit informalities to prejudice the rights of
parties. 38 Administrative procedure is generally simpler, less formal and less technical
than judicial procedure. 39 In general, strict rules of evidence do not apply to
administrative proceedings. 40 In addition, the right to jury trial in suits at common law
preserved by the Seventh Amendment 41 is generally inapplicable in administrative
proceedings. 42
Footnotes
Footnote 31. United States v Morgan, 313 US 409, 85 L Ed 1429, 61 S Ct 999, reh den
314 US 704, 86 L Ed 565, 62 S Ct 52.
As to factors in the development of administrative law, see § 3.
As to administrative agencies, generally, see §§ 24 et seq.
As to administrative adjudication, generally, see §§ 261 et seq.
Footnote 35. Melvin v Pence, 76 US App DC 154, 130 F2d 423, 143 ALR 149.
Footnote 36. FTC v National Lead Co., 352 US 419, 1 L Ed 2d 438, 77 S Ct 502; State
ex rel. Williams v Whitman, 116 Fla 198, 156 So 705, 95 ALR 1416; Benedict v Board
of Police Pension Fund Com'rs, 35 Wash 2d 465, 214 P2d 171, 27 ALR2d 992.
Law Reviews: Schwartz, Fashioning an Administrative Law System. 40 Admin L Rev

415 (Summer, 1988).
Footnote 37. § 262.
Footnote 38. Dragan v Connecticut Medical Examining Bd., 24 Conn App 662, 591 A2d
150, app gr 220 Conn 901, 593 A2d 967, affd 223 Conn 618, 613 A2d 739.
Footnote 39. Foley v Metropolitan Sanitary Dist. (1st Dist) 213 Ill App 3d 344, 157 Ill
Dec 514, 572 NE2d 978, app den 141 Ill 2d 539, 162 Ill Dec 486, 580 NE2d 112; Ruffin
v Clinton (Mo App) 849 SW2d 108.
Footnote 41. US Const, Amend 7.
Footnote 42. Pernell v Southall Realty 416 US 363, 40 L Ed 2d 198, 94 S Ct 1723 (not

followed on other grounds by Vinson v Hamilton (Alaska) 854 P2d 733); Curtis v
Loether 415 US 189, 39 L Ed 2d 260, 94 S Ct 1005, 18 FR Serv 2d 189.
§ 5 Advantages of administrative process
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One of the purposes of administrative remedies is to enable parties to resolve their

disputes in a less cumbersome and less expensive manner than is normally encountered at
a trial in court. 43 Administrative proceedings operate to the advantage, not only of the
litigants, but also of the courts which are thereby relieved of some matters on their
dockets. 44
In addition, by the administrative device, advantages are gained which are not procurable
by the judicial process, including preventive action and decisions which persons can
procure in advance of action. 45 The constant process of trial and error, on a wider
and fuller scale than a single adversary litigation permits, differentiates perhaps more
than anything else the administrative from the judicial process. 46 Moreover, particular
administrative agencies are better equipped than courts, by specialization, by insight
through experience, and by more flexible procedure to ascertain and interpret the
circumstances underlying legal issues. 47 However, the United States Supreme Court
has repeatedly emphasized in regard to fundamental rights that judicial action possesses a
degree of security superior to administrative action. 48
Footnotes
Footnote 43. Buras v Board of Trustees (La) 367 So 2d 849.
Footnote 44. Buras v Board of Trustees (La App 4th Cir) 360 So 2d 572, revd on other
grounds (La) 367 So 2d 849.
Footnote 45. Guiseppi v Walling (CA2) 144 F2d 608, 8 CCH LC ¶ 62243, 155 ALR
761, affd 324 US 244, 89 L Ed 921, 65 S Ct 605, 9 CCH LC ¶ 51195.
Footnote 46. NLRB v Seven-Up Bottling Co., 344 US 344, 97 L Ed 377, 73 S Ct 287,
31 BNA LRRM 2237, 22 CCH LC ¶ 67329.
Footnote 47. United States v Western P. R. Co., 352 US 59, 1 L Ed 2d 126, 77 S Ct

161; Inland Navigation Co. v Chambers, 202 Or 339, 274 P2d 104; Wall v Fenner, 76 SD
252, 76 NW2d 722.
Footnote 48. Crowell v Benson, 285 US 22, 76 L Ed 598, 52 S Ct 285 (ovrld on other
grounds by Director, Office of Workers' Compensation Programs, etc. v Perini North
River Assoc., 459 US 297, 74 L Ed 2d 465, 103 S Ct 634); Ng Fung Ho v White, 259
US 276, 66 L Ed 938, 42 S Ct 492.

§ 6 Collaboration of administrative agencies and courts
View Entire Section

Despite the differences between the administrative and judicial processes, they are to be
deemed collaborative instrumentalities of justice. 49 In this regard, it has been said
that collaboration of judicial power and function with the administrative process is a
necessary part of today's legal system. 50 Courts, in actions brought before them, may
call to their aid the appropriate administrative agency on questions within its
administrative competence. 51
Many statutes in regulating economic enterprise have divided the duty of enforcement
between courts and administrative agencies. But there is the greatest variety in the
manner in which this responsibility is distributed; under some statutes the administrative
process is teamed with the judicial process and the authority of court and agency is
intertwined, 52 and in some instances an administrative finding is a statutory
prerequisite to the bringing of a lawsuit. 53
Footnotes
Footnote 49. United States v Ruzicka, 329 US 287, 91 L Ed 290, 67 S Ct 207; S. S. W.,
Inc. v Air Transport Ass'n, 89 US App DC 273, 191 F2d 658, cert den 343 US 955, 96 L
Ed 1355, 72 S Ct 1049.
Footnote 50. Walling v Benson (CA8 Mo) 137 F2d 501, 7 CCH LC ¶ 61741, 149 ALR
186, cert den 320 US 791, 88 L Ed 476, 64 S Ct 206.
Footnote 51. See FTC v Cement Institute, 333 US 683, 92 L Ed 1010, 68 S Ct 793, reh
den 334 US 839, 92 L Ed 1764, 68 S Ct 1492.
Footnote 52. United States v Ruzicka, 329 US 287, 91 L Ed 290, 67 S Ct 207; Palmer v
Massachusetts, 308 US 79, 84 L Ed 93, 60 S Ct 34.
Footnote 53. Ewing v Mytinger & Casselberry, Inc., 339 US 594, 94 L Ed 1088, 70 S
Ct 870, reh den 340 US 857, 95 L Ed 627, 71 S Ct 69.
3. Role of Attorney General in Advising Administrative Agencies [7-11]
§ 7 Generally
View Entire Section

By statute, 54 the head of an executive department may require the opinion of the
Attorney General of the United States on questions of law arising in the administration of
that executive department. The Attorney General's advice is confined to questions of law:
55 no opinions on factual issues will be given, 56 nor will the Attorney General
investigate disputed facts or the evidence and make findings of fact on which his opinion
is to be based. 57 A request for an opinion must indicate that the United States has an
interest in the inquiry, 58 must specifically formulate the question of law to be answered
and contain a statement of the material facts, 59 and must contain an assurance that those
facts are true. 60
Footnotes
Footnote 54. 28 USCS § 512.
Footnote 55. 25 Op Atty Gen 584 [1906].
Footnote 56. 28 Op Atty Gen 47, 369, 557 [1909, 1911].
Footnote 57. 3 Op Atty Gen 1 [1835]; 20 Op Atty Gen 640 [1893]; 28 Op Atty Gen 218
[1910].
Footnote 59. 16 Op Atty Gen 94 [1878]; 39 Op Atty Gen 425 [1940].
§ 8 Who may request opinion
View Entire Section

Because only department heads may request opinions, 61 subordinate government

officials requesting opinions must do so through their department heads. 62 Opinions
will not be rendered for–
–the legislative department. 63
–the courts. 64
–the Department of Justice. 65
–the regents of the Smithsonian Institution. 66

–local officers. 67
–particular government employees. 68
–individuals seeking advice on claims against the government. 69
Footnotes
Footnote 61. § 7.
Footnote 62. 21 Op Atty Gen 174, 186 [1895].
Footnote 63. 18 Op Atty Gen 87, 107 [1884, 1885].
Footnote 65. 21 Op Atty Gen 6, 133 [1894, 1895].
§ 9 Subject matter of opinion
View Entire Section

The Attorney General may render opinions only on questions of law. 70 Opinions will
not be rendered on–
–moot or hypothetical questions. 71
–questions involving payment of money, 72 unless both general and important. 73
–questions of administrative discretion or policy. 74
–matters not arising from the administration of the department concerned, 75 or which
have been decided and are no longer pending. 76
–judicial questions. 77
–questions dealing with the effect or interpretation of pending legislation or regulations.

78
Footnotes
Footnote 70. § 7.
Footnote 71. 27 Op Atty Gen 37, 49 [1908]; 28 Op Atty Gen 129 [1909, 1910]; 28 Op
Atty Gen 534 [1910]; 37 Op Atty Gen 483 [1934].
Footnote 72. 21 Op Atty Gen 181, 224, 402 [1894, 1895, 1896]; 21 Op Atty Gen 530
[1897]; 22 Op Atty Gen 413 [1899]; 23 Op Atty Gen 1, 431, 468 [1899, 1901]; 24 Op
Atty Gen 85, 553 [1902]; 23 Op Atty Gen 586 [1909].
Footnote 74. 15 Op Atty Gen 574 [1876]; 28 Op Atty Gen 127 [1909].
Footnote 75. 11 Op Atty Gen 431 [1866]; 36 Op Atty Gen 527 [1932]; 37 Op Atty Gen
468 [1934].
[1884]; 20 Op Atty Gen, 158, 251, 279, 391, 420, 500, 583, 728 [1891-1894]; 20 Op Atty
Gen 730 [1894]; 37 Op Atty Gen 261 [1933]; 38 Op Atty Gen 149 [1934]; 39 Op Atty
Gen 67 [1937].
[1934]; 41 Op Atty Gen 91 [1952]; 41 Op Atty Gen 266 [1956].
Footnote 78. 20 Op Atty Gen 649 [1893]; 37 Op Atty Gen 488 [1934]; 39 Op Atty Gen
269 [1939].
§ 10 Force and effect of opinion
View Entire Section

An agency head has discretion whether or not to adopt an opinion of the Attorney
General. 79 While such an opinion does not control a court in the construction of an act,
80 it may have a controlling influence in some instances. 81
Footnotes
Footnote 79. 28 Op Atty Gen 393, 417, 596 [1910, 1911]; 32 Op Atty Gen 270 [1920].
Footnote 80. Lewis Pub. Co. v Morgan, 229 US 288, 57 L Ed 1190, 33 S Ct 867;
Pueblo of Taos v Andrus (DC Dist Col) 475 F Supp 359.

39 Op Atty Gen 398 [1939].
Footnote 81. United States Bedding Co. v United States, 55 Ct Cl 459.
§ 11 Provision of legal services
View Entire Section

When, in the opinion of the head of an executive department or agency, the interests of
the United States require the service of counsel on the examination of any witness
concerning any claim, or on the legal investigation of any claim, pending in the
department or agency, the agency head shall notify the Attorney General. 82 The
notification must give the Attorney General all the facts necessary to enable him or her to
furnish proper professional service in attending the examination or making the
investigation, and the Attorney General will provide for that service. 83
Footnotes
4. Administrative Conference of United States [12-14]
§ 12 Generally
View Entire Section

Go to Supplement
The Administrative Conference Act 84 established the Administrative Conference of the

United States as a permanent independent agency of the Federal Government. 85 The
Act's purpose is to provide suitable arrangements through which federal agencies,
assisted by outside experts, may cooperatively study mutual problems, exchange
information, and develop recommendations for action by proper authorities, to the end
that the private rights may be fully protected and regulatory activities and other federal
responsibilities may be carried out expeditiously in the public interest. 86 To this end,
the Administrative Conference is empowered to–
–study the efficiency, adequacy, and fairness of the administrative procedure used by
administrative agencies in carrying out their programs, and make appropriate

recommendations to the agencies, the President, Congress, or the Judicial Conference of
the United States. 87
–arrange for interchange among agencies of information potentially useful in improving

administrative procedure. 88
–collect information and statistics from agencies and publish such reports as it considers
useful for evaluating and improving administrative procedure. 89
–enter into arrangements with any administrative agency or major organizational unit
within an agency pursuant to which the Conference performs any of the functions
described in 5 USCS § 594. 90
–provide assistance in response to a request relating to the improvement of administrative

procedure in foreign countries, subject to the concurrence of the Secretary of State, the
Administrator of the Agency for International Development, or the Director of the U. S.
Information Agency as appropriate, although such assistance shall be limited to the
analysis of issues relating to administrative procedure, the provision of training of foreign
officials in administrative procedure, and the design improvement of administrative
procedure, where the expertise of members of the Conference is indicated; moreover,
such assistance may only be undertaken on a fully reimbursable basis, including all direct
and indirect administrative costs. 91
§ 12 ----Generally [SUPPLEMENT]
Case authorities:
United States Information Agency was expressly authorized by statute both to move
production of its TV Marti newscasts to Cuba in-house and to enter into service
contracts, and therefore was not in violation of statute and regulations, including those
directing federal agencies to compare costs of commercial and agency production and use
former unless more expensive. Techniarts Eng'g v United States (1995, App DC) 51 F3d
301, 40 CCF ¶ 76774.
USIA does not have authority to use appropriated funds to purchase foreign debt and
convert it to foreign currency or foreign currency denominated bonds (debt for equity
swaps) so as to fund educational and cultural exchange programs. United States
Information Agency–Debt Conversion Activities (1991) 70 Comp Gen 413.
Footnotes
Footnote 84. 5 USCS §§ 591-596.
Footnote 85. 1 CFR § 301.1.
Footnote 87. 5 USCS § 594(1).

Law Reviews: Breger, The Administrative Conference of the United States: A Quarter
Century Perspective. 53 U Pitt L Rev 813 (Summer, 1992).
§ 13 Membership
View Entire Section

The Administrative Conference is composed of not more than 101 nor less than 75
members, 92 including–
–a full-time chairman, appointed for a 5-year term by the President with the advice and
consent of the Senate. 93
–the chairman of each independent regulatory board or commission, or an individual

designated by the board or commission. 94
–the head, or an individual designated by the head, of each executive department or other
agency which is designated by the President. 95
–one or more appointees from a board, commission, department, or agency as designated

by the head thereof with the approval of the board or commission. 96
–individuals, not otherwise members of the Conference, appointed by the President to

membership on the Council (the governing body of the Conference). 97
–not more than 40 other members appointed for 2-year terms by the chairman, with the
approval of the Council, such members to include members of the practicing bar, scholars
in the field of administrative law or government, or others specially knowledgeable or
experienced in federal administrative procedure. 98
Only the chairman of the Conference is salaried, although some members may be entitled
to expense money. 99
Footnotes
Footnote 92. 5 USCS § 593(a).
Footnote 93. 5 USCS § 593(b)(1).

Footnote 99. 5 USCS § 593(c).
§ 14 Organization
View Entire Section

The Administrative Conference is organized into three parts: (1) the chairman, who is
the Conference's chief executive and reports to the President and the Congress; 1 (2) an
11-member Council which calls the Conference into session, proposes bylaws and
regulations, and makes recommendations; 2 and (3) the Conference itself, which adopts
recommendations, bylaws, and regulations. 3
 Comment: Some commentators have proposed that the Administrative Conference

be assigned a substantive as well as a procedural mandate, and that the Conference
format be replaced with a chairman-directed structure with real investigatory powers. 4
Footnotes
Footnote 2. 5 USCS § 595(b).
The Recommendations of the Administrative Conference are published semiannually in

the Federal Register and are cumulated in 1 CFR Part 305.
Footnote 4. Gellhorn & Robinson, Perspectives on Administrative Law, 75 Colum L Rev

771 (1975).
B. Administrative Procedure Acts [15-23]

Research References
5 USCS §§ 551 et seq.
Model State Administrative Procedure Act (1961) §§ 1, 17; Model State Administrative
Procedure Act (1981) §§ 1-102 through 1-104
1A Federal Procedural Forms, L Ed, Administrative Procedure §§ 2:81, 2:88, 2:134,
2:135
1. Federal Administrative Procedure Act [15-17]
§ 15 Generally
View Entire Section

Go to Supplement
The federal Administrative Procedure Act (APA) 5 is a remedial statute, 6

designed to insure uniformity, impartiality and fairness in the procedures employed by
federal administrative agencies. 7 The Act does not create substantive rights on which
a claim for relief can be based. 8 The provisions of the Act 9 embody a
comprehensive regulatory scheme, governing such aspects of agency action as
investigations, 10 adjudications, 11 rule making, 12 licensing, 13 and open meeting
and disclosure requirements, 14 as well as providing for judicial review of
administrative proceedings. 15 Provision is also made for representation of parties
before administrative agencies. 16
Case authorities:
APA does not apply to state governments and therefore cannot be invoked in cases
brought by tenants claiming state administered Existing Housing Act Program, 42 USCS
§ 1437f, inconsistently with federal regulations. Hill v Richardson (1993, CA7 Ind) 7
F3d 656.
APA does not give federal courts jurisdiction to entertain suits against federal agencies;
suit by Vietnam veteran against Department of Labor for failing to enforce Vietnam Era
Veterans Readjustment Assistance Act, 38 USCS §§ 4211 et seq., is within court's
jurisdiction, if at all, because it presents federal question. Wikberg v Reich (1994, CA7
Ill) 21 F3d 188, 146 BNA LRRM 2062, 127 CCH LC ¶ 11068, reh den (CA7 Ill) 1994
US App LEXIS 10236.
Group advising U.S. Sentencing Commission on environmental crimes was not subject to
FACA; Congress clearly excluded Sentencing Commission from APA, which determines
FACA coverage, and group was not "utilized" by DOJ, even though members of group
from DOJ were likely to exercise significant influence on group's deliberations and
ensuing recommendations, since group answered to Commission, not DOJ. Washington
Legal Found. v United States Sentencing Comm'n (1994, App DC) 17 F3d 1446, 22
Media L R 1338.
Footnotes
Footnote 5. 5 USCS §§ 551 et seq.
Originally enacted in 1946 (Act of June 11, 1946, c. 324, 60 Stat. 237), the APA was
revised and re-enacted in 1966 (P. L. 89-554, Sept. 6, 1966, 80 Stat. 381).
Footnote 6. Pan-Atlantic S.S. Corp. v Atlantic Coast Line R. Co., 353 US 436, 1 L Ed
2d 963, 77 S Ct 999; Universal Camera Corp. v NLRB, 340 US 474, 95 L Ed 456, 71 S
Ct 456, 27 BNA LRRM 2373, 19 CCH LC ¶ 66191, on remand (CA2) 190 F2d 429, 28
BNA LRRM 2274, 20 CCH LC ¶ 66439; Home Loan Bank Board v Mallonee (CA9 Cal)
196 F2d 336, cert den 345 US 952, 97 L Ed 1374, 73 S Ct 864, reh den 345 US 978,
97 L Ed 1393, 73 S Ct 1121 and cert den 345 US 952, 97 L Ed 1374, 73 S Ct 863, reh
den 345 US 978, 97 L Ed 1393, 73 S Ct 1120 and cert den 345 US 952, 97 L Ed 1374,
73 S Ct 866, reh den 345 US 979, 97 L Ed 1393, 73 S Ct 1122.
Footnote 7. Morton v Ruiz, 415 US 199, 39 L Ed 2d 270, 94 S Ct 1055 (among

conflicting authorities on other grounds noted in National Latino Media Coalition v FCC,
259 US App DC 481, 816 F2d 785).
Footnote 8. Walker v Secretary of Treasury, IRS (ND Ga) 713 F Supp 403, 51 CCH EPD
¶ 39319, later proceeding (ND Ga) 742 F Supp 670, 55 CCH EPD ¶ 40359, affd without
op (CA11 Ga) 953 F2d 650, cert den (US) 121 L Ed 2d 106, 113 S Ct 156, reh den (US)
122 L Ed 2d 175, 113 S Ct 1030.
Footnote 10. As to investigations, see §§ 122 et seq.
Footnote 11. As to adjudications by administrative agencies generally, see §§ 261 et seq.
Footnote 12. As to rule making by federal administrative agencies generally, see §§ 165
et seq.
Footnote 13. As to licensing procedures before federal administrative agencies generally,

see §§ 246 et seq.
Footnote 14. As to the necessity for open meetings and disclosure by federal
administrative agencies generally, see §§ 107-121.
Footnote 15. As to judicial review of administrative action generally, see §§ 415 et seq.
Footnote 16. §§ 321 et seq.

§ 16 Construction
View Entire Section

Being a remedial statute, 17 the federal Administrative Procedure Act 18 must be

given a "hospitable" (that is, liberal) interpretation, 19 in the light of, and to give effect
to, its purposes. 20 The provisions of the Act 21 do not limit or repeal additional
requirements imposed by statute or otherwise recognized by law. 22 For example, even
in circumstances where an adjudication is not required to be held pursuant to the
provisions of the Act, 23 as where the proceedings are not contemplated by, or are
beyond the scope of, the Act, 24 an agency is nevertheless constitutionally required to
observe the essentials of due process. 25 Similarly, even though the circumstances may
be such that an agency is not required to comply with the hearing requirements of the
Administrative Procedure Act, 26 where the statute under which the agency is acting
permits such action only "after hearing," the agency is required to accord the hearing
specified. 27 Conversely, statutes enacted after the Act 28 may not be held to
supersede or modify its provisions, except to the extent that they do so expressly. 29 As
a result, exemptions, in such cases, are not lightly to be presumed. 30
Consequently, for example, even where a subsequently enacted statute provides that
certain agency orders or determinations shall be "final," if that statute does not expressly
preclude judicial review 31 of those orders, review may still be had under 5 USCS §
701. 32 However, where there are such express modifications in subsequent statutes,
such as authorization to deviate from the requirement that hearings be conducted by
administrative law judges, 33 or a prohibition of actions for injunctions against a specific
official, 34 the provisions of the Act 35 are not contravened. 36 It should be noted that
the Administrative Procedure Act 37 is not the exclusive source of procedural
requirements for administrative hearings, and hearing requirements established in statutes
predating it may be unaffected by its subsequent enactment. 38 Also, it is always
within an agency's discretion to afford parties more procedure than required by the Act
(although it is not the province of the courts to do so). 39 The provisions of the Act 40
are not violative of the Fourteenth Amendment to the United States Constitution. 41
Footnotes
Footnote 17. § 15.
Footnote 19. Shaughnessy v Pedreiro, 349 US 48, 99 L Ed 868, 75 S Ct 591

(superseded by statute on other grounds as stated in Jean v Nelson (CA11 Fla) 711 F2d
1455).
2d 963, 77 S Ct 999; Shaughnessy v Pedreiro, 349 US 48, 99 L Ed 868, 75 S Ct 591
1455).

Forms: Informal request–For administrative action [5 USCS § 554]. 1A Federal

Procedural Forms, L Ed, Administrative Procedure § 2:81.
Petition–For leave to adopt rules, regulations, or rates [5 USCS § 554]. 1A Federal

Notice of hearing–General form [5 USCS § 554(b)]. 1A Federal Procedural Forms, L

Ed, Administrative Procedure § 2:134.
Notice of hearing–Application or petition [5 USCS § 554(b)]. 1A Federal Procedural

Forms, L Ed, Administrative Procedure § 2:135.
Footnote 25. United States v Libby, McNeil & Libby (DC Alaska) 107 F Supp 697.
As to adjudications, see §§ 261 et seq.
Footnote 26. 5 USCS §§ 556, 557.
Footnote 27. United States v Florida E. C. R. Co., 410 US 224, 35 L Ed 2d 223, 93 S Ct

810.
Footnote 30. Brownell v We Shung, 352 US 180, 1 L Ed 2d 225, 77 S Ct 252

(superseded by statute on other grounds as stated in Garcia v Smith (CA11 Fla) 674 F2d
838) and (superseded by statute on other grounds as stated in Jean v Nelson (CA11 Fla)
711 F2d 1455); Marcello v Bonds, 349 US 302, 99 L Ed 1107, 75 S Ct 757, reh den
350 US 856, 100 L Ed 761, 76 S Ct 38, later proceeding (CA5 La) 803 F2d 851.
Footnote 31. As to judicial review of administrative action generally, see §§ 415 et seq.
Footnote 32. Brownell v We Shung, 352 US 180, 1 L Ed 2d 225, 77 S Ct 252

(superseded by statute on other grounds as stated in Garcia v Smith (CA11 Fla) 674 F2d
838) and (superseded by statute on other grounds as stated in Jean v Nelson (CA11 Fla)
711 F2d 1455); Shaughnessy v Pedreiro, 349 US 48, 99 L Ed 868, 75 S Ct 591
1455).
Footnote 33. Director, Office of Workmen's Compensation Program, etc. v Alabama

By-Products Corp. (CA5) 560 F2d 710; Director, Office of Workers' Compensation
Programs, etc. v Eastern Coal Corp. (CA6) 561 F2d 632.

Footnote 34. Von Lusch v Hoffmaster (DC Md) 253 F Supp 633.
Footnote 36. Director, Office of Workmen's Compensation Program, etc. v Alabama

By-Products Corp. (CA5) 560 F2d 710.
Footnote 38. American Tel. & Tel. Co. v Federal Communications Com. (CA2) 572 F2d
17, 46 ALR Fed 610, cert den 439 US 875, 58 L Ed 2d 190, 99 S Ct 213.
Footnote 39. Chrysler Corp. v Brown, 441 US 281, 60 L Ed 2d 208, 99 S Ct 1705, 19

BNA FEP Cas 475, 4 Media L R 2441, 26 CCF ¶ 83181, 19 CCH EPD ¶ 9121, on
remand (CA3 Del) 611 F2d 439, 20 BNA FEP Cas 1335, 21 CCH EPD ¶ 30331.
Footnote 41. Silverton v Department of Treasury (CD Cal) 449 F Supp 1004, affd (CA9)
640 F2d 214, withdrawn by publisher, op replaced (CA9 Cal) 644 F2d 1341, cert den
454 US 895, 70 L Ed 2d 210, 102 S Ct 393.
§ 17 Definitions
View Entire Section

The federal Administrative Procedure Act contains definitions of the important terms
used in that statute: 42
Agency. 43
Person–an individual, partnership, corporation, association, or public 44 or private

organization other than an agency, 45 including unions 46 and a foreign government or
instrumentality. 47
Party–a person or agency named or admitted as a party, or properly seeking and entitled
as of right to be admitted as a party, in an agency proceeding, and a person or agency
admitted by an agency as a party for limited purposes, 48 or in some instances, as when
the term is used in an exemption concerning interagency memorandums, a hypothetical
party that conceivably could be in litigation with an agency. 49
Rule and rule making. 50
Order–the whole or part of a final disposition, whether affirmative, negative, injunctive,

or declaratory in form, of an agency in a matter other than rule making but including
licensing. 51
Adjudication. 52
License and licensing. 53
Sanction–the whole or a part of an agency: (a) prohibition, requirement, limitation, or

other condition affecting the freedom of a person; (b) withholding of relief; (c)
imposition of a penalty or fine; (d) destruction, taking, seizure, or withholding of
property; (e) assessment of damages, reimbursement, restitution, compensation, costs,
charges, or fees; (f) requirement, revocation, or suspension of a license; or (g) taking
other compulsory or restrictive action. 54
Relief–the whole or a part of an agency: (a) grant of money, assistance, license, authority,
exemption, exception, privilege, or remedy; (b) recognition of a claim, right, immunity,
privilege, exemption, or exception; or (c) taking of other action on the application or
petition of, and beneficial to, a person. 55
Agency proceeding–agency rule making, adjudication or licensing. 56
Agency action–the whole or a part of an agency rule, order, license, sanction, relief, or
the equivalent or denial thereof, or failure to act. 57
Ex parte communication–an oral or written communication not on the public record with
respect to which reasonable prior notice to all parties is not given, but not including
requests for status reports on any matter or proceeding covered by the statute. 58
The definitions of terms included in the federal Administrative Procedure Act 59 may
on occasion provide a basis for determining what is meant by similar terms used in other
statutes relating to administrative procedure. 60
Footnotes
Footnote 43. § 25.
Footnote 44. Hustead v Norwood (SD Fla) 529 F Supp 323 (state of Florida); Maryland
Dept. of Human Resources v Department of Health & Human Services, 246 US App DC
180, 763 F2d 1441 (criticized on other grounds by St. Regis Mohawk Tribe v Brock
(CA2) 769 F2d 37) and (among conflicting authorities on other grounds noted in Sarasota
v Environmental Protection Agency (CA11 Fla) 799 F2d 674, 25 Envt Rep Cas 1023, 17
ELR 20149) and (criticized on other groundsby Massachusetts v Departmental Grant
Appeals Bd. (CA1 Mass) 815 F2d 778) (State of Maryland).
Footnote 46. Seafarers International Union v United States Coast Guard (CA2 NY) 736
F2d 19, 1985 AMC 12.
Footnote 47. Stone v Export-Import Bank of United States (CA5 Fla) 552 F2d 132, reh

den (CA5 Fla) 555 F2d 1391 and cert den 434 US 1012, 54 L Ed 2d 756, 98 S Ct 726;
Neal–Cooper Grain Co. v Kissinger (DC Dist Col) 385 F Supp 769 (disapproved on other
grounds by Administrator, Federal Aviation Admin. v Robertson, 422 US 255, 45 L Ed
2d 164, 95 S Ct 2140, 1 Media L R 2465) as stated in Westinghouse Electric Corp. v
Schlesinger (CA4 Va) 542 F2d 1190, 13 BNA FEP Cas 868, 12 CCH EPD ¶ 11208, cert
den 431 US 924, 53 L Ed 2d 239, 97 S Ct 2199, 14 BNA FEP Cas 1686, 14 CCH EPD
¶ 7527.
A disappointed bidder who was entitled to and did participate in the bid solicitation
proceedings conducted by a federal banking agency is eligible as a party to the agency
proceeding to petition for judicial review. Hartigan v Federal Home Loan Bank Bd.
(CA7) 746 F2d 1300.
Footnote 49. Anchorage Bldg. Trades Council v Department of Housing & Urban
Development (DC Alaska) 384 F Supp 1236.
Footnote 50. As to the definitions of "rule" and "rule making," see § 153.
Footnote 52. As to the definition of "adjudication" and adjudications by administrative

agencies generally, see §§ 261 et seq.
Footnote 53. As to the definitions of these terms, and a discussion of licensing by

administrative agencies generally, see §§ 246 et seq.
Footnote 54. 5 USCS § 551(10)(A)-(G).
Footnote 55. 5 USCS § 551(11)(A)-(C).

810.
2. State Administrative Procedure Acts [18-23]
§ 18 Generally
View Entire Section

In 1961 the Revised Model State Administrative Procedure Act was issued, 61 which
Model Act was revised again in 1981. 62 The 1981 revision of the Model Act states that
it applies to all agencies and all proceedings not expressly exempted, 63 and warns that
it creates only procedural rights and imposes only procedural duties. 64
Footnotes
Footnote 61. Model State Administrative Procedure Act (1961).
Law Reviews: DeAngelo, The new Idaho Administrative Procedure Act. 35 Advocate
(Idaho) 14(2) (October, 1992).
Nichols, The New North Carolina APA: A Practical Guide to Understanding and
Using It. 9 Campbell L Rev 293 (Spring, 1987).
Footnote 62. Model State Administrative Procedure Act (1981).
Law Reviews: Andersen, The 1988 Washington Administrative Procedure Act–An

Introduction. 64 Wash L Rev 781 (October, 1989).
Footnote 63. Model State Administrative Procedure Act (1981) § 1-103(a).
Footnote 64. Model State Administrative Procedure Act (1981) § 1-103(b).
§ 19 Purposes and functions
View Entire Section

A state Administrative Procedure Act may have several purposes. Such an act may be
designed to achieve uniformity among the various agencies of the state with respect to
the development of suitable procedural safeguards, 65 where a personal right, duty or
privilege is at stake, 66 and where rights and duties of the public are involved. 67 It
may provide uniform standards by which all nonexempted agency action is to be judged.
68 Such acts may also require certain state agencies to adopt and make public
procedural rules, including methods whereby the public can make submissions and
requests. 69 They may provide a vehicle for judicial review as an alternative to
pre-existing statutes and in situations in which no appellate review was previously
provided, 70 and afford adjudication rights in matters over which agencies have
jurisdiction. 71 Such acts may seek to minimize the potential unfairness in embodying
in one person or agency both quasi-judicial and quasi-legislative functions. 72
A state Administrative Procedure Act may affect the scope and manner of exercise of
agency discretion in that: (1) the act may prescribe the process by which disputed facts
are found; (2) it may require that the agency adopt as rules its policy statements of
general applicability, require agency proof of incipient policy not expressed in rules and
permit counterveiling evidence in argument; 73 and (3) it may require an agency to
explain the exercise of its discretion and subjects that explanation to judicial review. 74
Footnotes
Footnote 65. Villani v Berle, 91 Misc 2d 603, 398 NYS2d 796.
Footnote 66. Midland v Michigan State Boundary Com., 401 Mich 641, 259 NW2d 326,
app dismd 435 US 1004, 56 L Ed 2d 386, 98 S Ct 1873.
Footnote 67. Ex parte Alabama Criminal Justice Information Center Com. (Ala App) 572
So 2d 487, later proceeding (Ala) 1992 Ala LEXIS 985, op withdrawn, substituted op,
reh overr (Ala) 620 So 2d 651.
Footnote 68. McDermott v Commissioner of Children & Youth Services, 168 Conn 435,
363 A2d 103 (superseded by statute on other grounds as stated in Shearson American
Express, Inc. v Banking Com. of State, 39 Conn Supp 462, 466 A2d 800).
Footnote 69. Arkansas State Highway Com. v Wood, 264 Ark 425, 572 SW2d 583.
Footnote 70. Hopkins v Pac, 180 Conn 474, 429 A2d 952.
Footnote 71. Arkansas State Highway Com. v Wood, 264 Ark 425, 572 SW2d 583.
Footnote 72. State ex rel. Commissioner of Ins. v North Carolina Rate Bureau, 300 NC
381, 269 SE2d 547.
Footnote 73. As to agency rules and rulemaking, see §§ 152 et seq.
Footnote 74. McDonald v Department of Banking & Finance (Fla App D1) 346 So 2d
569, appeal after remand (Fla App D1) 361 So 2d 199, cert den (Fla) 368 So 2d 1370.
As to judicial review of agency action, see §§ 415 et seq.
§ 20 Construction
View Entire Section

It has been said that a state administrative procedure act ought to be construed to achieve
the purpose intended by the legislature. 75 The 1981 version of the Model Act states
that the procedural rights and duties created by the Act are in addition to those created
and imposed by other statutes, 76 and an agency may grant procedural rights to persons
in addition to those conferred by the Act so long as rights conferred upon other persons
by any provision of law are not substantially prejudiced. 77 There is authority to the
effect that provisions of a state act do not apply if there is a conflict between the
provisions of such act and a specific statutory provision relating to a specific agency. 78
However, the 1981 version of the Model Act provides that to the extent that any other
statute would diminish a right created or duty imposed by the Act, the other statute is
superseded by the Act, unless the other statute expressly provides otherwise. 79 Where
possible, separate, pre-existing statutory appellate procedures should be read consistently
and in keeping with the provision of the state act governing judicial review. 80
However, where a pre-existing statute cannot be construed as consistent with such act,
the statute is repealed by the act. 81 Where a state administrative procedure act provides
that it applies to all agency proceedings commenced on or after the effective date of the
act, the act may not apply to an appeal where the agency proceedings in the matter
commenced before the effective date of the act. 82
Provisions of a state administrative procedure act do not apply to the actions of a court.
83
Footnotes
As to purposes of the state Model APA, see § 19.
Footnote 77. Model State Administrative Procedure Act (1981) § 1-103(c).
Footnote 78. Federico v Brannan Sand & Gravel Co. (Colo) 788 P2d 1268.
Footnote 82. Citizens against Pollution Northwest, Inc. v Connecticut Siting Council, 217
Conn 143, 584 A2d 1183 (provision of Act extending the time period for service of an
appeal from the decision of an administrative agency was inapplicable to an action
commenced before the effective date of the Act); Vernon Village, Inc. v Carothers, 217
Conn 130, 585 A2d 76.
Footnote 83. Cameron v Greenhill (Tex) 582 SW2d 775, rehg of writ of error overr (Jun
27, 1979).

§ 21 --Severance of provisions for invalidity
View Entire Section

The 1961 revised version of the Model Act states that if any provision of the Act, or the
application of that provision, is held invalid, the invalidity does not affect the other
provisions or applications of the Act which can be given effect without the invalid
provision or application. 84 For this purpose, the provisions of the Act are severable. 85
Footnotes
Footnote 84. Model State Administrative Procedure Act (1961) § 17.
§ 22 Definitions
View Entire Section

Both the 1961 and the 1981 revised versions of the state Model Administrative Procedure
Act contain definitions of the important terms used in the Act:
Agency. 86
Person–an individual, partnership, corporation, association, governmental subdivision, or

public or private organization or entity. 87 The 1961 version of the Act says that the
organization may not be another agency. 88 The 1981 version does not contain this
restriction, and also permits the term "person" to encompass units of governmental
subdivisions. 89
Party–each person or agency named or admitted as a party, or properly seeking as of

right to be admitted as a party (under the 1961 version of the Model Act). 90 The 1981
version of the Act defines "party to agency proceedings," or "party" in this context, as:
(1) a person to whom the agency action is specifically directed; or (2) a person named as
a party to an agency proceeding or allowed to intervene or participate in the proceeding.
91 In addition, the 1981 version defines "party to judicial review or civil enforcement
proceedings," or party in this context, as: (1) a person who files a petition for judicial
review or civil enforcement; or (2) a person named as a party in a proceeding for judicial
review or civil enforcement or allowed to participate as a party in the proceeding. 92
Rule. 93

License. 94
The 1981 version of the Model Act also defines the terms:
Agency action–(1) the whole or any part of a rule or an order; (2) the failure to issue a
rule or an order; or (3) an agency's performance of, or failure to perform, any other duty,
function, or activity, discretionary or otherwise. 95
Agency head–an individual or body of individuals in whom the ultimate legal authority of
the agency is vested by any provision of the law. 96
Order–an agency action of particular applicability that determines the legal rights, duties,
privileges, immunities, or other legal interests of one or more specific persons. 97 The
term may not include an "executive order" 98 issued by the governor. 99
Provision of law–the whole or a part of the federal or state constitution, statute, rule of
court, executive order, or rule of an administrative agency. 1
Rulemaking. 2
The 1961 version of the Model Act defines the terms:
Contested case–a proceeding, including but not restricted to ratemaking, (price fixing),
and licensing, in which the legal rights, duties, or privileges of a party are required by
law to be determined by an agency after an opportunity for a hearing. 3
Licensing. 4
Footnotes
Footnote 86. As to definition of "agency," see § 27.
Footnote 87. Model State Administrative Procedure Act (1981) § 1-102(8); Model State
Administrative Procedure Act (1961) § 1(6).
Footnote 88. Model State Administrative Procedure Act (1961) § 1(6).
Footnote 89. Model State Administrative Procedure Act (1981) § 1-102(8).
Footnote 93. As to definition of "rule" and discussion of rules and rulemaking, see § 154.
Footnote 94. As to definition of "license" and discussion of licenses in terms of

administrative law, see § 247.

Footnote 95. Model State Administrative Procedure Act (1981) § 1-102.
Footnote 98. Pursuant to Model State Administrative Procedure Act (1981) § 1-104 or §
3-202.
Footnote 2. As to definition of "rulemaking" and discussion of rules and rulemaking, see

§ 154.
As to hearings, generally, see §§ 294 et seq.
Footnote 4. As to definition of "licensing" and discussion of licenses and licensing in the

context of administrative law, see § 247.
§ 23 Suspension of Act by Governor or Attorney General
View Entire Section

The 1981 revision of the Model State Administrative Procedure Act provides that a state
act may adopt a provision allowing or requiring the Governor by executive order or the
Attorney General by rule, as the state statute designates, to suspend, in whole or in part,
one or more provisions of the Act, to the extent necessary to avoid a denial of funds or
services from the United States which would otherwise be available to the state. 5 The
Governor by executive order or the Attorney General by rule must declare the
termination of a suspension as soon as it is no longer necessary to prevent the loss of
funds or services from the United States. 6 An executive order applicable to such
suspension may be subject to the requirements applicable to the adoption and
effectiveness of a rule. 7 If any provision of the Act is so suspended, the Governor or
the Attorney General must promptly report the suspension to the legislature or other
authority as the particular state statute so designates. 8 The report must include
recommendations concerning any desirable legislation that may be necessary to conform
the Act to federal law. 9
Footnotes

As to requirements for the adoption and effectiveness of rules, see §§ 198 et seq.
II. ADMINISTRATIVE AGENCIES [24-98]
A. Introduction [24-36]
Research References
5 USCS §§ 551, 701(b)(1)
Model State Administrative Procedure Act (1961) § 1(1); Model State Administrative
Procedure Act (1981) § 1-102(1)
ALR Digests: Administrative Law §§ 4-8, 10
1. In General [24-33]
§ 24 Creation and establishment
View Entire Section

An agency must be created by constitution, 10 by statute, 11 by agency action, 12 or

executive order. 13 Most of them have their source in legislative enactments. Thus,
courts often refer to agencies as creatures of the legislature which act pursuant to specific
grants of authority conferred by their creator. 14 Congress, 15 state legislatures, 16
and municipal corporations 17 may create administrative agencies. The executive also
may create administrative agencies, especially investigative agencies, and particularly
under statutes so providing. 18 Sometimes, as in the field of labor relations, federal
statutes creating administrative agencies have a parallel in state statutes. 19
Footnotes
Footnote 10. League General Ins. Co. v Michigan Catastrophic Claims Assn., 435 Mich
338, 458 NW2d 632; Petition of Rhode Island Bar Asso., 118 RI 489, 374 A2d 802.

338, 458 NW2d 632; Petition of Rhode Island Bar Asso., 118 RI 489, 374 A2d 802.
338, 458 NW2d 632.
Footnote 13. Petition of Rhode Island Bar Asso., 118 RI 489, 374 A2d 802.
Footnote 14. § 55.
Footnote 15. Wiener v United States, 357 US 349, 2 L Ed 2d 1377, 78 S Ct 1275;

Kentucky & I. Bridge Co. v Louisville & N. R. Co. (CC Ky) 37 F 567, app dismd 149
US 777, 37 L Ed 964, 13 S Ct 1048.
Footnote 16. Consumers' League of Colorado v Colorado & S. R. Co., 53 Colo 54, 125 P
577; State ex rel. Wells v Jacksonville Terminal Co., 96 Fla 295, 117 So 869, 59 ALR
324; People ex rel. Barmore v Robertson, 302 Ill 422, 134 NE 815, 22 ALR 835; East
Jeffersontown Improv. Asso. v Louisville & Jefferson County Planning & Zoning Com.
(Ky) 285 SW2d 507; State v Kelly, 27 NM 412, 202 P 524, 21 ALR 156; Molina v
Games Management Services, 58 NY2d 523, 462 NYS2d 615, 449 NE2d 395, 40
ALR4th 655; Pue v Hood, 222 NC 310, 22 SE2d 896; Wall v Fenner, 76 SD 252, 76
NW2d 722; Commonwealth v Anheuser-Busch, Inc., 181 Va 678, 26 SE2d 94;
Huntington v State Water Com., 137 W Va 786, 73 SE2d 833.
Nothing in the Federal Constitution or statutes prevents a state from creating a board of
railroad commissioners and prescribing their powers. Mobile, J. & K. C. R. Co. v
Mississippi, 210 US 187, 52 L Ed 1016, 28 S Ct 650.
Footnote 17. Northwestern Laundry v Des Moines, 239 US 486, 60 L Ed 396, 36 S Ct

206.
Footnote 18. Peters v Hobby, 349 US 331, 99 L Ed 1129, 75 S Ct 790 (creation by

executive order of the President).
Footnote 19. Bethlehem Steel Co. v New York State Labor Relations Bd., 330 US 767,
91 L Ed 1234, 67 S Ct 1026, 19 BNA LRRM 2499, 12 CCH LC ¶ 51245, dealing with
the question of the power of the state to act in the field of federal regulation.
§ 25 Definition of "agency" under federal Administrative Procedure Act
View Entire Section

Go to Supplement
The term "agency," for purposes of the federal Administrative Procedure Act, 20 means
each authority of the government of the United States, whether or not it is within or
subject to review by another agency, 21 and whether or not Congress labels it an
agency. 22 Expressly excluded are–

–nonfederal entities such as state 23 local, 24 or territorial 25 agencies.
–the Congress 26 of the United States. 27
–the courts of the United States. 28
–the Legal Services Corporation. 29
–the governments of the territories 30 or possessions of the United States. 31
–the government of the District of Columbia. 32
–agencies composed of representatives of the parties or of representatives of

organizations of the parties to the disputes determined by them, with specified
exceptions. 33
–court-martial and military commissions, with specified exceptions. 34
–military authority exercised in the field in time of war or in occupied territory, with
specified exceptions. 35
–certain functions related to housing insurance, 36 termination of defense contracts,

37 or the disposition of surplus government property, 38 with stated exceptions. 39
The President is not considered an agency within the meaning of the APA. 40
Although the President is not explicitly excluded from the purview of the Administrative
Procedure Act, the President is not explicitly included, and out of respect for the
separation of powers and the unique constitutional position of the President, the courts
will require an express statement by Congress before subjecting the President to the
provisions of the APA. 41 The transaction staff of the President-elect is not an agency
because it is outside the control of the incumbent President, and thus is outside the
executive branch. 42
Although the primary purpose of the Administrative Procedure Act is to regulate the
processes of rule making and adjudication, 43 even those administrative entities that
perform neither function may be agencies within the meaning of 5 USCS § 551(1). 44
An important consideration is whether the entity in question has the authority to act with
the sanction of the government behind it. 45 The form the agency takes or the function it
performs are not determinative of the question whether it is an agency. 46 The APA
apparently confers agency status on any administrative unit with substantial independent
authority in the exercise of specific functions. 47 Accordingly, entities which act in an
advisory capacity only do not fall within the definition of agency. 48
 Comment: It should be noted that the term "agency" as it appears in other statutes
may be totally unrelated to the definition of that term as used in the federal APA. 49
For judicial purposes, the term "agency" includes any department, independent
establishment, commission, administration, authority, court or bureau of the United
States, or any corporation in which the United States has a proprietary interest, unless
the context shows that such term was intended to be used in a more limited sense. 50

§ 25 ----Definition of "agency" under federal Administrative Procedure Act
[SUPPLEMENT]
Case authorities:
President is not "agency" within meaning of Administrative Procedure Act. Assassination

Archives & Research Ctr. v Department of Justice (1995, App DC) 43 F3d 1542.
Footnotes
Footnote 22. Government Nat. Mortg. Asso. v Terry (CA5 Ga) 608 F2d 614, 51 ALR
Fed 863.
Footnote 23. Ciccone v Waterfront Com. of New York Harbor (SD NY) 438 F Supp 55;
Mary Washington Hospital, Inc. v Fisher (ED Va) 635 F Supp 891; Johnson v Wells
(CA5 Tex) 566 F2d 1016 (among conflicting authorities on other grounds noted in
Johnson v Rhode Island Parole Bd. Members (CA1 RI) 815 F2d 5); Fund for Animals,
Inc. v Florida Game & Fresh Water Fish Com. (SD Fla) 550 F Supp 1206, 13 ELR 20368
(superseded by statute on other grounds as stated in Presbyterian Church (U.S.A.) v
United States (CA9 Ariz) 870 F2d 518).
Footnote 24. Munoz-Mendoza v Pierce (CA1 Mass) 711 F2d 421 (Boston
Redevelopment Authority); Gibson & Perin Co. v Cincinnati (CA6 Ohio) 480 F2d 936,
1973-1 CCH Trade Cases ¶ 74581, cert den 414 US 1068, 38 L Ed 2d 473, 94 S Ct 577;
Rohnert Park v Harris (CA9 Cal) 601 F2d 1040, 1979-1 CCH Trade Cases ¶ 62663,
1980-1 CCH Trade Cases ¶ 63003, cert den 445 US 961, 64 L Ed 2d 236, 100 S Ct
1647 (city urban renewal agency).
Footnote 25. American Conveyor Corp. v Guanica (DC Puerto Rico) 614 F Supp 922;
Libby, McNeill & Libby v Alaska Industrial Board (CA9 Alaska) 191 F2d 260, cert den
342 US 913, 96 L Ed 683, 72 S Ct 359.
Footnote 26. Clark v Library of Congress, 242 US App DC 241, 750 F2d 89.
Footnote 27. 5 USCS § 551(1)(A).
Footnote 28. 5 USCS § 551(1)(B).
Various federal judges cannot individually or as a group be deemed to constitute an

agency under the APA. United States v Doherty (1986, CA2 NY) 786 F2d 491, habeas
corpus proceeding (CA2 NY) 808 F2d 938.
Congress intended the entire judicial branch of the government to be excluded from the
provisions of the Administrative Procedure Act, so that the Judicial Conference need not
follow APA rulemaking procedures in determining court fees. Re Fidelity Mortg.

Investors (CA2 NY) 690 F2d 35, CCH Bankr L Rptr ¶ 68789, cert den 462 US 1106, 77
L Ed 2d 1333, 103 S Ct 2453.
Footnote 29. Legal Services Corp. v Ehrlich (DC Md) 457 F Supp 1058.
Footnote 30. Corporation of Presiding Bishop of the Church of Jesus Christ of the
Latter-Day Saints v Hodel (DC Dist Col) 637 F Supp 1398, affd 265 US App DC 226,
830 F2d 374, cert den 486 US 1015, 100 L Ed 2d 214, 108 S Ct 1752 (American
Samoa).
Footnote 31. 5 USCS § 551(1)(C).
Footnote 32. 5 USCS § 551(1)(D).
Footnote 33. 5 USCS § 551(1)(E), making exceptions with regard to the requirements of
5 USCS § 552, which pertains to making information available to the public.
As to disclosure to the public of agency information, see 66 Am Jur 2d, Records and
Recording Laws §§ 32 et seq.
Footnote 34. 5 USCS § 551(1)(F), making exceptions with regard to the requirements of
Footnote 35. 5 USCS § 551(1)(G), making exceptions with regard to the requirements of
Footnote 36. 5 USCS § 551(1)(H), referring to functions conferred by 12 USCS §§

1738, 1739, 1743, 1743, .
Footnote 37. 5 USCS § 551(1)(H), referring to functions conferred by 41 USCS §§ 101

et seq.
Footnote 38. 5 USCS § 551(1)(H), referring to functions conferred by 50 USCS Appx §

1662.
Footnote 39. 5 USCS § 551(1)(H), making exceptions with regard to the requirements of
Footnote 40. Franklin v Massachusetts (US) 120 L Ed 2d 636, 112 S Ct 2767, 92 CDOS
5553, 92 Daily Journal DAR 8897, 6 FLW Fed S 650; Armstrong v Bush, 288 US App
DC 38, 924 F2d 282, on remand (DC Dist Col) 139 FRD 547, 24 FR Serv 3d 1401,
motion den, motion gr (DC Dist Col) 1992 US Dist LEXIS 7502, later proceeding (DC
Dist Col) 807 F Supp 816, remanded (DC Dist Col) 810 F Supp 335, stay den (DC Dist
Col) 1993 US Dist LEXIS 356, stay gr, in part (App DC) 1993 US App LEXIS 1322,
motion gr (DC Dist Col) 821 F Supp 761, stay den (DC Dist Col) 823 F Supp 4, later
proceeding (App DC) 1993 US App LEXIS 21086 and motion gr, partial summary
judgment den, motion den (DC Dist Col) 829 F Supp 1, remanded (App DC) 1 F3d 1274,
on remand, motion gr (DC Dist Col) 830 F Supp 19.
5553, 92 Daily Journal DAR 8897, 6 FLW Fed S 650 (noting that although the
President's actions may still be reviewed for constitutionality, they are not reviewable for
abuse of discretion under the APA).
Footnote 42. Illinois Institute for Continuing Legal Education v United States Dept. of
Labor (ND Ill) 545 F Supp 1229.
Footnote 43. § 15.
Footnote 44. Koden v United States Dept. of Justice (CA7 Ill) 564 F2d 228.
Footnote 45. Conservation Law Foundation, Inc. v Harper (DC Mass) 587 F Supp 357;
W. B. Fishburn Cleaners, Inc. v Army & Air Force Exchange Service (ND Tex) 374 F
Supp 162; Ellsworth Bottling Co. v United States (WD Okla) 408 F Supp 280, 22 CCF ¶
80513.
Footnote 46. W. B. Fishburn Cleaners, Inc. v Army & Air Force Exchange Service (ND
Tex) 374 F Supp 162.
Soucie v David, 145 US App DC 144, 448 F2d 1067, 2 Envt Rep Cas 1626, 1 Media L R
2435, 1 ELR 20147.
Footnote 48. Washington Research Project, Inc. v Department of Health, Education &
Welfare, 164 US App DC 169, 504 F2d 238, cert den 421 US 963, 44 L Ed 2d 450, 95
S Ct 1951 and (criticized on other grounds by Public Citizen Health Research Group v
Food & Drug Admin., 227 US App DC 151, 704 F2d 1280); Gates v Schlesinger (DC
Dist Col) 366 F Supp 797.
Footnote 49. Kam Koon Wan v E. E. Black, Ltd. (DC Hawaii) 75 F Supp 553, 14 CCH
LC ¶ 64294.
Annotation: What is an "agency" for purposes of 28 USCS § 1345, granting original

jurisdiction to United States District Courts of civil actions by any agency of the
United States, 51 ALR Fed 874.
§ 26 --Particular authorities held to be agencies
View Entire Section

Among the entities which are agencies, as defined in the federal Administrative
Procedure Act, 51 are–
–the Army Corps of Engineers. 52
–the Interstate Commerce Commission. 53
–the Securities and Exchange Commission. 54
–the Immigration and Naturalization Service 55 and Board of Immigration Appeals. 56
–the United States Information Agency. 57
–the Government National Mortgage Association. 58
–a Federal Home Loan Bank. 59
–the Bureau of Land Management and Interior Department. 60
–the United States Parole Commission 61 and Bureau of Prisons. 62
–the Renegotiation Board. 63
–Amtrak. 64
–the Property Review Board. 65
Although specifically exempted from the adjudicative procedure requirements of the

federal Administrative Procedure Act, 66 the United States Air Force may, for some
purposes, be considered an agency. 67
Footnotes
Footnote 51. 5 USCS §§ 551(1), 701(b)(1).
Footnote 52. Story v Marsh (ED Mo) 574 F Supp 505, revd on other grounds (CA8 Mo)
732 F2d 1375, 14 ELR 20608.
Footnote 53. United States v Allegheny-Ludlum Steel Corp., 406 US 742, 32 L Ed 2d

453, 92 S Ct 1941; United States v Allegheny-Ludlum Steel Corp., 406 US 742, 32 L
Ed 2d 453, 92 S Ct 1941; Minneapolis & S. L. R. Co. v United States, 361 US 173, 4 L
Ed 2d 223, 80 S Ct 229, reh den 361 US 945, 4 L Ed 2d 365, 80 S Ct 405; Spiller v
Atchison, T. & S. F. R. Co., 253 US 117, 64 L Ed 810, 40 S Ct 466.
As to the Interstate Commerce Commission, generally, see 13 Am Jur 2d, Carriers §§ 33

et seq.

Footnote 54. Shuck v SEC, 105 US App DC 72, 264 F2d 358.
As to the Securities and Exchange Commission, generally, see 69 Am Jur 2d, Securities
Regulation– Federal § 1.
Footnote 55. Singh v Moyer (CA7 Ill) 867 F2d 1035; Koden v United States Dept. of
Justice (CA7 Ill) 564 F2d 228.
As to the Immigration and Naturalization Service, generally, see 3A Am Jur 2d, Aliens
and Citizens §§ 6 et seq.
Footnote 56. Koden v United States Dept. of Justice (CA7 Ill) 564 F2d 228.
As to the Board of Immigration Appeals, see 3A Am Jur 2d, Aliens and Citizens §§ 113
et seq.
Footnote 57. Singh v Moyer (CA7 Ill) 867 F2d 1035.
Footnote 58. Government Nat. Mortg. Asso. v Terry (CA5 Ga) 608 F2d 614, 51 ALR
Fed 863.
Footnote 59. Fidelity Financial Corp. v Federal Home Loan Bank (ND Cal) 589 F Supp
885, later proceeding (CA9 Cal) 792 F2d 1432, cert den 479 US 1064, 93 L Ed 2d 998,
107 S Ct 949, later proceeding (CA9 Cal) 838 F2d 395, motion den (CA9) 842 F2d 239
and cert den 488 US 848, 102 L Ed 2d 100, 109 S Ct 127.
Footnote 60. Adams v Witmer (CA9 Cal) 271 F2d 29, 1 FR Serv 2d 345.
As to the Bureau of Land Management, generally, see 63A Am Jur 2d, Public Lands §
41.
As to the Interior Department, see 63A Am Jur 2d, Public Lands § 40.
Footnote 61. King v United States (CA7 Ind) 492 F2d 1337; Mower v Britton (CA10
Kan) 504 F2d 396.
As to the United States Parole Commission, see 59 Am Jur 2d, Pardon and Parole § 74.
Footnote 62. Ramer v Saxbe, 173 US App DC 83, 522 F2d 695.
As to the Bureau of Prisons, generally, see 60 Am Jur 2d, Penal and Correctional
Institutions §§ 15 et seq.
Footnote 63. Renegotiation Bd. v Bannercraft Clothing Co., 415 US 1, 39 L Ed 2d 123,

94 S Ct 1028.
Footnote 64. 57 Op Comp Gen 773 (1978).
As to Amtrak, generally, see 65 Am Jur 2d, Railroads § 37.
Footnote 65. Conservation Law Foundation, Inc. v Harper (DC Mass) 587 F Supp 357
(Board established by Ex Or 12348 (1982) to improve management of federal real
property).
Footnote 67. Nicholson v Brown (CA5 Tex) 599 F2d 639, reh den (CA5 Tex) 605 F2d
209.
As to the United States Air Force, generally, see 53 Am Jur 2d, Military, and Civil
Defense §§ 3, 21 et seq.
§ 27 Definition of "agency" under state administrative procedure acts
View Entire Section

The 1961 version of the state Model Administrative Procedure Act defines "agency" as
each state board, commission, department, or officer, other than the legislature or the
courts, authorized by law to make rules or to determine contested cases. 68 The agency
does not, however, have to use the term "board, commission, department, or officer" in
its title in order to be an agency. 69
As used in the 1981 revised version of the state Administrative Procedure Act, agency
means a board, commission, department, officer, or other administrative unit of the state,
including agency head, and one or more members of the agency head or agency
employees or other persons directly or indirectly purporting to act on behalf of or under
the authority of the agency head. 70 Under the 1981 version of the Act, the term does
not include the legislature or the courts, or the Governor, as the particular state statute
dictates, or the Governor in the exercise of powers derived directly and exclusively from
the constitution of the state. 71 Some courts state that the language of their state
administrative procedure act does not include legislative bodies in the statutory definition
of agency, regardless of whether they are engaged in "legislative" or "non-legislative"
activities. 72 In addition, "agency," under the 1981 version of the Model Act, also does
not include a political subdivision of the state or any of the administrative units of a
political subdivision, but it does include a board, commission, department, officer, or
other administrative unit created or appointed by joint or concerted action of an agency
and one or more political subdivisions of the state or any of their units. 73 The 1981
revised state Model Act also provides that an administrative unit otherwise qualifying as
an agency must be treated as a separate agency even if the unit is located within or
subordinate to another agency, to the extent it purports to exercise authority subject to
any provision of the Act. 74
Some state versions of the Act require that the agency have statewide jurisdiction. 75
Other state versions of the Act define agency in terms of particular state programs. 76
An agency, in such cases, is a body in which the legislature has proposed general powers
of administration of a particular state program in connection with which it has been given
statutory authority to act for the state in the implementation of that program. 77
Courts also focus on whether the state entity is expressly excluded by the procedure act.
78 Some state administrative procedure acts, in addition to excluding those in the
legislative or judicial branch, exclude the state militia 79 or the state board of
corrections. 80 In addition, there is some authority that a grievance committee for
lawyer misconduct, whether or not statewide, is not an administrative agency under the
Act, 81 as such a committee does not make rules, does not decide contested cases, 82
and may be considered "an arm of the judiciary." 83 A state may exclude from the Act a
"school, college, hospital, or other such educational, eleemosynary, or charitable
institution." 84 However, where the state does so, the exclusion applies only to those
institutions which provide educational or charitable services directly, and not to the
administrative bodies, such as the Department of Education or the Board of Education,
through which they are regulated. 85
Footnotes
Where an association could regulate its internal affairs to some extent, but was not
empowered to determine contested cases or to make rules affecting the rights and
obligations of its members without the court's approval, it was not an agency within the
meaning of the Administrative Procedure Act. Petition of Rhode Island Bar Asso., 118 RI
489, 374 A2d 802.
Footnote 69. Hopkins v Pac, 180 Conn 474, 429 A2d 952, holding the Indian Affairs
Council to be an agency.
As to definition of agency head, see § 22.
Footnote 72. Sandy Beach Defense Fund v City Council of Honolulu, 70 Hawaii 361,
773 P2d 250.
Footnote 75. State by Archabal v County of Hennepin (Minn) 495 NW2d 416; Wilson v
State (Tex Civ App Beaumont) 582 SW2d 484.
Footnote 76. Catholic Family & Community Services v Commission on Human Rights &
Opportunities, 3 Conn App 464, 489 A2d 408.
The legislature intended the Administrative Procedure Act only to apply to those
government entities clearly involved in statewide programs. Riggins v Housing
Authority of Seattle, 87 Wash 2d 97, 549 P2d 480.
Footnote 77. Catholic Family & Community Services v Commission on Human Rights &
Opportunities, 3 Conn App 464, 489 A2d 408.

Footnote 78. Falcon v Williams County Social Service Bd. (ND) 430 NW2d 569; Larue v
Registrar of Motor Vehicles, Dept. of Transp., etc. (RI) 568 A2d 755.
Footnote 79. Carman v State, Com. of Pardons & Parole, 119 Idaho 642, 809 P2d 503.
Footnote 80. Carman v State, Com. of Pardons & Parole, 119 Idaho 642, 809 P2d 503;
Martin v Department of Corrections, 424 Mich 553, 384 NW2d 392, appeal after remand
168 Mich App 647, 425 NW2d 205, app den 432 Mich 905; Jensen v Little (ND) 459
NW2d 237.
Footnote 81. Sobocinski v Statewide Grievance Com., 215 Conn 517, 576 A2d 532;
Wilson v State (Tex Civ App Beaumont) 582 SW2d 484.
Footnote 82. Wilson v State (Tex Civ App Beaumont) 582 SW2d 484.
Footnote 83. Sobocinski v Statewide Grievance Com., 215 Conn 517, 576 A2d 532.
Footnote 84. Department of Educ. v Kitchens, 193 Ga App 229, 387 SE2d 579, cert
vacated 259 Ga 791, 389 SE2d 244.
Footnote 85. Department of Educ. v Kitchens, 193 Ga App 229, 387 SE2d 579, cert
vacated 259 Ga 791, 389 SE2d 244.
§ 28 --Agencies as state, not local, entities
View Entire Section

The state Administrative Procedure Act applies to state entities, 86 and not local ones.
87 As a general rule, governmental entities established by municipalities 88 or
counties 89 to perform in a wholly local capacity and to deal with problems on a local
basis, and which are independent from any statewide system, are not state agencies
within the meaning of the Act. Thus, a city council is not an agency under the Act. 90
Nor is a planning commission that is an intercounty agency with no authority outside the
county. 91
Whether an entity is a state agency may depend on the level of state control over the
agency. 92 It also may depend on the precise function an entity performs. If the
function is entirely a state one or related exclusively to statewide concerns, then the
government body will be subject to the Administrative Procedure Act. 93 However,
even if an entity is organized pursuant to state law, if it has limited geographical
jurisdiction, its members are locally selected, and it makes its own rules, it is a local
agency not subject to the Act. 94 State status is determined by a review of all the
relevant characteristics which, when considered together, indicate the overall character of
the entity. 95 The fact that an entity is created by statute does not dispositively indicate
state status. 96 Nor does the fact that an entity is made an instrumentality of the state for
limited purposes make it a state agency, but this indicates instead that the entity should
remain independent unless brought within the scope of a directive at issue. 97 Moreover,
some state statutes contain certain variations and omissions to the Model Act which have
the effect of broadening the scope of public officers and bodies subject to the statute. 98
Footnotes
Footnote 86. Bogue v Ames Civil Service Com. (Iowa) 368 NW2d 111; League General
Ins. Co. v Michigan Catastrophic Claims Assn., 435 Mich 338, 458 NW2d 632; 1777
Penfield Rd. Corp. v Morrison-Vega (4th Dept) 116 App Div 2d 1035, 498 NYS2d 653;
Douglass v Spokane, 25 Wash App 823, 609 P2d 979, review den 94 Wash 2d 1006;
Southwestern Community Action Council, Inc. v Huntington Human Relations Comm'n,
179 W Va 573, 371 SE2d 70, 47 BNA FEP Cas 1227.
Footnote 87. Bethune v Larson (5th Dist) 188 Ill App 3d 163, 135 Ill Dec 692, 544 NE2d
49, app den (Ill) 139 Ill Dec 510, 548 NE2d 1066; Bogue v Ames Civil Service Com.
(Iowa) 368 NW2d 111; 1777 Penfield Rd. Corp. v Morrison-Vega (4th Dept) 116 App
Div 2d 1035, 498 NYS2d 653; Re Maple Tree Place, 156 Vt 494, 594 A2d 404.
The Georgia Administrative Procedures Act did not apply to proceedings of a Board of
Zoning Adjustment, because that act applies only to state agencies, and the Board of
Zoning Adjustment was a creature of local law. La Fave v Atlanta, 258 Ga 631, 373
SE2d 212.
The Police Commissioner of Boston was not a state agency within the meaning of the
Administrative Procedure Act. Roslindale Motor Sales, Inc. v Police Comr. of Boston,
405 Mass 79, 538 NE2d 312.
Footnote 88. Hammann v Omaha, 227 Neb 285, 417 NW2d 323; Douglass v Spokane, 25
Wash App 823, 609 P2d 979, review den 94 Wash 2d 1006.
The term "agency" within the meaning of the state Administrative Procedure Act does
not include a local human relations commission established by a local government entity
pursuant to municipal ordinance, even though the authority to create the agency is
granted by state law. Southwestern Community Action Council, Inc. v Huntington
Human Relations Comm'n, 179 W Va 573, 371 SE2d 70, 47 BNA FEP Cas 1227.
Footnote 89. Rubinstein v Sarasota County Public Hospital Bd. (Fla App D2) 498 So 2d
1012, 11 FLW 2638; Fisher v Housing Authority of Omaha, 214 Neb 499, 334 NW2d
636.
As to administrative bodies established by municipal corporations and counties, see 56

Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 377
et seq.
Footnote 90. Hawkeye Outdoor Advertising, Inc. v Board of Adjustment (Iowa) 356
NW2d 544.
Footnote 91. Rubinstein v Sarasota County Public Hospital Bd. (Fla App D2) 498 So 2d
1012, 11 FLW 2638.

338, 458 NW2d 632.
Footnote 93. Riggins v Housing Authority of Seattle, 87 Wash 2d 97, 549 P2d 480.
Footnote 94. Board of Directors of Starmont Community School Dist. v Banke (Iowa)
474 NW2d 558, appeal after remand (Iowa) 498 NW2d 697.
338, 458 NW2d 632.
338, 458 NW2d 632.
As to creation of administrative agencies by statute, see § 24.
Footnote 97. Cohen v Board of Trustees of University of Medicine & Dentistry, 240 NJ
Super 188, 572 A2d 1191.
Footnote 98. State ex rel. Missouri Ozarks Economic Opportunity Corp. v Long (Mo
App) 763 SW2d 381, stating that a municipality is an agency within the meaning of the
statute.
§ 29 Agencies as judicial bodies or courts
View Entire Section

Administrative agencies are not courts. 99 They are not part of the judicial system,
nor are they judicial bodies or tribunals. 1 However, administrative agencies may be
called courts, and this does not change their nature. 2 Thus, bodies which have been
designated courts of industrial relations, 3 workers' compensation courts, 4 and
county courts, 5 are, nonetheless, administrative agencies. Similarly, the Tax Court of
the United States is not a court, but an independent agency of the executive branch of
government. 6
Footnotes
Footnote 99. Dickinson v United States, 346 US 389, 98 L Ed 132, 74 S Ct 152 (draft
boards); Red Rover Copper Co. v Industrial Com., 58 Ariz 203, 118 P2d 1102, 137 ALR
740; State ex rel. Rockwell v State Bd. of Education, 213 Minn 184, 6 NW2d 251, 143
ALR 503; Straube v Bowling Green Gas Co., 360 Mo 132, 227 SW2d 666, 18 ALR2d
1335 (Public Service Commission); Re Groban, 164 Ohio St 26, 57 Ohio Ops 70, 128
NE2d 106, affd 352 US 330, 1 L Ed 2d 376, 77 S Ct 510, 3 Ohio Ops 2d 127, 76 Ohio
L Abs 368; Special Indem. Fund v Prewitt, 201 Okla 308, 205 P2d 306 (industrial
commission); Hoover Motor Exp. Co. v Railroad & Public Utilities Com., 195 Tenn 593,
261 SW2d 233.
Footnote 1. People v Western Air Lines, Inc., 42 Cal 2d 621, 268 P2d 723, app dismd
348 US 859, 99 L Ed 677, 75 S Ct 87 (public service commission); Trigg v Industrial
Com., 364 Ill 581, 5 NE2d 394, 108 ALR 153 (nonjudicial body); New York State Labor
Relations Bd. v Holland Laundry, Inc., 294 NY 480, 63 NE2d 68, 16 BNA LRRM 870,
10 CCH LC ¶ 62757, 161 ALR 802, reh den 295 NY 568, 64 NE2d 278, 17 BNA LRRM
1006 (not solely judicial); State v Huber, 129 W Va 198, 40 SE2d 11, 168 ALR 808
(board for regulation of professions).
The Supreme Court could not exercise original jurisdiction over an appeal from an
agency decision, because the original jurisdiction of the Supreme Court was limited to
the supervision of inferior judicial tribunals, and an administrative agency is not a
"inferior judicial tribunal" under the Iowa Constitution. Western International v
Kirkpatrick (Iowa) 396 NW2d 359.
Footnote 2. Ex parte Bakelite Corp., 279 US 438, 73 L Ed 789, 49 S Ct 411.
Footnote 3. State ex rel. Hopkins v Howat, 109 Kan 376, 198 P 686, 25 ALR 1210, error
dismd 258 US 181, 66 L Ed 550, 42 S Ct 277.
Footnote 4. 82 Am Jur 2d, Workers' Compensation §§ 55, 523.
Footnote 5. Re Weston Ben. Assessment Special Road Dist. (Mo App) 294 SW2d 353.
Footnote 6. Commissioner v Gooch Milling & Elevator Co., 320 US 418, 88 L Ed 139,
64 S Ct 184, 43-2 USTC ¶ 9673, 31 AFTR 764.
§ 30 Agencies as legislative or executive
View Entire Section

While administrative agencies are separate from the judicial branch of the government,
they do not clearly belong in all cases to either of the other two branches of government.
However, certain administrative agencies are considered agents of the legislative branch
of the government 7 and not of the executive branch. 8 Agencies independent
of the executive branch are sometimes called "independent agencies." 9 In other cases,
specific administrative agencies, 10 or administrative agencies generally, 11 are
deemed to be agents of the executive.
Footnotes
Footnote 7. Nathanson v NLRB, 344 US 25, 97 L Ed 23, 73 S Ct 80, 31 BNA LRRM

2036, 22 CCH LC ¶ 67234; Liberty Mut. Ins. Co. v Jones, 344 Mo 932, 130 SW2d 945,
125 ALR 1149 (workmen's compensation commission); Central R. Co. v Department of
Public Utilities, 7 NJ 247, 81 A2d 162 (ratemaking).

A state legislature's direction to the Attorney General to conduct investigations with
respect to violations of a particular statute was construed under state law to constitute the
Attorney General a one-person legislative committee. Sweezy v New Hampshire, 354
US 234, 1 L Ed 2d 1311, 77 S Ct 1203, reh den 355 US 852, 2 L Ed 2d 61, 78 S Ct 7.
The public service commission was established by the legislature to act for it and has the
same power the legislature would have so long as it acts within the power conferred by
the statute. Southwestern Gas & Electric Co. v Hatfield, 219 Ark 515, 243 SW2d 378.
Footnote 8. Humphrey's Exr. v United States, 295 US 602, 79 L Ed 1611, 55 S Ct 869.
An administrative body created by Congress to carry into effect legislative policies

embodied in the statute, in accordance with the legislative standards therein prescribed,
and to perform other specified duties as a legislative or as a judicial aid, cannot in any
proper sense be characterized as an arm or an eye of the executive. Chicago & Southern
Air Lines, Inc. v Waterman S.S. Corp., 333 US 103, 92 L Ed 568, 68 S Ct 431,
distinguishing provision for approval by the President of orders of the Civil Aeronautics
Board involving overseas and foreign air transportation.
Footnote 9. § 31.
Footnote 10. Brennan v Black (Sup) 34 Del Ch 380, 104 A2d 777 (school district);
Dunham v Ottinger, 243 NY 423, 154 NE 298, error dismd 276 US 592, 72 L Ed 721,
48 S Ct 212 (investigations by Attorney General).
Footnote 11. Henry v Parrish, 307 Ky 559, 211 SW2d 418; Martin v Wolfson, 218 Minn
557, 16 NW2d 884, 9 CCH LC ¶ 62451.
Administrative tribunals, such as the industrial commission, are part of the executive
branch of the government. They illustrate, however, the tendency to overrun the strict
bounds of the three branches of government set in early legal history. Martin v Wolfson,
218 Minn 557, 16 NW2d 884, 9 CCH LC ¶ 62451.
§ 31 Agencies as independent or subordinate
View Entire Section

The term "independent agency" or "commission" is often used 12 to designate an

agency independent of the executive branch. 13 Unlike those federal agencies which
are subject to Presidential supervision through consultation with the Cabinet officers, the
many independent agencies are charged by Congress to remain independent of the rest of
the executive branch. 14 But independence does not mean that a Commission such as
the Nuclear Regulatory Commission must ignore or reject positions espoused by the
President in order to make an informed decision on matters of national interest. 15 A
federal regulatory commission, although independent of executive branch control, may
be required to give consideration to matters which are the responsibility of other federal
agencies, so that consultation with officials of Cabinet departments is encouraged in
some instances. 16
Alternatively, the term "independent" is used to indicate an agency not subject to a

superior head of department 17 or in contrast to "subordinate," 18 the latter term being
applied to bodies whose action is subject to administrative review or revision. 19
Footnotes
Footnote 12. Commonwealth ex rel. Banks v Cain, 345 Pa 581, 28 A2d 897, 143 ALR
1473; Chapel v Commonwealth, 197 Va 406, 89 SE2d 337.
Law Reviews: Steele and Bowman, The Constitutionality of Independent Regulatory

Agencies under the Necessary and Proper Clause: The Case of the Federal Election
Commission. 4 Yale J Reg 363 (Spring, 1987).
Footnote 13. FTC v Ruberoid Co., 343 US 470, 96 L Ed 1081, 72 S Ct 800, (dissenting
opinion, Jackson, J.).
Footnote 14. Westinghouse Electric Corp. v United States Nuclear Regulatory Com.
(CA3) 598 F2d 759, 13 Envt Rep Cas 1168, 9 ELR 20338.
Law Reviews: The Independence of Independent Agencies: A Symposium

[Nineteenth annual administrative law issue]. 1988 Duke LJ 215 (April/June, 1988).
(CA3) 598 F2d 759, 13 Envt Rep Cas 1168, 9 ELR 20338 (NRC suspension of
decision-making process regarding plutonium recycling in deference to President Carter's
objective of deferring recycling to guard against proliferation of nuclear weapons).
Footnote 16. Public Service Com. v Federal Energy Regulatory Com., 191 US App DC
19, 589 F2d 542 (consultation between FERC and Department of Interior about offshore
leasing).
Footnote 17. Cofman v Ousterhous, 40 ND 390, 168 NW 826, 18 ALR 219.
In Floyd v Department of Labor & Industries, 44 Wash 2d 560, 269 P2d 563, the court
noted that the board of industrial insurance appeals was created as an independent agency
wholly divorced from the department of labor and industries.
Footnote 18. Cofman v Ousterhous, 40 ND 390, 168 NW 826, 18 ALR 219.
A county board of health is a subordinate governmental agency which of necessity must

derive funds either from the state or county, or both. Champion v Vance County Board of
Health, 221 NC 96, 19 SE2d 239.
Footnote 19. Joseph Burstyn, Inc. v Wilson, 303 NY 242, 101 NE2d 665, revd on other
grounds 343 US 495, 96 L Ed 1098, 72 S Ct 777, 1 Media L R 1357.

§ 32 Agencies as corporate bodies or legal entities
View Entire Section

Some administrative agencies are corporate bodies with legal capacity to sue and be sued
in the courts. 20 It is within the power of Congress to create corporations as an
appropriate means of executing the powers of government. 21 Like most federal
government agencies, government corporations are typically empowered to issue
regulations to execute general policy decided by Congress. 22
Other agencies also have been held to constitute legal entities with perpetual existence
apart from their members, 23 and such as may be expressly authorized and empowered
to bring suit. 24
Footnotes
Footnote 20. Texas & P. R. Co. v Interstate Commerce Com., 162 US 197, 40 L Ed 940,
16 S Ct 666; State ex rel. Morris v West Virginia Racing Com., 133 W Va 179, 55 SE2d
263.
Footnote 21. Keifer & Keifer v Reconstruction Finance Corp., 306 US 381, 83 L Ed
784, 59 S Ct 516.
As to powers of Congress generally, see 77 Am Jur 2d, United States §§ 26 et seq.
As to rule generally barring delegation of legislative power and exceptions, see 16 Am

Jur 2d, Constitutional Law §§ 335 et seq.
Footnote 22. Federal Crop Ins. Corp. v Merrill, 332 US 380, 92 L Ed 10, 68 S Ct 1,
175 ALR 1075 (criticized on other grounds by Montana v Kennedy, 366 US 308, 6 L
Ed 2d 313, 81 S Ct 1336) as stated in Portmann v United States (CA7 Ill) 674 F2d 1155
and (not followed by on other grounds Rogers v Tennessee Valley Authority (CA6 Ky)
692 F2d 35) and (among conflicting authorities on other grounds noted in Boeing Co.
(ASBCA) 86-3 BCA ¶ 19314) and (among conflicting authorities on other grounds noted
in Durant v United States, 16 Cl Ct 447) and (criticized on other grounds by Office of
Personnel Management v Richmond, 496 US 414, 110 L Ed 2d 387, 110 S Ct 2465) as
stated in American Nat. Bank & Trust Co. v United States, 23 Cl Ct 542, 37 CCF ¶
76134.
Footnote 23. Champion v Vance County Board of Health, 221 NC 96, 19 SE2d 239,
where board was described as a public quasi corporation.
A statutory provision so fixing the terms of office of the members of a board that they do
not expire concurrently, only one of the three going out each year, indicates an intention
that such board shall be a continuous body or entity, and that transactions of and with the
board are the transactions of and with the board as a continuous legal entity and not of its
individual members. Tate v School Dist., 324 Mo 477, 23 SW2d 1013, 70 ALR 771.
Footnote 24. Department of Banking v Hedges, 136 Neb 382, 286 NW 277.
§ 33 Agencies not ordinarily or wholly administrative
View Entire Section

When bodies or officers are agencies for specific purposes, and act in an administrative
capacity, they may be subject to certain limitations of administrative agencies, as well.
This is true in regard to particular powers exercised by local governing bodies, such as
boards of supervisors or county commissioners, 25 city councils, 26 and village
commissioners; 27 powers delegated by Congress to the President 28 or a member of
his or her cabinet, 29 or by state legislatures to the Governor of the state; 30 and,
where the law permits this, to certain duties or powers reposed by the legislature in courts
or judges. 31
Footnotes
Footnote 25. Wilton v St. Johns County, 98 Fla 26, 123 So 527, 65 ALR 488; County
Com'rs of Anne Arundel County v Ward, 186 Md 330, 46 A2d 684, 165 ALR 816
(zoning); State ex rel. York v Board of Com'rs, 28 Wash 2d 891, 184 P2d 577, 172 ALR
1001 (grant of franchise).
Footnote 26. Walker v San Gabriel, 20 Cal 2d 879, 129 P2d 349, 142 ALR 1383
(licensing); Garden Court Apartments, Inc. v Hartnett (Super) 45 Del 1, 65 A2d 231
(building permit); Osius v St. Clair Shores, 344 Mich 693, 75 NW2d 25, 58 ALR2d
1079 (building permit); Milwaukie Co. of Jehovah's Witnesses v Mullen, 214 Or 281,
330 P2d 5, 74 ALR2d 347, cert den and app dismd 359 US 436, 3 L Ed 2d 932, 79 S
Ct 940 (building permit); Houston v Lurie, 148 Tex 391, 224 SW2d 871, 14 ALR2d 61
(ordinance declaring a building to be a public nuisance and ordering its demolition); State
ex rel. Klostermeyer v Charleston, 130 W Va 490, 45 SE2d 7, 175 ALR 637 (issuing
bonds); State ex rel. Haddad v Charleston, 92 W Va 57, 114 SE 378, 27 ALR 323
(licensing).
But see, Sandy Beach Defense Fund v City Council of Honolulu, 70 Hawaii 361, 773
P2d 250, where the city counsel, as the legislative branch of the county, was not subject
to the procedural requirements of the Hawaii Administrative Procedure Act when acting
in either a legislative or non-legislative capacity.
Footnote 27. State ex rel. Synod of Ohio v Joseph, 139 Ohio St 229, 22 Ohio Ops 241, 39
NE2d 515, 138 ALR 1274, holding that when village commissioners sit in joint session
with the zoning commissioners upon the issuance of building permits under the zoning
ordinance, they are acting in an administrative capacity.
Footnote 28. Cole v Young, 351 US 536, 100 L Ed 1396, 76 S Ct 861.

Footnote 29. Secretary of Agriculture v Central Roig Refining Co., 338 US 604, 94 L
Ed 381, 70 S Ct 403.
Footnote 30. Opinion of Justices, 315 Mass 761, 52 NE2d 974, 150 ALR 1482
(specification of standards required); Wells v Childers, 196 Okla 339, 165 P2d 358
(expenditure of funds).
In Booker v Reavy, 281 NY 318, 23 NE2d 9, it was held that the legislature had power to
make the Governor a member of a commission or possibly to make him the sole
commissioner.
A statute authorizing the Governor to remove an officer has been held to constitute the
Governor an administrative officer. State ex rel. Richards v Ballentine, 152 SC 365, 150
SE 46, 66 ALR 574; Emerson v Hughes, 117 Vt 270, 90 A2d 910, 34 ALR2d 539.
Footnote 31. Wolf v Young (Tex Civ App San Antonio) 277 SW2d 744, writ ref n r e
(petition to call an election for incorporation of a city); Thompson v Smith, 155 Va 367,
154 SE 579, 71 ALR 604 (application for reinstatement of automobile driver's permit
which had been revoked).
As to limitations on the powers of administrative agencies, generally, see §§ 59-61, 64.
2. Statutes Relating to Agencies [34-36]
§ 34 Validity
View Entire Section

Courts approach constitutional questions with great deliberation, exercising power in this
respect with the greatest possible caution, and even reluctance, and ruling against the
constitutionality of a statute only as a last resort, when absolutely necessary, and where
validity is beyond a reasonable doubt. 32 Vesting two agencies with the same power
does not necessarily render a statute uncertain and therefore unconstitutional, although
conflict or confusion may arise from possible concurrent exercise of the power. 33
The general rule that a statute may be constitutional in one part and unconstitutional in
another, and if the invalid part is severable from the rest, the portion which is
constitutional may stand while that which is unconstitutional is stricken out and rejected,
34 has been applied in the case of statutes relating to administrative agencies. 35
But where it is not possible to separate that part which is constitutional from that which is
unconstitutional, the whole statute falls. 36 A provision in an administrative law statute
that valid portions will be enforced even though it is judicially determined that some part
or parts of the statute are invalid is generally carried out by the courts. 37
Footnotes
Footnote 32. 16 Am Jur 2d, Constitutional Law § 158.
Footnote 33. School Dist. v Callahan, 237 Wis 560, 297 NW 407, 135 ALR 1081.
Footnote 35. Champlin Refining Co. v Corporation Com. of Oklahoma, 286 US 210, 76
L Ed 1062, 52 S Ct 559, 86 ALR 403 (invalid provision for fine and imprisonment);
Reagan v Farmers' Loan & Trust Co., 154 US 362, 38 L Ed 1014, 14 S Ct 1047 (not
followed on other grounds by Cassells v University Hosp. at Stony Brook (ED NY) 740
F Supp 143, 62 BNA FEP Cas 964, 54 CCH EPD ¶ 40199) (invalid provision for
imposition of penalties); State v Marana Plantations, Inc., 75 Ariz 111, 252 P2d 87
(unconstitutional delegation of legislative power); Wells, Fargo & Co's Express v
Crawford County, 63 Ark 576, 40 SW 710 (invalid provision for arbitrary method of
assessment); Butterworth v Boyd, 12 Cal 2d 140, 82 P2d 434, 126 ALR 838; Riley v
Chambers, 181 Cal 589, 185 P 855, 8 ALR 418; Ex parte Gerino, 143 Cal 412, 77 P 166
(invalid provision as to manner of appointing members of examining board); State v
Atlantic C. L. R. Co., 56 Fla 617, 47 So 969; State v Heitz, 72 Idaho 107, 238 P2d 439;
Vissering Mercantile Co. v Annunzio, 1 Ill 2d 108, 115 NE2d 306, 24 CCH LC ¶ 67848,
39 ALR2d 728, app dismd 347 US 949, 98 L Ed 1096, 74 S Ct 680, 25 CCH LC ¶
68350; Kennedy v State Board of Registration, 145 Mich 241, 108 NW 730 (invalid
provision for refusal or revocation of license for moral turpitude); Nelsen v Tilley, 137
Neb 327, 289 NW 388, 126 ALR 729; Eureka v Wilson, 15 Utah 67, 48 P 150 (invalid
provision of dispensing power).
Footnote 37. Oklahoma v United States Civil Service Com., 330 US 127, 91 L Ed 794,
67 S Ct 544; Thornbrough v Williams, 225 Ark 709, 284 SW2d 641, 29 CCH LC ¶
69669; Jersey Maid Milk Products Co. v Brock, 13 Cal 2d 620, 91 P2d 577 (criticized on
other grounds by McHugh v Santa Monica Rent Control Bd., 49 Cal 3d 348, 261 Cal
Rptr 318, 777 P2d 91); State v Heitz, 72 Idaho 107, 238 P2d 439; Vissering Mercantile
Co. v Annunzio, 1 Ill 2d 108, 115 NE2d 306, 24 CCH LC ¶ 67848, 39 ALR2d 728, app
dismd 347 US 949, 98 L Ed 1096, 74 S Ct 680, 25 CCH LC ¶ 68350; Nelsen v Tilley,
137 Neb 327, 289 NW 388, 126 ALR 729; Richards v Columbia, 227 SC 538, 88 SE2d
683.
Such a provision clearly evidences a legislative intention not only that an express
provision found to be unconstitutional should be disregarded, but also that no implication
from the terms of the statute which would render it invalid should be indulged. Crowell v
Benson, 285 US 22, 76 L Ed 598, 52 S Ct 285 (ovrld on other grounds by Director,
Office of Workers' Compensation Programs, etc. v Perini North River Assoc., 459 US
297, 74 L Ed 2d 465, 103 S Ct 634).
§ 35 Defects in administration as ground for attacking statute
View Entire Section

A clear distinction must be made between charges that an act as passed by the legislature
is discriminatory, and charges that a commission is enforcing the act in a discriminatory
manner. 38 It is well established that a provision not objectionable on its face may be
adjudged unconstitutional because of its effect in operation. 39 However, a statute
which is not invalid on its face may not be attacked because of anticipated improper or
invalid action in administration of it. 40 Failure of a commission to follow
necessary procedure in a particular case would at most justify an objection to the
administrative determination rather than to the statute itself. 41 The possibility that
administrative officers will act in defiance of the policy and standards stated in the
delegation of authority is not a ground for objection to the delegation. 42
Footnotes
Footnote 38. Duhame v State Tax Com., 65 Ariz 268, 179 P2d 252, 171 ALR 684.
Footnote 39. 16A Am Jur 2d, Constitutional Law §§ 226, 802.
Footnote 40. Yakus v United States, 321 US 414, 88 L Ed 834, 64 S Ct 660, 28 Ohio
Ops 220 (among conflicting authorities on other grounds noted in Touby v United States,
500 US 160, 114 L Ed 2d 219, 111 S Ct 1752, 91 CDOS 3627, 91 Daily Journal DAR
5811); Bourjois, Inc. v Chapman, 301 US 183, 81 L Ed 1027, 57 S Ct 691; Senior
Citizens League, Inc. v Department of Social Secur., 38 Wash 2d 142, 228 P2d 478.
As to injunctive relief to prevent anticipated improper or invalid action, see 42 Am Jur

2d, Injunctions § 187.
Footnote 41. American Power & Light Co. v SEC, 329 US 90, 91 L Ed 103, 67 S Ct
133 (failure to give notice and opportunity for hearing contemplated by statute).
Footnote 42. Walls v Guntersville, 253 Ala 480, 45 So 2d 468; Butterworth v Boyd, 12
Cal 2d 140, 82 P2d 434, 126 ALR 838; Ours Properties, Inc. v Ley, 198 Va 848, 96
SE2d 754.
§ 36 Standing to attack constitutionality
View Entire Section

The elementary doctrine that the constitutionality of a legislative act is open to attack
only by a person whose rights are affected thereby, 43 applies to statutes relating to
administrative agencies, 44 the validity of which may not be called into question
in the absence of a showing of substantial harm, actual or impending, to a legally
protected interest 45 and directly resulting from enforcement of the statute. 46
Thus, where a statute applies to different classes of persons a contestant may raise
questions only as to matters proper to his own class, 47 and grounds of
unconstitutionality not presented in the particular facts of the case may not be raised. 48
Footnotes
Footnote 44. Jones v Opelika, 316 US 584, 86 L Ed 1691, 62 S Ct 1231, 141 ALR 514,
vacated on other grounds 319 US 103, 87 L Ed 1290, 63 S Ct 890; Plymouth Coal Co.
v Pennsylvania, 232 US 531, 58 L Ed 713, 34 S Ct 359; State v Friedkin, 244 Ala 494,
14 So 2d 363; State ex rel. Atlantic C. L. R. Co. v State Bd. of Equalizers, 84 Fla 592, 94
So 681, 30 ALR 362; Pittsburgh, C., C. & S. L. R. Co. v State, 180 Ind 245, 102 NE 25;
Keller v Kentucky Alcoholic Beverage Control Board, 279 Ky 272, 130 SW2d 821; State
ex rel. State Board of Mediation v Pigg, 362 Mo 798, 244 SW2d 75, 29 BNA LRRM
2145, 20 CCH LC ¶ 66647.
Footnote 45. Gange Lumber Co. v Rowley, 326 US 295, 90 L Ed 85, 66 S Ct 125;
Anderson Nat. Bank v Luckett, 321 US 233, 88 L Ed 692, 64 S Ct 599, 151 ALR 824.
Footnote 46. Board of Trade v Olsen, 262 US 1, 67 L Ed 839, 43 S Ct 470; Ex parte

Anderson, 191 Or 409, 229 P2d 633, 29 ALR2d 1051, reh den 191 Or 452, 230 P2d 770,
29 ALR2d 1073.
As to when a public officer may question the constitutionality of a statute or ordinance

imposing duties upon him, see 16 Am Jur 2d, Constitutional Law § 199; 52 Am Jur 2d,
Mandamus §§ 94 et seq.
Footnote 47. Garden Court Apartments, Inc. v Hartnett (Super) 45 Del 1, 65 A2d 231;
State v Heitz, 72 Idaho 107, 238 P2d 439; Thompson v Tobacco Root Co-op. State
Grazing Dist., 121 Mont 445, 193 P2d 811.
The contention that the absence of an express provision for notice and opportunity for
hearing as to security holders, regarding the proceedings under the Public Utility Holding
Company Act for the elimination of holding companies, renders such provision
unconstitutional, is not available to the management of a holding company against which
such proceedings were taken on notice as required by the statute. American Power &
Light Co. v SEC, 329 US 90, 91 L Ed 103, 67 S Ct 133, stating that the management
possessed no standing to assert invalidity from the viewpoint of the security holder's
constitutional rights.
Footnote 48. Richards v Columbia, 227 SC 538, 88 SE2d 683.
B. Members and Officers [37-51]
Research References
5 USCS § 556(b)
Model State Administrative Procedure Act (1981) §§ 4-202, 4-214
ALR Digests: Administrative Law §§ 5-8, 10

1A Federal Procedural Forms, L Ed, Administrative Law § 2:109; 9 Federal Procedural
Forms, L Ed, Foods, Drugs, and Cosmetics § 31:68
1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Forms 118-121, 220
§ 37 Generally
View Entire Section

An administrative agency may constitute an entity apart from its members, 49 and may
come into existence before a majority of its members are appointed. 50 Administrative
functions may be vested in members of local legislative bodies, in executive officers,
and, in some states, in judges, 51 interested persons, 52 and in private persons. 53
Ex officio members of a public body are members for all purposes. 54
 Observation: The term "administrative agency" under the Model State

Administrative Procedure Act is not limited to agencies having multiple members but
also embraces an agency of a single person. 55
Footnotes
Footnote 49. § 32.
Footnote 50. Liquefied Petroleum Gas Com. v E. R. Kiper Gas Corp., 229 La 640, 86 So
2d 518.
Footnote 51. § 33.
Footnote 52. The National Railroad Adjustment Board is composed of representatives of

railroads and unions. Slocum v Delaware, L. & W. R. Co., 339 US 239, 94 L Ed 795,
70 S Ct 577, 25 BNA LRRM 2617, 18 CCH LC ¶ 65694.
Footnote 53. Caminetti v Pacific Mut. Life Ins. Co., 22 Cal 2d 344, 139 P2d 908, cert den
320 US 802, 88 L Ed 484, 64 S Ct 428, holding that a board of voting trustees may
properly serve as a state agency or instrumentality, although its members are private
persons.
As to number of members necessary to exercise power, see §§ 99, 100.
Footnote 54. Louisville & Jefferson County Planning & Zoning Com. v Ogden, 307 Ky
362, 210 SW2d 771 (superseded by statute on other grounds as stated in Minton v Fiscal
Court of Jefferson County (Ky App) 850 SW2d 52).

Footnote 55. § 27.
§ 38 Appointment
View Entire Section

In cases where members of an administrative agency are appointed, the members must be
appointed in accordance with the Constitution 56 and the applicable statutes. 57 The
appointing power determines the fitness of the applicant; whether or not he or she is the
proper one to discharge the duties of the position. 58 The executive power to appoint
members of an agency is unaffected by the rule that the discretion entrusted to an agency
must be circumscribed by reasonably definite standards. 59 Likewise, the courts
have no general supervising power over appointments, 60 and will not measure the
qualifications of state officials. 61 However, appointments must meet the minimal
legal standards necessary to comply with the requirements of statute, and whether such
requirements have been met is subject to judicial review. 62
Footnotes
Footnote 56. Board of Medical Examiners v Steward, 203 Md 574, 102 A2d 248;
Metropolitan Life Ins. Co. v Boland, 281 NY 357, 23 NE2d 532, 2 CCH LC ¶ 18473.
With few exceptions, the powers with which this article is concerned are exercised by
appointive rather than elective officers. See 63A Am Jur 2d, Public Officers and
Employees §§ 93 et seq.
Footnote 57. Webb v Workers' Compensation Com., 292 Ark 349, 730 SW2d 222,
concurring op at 292 Ark 352, 733 SW2d 726; Board of Medical Examiners v Steward,
203 Md 574, 102 A2d 248; Metropolitan Life Ins. Co. v Boland, 281 NY 357, 23 NE2d
532, 2 CCH LC ¶ 18473.
Footnote 58. Sanza v Maryland State Board of Censors, 245 Md 319, 226 A2d 317.
Footnote 59. Star v Preller (DC Md) 352 F Supp 530, vacated 413 US 905, 37 L Ed 2d
1016, 93 S Ct 3054, on remand (DC Md) 375 F Supp 1093, affd 419 US 956, 42 L Ed
2d 173, 95 S Ct 217; Sanza v Maryland State Board of Censors, 245 Md 319, 226 A2d
317.
As to standards governing administrative action, see § 56.
2d 173, 95 S Ct 217; Sanza v Maryland State Board of Censors, 245 Md 319, 226 A2d
317.
2d 173, 95 S Ct 217.
Footnote 62. Webb v Workers' Compensation Com., 292 Ark 349, 730 SW2d 222,
concurring op at 292 Ark 352, 733 SW2d 726.
§ 39 Status
View Entire Section

Go to Supplement
Particular officers and members of administrative agencies or bodies which exercise

determinative powers have been declared to be executive, 63 administrative, or
ministerial officers. 64 For most purposes, there is no distinction between these
classifications. The terms are used interchangeably 65 in stating the general rule that
such officers are not judicial officers 66 or judges. 67
Whether a person is or is not a ministerial officer depends, not on the character of the
particular act which the officer may be called upon to perform, or whether he or she
exercises judgment and discretion with reference to such act, but whether the general
nature and scope of the duties is of a ministerial character. 68
§ 39 ----Status [SUPPLEMENT]
Case authorities:
Where state agency was defendant party in prior litigation, all present and former officers
and agents of agency, and alleged decisionmakers, were in privy with agency. Northern
States Power Co. v Bugher (1995) 189 Wis 2d 541, 525 NW2d 723.
Footnotes
Footnote 63. Southern R. Co. v Virginia, 290 US 190, 78 L Ed 260, 54 S Ct 148.
Footnote 64. State v Loechner, 65 Neb 814, 91 NW 874.
Footnote 65. Southern R. Co. v Virginia, 290 US 190, 78 L Ed 260, 54 S Ct 148.
Footnote 66. Pigeon v Employers' Liability Assur. Corp., 216 Mass 51, 102 NE 932
(members of industrial accident board); State v Loechner, 65 Neb 814, 91 NW 874
(members of board of education).
Members of a state board of taxation are not judicial officers within a constitutional
provision requiring judicial officers to be elected by the people. Cleveland, C., C. & S.
L. R. Co. v Backus, 133 Ind 513, 33 NE 421, affd 154 US 439, 38 L Ed 1041, 14 S Ct
1122.
Footnote 67. Kentucky & I. Bridge Co. v Louisville & N. R. Co. (CC Ky) 37 F 567, app
dismd 149 US 777, 37 L Ed 964, 13 S Ct 1048 (Interstate Commerce Commission).
Footnote 68. State v Loechner, 65 Neb 814, 91 NW 874.
§ 40 Effect of change in membership
View Entire Section

At least some administrative agencies have an existence apart from their members, 69
and it has been held that an agency remains the same although its members' terms of
office expire and the board is reconstituted. 70 A successor in office to a board member
has been held not to be the legal representative of the member. 71
Questions in regard to the effect of a change of membership or personnel arise in

connection with the power of an agency to act initially, 72 the abatement or revival of
actions pending in court, 73 and liability for the acts of a predecessor. 74
Footnotes
Footnote 69. § 32.
Footnote 70. Raymond v Fish, 51 Conn 80.
Footnote 71. Mallonee v Fahey (US) 97 L Ed 1635, per Douglas, J., as Circuit Justice.
Footnote 72. Board of Medical Examiners v Steward, 203 Md 574, 102 A2d 248
(unlawful appointment of substitute for member on leave).
Footnote 73. 1 Am Jur 2d, Abatement, Survival, and Revival § 141.
Footnote 74. Mallonee v Fahey (US) 97 L Ed 1635, per Douglas, J., as Circuit Justice,
stating that, while successors in office of a deceased member of a federal administrative
board may be personally liable if, as board members, they pursue the same policy as the
deceased and ratify his wrongful acts, they can incur no liability for acts alleged to have
been committed by him for which he would have been personally liable, even if it is
assumed that any such claim against him was not extinguished by his death.
2. Disqualification [41-51]
a. In General [41-43]

§ 41 Generally
View Entire Section

Go to Supplement
An administrative officer may be disqualified by express provision of a statute applicable

to the administrative proceeding at issue. 75 The federal Administrative Procedure
Act specifically provides that, in the context of a hearing, a presiding or participating
employee may at any time disqualify himself or herself. 76 In addition, although an
administrative agency cannot possibly be under stronger constitutional compulsions in
respect to disqualification than a court, 77 the common-law rule of disqualification
applicable to judges, which requires a judge to exercise sound discretion by refraining
from trying cases where any circumstances might cast doubt or suspicion on the fairness
of the court, 78 extends to administrative officials exercising judicial or quasi-judicial
functions. 79 The 1981 version of the Model State Administrative Procedure Act
provides that any person serving or designated to serve alone or with others as presiding
officer is subject to disqualification for bias, prejudice, interest, or any other cause
provided for in the Act or for which a judge is or may be disqualified. 80 The rule of
administrative disqualification has been applied or recognized in cases of suspension or
revocation of licenses, 81 removal of officers, 82 the establishment of drainage
districts, 83 disincorporation of a road district, 84 eminent domain proceedings, 85
and the making of local or special assessments. 86
Although agency members may be disqualified from rulemaking proceedings as well, the
standards for disqualification are not always the same as in the case of adjudication. 87
The burden of proof on parties seeking to disqualify agency members from rulemaking
proceedings is higher because of the constitutionally-mandated deference to an
administrative agency's legislative perogatives. 88 Parties must support their motion to
disqualify by clear and convincing evidence. 89
Zeal in the performance of a public duty does not disqualify. 90
Practice Aids: Notice–Objections to qualifications of hearing officer or member of

administrative tribunal. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 170.
Footnotes
Forms: Motion–That designated presiding officer disqualify himself [21 CFR §§

2.143, 2.165]. 9 Federal Procedural Forms, L Ed § 31:68.

As to procedure for disqualification, see § 317.
As to administrative hearings, generally, see §§ 294 et seq.
Annotation: When will member of federal regulatory board, commission, authority, or

similar body be enjoined from participating in rulemaking or adjudicatory proceeding
because of "personal bias or other disqualification" under 5 USCS § 556(b), 51 ALR
Fed 400.
Footnote 77. FTC v Cement Institute, 333 US 683, 92 L Ed 1010, 68 S Ct 793, reh den
334 US 839, 92 L Ed 1764, 68 S Ct 1492.
The applicable due process standards for disqualification of administrators do not rise to
the heights of those prescribed for judicial disqualification. Clisham v Board of Police
Comrs., 223 Conn 354, 613 A2d 254.
As to disqualification of judges to act in a particular case, generally, see 46 Am Jur 2d,

Judges §§ 86 et seq.
Footnote 78. 46 Am Jur 2d, Judges § 94.
Footnote 79. Grant v Senkowski (3d Dept) 146 App Div 2d 948, 537 NYS2d 323.
Most of the law concerning disqualification because of interest applies with equal force
to administrative adjudicators. Gibson v Berryhill, 411 US 564, 36 L Ed 2d 488, 93 S
Ct 1689.
As to limitations on disqualification of judges as applying in the administrative context,

see § 316.
As to disqualification for bias, generally, see §§ 44 et seq.
As to disqualification for bias in the hearing context, generally, see §§ 316, 317.
Footnote 81. Brinkley v Hassig (CA10 Kan) 83 F2d 351; State ex rel. Miller v Aldridge,
212 Ala 660, 103 So 835, 39 ALR 1470; State ex rel. Cannon v Churchwell (Fla App
D4) 195 So 2d 599; Board of Medical Examiners v Steward, 203 Md 574, 102 A2d 248;
New Jersey State Board of Optometrists v Nemitz, 21 NJ Super 18, 90 A2d 740; State ex
rel. Getchel v Bradish, 95 Wis 205, 70 NW 172.
Footnote 82. Hawkins v Common Council of Grand Rapids, 192 Mich 276, 158 NW 953;
Emerson v Hughes, 117 Vt 270, 90 A2d 910, 34 ALR2d 539; State ex rel. Barnard v
Board of Education, 19 Wash 8, 52 P 317.
Footnote 83. 25 Am Jur 2d, Drains and Drainage Districts § 25.

Footnote 85. 26 Am Jur 2d, Eminent Domain § 411.
Footnote 86. 70A Am Jur 2d, Special or Local Assessments § 127.
Footnote 87. Tennessee Cable Television Assn. v Tennessee Public Service Com. (Tenn
App) 844 SW2d 151, clarified on other grounds, on reh, remanded (Tenn App) 1992
Tenn App LEXIS 623.
See § 45.
Tenn App LEXIS 623.
Tenn App LEXIS 623.
Footnote 90. New Jersey State Board of Optometrists v Nemitz, 21 NJ Super 18, 90 A2d
740; Seidenberg v New Mexico Board of Medical Examiners, 80 NM 135, 452 P2d 469.
§ 42 Effect of disqualification
View Entire Section

The general rule in the federal courts has been that, except in limited circumstances,
Congress did not contemplate a grant of jurisdiction to the courts to prevent abuse or
misuse of power by prior constraint, 91 and where issues relative to disqualification
are essentially questions of fact, rather than law, proper occasion for court involvement
has been held to be upon judicial review of agency action in order to avoid undue delay
in the administrative determination. 92 The federal Administrative Procedure Act
provides that upon the filing in good faith of a timely and sufficient affidavit of personal
bias or other disqualification of a presiding or participating employee, the agency must
determine the matter as part of the record and decision in the case. 93 Nevertheless,
some courts have held that where the issues in question are purely legal, 94 continued
participation would amount to a denial of due process, 95 or, upon balancing the variable
factors in the case, equity so requires, 96 injunction is appropriate.
Some state courts adopt a less restrictive approach to injunctions. Such courts state that
disqualification may furnish grounds for compelling the officer to recuse himself or
herself from sitting in the proceeding if he or she does not voluntarily retire, 97 or for
enjoining an officer from participation, 98 or for prohibiting a board, one member of
which is disqualified, from proceeding. 99 However, there is authority that where there
is a de novo review by a chancery court and the board's decision is not accorded a
presumption of correctness, it is not relevant that a board acted arbitrarily or capriciously.
1

Since participation by one biased decision maker violates due process, 2 it is generally
held that if a disqualified member of an administrative agency participates in the hearing
and determination it makes the decision void or voidable at the instance of a party
aggrieved who has made timely protest, even though the member's presence was not
required to constitute a quorum, or a majority of the board could have acted legally
without the member, 3 although there is some authority to the contrary. 4
A determination made or participated in by a disqualified officer is merely voidable

where only the common-law rule as to disqualification is violated 5 and the proceeding
is reviewable, 6 but if participation by a disqualified officer is prohibited by statute, the
determination may be void. 7
Where a determination is only voidable by reason of disqualification, the irregularity may

be waived 8 by failure to object, 9 or by taking part in the proceedings with knowledge
of the fact. 10 Knowledge, actual or constructive, is an essential prerequisite of the
waiver. Accordingly, where the duty was upon the appointing body to select and appoint
competent and qualified officers, a party's failure to search into the qualifications of
commissioners during a proceeding before them is not negligence, and he or she is
entitled to raise the question of disqualification by reason of interest after an award by the
commissioners had been made where, during the proceedings, he or she had no
knowledge of the disqualification. 11
Disqualification of an administrative officer can have no effect if he or she was not

present and did not take part in the determination assailed. 12
Footnotes
Footnote 91. SEC v R. A. Holman & Co., 116 US App DC 279, 323 F2d 284, cert den
375 US 943, 11 L Ed 2d 274, 84 S Ct 350.

Fed 400.
Footnote 92. Davis v Secretary, Dept. of Health, Education & Welfare (DC Md) 262 F
Supp 124, 9 BNA FEP Cas 1183, 1 CCH EPD ¶ 9764, 54 CCH LC ¶ 9039, affd (CA4
Md) 386 F2d 429, 1 BNA FEP Cas 496, 67 BNA LRRM 2571, 1 CCH EPD ¶ 9829, 56
CCH LC ¶ 9094.
CCH LC ¶ 9094.
Footnote 95. Amos Treat & Co. v SEC, 113 US App DC 100, 306 F2d 260.
Footnote 96. Leyden v Federal Aviation Administration (ED NY) 315 F Supp 1398

(court employed a procedure of balancing variables in a case to determine whether to
provide injunctive relief from pending administrative proceedings); Davis v Secretary,
Dept. of Health, Education & Welfare (DC Md) 262 F Supp 124, 9 BNA FEP Cas 1183,
1 CCH EPD ¶ 9764, 54 CCH LC ¶ 9039, affd (CA4 Md) 386 F2d 429, 1 BNA FEP Cas
496, 67 BNA LRRM 2571, 1 CCH EPD ¶ 9829, 56 CCH LC ¶ 9094.
Footnote 97. State ex rel. Miller v Aldridge, 212 Ala 660, 103 So 835, 39 ALR 1470.
Footnote 98. Sussel v Honolulu Civil Service Com., 71 Hawaii 101, 784 P2d 867 (stating
that since the fundamentals of just procedure impose a requirement of impartiality on
administrative agencies which adjudicate as well as on courts, there is no reason why an
administrative adjudicator should be allowed to sit with impunity in a case where the
circumstances fairly give rise to an appearance of impropriety and reasonably cast
suspicion on his impartiality).
Footnote 99. State ex rel. Barnard v Board of Education, 19 Wash 8, 52 P 317.
Footnote 1. Cooper v Williamson County Bd. of Educ. (Tenn) 803 SW2d 200, reh overr
(Tenn) 1990 Tenn LEXIS 420 and cert den (US) 114 L Ed 2d 100, 111 S Ct 2013.
Footnote 2. § 302.
Footnote 3. Re Weston Ben. Assessment Special Road Dist. (Mo App) 294 SW2d 353,
stating that the rule is sound because the participation of the disqualified member in the
proceeding may have influenced the opinions of the other members.
Footnote 4. Farb v State Banking Board (Tex Civ App Austin) 343 SW2d 508, writ ref n
r e (May 10, 1961) and rehg of writ of error overr (Jun 7, 1961).
Footnote 5. Naperville v Wehrle, 340 Ill 579, 173 NE 165, 71 ALR 535; Stahl v Board
of Sup'rs, 187 Iowa 1342, 175 NW 772, 11 ALR 185; State ex rel. Getchel v Bradish, 95
Wis 205, 70 NW 172.
Footnote 6. Carr v Duhme, 167 Ind 76, 78 NE 322.
Footnote 7. Stahl v Board of Sup'rs, 187 Iowa 1342, 175 NW 772, 11 ALR 185; Re
Weston Ben. Assessment Special Road Dist. (Mo App) 294 SW2d 353.
Footnote 8. Commissioners of Union Drainage Dist. v Smith, 233 Ill 417, 84 NE 376.
Footnote 11. Re Rochester, 208 NY 188, 101 NE 875, reh den 209 NY 529, 102 NE
1100.
Footnote 12. Strother v Lucas, 37 US 410, 12 Pet 410, 9 L Ed 1137 (confirmation of

land title by board of which grantee was member).

§ 43 --Continuation of proceedings; application of "rule of necessity"
View Entire Section

Due process considerations do not require a biased administrative agency to forego

making a decision which no other entity is authorized to make. 13 Under such
circumstances, the so-called "rule of necessity" permits an adjudicative body to proceed
in spite of its possible bias or self-interest. 14 An officer, otherwise disqualified, may
still act, if his or her failure to act would necessarily result in a failure of justice. 15
Thus, an officer exercising judicial or quasi-judicial functions may act in a proceeding
wherein the officer is disqualified by interest, relationship, or the like, if his or her
jurisdiction is exclusive and there is no legal provision for calling in a substitute, so that
the officer's refusal to act would absolutely prevent a determination of the proceeding. 16
The rule of necessity operates on the principle that a biased judge is better than no judge
at all. 17
If there is anyone else who can act in the place of the disqualified person or persons, or if
a board or commission may act in the absence of the disqualified person or persons, the
doctrine of necessity does not apply. 18 There is authority that it is not action out of
necessity merely because, if one member does not act, there will not be a given decision,
or because, without his or her acting, the other members of the tribunal may be unable to
agree upon a decision. 19 However, there is also authority that the rule of necessity
may be invoked in order to break a tie between members. 20
There are ways of relieving the injustice of permitting a biased administrative decision.
21 Whenever the rule of necessity is invoked and the administrative decision is
reviewable, the reviewing court, without altering the law about scope of review, may and
probably should review with special intensity. 22 It makes no sense to show the extreme
deference of viewing the evidence in the light most favorable to an administrative body
which is not completely impartial. 23 This does not mean that the court should
undertake a de novo review. 24 The court's standard of review should be deferential, but
it should also compensate for the possibility that bias may have tainted the agency's
exercise of its expertise. 25 Accordingly, the decision of a biased administrative agency
acting under the rule of necessity should be upheld if the evidence presented at the
administrative hearing would have entitled an objective decision maker to reach the same
conclusion. 26
Footnotes
Footnote 13. Fitzgerald v Maryland Heights (Mo App) 796 SW2d 52.
Missouri law underscores the inescapable conclusion that the rule of necessity is still a
viable instrument in cases where there is no other mechanism for review. Barker v
Secretary of State's Office (Mo App) 752 SW2d 437.

A statute may take the place of the rule of necessity. Where the statute clearly requires a
hearing before a designated administrative officer, and no other officer can hold the
hearing, then the language of the statute may not be disregarded nor the legislative intent
defeated by holding that the officer is disqualified. Emerson v Hughes, 117 Vt 270, 90
A2d 910, 34 ALR2d 539.
Footnote 15. Caminetti v Pacific Mut. Life Ins. Co., 22 Cal 2d 344, 139 P2d 908, cert den
320 US 802, 88 L Ed 484, 64 S Ct 428; Barker v Secretary of State's Office (Mo App)
752 SW2d 437.
Footnote 16. Brinkley v Hassig (CA10 Kan) 83 F2d 351; Scannell v Wolff, 86 Cal App
2d 489, 195 P2d 536; Re Rochester, 208 NY 188, 101 NE 875, reh den 209 NY 529, 102
NE 1100; Emerson v Hughes, 117 Vt 270, 90 A2d 910, 34 ALR2d 539 (provision for
removal of officer by governor).
Footnote 17. Barker v Secretary of State's Office (Mo App) 752 SW2d 437.
Footnote 18. Stahl v Board of Sup'rs, 187 Iowa 1342, 175 NW 772, 11 ALR 185; Re
Rochester, 208 NY 188, 101 NE 875, reh den 209 NY 529, 102 NE 1100; State ex rel.
Barnard v Board of Education, 19 Wash 8, 52 P 317.
If the law provides for a substitution of personnel on a board, or if another tribunal exists
to which resort may be had, a disqualified member may not act. Brinkley v Hassig
(CA10 Kan) 83 F2d 351.
Footnote 19. Stahl v Board of Sup'rs, 187 Iowa 1342, 175 NW 772, 11 ALR 185.
b. Particular Grounds [44-51]
§ 44 Bias
View Entire Section

A biased decision-maker is constitutionally unacceptable. 27 Administrative decision

makers must be impartial. 28 The right to a hearing before an unbiased and impartial
administrative decision maker is the basic requirement of due process and of statutes. 29
The federal Administrative Procedure Act states that in administrative hearings, the
functions of presiding employees and of employees participating in decisions must be
conducted in an impartial manner. 30 The federal Administrative Procedure Act and
the 1981 version of the Model State Administrative Procedure Act provide that a
presiding officer or participating employee is subject to disqualification due to bias. 31
Generally, the test for bias is whether the circumstances of the case could reasonably be
interpreted as having the likely capacity to tempt the official to depart from a strong
public duty. 32 To be disqualifying, the alleged bias of an Administrative Law Judge
must stem from an extrajudicial source and result in an opinion on the merits on some
basis other than what the judge learned from his or her participation in the case. 33 The
bias must be personal, not judicial. 34 It must arise out of the judge's background and
association and not from the judge's view of the law. 35
The test for bias in rulemaking proceedings is different than in adjudication because
rulemaking is the type of proceeding where an agency member's policy biases gained
from experience and expertise become an integral part of the process. 36 Consequently,
the test, in some cases, is less strict than in adjudication. 37
Footnotes
Footnote 27. Withrow v Larkin, 421 US 35, 43 L Ed 2d 712, 95 S Ct 1456, on remand

(ED Wis) 408 F Supp 969; Sussel v Honolulu Civil Service Com., 71 Hawaii 101, 784
P2d 867; Municipal Services Corp. v State (ND) 483 NW2d 560.
Forms: Notice–Objections to qualifications of hearing officer or member of

administrative tribunal–Allegation–Bias toward party objecting. 1A Am Jur Pl & Pr
Forms (Rev), Administrative Law, Form 119.
As to disqualification for bias in the hearing context, generally, see § 316.
As to procedure for disqualification for bias in the hearing context under the federal
Administrative Procedure Act, see § 317.
Footnote 32. Re Petition of Bergen County Utilities Authority, 230 NJ Super 411, 553
A2d 849, holding that a job opportunity with former associates could reasonably be

interpreted as having the likely capacity to tempt an official to avoid a decision contrary
to the prospective employer's interest.
Footnote 33. First Nat. Monetary Corp. v Weinberger (CA6) 819 F2d 1334, stating that
reliance on a non-binding decision is not an extrajudicial source.
Footnote 34. First Nat. Monetary Corp. v Weinberger (CA6) 819 F2d 1334.
Footnote 35. First Nat. Monetary Corp. v Weinberger (CA6) 819 F2d 1334.
Tenn App LEXIS 623.
Footnote 37. § 45.
§ 45 --Prejudgment of law or facts
View Entire Section

The standard for disqualification due to prejudgment is different in adjudication

proceedings and rulemaking proceedings. 38 An administrative officer exercising
judicial or quasi-judicial power is disqualified or incompetent to sit in a proceeding in
which he or she has prejudged the case. 39 Any administrative decision maker who has
made an unalterable prejudgment of operative adjudicative facts is considered biased. 40
In adjudicative proceedings, 41 the test for disqualification is whether a disinterested
observer may conclude that the agency, or its members, have in some measure adjudged
the facts, as well as the law, of a case in advance of hearing it. 42 An administrative
officer is disqualified to try charges against a person where the officer declares that he or
she would vote for the conviction of the person. 43 However, familiarity with the the
adjudicative facts of a particular case, even to the point of having reached a tentative
conclusion prior to the hearing, does not necessarily disqualify an administrative decision
maker, in the absence of a showing that the decision maker is not capable of judging a
particular controversy fairly on the basis of its own circumstances. 44
Some courts find an intolerable risk of prejudgment where a decision maker is put in a
position of reviewing a decision he or she initially made, and hold that due process
requires a new decision maker. 45 However, there is authority to the contrary. 46 An
administrator is not disqualified from sitting on retrial because he or she was reversed on
earlier rulings and had ruled strongly against the party in the first hearing. 47 Nor is
an official disqualified to hear a case because the official has a predisposition derived
from participation in earlier proceedings on the same issue or because opinions have been
acquired through work experience. 48 However, participation in prosecutorial or
investigative functions may be grounds for disqualification. 49
In rulemaking proceedings, the standard for prejudgment is not the same as in

adjudications. Bias in the form of a crystallized point of view on issues of law or policy
is rarely, if ever, sufficient to disqualify. 50 The standard for disqualifying an agency
official from participating in rulemaking proceedings for prejudgment is substantial; and
potentially disqualifying statements by an official must be considered as a whole. 51
Footnotes
Tenn App LEXIS 623.
Footnote 39. State ex rel. Miller v Aldridge, 212 Ala 660, 103 So 835, 39 ALR 1470;
Havasu Heights Ranch & Dev. Corp. v Desert Valley Wood Prods., Inc. (App) 167 Ariz
383, 807 P2d 1119, 76 Ariz Adv Rep 46, later proceeding (Ariz App) 1994 Ariz App
LEXIS 4; Hawkins v Common Council of Grand Rapids, 192 Mich 276, 158 NW 953.

administrative tribunal–Allegation–Issue involved in hearing prejudged. 1A Am Jur Pl
& Pr Forms (Rev), Administrative Law, Form 121.
Footnote 41. Northwestern Bell Tel. Co. v Stofferahn (SD) 461 NW2d 129.
As to adjudicative proceedings, generally, see §§ 261 et seq.
Footnote 42. Gilligan, Will & Co. v Securities & Exchange Com. (CA2) 267 F2d 461,
cert den 361 US 896, 4 L Ed 2d 152, 80 S Ct 200; Cinderella Career & Finishing
Schools, Inc. v FTC, 138 US App DC 152, 425 F2d 583, 1970 CCH Trade Cases ¶
73114, 8 ALR Fed 283; Clisham v Board of Police Comrs., 223 Conn 354, 613 A2d 254;
Waste Management of Illinois, Inc. v Pollution Control Bd. (2d Dist) 175 Ill App 3d
1023, 125 Ill Dec 524, 530 NE2d 682; Municipal Services Corp. v State (ND) 483 NW2d
560; Northwestern Bell Tel. Co. v Stofferahn (SD) 461 NW2d 129.
Footnote 43. State ex rel. Barnard v Board of Education, 19 Wash 8, 52 P 317.
Footnote 45. Spratt v Department of Social Services, 169 Mich App 693, 426 NW2d 780.
Footnote 46. Havasu Heights Ranch & Dev. Corp. v Desert Valley Wood Prods., Inc.
(App) 167 Ariz 383, 807 P2d 1119, 76 Ariz Adv Rep 46, later proceeding (Ariz App)
1994 Ariz App LEXIS 4, holding that the fact that an agency head may make an initial
decision in his or her administrative capacity which later becomes an issue in an
administrative hearing does not preclude the agency head from serving as an adjudicator.
Footnote 47. NLRB v Donnelly Garment Co., 330 US 219, 91 L Ed 854, 67 S Ct 756,
19 BNA LRRM 2317, 12 CCH LC ¶ 51238 (stating that the Board might have gone
beyond the legal compulsions and ordered the new evidence to be heard before a new
examiner but the Board's denial of an application for a new examiner did not offend legal
requirements); Citizens for a Better Environment v Pollution Control Bd. (Ill App 1st

Dist) 152 Ill App 3d 105, 105 Ill Dec 297, 504 NE2d 166; Board of Medical Examiners v
Steward, 203 Md 574, 102 A2d 248.
Footnote 49. § 48.
Tenn App LEXIS 623.
Footnote 51. Housing Study Group v Kemp (DC Dist Col) 736 F Supp 321, clarified on
other grounds, dismd (DC Dist Col) 739 F Supp 633, later proceeding (DC Dist Col)
1990 US Dist LEXIS 10567.
§ 46 --Proof and presumptions
View Entire Section

It is assumed that administrative decision makers will serve with fairness and integrity.
52 Thus, there is a presumption that administrative officials are objective 53 and
capable of fairly judging a particular controversy on the basis of its own circumstances.
54 There is a presumption of honesty, integrity, 55 and impartiality 56 in those
serving as adjudicators. One who asserts impermissible bias has the burden of
overcoming the contrary presumption and must affirmatively establish the existence of
bias. 57 In rulemaking or legislative proceedings, 58 the presumption against
administrative bias will be overcome only where it is shown by clear and convincing
evidence that an official has an unalterably closed mind in matters critical to the
disposition of the proceeding. 59
A substantial showing of personal bias is required to disqualify a hearing officer or to

obtain a ruling that the hearing is unfair. 60 Generally, actual bias must be shown, 61
or the existence of circumstances that lead to the conclusion that the probability of actual
bias is too high to be constitutionally tolerable. 62 The potential for conflict may
disqualify, and there need be no showing that the official succumbed to the temptation to
depart from public duty or was even aware of it. 63 However, a mere possibility of
prejudice is insufficient to show that a board, or any of its members, is biased; 64 and,
although the mere appearance of impropriety is to be avoided, this is insufficient to
disqualify an administrative official. 65 Proof of bias requires a showing that the
hearing was not fair and impartial. 66
 Practice guide: A claim of bias or prejudice on the part of a member of an

administrative agency must be asserted promptly after the knowledge of the alleged
disqualification. 67 This is so because it would be improper to allow a party to
withhold a claim of bias until it obtains an unfavorable ruling. 68

Footnotes
Footnote 52. Adkins v Sarah Bush Lincoln Health Center, 129 Ill 2d 497, 136 Ill Dec 47,
544 NE2d 733, 1989-2 CCH Trade Cases ¶ 68773.
Footnote 53. Housing Study Group v Kemp (DC Dist Col) 736 F Supp 321, clarified,
dismd (DC Dist Col) 739 F Supp 633, later proceeding (DC Dist Col) 1990 US Dist
LEXIS 10567; Rado v Board of Educ., 216 Conn 541, 583 A2d 102; Abrahamson v
Illinois Dept. of Professional Regulation, 153 Ill 2d 76, 180 Ill Dec 34, 606 NE2d 1111;
Re Cross (RI) 617 A2d 97 (administrators are presumed to be neutral); Northwestern Bell
Tel. Co. v Stofferahn (SD) 461 NW2d 129.

(ED Wis) 408 F Supp 969; Housing Study Group v Kemp (DC Dist Col) 736 F Supp 321,
clarified, dismd (DC Dist Col) 739 F Supp 633, later proceeding (DC Dist Col) 1990 US
Dist LEXIS 10567; Rado v Board of Educ., 216 Conn 541, 583 A2d 102; Abrahamson v
Illinois Dept. of Professional Regulation, 153 Ill 2d 76, 180 Ill Dec 34, 606 NE2d 1111;
Grant v Senkowski (3d Dept) 146 App Div 2d 948, 537 NYS2d 323; Northwestern Bell
Tel. Co. v Stofferahn (SD) 461 NW2d 129; Tri-State Generation & Transmission Asso. v
Wyoming Public Service Com. (Wyo) 784 P2d 627.
Administrators are presumed to be persons of conscience and intellectual discipline who

are capable of judging the case before them fairly on the basis of its circumstances.
Withrow v Larkin, 421 US 35, 43 L Ed 2d 712, 95 S Ct 1456, on remand (ED Wis) 408
F Supp 969; Grant v Senkowski (3d Dept) 146 App Div 2d 948, 537 NYS2d 323;
Tri-State Generation & Transmission Asso. v Wyoming Public Service Com. (Wyo) 784
P2d 627.

(ED Wis) 408 F Supp 969; Fitzgerald v Maryland Heights (Mo App) 796 SW2d 52; Re
Carberry, 114 NJ 574, 556 A2d 314; Cooper v Williamson County Bd. of Educ. (Tenn)
803 SW2d 200, reh overr (Tenn) 1990 Tenn LEXIS 420 and cert den (US) 114 L Ed 2d
100, 111 S Ct 2013; Brody v Barasch, 155 Vt 103, 582 A2d 132.
Footnote 56. Mountain States Tel. & Tel. Co. v Publice Utilities Com. (Colo) 763 P2d
1020.
Footnote 57. Tri-State Generation & Transmission Asso. v Wyoming Public Service
Com. (Wyo) 784 P2d 627.
As to rulemaking proceedings, see §§ 152 et seq.
LEXIS 10567; Havasu Heights Ranch & Dev. Corp. v Desert Valley Wood Prods., Inc.
1994 Ariz App LEXIS 4; Citizens for a Better Environment v Pollution Control Bd. (Ill
App 1st Dist) 152 Ill App 3d 105, 105 Ill Dec 297, 504 NE2d 166.

Footnote 60. Roach v National Transp. Safety Bd. (CA10) 804 F2d 1147, cert den 486
US 1006, 100 L Ed 2d 195, 108 S Ct 1732.

(ED Wis) 408 F Supp 969; Clisham v Board of Police Comrs., 223 Conn 354, 613 A2d
254; Re Carberry, 114 NJ 574, 556 A2d 314; Northwestern Bell Tel. Co. v Stofferahn
(SD) 461 NW2d 129.
Absent a demonstrable conflict of interest or record evidence of real bias, the

determination of a challenged administrative tribunal should not be set aside. Grant v
Senkowski (3d Dept) 146 App Div 2d 948, 537 NYS2d 323.
Footnote 62. Clisham v Board of Police Comrs., 223 Conn 354, 613 A2d 254; Spratt v
Department of Social Services, 169 Mich App 693, 426 NW2d 780; Northwestern Bell
Tel. Co. v Stofferahn (SD) 461 NW2d 129.
A2d 849.
Footnote 64. Collura v Board of Police Comrs., 113 Ill 2d 361, 101 Ill Dec 640, 498
NE2d 1148.
Footnote 65. Clisham v Board of Police Comrs., 223 Conn 354, 613 A2d 254; Grant v
Senkowski (3d Dept) 146 App Div 2d 948, 537 NYS2d 323. But see Municipal Services
Corp. v State (ND) 483 NW2d 560.
Footnote 66. Life Ins. Asso. v Commissioner of Ins., 403 Mass 410, 530 NE2d 168.
As to right to impartial tribunal, § 302.
Footnote 67. Waste Management of Illinois, Inc. v Pollution Control Bd. (2d Dist) 175 Ill
App 3d 1023, 125 Ill Dec 524, 530 NE2d 682.
App 3d 1023, 125 Ill Dec 524, 530 NE2d 682.
§ 47 Improper receipt of evidence
View Entire Section

Although an administrative official does not become impartial or unfair merely through
becoming familiar with the facts of the case through performance of statutory or
administrative duty, 69 disqualification may result from evidence being improperly
received. 70 In such a case, disqualification depends on the facts and circumstances of
each case. 71 Some courts allow a decision maker to have a dual role as a witness at one
step of the proceedings and as a member of a reviewing body at a later stage of the same
proceedings. 72
There is authority that in the case of ex parte proceedings (brought for the benefit of one
party only without notice to the other party), prejudice to the complaining party must be
shown before the court will reverse an agency's decision. 73 However, some versions of
the state Administrative Procedure Act do not prohibit ex parte communications, and
only require that such communications be disclosed and that the other parties be given an
opportunity to rebut the substance of the communications. 74
Footnotes
Footnote 69. Hortonville Joint School Dist. v Hortonville Education Asso., 426 US 482,
49 L Ed 2d 1, 96 S Ct 2308, 92 BNA LRRM 2785, 78 CCH LC ¶ 53827, on remand 87
Wis 2d 347, 274 NW2d 697; Re Carberry, 114 NJ 574, 556 A2d 314.
NE2d 1148.
NE2d 1148 (officer heard improper evidence of a polygraph examination at an earlier
hearing).
Footnote 72. Mountain States Tel. & Tel. Co. v Publice Utilities Com. (Colo) 763 P2d
1020.
App 3d 1023, 125 Ill Dec 524, 530 NE2d 682.
As to ex parte contacts in the rulemaking process, see § 174.
Footnote 74. Forelaws on Bd. v Energy Facility Siting Council, 306 Or 205, 760 P2d
212, later proceeding, en banc 307 Or 327, 767 P2d 899.
§ 48 Involvement in investigation or prosecution
View Entire Section

There is some authority that an administrative officer may be disqualified from

adjudication where he or she is on the investigative or prosecuting staff in the case, 75
and the 1981 version of the Model State Administrative Procedure Act provides that a
person who has served as an investigator, prosecutor or advocate in an adjudicative
proceeding or its pre-adjudicative stage, or persons subject to the authority, direction or
discretion of such person, may not serve as a presiding officer or assist or advise a
presiding officer in the same proceeding. 76 However, the view has also been followed
that agency members who participate in an investigation, particularly a nonadversarial
one, 77 are not in all cases disqualified from adjudicating. 78

 Comment: Subject to certain exceptions, the federal Administrative Procedure Act
provides that an employee or agent engaged in the performance of investigative or
prosecuting functions for an agency in a case may not participate or advise in the
decision, recommended decision, or agency review of that case or a factually related
case, except as a witness or counsel in public proceedings. 79 However, this rule
does not apply to the agency or a member or members of the body comprising the
agency. 80
Members of licensing boards may disqualify themselves from hearing charges against a
licensee where they do more than simply act as ministerial agents in filing complaints or
initiating investigations, as by contributing to funds for the prosecution of charges. 81
Nevertheless, the fact that charges are made by the same body that tries the issues does
not, in itself, generally operate as a disqualification. 82 A person is not denied due
process of law or fair administrative hearing merely because an agency performs all three
functions of investigation, prosecution, and adjudication. 83 However, although the
combination of investigative and adjudicative functions in an administrative agency does
not, without more, constitute a due process violation, a court is not precluded from
determining from the special facts and circumstances present in the case before it that the
risk of unfairness is intolerably high. 84
Footnotes
Footnote 75. Amos Treat & Co. v SEC, 113 US App DC 100, 306 F2d 260, where the
court said that it could not accept the view that a member of an investigative or
prosecuting staff may initiate an investigation, weigh its results, recommend the filing of
charges, then become a member of the commission or agency, participate in its
adjudicatory proceedings, join in the commission or agency rulings, and ultimately pass
on the amenability of the defendant to the administrative orders, for to so hold would be a
denial of administrative due process.

(ED Wis) 408 F Supp 969.

(ED Wis) 408 F Supp 969; Texas State Board of Dental Examiners v Fieldsmith (Tex Civ
App Dallas) 386 SW2d 305, writ ref n r e (Apr 28, 1965) and cert den 382 US 977, 15 L
Ed 2d 468, 86 S Ct 545, reh den 384 US 947, 16 L Ed 2d 545, 86 S Ct 1453 (holding
that a member of a board of dental examiners was not disqualified from participating in
the adjudication of a case which resulted in revocation of a license to practice dentistry
although the board member had personally participated in the investigation leading to the
license revocation).
Footnote 79. As to separation of prosecutorial and adjudicatory functions under the

federal Administrative Procedure Act, generally, see §§ 313-315.

Footnote 81. State ex rel. Miller v Aldridge, 212 Ala 660, 103 So 835, 39 ALR 1470.
See New Jersey State Board of Optometrists v Nemitz, 21 NJ Super 18, 90 A2d 740,
where a member of the State Board of Optometrists, involved in the suspension of an
optometrist's license for supplying improper lenses to a patient, caused an investigation to
be made, procured the investigator, provided funds for the examination, and arranged for
the testing of the glasses and comparison with the prescription.
Forms: Allegations–Bias of administrative officials in conducting investigation. 1A

Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 220.
Footnote 82. Seidenberg v New Mexico Board of Medical Examiners, 80 NM 135, 452
P2d 469.
Footnote 83. § 70.
Footnote 84. 16A Am Jur 2d, Constitutional Law § 855.
§ 49 Personal or pecuniary interest
View Entire Section

Members of an administrative agency must be able to perform the duties of office free of
an interest, personal or pecuniary, having the potential to influence their judgment. 85
Thus, an administrative officer is generally disqualified from acting as a decision maker
if he or she has a personal, 86 or pecuniary 87 interest in the proceedings. A personal
interest need not be pecuniary; rather, it is any interest which can be viewed as having a
potentially debilitating effect on the impartiality of the decision maker. 88 An
administrative official also may be disqualified where he or she is related to an interested
person 89 or where he or she is biased, prejudiced, or labors under a personal ill will
toward a party. 90 An interest to disqualify an administrative officer acting in a judicial
capacity may be small, but it must be an interest direct, definite, capable of
demonstration, not remote, uncertain, contingent, unsubstantial, or merely speculative or
theoretical. 91
Footnotes
A2d 849.

administrative tribunal–Allegation–Existence of personal or pecuniary interest in
matter involved in proceeding. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law,
Form 118.
App 3d 1023, 125 Ill Dec 524, 530 NE2d 682.

(ED Wis) 408 F Supp 969; Re Carberry, 114 NJ 574, 556 A2d 314.
App 3d 1023, 125 Ill Dec 524, 530 NE2d 682.
Footnote 89. Taylor v County Comrs. of Worcester, 105 Mass 225.

administrative tribunal–Allegation–Relationship (by blood or marriage) to interested
person. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 120.
Footnote 90. Brinkley v Hassig (CA10 Kan) 83 F2d 351; Emerson v Hughes, 117 Vt 270,
90 A2d 910, 34 ALR2d 539.
Footnote 91. Selectmen of Andover v Board of Com'rs, 86 Me 185, 29 A 982.
Planning commission member who with his mother and sister owned two real estate
corporations, which owned and rented residential properties in city, was not disqualified
to vote on proposed zoning change for construction of 963-unit housing project proposed
by developer because the member's interest in the zoning change was too speculative.
Dana-Robin Corp. v Common Council of Danbury, 166 Conn 207, 348 A2d 560.
§ 50 Target of criticism by party involved
View Entire Section

Where the adjudicator in an administrative proceeding has been the target of personal
abuse or criticism by an involved party, the probability of actual bias is too high to be
constitutionally tolerable 92 and is grounds for disqualification. 93 Vituperative
criticism of an adjudicator by a charged party prior to the filing of administrative charges
may present an unacceptably high risk of creating bias on the part of the adjudicator. 94
However, a contentious atmosphere can be expected in many administrative hearings,
and an attitude bordering on partisanship, or even hostility, as reflected in exchanges
between the adjudicator and the charged party does not in and of itself prove bias. 95
Footnotes

Footnote 93. Re Carberry, 114 NJ 574, 556 A2d 314.
§ 51 Expression of views
View Entire Section

The mere formation of an opinion and the expression of that opinion does not disqualify
an officer or agency from passing upon the merits of a particular controversy, 96
even if the position is a public one on a policy issue related to the dispute, in the absence
of a showing that the decision maker is incapable of judging a particular controversy
fairly on the basis of its own circumstances. 97 In this regard, an expression of
opinion prior to the issuance of a proposed rulemaking does not, without more, show that
an agency member cannot maintain an open mind during the hearing stage of the
proceeding. 98 Whether an official is engaged in adjudication or rulemaking, 99 the
fact that an administrative official has taken a public position or expressed strong views
on an issue before the administrative agency does not overcome the presumption against
bias. 1 Neither does the fact that the official holds an underlying philosophy with
respect to an issue in dispute. 2 A previously announced position about law or policy
does not disqualify, 3 and the right to an impartial trier of fact is not synonymous with
the right to a trier completely indifferent to the general subject matter of the claim before
him or her. 4 This does not mean, however, that an official is free to express or act in
any manner and still be allowed to participate in a proceeding, 5 and it is constitutionally
unacceptable for a decision-maker to announce his or her position on adjudicative facts. 6
Footnotes
334 US 839, 92 L Ed 1764, 68 S Ct 1492 (stating that ex parte investigation did not
necessarily close the minds of members to evidence to be adduced on hearing); Re
Carberry, 114 NJ 574, 556 A2d 314.
Footnote 97. Hortonville Joint School Dist. v Hortonville Education Asso., 426 US 482,
49 L Ed 2d 1, 96 S Ct 2308, 92 BNA LRRM 2785, 78 CCH LC ¶ 53827, on remand 87
Wis 2d 347, 274 NW2d 697; Mountain States Tel. & Tel. Co. v Publice Utilities Com.
(Colo) 763 P2d 1020.
Footnote 98. Association of Nat. Advertisers, Inc. v FTC, 201 US App DC 165, 627 F2d
1151, 5 Media L R 2233, 1980-1 CCH Trade Cases ¶ 63098, 51 ALR Fed 335, cert den
447 US 921, 65 L Ed 2d 1113, 100 S Ct 3011 and (ovrld on other grounds by
Telecommunications Research & Action Center v FCC, 242 US App DC 222, 750 F2d
70); Housing Study Group v Kemp (DC Dist Col) 736 F Supp 321, clarified, dismd (DC
Dist Col) 739 F Supp 633, later proceeding (DC Dist Col) 1990 US Dist LEXIS 10567.

LEXIS 10567; Waste Management of Illinois, Inc. v Pollution Control Bd. (2d Dist) 175
Ill App 3d 1023, 125 Ill Dec 524, 530 NE2d 682; Northwestern Bell Tel. Co. v
Stofferahn (SD) 461 NW2d 129.
As to the presumption against bias, see § 46.
LEXIS 10567; Northwestern Bell Tel. Co. v Stofferahn (SD) 461 NW2d 129.
Footnote 3. Havasu Heights Ranch & Dev. Corp. v Desert Valley Wood Prods., Inc.
1994 Ariz App LEXIS 4; Municipal Services Corp. v State (ND) 483 NW2d 560
(advance views on policy matters in issue are not grounds for disqualification).
Footnote 4. Andrews v Agricultural Labor Relations Board, 28 Cal 3d 781, 171 Cal Rptr
590, 623 P2d 151, 93 CCH LC ¶ 55331 (superseded by statute on other grounds as stated
in United Farm Workers of America v Superior Court (4th Dist) 170 Cal App 3d 97, 216
Cal Rptr 4) (In unfair labor practice proceedings against an agricultural employer, the
temporary administrative law officer's practice of law with a firm which in the past had
represented individual farm workers in a suit against the Secretary of Labor and which
engaged in employment discrimination suits on behalf of Mexican-Americans, was not a
ground for disqualification or bias under Cal. Admin. Code, tit. 8, § 20230.4. Even if the
nature of a lawyer's practice could be taken as evidence of his political or social outlook,
such evidence is irrelevant to prove bias.)
Footnote 6. New York State Inspection, etc., Dist. Council 82, etc. v New York State
Public Employment Relations Bd. (ND NY) 629 F Supp 33, summary judgment gr (ND
NY) 629 F Supp 839, 123 BNA LRRM 3035; Municipal Services Corp. v State (ND) 483
NW2d 560.
As to prejudgment of a case as grounds for disqualification, see § 45.
C. Powers and Functions [52-98]
Research References
5 USCS §§ 302(b), 558(b); 31 USCS § 9701
§ 52 Generally

View Entire Section
Go to Supplement
The words "power" and "function" as used in describing powers and functions of
administrative bodies, are interchangeable, and if there is any distinction the latter term
denotes a broader field of activities than the former. 1 The primary function of
administrative agencies is to carry into effect the will of the state as expressed by its
legislation. 2 However, administrative agencies engage in a variety of specific
functions. 3 Not all administrative agencies perform the same functions or exercise the
same types of powers. 4 While some act merely as investigative or advisory bodies, 5
most administrative agencies have investigative, rulemaking, and determinative
functions, or at least two of such functions. 6 In addition, some statutory schemes
provide for or permit administrative enforcement, 7 and some agencies are given
express authority to reconsider, amend, correct or modify orders that would otherwise be
final or to monitor conditions over time to best implement a particular statutory scheme.
8
 Caution: The powers and functions of any particular administrative agency can be
determined only by an examination of the specific law which creates or empowers it.
Whether a particular administrative agency has a certain power is primarily a matter of

statutory construction. 9 The fact that an asserted power is novel and unprecedented
does not mean that it does not exist. 10
Practice Aids: Have administrative agencies abandoned reasonability? 6 Seton Hall

Const LJ 2:763 (1996).
Case authorities:
Administrative agencies do not automatically have standing to sue for actions that
frustrate the purposes of the agencies' statutes; thus, the United States Department of the
Interior, being charged by 16 USCS § 1a-6(a) with the duty to protect persons and
property within areas of the national park system, does not thereby have authority to (1)
intervene in suits for assault brought by campers, or (2) bring a suit for assault when a
camper declines to do so. Director, Office of Workers' Compensation Programs, Dep't of
Labor v Newport News Shipbuilding & Dry Dock Co. (1995, US) 131 L Ed 2d 160, 115
S Ct 1278, 95 CDOS 2108, 95 Daily Journal DAR 3491, 1995 AMC 1167, 8 FLW Fed S
643.
Two-week visitation rule imposed by county housing authority administering federal

housing assistance, under which petitioner's assistance was terminated for permitting
non- family member to stay in household longer than 2 weeks, was not inconsistent with
HUD regulation prohibiting residency by non- family members; adoption of rule was
well within authority given to county agency and was reasonable. Ritter v Cecil County
Office of Hous. & Community Dev. (1994, CA4 Md) 33 F3d 323.

5 USCS § 702 does not authorize "officers' suits" against federal officers charging ultra
vires actions, and 43 USCS § 1632 is statute of limitations provision rather than waiver
of immunity. Alaska v Babbitt (1996, CA9 Alaska) 75 F3d 449, 96 Daily Journal DAR
419, amd (1996, CA9 Alaska) 96 CDOS 1873, 96 Daily Journal DAR 3190.
Army Corps of Engineers' assertion of jurisdiction respecting residential development in

wetlands was within its authority and not ultra vires. Tabb Lakes, Ltd. v United States
(1993, CA FC) 10 F3d 796, 24 ELR 20169.
Footnotes
Footnote 1. State ex rel. Black v Burch, 226 Ind 445, 80 NE2d 294, reh den 226 Ind 489,
81 NE2d 850.
Footnote 2. Phelps Dodge Corp. v NLRB, 313 US 177, 85 L Ed 1271, 61 S Ct 845, 8

BNA LRRM 439, 4 CCH LC ¶ 51120, 133 ALR 1217; Rosenthal v State Employees'
Retirement System, 30 NJ Super 136, 103 A2d 896.
Administrative agencies are frequently given rather loosely defined powers to cope with
difficult problems. The breadth of such powers and the lack of rigid guiding standards
does not necessarily permit the agency to disclaim the power. NLRB v Radio &
Television Broadcast Engineers Union, 364 US 573, 5 L Ed 2d 302, 81 S Ct 330, 47
BNA LRRM 2332, 41 CCH LC ¶ 16700.
Footnote 3. United States v Atlanta, B. & C. R. Co., 282 US 522, 75 L Ed 513, 51 S Ct

237; Gulf, M. & O. R. Co. v Railroad & Public Utilities Com., 38 Tenn App 212, 271
SW2d 23.
Footnote 4. Floyd v Department of Labor & Industries, 44 Wash 2d 560, 269 P2d 563.
Footnote 5. Hannah v Larche, 363 US 420, 4 L Ed 2d 1307, 80 S Ct 1502, reh den 364
US 855, 5 L Ed 2d 79, 81 S Ct 33 (Civil Rights Commission); People v Joyce, 246 Ill
124, 92 NE 607 (board of pardons); Burlington v Dunn, 318 Mass 216, 61 NE2d 243,
168 ALR 1181, cert den 326 US 739, 90 L Ed 441, 66 S Ct 51 (making of
recommendations as to town zoning ordinance); Re Di Brizzi, 303 NY 206, 101 NE2d
464 (crime commission).
Footnote 6. §§ 122 et seq., §§ §§ 152 et seq., §§ §§ 261 et seq.
Footnote 7. Allen v Grand Cent. Aircraft Co., 347 US 535, 98 L Ed 933, 74 S Ct 745,
25 CCH LC ¶ 68407.
Footnote 8. 1000 Friends of Oregon v Land Conservation & Dev. Com., 301 Or 622, 724
P2d 805.
Footnote 9. Joseph Burstyn, Inc. v Wilson, 303 NY 242, 101 NE2d 665, revd on other
grounds 343 US 495, 96 L Ed 1098, 72 S Ct 777, 1 Media L R 1357; State ex rel.
Commissioner of Ins. v North Carolina Rate Bureau, 300 NC 381, 269 SE2d 547.
As to administrative construction of statutes, see §§ 77 et seq.

Law Reviews: Meltzer, Administrative Law and Procedure: Defining the Scope of
Agency Power. 62 Chi-Kent LR 351 (1986).
Footnote 10. United States v Morton Salt Co., 338 US 632, 94 L Ed 401, 70 S Ct 357;
State ex rel. Commissioner of Ins. v North Carolina Rate Bureau, 300 NC 381, 269 SE2d
547.
§ 53 Characterization and classification of administrative powers
View Entire Section

While it has been said that in a constitutional sense there is no such thing as an
"administrative power," as all governmental powers are included in the legislative,
executive, and judicial categories, 11 the designation, "administrative powers," is often
used. 12 Administrative powers are executive, legislative or judicial in nature,
although not specifically allocated. 13 Administration has to do with the carrying of
laws into effect–their practical application to current affairs, in accordance with, and in
execution of, the principles prescribed by the lawmaker. 14 Thus, regulatory and
control powers of an administrative agency are frequently described as "administrative."
15 The power of an administrative agency to make rules to carry out a policy is
administrative. 16 The application of such rules in particular cases is executive or
administrative in nature. 17
Footnotes
Footnote 11. Harmon v State, 66 Ohio St 249, 64 NE 117.
Footnote 12. Federal Power Com. v Idaho Power Co., 344 US 17, 97 L Ed 15, 73 S Ct
85, reh den 344 US 910, 97 L Ed 702, 73 S Ct 326; Guiseppi v Walling (CA2) 144 F2d
608, 8 CCH LC ¶ 62243, 155 ALR 761, affd 324 US 244, 89 L Ed 921, 65 S Ct 605, 9
CCH LC ¶ 51195; Board of Com'rs v Public Utilities Com., 107 Ohio St 442, 1 Ohio L
Abs 389, 140 NE 87, 30 ALR 429 (commission has neither executive nor judicial, but
only administrative, power); Oklahoma Cotton Ginners' Ass'n v State, 174 Okla 243, 51
P2d 327; Floyd v Department of Labor & Industries, 44 Wash 2d 560, 269 P2d 563.
The Federal Trade Commission exercises only the administrative powers delegated to it
by the statute, not judicial powers. FTC v Eastman Kodak Co., 274 US 619, 71 L Ed
1238, 47 S Ct 688.
Footnote 13. Guiseppi v Walling (CA2) 144 F2d 608, 8 CCH LC ¶ 62243, 155 ALR
761, affd 324 US 244, 89 L Ed 921, 65 S Ct 605, 9 CCH LC ¶ 51195.
Footnote 14. Mitchell Coal & Coke Co. v Pennsylvania R. Co., 230 US 247, 57 L Ed
1472, 33 S Ct 916 (Pitney, J.); Robertson v Schein, 305 Ky 528, 204 SW2d 954.

Administration of a statute may well be taken to embrace all appropriate measures for its
enforcement. United States v Chamberlin, 219 US 250, 55 L Ed 204, 31 S Ct 155, 3
AFTR 2825.
Ed 381, 70 S Ct 403 (allotting area quotas); Guthrie v Curlin (Ky) 263 SW2d 240
(highways as state property).
Footnote 16. United States v Grimaud, 220 US 506, 55 L Ed 563, 31 S Ct 480 (among
conflicting authorities on other grounds noted in Touby v United States, 500 US 160,
114 L Ed 2d 219, 111 S Ct 1752, 91 CDOS 3627, 91 Daily Journal DAR 5811);
Knudsen Creamery Co. v Brock, 37 Cal 2d 485, 234 P2d 26; People ex rel. Mosco v
Service Recognition Board, 403 Ill 442, 86 NE2d 357; Financial Aid Corp. v Wallace,
216 Ind 114, 23 NE2d 472, 125 ALR 736; Abelson's, Inc. v New Jersey State Board of
Optometrists, 5 NJ 412, 75 A2d 867, 22 ALR2d 929; State v Spears, 57 NM 400, 259
P2d 356, 39 ALR2d 595; Motsinger v Perryman, 218 NC 15, 9 SE2d 511; Atchley v
Board of Barber Examiners, 208 Okla 453, 257 P2d 302; Department of Public Welfare v
National Help "U" Ass'n, 197 Tenn 8, 270 SW2d 337.
Footnote 17. Gulf, M. & O. R. Co. v Railroad & Public Utilities Com., 38 Tenn App 212,
271 SW2d 23.
§ 54 --As, or as distinguished from, executive powers
View Entire Section

Very often, administrative power is taken to be the same as executive power, 18 or a

power or function is described as "executive or administrative," 19 and some state
constitutions expressly recognize the executive power as including the administrative. 20
However, other cases recognize that administrative power is distinct from the executive
power. For instance, executive and administrative employment are different, "executive"
encompassing some form of managerial authority. 21 It has been said that the
distinction between "executive" and "administrative" is that the former involves carrying
out a legislatively completed policy while the latter involves legislative discretions as to
policy in completing and perfecting the legislative process. 22
Footnotes
Footnote 18. In Otto v Harllee, 119 Fla 266, 161 So 402, the court referred to "the three
coordinate departments of our government, the administrative, legislative, and judicial."
Footnote 19. Guthrie v Curlin (Ky) 263 SW2d 240; Scott v Lowe, 223 Miss 312, 78 So
2d 452; Gulf, M. & O. R. Co. v Railroad & Public Utilities Com., 38 Tenn App 212, 271
SW2d 23; Tennessee C. R. Co. v Pharr, 29 Tenn App 531, 198 SW2d 289.
The term quasi-executive has been used. State ex rel. Williams v Whitman, 116 Fla 198,
156 So 705, 95 ALR 1416.
Footnote 20. State ex rel. Black v Burch, 226 Ind 445, 80 NE2d 294, reh den 226 Ind
489, 81 NE2d 850; Financial Aid Corp. v Wallace, 216 Ind 114, 23 NE2d 472, 125 ALR
736.
Footnote 21. 48A Am Jur 2d, Labor and Labor Relations §§ 2323, 2325 et seq., 2337 et
seq.
Footnote 22. FTC v Ruberoid Co., 343 US 470, 96 L Ed 1081, 72 S Ct 800 (per
Jackson, J.).
§ 55 Source of powers
View Entire Section

Being creatures of the legislature, 23 administrative agencies have no general, 24

inherent, 25 or common-law 26 powers, but only those powers conferred upon them
by the legislature. 27 Apart from the instances in which an administrative agency is
created and empowered by a provision of a state constitution 28 or an executive order,
29 the source of the powers of administrative agencies lies in statutes, 30 and
administrative agencies must find within statutes warrant for the exercise of any authority
which they claim. 31 Absent a constitutional provision, administrative agencies
derive their authority from (1) the enabling legislation that mandates the particular
agency's function and grants powers, and (2) from general laws affecting administrative
bodies. 32
Although some authority states that an agency's power must come from the statute by
which the agency was created, 33 other authority holds that the powers of an agency
need not always come from a single source. 34 However, official powers cannot be
merely assumed by administrative officers, 35 nor can they be created by the courts.
36
Footnotes
Footnote 23. Ex parte State Dept. of Human Resources (Ala) 548 So 2d 176; Robinson v
Human Rights Comm'n (1st Dist) 201 Ill App 3d 722, 147 Ill Dec 229, 559 NE2d 229, 62
CCH EPD ¶ 42402, app den 135 Ill 2d 566, 151 Ill Dec 392, 564 NE2d 847; New York
State Health Facilities Assn. v Axelrod, 77 NY2d 340, 568 NYS2d 1, 569 NE2d 860,
reconsideration den 77 NY2d 990; Captain's Quarters Motor Inn, Inc. v South Carolina
Coastal Council, 306 SC 488, 413 SE2d 13; Jaramillo v Morris, 50 Wash App 822, 750
P2d 1301, review den 110 Wash 2d 1040; Francis O. Day Co. v West Virginia
Reclamation Bd. of Review, 188 W Va 418, 424 SE2d 763; Union Pacific Resources Co.
v State (Wyo) 839 P2d 356.
Law Reviews: Markey, Congress to Administrative Agencies: Creator, Overseer, and

Partner. 1990 Duke LJ 967 (November, 1990).
Footnote 24. FTC v Sinclair Refining Co., 261 US 463, 67 L Ed 746, 43 S Ct 450
(Federal Trade Commission); Business & Professional People for Public Interest v
Illinois Commerce Com., 136 Ill 2d 192, 144 Ill Dec 334, 555 NE2d 693; Francis O. Day
Co. v West Virginia Reclamation Bd. of Review, 188 W Va 418, 424 SE2d 763.
Footnote 25. § 62.
Footnote 26. Business & Professional People for Public Interest v Illinois Commerce
Com., 136 Ill 2d 192, 144 Ill Dec 334, 555 NE2d 693; Howell School Bd. Dist. v
Hubbartt, 246 Iowa 1265, 70 NW2d 531; Commissioner of Revenue v Marr Scaffolding
Co., 414 Mass 489, 608 NE2d 1041; Coffman v State Board of Examiners, 331 Mich
582, 50 NW2d 322; L. & A. Constr. Co. v McCharen (Miss) 198 So 2d 240, cert den 389
US 945, 19 L Ed 2d 301, 88 S Ct 310; C. C. T. Equipment Co. v Hertz Corp., 256 NC
277, 123 SE2d 802; Jaramillo v Morris, 50 Wash App 822, 750 P2d 1301, review den
110 Wash 2d 1040; Francis O. Day Co. v West Virginia Reclamation Bd. of Review, 188
W Va 418, 424 SE2d 763.
Footnote 27. § 59.
Footnote 28. Belanger & Sons, Inc. v Department of State, 176 Mich App 59, 438 NW2d
885, app den 434 Mich 895.
Footnote 29. § 24.
Footnote 30. Public Utilities Com. v United Fuel Gas Co., 317 US 456, 87 L Ed 396,
63 S Ct 369, reh den 318 US 798, 87 L Ed 1162, 63 S Ct 557; State ex rel. Railroad &
Warehouse Com. v Mees, 235 Minn 42, 49 NW2d 386, 27 ALR2d 1197 (exclusively
derived from statute).
Testimony before congressional committees, congressional committee reports, and

administrative usurpation do not, either singly or collectively, suffice to establish
authorization for a federal agency's acts. Manual Enterprises, Inc. v Day, 370 US 478, 8
L Ed 2d 639, 82 S Ct 1432.
Where a statute prescribes the powers of an agency, a local governmental authority

authorized to create the agency may not change the powers granted. Duffcon Concrete
Products, Inc. v Cresskill, 1 NJ 509, 64 A2d 347, 9 ALR2d 678.
Footnote 31. FTC v National Lead Co., 352 US 419, 1 L Ed 2d 438, 77 S Ct 502;
People ex rel. Polen v Hoehler, 405 Ill 322, 90 NE2d 729; L. & A. Constr. Co. v
McCharen (Miss) 198 So 2d 240, cert den 389 US 945, 19 L Ed 2d 301, 88 S Ct 310;
Johnson v Kolman, Div. of Athey Products Corp. (SD) 412 NW2d 109 (courts only have
adjudicatory jurisdiction conferred by statute); Francis O. Day Co. v West Virginia
Reclamation Bd. of Review, 188 W Va 418, 424 SE2d 763; Union Pacific Resources Co.
v State (Wyo) 839 P2d 356.
To the extent an agency acts outside its statutory authority, it acts without jurisdiction.
Business & Professional People for Public Interest v Illinois Commerce Com., 136 Ill 2d
192, 144 Ill Dec 334, 555 NE2d 693.

As to statutes relating to administrative agencies, generally, see §§ 34 et seq.
Footnote 32. 1000 Friends of Oregon v Land Conservation & Dev. Com., 301 Or 622,
724 P2d 805.
The powers and authorities of administrative officers and agencies are derived from,
defined and limited by constitution, statute, or other legislative enactment. State ex rel.
Commissioner of Ins. v North Carolina Rate Bureau, 300 NC 381, 269 SE2d 547.
Footnote 33. Mitee Racers, Inc. v Carnival-Amusement Safety Bd. of Dept. of Labor (2d
Dist) 152 Ill App 3d 812, 105 Ill Dec 780, 504 NE2d 1298, app den (Ill) 113 Ill Dec 303,
515 NE2d 112.
Footnote 34. Anderson Lumber & Supply Co. v Fletcher, 228 Ind 383, 89 NE2d 449
(statute and ordinance); Board of Health v Kollman, 156 Ky 351, 160 SW 1052 (statute
and ordinance); Re Application U-2, 226 Neb 594, 413 NW2d 290 (superseded by statute
on other grounds as stated in In re Applications T-141 Through T-146 (Neb Ct App)
1993 Neb App LEXIS 485); Vermont Acci. Ins. Co. v Burns, 114 Vt 143, 40 A2d 707
(constitution and statute).
Footnote 35. Waite v Macy, 246 US 606, 62 L Ed 892, 38 S Ct 395; L. & A. Constr.
Co. v McCharen (Miss) 198 So 2d 240, cert den 389 US 945, 19 L Ed 2d 301, 88 S Ct
310; Vermont Acci. Ins. Co. v Burns, 114 Vt 143, 40 A2d 707.
Footnote 36. FTC v Raladam Co., 283 US 643, 75 L Ed 1324, 51 S Ct 587, 79 ALR
1191, motion den (US) 76 L Ed 1300, 52 S Ct 14 and (superseded by statute on other
grounds as stated in American Financial Services Asso. v FTC, 247 US App DC 167, 767
F2d 957, 1985-2 CCH Trade Cases ¶ 66702); L. & A. Constr. Co. v McCharen (Miss)
198 So 2d 240, cert den 389 US 945, 19 L Ed 2d 301, 88 S Ct 310; Cabell v Cottage
Grove, 170 Or 256, 130 P2d 1013, 144 ALR 286.
§ 56 --Legislative standards
View Entire Section

A statute or ordinance placing discretionary power in an administrative agency must

furnish standards for those who administer such power 37 in order to avoid arbitrary
decisions. 38 Likewise, the law must enunciate standards to guide the administrative
officers or board where the legislature delegates to an administrative agency the power to
determine a fact or state of things upon which application of the law is made to depend.
39 The standards which must accompany such a grant of power must not be unlimited,
unreasonable, or permit arbitrary action by the administrative body. 40 Failure to
determine such standards may render the statute void. 41
The standards requirement is implicit in the general rule prohibiting the delegation of
legislative power. 42 Administrative agencies are not legislators, 43 and therefore
adequate standards must be included in the delegating legislation. 44 However, the
realities of modern legislation dealing with complex economic and social problems have
led to judicial approval of broad standards for administrative actions. 45 Detailed
standards are not required, especially in regulatory enactments under the police power. 46
The delegation of legislative power is justified and constitutional, and the requirements
of the standards doctrine are satisfied, when it can be shown: (1) that the legislature has
provided standards or guidelines which define in general terms what is to be done and the
instrumentality or administrative body which is to accomplish it; and (2) that procedural
safeguards exist to control arbitrary administrative action and any administrative abuse of
discretionary power. 47
Footnotes
Footnote 37. Young v Broward County (Fla App D4) 570 So 2d 309, 15 FLW D 2216;
Balmoral Racing Club, Inc. v Illinois Racing Bd., 151 Ill 2d 367, 177 Ill Dec 419, 603
NE2d 489.
As to discretionary power, generally, see § 63.
Footnote 38. Young v Broward County (Fla App D4) 570 So 2d 309, 15 FLW D 2216.
Statutes may provide for a delegation of broad powers to administrative officers to

determine the details of a legislative scheme, but they must contain sufficient standards
for the guidance of the administrative official empowered to execute the law. State v
Union Tank Car Co. (La) 439 So 2d 377, 13 ELR 20472.
There is a lawful delegation of authority if the legislature provides general standards

which define in general terms what is to be done and who is to do it, and procedural
safeguards exist to control arbitrary administrative action. Asarco, Inc. v Puget Sound
Air Pollution Control Agency, 112 Wash 2d 314, 771 P2d 335, 74 ALR4th 557.
Footnote 39. Fahn v Cowlitz County, 93 Wash 2d 368, 610 P2d 857, 39 BNA FEP Cas
387, 23 CCH EPD ¶ 30986, amd on other grounds (Wash) 621 P2d 1293 and appeal after
remand 95 Wash 2d 679, 628 P2d 813.
Footnote 40. State v Union Tank Car Co. (La) 439 So 2d 377, 13 ELR 20472.
Footnote 41. Balmoral Racing Club, Inc. v Illinois Racing Bd., 151 Ill 2d 367, 177 Ill
Dec 419, 603 NE2d 489.
For legislative delegation of powers to an administrative instrumentality to survive a

constitutional attack, the statute in question must declare a legislative policy, establish
primary standards or lay down an intelligible principle to which the instrumentality must
conform. Wilson v Connecticut Product Development Corp., 167 Conn 111, 355 A2d 72.
As to separation of powers, generally, see § 68.
Footnote 43. State v Wallace, 40 Ohio Misc 29, 69 Ohio Ops 2d 228, 318 NE2d 883, 49
OGR 507, app dismd, m c a.

Congress does not purport to transfer its legislative power to the unbounded discretion of
a regulatory body. Burlington Truck Lines, Inc. v United States, 371 US 156, 9 L Ed 2d
207, 83 S Ct 239, 51 BNA LRRM 2583, 46 CCH LC ¶ 17945 (superseded by statute on
other grounds as stated in New York Shipping Asso. v Federal Maritime Com., 272 US
App DC 129, 854 F2d 1338, 129 BNA LRRM 2001, 109 CCH LC ¶ 10681, 1988 AMC
2409).
381, 269 SE2d 547.
Footnote 45. Kaufman v State Dept. of Social & Rehabilitation Services, 248 Kan 951,
811 P2d 876; State ex rel. Commissioner of Ins. v North Carolina Rate Bureau, 300 NC
381, 269 SE2d 547.
381, 269 SE2d 547.
Footnote 47. Hi-Starr, Inc. v Liquor Control Bd., 106 Wash 2d 455, 722 P2d 808.
§ 57 --Ratification and validation
View Entire Section

Acts of administrative agencies unauthorized at the time may become valid and binding
by ratification, 48 unless the attempted ratification is made at a time when the
ratifying authority could not lawfully do the act, 49 or there are substantial intervening
rights. 50 The fact that a validating act is retroactive does not, in itself, render it
ineffective. 51 When the legislature ratifies the act it becomes the act of the
legislature, eliminating any question of delegation. 52
Ratification may be implied as well as express. 53 Thus, it has been held in regard to a
practice required by the exigencies of the public service that a delegation of power from
Congress to the President could be spelled out from long-continued congressional
acquiescence in the executive practice. 54 However, whether there is an implied
ratification depends on the circumstances of the case. 55 Implied ratification is
insufficient to show delegation of authority to take action within an area of questionable
constitutionality, 56 or to eliminate limitations upon the powers of an agency. 57
Footnotes
Footnote 48. Ex parte Mitsuye Endo, 323 US 283, 89 L Ed 243, 65 S Ct 208 (executive
order was ratified and confirmed by statute); Haggerty v Oakland (1st Dist) 161 Cal App
2d 407, 326 P2d 957, 66 ALR2d 718 (disapproved on other grounds by Wong v Di
Grazia, 60 Cal 2d 525, 35 Cal Rptr 241, 386 P2d 817).

Congress may, by enactment not otherwise inappropriate, ratify acts which it might have
authorized, and give the force of law to official action unauthorized when taken. Swayne
& Hoyt, Ltd. v United States, 300 US 297, 81 L Ed 659, 57 S Ct 478.
Footnote 49. Forbes Pioneer Boat Line v Board of Comrs., 258 US 338, 66 L Ed 647,
42 S Ct 325.
Footnote 50. Forbes Pioneer Boat Line v Board of Comrs., 258 US 338, 66 L Ed 647,
42 S Ct 325 (not followedon other grounds by Hammond v United States (CA1 Mass)
786 F2d 8); United States v Heinszen & Co., 206 US 370, 51 L Ed 1098, 27 S Ct 742.
Rights in tort do not vest until there is a final unreviewable judgment, so there can be no
retroactive abridgment of vested rights in such cases. Hammond v United States (CA1
Mass) 786 F2d 8.
Footnote 51. Swayne & Hoyt, Ltd. v United States, 300 US 297, 81 L Ed 659, 57 S Ct
478.
Footnote 52. Harrison v Snyder, 217 Ark 528, 231 SW2d 95.
Footnote 53. See Hirabayashi v United States, 320 US 81, 87 L Ed 1774, 63 S Ct 1375,
later proceeding (WD Wash) 627 F Supp 1445, affd in part and revd in part (CA9 Wash)
828 F2d 591, where provisions by Congress of criminal sanctions for violations of an
executive order constituted ratification of the order.
Footnote 54. Sioux Tribe of Indians v United States, 316 US 317, 86 L Ed 1501, 62 S
Ct 1095 (President's power to withdraw lands from public domain to establish Indian
Reservation).
Footnote 55. Greene v McElroy, 360 US 474, 3 L Ed 2d 1377, 79 S Ct 1400, 37 CCH

LC ¶ 65644, holding that a specific Congressional appropriation of funds to finance a
program of reimbursement did not constitute a ratification of hearing procedures which
were in no way involved in the reimbursement program.

LC ¶ 65644, holding that before the court may be asked to judge whether in the context
of security clearance cases, a person may be deprived of the right to follow his chosen
profession without full hearings where accusers may be confronted, it must be made clear
that the President or Congress, within their constitutional powers have specifically
decided that the imposed procedures are necessary and warranted and have authorized
their use.
Footnote 57. Peters v Hobby, 349 US 331, 99 L Ed 1129, 75 S Ct 790.
§ 58 Construction of statutes granting powers
View Entire Section

Some courts hold that statutes granting powers to agencies ought to be strictly construed
as conferring only those powers stated or necessarily implied, 58 in order to preclude the
exercise of a power which is not expressly granted. 59 However, other courts state that
authority given to an agency should be liberally construed in order to permit the agency
to carry out its statutory responsibilities, 60 and incidental powers should be readily
implied. 61 Moreover, where the agency is concerned with protecting the public health
and welfare, the delegation of authority to the agency is liberally construed. 62
Footnotes
Footnote 58. Walker v Luther (CA2 Conn) 830 F2d 1208 (among conflicting authorities
on other grounds noted in Sullivan v Freeman (CA7 Ill) 944 F2d 334).
Footnote 59. Racine Fire & Police Com. v Stanfield, 70 Wis 2d 395, 234 NW2d 307.
Footnote 60. Cohen v Board of Trustees of University of Medicine & Dentistry, 240 NJ
Super 188, 572 A2d 1191; C. C. T. Equipment Co. v Hertz Corp., 256 NC 277, 123 SE2d
802.
Footnote 61. § 62.
Footnote 62. Columbia v Board of Health & Environmental Control, 292 SC 199, 355
SE2d 536, 26 Envt Rep Cas 1366.
§ 59 General limitations
View Entire Section

An administrative agency only has those powers expressly conferred upon it 63 by

statute 64 or constitution, 65 and such as are implied by their grant of authority.
66
An agency has no power to act in conflict with the authority granted to it by the
legislature. 67 In addition, it may not exceed its statutory authority, 68 or
constitutional limitations, 69 and administrative actions exceeding authority delegated
by law are void. 70 If an agency operates outside the purposes and bounds authorized
by its enabling legislation, the court will intervene. 71 Where there exists reasonable
doubt as to whether a power is invested in an administrative body, the power is denied.
72 Moreover, just as an agency has no power to expand the meaning or coverage of a
statute, an agency has no authority to contract its meaning or coverage. 73
Limitations upon the power of an administrative agency are not confined to limitations in
the statute conferring its power. 74 Beyond the obvious fact that Congress ultimately
controls administrative agencies in the legislation that creates them, other means of
control, such as durational limits on authorizations and formal reporting requirements, lie
well within Congress' constitutional powers. 75
In addition, there are constitutional limitations on the legislature in conferring power on

administrative agencies. 76 The legislature cannot confer a power which it cannot
itself exercise 77 and a state cannot give power to do what the laws of the United
States forbid. 78
Footnotes
Footnote 63. Alexander v Fund Manager, Public Safety Personnel Retirement System
(App) 166 Ariz 589, 804 P2d 122, 77 Ariz Adv Rep 22; Illinois Dept. of Public Aid v
Brazziel (1st Dist) 61 Ill App 3d 168, 18 Ill Dec 483, 377 NE2d 1119; Northwestern Bell
Tel. Co. v Iowa Utilities Bd. (Iowa) 477 NW2d 678, 1992-1 CCH Trade Cases ¶ 69783;
Hopkinson v China (Me) 615 A2d 1166; Commissioner of Revenue v Marr Scaffolding
Co., 414 Mass 489, 608 NE2d 1041; Mississippi Public Service Com. v Columbus &
Greenville Ry. Co. (Miss) 573 So 2d 1343; State ex rel. Twenty-Second Judicial Circuit
v Jones (Mo) 823 SW2d 471; Bick v State Dept. of Justice, Div. of Motor Vehicles, 224
Mont 455, 730 P2d 418; Re Application A-16642, 236 Neb 671, 463 NW2d 591; Beer
Garden, Inc. v New York State Liquor Authority, 79 NY2d 266, 582 NYS2d 65, 590
NE2d 1193; Matador Pipelines, Inc. v Oklahoma Water Resources Bd. (Okla) 742 P2d
15, 95 OGR 337; Captain's Quarters Motor Inn, Inc. v South Carolina Coastal Council,
306 SC 488, 413 SE2d 13; Bennion v ANR Prod. Co. (Utah) 819 P2d 343, 172 Utah Adv
Rep 3, 116 OGR 401; Metropolitan Seattle v Public Employment Relations Com., 118
Wash 2d 621, 826 P2d 158; Francis O. Day Co. v West Virginia Reclamation Bd. of
Review, 188 W Va 418, 424 SE2d 763; Jackson v State (Wyo) 786 P2d 874.
Footnote 64. Arrow-Hart & Hegeman Electric Co. v FTC, 291 US 587, 78 L Ed 1007,
54 S Ct 532 (superseded by statute on other grounds as stated in FTC v University
Health, Inc. (CA11 Ga) 938 F2d 1206, 1991-2 CCH Trade Cases ¶ 69508); State, Dept.
of Environmental Regulation v Puckett Oil Co. (Fla App D1) 577 So 2d 988, 16 FLW D
926; Northwestern Bell Tel. Co. v Iowa Utilities Bd. (Iowa) 477 NW2d 678, 1992-1
CCH Trade Cases ¶ 69783; Morey v Martha's Vineyard Com., 409 Mass 813, 569 NE2d
826; New York State Health Facilities Assn. v Axelrod, 77 NY2d 340, 568 NYS2d 1,
569 NE2d 860, reconsideration den 77 NY2d 990; Matador Pipelines, Inc. v Oklahoma
Water Resources Bd. (Okla) 742 P2d 15, 95 OGR 337; Columbia v Board of Health &
Environmental Control, 292 SC 199, 355 SE2d 536, 26 Envt Rep Cas 1366; Stauffer v
San Antonio, 162 Tex 13, 344 SW2d 158, rehg of cause overr (Mar 29, 1961); McGuire
v State, 58 Wash App 195, 791 P2d 929, review den 115 Wash 2d 1021, 802 P2d 125 and
cert den 499 US 906, 113 L Ed 2d 216, 111 S Ct 1107; Union Pacific Resources Co. v
State (Wyo) 839 P2d 356 (an administrative agency is limited in authority to powers
legislatively delegated).
A federal agency's power is no greater than that delegated to it by Congress. Lyng v

Payne, 476 US 926, 90 L Ed 2d 921, 106 S Ct 2333, reh den 478 US 1031, 92 L Ed 2d
766, 107 S Ct 11, later proceeding (CA11) 799 F2d 664.
The District of Columbia Board of Medicine as a statutory creation has only those
powers given to it by statute, and may not ignore the statute under which it operates.

Davidson v District of Columbia Bd. of Medicine (Dist Col App) 562 A2d 109.
Footnote 65. Re Investigation of Lauricella (La App 1st Cir) 546 So 2d 207, cert den (La)
548 So 2d 330.
Footnote 66. § 62.
Footnote 67. Benson & Gold Chevrolet, Inc. v Louisiana Motor Vehicle Com. (La) 403
So 2d 13, 1981-1 CCH Trade Cases ¶ 64123.
The Secretary of Commerce may not act contrary to the will of Congress when exercised
within the bounds of the Constitution. If Congress has directly spoken to the precise
issue in question, if the intent of Congress is clear, that is the end of the matter. Japan
Whaling Asso. v American Cetacean Soc., 478 US 221, 92 L Ed 2d 166, 106 S Ct
2860, 16 ELR 20742, later proceeding (DC Dist Col) 673 F Supp 1102, 18 ELR 20552
and (among conflicting authorities on other grounds noted in Dellums v U.S. Nuclear
Regulatory Com., 274 US App DC 279, 863 F2d 968).
So 2d 13, 1981-1 CCH Trade Cases ¶ 64123; Mississippi Public Service Com. v
Mississippi Power & Light Co. (Miss) 593 So 2d 997.
The rule that the powers and duties of administrative agencies are strictly limited by the
statute creating them continues to be the rule of law in Arizona. Boyce v Scottsdale
(App) 157 Ariz 265, 756 P2d 934, 8 Ariz Adv Rep 37.
An agency's rulemaking authority cannot support an expansive interpretation of its own

powers. Re Vermont Gas Systems, Inc., 150 Vt 34, 549 A2d 627.
As to rulemaking power of agencies, generally, see § 152.
Footnote 69. Castro v Viera, 207 Conn 420, 541 A2d 1216.
Footnote 70. Rossler v Morton Grove Police Pension Bd. (1st Dist) 178 Ill App 3d 769,
127 Ill Dec 845, 533 NE2d 927; Mississippi Public Service Com. v Columbus &
Greenville Ry. Co. (Miss) 573 So 2d 1343.
Administration agencies, as creatures of the legislature within the executive branch, can
act only to implement their charter as it is written and as given to them. Tze Chun Liao v
New York State Banking Dept., 74 NY2d 505, 549 NYS2d 373, 548 NE2d 911.
Footnote 71. Re Agency of Admin., State Bldgs. Div., 141 Vt 68, 444 A2d 1349.
Footnote 72. Hills Dev. Co. v Bernards, 229 NJ Super 318, 551 A2d 547.
Statutes under which an agency purports to exercise a doubtful power must be strictly
construed against the exercise of that power. Jackson v State (Wyo) 786 P2d 874.
Footnote 73. Oregon Bankers Assn. v State, 102 Or App 539, 796 P2d 366, 55 CCH EPD
¶ 40510.
Footnote 74. Southern S.S. Co. v NLRB, 316 US 31, 86 L Ed 1246, 62 S Ct 886, 10
BNA LRRM 544, 5 CCH LC ¶ 51139.
Footnote 75. INS v Chadha, 462 US 919, 77 L Ed 2d 317, 103 S Ct 2764, 13 ELR
20663.
Footnote 76. Bantam Books, Inc. v Sullivan, 372 US 58, 9 L Ed 2d 584, 83 S Ct 631, 1
Media L R 1116 (censorship).
Footnote 77. Peters v Hobby, 349 US 331, 99 L Ed 1129, 75 S Ct 790 (concurring

opinion of Douglas, J., speaking of a bill of attainder); Juster Bros., Inc. v Christgau, 214
Minn 108, 7 NW2d 501.
Footnote 78. Pennsylvania R. Co. v Public Service Com., 250 US 566, 63 L Ed 1142,
40 S Ct 36.
§ 60 Limitations on manner of exercise
View Entire Section

An agency may not assert the general power given to it and at the same time disregard the
essential conditions imposed upon its exercise. 79 Thus, for example, the federal
Administrative Procedure Act states that a sanction may not be imposed or a substantive
rule or order issued except within jurisdiction delegated to the agency and as authorized
by law. 80 The power of an administrative agency must be exercised in accordance
with, and in the mode prescribed by, the statute or other law bestowing such power. 81
In addition, not only must powers be exercised in the manner directed, but also by the
officer specified. 82 Administrative officers have no power to authorize or acquiesce in
matters forbidden or not authorized by the applicable statute. 83
Footnotes
Footnote 79. United States ex rel. Kansas City S. R. Co. v Interstate Commerce Com.,
252 US 178, 64 L Ed 517, 40 S Ct 517; Edgerton v International Co. (Fla) 89 So 2d
488; State ex rel. Public Service Com. v Northern P. R. Co. (ND) 75 NW2d 129;
Leschner v Department of Labor & Industries, 27 Wash 2d 911, 185 P2d 113.
Footnote 81. United States v Chicago, M., S. P. & P. R. Co., 282 US 311, 75 L Ed 359,
51 S Ct 159; Jack v Torrant, 136 Conn 414, 71 A2d 705; Howell School Bd. Dist. v
Hubbartt, 246 Iowa 1265, 70 NW2d 531; E. C. Olsen Co. v State Tax Com., 109 Utah
563, 168 P2d 324; Atlantic Greyhound Corp. v Public Service Com., 132 W Va 650, 54
SE2d 169.
Footnote 82. Board of Medical Examiners v Steward, 203 Md 574, 102 A2d 248; Roper
v Winner (Tex Civ App) 244 SW2d 355; Vermont Acci. Ins. Co. v Burns, 114 Vt 143, 40
A2d 707.
Footnote 83. Department of Ins. v Church Members Relief Ass'n, 217 Ind 58, 26 NE2d
51, 128 ALR 635.
As to failure of unauthorized acts or representations by administrative officers to work an

estoppel, see 28 Am Jur 2d, Estoppel and Waiver §§ 124, 130, 133.
§ 61 --Fundamental fairness and due process
View Entire Section

General due process considerations of fairness directly limit the manner in which an
agency may exercise its designated responsibilities. 84 A practice which violates due
process cannot be excused because of mere administrative inconvenience. 85 However,
the full rights of due process present in a court of law do not automatically attach. 86
In addition, any administrative agency in determining how best to effectuate public
policy is limited by principles of fundamental fairness. 87 An agency may not act in
such a way as to result in disparate or inconsistent treatment of similarly situated parties,
and to adopt different standards for similar situations is to act arbitrarily. 88 There are
no simple answers as to what constitutes fundamental fairness and each case must be
considered and evaluated on its merits, giving weight to the effect of the decision on the
agency's public policy. 89 In striking the appropriate due process balance the final
factor to be assessed is the public interest. 90
Footnotes
Footnote 84. Jackson v State (Wyo) 786 P2d 874.
As to administrative hearings, generally, see §§ 294 et seq.
Footnote 85. State ex rel. Ormet Corp. v Industrial Com. of Ohio, 54 Ohio St 3d 102, 561
NE2d 920.
Footnote 86. Medeiros v Hawaii County Planning Comm'n, 8 Hawaii App 183, 797 P2d
59, 21 ELR 20463, reconsideration den 8 Hawaii App 661.
Resolution of the issue whether administrative procedures are constitutionally sufficient

requires analysis of the governmental and private interests that are affected. Three
distinct factors must be considered: first, the private interests that will be affected by the
official action; second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the government's interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute procedural requirement
would entail. Mathews v Eldridge, 424 US 319, 47 L Ed 2d 18, 96 S Ct 893, 41 Cal
Comp Cas 920.
Footnote 87. State, Dept. of Environmental Protection v Stavola, 103 NJ 425, 511 A2d
622, 24 Envt Rep Cas 1828.
Footnote 88. Sunrise Manor Nursing Home v Axelrod (3d Dept) 135 App Div 2d 293,
525 NYS2d 367.
622, 24 Envt Rep Cas 1828.
Footnote 90. Mathews v Eldridge, 424 US 319, 47 L Ed 2d 18, 96 S Ct 893, 41 Cal

Comp Cas 920.
§ 62 Implied and inherent powers
View Entire Section

Generally, administrative agencies have the implied 91 or incidental powers 92 that

are reasonably 93 necessary in order to carry out the powers expressly granted, 94
especially in the field of internal administration. 95 The reason for implied powers is
that, as a practical matter, the legislature cannot foresee all the problems incidental to
carrying out the duties and responsibilities of the agency. 96
Courts disagree as to how much latitude administrative agencies have with respect to
implied powers. Some courts say wide latitude must be given to administrative agencies
in fulfilling their duties. 97 Some of these courts even say that the authority does not
have to be "necessary" to effectuate the expressly delegated authority, but only
"appropriate." 98 Other courts say that powers should not be extended by implication
beyond what may be necessary for their just and reasonable execution. 99 Still other
courts state that implied powers are "necessarily implied," 1 and that necessary
implication is an implication which yields so strong a probability of intent to allow these
powers that any intention to the contrary cannot be supposed. 2
Any reasonable doubts as to the existence of an implied power in an agency should be

resolved against the exercise of such authority. 3 Courts give special scrutiny to an
agency's assertion of implied authority to issue regulations where there is specific
statutory authority to issue regulations on limited subjects but no broad general grant of
rulemaking authority. 4
In creating an administrative board, it is not necessary to prescribe the specific procedure

under which it will operate. 5 Similarly, the power to order divesture, 6 the power to
subdelegate, 7 the power to sue and be sued, 8 and even the power to hold in criminal
contempt 9 are powers which may be implied. Other powers which may be implied are:
the power to act through other persons, 10 the power to enforce a regulation, 11 and
the power to reconsider a judicial act of the agency. 12 Nevertheless, there is some
authority disfavoring the concept of implied powers. 13 In some states, the power to
impose sanctions must be expressly delegated by statute, 14 and in some states an
administrative agency does not have power to impose punishment for contempt unless
constitutional provisions expressly give the agency that power. 15
An administrative agency has no inherent powers, 16 because any authority it has comes
from statutes or the constitution. 17 However, implied powers may sometimes be called
inherent. 18
Footnotes
Footnote 91. American Trucking Asso. v United States, 344 US 298, 97 L Ed 337, 73 S
Ct 307; State, Dept. of Environmental Regulation v Puckett Oil Co. (Fla App D1) 577 So
2d 988, 16 FLW D 926; Northwestern Bell Tel. Co. v Iowa Utilities Bd. (Iowa) 477
NW2d 678, 1992-1 CCH Trade Cases ¶ 69783; Hopkinson v China (Me) 615 A2d 1166;
Commissioner of Revenue v Marr Scaffolding Co., 414 Mass 489, 608 NE2d 1041; State
ex rel. Twenty-Second Judicial Circuit v Jones (Mo) 823 SW2d 471; Department of
Personnel v New York City Civil Service Com., 79 NY2d 806, 580 NYS2d 173, 588
NE2d 71; Warren v Marion County, 222 Or 307, 353 P2d 257; Captain's Quarters Motor
Inn, Inc. v South Carolina Coastal Council, 306 SC 488, 413 SE2d 13; Re Application
No. 5189-3 to Extend Time (SD) 467 NW2d 907; Bennion v ANR Prod. Co. (Utah) 819
P2d 343, 172 Utah Adv Rep 3, 116 OGR 401; Re DeCato Bros., Inc., 149 Vt 493, 546
A2d 1354; Metropolitan Seattle v Public Employment Relations Com., 118 Wash 2d 621,
826 P2d 158; Francis O. Day Co. v West Virginia Reclamation Bd. of Review, 188 W Va
418, 424 SE2d 763.
An agency's powers are shaped by its organic statute taken as a whole and need not
necessarily be traced to specific words. Massachusetts Municipal Wholesale Electric Co.
v Massachusetts Energy Facilities Siting Council, 411 Mass 183, 580 NE2d 1028.
Footnote 92. Kaprow v Board of Educ., 131 NJ 572, 622 A2d 237; Re DeCato Bros.,
Inc., 149 Vt 493, 546 A2d 1354; Jackson v W., 14 Va App 391, 419 SE2d 385.
Footnote 93. Re Application No. 5189-3 to Extend Time (SD) 467 NW2d 907; Bennion v
ANR Prod. Co. (Utah) 819 P2d 343, 172 Utah Adv Rep 3, 116 OGR 401.
Footnote 94. Lake County Bd. of Review v Property Tax Appeal Bd., 119 Ill 2d 419, 116
Ill Dec 567, 519 NE2d 459; Illinois Federation of Teachers v Board of Trustees (4th Dist)
191 Ill App 3d 769, 138 Ill Dec 834, 548 NE2d 64, 11 EBC 2577, app den 131 Ill 2d 559,
142 Ill Dec 882, 553 NE2d 396; Shankman v Axelrod, 73 NY2d 203, 538 NYS2d 783,
535 NE2d 1323; Warren v Marion County, 222 Or 307, 353 P2d 257; Columbia v Board
of Health & Environmental Control, 292 SC 199, 355 SE2d 536, 26 Envt Rep Cas 1366;
Bennion v ANR Prod. Co. (Utah) 819 P2d 343, 172 Utah Adv Rep 3, 116 OGR 401.
The fact that an agency has a power in one instance does not mean that it has the power
for all purposes and all cases. It is only where the power is necessary to carry out and
express power or to perform an express duty, or where the action arises out of the
performance of statutory powers or obligations that the implied power exists. Racine
Fire & Police Com. v Stanfield, 70 Wis 2d 395, 234 NW2d 307 (implied power to sue or
be sued).
As to grant of powers, generally, see § 58.

Footnote 95. Gratiot v United States, 40 US 336, 15 Pet 336, 10 L Ed 759; United States
v Fillebrown, 32 US 28, 7 Pet 28, 8 L Ed 596; Coffman v State Board of Examiners,
331 Mich 582, 50 NW2d 322; State ex rel. Hoagland v School Dist., 116 Mont 294, 151
P2d 168.
Footnote 96. C. C. T. Equipment Co. v Hertz Corp., 256 NC 277, 123 SE2d 802.
Footnote 97. Lake County Bd. of Review v Property Tax Appeal Bd., 119 Ill 2d 419, 116
Ill Dec 567, 519 NE2d 459.
Powers expressly granted to an administrative agency should be liberally construed so

that the agency can fulfill the legislature's purpose. Re Request for Solid Waste Utility
Customer Lists, 106 NJ 508, 524 A2d 386.
Footnote 98. Re Request for Solid Waste Utility Customer Lists, 106 NJ 508, 524 A2d
386.
Powers granted include those necessarily or reasonably implied. Massachusetts Hosp.

Assn. v Department of Medical Secur., 412 Mass 340, 588 NE2d 679.
Any constraints on methods available to the agency to exercise designated responsibility

should be put in place by specific statutory restrictions if constitutional interests are
otherwise protected. Cody Gas Co. v Public Service Com. (Wyo) 748 P2d 1144.
381, 269 SE2d 547.
Footnote 1. Northwestern Bell Tel. Co. v Iowa Utilities Bd. (Iowa) 477 NW2d 678,
1992-1 CCH Trade Cases ¶ 69783 (necessarily inferred); Hopkinson v China (Me) 615
A2d 1166; Mississippi Public Service Com. v Columbus & Greenville Ry. Co. (Miss)
573 So 2d 1343; State ex rel. Twenty-Second Judicial Circuit v Jones (Mo) 823 SW2d
471; New York State Health Facilities Assn. v Axelrod, 77 NY2d 340, 568 NYS2d 1,
569 NE2d 860, reconsideration den 77 NY2d 990; Captain's Quarters Motor Inn, Inc. v
South Carolina Coastal Council, 306 SC 488, 413 SE2d 13; Metropolitan Seattle v Public
Employment Relations Com., 118 Wash 2d 621, 826 P2d 158.
Footnote 2. Mississippi Public Service Com. v Columbus & Greenville Ry. Co. (Miss)
573 So 2d 1343.
Footnote 3. Kimberly-Clark Corp. v Public Service Com., 110 Wis 2d 455, 329 NW2d
143.
Footnote 4. Life Ins. Asso. v Commissioner of Ins., 403 Mass 410, 530 NE2d 168.
As to rules and regulations, generally, see §§ 152 et seq.
Footnote 5. Warren v Marion County, 222 Or 307, 353 P2d 257.
Footnote 6. Pan American World Airways, Inc. v United States, 371 US 296, 9 L Ed 2d
325, 83 S Ct 476.

Footnote 8. Racine Fire & Police Com. v Stanfield, 70 Wis 2d 395, 234 NW2d 307,
stating that the basis for the rule that the power to sue or be sued may be implied is that a
particular power or duty conferred by statute may, of necessity, require the additional
power to maintain or defend an action arising out of that power or duty.
Footnote 9. Kennedy v Kenney Mfg. Co. (RI) 519 A2d 585, stating that the power to
hold in criminal contempt is inherent in performing the duties of a workers' compensation
trial commissioner.
Footnote 10. § 71.
Footnote 13. Durant v Motor Vehicle Acci. Indemnification Corp. (2d Dept) 20 App Div
2d 242, 246 NYS2d 548, mod 15 NY2d 408, 260 NYS2d 1, 207 NE2d 600 (superseded
by statute on other grounds as stated in Fox v Atlantic Mut. Ins. Co. (NY App Div 2nd
Dept) LEXIS slip op), stating that generally, the powers of an administrative agency may
not be implied, but are created by language of clear import, admitting no other reasonable
construction.
Footnote 14. State, Dept. of Environmental Regulation v Puckett Oil Co. (Fla App D1)
577 So 2d 988, 16 FLW D 926 (The Florida Constitution prohibits an administrative
agency from imposing a sentence of imprisonment or any other penalties except as
provided by law.)
But see Chalfy v Turoff (CA2 NY) 804 F2d 20, 5 FR Serv 3d 1479, stating that
administrative agencies have broad discretion to fashion appropriate sanctions.
548 So 2d 330.
Footnote 16. Illinois Dept. of Public Aid v Brazziel (1st Dist) 61 Ill App 3d 168, 18 Ill
Dec 483, 377 NE2d 1119; Mississippi Public Service Com. v Mississippi Power & Light
Co. (Miss) 593 So 2d 997; Jaramillo v Morris, 50 Wash App 822, 750 P2d 1301, review
den 110 Wash 2d 1040.
Footnote 17. Belanger & Sons, Inc. v Department of State, 176 Mich App 59, 438 NW2d
885, app den 434 Mich 895.
Footnote 18. Re Berman, 245 NC 612, 97 SE2d 232; Schireson v Shafer, 354 Pa 458, 47
A2d 665, 165 ALR 1133.
§ 63 Discretionary powers
View Entire Section

Some situations require the vesting of discretion in public officials, as, for instance,
where it is difficult or impracticable to lay down a definite, comprehensive rule, or the
discretion relates to the administration of a police regulation and is necessary to protect
the public morals, health, safety, and general welfare. 19 While the right to exercise
discretion is frequently conferred expressly, 20 the duties of administrative agencies
also necessarily include the right to exercise discretion. 21
The very essence of a discretionary power is that the person or persons exercising it may
choose which of several courses will be followed. 22 Discretion may be defined,
when applied to public officials, as the power or right conferred upon them by law of
acting officially under certain circumstances, according to the dictates of their own
judgment and conscience, and not controlled by the judgment or conscience of others. 23
When discretion is given to an agency, it is given to the agency as a policy-making entity
and not to the individual hearing examiners who may be called upon to apply the policy.
24 Administrative agencies generally have wide discretion in selecting the means to
fulfill the legislature's goals. 25 Administrative authorities are permitted, consistent with
the obligations of due process, to adopt rules and policies to carry out statutory duties, 26
and to adapt their rules and policies to the demands of changing circumstances. 27
Moreover, the choice of proceeding by general rule or ad hoc litigation, 28 or both,
29 is one that lies primarily in the informed discretion of the agency. Some courts hold,
however, that under certain circumstances, policy announcements must be made through
the rulemaking process, 30 or problems must be resolved through ad hoc rulemaking in
adjudication. 31 Nevertheless, the court has recognized on several occasions over many
years that an agency's decision not to prosecute or enforce, whether through civil or
criminal process, is a decision generally committed to an agency's absolute discretion, 32
and, if authorized by law and justified in fact, imposition of a regulatory sanction by an
agency is discretionary. 33
The modern tendency of the courts is to greater liberality in permitting grants of

discretion to administrative officials in order to facilitate the administration of the laws as
the complexity of governmental and economic conditions increases. 34 Furthermore,
Congress does not violate the Constitution merely because it legislates in broad terms,
leaving a certain degree of discretion to executive or judicial actors. 35
Footnotes
Footnote 19. Climax Chemical Co. v New Mexico Environmental Improvement Bd.
(App) 106 NM 14, 738 P2d 132.
Footnote 20. United States ex rel. Accardi v Shaughnessy, 347 US 260, 98 L Ed 681,
74 S Ct 499; Ex parte Anderson, 191 Or 409, 229 P2d 633, 29 ALR2d 1051, reh den 191
Or 452, 230 P2d 770, 29 ALR2d 1073.
Footnote 21. Interstate Commerce Com. v Parker, 326 US 60, 89 L Ed 2051, 65 S Ct

1490, reh den 326 US 804, 90 L Ed 490, 66 S Ct 12; Paron v Shakopee, 226 Minn 222,
32 NW2d 603, 2 ALR2d 1227; Handlon v Belleville, 4 NJ 99, 71 A2d 624, 16 ALR2d
1118; State ex rel. Shafer v Ohio Turnpike Com., 159 Ohio St 581, 50 Ohio Ops 465, 113

NE2d 14; Texas & N. O. R. Co. v Railroad Com., 145 Tex 541, 200 SW2d 626; State ex
rel. Billado v Wheelock, 114 Vt 350, 45 A2d 430.
Ed 381, 70 S Ct 403; Commonwealth ex rel. Meredith v Frost, 295 Ky 137, 172 SW2d
905.
As to discretionary powers as generally non-delegable, see § 74.
Law Reviews: Gifford, Discretionary Decisionmaking in the Regulatory Agencies: A

Conceptual Framework. 57 So Cal LR 101 (November, 1983).
Footnote 23. Independent School Dist. v Christiansen, 242 Iowa 963, 49 NW2d 263; Ex
parte Anderson, 191 Or 409, 229 P2d 633, 29 ALR2d 1051, reh den 191 Or 452, 230
P2d 770, 29 ALR2d 1073. See United States ex rel. Accardi v Shaughnessy, 347 US
260, 98 L Ed 681, 74 S Ct 499.
Footnote 24. Lenning v Iowa Dept. of Transp., Motor Vehicle Div. (Iowa) 368 NW2d 98.
Footnote 25. Kaprow v Board of Educ., 131 NJ 572, 622 A2d 237.
Footnote 26. Yu v Clayton (1st Dist) 147 Ill App 3d 350, 100 Ill Dec 916, 497 NE2d
1278.
Footnote 27. Permian Basin Area Rate Cases, 390 US 747, 20 L Ed 2d 312, 88 S Ct
1344, 28 OGR 689, reh den 392 US 917, 20 L Ed 2d 1379, 88 S Ct 2050 (rate-making
agencies may make pragmatic adjustments called for by the circumstances, unless
statutory authority otherwise indicates).
Footnote 28. NLRB v Bell Aerospace Co. Div. of Textron, Inc., 416 US 267, 40 L Ed
2d 134, 94 S Ct 1757, 85 BNA LRRM 2945, 73 CCH LC ¶ 14465 (ovrld on other
grounds by NLRB v Hendricks County Rural Electric Membership Corp., 454 US 170,
70 L Ed 2d 323, 102 S Ct 216, 108 BNA LRRM 3105, 92 CCH LC ¶ 13098); Boffa v
Department of Public Aid (1st Dist) 168 Ill App 3d 139, 118 Ill Dec 974, 522 NE2d 644;
Lenning v Iowa Dept. of Transp., Motor Vehicle Div. (Iowa) 368 NW2d 98; CBS, Inc. v
Comptroller of Treasury, 319 Md 687, 575 A2d 324; Amerada Hess Corp. v Conrad
(ND) 410 NW2d 124, 96 OGR 191; Forelaws on Bd. v Energy Facility Siting Council,
306 Or 205, 760 P2d 212, later proceeding, en banc 307 Or 327, 767 P2d 899.
Footnote 29. Lenning v Iowa Dept. of Transp., Motor Vehicle Div. (Iowa) 368 NW2d 98.
Footnote 30. CBS, Inc. v Comptroller of Treasury, 319 Md 687, 575 A2d 324; Forelaws
on Bd. v Energy Facility Siting Council, 306 Or 205, 760 P2d 212, later proceeding, en
banc 307 Or 327, 767 P2d 899. See Cumberland Farms, Inc. v Moffett, 218 NJ Super
331, 527 A2d 913.
381, 269 SE2d 547.
20335.

Footnote 33. Re Prettyman (ND) 410 NW2d 533.
Footnote 34. Sullivan v Board of License Comrs., 293 Md 113, 442 A2d 558; State ex
rel. Commissioner of Ins. v North Carolina Rate Bureau, 300 NC 381, 269 SE2d 547.
Footnote 35. Touby v United States, 500 US 160, 114 L Ed 2d 219, 111 S Ct 1752, 91
CDOS 3627, 91 Daily Journal DAR 5811.
Congress recognizes that it can only legislate, not administer, so it necessarily relies on
agency act to make "common sense" responses to problems that arise during
implementation, so long as those responses are not inconsistent with Congressional
intent. Cablevision Systems Dev. Co. v Motion Picture Asso., 266 US App DC 435, 836
F2d 599, 14 Media L R 2113, 5 USPQ2d 1400, cert den 487 US 1235, 101 L Ed 2d 934,
108 S Ct 2901.
§ 64 --Limitations on discretion
View Entire Section

Administrative discretion can be exercised only within the scope of an agency's express
or implied powers. 36 An administrative agency has no discretion to disregard the
statute or law bestowing power, 37 to ignore or transgress limitations upon its power, 38
or to withhold its approval or authorization where statutory conditions to such approval
are met. 39 Discretion must be exercised according to fair and legal considerations, 40
in accordance with established principles of justice and not arbitrarily or capriciously, 41
fraudulently, 42 or without factual basis. 43 Discretionary decisions must be a
discharge of official duty, and not a mere expression of personal will. 44
Footnotes
Footnote 36. Harmon v Brucker, 355 US 579, 2 L Ed 2d 503, 78 S Ct 433, holding that
acts in excess of statutory power cannot constitute exercise of administrative discretion.
Footnote 37. § 60.
Footnote 38. Commonwealth ex rel. Meredith v Frost, 295 Ky 137, 172 SW2d 905;
Application of State Board of Medical Examiners, 201 Okla 365, 206 P2d 211
(regulation cannot be in derogation of legislative purpose); Layman v State
Unemployment Compensation Com., 167 Or 379, 117 P2d 974, 136 ALR 1468.
Footnote 39. State ex rel. Woolridge v Morehead, 100 Neb 864, 161 NW 569.
Footnote 40. American Broadcasting Co. v FCC, 85 US App DC 343, 179 F2d 437;
Handlon v Belleville, 4 NJ 99, 71 A2d 624, 16 ALR2d 1118 (statutory considerations).

Ed 381, 70 S Ct 403; McDonough v Goodcell, 13 Cal 2d 741, 91 P2d 1035, 123 ALR
1205; Louisville & Jefferson County Metropolitan Sewer Dist. v Joseph E. Seagram &
Sons, Inc., 307 Ky 413, 211 SW2d 122, 4 ALR2d 588; Commonwealth ex rel. Meredith
v Frost, 295 Ky 137, 172 SW2d 905; Louisiana State Board of Medical Examiners v
Beatty, 220 La 1, 55 So 2d 761; Commonwealth v Kimball, 299 Mass 353, 13 NE2d 18,
2 BNA LRRM 847, 114 ALR 1440; Handlon v Belleville, 4 NJ 99, 71 A2d 624, 16
ALR2d 1118; State ex rel. Billado v Wheelock, 114 Vt 350, 45 A2d 430.
Footnote 42. McDonough v Goodcell, 13 Cal 2d 741, 91 P2d 1035, 123 ALR 1205.
Footnote 43. McDonough v Goodcell, 13 Cal 2d 741, 91 P2d 1035, 123 ALR 1205.
As to the necessity for evidence to support administrative determinations, see § 390.
Footnote 44. Paron v Shakopee, 226 Minn 222, 32 NW2d 603, 2 ALR2d 1227.
§ 65 Ministerial powers
View Entire Section

A ministerial duty is one in respect to which nothing is left to discretion. It is a simple,

definite duty arising under conditions admitted or proved to exist, and imposed by law 45
–a duty absolute, certain, and imperative, involving mere execution of a specific act
arising from fixed and designated facts. 46 A ministerial act has been defined as one
performed in response to a duty which has been positively imposed by law and its
performance required at a time and in a manner or upon conditions specifically
designated, the duty to perform under the conditions specified not being dependent upon
the officer's judgment or discretion. 47
The fact that the performance of administrative duties may necessitate a construction of
the statute imposing them does not necessarily make such performance a matter of
judgment and discretion, or the exercise of a judicial function. 48 Likewise, the fact
that a necessity may exist for the ascertainment of the facts or conditions, upon the
existence of which the performance of an act becomes a clear and specific duty, does not
convert a ministerial act into a discretionary one. 49 For instance, although an agency
has the power to determine whether an application complies with statutory requisites, if it
appears beyond doubt that the application does so comply there is no discretion to reject
the application. 50
Footnotes
Footnote 45. Mississippi v Johnson, 71 US 475, 4 Wall 475, 18 L Ed 437; Bronaugh v

Murray, 294 Ky 715, 172 SW2d 591; Texas State Bd. of Dental Examiners v Fieldsmith
(Tex Civ App) 242 SW2d 213, 26 ALR2d 990, writ ref n r e, rehg of writ of error overr
(Jun 2, 1965); Logan City v Allen, 86 Utah 375, 44 P2d 1085.
Footnote 46. People v May, 251 Ill 54, 95 NE 999, error dismd 232 US 720, 58 L Ed
814, 34 S Ct 602; State ex rel. School Dist. v Ellis, 163 Neb 86, 77 NW2d 809.
As to delegation of ministerial powers, see § 74.
Footnote 47. Independent School Dist. v Christiansen, 242 Iowa 963, 49 NW2d 263;
State ex rel. School Dist. v Ellis, 163 Neb 86, 77 NW2d 809; Larson v Marsh, 144 Neb
644, 14 NW2d 189, 153 ALR 101; State Tax Com. v Katsis, 90 Utah 406, 62 P2d 120,
107 ALR 1477.
Footnote 48. Wilbur v United States, 281 US 206, 74 L Ed 809, 50 S Ct 320.
Footnote 49. Independent School Dist. v Christiansen, 242 Iowa 963, 49 NW2d 263;
State ex rel. School Dist. v Ellis, 163 Neb 86, 77 NW2d 809; States' Rights Democratic
Party v State Board of Elections, 229 NC 179, 49 SE2d 379.
As to discretionary powers, see § 63.
Footnote 50. Grant v Raymond, 31 US 218, 6 Pet 218, 8 L Ed 376 (not followed on
other grounds by Wilder v Gayler (CCSDNY) 1 Blatchf 597, 29 F Cas 1219, No 17649)
as stated in Day v New England Car Co. (CCSDNY) 3 Blatchf 179, 7 F Cas 250, No
3687, later proceeding (CCDNY) 7 F Cas 252, No 3688; Clapp v Ulbrich, 140 Conn 637,
103 A2d 195, 45 ALR2d 1386; States' Rights Democratic Party v State Board of
Elections, 229 NC 179, 49 SE2d 379.
§ 66 Power to charge fees for services
View Entire Section

Congress has stated its intention that federal agencies (except mixed-ownership
government corporations), in order to become self-sufficient to the full extent possible,
should be able to charge fees for each service or thing of value provided to a person
(except a person on official business of the United States Government). 51 This ability
to charge "fees" does not include an ability to levy taxes. 52 Entire agencies are not
among those who may be assessed since the statute reaches only to specific charges for
specific services to specific individuals or companies. 53 Specific factors are used in
measuring fees assessed. The head of each agency may prescribe regulations establishing
the charge for a service or thing of value provided by the agency. 54 Regulations
prescribed by the heads of executive agencies are subject to policies prescribed by the
President and must be as uniform as practicable. 55 Each charge must be fair; 56 and
based on the costs to the government; 57 the value of the service or thing to the
recipient; 58 public policy or interest served; 59 and other relevant facts. 60 Both
direct and indirect costs should be considered. 61
This power does not affect a law of the United States prohibiting the determination and
collection of charges and the disposition of those charges, 62 and prescribing bases for
determining charges. 63 However, a charge may be redetermined consistent with the
above prescribed bases. 64
Footnotes
Annotation: Measure of fees assessable by agency under 31 USCS § 483a providing

that federal agencies shall be self-sustaining to full extent possible, 51 ALR Fed 588.
Footnote 52. National Cable Television Asso. v United States, 415 US 336, 39 L Ed 2d
370, 94 S Ct 1146.
Footnote 53. Federal Power Com. v New England Power Co., 415 US 345, 39 L Ed 2d
383, 94 S Ct 1151.
Footnote 56. 31 USCS § 9701(b)(1).
Footnote 57. 31 USCS § 9701(b)(2)(A).
Footnote 58. 31 USCS § 9701(b)(2)(B).
Footnote 59. 31 USCS § 9701(b)(2)(C).
Footnote 60. 31 USCS § 9701(b)(2)(D).
See Alaskan Arctic Gas Pipeline Co. v United States, 9 Cl Ct 723, 24 Envt Rep Cas 1346,
affd (CA FC) 831 F2d 1043, 96 OGR 227, later proceeding 19 Cl Ct 211, where fees
were not considered excessive after the Department of the Interior promulgated
authorizing regulations, where fees did not exceed actual cost to the Department; fees did
not exceed value conferred, since corporations involved would receive far more in
benefits; no independent public benefit flowed from the Department's activity; and such
activity was reasonably required by the National Environmental Policy Act.
Footnote 61. Mississippi Power & Light Co. v United States Nuclear Regulatory Com.
(CA5) 601 F2d 223, 13 Envt Rep Cas 1569, 9 ELR 20655, 51 ALR Fed 571, cert den
444 US 1102, 62 L Ed 2d 787, 100 S Ct 1066 (construing older version of statute);
Beaver Bountiful, Enterprise v Andrus (CA10 Utah) 637 F2d 749, 15 Envt Rep Cas
1361, 11 ELR 20208.
Footnote 62. 31 USCS § 9701(c)(1).
Footnote 63. 31 USCS § 9701(c)(2).
Footnote 64. 31 USCS § 9701(c)(2).

§ 67 Modification, termination, or loss of powers
View Entire Section

The powers of departments, boards, and administrative agencies are subject to expansion,
contraction, or abolition at the will of the legislative 65 and executive 66 branches
of government. Some administrative agencies are temporary or of limited duration. 67
In addition, powers vested in a particular administrative agency may be superseded by a
grant of the same powers to another agency. 68 However, an agency's jurisdiction or
authority is not lost merely because its order may be erroneous, 69 and prolonged
failure to assert an agency power does not destroy it, 70 but the want of exercise of a
power is significant in determining whether such power was actually conferred. 71
Congress must abide by its delegation of its authority to the executive until that
delegation is legislatively altered or revoked. 72
Footnotes
Footnote 65. Interstate Commerce Com. v Jersey City, 322 US 503, 88 L Ed 1420, 64 S
Ct 1129; Chicago Motor Coach Co. v Chicago, 337 Ill 200, 169 NE 22, 66 ALR 834
(criticized on other grounds by Geneseo v Illinois Northern Utilities Co., 378 Ill 506, 39
NE2d 26) as stated in American Tel. & Tel. Co. v Arlington Heights (Ill) 1992 Ill LEXIS
209, different results reached on reh 156 Ill 2d 399, 189 Ill Dec 723, 620 NE2d 1040, reh
den (Oct 4, 1993); Cabell v Cottage Grove, 170 Or 256, 130 P2d 1013, 144 ALR 286.
Footnote 66. Stark v Wickard, 321 US 288, 88 L Ed 733, 64 S Ct 559.
Footnote 67. Wiener v United States, 357 US 349, 2 L Ed 2d 1377, 78 S Ct 1275 (war
claims commission).
Footnote 68. Interstate Commerce Com. v United States, 224 US 474, 56 L Ed 849, 32
S Ct 556.
Footnote 69. Weissinger v Edgar (2d Dist) 180 Ill App 3d 806, 129 Ill Dec 553, 536
NE2d 237.
Every failure of an agency to observe a procedural requirement does not void subsequent
agency action, especially when important public rights are at stake. When there are less
drastic remedies available for failure to meet a statutory deadline, courts should not
assume that Congress intended the agency to lose its power to act. Brock v Pierce
County, 476 US 253, 90 L Ed 2d 248, 106 S Ct 1834, on remand (CA9) 827 F2d 772.
Footnote 70. United States v Morton Salt Co., 338 US 632, 94 L Ed 401, 70 S Ct 357
(unquestioned powers are sometimes unexercised from lack of funds, motives of
expediency, or the competition of more immediate important concerns); Cooley v Federal
Energy Regulatory Com., 269 US App DC 136, 843 F2d 1464, cert den 488 US 933,
102 L Ed 2d 344, 109 S Ct 327.
Footnote 71. United States v Morton Salt Co., 338 US 632, 94 L Ed 401, 70 S Ct 357.
20663.
2. Separation of Powers of Government [68-70]
§ 68 Generally
View Entire Section

Go to Supplement
The doctrine of separation of powers, which is implicit in the Constitution of the United
States and of some states, and expressly stated in many state constitutions, 73 declares
that governmental powers are divided among the three branches of government, the
legislative, executive, and judicial, and broadly operates to confine legislative powers to
the legislature, executive powers to the executive department, and judicial powers to the
judiciary, precluding one branch of the government from exercising or invading the
powers of another. 74 The doctrine of separation of powers is not rigid, 75 and
administrative agencies combine to a certain extent the three powers of government. 76
Legislative authority may be delegated to an administrative body where sufficient
standards are set forth in the statute 77 that establish the manner and circumstance of the
exercise of such power. 78 Even broad delegations of authority are permissible under
these circumstances. 79
Nevertheless, the doctrine of separation of powers affects administrative agencies. It is

one of the bases for the principle that courts may not usurp the functions of an
administrative agency. 80 In addition, separation of powers may be violated where
Congress tries to control the execution of its enactment directly, instead of indirectly by
passing new legislation. 81 Congress' authority to delegate portions of its powers to
administrative agencies provides no support for the argument that Congress can
constitutionally control administration of laws by way of a congressional veto. 82
States often, if not always, decide how power will be distributed among their
governmental agencies, 83 and a state constitution may unite legislative and
judicial powers in a single entity without constraint by the Constitution of the United
States. 84
Practice Aids: Metropolitan Washington Airports Authority v. Citizens for the

Abatement of Aircraft Noise, Inc. [ 115 LEd2d 236 (1991)], 27 New Eng LR 1135
(1993).

Supreme Court's construction and application of guarantee clause of Article IV, sec. 4 of
Federal Constitution, providing that United States will guarantee states republican form
of government 120 L ED 2nd 957.
Footnotes
Footnote 75. 16 Am Jur 2d, Constitutional Law §§ 297, 299-301.
Footnote 76. Sylvester v Tindall, 154 Fla 663, 18 So 2d 892; Keller v Kentucky
Alcoholic Beverage Control Board, 279 Ky 272, 130 SW2d 821; Bailey v State Board of
Public Affairs, 194 Okla 495, 153 P2d 235; Quesenberry v Estep, 142 W Va 426, 95
SE2d 832.
Law Reviews: Shapiro & Levy, Heightened Scrutiny of the Fourth Branch: Separation
of Powers and the Requirement of Adequate Reasons for Agency Decisions. 1987
Duke LJ 387 (June, 1987).
811 P2d 876; Sullivan v Board of License Comrs., 293 Md 113, 442 A2d 558.
As to legislative standards governing administrative action, see § 56.
811 P2d 876.
Footnote 79. Sullivan v Board of License Comrs., 293 Md 113, 442 A2d 558.
Ct 307 (it is not the function of the court to act as a super-commission); Federal Power
Com. v Idaho Power Co., 344 US 17, 97 L Ed 15, 73 S Ct 85, reh den 344 US 910, 97
L Ed 702, 73 S Ct 326.
Footnote 81. Bowsher v Synar, 478 US 714, 92 L Ed 2d 583, 106 S Ct 3181, later
proceeding (DC Dist Col) 670 F Supp 410. (Section 251 of the Balanced Budget and
Emergency Deficit Control Act of 1985 (2 USCS § 901), under which Congress assigns
to the Comptroller General of the United States the responsibility of preparing and
submitting to the President a report setting forth the spending reductions necessary to
reduce the federal deficit to a specified target amount for a given fiscal year, was invalid
as violating the doctrine of separation of powers, since (1) the powers assigned to the
Comptroller General under the Act were executive in nature, and (2) the Comptroller
General was subservient to Congress because only removable at the initiative of
Congress, and therefore Congress in effect retained control over such execution and
intruded into the executive function in violation of the Constitution).
20663.

Law Reviews: Barber, Mead v. Arnell [791 P.2d 410 (Idaho)]: The Legislative Veto
and Too Much Separation of Powers. 27 Idaho L Rev 157 (1990/1991).
Footnote 83. Sweezy v New Hampshire, 354 US 234, 1 L Ed 2d 1311, 77 S Ct 1203,

reh den 355 US 852, 2 L Ed 2d 61, 78 S Ct 7; Highland Farms Dairy, Inc. v Agnew,
300 US 608, 81 L Ed 835, 57 S Ct 549; State v Atlantic C. L. R. Co., 56 Fla 617, 47 So
969.
A state may distribute its powers as it sees fit, provided only that it acts consistently with
the essential demands of due process and does not transgress those restrictions of the
federal constitution which are applicable to state authority. Crowell v Benson, 285 US
22, 76 L Ed 598, 52 S Ct 285 (ovrld on other grounds by Director, Office of Workers'
Compensation Programs, etc. v Perini North River Assoc., 459 US 297, 74 L Ed 2d 465,
103 S Ct 634).
Footnote 84. Keller v Potomac Electric Power Co., 261 US 428, 67 L Ed 731, 43 S Ct
445.
§ 69 Encroachment by agency on adjudicative functions of judicial branch
View Entire Section

Go to Supplement
The federal constitution 85 and some state constitutions have provisions vesting judicial
powers in the courts. 86 However, administrative agencies may make factual
determinations and even adjudicate rights of the parties without running afoul of the
constitutional separation of powers. 87 Congress can establish under Article I
"legislative courts" 88 to serve as special tribunals to examine and determine various
matters arising between the government and others, which from their nature do not
require judicial determination and yet are susceptible of it. 89 The resolution of a
claim that the Congressional authorization to an administrative agency to resolve
common-law claims violates the Constitution does not turn on conclusory reference to
the language of Article III; rather, the constitutionality of a given Congressional
delegation of adjudicative functions to a non-Article III body must be assessed by
reference to the purposes underlying the requirements of Article III, and this inquiry is
guided by the principle that practical attention to substance rather than doctrinaire
reliance on formal categories should inform application of Article III. 90 Congress,
acting for a valid legislative purpose pursuant to its constitutional powers under Article I,
may create a seemingly "private" right that is so closely integrated to a public regulatory
scheme as to be a matter appropriate for agency resolution with limited involvement by
the Article III judiciary. 91 Congress has the power under Article I to authorize an
agency administering a complex regulatory scheme to allocate the costs and benefits
among voluntary participants in the program without providing an Article III
adjudication. 92
However, an agency may not exercise all manner of judicial-like power on the simple
condition that judicial review remains available. 93 In determining the extent to which a
given congressional decision to authorize the adjudication of Article III business in a
non-Article III tribunal impermissibly threatens the institutional integrity of the judicial
branch, the Supreme Court weighs a number of factors, with an eye to the practical effect
that the congressional action will have on the constitutionally assigned role of the federal
judiciary. Among the factors upon which the court focuses are the extent to which the
essential attributes of judicial power are reserved to Article III courts, and the extent to
which the non-Article III forum exercises the range of jurisdiction and powers normally
vested only in Article III courts, the origins and importance of the right to be adjudicated,
and the concerns that drove Congress to depart from the requirements of Article III. 94
Some courts say that it is where an agency purports to enter enforceable judgments that
the court has drawn the line of permissibility. 95 This is so because it is the power to
render enforceable judgments which is the essence of judicial power. 96 However, some
statutes confer power to punish for civil contempt, or imply a power to hold persons in
criminal contempt. 97
Some courts hold that the power to award damages for a tort rests with the courts and is
strictly a judicial function. 98 On the other hand, other courts have accepted without
constitutional debate the authority of licensing agencies to impose a restitutive award as a
probationary term on a licensee, and these cases do not foreclose the possibility that,
under appropriate circumstances, an agency without licensing power should likewise be
allowed to make restitutive awards. 99
§ 69 ----Encroachment by agency on adjudicative functions of judicial branch

[SUPPLEMENT]
Practice Aids: Civil procedure–Subpoena power–Ninth Circuit rejects authority of

non-party federal agencies to prevent employees from testifying pursuant to a federal
subpoena.– Exxon Shipping Co. v. United States Dep't of Interior , 34 F3d 774, 108
Harv LR 4:965 (1995).
Footnotes
Footnote 85. US Const, Art III § 1.
Footnote 86. 20 Am Jur 2d, Courts § 17.
Footnote 87. State ex rel. Keasling v Keasling (Iowa) 442 NW2d 118.
Footnote 88. Northern Pipeline Constr. Co. v Marathon Pipe Line Co., 458 US 50, 73 L
Ed 2d 598, 102 S Ct 2858, 9 BCD 67, 6 CBC2d 785, CCH Bankr L Rptr ¶ 68698, stating
that there are three situations in which Article III does not bar the creation of legislative
courts: (1) cases in which the Supreme Court has upheld the creation by Congress of
non-Article III "territorial courts"; (2) cases in which the Supreme Court has sustained
the exercise by Congress and the Executive of the power to establish and administer
courts-martial; and (3) cases in which the Supreme Court has upheld the constitutionality
of legislative courts and administrative agencies created by Congress to adjudicate cases
involving "public rights."

River Assoc., 459 US 297, 74 L Ed 2d 465, 103 S Ct 634).
As to the legislature's power to create "courts," generally, see 16 Am Jur 2d,

Constitutional Law §§ 330, 331, and 20 Am Jur 2d, Courts §§ 17, 18.
106 S Ct 3245 and (among conflicting authorities on other grounds noted in Puerto Rico
Ports Authority v Federal Maritime Com. (CA1) 919 F2d 799).
Footnote 91. § 2.
2d 409, 105 S Ct 3325, 22 Envt Rep Cas 2033, 15 ELR 20698.
Footnote 93. McHugh v Santa Monica Rent Control Bd., 49 Cal 3d 348, 261 Cal Rptr
318, 777 P2d 91, reh den.
106 S Ct 3245 and (among conflicting authorities on other grounds noted in Puerto Rico
Ports Authority v Federal Maritime Com. (CA1) 919 F2d 799).
Footnote 97. Kennedy v Kenney Mfg. Co. (RI) 519 A2d 585.
Footnote 98. Pounds v Denison (App) 115 Idaho 381, 766 P2d 1262, appeal after remand
120 Idaho 425, 816 P2d 982.
318, 777 P2d 91, reh den.
§ 70 Combining investigative, prosecutorial, and judicial powers
View Entire Section

Some administrative agencies investigate violations of law and act as accusers, 1 or

act as advocate or prosecutor as well as judge in the same proceeding. 2 It is, in
fact, typical for the members of administrative agencies to receive the results of
investigations, to approve the filing of charges or formal complaints instituting
enforcement proceedings, and then to participate in the ensuing hearings. 3 This mode
of procedure does not violate the Administrative Procedure Act, and it does not violate
due process of law. 4
The danger of unfairness is particularly great in an agency in which there is a high degree
of concentration of both prosecuting and judicial functions, 5 especially where the
functions are combined in the same persons. 6 The courts have pointed out that in
such situations the agency members must be zealous in the recognition and preservation
of the right to a hearing by impartial triers of the facts, 7 and such fusion of functions
has been subjected to considerable criticism. 8
 Observation: There are diverse opinions as to whether and under what

circumstances prosecutorial or investigative functions disqualify a person from
adjudication. 9 The 1981 version of the Model State Administrative Procedure Act
provides that a person who has served as an investigator, prosecutor or advocate in an
adjudicative proceeding or its pre-adjudicative stage, or persons subject to the
authority, direction or discretion of such person, may not serve as a presiding officer or
assist or advise a presiding officer in the same proceeding. 10 Subject to certain
limitations, 11 the federal Administrative Procedure Act generally does not allow an
employee or agent engaged in the performance of investigative or prosecuting
functions for an agency in a case to participate or advise in the decision, recommended
decision, or agency review of that case or a factually related case, except as a witness
or counsel in public proceedings. 12
Nevertheless, the combination of functions has not been held to violate constitutional
rights, 13 such as due process of law, 14 or to deny a fair hearing. 15 However,
the interested party in such a case must have the right to cross-examine witnesses and
present proof, 16 and a court may determine from the special facts and circumstances
present in the case before it that the risk of unfairness is intolerably high. 17
Footnotes
Brinkley v Hassig (CA10 Kan) 83 F2d 351; People v Western Air Lines, Inc., 42 Cal 2d
621, 268 P2d 723, app dismd 348 US 859, 99 L Ed 677, 75 S Ct 87; Board of Medical
Examiners v Steward, 203 Md 574, 102 A2d 248; Sharkey v Thurston, 268 NY 123, 196
NE 766.
FTC v Klesner, 280 US 19, 74 L Ed 138, 50 S Ct 1, 68 ALR 838 (proceeding to put an
end to unfair methods of competition); People v Western Air Lines, Inc., 42 Cal 2d 621,
268 P2d 723, app dismd 348 US 859, 99 L Ed 677, 75 S Ct 87; Board of Medical
Examiners v Steward, 203 Md 574, 102 A2d 248; Rose v State Board of Registration for
Healing Arts (Mo) 397 SW2d 570; Hoover Motor Exp. Co. v Railroad & Public Utilities
Com., 195 Tenn 593, 261 SW2d 233; Manlowe Transfer & Distributing Co. v
Department of Public Service, 18 Wash 2d 754, 140 P2d 287, 155 ALR 928.



Footnote 5. Mazza v Cavicchia, 15 NJ 498, 105 A2d 545 (superseded by statute on other
grounds as stated in New Jersey Civil Service Asso. v State, 88 NJ 605, 443 A2d 1070),
stating that statute created independent administrative law judges to bring impartiality
and objectivity to agency hearings).
Footnote 6. Wong Yang Sung v McGrath, 339 US 33, 94 L Ed 616, 70 S Ct 445, mod
339 US 908, 94 L Ed 1336, 70 S Ct 564 and (superseded by statute on other grounds as
stated in Clardy v Levi (CA9 Wash) 545 F2d 1241, 39 ALR Fed 798) and (superseded
by statute on other grounds as stated in Re Fedorenko (BIA) 19 I & N Dec 57) and
(superseded by statute on other grounds as stated in Re Anselmo (BIA) I & N Interim
Dec No 3105).
As to members, agents and employees of agencies and separation of prosecutorial or

investigative and adjudicative functions, see §§ 313-315.
Footnote 7. § 302.
Footnote 8. Universal Camera Corp. v NLRB, 340 US 474, 95 L Ed 456, 71 S Ct 456,

27 BNA LRRM 2373, 19 CCH LC ¶ 66191, on remand (CA2) 190 F2d 429, 28 BNA
LRRM 2274, 20 CCH LC ¶ 66439; Brinkley v Hassig (CA10 Kan) 83 F2d 351; People v
Western Air Lines, Inc., 42 Cal 2d 621, 268 P2d 723, app dismd 348 US 859, 99 L Ed
677, 75 S Ct 87.
Footnote 9. § 48.
Footnote 10. § 48.
Footnote 13. Brinkley v Hassig (CA10 Kan) 83 F2d 351; People v Western Air Lines,
Inc., 42 Cal 2d 621, 268 P2d 723, app dismd 348 US 859, 99 L Ed 677, 75 S Ct 87;
Board of Medical Examiners v Steward, 203 Md 574, 102 A2d 248; Atty. Gen. ex rel.
Rich v Jochim, 99 Mich 358, 58 NW 611.
Footnote 14. Brinkley v Hassig (CA10 Kan) 83 F2d 351; People v Western Air Lines,
Inc., 42 Cal 2d 621, 268 P2d 723, app dismd 348 US 859, 99 L Ed 677, 75 S Ct 87;
Board of Medical Examiners v Steward, 203 Md 574, 102 A2d 248; Atty. Gen. ex rel.
Rich v Jochim, 99 Mich 358, 58 NW 611; Re Application for Permits to Drain Related to
Stone Creek Channel Improv. etc. (ND) 424 NW2d 894.
Footnote 15. Re Application for Permits to Drain Related to Stone Creek Channel
Improv. etc. (ND) 424 NW2d 894.
The mere fact that both investigative and adjudicative functions have been granted to an
administrative body does not of itself create an unconstitutional risk of bias in an
administrative adjudication. Cooper v Williamson County Bd. of Educ. (Tenn) 803
SW2d 200, reh overr (Tenn) 1990 Tenn LEXIS 420 and cert den (US) 114 L Ed 2d 100,
111 S Ct 2013.
Footnote 16. Re Carberry, 114 NJ 574, 556 A2d 314.

3. Acting Through Other Persons; Delegation to Subordinates [71-76]
§ 71 Generally
View Entire Section

The complexities and magnitude of governmental activity have become so great that
there must of necessity be a delegation and redelegation of authority as to many
functions. 18 Statutes often expressly provide for such delegation by the persons in
whom the powers of the agency are directly vested. 19
The authority to subdelegate need not be expressed in the statute but may be implied if
there is a reasonable basis for such implication. 20 However, state courts, in specific
instances, have held that statutory authority of a commission to employ persons as may
be necessary to perform its duties does not give the commission authority, either directly
or by implication, to deputize those matters which are quasi-judicial in character; 21
and, under certain circumstances, the subdelegation of power may be beyond the scope of
authority of an administrative agency or invalid on constitutional grounds. 22
 Observation: Delegations of power are subject to certain limitations. If a statute

grants authority to an agency to delegate powers but imposes conditions and
restrictions on such grant, such conditions and restrictions must be met. 23 In
addition, courts have consistently required subdelegation of significant functions to be
checked by some form of review, either within the agency itself, or ultimately by the
courts. 24
Footnotes
Footnote 18. Barr v Matteo, 360 US 564, 3 L Ed 2d 1434, 79 S Ct 1335, reh den 361
US 855, 4 L Ed 2d 93, 80 S Ct 41; Pistachio Group of Asso. of Food Industries, Inc. v
United States, 11 CIT 668, 671 F Supp 31, appeal after remand 12 CIT 416, 685 F Supp
848, stating that in recent years, courts have readily accepted subdelegations of authority
within agencies.
Footnote 19. See, for example, L. P. Steuart & Bro., Inc. v Bowles, 322 US 398, 88 L
Ed 1350, 64 S Ct 1097 (provision for delegation by the President of the United States of
authority conferred upon him or her); U. S. Health Club, Inc. v Major (CA3 NJ) 292 F2d
665, cert den 368 US 896, 7 L Ed 2d 92, 82 S Ct 172 (right of Postmaster General to
delegate his or her power to make final decisions).

An agency head may delegate to subordinate officials under the federal Administrative
Procedure Act. § 72.
Footnote 20. § 73.
Footnote 21. Apice v American Woolen Co., 74 RI 425, 60 A2d 865; State Tax Com. v
Katsis, 90 Utah 406, 62 P2d 120, 107 ALR 1477.
Footnote 23. Shreveport Engraving Co. v United States (CA5 La) 143 F2d 222, cert den
323 US 749, 89 L Ed 600, 65 S Ct 82, reh den 323 US 815, 89 L Ed 648, 65 S Ct 128,
wherein the court rejected a contention that there were conditions of delegation which
had not been met.
Footnote 24. Pistachio Group of Asso. of Food Industries, Inc. v United States, 11 CIT
668, 671 F Supp 31, appeal after remand 12 CIT 416, 685 F Supp 848.
§ 72 Delegation under federal law
View Entire Section

The head of an agency may delegate to subordinate officials the authority vested in him
or her by law to take final action on matters pertaining to the employment, direction, and
general administration of personnel under his or her agency, 25 as well as the authority
to authorize the publication of advertisements, notices, or proposals. 26 Thus, agency
heads may delegate the authority to issue and promulgate regulations dealing with the
discharge of personnel, 27 or create new positions and delegate duties to the incumbents
thereof, 28 and the actions of assistant agency heads in abolishing a position 29 or
appointing a special assistant, 30 will be presumed valid where such actions are in
writing and there is nothing in the record to show that the assistants' actions do not have
the full sanction and approval of the agency heads. 31
The failure of an executive order to name the office of one to whom authority is
delegated does not vitiate that order if the person named is an officer appointed by the
President and confirmed by the Senate. 32
Footnotes
Footnote 27. Reed v Franke (1961, CA4 Va) 297 F2d 17.
Footnote 28. 37 Op Atty Gen 364.

Footnote 29. Norris v United States, 257 US 77, 66 L Ed 136, 42 S Ct 9.
Footnote 30. May v United States (CA8 Mo) 236 F 495.
Footnote 31. Norris v United States, 257 US 77, 66 L Ed 136, 42 S Ct 9.
Footnote 32. United States v Chemical Foundation, Inc., 272 US 1, 71 L Ed 131, 47 S

Ct 1 (superseded by statute on other grounds as stated in Blue Cross Asso. & Blue Shield
Asso. (ASBCA) 89-2 BCA ¶ 21840).
§ 73 Delegation implied from statute or nature of agency
View Entire Section

The authority to subdelegate need not be expressed in the statute but may be implied if
there is a reasonable basis for such implication. 33 The authority of agency to delegate
a particular function may be found in the power conferred upon an agency to issue
regulations or orders as may be deemed necessary or proper in order to carry out its
purposes, unless by express provision of the statute or by implication it has been
withheld. 34 In addition, authority of an administrative agency to delegate its powers,
including its discretionary or quasi-judicial powers, to subordinates within the agency
may be implied from the nature of the agency. 35
Where Congress confers power upon the President of the United States, even if there is
no express authority to act by deputies, such authority is implied. 36 Powers
bestowed upon the President must, of necessity, be exercised through the various
executive departments. 37 Also, the necessity of performance of duties in the
federal executive departments through subordinates is recognized, and acts of an acting
secretary 38 or an assistant secretary 39 or other subordinates 40 are deemed
to be acts of the secretary when they are done under his or her sanction and approval.
The same principles have been applied to uphold delegations by lesser federal 41 and
by state 42 administrative agencies which, in view of the magnitude of their tasks, were
deemed not to have been intended to exercise their discretion personally; and it is held
that the same principles which will admit of delegation by an administrative agency in
any case may suffice to justify a redelegation by its delegate. 43
Footnotes
As to implied powers, generally, see § 62.
Footnote 34. Fleming v Mohawk Wrecking & Lumber Co., 331 US 111, 91 L Ed 1375,
67 S Ct 1129.
Footnote 35. Kimm v Rosenberg, 363 US 405, 4 L Ed 2d 1299, 80 S Ct 1139, reh den
364 US 854, 5 L Ed 2d 77, 81 S Ct 30; Jay v Boyd, 351 US 345, 100 L Ed 1242, 76 S
Ct 919; United States ex rel. Accardi v Shaughnessy, 347 US 260, 98 L Ed 681, 74 S Ct
499; Papagianakis v The Samos (CA4 Va) 186 F2d 257, cert den 341 US 921, 95 L Ed
1354, 71 S Ct 741.
323 US 749, 89 L Ed 600, 65 S Ct 82, reh den 323 US 815, 89 L Ed 648, 65 S Ct 128.
Footnote 37. United States ex rel. Knauff v Shaughnessy, 338 US 537, 94 L Ed 317, 70
S Ct 309; Ludecke v Watkins, 335 US 160, 92 L Ed 1881, 68 S Ct 1429, reh den 335
US 837, 93 L Ed 389, 69 S Ct 14.
Footnote 38. Morgan v United States, 298 US 468, 80 L Ed 1288, 56 S Ct 906 (ovrld
on other grounds by United States v Morgan, 313 US 409, 85 L Ed 1429, 61 S Ct 999)
as stated in Yaretsky v Blum (CA2 NY) 629 F2d 817, revd 457 US 991, 73 L Ed 2d
534, 102 S Ct 2777.
Footnote 39. Hannibal Bridge Co. v United States, 221 US 194, 55 L Ed 699, 31 S Ct
603.
Footnote 40. United States ex rel. Accardi v Shaughnessy, 347 US 260, 98 L Ed 681,
74 S Ct 499 (delegation by Attorney General to Board of Immigration Appeals in
deportation cases); Miller v Mayor of New York, 109 US 385, 27 L Ed 971, 3 S Ct 228.
Footnote 41. Papagianakis v The Samos (CA4 Va) 186 F2d 257, cert den 341 US 921,
95 L Ed 1354, 71 S Ct 741 (delegation by immigration officer to immigration
inspectors).
Footnote 42. Krug v Lincoln Nat. Life Ins. Co. (CA5 Tex) 245 F2d 848, indicating
limitation to other than quasi-judicial functions.
§ 74 Type of power, discretionary, quasi-judicial, or ministerial, as affecting

whether power may be delegated
View Entire Section

In all cases of delegated authority, where personal trust or confidence is reposed in the
agent and especially where the exercise and application of the power is made subject to
judgment or discretion, the authority is purely personal and cannot be delegated to
another unless there is a special power of substitution either express or necessarily
implied. 44 Accordingly, apart from statute, whether administrative officers in
whom certain powers are vested or upon whom certain duties are imposed may deputize
others to exercise such powers or perform such duties usually depends upon whether the
particular act or duty sought to be delegated is ministerial, or discretionary or
quasi-judicial in nature. 45 Merely administrative and ministerial functions may be
delegated to assistants whose employment is authorized, 46 but there is generally
no authority to delegate acts discretionary or quasi-judicial in nature. 47
Footnotes
323 US 749, 89 L Ed 600, 65 S Ct 82, reh den 323 US 815, 89 L Ed 648, 65 S Ct 128;
Anderson v Grand River Dam Authority (Okla) 446 P2d 814.
A commission, charged by law with power to promulgate rules, cannot, in turn, delegate
that power to another. Civil Service Com. v McDougal, 198 Ark 388, 129 SW2d 589
(ovrld on other grounds by Tovey v Jacksonville, 305 Ark 401, 808 SW2d 740).
Footnote 45. Payton v McQuown, 97 Ky 757, 31 SW 874; McCullough v Scott, 182 NC

865, 109 SE 789; State ex rel. R. R. Crow & Co. v Copenhaver, 64 Wyo 1, 184 P2d 594.
As to distinction between discretionary and ministerial powers, see §§ 63, 65.
Footnote 46. Krug v Lincoln Nat. Life Ins. Co. (CA5 Tex) 245 F2d 848 (approval of form
of policy by insurance commissioners); Shreveport Engraving Co. v United States (CA5
La) 143 F2d 222, cert den 323 US 749, 89 L Ed 600, 65 S Ct 82, reh den 323 US 815,
89 L Ed 648, 65 S Ct 128; State Tax Com. v Katsis, 90 Utah 406, 62 P2d 120, 107 ALR
1477; School Dist. v Callahan, 237 Wis 560, 297 NW 407, 135 ALR 1081 (drafting of
order and affixing signature).
Footnote 47. Krug v Lincoln Nat. Life Ins. Co. (CA5 Tex) 245 F2d 848; Western Air
Lines, Inc. v Civil Aeronautics Bd. (CA9) 194 F2d 211 (superseded by statute on other
grounds as stated in Independent Union of Flight Attendants v United States Dept. of
Transp. (CA9) 803 F2d 1029, 123 BNA LRRM 3080); Floyd v Thomas, 211 Ga 656, 87
SE2d 846; Apice v American Woolen Co., 74 RI 425, 60 A2d 865; State Tax Com. v
Katsis, 90 Utah 406, 62 P2d 120, 107 ALR 1477.
§ 75 Delegation to assistants
View Entire Section

A delegate may, without delegating power, exercise authority through assistants, 48

so long as the agency does not abdicate its power and responsibility and preserves for
itself the right to make the final decision. 49 The rule that requires an officer to
exercise his or her own judgment and discretion in making an order does not preclude the
officer from utilizing, as a matter of practical administrative procedure, the aid of
subordinates to investigate and report the facts and their recommendation in relation to
the advisability of the order. 50 Likewise, without any statutory authority therefor and
without an unlawful delegation of its power, an agency may appoint a referee to hear and
report testimony. 51 Necessary expert advice may also be sought by an administrative
agency outside the agency through the use of an advisory panel to assist it in making its
determination. 52
Footnotes
Footnote 49. NLRB v Duval Jewelry Co., 357 US 1, 2 L Ed 2d 1097, 78 S Ct 1024, 42

BNA LRRM 2206, 35 CCH LC ¶ 71578, on remand (CA5 Fla) 257 F2d 672, 42 BNA
LRRM 2639, 35 CCH LC ¶ 71764.
Footnote 50. Western Air Lines, Inc. v Civil Aeronautics Bd. (CA9) 194 F2d 211
(superseded by statute on other grounds as stated in Independent Union of Flight
Attendants v United States Dept. of Transp. (CA9) 803 F2d 1029, 123 BNA LRRM
3080); School Dist. v Callahan, 237 Wis 560, 297 NW 407, 135 ALR 1081 (also
drafting of order in first instance).
Footnote 51. State ex rel. Rockwell v State Bd. of Education, 213 Minn 184, 6 NW2d
251, 143 ALR 503, where the referee in removal proceedings only heard testimony and
made no findings of fact or recommendations but merely transmitted a transcript and
report of the proceedings to the board which examined the transcript and report, heard the
arguments of counsel, and made findings and conclusions and its order of dismissal.
Footnote 52. Eagles v United States, 329 US 304, 91 L Ed 308, 67 S Ct 313.
Law Reviews: Mathias, The Use of Legal and Technical Assistants by Administrative
Law Judges in Administrative Proceedings. 1 Admin LJ 107 (Summer, 1987).
§ 76 Delegation to private parties
View Entire Section

Delegations of administrative authority are suspect when they are made to private parties,
particularly to entities whose objectivity may be questioned on grounds of conflict of
interest. 53 However, subdelegations by federal agencies to private parties are not
invalid, if the federal agency or official retains final reviewing authority. 54
Footnotes
Footnote 53. Pistachio Group of Asso. of Food Industries, Inc. v United States, 11 CIT
668, 671 F Supp 31, appeal after remand 12 CIT 416, 685 F Supp 848.

But see State v Christie, 70 Hawaii 158, 766 P2d 1198, cert den 490 US 1067, 104 L Ed
2d 633, 109 S Ct 2068, holding that a rule that allows testing of a device that measures
blood alcohol concentration to be carried out in accordance with methods recommended
by its manufacturer does not constitute an impermissable subdelegation of rule-making
authority because it does not empower private persons to decide what the law will be.
Footnote 54. United Black Fund, Inc. v Hampton (DC Dist Col) 352 F Supp 898.
4. Interpretation of Laws [77-98]
a. Power of Agencies, In General [77-84]
§ 77 Generally
View Entire Section

Go to Supplement
Administrative agencies are generally clothed with the power to construe the law as a
necessary precedent to administrative action. 55 Even so, it is axiomatic that an
administrative agency has no power to declare a statute void or otherwise unenforceable.
56 An agency cannot modify, abridge or otherwise change the statutory provisions
under which it acquires authority unless the statutes expressly grant it that power. 57
And, while agencies are entitled to a certain amount of hegemony over the statutes they
are entrusted to administer, agencies may not go too far afield of the letter of the law
even if they perceive that they are furthering the spirit of the law. 58 Although an
administrative agency has the authority and duty to determine its own limits of statutory
authority, it is the function of the judiciary to finally decide the limits of the authority of
the agency. 59
Case authorities:
Mere failure to enforce franchise tax statute did not establish an affirmative agency
policy as to interpretation of tax statute, where agency had not collected franchise tax
from foreign corporation that sold goods in Texas through independent distributors until
agency rule was amended, whereupon corporation contended that the meaning of the
statute was doubtful and should continue to be construed so as not to require collection of
the tax since the agency rule was reenacted without any substantial change in verbiage,
because there was no evidence of any affirmative administrative construction of the
statute prior to the amendment. Sharp v House of Lloyd, Inc. (1991, Tex) 815 SW2d 245.
Footnotes
Footnote 55. J.R. Simplot Co. v Idaho State Tax Com., 120 Idaho 849, 820 P2d 1206, reh
den (Idaho) 1991 Ida LEXIS 190; Dean v State, 250 Kan 417, 826 P2d 1372, cert den
(US) 119 L Ed 2d 566, 112 S Ct 2941 (interpretation of a statute is a necessary and
inherent function of an agency in its administration or application of the statute).
Footnote 56. Palm Harbor Special Fire Control Dist. v Kelly (Fla) 516 So 2d 249, 12
FLW 592.
Footnote 57. Castro v Viera, 207 Conn 420, 541 A2d 1216.
The law has long been clear that agencies may not nullify statutes. Hoh Corp. v Motor
Vehicle Industry Licensing Bd., Dept. of Commerce & Consumer Affairs, 69 Hawaii
135, 736 P2d 1271.
Footnote 59. Moderate Income Housing, Inc. v Board of Review (Iowa) 393 NW2d 324.
An agency is bound by an uncontested judicial interpretation of a statute. Larrance v

Human Rights Com. (4th Dist) 166 Ill App 3d 224, 117 Ill Dec 36, 519 NE2d 1203, app
den 122 Ill 2d 577, 125 Ill Dec 220, 530 NE2d 248 and cert den 489 US 1054, 103 L Ed
2d 585, 109 S Ct 1316 and (criticized on other grounds by Robinson v Human Rights
Com'n (1st Dist) 201 Ill App 3d 722, 147 Ill Dec 229, 559 NE2d 229, 62 CCH EPD P
42402).
§ 78 Purpose of administrative interpretation; clarifying ambiguity
View Entire Section

Go to Supplement
Administrative interpretations are appropriate aids toward eliminating confusion and

uncertainty in doubtful cases. 60 Where the statute being administered uses
ambiguous terms or is of doubtful construction, a clarifying regulation or one indicating
the method of its application to specific cases is permissible. 61
In order to justify construction by either an administrative agency or court, it must first

appear that construction is necessary. 62 An unambiguous statute may not be
supplemented 63 or altered 64 in the guise of interpretation. Generally, inconvenience
or hardships, if any, that result from following the statute as written, must be relieved by
legislation, and construction may not be substituted for legislation. 65 However, this rule
has been relaxed in certain cases where to reject a uniform and inveterate administrative
construction would work great public and private injury and inconvenience. 66
§ 78 ----Purpose of administrative interpretation; clarifying ambiguity

[SUPPLEMENT]
Case authorities:
Administrative agencies have the authority to interpret the laws which they administer,
but such interpretation cannot be contrary to clear legislative intent. Abramson v Florida
Psychological Ass'n (1994, Fla) 634 So 2d 610, 19 FLW S 137.
Footnotes
Footnote 60. Magruder v Washington, Baltimore & Annapolis Realty Corp., 316 US 69,
86 L Ed 1278, 62 S Ct 922, 42-1 USTC ¶ 9416, 28 AFTR 1253 (interpretative
regulations).
Footnote 61. Koshland v Helvering, 298 US 441, 80 L Ed 1268, 56 S Ct 767, 36-1

USTC ¶ 9294, 17 AFTR 1213, 105 ALR 756.
Footnote 62. Cullinan v McColgan, 80 Cal App 2d 976, 183 P2d 115.
Footnote 64. Helvering v Sabine Transp. Co., 318 US 306, 87 L Ed 773, 63 S Ct 569,
43-1 USTC ¶ 9317, 30 AFTR 393; Estate of Loeb, 400 Pa 368, 162 A2d 207.
Footnote 66. United States v Finnell, 185 US 236, 46 L Ed 890, 22 S Ct 633 (uniform
construction not obviously or clearly wrong); United States v Johnston, 124 US 236, 31
L Ed 389, 8 S Ct 446.
§ 79 Requirement that agency follow courts; non-acquiescence
View Entire Section

Go to Supplement
Administrative agencies are not free to refuse to follow circuit precedent in cases
originating within the circuit, unless they have a good intention of seeking review of the
particular proceeding by the Supreme Court. 67 In order to establish agency
non-acquiescence, the evidence must demonstrate that the agency has deliberately failed
to follow the law of the circuits whose courts have jurisdiction over the cause of action.
68 Where the agency does not formally announce that it will non-acquiesce in a
particular decision, the agency's conduct cannot be considered non-acquiescence unless
there are substantial differences between agency policy and court holdings and unless
these differences have influenced the agency's adjudication of individual cases. 69 If a
small number of cases are reversed for failure to apply a court holding, the agency's
practice cannot be called non-acquiescence. 70 However, if a rather large number of
courts have found that agency adjudicators failed to apply a particular holding, the
difference between agency policy and the particular holding influenced agency
adjudication. 71
Despite the rule regarding the obligation of agencies to follow court precedent, an agency
does not have to incorporate dicta as policy; nor does it have to apply a holding beyond
the scope of the decision itself; and if the agency finds a principled distinction between a
particular set of factual circumstances and the case in which the court articulated its
holding, and if the agency believed in good faith that the decision should not be applied
in those circumstances, it is entitled to set out the circumstances where the decision
would be controlling, and where the agency had decided it should not be applied. 72
§ 79 ----Requirement that agency follow courts; non-acquiescence [SUPPLEMENT]
Practice Aids: Nonacquiescence by the Social Security Administration as a matter of

law: using Stieberger v Sullivan [738 F. Supp. 716 (1990)] as a model, 44 Merc LR
1453 (1993).
Footnotes
Footnote 67. NLRB v Ashkenazy Property Management Corp. (CA9) 817 F2d 74, 125
BNA LRRM 2587.
An agency is bound by an uncontested judicial interpretation of a statute. Larrance v

Human Rights Com. (4th Dist) 166 Ill App 3d 224, 117 Ill Dec 36, 519 NE2d 1203, app
den 122 Ill 2d 577, 125 Ill Dec 220, 530 NE2d 248 and cert den 489 US 1054, 103 L Ed
2d 585, 109 S Ct 1316 and (criticized on other grounds by Robinson v Human Rights
Comm'n (1st Dist) 201 Ill App 3d 722, 147 Ill Dec 229, 559 NE2d 229, 62 CCH EPD ¶
42402).
Footnote 68. Stieberger v Sullivan (SD NY) 738 F Supp 716, CCH Unemployment Ins
Rep ¶ 15416A, later proceeding (SD NY) 792 F Supp 1376, 38 Soc Sec Rep Serv 119,
later proceeding (SD NY) 801 F Supp 1079.
As to agency adjudication, generally, see §§ 261 et seq.

§ 80 Methods of interpretation
View Entire Section

The power of an administrative agency to construe and interpret the law is applied in
several different ways. The administrative agencies may interpret and construe the law
through issuing rules and regulations. 73 An administrative agency may also render
interpretations of the law in the course of exercise of its adjudicating powers. 74 When,
as an incident to its adjudicatory function, an agency interprets a statute, it may apply that
new interpretation in the proceeding before it. 75
As an alternative to acting formally through rulemaking or adjudication, administrative

agencies may act informally. 76 Informal action constitutes the bulk of the activity of
most administrative agencies. 77 It is action that is neither adjudication nor rulemaking,
and includes investigating, publicizing, planning, and supervising a regulated industry.
78 In addition, an agency may, even without statutory authorization to do so, specifically
issue interpretations, rulings, or opinions upon the law it administers. 79 The
various kinds of action can overlap, and the line between agency rulemaking and
adjudication, on the one hand, and informal action, on the other, can become blurred. 80
Footnotes
Footnote 75. Clark-Cowlitz Joint Operating Agency v Federal Energy Regulatory Com.,
264 US App DC 58, 826 F2d 1074, cert den 485 US 913, 99 L Ed 2d 247, 108 S Ct
1088.
386.
386.
386.
Footnote 79. Skidmore v Swift & Co., 323 US 134, 89 L Ed 124, 65 S Ct 161, 9 CCH
LC ¶ 51185 (among conflicting authorities on other grounds noted in Ohio State Univ. v
Secretary, United States Dep't of Health & Human Servs. (CA6 Ohio) 996 F2d 122, 41
Soc Sec Rep Serv 346) and (among conflicting authorities on other grounds noted in
Reich v Local 30, Int'l Bhd. of Teamsters (CA3 Pa) 6 F3d 978, 144 BNA LRRM 2393,
126 CCH LC ¶ 10883); Endicott Johnson Corp. v Perkins, 317 US 501, 87 L Ed 424,
63 S Ct 339, 6 CCH LC ¶ 51149; Reeves v Deisenroth, 288 Ky 724, 157 SW2d 331, 138
ALR 1493; Utah Hotel Co. v Industrial Com., 107 Utah 24, 151 P2d 467, 153 ALR
1176.
386.
§ 81 Effect of interpretation
View Entire Section

Construction and interpretation by an administrative agency of the law under which it

acts provides a practical guide as to how the agency will seek to apply the law. 81
However, despite the fact that the interpretation given to statutes and regulations by
administrative agencies is given great weight by the courts, 82 one who chooses to rely
upon an interpretative regulation does so at his or her own peril and stands the risk of its
not being followed by the courts. 83 An erroneous construction of a statute by a state
department cannot operate to confer a legal right in accordance with such construction.
84 Also, the fact that an interpretation has been made by regulation or otherwise does
not preclude a subsequent different, but correct, interpretation by the agency. 85
Footnotes
LC ¶ 51185 (among conflicting authorities on other grounds noted in Ohio State Univ. v
Secretary, United States Dep't of Health & Human Servs. (CA6 Ohio) 996 F2d 122, 41
Soc Sec Rep Serv 346) and (among conflicting authorities on other grounds noted in
Reich v Local 30, Int'l Bhd. of Teamsters (CA3 Pa) 6 F3d 978, 144 BNA LRRM 2393,
126 CCH LC ¶ 10883) (views of administrator as to application of Fair Labor Standards
Act).
Footnote 82. § 85.
Footnote 83. Sawyer v Central Louisiana Electric Co. (La App 3d Cir) 136 So 2d 153;
Utah Hotel Co. v Industrial Com., 107 Utah 24, 151 P2d 467, 153 ALR 1176.
51, 128 ALR 635.
Footnote 85. § 82.
§ 82 Change in construction
View Entire Section
A construction of a statute by those administering it, even though long continued, is not
binding on them or their successors if thereafter they become satisfied that a different
construction should be given. 86 This is especially true where the earlier
construction was clearly erroneous, 87 but also applies when the prior construction is
merely no longer sound or appropriate. 88 Prior administrative practice is always
subject to change through exercise by the administrative agency of its continuing
rulemaking power. 89 An administrative body has inherent authority to reconsider
its own legislative decisions. 90 Even changing interpretations by an administrative
agency of its own enabling act are entitled to deference by the court. 91
Reenactment of a statute without material change will not prevent a subsequent change in
administrative construction, 92 where the new construction comports with the
plain meaning of the statute. 93 Likewise, approval of a construction by court
decisions will prevent change by the administrative agency. 94
Footnotes
Footnote 86. Alstate Constr. Co. v Durkin, 345 US 13, 97 L Ed 745, 73 S Ct 565, 23
CCH LC ¶ 67434 ("more experience with the Act together with judicial construction of
its scope convinced its administrators that the first interpretation was unjustifiably
narrow"); Association of Clerical Employees of Atchison, etc. v Brotherhood of R. &
S.S. & S.S (CA7 Ill) 85 F2d 152, 109 ALR 345; Faingnaert v Moss, 295 NY 18, 64
NE2d 337 (construction for less than two years did not preclude contrary construction if
clearly required by legislative intent); Utah Hotel Co. v Industrial Com., 107 Utah 24,
151 P2d 467, 153 ALR 1176; Stillman v Lynch, 56 Utah 540, 192 P 272, 12 ALR 552
(omission to assess cannot control successors).
A change in administrative practice to conform to a judicial decision or to meet

administrative exigencies will be accepted by a court as controlling when consistent with
its decisions. Estate of Sanford v Commissioner, 308 US 39, 84 L Ed 20, 60 S Ct 51,
39-2 USTC ¶ 9745, 23 AFTR 756, reh den 308 US 637, 84 L Ed 529, 60 S Ct 258, 23
AFTR 782.
Footnote 87. Calbeck v Travelers Ins. Co., 370 US 114, 8 L Ed 2d 368, 82 S Ct 1196,
holding that the Bureau of Employees' Compensation is not foreclosed from changing its
interpretation of the Longshoremen's and Harbor Workers' Compensation Act (33 USCS
§§ 901-950) which was in clear error.
An administrative body, like a court, may correct its erroneous interpretations of the law.
Leap v Levitt (3d Dept) 57 App Div 2d 1021, 395 NYS2d 515.
Footnote 88. New York Tel. Co. v Federal Communications Com. (CA2) 631 F2d 1059.
Footnote 89. Commissioner v P. G. Lake, Inc., 356 US 260, 2 L Ed 2d 743, 78 S Ct

691, 58-1 USTC ¶ 9428, 8 OGR 1153, 1 AFTR 2d 1394, reh den 356 US 964, 2 L Ed 2d
1071, 78 S Ct 991.
Footnote 90. Steiniger v Board of Comrs. (Butler Co) 60 Ohio App 3d 122, 573 NE2d
1212.
Footnote 91. New York Tel. Co. v Federal Communications Com. (CA2) 631 F2d 1059.
31 BNA LRRM 2237, 22 CCH LC ¶ 67329.
The fact that reenactment of a statute indicates approval with its administrative
construction does not mean that a regulation interpreting a provision of one act becomes
frozen into another act merely by reenactment of that provision, so that administrative
interpretation cannot be changed prospectively through the exercise of appropriate
rulemaking powers. Helvering v Wilshire Oil Co., 308 US 90, 84 L Ed 101, 60 S Ct 18,
AFTR 787.
As to reenactment as implied legislative approval, see § 95.
Footnote 93. American Chicle Co. v United States, 316 US 450, 86 L Ed 1591, 62 S Ct
1144, 42-2 USTC ¶ 9512, 29 AFTR 193 (regulation changing for the future).
Footnote 94. Barr v Delta & Pine Land Co. (Miss) 199 So 2d 269.
§ 83 --Retroactive effect
View Entire Section

Courts, in declining to uphold a particular construction as correct, have declared that the
administrative construction could not operate retroactively, 95 and have noted
objections to a retroactive change in construction favorable to the individual citizen. 96
However, it is said that in some cases an administrative agency is permitted to revise
retroactively its interpretation of a law. 97
There are also cases which do not deny prospective operation of a changed administrative
construction but which hold that such new construction will not be permitted to operate
retroactively in favor of the government. 98 Thus, some cases support the view that
where an original interpretative regulation was authorized by and consistent with the
statute, an amendatory regulation will be denied retroactive operation, at least where the
statute being interpreted had been reenacted without change while the prior interpretation
was in force. 99
Administrative interpretation which is out of harmony with the statute interpreted is

inoperative, and where such interpretation is changed by a new regulation, it cannot be
contended that the new regulation is retroactive when applied to transactions taking place
before the change. 1 When an administrative agency makes an "initial guess" as to
what effect a statute has, that guess is not to any extent binding on the courts or upon the
administrative agency which made an erroneous guess. When a new regulation is passed
or when the statute is for the first time considered by the courts, it seems clearly correct
to state that the new rulings are not retroactive, but that they are in fact but the first
correct application of the law. 2 The same is true in regard to interpretations by rulings.
3 In fact, interpretations by rulings may be deemed, like judicial decisions, to
necessarily have retroactive effect, and it has been held that interpretative regulations are
no more retroactive in their operation than is a judicial determination construing and
applying a statute to a case in hand. 4
Retroactive revocation of a ruling interpreting a statute and granting an exemption from

tax was not precluded by the existence of a regulation which supplemented the matter of
the ruling but which did not in itself provide the exemption or interpret the statute, on the
ground that the statute by repeated reenactments after issuance of the regulation had
given the force of law to the regulations. 5
Footnotes
Footnote 95. Shearer v Anderson (CA2 NY) 16 F2d 995, 1 USTC ¶ 210, 6 AFTR 6483,
51 ALR 534.
Footnote 96. United States v Alabama G. S. R. Co., 142 US 615, 35 L Ed 1134, 12 S Ct

306.
Footnote 97. NLRB v Pease Oil Co. (CA2) 279 F2d 135, 46 BNA LRRM 2286, 40 CCH
LC ¶ 66573.
Footnote 98. Farmers Cooperative Co. v Commissioner (CA8) 288 F2d 315, 61-1 USTC
¶ 9282, 7 AFTR 2d 800.
Footnote 99. Helvering v Griffiths, 318 US 371, 87 L Ed 843, 63 S Ct 636, 43-1 USTC
¶ 9319, 30 AFTR 403 (strongly intimating that earlier, rather than later, regulation was in
accord with legislative intent); First Chrold Corp. v Commissioner, 306 US 117, 83 L
Ed 542, 59 S Ct 427, 39-1 USTC ¶ 9283, 22 AFTR 276; Helvering v R. J. Reynolds
Tobacco Co., 306 US 110, 83 L Ed 536, 59 S Ct 423, 39-1 USTC ¶ 9282, 22 AFTR 272
(even though Treasury Department was authorized to make retroactive amendments to its
regulations and there was another reenactment without change after promulgation of the
amended regulation).
Footnote 1. Manhattan General Equipment Co. v Commissioner, 297 US 129, 80 L Ed

528, 56 S Ct 397, 36-1 USTC ¶ 9105, 17 AFTR 214, reh den 297 US 728, 80 L Ed
1010, 56 S Ct 587, 17 AFTR 479.
Footnote 2. Utah Hotel Co. v Industrial Com., 107 Utah 24, 151 P2d 467, 153 ALR
1176.
Footnote 3. Association of Clerical Employees of Atchison, etc. v Brotherhood of R. &

S.S. & S.S (CA7 Ill) 85 F2d 152, 109 ALR 345.

1010, 56 S Ct 587, 17 AFTR 479; Utah Hotel Co. v Industrial Com., 107 Utah 24, 151
P2d 467, 153 ALR 1176.
Footnote 5. Automobile Club of Michigan v Commissioner, 353 US 180, 1 L Ed 2d

746, 77 S Ct 707, 57-1 USTC ¶ 9593, 50 AFTR 1967, reh den 353 US 989, 1 L Ed 2d
1147, 77 S Ct 1279.
§ 84 --Reliance and estoppel
View Entire Section

While a court which denies retroactive effect to a changed construction may fortify its
decision by pointing out the detriments to the individual resulting from his or her reliance
upon the prior administrative construction, 6 if an amendatory regulation is retroactive
the fact that an individual has acted to his or her prejudice in reliance upon the original
regulation is ordinarily given no weight. 7 However, in at least one instance, Congress
has by statute made good faith reliance on administrative regulations or interpretations a
defense to liability, notwithstanding that such rule, regulation or order may thereafter be
amended or rescinded or determined by judicial or other authority to be invalid for any
reason. 8
The doctrine of equitable estoppel is inapplicable to administrative rulings and

interpretations. 9
Footnotes
Footnote 6. Helvering v Griffiths, 318 US 371, 87 L Ed 843, 63 S Ct 636, 43-1 USTC ¶

9319, 30 AFTR 403.
Footnote 7. Goldfield Consol. Mines Co. v Scott, 247 US 126, 62 L Ed 1022, 38 S Ct

465, 3 AFTR 2977.
Footnote 8. 15 USCS § 78w(a)(1).
Footnote 9. NLRB v Baltimore Transit Co. (CA4) 140 F2d 51, 13 BNA LRRM 739, 7
CCH LC ¶ 61954, cert den 321 US 795, 88 L Ed 1084, 64 S Ct 848, 14 BNA LRRM
952; Western Surgical Supply Co. v Affleck, 110 Cal App 2d 388, 242 P2d 929; Utah
Hotel Co. v Industrial Com., 107 Utah 24, 151 P2d 467, 153 ALR 1176 (stating that
while a contrary result might appear desirable in a particular case, the consequences
which would flow from such a holding would strike the very heart of the relationship
among legislature, administrative tribunals, and courts).
Circulars and bulletins issued by the Federal Farm Loan Board advising investors that
farm loan bonds and their income are "free from all forms of taxation," including income
taxes, and that "this exemption is complete," which representations are relied upon by a
purchaser of the bonds as an assurance that any gain he may realize from a subsequent
sale thereof will not be taxed, does not estop the government from asserting that under
the applicable statutes the exemption applies only to interest and not to capital gains
arising out of a sale of the bonds. United States v Stewart, 311 US 60, 85 L Ed 40, 61
S Ct 102, 40-2 USTC ¶ 9759, 24 AFTR 1042, reh den 311 US 729, 85 L Ed 475, 61 S
Ct 390, 24 AFTR 1090.
b. Effect Given by Courts [85-98]
§ 85 Generally; rule that deference be accorded to administrative interpretations
View Entire Section

Go to Supplement
Construction and interpretation by an administrative agency of the law under which it

acts provides an experienced and informed judgment to which courts may properly resort
for guidance. 10 Generally, permissible 11 constructions given to ambiguous 12
statutes 13 by agencies responsible for their administration are entitled to great weight
14 or deference 15 by the courts, if neither irrational 16 nor unreasonable. 17
 Observation: Although the deference rule retains continuing validity in many states,
some courts have diluted the test from one that affords "great weight" to the
interpretation of the agencies to a test which merely accepts agency interpretations if
they are "persuasive." 18 Still other courts have held that deference should be applied
only where the agency's special expertise is relevant, 19 and, some courts have held
that when a statutory interpretation presents a question of law, no particular deference
is owed the agency's interpretation of the applicable statutes. 20 In addition, although
some courts state that an interpretive regulation receives great deference, some courts
are undecided as to whether the great deference due to legislative rules applies to
interpretive decisions, and there is some authority that courts may accord less weight to
agency guidelines than to administrative regulations, enacted pursuant to statutory
authority, in determining legislative intent. 21
Although there is some contrary authority, 22 generally, a court does not have to find
that the administrative construction is the only one the agency could permissively
adopted, or even the reading a court would have reached if the question initially had
arisen in a judicial proceeding, 23 and a court may generally not substitute its own
construction of a statutory provision for a reasonable interpretation made by the
administrator of an agency, 24 particularly where an area of agency expertise is
involved. 25 An administrative construction or interpretation will not be disturbed
except for cogent and persuasive reasons, 26 and clear conviction of error. 27
There is some authority that if Congress has explicitly left a gap for the agency to fill,
there is an express delegation of authority to elucidate a specific provision of the statute
by regulation, and such legislative regulations are given controlling weight unless they
are arbitrary, capricious, or manifestly contrary to statute. 28 Such authority also
holds that even where the legislative delegation to an agency is implicit rather than
explicit, a court may not substitute its own construction of a statutory provision for a
reasonable interpretation made by an administrator of an agency. 29 Nevertheless,
there is also authority that ordinarily administrative interpretations are viewed as
significant, but not of controlling significance, 30 and that administrative constructions
are not binding on the court. 31 The rule according great weight to administrative
constructions does not preclude an inquiry by the courts into the correctness of the
construction. 32 Where the administrative construction is manifestly wrong or clearly
erroneous, 33 arbitrary 34 or unreasonable, 35 it is not binding and will not be
followed.
The construction of statutes and other laws is a matter which ultimately is for the courts.
36 More than a power, construction is a duty which the courts must exercise
and cannot surrender or waive. 37 Whatever the force of administrative construction,
final responsibility for the interpretation of the law rests with the courts. 38
Consequently, if a reviewing court's interpretation of a statute is more in keeping with the
intent of Congress than the administrative construction, the administrative construction is
not entitled to substantial deference. 39
 Caution: Although courts are deferential to an agency's statutory interpretation,

there is authority that an agency is given no deference at all on the question whether
the statute is ambiguous, and the agency may be required to reconsider the question in
light of an ambiguity that the court sees. 40
§ 85 ----Generally; rule that deference be accorded to administrative

interpretations [SUPPLEMENT]
Case authorities:
An administrative agency's internal guideline interpreting a statute which the agency is

charged with administering–although not subject to the rigors of the Administrative
Procedure Act, including public notice and comment–is still entitled to some judicial
deference where the guideline is a permissible construction of the statute. Reno v Koray
(1995, US) 132 L Ed 2d 46, 115 S Ct 2021, 95 CDOS 4157, 95 Daily Journal DAR
7126, 9 FLW Fed S 85.
When a federal legislative prescription is not free from ambiguity, an administrator must
choose between conflicting reasonable interpretations, and courts, in turn, must respect
the judgment of the agency empowered to apply the law to varying fact patterns, even if
the issue with nearly equal reason might be resolved one way rather than another. Holly
Farms Corp. v NLRB (1996, US) 134 L Ed 2d 593, 96 CDOS 2783, 96 Daily Journal
DAR 4633, 152 BNA LRRM 2001, 131 CCH LC P 11534, 9 FLW Fed S 535.
Footnotes
Footnote 10. Federal Maritime Board v Isbrandtsen Co., 356 US 481, 2 L Ed 2d 926,
78 S Ct 851.
Footnote 11. Chevron United States, Inc. v Natural Resources Defense Council, Inc., 467

US 837, 81 L Ed 2d 694, 104 S Ct 2778, 21 Envt Rep Cas 1049, 14 ELR 20507.
Footnote 12. Presley v Etowah County Comm'n (US) 117 L Ed 2d 51, 112 S Ct 820, 92
CDOS 747, 92 Daily Journal DAR 1247, motion den sub nom Mack v Russell County
Comm'n (MD Ala) 1993 US Dist LEXIS 18626 (the court defers only if Congress has not
expressed its intent); Honig v Doe, 484 US 305, 98 L Ed 2d 686, 108 S Ct 592, 1 ADD
333 (given the ambiguity of a statute, a court defers to agency construction); J.R. Simplot
Co. v Idaho State Tax Com., 120 Idaho 849, 820 P2d 1206, reh den (Idaho) 1991 Ida
LEXIS 190 (in ascertaining whether deference is appropriate, the court must determine
that the statutory language itself does not expressly treat the precise question at issue);
Moncada v Illinois Commerce Com. (1st Dist) 212 Ill App 3d 1046, 156 Ill Dec 1024,
571 NE2d 1004, app den 141 Ill 2d 544, 162 Ill Dec 492, 580 NE2d 118.
If the intent of Congress is clear, that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent of Congress. K mart
Corp. v Cartier, Inc., 486 US 281, 100 L Ed 2d 313, 108 S Ct 1811, 6 USPQ2d 1897,
1988-1 CCH Trade Cases ¶ 68018; ETSI Pipeline Project v Missouri, 484 US 495, 98 L
Ed 2d 898, 108 S Ct 805.
Footnote 13. As to construction of administrative rules, generally, see § 239.
US 837, 81 L Ed 2d 694, 104 S Ct 2778, 21 Envt Rep Cas 1049, 14 ELR 20507
(considerable weight); Mile High Therapy Centers, Inc. v Bowen (DC Colo) 735 F Supp
984 (reasonable agency interpretation is entitled to considerable weight); California
Assn. of Psychology Providers v Rank, 51 Cal 3d 1, 270 Cal Rptr 796, 793 P2d 2, reh
den 1990 Cal LEXIS 4383; Department of Natural Resources v Wingfield Dev. Co. (Fla
App D1) 581 So 2d 193, 16 FLW D 1468; Moncada v Illinois Commerce Com. (1st Dist)
212 Ill App 3d 1046, 156 Ill Dec 1024, 571 NE2d 1004, app den 141 Ill 2d 544, 162 Ill
Dec 492, 580 NE2d 118 (substantial weight); Larrance v Human Rights Com. (4th Dist)
166 Ill App 3d 224, 117 Ill Dec 36, 519 NE2d 1203 (significant weight); Total
Petroleum, Inc. v Department of Treasury, 170 Mich App 417, 427 NW2d 639, app den
432 Mich 856 (considerable weight); Scott v Ratner, 101 Misc 2d 841, 422 NYS2d 285.
Although agency determinations within the scope of delegated authority are entitled to
deference, it is fundamental that an agency may not bootstrap itself into an area in which
it has no jurisdiction. Adams Fruit Co. v Barrett, 494 US 638, 108 L Ed 2d 585, 110 S
Ct 1384, 14 BNA OSHC 1481, 114 CCH LC P 35322.
Annotation: Supreme Court's view as to weight and effect to be given, on subsequent

judicial construction, to prior administrative construction of statute, 39 L Ed 2d 942.
Footnote 15. Colorado Civil Rights Com. v Travelers Ins. Co. (Colo) 759 P2d 1358, 10
EBC 1843, 47 CCH EPD ¶ 38289; Preston v Department of Environmental Protection,
218 Conn 821, 591 A2d 421, 22 ELR 20251; Hija Lee Yu v District of Columbia Rental
Housing Com. (Dist Col App) 505 A2d 1310; Palm Harbor Special Fire Control Dist. v
Kelly (Fla) 516 So 2d 249, 12 FLW 592; J.R. Simplot Co. v Idaho State Tax Com., 120
Idaho 849, 820 P2d 1206, reh den (Idaho) 1991 Ida LEXIS 190; Moncada v Illinois
Commerce Com. (1st Dist) 212 Ill App 3d 1046, 156 Ill Dec 1024, 571 NE2d 1004, app
den 141 Ill 2d 544, 162 Ill Dec 492, 580 NE2d 118; Johnson County Farm Bureau Coop.
Assn. v Indiana Dept. of State Revenue (Ind Tax) 568 NE2d 578, affd, adopted (Ind) 585

NE2d 1336; Kaufman v State Dept. of Social & Rehabilitation Services, 248 Kan 951,
811 P2d 876 (great deference); Total Petroleum, Inc. v Department of Treasury, 170
Mich App 417, 427 NW2d 639, app den 432 Mich 856 (great deference); Smith v
Director, Div. of Taxation, 108 NJ 19, 527 A2d 843 (substantial deference); Multicare
Medical Center v Department of Social & Health Services, 114 Wash 2d 572, 790 P2d
124.
Law Reviews: Hutchins, Great Deference Given to Decision of Administrative

Agency. (Annual Survey of South Carolina Law: January 1–December 31, 1990). 43
South Carolina LR 6 (Autumn, 1991).
Footnote 16. Lumpkin v Department of Social Services, 45 NY2d 351, 408 NYS2d 421,
380 NE2d 249, app dismd 439 US 1040, 58 L Ed 2d 700, 99 S Ct 713.
Footnote 17. Presley v Etowah County Comm'n (US) 117 L Ed 2d 51, 112 S Ct 820, 92
CDOS 747, 92 Daily Journal DAR 1247, motion den sub nom Mack v Russell County
Comm'n (MD Ala) 1993 US Dist LEXIS 18626 (the court defers only if the
administrative interpretation is reasonable); J.R. Simplot Co. v Idaho State Tax Com.,
120 Idaho 849, 820 P2d 1206, reh den (Idaho) 1991 Ida LEXIS 190 (deference is not
appropriate unless the agency's statutory construction is reasonable); Lumpkin v
Department of Social Services, 45 NY2d 351, 408 NYS2d 421, 380 NE2d 249, app
dismd 439 US 1040, 58 L Ed 2d 700, 99 S Ct 713.
The National Labor Relations Board has primary responsibility for applying the general
provisions of the National Labor Relations Act, and where its interpretation of what the
Act requires is reasonable, in light of the purposes of the Act and the controlling
precedent of the Supreme Court, courts should respect its policy choices. United Food &
Commercial Workers Int'l Union, Local 150-A v NLRB, 279 US App DC 349, 880 F2d
1422, 132 BNA LRRM 2104, 112 CCH LC ¶ 11384, on remand 303 NLRB 386, 137
BNA LRRM 1185, 1991-92 CCH NLRB ¶ 16687, enforced, remanded (App DC) 1 F3d
24, 143 BNA LRRM 3001, 125 CCH LC ¶ 10796, petition for certiorari filed (Jan 6,
1994).
Under the "reasonable basis" test, the court will not likely interfere with an administrative
agency's interpretation of statutes and regulations which bear on discretionary
determinations within the agency's area of expertise. Miners Advocacy Council, Inc. v
State, Dept. of Environmental Conservation (Alaska) 778 P2d 1126, 20 ELR 20782, cert
den 493 US 1077, 107 L Ed 2d 1033, 110 S Ct 1127.
Law Reviews: Fitts, Retaining the Rule of Law in a Chevron World. (Symposium on
Statutory Interpretation). 66 Chicago-Kent LR 355 (Spring, 1990).
Footnote 18. J.R. Simplot Co. v Idaho State Tax Com., 120 Idaho 849, 820 P2d 1206, reh
den (Idaho) 1991 Ida LEXIS 190 (recognizing view taken by other courts, but not
following such view).
Footnote 19. Industrial Liaison Committee of Niagara Falls Area Chamber of Commerce
v Williams, 72 NY2d 137, 531 NYS2d 791, 527 NE2d 274, 28 Envt Rep Cas 1173.
Law Reviews: Callahan, Must Federal Courts Defer to Agency Interpretations of

Statutes?: A New Doctrinal Basis for Chevron U.S.A. v. Natural Resources Defense

Council. 1991 Wisconsin LR 1275 (Nov-Dec 1991).
Saunders, Agency Interpretations and Judicial Review: A Search for Limitations on

the Controlling Effect given Agency Statutory Constructions. 30 Ariz LR 769 (1988).
Footnote 20. Noey v Department of Environmental Conservation (Alaska) 737 P2d 796.
811 P2d 876, stating that in reviewing questions of law, the trial court may substitute its
own judgment for that of the administrative agency.
US 837, 81 L Ed 2d 694, 104 S Ct 2778, 21 Envt Rep Cas 1049, 14 ELR 20507, reh den
468 US 1227, 82 L Ed 2d 921, 105 S Ct 28, 105 S Ct 29.
The court did not have to find that the construction given a statute by the Environmental
Protection Agency was the only permissible construction it might have adopted, but only
that the agency's understanding of the complex statute at issue was a sufficiently rational
one to preclude a court from substituting its judgment for that of the agency. Chemical
Mfrs. Asso. v Natural Resources Defense Council, Inc., 470 US 116, 84 L Ed 2d 90,
105 S Ct 1102, 22 Envt Rep Cas 1305, 15 ELR 20230.
If the court finds there are multiple permissible interpretations of statutory language, it
must defer to the agency's policy choice. King v Industrial Comm'n of Utah (Utah App)
850 P2d 1281, 209 Utah Adv Rep 33.
Footnote 24. Young v Community Nutrition Institute, 476 US 974, 90 L Ed 2d 959,

106 S Ct 2360, on remand 260 US App DC 294, 818 F2d 943.
But see Dean v State, 250 Kan 417, 826 P2d 1372, cert den (US) 119 L Ed 2d 566, 112
S Ct 2941, stating that a trial court may substitute its judgment for that of the agency in
reviewing questions of law.
Footnote 25. Toxic Waste Impact Group, Inc. v Leavitt (Okla) 755 P2d 626.
The principle of deference to administrative interpretations has been consistently

followed by the court whenever the decision as to the meaning or reach of a statute has
involved reconciling conflicting policies, and a full understanding of the force of a
statutory policy in a given situation depends on more than ordinary knowledge of matters
subject to agency regulation. Chevron United States, Inc. v Natural Resources Defense
Council, Inc., 467 US 837, 81 L Ed 2d 694, 104 S Ct 2778, 21 Envt Rep Cas 1049, 14
ELR 20507, reh den 468 US 1227, 82 L Ed 2d 921, 105 S Ct 28, 105 S Ct 29.
Footnote 26. FTC v Henry Broch & Co., 363 US 166, 4 L Ed 2d 1124, 80 S Ct 1158,
reh den 364 US 854, 5 L Ed 2d 77, 81 S Ct 30; J.R. Simplot Co. v Idaho State Tax
Com., 120 Idaho 849, 820 P2d 1206, reh den (Idaho) 1991 Ida LEXIS 190
(administrative interpretation will be followed unless there are cogent reasons for holding
otherwise); Indiana Dept. of State Revenue, etc. v Colpaert Realty Corp., 231 Ind 463,
109 NE2d 415; Liquidation of Canal Bank & Trust Co., 211 La 803, 30 So 2d 841; Re
Bernays' Estate, 344 Mo 135, 126 SW2d 209, 122 ALR 169; Miller Ins. Agency v
Porter, 93 Mont 567, 20 P2d 643; Captain's Quarters Motor Inn, Inc. v South Carolina
Coastal Council, 306 SC 488, 413 SE2d 13 (court found no compelling reason to
overrule agency construction); State ex rel. Cross v Board of Land Comrs., 50 Wyo 181,
58 P2d 423, adhered to 50 Wyo 205, 62 P2d 516.
Footnote 27. Commissioner v South Texas Lumber Co., 333 US 496, 92 L Ed 831, 68 S
Ct 695, 48-1 USTC ¶ 5922, 48-2 USTC ¶ 5929, 36 AFTR 604, reh den 334 US 813, 92
L Ed 1744, 68 S Ct 1014, 36 AFTR 639 (must be sustained unless unreasonable and
plainly inconsistent with statute); Cambridge Management Co. v District of Columbia
Rental Housing Com. (Dist Col App) 515 A2d 721; State by Ervin v Massachusetts Co.
(Fla) 95 So 2d 902, 63 ALR2d 1360, cert den 355 US 881, 2 L Ed 2d 112, 78 S Ct 147;
Hyatt Corp. v Honolulu Liquor Com., 69 Hawaii 238, 738 P2d 1205; Re Bernays' Estate,
344 Mo 135, 126 SW2d 209, 122 ALR 169; Federal Deposit Ins. Corp. v Board of
Finance & Revenue, 368 Pa 463, 84 A2d 495; Re Peel Gallery of Fine Arts, 149 Vt 348,
543 A2d 695; State ex rel. Goshen Irr. Sidt. v Hunt, 49 Wyo 497, 57 P2d 793.
As to legislative regulations, generally, see § 160.
Footnote 30. Batterton v Francis, 432 US 416, 53 L Ed 2d 448, 97 S Ct 2399.
Footnote 31. Bureau of Alcohol, Tobacco & Firearms v Federal Labor Relations
Authority, 464 US 89, 78 L Ed 2d 195, 104 S Ct 439, 114 BNA LRRM 3393; Long v
Dick, 87 Ariz 25, 347 P2d 581, 80 ALR2d 949; Department of Corrections v Illinois
Civil Service Com. (1st Dist) 187 Ill App 3d 304, 134 Ill Dec 907, 543 NE2d 190, app
den 128 Ill 2d 662, 139 Ill Dec 511, 548 NE2d 1067 (agency's interpretation of its own
rules); Larrance v Human Rights Com. (4th Dist) 166 Ill App 3d 224, 117 Ill Dec 36, 519
NE2d 1203, app den 122 Ill 2d 577, 125 Ill Dec 220, 530 NE2d 248 and cert den 489 US
1054, 103 L Ed 2d 585, 109 S Ct 1316 and (criticized on other grounds by Robinson v
Human Rights Comm'n (1st Dist) 201 Ill App 3d 722, 147 Ill Dec 229, 559 NE2d 229, 62
CCH EPD ¶ 42402); Hope Evangelical Lutheran Church v Iowa Dep't of Revenue & Fin.
(Iowa) 463 NW2d 76, cert den 499 US 961, 113 L Ed 2d 649, 111 S Ct 1585.
Footnote 32. Bouse v Hutzler, 180 Md 682, 26 A2d 767, 141 ALR 843; Re Agency of
Admin., State Bldgs. Div., 141 Vt 68, 444 A2d 1349.
78 S Ct 851; California Drive-In Restaurant Asso. v Clark, 22 Cal 2d 287, 140 P2d 657, 7
CCH LC ¶ 61672, 147 ALR 1028; State by Ervin v Massachusetts Co. (Fla) 95 So 2d
902, 63 ALR2d 1360, cert den 355 US 881, 2 L Ed 2d 112, 78 S Ct 147; Department
of Ins. v Church Members Relief Ass'n, 217 Ind 58, 26 NE2d 51, 128 ALR 635; Iowa
Federation of Labor v Iowa Dept. of Job Service (Iowa) 427 NW2d 443; Durrett v Bryan,
14 Kan App 2d 723, 799 P2d 110; Bouse v Hutzler, 180 Md 682, 26 A2d 767, 141 ALR
843; Howard Pore, Inc. v Nims, 322 Mich 49, 33 NW2d 657, 4 ALR2d 1041; Re
Bernays' Estate, 344 Mo 135, 126 SW2d 209, 122 ALR 169; Collins v McCanless, 179
Tenn 656, 169 SW2d 850, 145 ALR 1380; Hodgell v Wilde, 52 Wyo 310, 74 P2d 336,
114 ALR 671.
515 NE2d 112.
515 NE2d 112; Iowa Federation of Labor v Iowa Dept. of Job Service (Iowa) 427 NW2d
443.
468 US 1227, 82 L Ed 2d 921, 105 S Ct 28, 105 S Ct 29 (judiciary is the final authority
on issues of statutory construction); Whitcomb Hotel, Inc. v California Employment
Com., 24 Cal 2d 753, 151 P2d 233, 155 ALR 405; Elder v Home Bldg. & Loan Ass'n,
188 Ga 113, 3 SE2d 75, 122 ALR 738; Hollinrake v Iowa Law Enforcement Academy
(Iowa) 452 NW2d 598, 2 AD Cas 1066; Durrett v Bryan, 14 Kan App 2d 723, 799 P2d
110; Young v Weaver, 202 Miss 291, 32 So 2d 202, 174 ALR 983; Utah Hotel Co. v
Industrial Com., 107 Utah 24, 151 P2d 467, 153 ALR 1176.
Judicial deference to an agency's interpretation of a statute only sets the framework for
judicial analysis; it does not displace it. Securities Industry Asso. v Board of Governors
of Federal Reserve System, 468 US 137, 82 L Ed 2d 107, 104 S Ct 2979, CCH Fed
Secur L Rep ¶ 91543.
As to interpretation of a statute on judicial review as a question of law for the court, see
§ 524.
As to interpretation of statutes, generally, see 73 Am Jur 2d, Statutes §§ 142 et seq.
Footnote 37. United States v Dickson, 40 US 141, 15 Pet 141, 10 L Ed 689; Deweese v
Smith (CA8 Mo) 106 F 438, affd 187 US 637, 47 L Ed 344, 23 S Ct 845. See
Hollinrake v Iowa Law Enforcement Academy (Iowa) 452 NW2d 598, 2 AD Cas 1066.
Footnote 38. California Assn. of Psychology Providers v Rank, 51 Cal 3d 1, 270 Cal Rptr
796, 793 P2d 2, reh den 1990 Cal LEXIS 4383.
Courts are the final arbiters of agency authority. Lincoln v Arkansas Pub. Serv. Comm'n,
40 Ark App 27, 842 SW2d 51, affd 313 Ark 295, 854 SW2d 330, digest op at (Ark) 144
PUR4th 527.
Footnote 39. INS v Cardoza-Fonseca, 480 US 421, 94 L Ed 2d 434, 107 S Ct 1207 (not
followed on other grounds by Haitian Centers Council, Inc. v McNary (ED NY) 1992 US
Dist LEXIS 8452).
Footnote 40. Cajun Electric Power Coop., Inc. v FERC, 288 US App DC 175, 924 F2d
1132, later proceeding 55 FERC P 61160, 1991 FERC LEXIS 943, complaint dismd 59
FERC P 63024, 1992 FERC LEXIS 1600.
As to purpose of administrative construction as clarifying ambiguity in a statute, see §

78.

§ 86 "Practical" construction
View Entire Section

Practical construction, as distinguished from judicial construction, is the interpretation

put upon statutes by the actual administration of them by government departments. 41
An actual, 42 proven, 43 public 44 construction by the administrative agency 45
subsequent to the adoption of a statute 46 is essential to invoke the rule that the courts
will give weight to a practical construction by administrative agencies in determining the
true meaning of a statute. 47 It is what is done rather than what is said that establishes
an administrative construction. 48 The court may decline to give force to a construction
represented by acts insufficient in rank, frequency, and duration to constitute a settled
practice. 49
Footnotes
51, 128 ALR 635.
Footnote 42. Railroad Com. v Houston Natural Gas Corp. (Tex Civ App) 186 SW2d 117,
writ ref w o m.
See Shields v Atlantic C. L. R. Co., 350 US 318, 100 L Ed 364, 76 S Ct 386, where the
court refused to imply a practical construction that dome running boards were not
"running boards" under a statute from the fact that the Interstate Commerce Commission
did not specify uniform standards for dome running boards.
Footnote 43. Hunstock v Estate Development Corp., 22 Cal 2d 205, 138 P2d 1, 148 ALR
968 (rule inapplicable where litigant presented no evidence of interpretation in his favor).
Footnote 44. M. Kraus & Bros., Inc. v United States, 327 US 614, 90 L Ed 894, 66 S Ct
705.
See Levers v Anderson, 326 US 219, 90 L Ed 26, 66 S Ct 72, wherein the Supreme
Court stated that it must look to proven administrative practice, but held that there was no
satisfactory proof of publicly established practice.
Footnote 45. E. C. Olsen Co. v State Tax Com., 109 Utah 563, 168 P2d 324, holding that
for a claim to practical interpretation to have any weight it must be shown that it was an
interpretation adopted by the commission. The fact that something was done by a
subordinate when it is not shown that the commission had knowledge or acquiesced is
not such an interpretation.
Footnote 46. United States v Townsley, 323 US 557, 89 L Ed 454, 65 S Ct 413, stating
that administrative practice prior to the adoption of a statute is of no moment.

As to weight being given to statements at congressional hearings, see § 90.
Footnote 47. Smith v North Dakota Workers Compensation Bureau (ND) 447 NW2d
250, stating that the practical construction of a statute by the agency administering the
law is entitled to some weight in construing the statute, especially where the agency
interpretation does not contradict clear and unambiguous statutory language.
Footnote 48. Spokane v State, 198 Wash 682, 89 P2d 826.
Footnote 49. Manning v Seeley Tube & Box Co., 338 US 561, 94 L Ed 346, 70 S Ct
386, 50-1 USTC ¶ 9163, 38 AFTR 1202; Commissioner v Wodehouse, 337 US 369, 93
L Ed 1419, 69 S Ct 1120, 81 USPQ 482, 49-1 USTC ¶ 9310, 37 AFTR 1363, reh den
338 US 840, 94 L Ed 514, 70 S Ct 31, 38 AFTR 502; Davies Warehouse Co. v Bowles,
321 US 144, 88 L Ed 635, 64 S Ct 474; Re Porterfield, 28 Cal 2d 91, 168 P2d 706, 19
BNA LRRM 2585, 11 CCH LC ¶ 63132, 167 ALR 675.
§ 87 Bases of deference doctrine
View Entire Section

In applying the doctrine or principle of respect for administrative or practical

construction, courts refer to several factors as bases of the principle that deference should
be given to administrative construction and interpretation. These factors include the
respect due the governmental agencies charged with administration, their competence,
expertness, experience, and informed judgment and the fact that they frequently are the
drafters of the law they interpret. 50 Another factor is that the legislature must
rely on the agency to advise it as to the practical working out of the statute, and practical
application of the statute presents the agency with unique opportunity and experiences for
discovering deficiencies, inaccuracies, or improvements in the statute. 51 Agencies'
experience makes them an informed source for ascertaining legislative intent. 52 In
addition to experience, agencies have specialization and greater flexibility of procedure
that sometimes make them better equipped than courts to analyze legal issues pertaining
to them. 53 Still other factors are the inconvenience and prejudice which would result
from changing settled constructions; 54 and the implied consent of the legislature in
not changing a provision of law which has received a long-settled construction. 55
Footnotes
78 S Ct 851; Social Secur. Bd. v Nierotko, 327 US 358, 90 L Ed 718, 66 S Ct 637, 162
ALR 1445; Mabee v White Plains Pub. Co., 327 US 178, 90 L Ed 607, 66 S Ct 511, 10
CCH LC ¶ 51223, conformed to 271 App Div 1026, 68 NYS2d 906, 12 CCH LC ¶
63666; Whitcomb Hotel, Inc. v California Employment Com., 24 Cal 2d 753, 151 P2d
233, 155 ALR 405; Capitol Bldg. & Loan Ass'n v Kansas Com. of Labor & Industry,
148 Kan 446, 83 P2d 106, 118 ALR 1212.

Footnote 51. E. C. Olsen Co. v State Tax Com., 109 Utah 563, 168 P2d 324.
Footnote 52. Moncada v Illinois Commerce Com. (1st Dist) 212 Ill App 3d 1046, 156 Ill
Dec 1024, 571 NE2d 1004, app den 141 Ill 2d 544, 162 Ill Dec 492, 580 NE2d 118.
Footnote 53. Lincoln v Arkansas Pub. Serv. Comm'n, 40 Ark App 27, 842 SW2d 51, affd
313 Ark 295, 854 SW2d 330, digest op at (Ark) 144 PUR4th 527.
Footnote 54. New York, C. & S. L. R. Co. v Frank, 314 US 360, 86 L Ed 277, 62 S Ct
258; Arnett v State, 168 Ind 180, 80 NE 153; Miller Ins. Agency v Porter, 93 Mont 567,
20 P2d 643; Railroad Com. of Texas v Red Arrow Freight Lines, Inc. (Tex Civ App) 96
SW2d 735, writ ref.
Footnote 55. Helvering v Winmill, 305 US 79, 83 L Ed 52, 59 S Ct 45, 38-2 USTC ¶
9550, 21 AFTR 962 (Treasury Regulations and interpretation of revenue laws); State ex
rel. Cross v Board of Land Comrs., 50 Wyo 181, 58 P2d 423, adhered to 50 Wyo 205, 62
P2d 516.
§ 88 General limitations on deference
View Entire Section

Go to Supplement
The deference granted an agency's interpretation of a statute is not absolute. 56 There

are several general limitations on deference: 57 (1) the statute must be one subject to
construction, that is, ambiguous; 58 (2) judicial construction must be
wanting; 59 (3) the administrative construction must be decisive of the
interpretation proposed to the court; 60 (4) the administrative construction must be
a practical construction; 61 (5) the administrative construction must be confidently
asserted; 62 (6) the administrative construction must be made in the discharge of
official duty; 63 (7) the administrative construction must be reasonable; 64 (8) the
administrative construction must not enlarge or restrict the scope of the statute; 65
(9) the administrative construction must not conflict with the expressed purpose of the
statute and the intention of the legislature; 66 (10) the administrative construction must
not be prohibited by subsequent legislative enactments of the same nature. 67 The
traditional deference courts pay to agency interpretation is not to be applied to alter the
clearly expressed intent of Congress, 68 and the judiciary must reject administrative
constructions which are contrary to clear congressional intent, 69 such as where the
legislative history or the purpose and structure of the statute clearly reveal a contrary
legislative intent. 70
§ 88 ----General limitations on deference [SUPPLEMENT]
Case authorities:
Courts need not defer to construction of 12 USCS § 1818 propounded by OTS, since
OTS shares responsibility for administration of statute with at least three other agencies.
Rapaport v United States Dep't of the Treasury, Office of Thrift Supervision (1995, App
DC) 59 F3d 212.
Footnotes
Footnote 56. Department of Natural Resources v Wingfield Dev. Co. (Fla App D1) 581
So 2d 193, 16 FLW D 1468.
Footnote 57. Harbolic v Berger, 43 NY2d 102, 400 NYS2d 780, 371 NE2d 499, stating
that while the construction given a statute by an agency responsible for its administration
and a regulation adopted by the agency for that purpose are each entitled to great weight
and should be upheld if not irrational or unreasonable, administrative agencies can only
promulgate rules to further the implementation of the law, and have no authority to create
a rule out of harmony with the statute.
Footnote 58. Haggar Co. v Helvering, 308 US 389, 84 L Ed 340, 60 S Ct 337, 40-1
USTC ¶ 9151, 23 AFTR 794; State v Tuscaloosa Bldg. & Loan Ass'n., 230 Ala 476, 161
So 530, 99 ALR 1019; Montgomery Light & Traction Co. v Avant, 202 Ala 404, 80 So
497, 3 ALR 384; California Drive-In Restaurant Asso. v Clark, 22 Cal 2d 287, 140 P2d
657, 7 CCH LC ¶ 61672, 147 ALR 1028; Suttles v Northwestern Mut. Life Ins. Co., 193
Ga 495, 19 SE2d 396, 143 ALR 343, supp op 193 Ga 516, 21 SE2d 695, 143 ALR 359;
Lake County v Westerfield, 273 Ill 124, 112 NE 308; Department of Ins. v Church
Members Relief Ass'n, 217 Ind 58, 26 NE2d 51, 128 ALR 635; Button v Drake, 302 Ky
517, 195 SW2d 66, 167 ALR 1046 (no room to apply contemporaneous construction to
constitutional provision unless so ambiguous its meaning is left in substantial doubt);
Bouse v Hutzler, 180 Md 682, 26 A2d 767, 141 ALR 843; Re Kansas City Star Co., 346
Mo 658, 142 SW2d 1029, 130 ALR 1168 (ovrld on other grounds by J.C. Nichols Co. v
Director of Revenue (Mo) 796 SW2d 16); Re Bernays' Estate, 344 Mo 135, 126 SW2d
209, 122 ALR 169; McGoldrick v Family Finance Corp., 287 NY 535, 41 NE2d 86, 141
ALR 909; State ex rel. Hudson v Carter, 167 Okla 32, 27 P2d 617, 91 ALR 1497
(constitutional provisions); Estate of Loeb, 400 Pa 368, 162 A2d 207; Texas & N. O. R.
Co. v Railroad Com., 145 Tex 541, 200 SW2d 626; E. C. Olsen Co. v State Tax Com.,
109 Utah 563, 168 P2d 324; Fluckiger v Seattle, 103 Wash 330, 174 P 456; Re
Newberry's Estate, 138 W Va 296, 75 SE2d 851, 40 ALR2d 624; Hodgell v Wilde, 52
Wyo 310, 74 P2d 336, 114 ALR 671.
If a statute is silent or ambiguous with respect to the question at issue, the court's long
standing practice is to defer to the executive department's construction of a statutory
scheme it is entrusted to administer, unless the legislative history of the enactment shows
with sufficient clarity that the agency construction is contrary to the will of Congress.
Japan Whaling Asso. v American Cetacean Soc., 478 US 221, 92 L Ed 2d 166, 106 S
Ct 2860, 16 ELR 20742, later proceeding (DC Dist Col) 673 F Supp 1102, 18 ELR 20552
and (among conflicting authorities on other grounds noted in Dellums v U.S. Nuclear
Regulatory Com., 274 US App DC 279, 863 F2d 968).
As to ambiguity as necessary for administrative construction, see § 78.
Footnote 59. Estate of Sanford v Commissioner, 308 US 39, 84 L Ed 20, 60 S Ct 51,


AFTR 782; State ex rel. Hudson v Carter, 167 Okla 32, 27 P2d 617, 91 ALR 1497
(departmental construction subsequent to judicial construction is of no effect in
determining the meaning of a statute); E. C. Olsen Co. v State Tax Com., 109 Utah 563,
168 P2d 324.
If there is a divergence of views between the courts and the Patent Office, and the
divergence proceeds from a different interpretation of the statutes, the views of the courts
ought to prevail. United States ex rel. Steinmetz v Allen, 192 US 543, 48 L Ed 555, 24
S Ct 416.
Only where the court of last resort has not previously interpreted the statute is the rule
applicable that courts will give consideration to construction by administrative or
executive departments of the state. Ehlers v Farmers Mut. Ins. Co., 130 Neb 368, 264
NW 894.
Footnote 60. Propper v Clark, 337 US 472, 93 L Ed 1480, 69 S Ct 1333, reh den 338
US 841, 94 L Ed 514, 70 S Ct 33 and reh den 342 US 907, 96 L Ed 679, 72 S Ct 289.
Footnote 61. § 86.
Footnote 62. Civil Aeronautics Board v Delta Air Lines, Inc., 367 US 316, 6 L Ed 2d
869, 81 S Ct 1611.
Footnote 63. State v Mutual Life Ins. Co., 175 Ind 59, 93 NE 213.
Footnote 64. Joint Anti-Fascist Refugee Committee v McGrath, 341 US 123, 95 L Ed

817, 71 S Ct 624 (per Burton and Douglas, JJ.); Stanford v Butler, 142 Tex 692, 181
SW2d 269, 153 ALR 1054.
Footnote 65. Jewell Ridge Coal Corp. v United Mine Workers, 325 US 161, 89 L Ed
1534, 65 S Ct 1063, 9 CCH LC ¶ 51201, reh den 325 US 897, 89 L Ed 2007, 65 S Ct
1550 (superseded by statute on other grounds as stated in Aronson v Brown (CA FC)
1994 US App LEXIS 61); State v Robinson Land & Lumber Co., 262 Ala 146, 77 So 2d
641; People ex rel. Stone v Nudelman, 376 Ill 535, 34 NE2d 851, 134 ALR 1198;
Reeves v Deisenroth, 288 Ky 724, 157 SW2d 331, 138 ALR 1493; Casualty Reciprocal
Exchange v Sutfin, 196 Okla 567, 166 P2d 434.
If the agency's implementation of its powers violates the clear enablement of the statute,
the court need accord it no weight. Tze Chun Liao v New York State Banking Dept., 74
NY2d 505, 549 NYS2d 373, 548 NE2d 911.
Footnote 66. Harris v Alcoholic Beverage Control Appeals Board (2nd Dist) 228 Cal
App 2d 1, 39 Cal Rptr 192; Beck v Groe, 245 Minn 28, 70 NW2d 886, 52 ALR2d 875
(ovrld on other grounds by Trail v Christian, 298 Minn 101, 213 NW2d 618) and
(superseded by statuteon other grounds as stated in Robinson v Lamott (Minn) 289
NW2d 60) and (superseded by statute on other grounds as stated in Pautz v Cal-Ros, Inc.
(Minn) 340 NW2d 338).
Footnote 67. § 96.
Footnote 68. K mart Corp. v Cartier, Inc., 486 US 281, 100 L Ed 2d 313, 108 S Ct
1811, 6 USPQ2d 1897, 1988-1 CCH Trade Cases ¶ 68018.
468 US 1227, 82 L Ed 2d 921, 105 S Ct 28, 105 S Ct 29.
Footnote 70. Chemical Mfrs. Asso. v Natural Resources Defense Council, Inc., 470 US
116, 84 L Ed 2d 90, 105 S Ct 1102, 22 Envt Rep Cas 1305, 15 ELR 20230; Re Petition
for Substantive Certification, 132 NJ 1, 622 A2d 1257.
A reviewing court must reject administrative constructions of its statute that are
inconsistent with the statutory mandate or that frustrate the policy that Congress sought
to implement. Securities Industry Asso. v Board of Governors of Federal Reserve
System, 468 US 137, 82 L Ed 2d 107, 104 S Ct 2979, CCH Fed Secur L Rep ¶ 91543.
Courts have a duty to invalidate administrative regulations which conflict with the design
of a statute. Cartwright v State Bd. of Accountancy (Colo App) 796 P2d 51.
§ 89 Laws to which deference doctrine applies
View Entire Section

The doctrine that courts in the construction of laws give due weight to administrative
construction of such laws applies not only to the interpretation of statutes, but also to the
interpretation of constitutions, 71 treaties, 72 municipal ordinances, 73
administrative rules and regulations, 74 and a consent decree drawn up and
administered by government officials. 75 The doctrine of deference generally has been
applied by the federal courts in interpreting state statutes 76 and the state courts in
interpreting federal statutes, 77 as well as by each court in interpreting the statutes
of its own jurisdiction; 78 and it applies in determining the jurisdiction of the
administrative agency as in other cases. 79
Administrative construction may also be given weight by the court when construing
provisions similar to although not identical with the ones actually construed. 80
Footnotes
Footnote 71. Smiley v Holm, 285 US 355, 76 L Ed 795, 52 S Ct 397; Veterans' Welfare
Bd. v Riley, 189 Cal 159, 208 P 678, 22 ALR 1531; Button v Drake, 302 Ky 517, 195
SW2d 66, 167 ALR 1046 (doctrine is more restricted when applied to constitutional
provisions); State ex rel. Pitts v Nashville Baseball Club, 127 Tenn 292, 154 SW 1151;
State ex rel. Bashford v Frear, 138 Wis 536, 120 NW 216.
Footnote 72. Charlton v Kelly, 229 US 447, 57 L Ed 1274, 33 S Ct 945.
While courts interpret treaties for themselves, the meaning given them by the
departments of government particularly charged with their negotiation and enforcement
is given great weight. Kolovrat v Oregon, 366 US 187, 6 L Ed 2d 218, 81 S Ct 922.
Footnote 73. Sedalia ex rel. Ferguson v Shell Petroleum Corp. (CA8 Mo) 81 F2d 193,
106 ALR 1327; Automobile Gasoline Co. v St. Louis, 326 Mo 435, 32 SW2d 281.
Footnote 75. United States v Atlantic Refining Co., 360 US 19, 3 L Ed 2d 1054, 79 S
Ct 944.
Footnote 76. Railway Express Agency, Inc. v Virginia, 358 US 434, 3 L Ed 2d 450, 79
S Ct 411.
Footnote 77. Birmingham v Rice Bros., 238 Iowa 410, 26 NW2d 39, 2 ALR2d 1108, cert
den 332 US 768, 92 L Ed 353, 68 S Ct 79, reh den 332 US 820, 92 L Ed 397, 68 S Ct
151.
468 US 1227, 82 L Ed 2d 921, 105 S Ct 28, 105 S Ct 29 (interpreting federal Clean Air
Act); Mile High Therapy Centers, Inc. v Bowen (DC Colo) 735 F Supp 984 (interpreting
federal Medicare Act); California Assn. of Psychology Providers v Rank, 51 Cal 3d 1,
270 Cal Rptr 796, 793 P2d 2, reh den 1990 Cal LEXIS 4383 (construing section of
California Health and Safety Code); Preston v Department of Environmental Protection,
218 Conn 821, 591 A2d 421, 22 ELR 20251 (interpreting Connecticut statute);
Department of Natural Resources v Wingfield Dev. Co. (Fla App D1) 581 So 2d 193, 16
FLW D 1468 (construing Florida statute); J.R. Simplot Co. v Idaho State Tax Com., 120
Idaho 849, 820 P2d 1206, reh den (Idaho) 1991 Ida LEXIS 190 (interpreting Idaho
statute); Moncada v Illinois Commerce Com. (1st Dist) 212 Ill App 3d 1046, 156 Ill Dec
1024, 571 NE2d 1004, app den 141 Ill 2d 544, 162 Ill Dec 492, 580 NE2d 118
(interpreting Illinois Public Utilities Act); Total Petroleum, Inc. v Department of
Treasury, 170 Mich App 417, 427 NW2d 639, app den 432 Mich 856 (interpreting
Michigan statute); Smith v Director, Div. of Taxation, 108 NJ 19, 527 A2d 843
(interpreting New Jersey statute); Multicare Medical Center v Department of Social &
Health Services, 114 Wash 2d 572, 790 P2d 124 (interpreting Washington statute).
Footnote 79. Pennsylvania R. Co. v Day, 360 US 548, 3 L Ed 2d 1422, 79 S Ct 1322,

44 BNA LRRM 2325, 37 CCH LC ¶ 65560.
Footnote 80. United States v Vowell & M'Clean, 9 US 368, 5 Cranch 368, 3 L Ed 128;
Veterans' Welfare Bd. v Riley, 189 Cal 159, 208 P 678, 22 ALR 1531; Capitol Bldg. &
Loan Ass'n v Kansas Com. of Labor & Industry, 148 Kan 446, 83 P2d 106, 118 ALR
1212.
In determining what constitutes a lottery, the court must look for guidance to decisions,
both judicial and administrative, construing comparable antilottery legislation. FCC v
American Broadcasting Co., 347 US 284, 98 L Ed 699, 74 S Ct 593, reh den 347 US
965, 98 L Ed 1107, 74 S Ct 773.
§ 90 Particular methods of interpretation accorded deference

View Entire Section
Among the acts of administrative agencies 81 to which the courts attach weight as
interpretations are regulations; 82 matters specifically designated "interpretations"; 83
interpretative bulletins; 84 rulings and opinions; 85 an opinion letter; 86
decisions in cases before the agency; 87 an administrator's statements at
congressional hearings 88 and in his or her reports to Congress; 89 a letter; 90
an agreement settling a suit; 91 any agreement that must be filed and approved by the
agency; 92 and other actions and procedures. 93 In certain situations, the court will
give more or less emphasis to a particular method of interpretation. 94 For instance,
although some courts state that an interpretive regulation receives great deference, some
courts are undecided as to whether the great deference due to legislative rules applies to
interpretive decisions, and there is some authority that courts may accord less weight to
agency guidelines than to administrative regulations, enacted pursuant to statutory
authority, in determining legislative intent. 95
The rule that long administrative practice is entitled to weight in construing statutes
generally applies only to positive action taken by an administrative agency and not to its
failure to act, 96 and mere inaction does not, as a general rule, constitute practical
construction. 97 Inaction is, therefore, entitled to little deference by the courts. 98
However, there are certain instances in which inaction of an administrative agency may
constitute a practical construction of the statute under which it operates; 99 and
acquiescence by the regulatory officials in a particular practice of those subject to
regulation may constitute a practical construction as to the legality of the practice. 1
Footnotes
Footnote 81. As to methods of interpretation, generally, see § 80.
LC ¶ 51185; Colbert v Hobby (DC NY) 130 F Supp 65, 60 ALR2d 1076, affd (CA2 NY)
230 F2d 846; Indiana Dept. of State Revenue, etc. v Colpaert Realty Corp., 231 Ind 463,
109 NE2d 415; Petitions of Ingham County Bar Asso., 342 Mich 214, 69 NW2d 713, 53
ALR2d 777.
Footnote 83. Young v Weaver, 202 Miss 291, 32 So 2d 202, 174 ALR 983.
Footnote 84. Boutell v Walling, 327 US 463, 90 L Ed 786, 66 S Ct 631, 10 CCH LC ¶

51224; Hart v Gregory, 218 NC 184, 10 SE2d 644, 3 CCH LC ¶ 60069, 130 ALR 265.
A book issued by an agency and a letter to its field offices constituted a construction of
the statute. Federal Housing Administration v Darlington, Inc., 358 US 84, 3 L Ed 2d
132, 79 S Ct 141, reh den 358 US 937, 3 L Ed 2d 311, 79 S Ct 310.
Footnote 85. Sunray Mid-Continent Oil Co. v Federal Power Com., 364 US 137, 4 L Ed
2d 1623, 80 S Ct 1392, 12 OGR 804, reh den 364 US 856, 5 L Ed 2d 80, 81 S Ct 32;
Martorano v Capital Finance Corp., 289 NY 21, 43 NE2d 705, 143 ALR 1318.
Footnote 86. Spitz v Goldome Realty Credit Corp. (1st Dist) 210 Ill App 3d 215, 155 Ill
Dec 43, 569 NE2d 43, app gr 141 Ill 2d 561, 162 Ill Dec 509, 580 NE2d 135 and affd 151
Ill 2d 71, 175 Ill Dec 727, 600 NE2d 1185.
Footnote 87. Communist Party of United States v Subversive Activities Control Bd., 367
Footnote 88. Shapiro v United States, 335 US 1, 92 L Ed 1787, 68 S Ct 1375, reh den
335 US 836, 93 L Ed 388, 69 S Ct 9.
Footnote 89. Bowles v Seminole Rock & Sand Co., 325 US 410, 89 L Ed 1700, 65 S Ct
1215.
Footnote 90. Federal Housing Administration v Darlington, Inc., 358 US 84, 3 L Ed 2d

132, 79 S Ct 141, reh den 358 US 937, 3 L Ed 2d 311, 79 S Ct 310; Christgau v Fine,
223 Minn 452, 27 NW2d 193.
Footnote 91. Utah Hotel Co. v Industrial Com., 107 Utah 24, 151 P2d 467, 153 ALR
1176.
Footnote 92. Cajun Electric Power Coop., Inc. v FERC, 288 US App DC 175, 924 F2d
1132, later proceeding 55 FERC P 61160, 1991 FERC LEXIS 943, complaint dismd 59
FERC P 63024, 1992 FERC LEXIS 1600.
Footnote 93. United States v Public Utilities Com., 345 US 295, 97 L Ed 1020, 73 S Ct
706, reh den 345 US 961, 97 L Ed 1380, 73 S Ct 935; Associated Mutuals, Inc. v
Delaney (CA1 Mass) 176 F2d 179, 49-2 USTC ¶ 9346, 38 AFTR 275, 11 ALR2d 896;
Peerless Fixture Co. v Keitel, 355 Mo 144, 195 SW2d 449.
Footnote 94. Biddle v Commissioner, 302 US 573, 82 L Ed 431, 58 S Ct 379, 38-1

USTC ¶ 9040, 19 AFTR 1253 (stating that departmental rulings not promulgated by the
Secretary are of little aid in interpreting a tax statute).
Footnote 96. Baltimore & O. R. Co. v Jackson, 353 US 325, 1 L Ed 2d 862, 77 S Ct

842, reh den 354 US 943, 1 L Ed 2d 1542, 77 S Ct 1391.
Footnote 97. United States v E. I. Du Pont de Nemours & Co., 353 US 586, 1 L Ed 2d
1057, 77 S Ct 872 (failure of Federal Trade Commission to apply prohibition stated in
Clayton Act, against acquisition by one corporation of stock of another, to vertical
acquisitions); Baltimore & O. R. Co. v Jackson, 353 US 325, 1 L Ed 2d 862, 77 S Ct
842, reh den 354 US 943, 1 L Ed 2d 1542, 77 S Ct 1391 (failure of Interstate
Commerce Commission to prescribe rules governing equipment of motor track cars and
push trucks); Hawkins v Birmingham, 248 Ala 692, 29 So 2d 281; Ada County v Boise
Commercial Club, 20 Idaho 421, 118 P 1086 (failure to enforce a law does not indicate a
legislative intent against enforcement); Central Elevator Co. v People, 174 Ill 203, 51 NE
254 (failure to question legality of practice of licensee); State v Southern Pac. Co., 137
La 435, 68 So 819 (failure to exact tax under ignorance of fact); Re Kansas City Star Co.,
346 Mo 658, 142 SW2d 1029, 130 ALR 1168 (ovrld on other grounds by J.C. Nichols
Co. v Director of Revenue (Mo) 796 SW2d 16); Fluckiger v Seattle, 103 Wash 330, 174
P 456.
Footnote 98. Hutchison Bros. Excavating Co. v District of Columbia (Dist Col App) 511
A2d 3.
Footnote 99. New York, C. & S. L. R. Co. v Frank, 314 US 360, 86 L Ed 277, 62 S Ct
258; FTC v Bunte Bros., Inc., 312 US 349, 85 L Ed 881, 61 S Ct 580 (failure of
commission to assert jurisdiction over intrastate unfair methods of competition); Mayor,
etc. of Baltimore v Johnston, 96 Md 737, 54 A 646 (omission to assess stock exchange
seat under tax statute); Westerman v Supreme Lodge K. P., 196 Mo 670, 94 SW 470
(insurance department's failure to recognize nonforfeiture statute as applicable to
fraternal benefit associations); People v Adelphi Club of New York, 149 NY 5, 43 NE
410 (penal liability of social club not having liquor license).
Failure of the Federal Power Commission, for a long time, to assert the power to regulate
transfers of gas leases by natural gas companies subject to the Natural Gas Act indicates
that the commission did not believe the power existed. Federal Power Com. v Panhandle
Eastern Pipe Line Co., 337 US 498, 93 L Ed 1499, 69 S Ct 1251.
Footnote 1. Inland Waterways Corp. v Young, 309 US 517, 84 L Ed 901, 60 S Ct 646,

reh den 309 US 698, 84 L Ed 1037, 60 S Ct 884; Westerman v Supreme Lodge K. P.,
196 Mo 670, 94 SW 470.
As to practical construction, generally, see § 86.
§ 91 Interpretation by agency counsel
View Entire Section

Interpretation of a statute by an agency is not the same as interpretation by an agency's

counsel. It is the administrative official and not appellate counsel who possesses the
expertise that can enlighten and rationalize the search for the meaning and intent of the
legislature. 2 Deference to what is nothing more than a convenient litigating position
would be inappropriate. 3 Thus, post hoc rationalizations for agency action are
entitled to little deference. 4
Footnotes
Footnote 2. Securities Industry Asso. v Board of Governors of Federal Reserve System,

468 US 137, 82 L Ed 2d 107, 104 S Ct 2979, CCH Fed Secur L Rep ¶ 91543;
Population Institute v McPherson, 254 US App DC 395, 797 F2d 1062.
Congress has delegated to the administrative official and not to appellate counsel the
responsibility for elaborating and enforcing statutory commands. Investment Co. Institute
v Camp, 401 US 617, 28 L Ed 2d 367, 91 S Ct 1091, CCH Fed Secur L Rep ¶ 92985.

Footnote 3. Bowen v Georgetown Univ. Hosp., 488 US 204, 102 L Ed 2d 493, 109 S Ct
468.
Footnote 4. Securities Industry Asso. v Board of Governors of Federal Reserve System,

468 US 137, 82 L Ed 2d 107, 104 S Ct 2979, CCH Fed Secur L Rep ¶ 91543;
Population Institute v McPherson, 254 US App DC 395, 797 F2d 1062.
§ 92 Factors enhancing force of construction
View Entire Section

Although ordinarily administrative interpretations are given great weight, 5 in certain

situations such constructions may be regarded by a court as of heightened or even
controlling significance. 6 If Congress has explicitly left a gap for the agency to fill,
there is an express delegation of authority to elucidate a specific provision of the statute
by regulation, and such legislative regulations are given controlling weight unless they
are arbitrary, capricious, or manifestly contrary to statute. 7 In addition, appropriate
weight is due especially when the construction or interpretation is long standing 8 and
uniform 9 or is contemporaneous with the first workings of the statute, 10 or when
the enactment of the statute was suggested by such agency. 11
Certain other factors also increase the importance of administrative constructions.

Agency expertise and experience are appropriate considerations in assessing whether to
grant deference. 12 Implied legislative approval by failure to change a long-standing
administrative construction is not essential to judicial respect for the construction but is
an element which greatly increases the weight given such construction. 13
Footnotes
Footnote 5. § 85.
Footnote 6. Hagan v Farris (Ky) 807 SW2d 488 (construction of law by officers of an
agency continued for a long period of time without interruption is entitled to controlling
weight).
Footnote 7. § 85.
Footnote 8. Hagan v Farris (Ky) 807 SW2d 488; Bouse v Hutzler, 180 Md 682, 26 A2d
767, 141 ALR 843; State ex rel. Cross v Board of Land Comrs., 50 Wyo 181, 58 P2d
423, adhered to 50 Wyo 205, 62 P2d 516.
Footnote 9. Bouse v Hutzler, 180 Md 682, 26 A2d 767, 141 ALR 843; State ex rel. Cross
v Board of Land Comrs., 50 Wyo 181, 58 P2d 423, adhered to 50 Wyo 205, 62 P2d 516.
Footnote 10. NLRB v United Fruit & Commercial Workers Union, Local 23, 484 US
112, 98 L Ed 2d 429, 108 S Ct 413, 126 BNA LRRM 3281, 107 CCH LC P 10193, on
remand, 840 F2d 171, 127 BNA LRRM 2888, 108 CCH LC P 10341 (contemporaneous
with the enactment of the statute being construed); Power Reactor Development Co. v
International Union of Electrical, etc., 367 US 396, 6 L Ed 2d 924, 81 S Ct 1529;
Indiana Dept. of State Revenue, etc. v Colpaert Realty Corp., 231 Ind 463, 109 NE2d
415; Stanford v Butler, 142 Tex 692, 181 SW2d 269, 153 ALR 1054; State ex rel.
Goshen Irr. Sidt. v Hunt, 49 Wyo 497, 57 P2d 793.
Footnote 11. United States v Atlantic Refining Co., 360 US 19, 3 L Ed 2d 1054, 79 S
Ct 944.
Footnote 12. King v Industrial Comm'n of Utah (Utah App) 850 P2d 1281, 209 Utah Adv
Rep 33.
Footnote 13. Indiana Dept. of State Revenue, etc. v Colpaert Realty Corp., 231 Ind 463,
109 NE2d 415.
The construction of a statute by those charged with its execution should be followed
unless there are compelling indications that it is wrong, especially when Congress has
refused to alter the administrative construction. Red Lion Broadcasting Co. v FCC, 395
US 367, 23 L Ed 2d 371, 89 S Ct 1794, 1 Media L R 2053.
As to implied legislative approval of administrative constructions, generally, see § 95.
§ 93 Factors lessening force of construction
View Entire Section

Go to Supplement
In addition to certain factors which operate as general limitations upon the doctrine that
administrative construction will be accorded great weight in determining the meaning of
a statute or other law, 14 there are many circumstances which may lessen the force of
the administrative construction, or even move the courts, in particular instances, to reject
its aid. Such circumstances are the infrequency of the application of the construction; 15
the fact that the construction is not general, 16 uniform and consistent, 17
contemporaneous, 18 or of long standing; 19 ambiguity or lack of certainty in
the construction; 20 and conflict with other rules of statutory construction. 21 The
weight of administrative interpretations also suffers where the interpretation is made by
an agency not entrusted with the responsibility of making inter partes decisions 22 or
where the interpretation does not involve a matter of specialized judgment. 23
Moreover, an administrative interpretation may be denied persuasive weight where it is
in conflict with another interpretation of the same provision by a different administrative
agency. 24
§ 93 ----Factors lessening force of construction [SUPPLEMENT]
Case authorities:
A federal administrative agency's interpretation of a statute is not entitled to deference
when it goes beyond the meaning that the statute can bear. MCI Telecommunications
Corp. v American Tel. & Tel. Co. (US) 129 L Ed 2d 182, 114 S Ct 2223.
Footnotes
Footnote 14. § 88.
Footnote 15. United States Trust Co. v Anderson (CA2 NY) 65 F2d 575, 3 USTC ¶ 1125,
12 AFTR 836, 89 ALR 994, cert den 290 US 683, 78 L Ed 589, 54 S Ct 120; Cole v
Commissioner (CA9) 81 F2d 485, 36-1 USTC ¶ 9035, 17 AFTR 384.
Footnote 16. Iselin v United States, 270 US 245, 70 L Ed 566, 46 S Ct 248, 1 USTC ¶
163, 5 AFTR 5852; Red Wing Malting Co. v Willcuts (CA8 Minn) 15 F2d 626, 6 AFTR
6360, 49 ALR 459, cert den 273 US 763, 71 L Ed 879, 47 S Ct 476.
Where the construction has been only a local practice under a statute applicable
generally, the rule that an administrative construction is entitled to great weight is
inapplicable. Chicago Union Traction Co. v Chicago, 209 Ill 444, 70 NE 659.
Footnote 17. § 94.
Footnote 18. Wisconsin C. R. Co. v United States, 164 US 190, 41 L Ed 399, 17 S Ct

45.
The weight to be given by the courts to the practical or administrative construction of a

statute depends largely upon whether such construction is reasonably contemporaneous
with the enactment of the statute. McCarthy v Coos Head Timber Co., 208 Or 371, 302
P2d 238.
Footnote 19. Davies Warehouse Co. v Bowles, 321 US 144, 88 L Ed 635, 64 S Ct 474;
Red Wing Malting Co. v Willcuts (CA8 Minn) 15 F2d 626, 6 AFTR 6360, 49 ALR 459,
cert den 273 US 763, 71 L Ed 879, 47 S Ct 476; Whitcomb Hotel, Inc. v California
Employment Com., 24 Cal 2d 753, 151 P2d 233, 155 ALR 405; Tres Ritos Ranch Co. v
Abbott, 44 NM 556, 105 P2d 1070, 130 ALR 963.
Footnote 20. Burnet v Chicago Portrait Co., 285 US 1, 76 L Ed 587, 52 S Ct 275, 3

USTC ¶ 882, 10 AFTR 800 (ambiguous regulations are of little value).
The force of a treasury regulation as an aid to the interpretation of a revenue statute is

impaired by its own internal inconsistency. United States v Calamaro, 354 US 351, 1 L
Ed 2d 1394, 77 S Ct 1138, 57-2 USTC ¶ 9750, 51 AFTR 57.
Footnote 21. Northern Coal & Dock Co. v Strand, 278 US 142, 73 L Ed 232, 49 S Ct
88.
Footnote 22. Fishgold v Sullivan Drydock & Repair Corp., 328 US 275, 90 L Ed 1230,
66 S Ct 1105, 18 BNA LRRM 2075, 11 CCH LC ¶ 51232, 167 ALR 110.

Footnote 23. Interstate Commerce Com. v Service Trucking Co. (CA3 Pa) 186 F2d 400.
Footnote 24. Fishgold v Sullivan Drydock & Repair Corp., 328 US 275, 90 L Ed 1230,
66 S Ct 1105, 18 BNA LRRM 2075, 11 CCH LC ¶ 51232, 167 ALR 110.
An administrative construction which stands alone and is in contradiction to that of other

heads of departments and offices of the government could not be accorded weight in
construing the statute. United States v Townsley, 323 US 557, 89 L Ed 454, 65 S Ct
413.
§ 94 --Lack of uniformity and consistency
View Entire Section

The fact that an administrative construction has not been uniform and consistent may lead
a court to give it little or no effect in determining the true meaning of a statute; 25
but the court may give it such effect as is appropriate under the circumstances and take it
into account to the extent it is supported by valid reasons. 26 While an agency's
long-term adherence to a particular interpretation of a statute is not prerequisite to
judicial deference, it adds weight to the validity of the agency construction. 27 An
agency interpretation which conflicts with the agency's earlier interpretation is entitled to
considerably less deference than a consistently held agency view. 28 Thus, a court
may refuse to accept a newer administrative construction as against an older and
longer-standing practice. 29 The courts may, however, disregard a merely temporary
abandonment of an administrative interpretation 30 especially where this is occasioned
by court decisions. 31
Footnotes
Footnote 25. De Sylva v Ballentine, 351 US 570, 100 L Ed 1415, 76 S Ct 974, 109
USPQ 431, reh den 352 US 859, 1 L Ed 2d 69, 77 S Ct 22 and reh den 362 US 907, 4
L Ed 2d 558, 80 S Ct 608 (former, but not present, regulations covered the point);
Whitcomb Hotel, Inc. v California Employment Com., 24 Cal 2d 753, 151 P2d 233, 155
ALR 405; Peerless Fixture Co. v Keitel, 355 Mo 144, 195 SW2d 449; Re Newberry's
Estate, 138 W Va 296, 75 SE2d 851, 40 ALR2d 624 (rule inapplicable where
administrative interpretation has varied).
The court will not yield to the construction of a revenue act by the Commissioner of
Internal Revenue which has been neither uniform nor of long standing. Alexander v
Cosden Pipe Line Co., 290 US 484, 78 L Ed 452, 54 S Ct 292, 4 USTC ¶ 1211, 13
AFTR 827.
Footnote 26. United States v Reynolds, 250 US 104, 63 L Ed 873, 39 S Ct 409.
Footnote 27. Yu v Clayton (1st Dist) 147 Ill App 3d 350, 100 Ill Dec 916, 497 NE2d
1278.
Long continued construction of a statute by a department charged with its execution is
entitled to great weight and should not be overturned without cogent reasons. Toxic
Waste Impact Group, Inc. v Leavitt (Okla) 755 P2d 626.
followed on other grounds by Haitian Centers Council, Inc. v McNary (ED NY) 1992 US
Dist LEXIS 8452).
Footnote 29. United States ex rel. Hirshberg v Cooke, 336 US 210, 93 L Ed 621, 69 S
Ct 530 (construction as to whether discharged servicemen subject to court-martial); State
v McCook, 109 Conn 621, 147 A 126, 64 ALR 1453 (holding nine years too short a time
for predication of established practice of governors to sign bills within three days after
adjournment of legislature, where, during preceding 42 years, such acts were infrequent);
Broadway Nat. Bank v Commissioner of Corps. & Taxation, 321 Mass 25, 71 NE2d 607,
35 AFTR 764, 170 ALR 112.
Footnote 30. McLaren v Fleischer, 256 US 477, 65 L Ed 1052, 41 S Ct 577, stating that
a departmental construction continually adhered to and followed, except for a departure
soon reconsidered and corrected, is such as the court may properly refuse to disturb.
Footnote 31. White v Winchester Country Club, 315 US 32, 86 L Ed 619, 62 S Ct 425,
42-1 USTC ¶ 9208, 28 AFTR 208; Martorano v Capital Finance Corp., 289 NY 21, 43
NE2d 705, 143 ALR 1318.
§ 95 Implied legislative approval of administrative construction
View Entire Section

Go to Supplement
Reenactment of a statutory provision without material change indicates legislative

approval of its administrative construction, 32 especially where there are
repeated reenactments, as in the case of the former federal revenue acts, 33 where the
administrative construction has also had judicial approval, 34 or where there is
evidence that the legislature considered the administrative history of the statute or was
advised of the construction, 35 as where there is a long standing interpretation of
the statute by the agency. 36 Such reenactment has been held to require the
administrative construction to be read into the statute. 37 However, there is no implied
legislative approval if there is no reason to believe that the legislature was cognizant of
the practice or construction, 38 as where the practice was not reflected in any
published ruling or regulation. 39 Nevertheless, there is some authority to the
contrary holding that legislative acquiescence in administrative practice may be inferred
in certain cases from silence and presumed knowledge of the legislature. 40
The legislature may also adopt an administrative construction of a statute when,

subsequent to such construction, it amends the statute. 41 A congressional failure
to revise or repeal an agency's interpretation of a statute when amending that statute is
persuasive evidence that the interpretation is the one intended by Congress. 42 This
rule covers the situation where the validity of administrative action standing by itself may
be dubious, or where ambiguities in a statute or rules are resolved by reference to
administrative practice prior to the re-enactment of the statute, and where it does not
appear that the rule of practice has been changed by the administrative agency through
the exercise of its continuing rulemaking power. 43 It does not cover the situation
where the law is plain, because where the law is plain the subsequent reenactment of a
statute does not constitute adoption of its administrative construction. 44
There is some authority that rejects this idea of implied legislative approval, 45 and in
particular cases it has been held that there was no legislative acquiescence by inaction or
failure to amend, 46 particularly where there was a conflict between administrative and
judicial construction. 47 In any event, Congress may not add to or expand a statute
by impliedly approving a regulation. 48
§ 95 ----Implied legislative approval of administrative construction

[SUPPLEMENT]
Case authorities:
The doctrine of legislative acceptance did not apply to franchise tax statute, where
administrative agency had not collected the tax from foreign corporation until it amended
its rule, and corporation contended that failure to collect the tax was an affirmative
construction by proper administrative officers that the statute is not applicable to its
business and that nonsubstantive changes to agency's rule did not change that
construction, because the doctrine applies only when the statute to be construed is
ambiguous or of doubtful meaning, and the meaning of the statute is plain. Sharp v House
of Lloyd, Inc. (1991, Tex) 815 SW2d 245.
Footnotes
Footnote 32. Helvering v Wilshire Oil Co., 308 US 90, 84 L Ed 101, 60 S Ct 18, 39-2
USTC ¶ 9743, 23 AFTR 743, reh den 308 US 638, 84 L Ed 530, 60 S Ct 292, 23 AFTR
787; National Elevator Industry, Inc. v New York State Tax Com., 49 NY2d 538, 427
NYS2d 586, 404 NE2d 709.
Where there is a reenactment, congressional failure to revise or repeal the agency's

interpretation is persuasive evidence that the interpretation is the one intended by
Congress. NLRB v Bell Aerospace Co. Div. of Textron, Inc., 416 US 267, 40 L Ed 2d
134, 94 S Ct 1757, 85 BNA LRRM 2945, 73 CCH LC ¶ 14465 (ovrld on other grounds
by NLRB v Hendricks County Rural Electric Membership Corp., 454 US 170, 70 L Ed
2d 323, 102 S Ct 216, 108 BNA LRRM 3105, 92 CCH LC ¶ 13098).
Footnote 33. Cammarano v United States, 358 US 498, 3 L Ed 2d 462, 79 S Ct 524,

59-1 USTC ¶ 9262, 3 AFTR 2d 697 (superseded by statute on other grounds as stated in
Cloud v Commissioner, 97 TC 613).
Footnote 34. NLRB v Gullett Gin Co., 340 US 361, 95 L Ed 337, 71 S Ct 337, 27 BNA
LRRM 2230, 19 CCH LC ¶ 66123.

Footnote 35. Service v Dulles, 354 US 363, 1 L Ed 2d 1403, 77 S Ct 1152; NLRB v
Seven-Up Bottling Co., 344 US 344, 97 L Ed 377, 73 S Ct 287, 31 BNA LRRM 2237,
22 CCH LC ¶ 67329; NLRB v Gullett Gin Co., 340 US 361, 95 L Ed 337, 71 S Ct 337,
27 BNA LRRM 2230, 19 CCH LC ¶ 66123.
Footnote 36. Federal Deposit Ins. Corp. v Philadelphia Gear Corp., 476 US 426, 90 L
Ed 2d 428, 106 S Ct 1931, on remand (CA10) 795 F2d 903.
Footnote 37. New York, N. H. & H. R. Co. v Interstate Commerce Com., 200 US 361,
50 L Ed 515, 26 S Ct 272.
Footnote 38. United States v Calamaro, 354 US 351, 1 L Ed 2d 1394, 77 S Ct 1138,

57-2 USTC ¶ 9750, 51 AFTR 57.
Footnote 39. Commissioner v P. G. Lake, Inc., 356 US 260, 2 L Ed 2d 743, 78 S Ct

691, 58-1 USTC ¶ 9428, 8 OGR 1153, 1 AFTR 2d 1394, reh den 356 US 964, 2 L Ed 2d
1071, 78 S Ct 991; Estate of Sanford v Commissioner, 308 US 39, 84 L Ed 20, 60 S Ct
51, 39-2 USTC ¶ 9745, 23 AFTR 756, reh den 308 US 637, 84 L Ed 529, 60 S Ct 258,
23 AFTR 782.
Footnote 40. Power Reactor Development Co. v International Union of Electrical, etc.,
367 US 396, 6 L Ed 2d 924, 81 S Ct 1529; Long v Dick, 87 Ariz 25, 347 P2d 581, 80
ALR2d 949; Lamb v Kroeger, 233 Iowa 730, 8 NW2d 405, 149 ALR 1475.
Footnote 41. Federal Housing Administration v Darlington, Inc., 358 US 84, 3 L Ed 2d

132, 79 S Ct 141, reh den 358 US 937, 3 L Ed 2d 311, 79 S Ct 310 (subsequent
legislation declaring intent of earlier law is not conclusive but is entitled to weight); Re
Stupack, 274 NY 198, 8 NE2d 485, 110 ALR 1158.
It will be assumed that Congress, having amended the revenue law four times and the
section in question twice, subsequent to the promulgation by the Treasury Department of
a regulation construing such section, was familiar with the construction put upon the
section by the Treasury Department and was satisfied with it. Taft v Commissioner, 304
US 351, 82 L Ed 1393, 58 S Ct 891, 38-1 USTC ¶ 9310, 20 AFTR 1255, 116 ALR 346.
Footnote 42. Young v Community Nutrition Institute, 476 US 974, 90 L Ed 2d 959,

106 S Ct 2360, on remand 260 US App DC 294, 818 F2d 943.
787; National Elevator Industry, Inc. v New York State Tax Com., 49 NY2d 538, 427
NYS2d 586, 404 NE2d 709.
Footnote 44. Helvering v Elkins, 302 US 573, 82 L Ed 431, 58 S Ct 379, 38-1 USTC ¶
9040.
Footnote 45. Yeoman v Department of Motor Vehicles (4th Dist) 273 Cal App 2d 71, 78
Cal Rptr 251, stating that legislative approval of previously-adopted administrative rules
does not validate them as of the time of their original adoption, and can amount to a
ratification only if they are specifically referred to.

Footnote 46. Casualty Reciprocal Exchange v Sutfin, 196 Okla 567, 166 P2d 434.
Footnote 47. NLRB v Radio & Television Broadcast Engineers Union, 364 US 573, 5 L
Ed 2d 302, 81 S Ct 330, 47 BNA LRRM 2332, 41 CCH LC ¶ 16700 (administrative
construction adhered to in face of consistent rejection by the courts); Interstate
Commerce Com. v Railway Labor Executives Asso., 315 US 373, 86 L Ed 904, 62 S Ct
717, 10 BNA LRRM 378 (agency had specifically requested further authority, and
Supreme Court had held agency's doubts as to its authority unfounded).
Footnote 48. Commissioner v Acker, 361 US 87, 4 L Ed 2d 127, 80 S Ct 144, 59-2

USTC ¶ 9757, 4 AFTR 2d 5778.
§ 96 Effect of subsequent acts of legislature
View Entire Section

The courts will not apply an administrative construction which has been prohibited by
subsequent legislative enactments of the same nature. 49 However, the legislature may
adopt an administrative construction of a statute when, subsequent to such construction, it
amends the statute or reenacts it without overriding such construction. 50 Ratification
with positive legislation makes an administrative construction virtually conclusive, 51
and reenactment of a statute is persuasive evidence of legislative approval. 52 In
addition, courts will not repudiate an administrative interpretation of a statute which the
legislature has refused to repudiate after being repeatedly urged to do so. 53 If the
legislature rejects a provision which would change a previously established
administrative construction, the court must accept such construction as the intent of the
legislature, 54 or at least accord it great weight. 55 This is true even though the
statute has been amended without any indication on the part of the legislature that the
administrative practice was not in accord with the legislative will, 56 or that the statute
has been reenacted in the light of such construction. 57
There is a conflict of authority as to the weight that should be accorded reenactment by

the legislature. Some authority states that the rule that reenactment of the language of a
statute is an adoption of previous administrative construction 58 is merely an aid in
statutory construction useful at times in resolving ambiguities, 59 and that the rule
does not mean that the prior construction has become so embedded in the law that only
the legislature can effect a change. 60 However, there is also authority that where
the meaning of a statute has been settled by administrative construction and the statute
has been reenacted by Congress, such construction should be followed until Congress
sees fit to change it. 61
The Supreme Court has refused to draw any inference, either in favor of or against the
administrative construction of an act, from an agency's request for legislative clarification
where appropriate committees of both houses of Congress reported favorably on the
agency's request for legislation but Congress adjourned without further action. 62

Footnotes
Footnote 49. United States v Gilmore, 75 US 330, 8 Wall 330, 19 L Ed 396.
Footnote 50. § 95.
Re Davis (CA11 Ga) 899 F2d 1136, 23 CBC2d 555, CCH Bankr L Rptr ¶ 73369) and
(among conflicting authorities on other grounds noted in Puerto Rico Ports Authority v
Federal Maritime Com. (CA1) 919 F2d 799).
Footnote 52. Commissioner v Estate of Sternberger, 348 US 187, 99 L Ed 246, 75 S Ct

229, 55-1 USTC ¶ 11504, 46 AFTR 976; California Employment Com. v Butte County
Rice Growers Ass'n (Cal) 146 P2d 908, subsequent op on reh 25 Cal 2d 624, 154 P2d
892.
Footnote 53. Alstate Constr. Co. v Durkin, 345 US 13, 97 L Ed 745, 73 S Ct 565, 23
CCH LC ¶ 67434.
Footnote 54. FTC v Bunte Bros., Inc., 312 US 349, 85 L Ed 881, 61 S Ct 580;
American Oil Co. v Fly (CA5 Miss) 135 F2d 491, 31 AFTR 10, 147 ALR 824.
Footnote 55. United States v Bergh, 352 US 40, 1 L Ed 2d 102, 77 S Ct 106.
Footnote 57. Texas & P. R. Co. v United States, 289 US 627, 77 L Ed 1410, 53 S Ct
768; Busey v Deshler Hotel Co. (CA6 Ohio) 130 F2d 187, 42-1 USTC ¶ 9359, 42-1
USTC ¶ 9587, 29 AFTR 1091, 142 ALR 563; Whitcomb Hotel, Inc. v California
Employment Com., 24 Cal 2d 753, 151 P2d 233, 155 ALR 405; Citizens' Trust & Sav.
Bank v Fletcher American Co., 207 Ind 328, 190 NE 868, 99 ALR 1474, reh den 207 Ind
333, 192 NE 451, 99 ALR 1476.
Footnote 58. § 95.
Footnote 59. Helvering v Reynolds, 313 US 428, 85 L Ed 1438, 61 S Ct 971, 41-1

USTC ¶ 9484, 25 AFTR 1250, 134 ALR 1155.
31 BNA LRRM 2237, 22 CCH LC ¶ 67329; Helvering v Reynolds, 313 US 428, 85 L
Ed 1438, 61 S Ct 971, 41-1 USTC ¶ 9484, 25 AFTR 1250, 134 ALR 1155.
Footnote 61. Fondren v Commissioner, 324 US 18, 89 L Ed 668, 65 S Ct 499, 45-1

USTC ¶ 10164, 33 AFTR 302.
Footnote 62. Wong Yang Sung v McGrath, 339 US 33, 94 L Ed 616, 70 S Ct 445, mod
339 US 908, 94 L Ed 1336, 70 S Ct 564 and (superseded by statute on other grounds as
stated in Clardy v Levi (CA9 Wash) 545 F2d 1241, 39 ALR Fed 798) and (superseded
by statute on other grounds as stated in Re Fedorenko (BIA) 19 I & N Dec 57) and

(superseded by statute on other grounds as stated in Re Anselmo (BIA) I & N Interim
Dec No 3105). See T. I. M. E., Inc. v United States, 359 US 464, 3 L Ed 2d 952, 79 S
Ct 904 (superseded by statute on other grounds as stated in Covey v ConAgra, Inc. (DC
Colo) 763 F Supp 479) and (superseded by statute on other grounds as stated in Rebel
Motor Freight, Inc v ICC (CA6) 1991 US App LEXIS 11780) and (superseded by statute
on other grounds as stated in Horn's Motor Express, Inc. v Harrisburg Paper Co. (MD Pa)
765 F Supp 211) and (among conflicting authorities on other grounds noted in Duffy v
BMC Industries, Inc. (CA2 NY) 938 F2d 353).
§ 97 --Limitations on reenactment rule
View Entire Section

The rule that reenactment by the legislature is adoption of a prior administrative

construction 63 does not apply if the administrative construction was not reasonable, 64
general, 65 long continued or settled, 66 uniform and consistent; 67 if the
construction was abandoned before reenactment of the statute; 68 or if the statute
construed was not ambiguous. 69 Also, applicability of the rule may be affected by the
type of ruling which is relied upon as a construction of the statute. 70
Footnotes
Footnote 63. § 95.
Footnote 64. Dollar Sav. Bank v United States, 86 US 227, 19 Wall 227, 22 L Ed 80, 2
AFTR 2309.
Footnote 65. United States v Missouri P. R. Co., 278 US 269, 73 L Ed 322, 49 S Ct

133.
Footnote 66. Higgins v Commissioner, 312 US 212, 85 L Ed 783, 61 S Ct 475, 41-1

USTC ¶ 9233, 25 AFTR 1160, reh den 312 US 714, 85 L Ed 1145, 61 S Ct 728, 25
AFTR 1204 and (superseded by statute on other grounds as stated in Campbell Taggart,
Inc. v United States (CA5 Tex) 744 F2d 442, 84-2 USTC ¶ 9869, 54 AFTR 2d 84-6135)
and (superseded by statute on other grounds as stated in Estate of Rockefeller v
Commissioner (CA2) 762 F2d 264, 85-1 USTC ¶ 9429, 56 AFTR 2d 85-5094) and
(superseded by statute on other grounds as stated in Commissioner v Groetzinger, 480
US 23, 94 L Ed 2d 25, 107 S Ct 980, 87-1 USTC ¶ 9191, 59 AFTR 2d 87-532); Allphin
v Glenmore Distilleries Co. (Ky) 270 SW2d 168.

US 23, 94 L Ed 2d 25, 107 S Ct 980, 87-1 USTC ¶ 9191, 59 AFTR 2d 87-532).
787.
Footnote 69. § 78.

US 23, 94 L Ed 2d 25, 107 S Ct 980, 87-1 USTC ¶ 9191, 59 AFTR 2d 87-532), holding
that it should not be assumed that congressional reenactment adopted the interpretation of
minor Treasury Department rulings unless the administrative practice is long continued
and substantially uniform in the Bureau of Internal Revenue and without challenge by the
government in the Board of Tax Appeals or the courts.
§ 98 --Effect of change in law
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A court may give little or no weight to an administrative construction of a prior statute in

determining the meaning of a subsequent and materially changed statute. 71 However,
it is cogent evidence of legislative approval of part of an administrative construction that
the legislature modifies a statute so as to avoid part of a construction while leaving
another part standing. 72
§ 98 --Effect of change in law [SUPPLEMENT]
Case authorities:
Actions by U.S. Military Academy, other than those committed to agency discretion by
law, are subject to requirements of 5 USCS §§ 551 et seq., where dismissed cadet alleged
that his right to due process and his rights under statutes were violated by virtue of his
suspension. Phillips v United States (1996, ED NY) 910 F Supp 101.
Footnotes
Footnote 71. Northwestern Mut. Life Ins. Co. v Murphy, 223 Iowa 333, 271 NW 899,
109 ALR 1054; State ex rel. Public Service Com. v Brannon, 86 Mont 200, 283 P 202,
67 ALR 1020; Royal Highlanders v State, 77 Neb 18, 108 NW 183.
Footnote 72. United States ex rel. United States Borax Co. v Ickes, 68 App DC 399, 98
F2d 271, cert den 305 US 619, 83 L Ed 395, 59 S Ct 80.
III. MEETINGS AND RECORDS; DISCLOSURE TO PUBLIC

[99-121]
A. Meetings, In General [99, 100]
Research References
1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Forms 23, 213
§ 99 Number of members necessary to act; time of meetings
View Entire Section

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The common-law rule is that in the absence of a contrary statutory provision, a majority
of a quorum, constituted of a simple majority of a collective body, is empowered to act
for the body, 79 if all have had notice and opportunity to act 80 and a quorum or the
number required to be present by statute are present, 81 even though a minority
dissent. 82
Statutes have different requirements for presence and consent of members at a meeting.
Some statutes require the presence of all members of a board when action is taken, 83
others require the assent of a specified number of members, 84 or a majority of the
whole number, 85 or, generally or for specific purposes, require unanimous decision of
the entire membership. 86 Some statutes confer upon the majority all the authority
conferred upon the whole, 87 and the action of the majority cannot be stayed by the
nonaction, failure to qualify, absence, death, or want of eligibility of the minority. 88
Similarly, there is an inconsistency in congressional treatment of quorum voting. 89

Congress sometimes allows agency action on the concurrences of a majority of the
quorum, in other cases requiring unanimous concurrence, and in several statutes says
nothing at all. 90 This inconsistency refutes any suggestion that Congress has
regarded the problem to be such as to justify a single rule for federal regulatory agencies.
91 Nevertheless, where the enabling statute pertaining to an agency is silent on the
question, the body is justified in adhering to such common-law rule. 92
Some states say that when an administrative agency is unable to act because it lacks a

statutory quorum, the agency must enter an order allowing litigants in a case before it to
proceed to the next higher judicial or administrative tribunal. 93
Statutes may dictate a specific time when meetings of administrative bodies are to be
held. Such statutes are sometimes considered directory, and sometimes mandatory. 94
§ 99 ----Number of members necessary to act; time of meetings [SUPPLEMENT]
Practice Aids: Petition or application–Allegation–Majority of members of

administrative body absent from hearing. 1A Am Jur Pl & Pr Forms (Rev),
Administrative Law, § 304.
Footnotes
Footnote 79. FTC v Flotill Products, Inc., 389 US 179, 19 L Ed 2d 398, 88 S Ct 401,
1967 CCH Trade Cases ¶ 72287; Levinson v Connecticut Bd. of Chiropractic Examiners,
211 Conn 508, 560 A2d 403; Shrewsbury Edgemere Assoc. Ltd. Partnership v Board of
Appeals, 409 Mass 317, 565 NE2d 1214; Asonia Library Bd. of Directors v Freedom on
Information Com., 42 Conn Supp 84, 600 A2d 10586.
Forms: Allegations–Majority of members of administrative body absent from hearing.

1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 213.
Footnote 80. Brown v District of Columbia, 127 US 579, 32 L Ed 262, 8 S Ct 1314;

Gunnip v Lautenklos, 33 Del Ch 415, 94 A2d 712.
Failure of two associate members of public commission to notify third member of

meeting to decide issuance of certificate to carrier constituted misconduct, and order
granting certificate was void. Carroll v Alabama Public Service Com., 281 Ala 559, 206
So 2d 364.
Footnote 81. Brown v District of Columbia, 127 US 579, 32 L Ed 262, 8 S Ct 1314;

Rollins v Halverson, 257 Iowa 399, 132 NW2d 465 (school district reorganization
requires only quorum of school board).
1967 CCH Trade Cases ¶ 72287.
Footnote 83. See Real Properties, Inc. v Board of Appeal, 311 Mass 430, 42 NE2d 499;
Wilson v Alabama G. S. R. Co., 77 Miss 714, 28 So 567.
Footnote 84. See Real Properties, Inc. v Board of Appeal, 311 Mass 430, 42 NE2d 499.
Footnote 85. Talbot v Board of Education, 171 Misc 974, 14 NYS2d 340 (7-member
board must act by at least four affirmative votes and not by vote of three of four members
present).
Footnote 86. Real Properties, Inc. v Board of Appeal, 311 Mass 430, 42 NE2d 499.

Footnote 87. Liquefied Petroleum Gas Com. v E. R. Kiper Gas Corp., 229 La 640, 86 So
2d 518.
Footnote 88. Application of Murray, 193 Kan 535, 394 P2d 88; Liquefied Petroleum Gas
Com. v E. R. Kiper Gas Corp., 229 La 640, 86 So 2d 518.
Footnote 93. Francis O. Day Co. v West Virginia Reclamation Bd. of Review, 188 W Va
418, 424 SE2d 763.
Footnote 94. Younker Bros. v Zirbel, 234 Iowa 269, 12 NW2d 219, 151 ALR 242.
Forms: Petition or application–To call meeting for consideration of proposed order.

§ 100 What members are counted
View Entire Section

Ex officio members of a board are counted in determining the presence of a quorum; 95

and a substitute member duly designated in accordance with statute in place of an absent
or disqualified member is a member whose vote counts in determining the required
number of votes. 96 However, the vote of a member whose office terminates on the day
of the vote may not be counted. 97
For purposes of determining whether a legal quorum is present, a member who is

disqualified whether because of interest, bias, prejudice, or other good cause, or because
he or she voluntarily recuses himself or herself, is not counted. 98 The fact that the
member is physically present and his or her name is on the final decision is irrelevant in
such a case. 99
Footnotes
Footnote 96. Real Properties, Inc. v Board of Appeal, 311 Mass 430, 42 NE2d 499.
But see Board of Medical Examiners v Steward, 203 Md 574, 102 A2d 248, holding that
where a board appointed a substitute without authority to do so, the right to a fair and
impartial hearing before a legally constituted board was violated even though, without
the vote of the substitute, there were sufficient votes for the action taken.
Footnote 97. Lawrence v MacDonald, 318 Mass 520, 62 NE2d 850, 161 ALR 955
(holding license granted invalid).
Footnote 98. King v New Jersey Racing Com., 103 NJ 412, 511 A2d 615.
As to disqualification of a member, generally, see §§ 41 et seq.
Footnote 99. King v New Jersey Racing Com., 103 NJ 412, 511 A2d 615.
B. Requirement That Meetings be Public [101-117]
Research References
5 USCS § 552b
1A Federal Procedural Forms, L Ed, Administrative Procedure § 2:5
1. State Law [101-106]
§ 101 Generally
View Entire Section

Go to Supplement
Although there is no common law right to attend meetings of government bodies, 1 a

number of states have enacted public meeting statutes which generally provide that
meetings of public entities within the state are to be open to the public at large. 2 The
purpose of such statutes is to promote openness and accountability in government 3 and
to prevent the government from conducting the public's business in secret. 4 A violation
of the statute may occur not only where the meeting is private, but also where the
meeting is held in an inconvenient location or in a room so small as to make it
inaccessible for public attendance. 5
Such statutes are remedial 6 and subject to a broad or liberal construction 7 which is
most favorable to the public. 8 The constitutionality of such statutes has been upheld. 9

Public meetings statutes generally require substantial compliance, 10 although there is
some authority to the contrary. 11 However, good faith 12 or lack of harm has been
found not to be a defense to a violation of a public meeting law, 13 although there is also
some authority to the contrary. 14
Some courts have taken the view that official action taken in violation of these statutes is
not invalidated, 15 although there is some authority invalidating such action. 16
A committee that is not a governmental body is not generally subject to such statutes. 17
Similarly, an administrative committee which is not a governing body, and has no
authority to make decisions or recommendations, has been held exempt from the public
meetings statute. 18 Some courts have even held that voluntary committees formed for
the purposes of making recommendations to a board are not subject to the state open
meetings statute, in the absence of a statute, ordinance or official act by the board
designating the committee as a public or subsidiary body. 19 However, meetings of a
charter commission to propose a recommendation to be voted on by the city electorate
were subject to the public meetings act. 20
Practice Aids: The Florida Constitution's open government amendments: Article I,

Section 24 and Article III, Section 4(e)–let the sunshine in! 18 Nova LR 973 (1994).
Attorney-client exception under state law making proceedings by public bodies open to
the public. 34 ALR5th 591.
Emergency exception under state law making proceedings by public bodies open to the
public. 33 ALR5th 731.
Case authorities:
In action seeking declaratory and mandamus relief against local school authority's
approval of curriculum materials, brought by persons who opposed use of such materials,
trial court erred in sustaining demurrer to causes of action alleging that review and
hearing committees, created by school board, were advisory committees subject to state
statute requiring open meetings; board's adoption of formal, written policy calling for
appointment of committee to advise school superintendent and, in turn, school board
whenever there was request for reconsideration of "controversial reading matter" was
sufficiently similar to types of formal action listed in statute to require that meetings be
open to public. Frazer v Dixon Unified School Dist. (1993, 1st Dist) 18 Cal App 4th 781,
22 Cal Rptr 2d 641, 93 CDOS 6705, 93 Daily Journal DAR 11412, review den (Nov 17,
1993).
Court-ordered closed settlement conference between two public bodies that were
opposing parties in lawsuit could be excepted from requirements of state public meeting
statute under court's inherent judicial power. However, order closing conference was
improper where meeting in question was not really a settlement conference since not all
parties were included, conference was not to avoid trial (since order was made following
trial and while appeal was pending), and scope of conference was not sufficiently
focussed on specific issues raised by underlying lawsuit. State by Archabal v County of
Hennepin (1992, Minn) 505 NW2d 294, 21 Media L R 2114, related proceeding (Minn)
495 NW2d 416.
Assuming that an "executive session" was held by a board of adjustment in violation of

GS § 143- 318.11, the trial court did not abuse its discretion in refusing to declare the
decision of the board null and void where the court concluded that the alleged executive
session had little effect upon the substance of the challenged action, and the record fails
to show that this determination is manifestly unsupported by reason. Dockside
Discotheque v Board of Adjustment (1994) 115 NC App 303, 444 SE2d 451.
In action challenging township's zoning resolution, trial court properly admitted

testimony by witnesses to explain ambiguous committee minutes to determine whether
executive sessions or closed meetings had been held in contravention of RC § 121.22.
Barbeck v Twinsburg Township (1992, Summit Co) 73 Ohio App 3d 587, 597 NE2d
1204, motion overr 64 Ohio St 3d 1414, 593 NE2d 4 and companion case (Ohio App,
Summit Co) 1992 Ohio App LEXIS 3564.
A decision made by flood control district board in violation of the Open Meetings Act
could not be ratified retroactively, where board reached its decision to purchase land
owned by board president in executive session in violation of the Act, then, after district
had paid president for the land, sought to ratify its earlier action by a vote taken in open
session, because once the transaction was completed by payment, the board's action could
not be approved retroactively. Dallas County Flood Control Dist. No. 1 v Cross (1991,
Tex App Dallas) 815 SW2d 271, writ den (Dec 11, 1991).
Meeting at which school board listened to presentation by representative of state school

licensing agency regarding school's accreditation was not "deliberation" covered by state
open meetings act, where board members did not engage in verbal exchange with
representative or with each other. Dallas Morning News Co. v Board of Trustees (1993,
Tex App Dallas) 861 SW2d 532, writ of error filed (Nov 30, 1993).
State university committee charged with regulation of treatment of laboratory animals

was public body whose meetings were subject to state open- meetings statute,
notwithstanding that committee was formed in response to requirements of federal
funding laws, where university chose to form committee in order to receive federal funds
and committee had considerable policymaking authority. Animal Legal Defense Fund,
Inc. v Institutional Animal Care & Use Committee of University of Vermont (1992, Vt)
616 A2d 224.
Under rule providing that prevailing relator under Open Meetings Law should be
awarded attorney's fees if award would advance purpose of Open Meetings Law, circuit
court should consider in determining whether purpose of Open Meetings Law is
advanced by award of fees such things as whether award of fees to relator would make
him or her "whole," thus providing relator and others in similar positions with economic
incentive to privately enforce Act, and court should determine whether award would
deter future Open Meetings Law violations and encourage governmental bodies to
provide more openness in government. Furthermore, under rule providing that prevailing
relator under Open Meetings Law should be awarded attorney's fees if award would
advance purpose of Open Meetings Law unless there is showing of special circumstances
which would render award unjust, mere presence of good faith on part of governmental
body cannot alone be special circumstance which might render award unjust, as most
disagreements over applicability of Open Meetings Law reflect good faith disagreement
on both sides and denying attorney's fees to prevailing party simply because of good
faith, without other special circumstances, would remove much incentive to privately
enforce law and, perhaps, in many cases discourage it. State ex rel. Hodge v Town of
Turtle Lake (1993) 180 Wis 2d 62, 508 NW2d 603.
Because prevailing relator under Open Meetings Law serves as private attorney general
by vindicating his or her own rights and rights of public to open government and fact that
legislative mandate is to construe Open Meetings Law liberally, prevailing relator under
Open Meetings Law should be awarded attorney's fees if award would advance purpose
of Open Meetings Law which is to ensure that public has fullest and most complete
information possible regarding affairs of government and, if condition is met, fees are
awarded unless there is showing of special circumstances which would render award
unjust. State ex rel. Hodge v Town of Turtle Lake (1993) 180 Wis 2d 62, 508 NW2d
603.
Under open records law, court order compelling disclosure of request information is not
condition precedent to award of fees. Eau Claire Press Co. v Gordon (1993, App) 176
Wis 2d 154, 499 NW2d 918, 21 Media L R 1633.
Footnotes
Footnote 1. Abood v League of Women Voters (Alaska) 743 P2d 333.
Footnote 2. Ansonia Library Bd. of Directors v Freedom on Information Com., 42 Conn

Supp 84, 600 A2d 1058; Kilgore v R. W. Page Corp., 261 Ga 410, 405 SE2d 655,
102-145 Fulton County D R 12B, 19 Media L R 1063; Gosnell v Hogan (5th Dist) 179 Ill
App 3d 161, 128 Ill Dec 252, 534 NE2d 434, app den 126 Ill 2d 558, 133 Ill Dec 668,
541 NE2d 1106; Donahue v State, Bd. of Regents (Iowa) 474 NW2d 537, 19 Media L R
1350; Stevens v Hutchinson, 11 Kan App 2d 290, 726 P2d 279; Booth Newspapers v
University of Mich. Bd. of Regents, 192 Mich App 574, 481 NW2d 778, 20 Media L R
1154, app gr, motion gr 441 Mich 881, 491 NW2d 825 and affd in part and revd in part
on other grounds, remanded 444 Mich 211, 507 NW2d 422; Sovereign v Dunn (Minn
App) 498 NW2d 62; Otey v State, 240 Neb 813, 485 NW2d 153, habeas corpus
proceeding (CA8 Neb) 972 F2d 210, application den (US) 120 L Ed 2d 934, 113 S Ct 5,
later proceeding (CA8 Neb) 992 F2d 871, habeas corpus dismissed (CA8 Neb) 5 F3d
1125, reh, en banc, den (CA8) 1994 US App LEXIS 49; Reno v Reno Newspapers, Inc.,
105 Nev 886, 784 P2d 974, 17 Media L R 2150; McKay v Board of County Comrs., 103
Nev 490, 746 P2d 124; Babac v Pennsylvania Milk Mktg. Bd., 531 Pa 391, 613 A2d 551,
appeal after remand, remanded 151 Pa Cmwlth 579, 618 A2d 1050; Acker v Texas Water
Com. (Tex) 790 SW2d 299, reh overr (Jun 13, 1990).
Annotation: Validity, construction, and application of statutes making public

proceedings open to the public, 38 ALR3d 1070 § 2.
Footnote 3. Booth Newspapers v University of Mich. Bd. of Regents, 192 Mich App 574,
481 NW2d 778, 20 Media L R 1154, app gr, motion gr 441 Mich 881, 491 NW2d 825
and affd in part and revd in part on other grounds, remanded 444 Mich 211, 507 NW2d
422; Metropolitan Air Research Testing Authority, Inc. v Metropolitan Government of
Nashville & Davidson County (Tenn App) 842 SW2d 611.
Footnote 4. Metropolitan Air Research Testing Authority, Inc. v Metropolitan

Government of Nashville & Davidson County (Tenn App) 842 SW2d 611.
The purpose of the public meeting statute is to place a limitation upon officials by
requiring them to speak of public business with their fellow officials only when they are
in a public forum and sufficient notice has been given. Such statutes prevent the risk of
business being done in secret with the possibility that private deals will supplant the
public interest. People ex rel. Difanis v Barr, 83 Ill 2d 191, 46 Ill Dec 678, 414 NE2d
731.
Footnote 5. Stevens v Hutchinson, 11 Kan App 2d 290, 726 P2d 279.
Footnote 6. Stevens v Hutchinson, 11 Kan App 2d 290, 726 P2d 279; Metropolitan Air
Research Testing Authority, Inc. v Metropolitan Government of Nashville & Davidson
County (Tenn App) 842 SW2d 611.
Footnote 7. Kilgore v R. W. Page Corp., 261 Ga 410, 405 SE2d 655, 102-145 Fulton
County D R 12B, 19 Media L R 1063; Donahue v State, Bd. of Regents (Iowa) 474
NW2d 537, 19 Media L R 1350; Stevens v Hutchinson, 11 Kan App 2d 290, 726 P2d
279; Brown v East Baton Rouge Parish School Bd. (La App 1st Cir) 405 So 2d 1148;
Booth Newspapers v University of Mich. Bd. of Regents, 192 Mich App 574, 481 NW2d
778, 20 Media L R 1154, app gr, motion gr 441 Mich 881, 491 NW2d 825 and affd in
part and revd in part on other grounds, remanded 444 Mich 211, 507 NW2d 422;
Sovereign v Dunn (Minn App) 498 NW2d 62; Metropolitan Air Research Testing
Authority, Inc. v Metropolitan Government of Nashville & Davidson County (Tenn App)
842 SW2d 611; Acker v Texas Water Com. (Tex) 790 SW2d 299, reh overr (Jun 13,
1990); State ex rel. Badke v Village Bd. of Greendale, 173 Wis 2d 553, 494 NW2d 408.
Footnote 8. Willison v Pine Point Experimental School (Minn App) 464 NW2d 742;
Hinds County Bd. of Supervisors v Common Cause of Mississippi (Miss) 551 So 2d 107.
Footnote 9. People ex rel. Difanis v Barr (4th Dist) 78 Ill App 3d 842, 34 Ill Dec 223,
397 NE2d 895, affd 83 Ill 2d 191, 46 Ill Dec 678, 414 NE2d 731.
Annotation: 38 ALR3d 1070 § 3[a].
Footnote 10. Gosnell v Hogan (5th Dist) 179 Ill App 3d 161, 128 Ill Dec 252, 534 NE2d
434, app den 126 Ill 2d 558, 133 Ill Dec 668, 541 NE2d 1106; Williamson v Doyle (1st
Dist) 112 Ill App 3d 293, 67 Ill Dec 905, 445 NE2d 385 (substantial compliance with
notice requirements); Stevens v Hutchinson, 11 Kan App 2d 290, 726 P2d 279.
Footnote 11. Aronowitz v Planning Bd. of Lakewood, 257 NJ Super 347, 608 A2d 451
(substantial compliance with notice requirements did not satisfy the specific mandates of
the open meetings statute); Acker v Texas Water Com. (Tex) 790 SW2d 299, reh overr
(Jun 13, 1990) (requiring "exact and literal" compliance); Smith County v Thornton
(Tex) 726 SW2d 2, rehg of cause overr (Apr 8, 1987) (notice provision required literal
compliance).
Footnote 12. KCOB/KLVN, Inc. v Jasper County Bd. of Supervisors (Iowa) 473 NW2d
171, 19 Media L R 1113; Willison v Pine Point Experimental School (Minn App) 464
NW2d 742.

Footnote 13. Willison v Pine Point Experimental School (Minn App) 464 NW2d 742.
Footnote 14. Esperance v Chesterfield Township, 89 Mich App 456, 280 NW2d 559
(those seeking to have a decision in violation of the open meetings act invalidated must
allege not only that the public body failed to comply with the act, but also that this failure
impaired the rights of the public).
Footnote 15. Carter v Nashua, 113 NH 407, 308 A2d 847.
Annotation: 38 ALR3d 1070 § 7[a].
Footnote 16. Brookwood Area Homeowners Asso. v Anchorage (Alaska) 702 P2d 1317,
12 Media L R 1130; Hines v Pinchback–Halloran Volkswagen, Inc. (Ky) 513 SW2d 492;
Township Committee of South Harrison v Board of Chosen Freeholders, 213 NJ Super
179, 516 A2d 1140 (among conflicting authorities on other grounds noted in State v Hart,
219 NJ Super 278, 530 A2d 332).
Annotation: 38 ALR3d 1070 § 7[b].
Footnote 17. Donahue v State, Bd. of Regents (Iowa) 474 NW2d 537, 19 Media L R
1350; Connelly v School Committee of Hanover, 409 Mass 232, 565 NE2d 449, 18
Media L R 2166.
A selection committee appointed by the superintendent of schools was not subject to the
open meeting law because it was not created by statute, ordinance, or bylaw like the
governmental bodies subject to the open meeting law; rather, it was informally created by
the superintendent. Connelly v School Committee of Hanover, 409 Mass 232, 565 NE2d
449, 18 Media L R 2166. But see Lexington Herald-Leader Co. v University of Kentucky
Presidential Search Committee (Ky) 732 SW2d 884, 14 Media L R 1734 (definition of
public agency for open meeting purposes includes any committee or advisory body of
such public agency).
Footnote 18. Idaho Water Resource Bd. v Kramer, 97 Idaho 535, 548 P2d 35.
Footnote 19. People ex rel. Cooper v Carlson (2d Dist) 28 Ill App 3d 569, 328 NE2d 675.
See Donahue v State, Bd. of Regents (Iowa) 474 NW2d 537, 19 Media L R 1350.
But see Spillis Candela & Partners, Inc. v Centrust Sav. Bank (Fla App D3) 535 So 2d
694, 14 FLW 79, holding that an ad hoc advisory board, even though its power is limited
to making recommendation and even if it possesses no authority to bind the agency in
any way, is subject to the state public meetings statute.
Footnote 20. Polillo v Deane, 74 NJ 562, 379 A2d 211, 3 Media L R 1226.
§ 102 Definition of "meeting"; "quorum"
View Entire Section


Go to Supplement
The term "meeting" in public meetings laws generally refers to all official deliberations
and formal actions 21 of all governmental boards and commissions. 22 Some courts
state that a function is a meeting within the meaning of the open meeting statute only
where there is to occur deliberative stages of the decision-making process that leads to
formation and determination of public policy. 23 However, meetings may include
situations where members of one governmental body attend a meeting of another
governmental body in order to gather information about a subject over which they have
decision-making responsibility. 24
Some statutes say that the term "meeting" for purposes of the public meetings law does
not include chance or social gatherings that are not intended to circumvent the law. 25
Consequently, the gathering of a quorum of a school employees board, sometimes before
and sometimes after official meetings, at various restaurants was not a meeting for
purposes of the open meeting law where it was not a convening to make a decision or
deliberate toward one. 26 However, luncheons to discuss public policy issues have been
held to violate an open meeting law. 27
Some states require a meeting to be formed of a quorum, 28 sometimes stating that

meetings of less than a quorum are subject to the open meeting law if formed to avoid
public discussion 29 through a constructive quorum. 30 However, other states do not
use the quorum language on the basis that it leaves a loophole allowing members of a
public body to circumvent the purpose of an open meeting statute by holding smaller
private meetings. 31 However, even where quorum language is not used, the burden of
proof in meetings involving less than one-half the membership may rest with the party
asserting the violation. 32
§ 102 ----Definition of "meeting"; "quorm" [SUPPLEMENT]
Practice Aids: Emergency exception under state law making proceedings by public
bodies open to the public. 33 ALR5th 731.
Case authorities:
Teleconferences between successful bidder for state contract and employees of state
agency monitoring contract were not "meetings" within meaning of state open meetings
act. KILA, Inc. v Department of Admin. (1994, Alaska) 876 P2d 1102.
No meeting took place within meaning of open meeting law when mayor contacted two
city council members by telephone seeking their approval of additional expenses for
sewer excavations, where no two members met together at one time; further, no meeting
took place when mayor and two council members went to view rock which city
superintendent was considering purchasing, and where no deliberation or action took
place. Gavin v Cascade (1993, Iowa App) 500 NW2d 729.
In action by resident of city for violation of city's open meeting law, arising out of several
nonpublic mediation sessions in border dispute attended by delegation composed of
mayor and council member, trial court properly dismissed action, where delegation did
not constitute quorum of city council, delegation did not exercise authority on behalf of
council, delegation was created informally without vote or resolution, powers were not
granted by statute, ordinance, or other formal action. Sovereign v Dunn (1993, Minn
App) 498 NW2d 62.
Eight-minute-long discussion between city's mayor and two city council members
concerning well contract city was considering, held during break in city planning
commission meeting when three individuals gathered in anteroom adjacent to city council
chambers, was meeting within meaning of state open meeting act, and individuals' failure
to open discussion to public violated act. Thuma v Kroschel (1993, Minn App) 506
NW2d 14, review den (Minn) 1993 Minn LEXIS 805, related proceeding (Minn App)
1994 Minn App LEXIS 188.
Footnotes
Footnote 21. Re Hutchinson (Minn App) 440 NW2d 171; Babac v Pennsylvania Milk
Mktg. Bd., 531 Pa 391, 613 A2d 551, appeal after remand, remanded 151 Pa Cmwlth
579, 618 A2d 1050.
Footnote 22. Hinds County Bd. of Supervisors v Common Cause of Mississippi (Miss)
551 So 2d 107.
551 So 2d 107.
Information gathering is distinct from deliberating, and the prohibition is against a

quorum of a governing body meeting in private for the purpose of deciding on and
deliberating toward a decision. Harris v Nordquist, 96 Or App 19, 771 P2d 637.
Footnote 24. State ex rel. Badke v Village Bd. of Greendale, 173 Wis 2d 553, 494 NW2d
408.
Footnote 25. State ex rel. Badke v Village Bd. of Greendale, 173 Wis 2d 553, 494 NW2d
408.
Footnote 26. Harris v Nordquist, 96 Or App 19, 771 P2d 637.
Footnote 27. Booth Newspapers, Inc. v Wyoming City Council, 168 Mich App 459, 425
NW2d 695, 16 Media L R 1321.
Footnote 28. Booth Newspapers v University of Mich. Bd. of Regents, 192 Mich App
574, 481 NW2d 778, 20 Media L R 1154, app gr, motion gr 441 Mich 881, 491 NW2d
825 and affd in part and revd in part on other grounds, remanded 444 Mich 211, 507
NW2d 422; Harris v Nordquist, 96 Or App 19, 771 P2d 637; Babac v Pennsylvania Milk
Mktg. Bd., 531 Pa 391, 613 A2d 551, appeal after remand, remanded 151 Pa Cmwlth
579, 618 A2d 1050; Acker v Texas Water Com. (Tex) 790 SW2d 299, reh overr (Jun 13,
1990).
The capacity to act on behalf of the governing body is presumed where the members of
the group comprise a quorum of the body. Sovereign v Dunn (Minn App) 498 NW2d 62.

Under certain circumstances, a quorum, for public meeting law purposes, may be formed
where some members are participating in the meeting through a telephone conference
call where a speaker telephone is used. Babac v Pennsylvania Milk Mktg. Bd., 531 Pa
391, 613 A2d 551, appeal after remand, remanded 151 Pa Cmwlth 579, 618 A2d 1050.
Footnote 29. Booth Newspapers v University of Mich. Bd. of Regents, 192 Mich App
574, 481 NW2d 778, 20 Media L R 1154, app gr, motion gr 441 Mich 881, 491 NW2d
825 and affd in part and revd in part on other grounds, remanded 444 Mich 211, 507
NW2d 422; Sovereign v Dunn (Minn App) 498 NW2d 62.
Footnote 30. See Stockton Newspapers, Inc. v Redevelopment Agency (3rd Dist) 171 Cal
App 3d 95, 214 Cal Rptr 561, where the public meeting law was violated by a series of
one-to-one telephone calls; Booth Newspapers v University of Mich. Bd. of Regents, 192
Mich App 574, 481 NW2d 778, 20 Media L R 1154, app gr, motion gr 441 Mich 881,
491 NW2d 825 and affd in part and revd in part on other grounds, remanded 444 Mich
211, 507 NW2d 422.
Footnote 31. State ex rel. Newspapers, Inc. v Showers, 135 Wis 2d 77, 398 NW2d 154,
14 Media L R 1170.
At least one court has dealt with this problem by interpreting the term "quorum" to
include "walking quorums." Brown v East Baton Rouge Parish School Bd. (La App 1st
Cir) 405 So 2d 1148.
Footnote 32. State ex rel. Newspapers, Inc. v Showers, 135 Wis 2d 77, 398 NW2d 154,
14 Media L R 1170.
§ 103 Exceptions to public meetings requirement; executive sessions
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In some cases, statutes provide that meetings for certain purposes do not have to be
public. 33 For instance, meetings concerning personnel matters, 34 or matters that may
prejudice the reputation or character of any person, 35 such as appointment,
employment, promotion, and dismissal of employees, 36 are often, but not always, 37
exempted by public meetings statutes; moreover, this exemption has sometimes been
extended to collective bargaining meetings, 38 and meetings concerning independent
contractors 39 or licensees, under certain circumstances, 40 but not to the appointment
of a person to public office or to membership in a public body. 41 Such closed
meetings, while closed to the public, are not supposed to be closed to the employee at
issue, and where a township trustee presented evidence against an employee of the fire
department in a closed meeting, in his absence and without his knowledge, the employee
was denied due process. 42
Meetings to discuss strategy and negotiations with respect to pending claims and
litigation to which the public agency is a party are also sometimes exempt by public
meetings statutes; 43 but some courts have held that there is no exception to the open
meetings act for pending criminal investigations. 44 A meeting with experts may be
exempt from the open meeting law where it is a strategy session with respect to proposed
litigation. 45
Meetings, in exempt cases, are by executive session. 46 However, even when a public
meeting law permits an executive session, the agency may still conduct a public meeting;
47 and, in certain cases, a violation of the open meeting law by an illegal executive
session may be cured by readoption of an action at a public meeting. 48
 Observation: The exceptions allowing closed meetings are narrowly construed

because they derogate the general statutory policy of open meetings; 49 and courts
have held that statutory authorization for an executive session is not enough in the
absence of at least a reasonably arguable basis of an actual, present need for a closed
meeting. 50 Consequently, some statutes require that a reason for a closed meeting
must be stated at an open meeting and recorded on the minutes of the meeting, and the
reason stated for the executive session must be of such specificity as to show that there
is a specific, discreet matter that ought to be discussed in executive session. 51
Moreover, some statutes state that no final action may be taken at a closed meeting. 52
§ 103 ----Exceptions to public meetings requirement; executive sessions

[SUPPLEMENT]
Practice Aids: Pending or prospective litigation exception under state law making
proceedings by public bodies open to the public. 35 ALR5th 113.
Emergency exception under state law making proceedings by public bodies open to the
public. 33 ALR5th 731.
Case authorities:
Deliberations by the State Board of Funeral Directors on stipulated settlements based on

an agreed statement of facts may be permitted to be conducted in closed session to the
extent that evaluation of a proposed stipulation is part of the Board's litigation strategy,
under the authority of the provision allowing the Board to consult with counsel in closed
session. Funeral Sec. Plans v State Bd. of Funeral Directors & Embalmers (1993, 3rd
Dist) 16 Cal App 4th 1672, 21 Cal Rptr 2d 92, 93 CDOS 5112, 93 Daily Journal DAR
8597, review gr Funeral Sec. Plans v State Bd. of Funeral Directors (1993, Cal) 24 Cal
Rptr 2d 73, 860 P2d 465, 93 CDOS 7843, 93 Daily Journal DAR 13373.
Meetings of university's animal care committee and subcommittee were not subject to
public meeting statute, requiring all meetings of governing bodies of public agencies to
be open to public; committee and subcommittee did not derive their existence directly
from university board of trustees. Robinson v Indiana Univ. (1994, Ind App) 638 NE2d
435, reh den (Sep 8, 1994).
Attendance by members of school board at interpersonal-skills workshop did not violate

state open- meeting law, where no public business was discussed at workshop. Kansas
City Star Co. v Fulson (1993, Mo App) 859 SW2d 934, 21 Media L R 2147.

In an appeal of an award of attorney's fees for a violation of the Open Meetings Act, the
Court of Appeals upheld the trial court's award and rejected the government's contention
that it was subject to governmental immunity because the court found that RS art.
6252-17 § 3(b) operated as an express waiver of governmental immunity; upon
determining liability, the appellate court affirmed the trial court's determination that the
state agency and the metropolitan planning organization were jointly and severally liable
because they entered into a joint venture. Austin Transp. Study Policy Advisory
Committee v Sierra Club (1992, Tex App Austin) 843 SW2d 683, writ den (Apr 7, 1993).
Footnotes
Footnote 33. Houman v Pompton Lakes, 155 NJ Super 129, 382 A2d 413.
Footnote 34. Atlanta Journal v Babush, 257 Ga 790, 364 SE2d 560, 15 Media L R 1261;
Re Hutchinson (Minn App) 440 NW2d 171 (disciplinary proceedings).
Footnote 35. Kenai v Kenai Peninsula Newspapers, Inc. (Alaska) 642 P2d 1316; Brown v
East Baton Rouge Parish School Bd. (La App 1st Cir) 405 So 2d 1148; Mellin v
Allentown, 60 Pa Cmwlth 114, 430 A2d 1048.
Footnote 36. McCown v Patagonia Union High School Dist. (App) 129 Ariz 127, 629
P2d 94; Gosnell v Hogan (5th Dist) 179 Ill App 3d 161, 128 Ill Dec 252, 534 NE2d 434,
app den 126 Ill 2d 558, 133 Ill Dec 668, 541 NE2d 1106; Plattsburgh Pub. Co., Div. of
Ottaway Newspapers, Inc. v Plattsburgh (3d Dept) 185 App Div 2d 518, 586 NYS2d
346, 20 Media L R 1579 (consideration of job performance for fiscally required layoffs);
Godsey v Poe, 36 NC App 682, 245 SE2d 522; Port Townsend Publishing Co. v Brown,
18 Wash App 80, 567 P2d 664.
Footnote 37. Flagstaff v Bleeker (App) 123 Ariz 436, 600 P2d 49, holding that a
post-termination hearing was subject to the open meeting law.
Footnote 38. Winter Haven v Florida Public Employees Relations Com. (Fla App D1)
358 So 2d 1374, 98 BNA LRRM 2673; Atty. Gen. v School Committee of Taunton, 7
Mass App 226, 386 NE2d 1295, 5 Media L R 1073; State ex rel. Board of Public Utilities
v Crow (Mo App) 592 SW2d 285, 5 Media L R 2574.
434, app den 126 Ill 2d 558, 133 Ill Dec 668, 541 NE2d 1106.
But see Rowen v Santa Clara Unified School Dist. (1st Dist) 121 Cal App 3d 231, 175
Cal Rptr 292; and Hinds County Bd. of Supervisors v Common Cause of Mississippi
(Miss) 551 So 2d 107, where independent contractors were not exempted from the public
meetings statutes.
Footnote 40. Re Hutchinson (Minn App) 440 NW2d 171.
Footnote 41. Reno v Reno Newspapers, Inc., 105 Nev 886, 784 P2d 974, 17 Media L R
2150.
Footnote 42. Neal v Pike Township (Ind App) 530 NE2d 103.

Footnote 43. Board of Educ. v Freedom of Information Com., 217 Conn 153, 585 A2d
82.
As to meetings of agencies with their attorneys, see § 104.
Footnote 44. Kilgore v R. W. Page Corp., 261 Ga 410, 405 SE2d 655, 102-145 Fulton
County D R 12B, 19 Media L R 1063.
Footnote 45. Vicksburg v Vicksburg Printing & Pub. Co. (Miss) 434 So 2d 1333, 9
Media L R 2279.
Footnote 46. Berry v Peoples Broadcasting Corp. (Ind) 547 NE2d 231, 17 Media L R
1518, companion case (Ind) 547 NE2d 235, 17 Media L R 1521 and reh den (Ind) 17
Media L R 1526.
As to notice of executive sessions, see § 105.
Footnote 47. Berry v Peoples Broadcasting Corp. (Ind) 547 NE2d 231, 17 Media L R
Media L R 1526.
See Shirley v Chagrin Falls Exempted Village Schools Bd. of Education (CA6 Ohio) 521
F2d 1329, 11 BNA FEP Cas 549, 10 CCH EPD ¶ 10390, cert den 424 US 913, 47 L Ed
2d 317, 96 S Ct 1111, 12 BNA FEP Cas 343, 11 CCH EPD ¶ 10700, stating that,
although formal action must be taken at an open meeting, agencies may also meet in
executive session if no formal action is to be taken at the meeting.
Footnote 48. McLeod v Chilton (App) 132 Ariz 9, 643 P2d 712, cert den 459 US 877,
74 L Ed 2d 141, 103 S Ct 172; Benevolent & Protective Order of Elks, Lodge No. 65 v
City Council of Lawrence, 403 Mass 563, 531 NE2d 1254, later proceeding 33 Mass App
701, 604 NE2d 715; Pokorny v Schuyler, 202 Neb 334, 275 NW2d 281; Board of
Education v Brown, 233 NJ Super 242, 558 A2d 520.
 Observation: Ratification of a decision made in violation of the open meetings act

does not have retroactive effect. Dallas County Flood Control Dist. No. 1 v Cross (Tex
App Dallas) 815 SW2d 271, writ den (Dec 11, 1991).
Footnote 49. Board of Educ. v Freedom of Information Com., 217 Conn 153, 585 A2d
82; Kilgore v R. W. Page Corp., 261 Ga 410, 405 SE2d 655, 102-145 Fulton County D R
12B, 19 Media L R 1063; Illinois News Broadcasters Asso. v Springfield (5th Dist) 22 Ill
App 3d 226, 317 NE2d 288; Booth Newspapers v University of Mich. Bd. of Regents,
192 Mich App 574, 481 NW2d 778, 20 Media L R 1154, app gr, motion gr 441 Mich
881, 491 NW2d 825 and affd in part and revd in part on other grounds, remanded 444
Mich 211, 507 NW2d 422; Hills Dev. Co. v Bernards, 229 NJ Super 318, 551 A2d 547;
Acker v Texas Water Com. (Tex) 790 SW2d 299, reh overr (Jun 13, 1990).
551 So 2d 107.

551 So 2d 107.
434, app den 126 Ill 2d 558, 133 Ill Dec 668, 541 NE2d 1106.
§ 104 --Meetings between attorney and agency
View Entire Section

Go to Supplement
A public meetings statute may allow for private meetings between an agency and its
attorney particularly to discuss litigation strategy, where an open meeting might have an
adverse impact on the litigation position. 53 Even in the absence of an express statutory
exemption in the open meetings act, some courts have held that private meetings between
an agency and its counsel are allowed 54 particularly in cases where the
communication concerns a pending investigation, claim, or action, and where the
disclosure of matters discussed would seriously impair the ability of the public body to
process the claim or conduct the pending investigation, litigation, or proceeding in the
public interest. 55 Notice of the meeting may not be required, 56 but this does not mean
that anytime the attorney is present the agency may go into closed session. 57 Some
courts state that at the heart of this exception is the principle of attorney-client
confidentiality. 58 Nevertheless, other courts disagree with the contention that
attorney-client confidentiality is at stake, stating that the open meeting law, as applied to
attorney-agency meetings, does not require the attorney to betray confidences, but merely
restricts his or her capacity to deal with the client in the usual and customary manner. 59
The exception for meetings with agency counsel is not universally accepted. There is
some authority holding that in the absence of a statutory exception, agency meetings with
its attorney must be public; 60 and some states have taken the approach that a
governmental entity may meet in executive session with its attorney to get advice, but
once members of the public body begin discussing the merits of the proposed legislation
or what action to take based on the advice of the attorney, discussion must be open to the
public. 61
§ 104 --Meetings between attorney and agency [SUPPLEMENT]
Footnotes
Footnote 53. Doherty v School Committee of Boston, 386 Mass 643, 436 NE2d 1223;
Booth Newspapers, Inc. v Regents of University of Mich., 93 Mich App 100, 286 NW2d
55; Whispering Woods at Bamm Hollow, Inc. v Middletown Planning Bd., 220 NJ Super
161, 531 A2d 770 (discussion of possible settlement within litigation exception).
Footnote 54. Fiscal Court of Jefferson County v Courier-Journal & Louisville Times Co.
(Ky) 554 SW2d 72; Cooper v Williamson County Bd. of Educ. (Tenn) 746 SW2d 176,
appeal after remand (Tenn) 803 SW2d 200, reh overr (Tenn) 1990 Tenn LEXIS 420 and
cert den (US) 114 L Ed 2d 100, 111 S Ct 2013.
Footnote 55. Minneapolis Star & Tribune Co. v Housing & Redevelopment Authority,
310 Minn 313, 251 NW2d 620 (stating that the attorney-client exception would almost
never extend to the mere request for general legal advice or opinion by a public agency);
Oklahoma Asso. of Municipal Attorneys v State (Okla) 577 P2d 1310; Herald Pub. Co. v
Barnwell (App) 291 SC 4, 351 SE2d 878 (attorney-client exception applies when future
litigation is a real possibility).
Footnote 56. Jefferson County Board of Education v Courier-Journal (Ky App) 551
SW2d 25; Rogers v State Bd. of Optometry (Tex Civ App Eastland) 619 SW2d 603.
Footnote 57. Jefferson County Board of Education v Courier-Journal (Ky App) 551
SW2d 25.
Footnote 58. Oklahoma Asso. of Municipal Attorneys v State (Okla) 577 P2d 1310.
Footnote 59. McKay v Board of County Comrs., 103 Nev 490, 746 P2d 124.
Footnote 60. Laman v McCord, 245 Ark 401, 432 SW2d 753; Simon v Auburn, Bd. of
Zoning Appeals (Ind App) 519 NE2d 205; Detroit News, Inc. v Detroit, 185 Mich App
296, 460 NW2d 312, 17 Media L R 2333, app den 437 Mich 1003, 469 NW2d 304;
McKay v Board of County Comrs., 103 Nev 490, 746 P2d 124.
Footnote 61. Prescott v Chino Valley, 166 Ariz 480, 803 P2d 891, 76 Ariz Adv Rep 3.
§ 105 Notice
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Go to Supplement
Some open meetings statutes require that notice of meetings be given. 62 Where statutes
require notice to be given in a certain manner, courts have held that such statutes demand
literal compliance. 63 Other public meetings statutes, however, do not require notice to
the public of governmental meetings. 64
Where notice is required, sometimes the public meetings statute also requires the notice
to contain the agenda of the meeting, 65 and business must be limited to matters stated in
the agency's filed agenda. 66 In addition, some courts examine the intent of the agency
in giving notice in a particular manner. 67
Adequate notice of executive sessions may also be required. 68 Public meetings

statutes may require that resolutions calling for such executive sessions generally indicate
what is to be discussed during the executive meeting. 69 A public agency may be
required to give notice in a regular open meeting of what is to be discussed at a closed
meeting, and the reason therefor. 70 Acts that are voidable due to the fact that the
resolution calling the session did not indicate what was to be discussed may be ratified by
a subsequent special meeting. 71
Persons who have notice of a meeting and attend the meeting may be required to object
specifically to the lack of public notice at the meeting, or be held to have waived the right
to object to the meeting on that ground at a later date. 72
§ 105 ----Notice [SUPPLEMENT]
Case authorities:
Rapid transit agency complied with state open meetings statute requirement that notice be
posted at county courthouse 72 hours prior to meeting, even though courthouse was not
open to public for all 72 hours, as interval spanned weekend. Fielding v Anderson (1995,
Tex App Eastland) 911 SW2d 858, writ den (Apr 25, 1996).
Footnotes
Footnote 62. Smith County v Thornton (Tex) 726 SW2d 2, rehg of cause overr (Apr 8,
1987).
Footnote 63. Smith County v Thornton (Tex) 726 SW2d 2, rehg of cause overr (Apr 8,
1987), holding that a state statute providing that notice of a meeting must be posted in a
place readily accessible to the general public at all times for at least 72 hours preceding
the scheduled time of the meeting required literal compliance.
Footnote 64. Dozier v Norris, 241 Ga 230, 244 SE2d 853.
Supp 84, 600 A2d 1058; Hilliary v State (Okla Crim) 630 P2d 791.
Supp 84, 600 A2d 1058.
But see KCOB/KLVN, Inc. v Jasper County Bd. of Supervisors (Iowa) 473 NW2d 171,
19 Media L R 1113, where it was held that the content of a "tentative" agenda notice is
subject to change.
Footnote 67. Crifasi v Governing Body of Oakland, 156 NJ Super 182, 383 A2d 736,
holding that action taken at regular meeting by a municipal governing body, which action
had not been listed on published agenda, was not per se void, in the absence of showing
that the governing body which published the agenda calculated to deceive or mislead the
public.

Footnote 68. Previdi v Hirsch, 138 Misc 2d 436, 524 NYS2d 643, holding that notice of
an executive session was inadequate where no notice was provided to the news media,
and only a single notice was posted on a bulletin board the day of the meeting.
As to executive sessions, see § 103.
Footnote 70. Reed v Richmond (Ky App) 582 SW2d 651, appeal after remand (Ky App)
602 SW2d 183; Jefferson County Board of Education v Courier-Journal (Ky App) 551
SW2d 25.
Footnote 72. Otey v State, 240 Neb 813, 485 NW2d 153, habeas corpus proceeding (CA8
Neb) 972 F2d 210, application den (US) 120 L Ed 2d 934, 113 S Ct 5, later proceeding
(CA8 Neb) 992 F2d 871, habeas corpus dismissed (CA8 Neb) 5 F3d 1125, reh, en banc,
den (CA8) 1994 US App LEXIS 49, stating that a timely objection permits the public
body to remedy its mistake promptly and defer formal action until the required public
notice can be given.
§ 106 Standing to bring action for possible violation of public meeting law
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Any interested person 73 or any person who might be affected by a decision has standing
to see that the decision is made in compliance with the open meeting law. 74 Courts
have found that resident corporations, 75 and unincorporated associations of residents 76
have standing to bring an action under such laws. Members of the news media 77 and
publishers 78 also may have standing to bring an action with respect to the violation of
an open meetings act, since newspapers have a unique role and interest in observing
government activity and informing the public. 79
§ 106 ----Standing to bring action for possible violation of public meeting law
[SUPPLEMENT]
Case authorities:
Community council of public tenants had standing to challenge HUD's determination that
state's eviction procedures, allowing eviction of tenants accused of criminal activity
without informal grievance hearing, were valid under Housing Act. Yesler Terrace
Community Council v Cisneros (1994, CA9 Wash) 37 F3d 442, 94 CDOS 7006, 94 Daily
Journal DAR 12852.
Footnotes
Footnote 73. Vernon's Ann Civ St art 6252-17(3) (Texas Open Meetings Act).
Footnote 74. Harris v Nordquist, 96 Or App 19, 771 P2d 637.
Footnote 75. Metropolitan Air Research Testing Authority, Inc. v Metropolitan

Government of Nashville & Davidson County (Tenn App) 842 SW2d 611.
Footnote 76. Curve Elementary School Parent & Teacher's Organization v Lauderdale
County School Board (Tenn App) 608 SW2d 855.
Footnote 77. Vernon's Ann Civ St art 6252-17(3) (Texas Open Meetings Act).
Footnote 78. Press-Enterprise, Inc. v Benton Area School Dist., 146 Pa Cmwlth 203, 604
A2d 1221, 19 Media L R 2056.
Footnote 79. Press-Enterprise, Inc. v Benton Area School Dist., 146 Pa Cmwlth 203, 604
A2d 1221, 19 Media L R 2056.
2. Government in the Sunshine Act [107-117]
§ 107 Generally
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The federal open meetings law is contained in the Government in the Sunshine Act. 80
The Government in the Sunshine Act was enacted to assure that the public may obtain to
the fullest practicable extent information regarding the decision-making process of the
Federal Government. 81 The Act is designed to provide the public with such
information, while protecting the rights of individuals and the ability of the government
to carry out its responsibilities. 82
Case authorities:
Board subject to state sunshine act was entitled to invoke attorney-client privilege even
though discussions between covered body and its attorney were not expressly exempted
from act's open meetings requirement. Dunn v Alabama State Univ. Bd. of Trustees
(1993, Ala) 628 So 2d 519.
Two member committees of the State Board of Funeral Directors, the member of which
received compensation for their attendance at committee meetings, were "state bodies"
withing the meaning of the Open Meetings Law and thus subject to its requirements.
Funeral Sec. Plans v State Bd. of Funeral Directors & Embalmers (1993, 3rd Dist) 16 Cal
App 4th 1672, 21 Cal Rptr 2d 92, 93 CDOS 5112, 93 Daily Journal DAR 8597, review gr
Funeral Sec. Plans v State Bd. of Funeral Directors (1993, Cal) 24 Cal Rptr 2d 73, 860
P2d 465, 93 CDOS 7843, 93 Daily Journal DAR 13373.
Decision by school board acting in executive session to choose three of five school
district superintendent candidates to go forward for further consideration was not
"official action," within meaning of state sunshine act provision requiring "official
action" to be taken publicly, since decision merely advanced selection process and did
not commit board to particular course of action. Morning Call v Board of Sch. Directors
(1994, Pa Cmwlth) 642 A2d 619, 22 Media L R 2084.
Footnotes
Footnote 80. 5 USCS § 552b.
Footnote 81. Act Sept 13, 1976, PL 94-409, § 2, 90 Stat 1241.
Footnote 82. Act Sept 13, 1976, PL 94-409, § 2, 90 Stat 1241.
§ 108 Open meetings; definition of "agency" and "member"
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The Government in the Sunshine Act generally provides that except as provided in the
statute, every portion of every meeting of an agency must be open to public observation,
and members of an agency may not jointly conduct or dispose of agency business other
than in accordance with the law. 83
As used in the open meetings law, an agency is defined as including any executive
department, military department, government corporation, government controlled
corporation, or other establishment in the executive branch of the government (including
the Executive Office of the President), or any independent regulatory agency. 84
Where a governmental body is not an agency under the Freedom of Information Act, 85
it follows of necessity that it is not an agency under the terms of the Sunshine Act, since
the Sunshine Act expressly incorporates the Freedom of Information Act definition of
agency. 86
In addition, for the purpose of the open meetings law, an agency must be headed by a
collegial body composed of two or more individual members, a majority of whom are
appointed to such position by the President with the advice and consent of the Senate. 87
If an agency is legally constituted as a collegial body, the fact that its actual mode of
operation is not collegial weighs less heavily in the court's analysis of whether it is an
"agency" than it would otherwise. 88
The term agency also includes any subdivision of an agency described above that is
authorized to act on behalf of the agency. 89
A "member" is an individual who belongs to a collegial body heading an agency. 90

However, it has been held that a board or panel that does not contain members of an
agency is not a subdivision of an agency under the Sunshine Act, meaning that the Act
does not apply to hearings of a licensing board which does not contain any members of
the agency. 91
§ 108 ----Open meetings; definition of "agency" and "member" [SUPPLEMENT]
Case authorities:
Two-member subcommittees of state funeral board were state agencies subject to state
open meeting act, although one section of act limited act's coverage to bodies having
three or more members, since another section of act extended act's coverage to bodies
compensated by state, and funeral board compensated subcommittee members. Funeral
Security Plans, Inc. v State Bd. of Funeral Directors & Embalmers (1994, 3rd Dist) 28
Cal App 4th 1470, 35 Cal Rptr 2d 36, 94 CDOS 7747, 94 CDOS 7802, 94 Daily Journal
DAR 14180, mod, reh den (3rd Dist) 30 Cal App 4th 83g, 94 CDOS 8559, 94 Daily
Journal DAR 15817 and review den, op withdrawn by order of ct (Cal) 95 CDOS 187.
State open meetings law did not apply to meeting at which dismissal of public officer was
under consideration. Brennan v Chatham County Comm'rs (1993) 209 Ga App 177, 433
SE2d 597, 93 Fulton County D R 2303.
Meetings of Olympic Task Force Selection Committee (OTFSC), which consisted of

members of governing body of Atlanta Housing Authority (AHA) and other AHA
executives, came within purview of open meeting act where OTFSC was formed with
knowledge and approval of AHA and was vehicle for AHA to carry out its
responsibilities in reviewing and recommending proposals. Jersawitz v Fortson (1994)
213 Ga App 796, 446 SE2d 206, 94 Fulton County D R 2252.
Question of fact existed as to whether county board of zoning appeals violated state open
meetings act, since board acknowledged having nonpublic meetings, and it was uncertain
whether board took official action at such meetings. Crosland v Butts County Bd. of
Zoning Appeals (1994) 214 Ga App 295, 448 SE2d 454, 94 Fulton County D R 2637,
reconsideration den (Jul 29, 1994).
In action by school board member and his wife against school board alleging board's
resolution against videotaping meetings violated open meetings act, board's resolution
did violate open meetings act since act provides that person attending meeting has right
to use recording devices, and where there was no evidence of legislative intent not to
classify video cameras as recording devices. Hain v Board of Sch. Directors (1994, Pa
Cmwlth) 641 A2d 661, summary op at (Pa Cmwlth) 17 PLW 293.

Neither governor nor five-member trial court nominating commission was "agency," as
defined in open meeting law, since governor was not body, and commission was not
created pursuant to statute, purpose was not essential governmental function, and it did
not have governmental authority. Ristau v Casey (1994, Pa Cmwlth) 647 A2d 642.
Under state open meetings act, school teacher did not have rights greater than those of
public at large with respect to notice required of meeting at which nonrenewal of
teacher's contract was to be addressed in executive session, as requirement of
personalized notice would improperly implant due process component into act. Stockdale
v Meno (1993, Tex App Austin) 867 SW2d 123, writ den (Apr 6, 1994).
State motor vehicle commission, in hearing auto dealer's contested application for
permission to move dealership, did not violate state open meetings act, although both
parties' lawyers left meeting, which was open to public, after commission reached what it
thought to be its final decision on matter, and later in meeting commission made changes
to its findings of fact, although not to its decision; such alterations in findings after
attorneys' departure did not render meeting closed. Charlie Thomas Ford v A. C. Collins
Ford (1995, Tex App Austin) 912 SW2d 271, writ dism (Apr 4, 1996).
Two meetings, at which school board discussed matters but neither took vote nor reached
collective decision on any issue, were not violative of state open meetings statute, as
statute applied only where covered body took "action" at meeting. Ward v Board of
Trustees (1993, Wyo) 865 P2d 618.
Footnotes
Footnote 83. 5 USCS § 552b(b).
Footnote 84. 5 USCS § 552b(a)(1), which incorporates the definition of "agency" in 5

USCS § 552(f).
Annotation: What is "agency" within meaning of Federal Sunshine Act (5 USCS §

552b), 68 ALR Fed 842.
Footnote 85. For general discussion of the federal Freedom of Information Act, see 37A
Am Jur 2d, Freedom of Information Acts.
Footnote 86. Rushforth v Council of Economic Advisers, 246 US App DC 59, 762 F2d
1038, 11 Media L R 2075.
Law Reviews: Cox, A Walk Through § 552 of the Administrative Procedure Act: The
Freedom of Information Act; The Privacy Act; and the Government in the Sunshine
Act. 46 U Cin LR 969 (1978).
Footnote 87. 5 USCS § 552b(a)(1).
1038, 11 Media L R 2075.

Footnote 91. Hunt v Nuclear Regulatory Com. (CA10 Okla) 611 F2d 332, cert den 445
US 906, 63 L Ed 2d 322, 100 S Ct 1084 and (criticized on other grounds by Edwards v
Valdez (CA10 Colo) 789 F2d 1477).
§ 109 Definition of "meeting"
View Entire Section

Go to Supplement
For purposes of the Federal Government in the Sunshine Act, a "meeting" is a

deliberation of a quorum of the agency that may result in the joint conduct or disposition
of official agency business. 92 The statutory language limiting the Act's application to
deliberations that "determine or result in" the conduct of "official agency business"
contemplates discussions that effectively predetermine official actions. Such discussions
must be sufficiently focused on discrete proposals or issues as to cause or be likely to
cause the individual participating members to form reasonably firm positions regarding
matters pending or likely to arise before the agency. 93 Thus, the deliberations of a
quorum of a subdivision of an agency upon matters not within the subdivision's formally
delegated authority do not constitute "meetings" within the meaning of the Sunshine Act,
since such deliberations cannot determine or result in joint conduct or disposition of
official agency business. 94 Similarly, a series of joint planning conferences do not
constitute meetings "of an agency" within the meaning of the Sunshine Act, where the
sessions are not convened by the regulatory agency, and are not subject to the agency's
unilateral control. 95 Nor does a conversation between a member of an agency and
members of the regulated industry constitute a "meeting" under the open meetings
provisions of the Sunshine Act, although such a conversation may constitute an ex parte
contact. 96
§ 109 ----Definition of "meeting" [SUPPLEMENT]
Case authorities:
Filling of vacancy on school board by majority vote was "appointment," and thus
discussions pertaining to appointment could be discussed in closed meeting of school
board under Sunshine Act; deliberations pertaining to process by which vacancy was
filled and qualifications of applicants for vacancy were conducted in executive session.
Cumberland Publishers v Carlisle Area Bd. of Sch. Directors (1994, Pa Cmwlth) 646
A2d 69.
Footnotes

Footnote 93. FCC v ITT World Communications, Inc., 466 US 463, 80 L Ed 2d 480,
104 S Ct 1936, 10 Media L R 1685.
104 S Ct 1936, 10 Media L R 1685.
104 S Ct 1936, 10 Media L R 1685.
Footnote 96. Action for Children's Television v FCC, 183 US App DC 437, 564 F2d 458,
2 Media L R 2120, later proceeding (DC Dist Col) 546 F Supp 872, later proceeding 244
US App DC 190, 756 F2d 899, 11 Media L R 2080.
§ 110 No requirement that meetings be held
View Entire Section

While the Federal Government in the Sunshine Act governs joint deliberative meetings
by agency members, it does not require that meetings be held in order to conduct agency
business; rather, the statute requires only that, if meetings are held, they be open to the
public. 97 Consequently, the Sunshine Act does not proscribe agencies from
conducting business by sequential, notational voting, rather than by gathering at a
meeting for deliberation and decision. 98
Footnotes
Footnote 97. Amrep Corp. v FTC (CA10) 768 F2d 1171, 1985-2 CCH Trade Cases ¶
66713, cert den 475 US 1034, 89 L Ed 2d 352, 106 S Ct 1167, 1986-1 CCH Trade
Cases ¶ 66959, later proceeding (SD NY) 705 F Supp 119, 1989-2 CCH Trade Cases ¶
68654, vacated, in part, app den, on reconsideration (SD NY) 1990 US Dist LEXIS 418;
Railroad Com. of Texas v United States, 246 US App DC 352, 765 F2d 221.
Footnote 98. Railroad Com. of Texas v United States, 246 US App DC 352, 765 F2d 221.
§ 111 Exemptions from open meeting requirement
View Entire Section

Go to Supplement
The Government in the Sunshine Act contains 10 exemptions from the open meeting

requirement, which are similar to the limitations on the disclosure of information
prescribed by the Freedom of Information Act (FOIA). 99 However, there is an
important difference between the Sunshine Act's exemptions and those in the FOIA.
Unlike the FOIA, which specifically exempts "predecisional" memoranda and other
documents on the premise that government cannot "operate in a fish bowl," the Sunshine
Act was designed to open the predecisional process in multimember agencies to the
public. 1
Under the Sunshine Act's exemptions, an agency is permitted, but is not required, to close
a meeting. However, the open meetings provisions of the Sunshine Act do not authorize
the closing of any agency meeting or portion thereof which any other provision of the law
requires to be open. 2
The exemptions from the Sunshine Act's open meeting requirement are construed
narrowly by the courts, 3 and the courts have recognized that the Act establishes a
presumption that meetings should be held in the open. 4 Even if one or more
exemptions may justify closure of a portion of a particular meeting, the agency must
attempt to segregate the nonexempt from the exempt portions, and close only those
portions of the meeting involving exempt topics, unless, after making such efforts, an
agency can persuade a court that segregation of exempt and nonexempt topics would
make a coherent discussion impossible. 5 It is impermissible for an agency to create
blanket exemptions for particular categories or types of agency action. 6 Furthermore,
even if a meeting falls within one of the enumerated exemptions, the meeting must
remain open to the public if the public interest so requires, 7 but this "public interest"
exception to the Act's exemptions is left to the unreviewable discretion of the agency. 8
An agency may close a portion of a meeting if it is discussing the following matters:
(1) Matters that are specifically authorized under criteria established by Executive Order
to be kept secret in the interests of national defense or foreign policy and are in fact
properly classified pursuant to such Executive Order. 9 An agency has the power to
receive, in camera, properly classified secret information that bears on the national
defense and need not disclose this material or the manner in which it entered into the
agency's decision. 10
(2) Matters relating solely to the internal personnel rules and practices of an agency. 11
(3) Matters specifically exempted from disclosure by statute, other than the Freedom of
Information Act, provided that such statute requires that the matters be withheld from the
public in such a manner as to leave no discretion on the issue or establishes particular
criteria for withholding material or refers to particular types of matters to be withheld. 12
Exemption 3 does not extend to matters on which the agency is authorized by other
statutes to withhold material on general discretionary grounds, such as in the public
interest. 13
(4) Privileged or confidential trade secrets and commercial or financial information

obtained from a person. 14
(5) Accusations of crimes or matters relating to the formal censure of any person. 15
(6) Information of a personal nature where disclosure would constitute a clearly

unwarranted invasion of personal privacy. 16 An agency may not use this exemption to
shelter substandard performance by government executives or to shield itself from
political controversy involving the agency and its employees about which the public
should be informed. 17
(7) Investigatory records compiled for law enforcement purposes or information which if
written would be contained in such records, but only to the extent that production would
interfere with the enforcement proceedings, deprive a person of a right to a fair trial or an
impartial adjudication, constitute an unwarranted invasion of personal privacy, disclose
the identity of a confidential source (and, under certain circumstances, confidential
information disclosed by the source), disclose investigative techniques and procedures, or
endanger the life or physical safety of law enforcement personnel. 18
(8) Information contained in or related to bank examination reports. 19
(9) Prematurely disclosed matters that would (a) lead to significant financial speculation
in currencies, securities, or commodities, or significantly endanger the stability of any
financial institution; or (b) be likely to significantly frustrate implementation of proposed
agency action, except where the agency has already disclosed the content or nature of its
proposed action or the agency is required by law to make such disclosure on its own
initiative prior to taking final agency action. 20 It has been held that the exemption
permitting the closure of meetings to prevent premature disclosure of information likely
to significantly frustrate implementation of a proposed agency action is limited to those
situations in which disclosure of the agency's proposals or negotiating position could
affect private decisions by parties other than those who manage the federal government.
21
(10) Discussions relating to the institution of investigations or litigation, including

discussions specifically concerning the issuance of a subpoena, participation in a civil
action or proceeding, participation in arbitration, appearances in foreign or international
tribunals, and commencement of formal agency adjudication. 22
Where an agency's decision to close a meeting is challenged, the agency bears the burden
of establishing that its meeting is subject to at least one of the ten statutorily defined
grounds for closure. 23
§ 111 ----Exemptions from open meeting requirement [SUPPLEMENT]
Case authorities:
U.S. Sentencing Commission is exempt from Federal Advisory Committee Act which
requires advisory committees to open their meetings. Washington Legal Found. v United
States Sentencing Comm'n (1994, App DC) 17 F3d 1446, 22 Media L R 1338.
Claim of Inspector General of Legal Services Corporation (LSC) against LSC arising
from LSC's nonrenewal of its employment contract is granted summarily, where LSC's
Board of Directors met in executive session to discuss plaintiff's employment, because
discussion of employment status of high ranking official is not minor or trivial matter, so
5 USCS § 552b(c)(2) did not permit closure of meeting. Wilkinson v Legal Servs. Corp.
(1994, DC Dist Col) 865 F Supp 891.
Statute requiring legal memorandum to justify closed session of State Board of Funeral
Directors required proof of compelling necessity for closed session and description of
facts and circumstances which would prejudice the state body's litigation position if the
meeting were open; it was not sufficient vaguely to refer to pending litigation, nor to rely
on a previous memorandum. Funeral Sec. Plans v State Bd. of Funeral Directors &
Embalmers (1993, 3rd Dist) 16 Cal App 4th 1672, 21 Cal Rptr 2d 92, 93 CDOS 5112, 93
Daily Journal DAR 8597, review gr Funeral Sec. Plans v State Bd. of Funeral Directors
(1993, Cal) 24 Cal Rptr 2d 73, 860 P2d 465, 93 CDOS 7843, 93 Daily Journal DAR
13373.
Statutory exception to open meetings law for deliberations on a decision to be reached

based on evidence introduced at a required proceeding under the Administrative
Procedure Act did not empower State Board of Funeral Directors to conduct closed
deliberations at which new evidence is presented to support modification of penalties
previously imposed, or exempt deliberations on stipulated settlements based on an agreed
statement of facts, or on termination of probation, reinstatement of a license, or reduction
of a penalty not based on evidence introduced at an administrative proceeding; nor does
an original administrative proceeding leading to the imposition of a penalty exempt
subsequent proceedings from the open meetings law. Funeral Sec. Plans v State Bd. of
Funeral Directors & Embalmers (1993, 3rd Dist) 16 Cal App 4th 1672, 21 Cal Rptr 2d
92, 93 CDOS 5112, 93 Daily Journal DAR 8597, review gr Funeral Sec. Plans v State
Bd. of Funeral Directors (1993, Cal) 24 Cal Rptr 2d 73, 860 P2d 465, 93 CDOS 7843, 93
Daily Journal DAR 13373.
Footnotes
Footnote 99. 5 USCS § 552b(c).
As to the federal Freedom of Information Act, generally, see 66 Am Jur 2d, Records and
Annotation: Construction and application of exemptions, under 5 USCS § 552b(c), to

open meeting requirement of Sunshine Act, 82 ALR Fed 465.
Footnote 1. Common Cause v Nuclear Regulatory Com., 218 US App DC 262, 674 F2d
921, 8 Media L R 1190.
Footnote 2. 5 USCS § 552b(l).
921, 8 Media L R 1190; Pacific Legal Foundation v Council on Environmental Quality,
205 US App DC 131, 636 F2d 1259, 15 Envt Rep Cas 1067, 10 ELR 20919, costs/fees
proceeding (DC Dist Col) 17 Envt Rep Cas 1173.
Footnote 4. Philadelphia Newspapers, Inc. v Nuclear Regulatory Com., 234 US App DC

96, 727 F2d 1195, 82 ALR Fed 449 (criticized on other grounds by Clark-Cowlitz Joint
Operating Agency v Federal Energy Regulatory Com., 255 US App DC 9, 798 F2d 499);
Common Cause v Nuclear Regulatory Com., 218 US App DC 262, 674 F2d 921, 8 Media
L R 1190.

Operating Agency v Federal Energy Regulatory Com., 255 US App DC 9, 798 F2d 499).
921, 8 Media L R 1190; Pacific Legal Foundation v Council on Environmental Quality,
205 US App DC 131, 636 F2d 1259, 15 Envt Rep Cas 1067, 10 ELR 20919, costs/fees
proceeding (DC Dist Col) 17 Envt Rep Cas 1173.
Footnote 7. 5 USCS § 552b(c).

255 US App DC 9, 798 F2d 499.
Footnote 9. 5 USCS § 552b(c)(1).
Footnote 10. In Camera Presentation of Classified Information (1978) FCC 78-775,

Docket No. 18875, 44 AdL2d 502.
921, 8 Media L R 1190.
921, 8 Media L R 1190.
Practice References 4 Federal Procedure, L Ed, Banking and Financing §§ 8:1 et seq.
921, 8 Media L R 1190.
Operating Agency v Federal Energy Regulatory Com., 255 US App DC 9, 798 F2d 499).

§ 112 Procedure for closing meeting
View Entire Section

There are two conditions on the closing of a meeting: First, the members of an agency
must vote to close a meeting or portion thereof, and must comply with the voting
requirements specified in the Federal Government in the Sunshine Act. 24 A party who
believes that his interests may be directly affected by a portion of a meeting, because
private information or information regarding a crime or a criminal investigation is to be
discussed, 25 may request that the agency close its meeting, but a recorded vote is still
required. 26 The agency must make public a written copy of its vote and full
explanation of its action closing the meeting. 27 If a majority of an agency's business
consists of regulating financial institutions or preparing adjudication, it may provide by
regulation for the closing of meetings or portions thereof in which such topics are
discussed. 28 If such regulations are enacted, the voting requirements and the statutory
exemptions to the open meeting department do not apply to any portion of a meeting to
which the regulations apply, provided that the agency, except to the extent that such
information is exempt from disclosure under the statute, provides the public with the
public announcement of the time, place, and subject matter of the meeting and of each
portion of the meeting at the earliest practicable time. 29
Second, the general counsel and other chief legal officer of the agency must certify that
in his opinion, the meeting or portion thereof may properly be closed, citing the proper
exemption under the statute. 30
Footnotes
Footnote 24. 5 USCS § 552b(d).
Footnote 25. See exceptions (5), (6), and (7) § 111.
Footnote 26. 5 USCS § 552b(d)(2).
Forms: Request for closed meeting. 1A Federal Procedural Forms, L Ed,

Administrative Procedure § 2:5.
Footnote 30. 5 USCS § 552b(f)(1).

§ 113 Public announcement of meetings
View Entire Section

The Federal Government in the Sunshine Act contains detailed provisions regarding
public announcements of government meetings. 31 Such notice must be given whether
the meeting is to be opened or closed, 32 and must be published in the Federal Register.
33
Footnotes
Footnote 31. 5 USCS § 552b(e)(1).
§ 114 Court actions; challenging agency regulations or failure to enact them
View Entire Section

Court actions may be commenced to insure that an agency promulgates proper

regulations implementing the open meetings provisions of the Federal Government in the
Sunshine Act. If an agency does not promulgate the regulations within time limits set by
statute, any person may bring a proceeding in the United States District Court for the
District of Columbia to require that the agency promulgate the regulations. 34 Thus,
an attorney has standing to bring an action under federal law 35 to require an agency to
promulgate regulations implementing the open meetings requirements. 36 Such
regulations, when promulgated, may be reviewed in the United States Court of Appeals
for the District of Columbia Circuit. 37 Subject to time limitations provided by other
statutes, any person may bring a proceeding in the United States Court of Appeals for the
District of Columbia to set aside agency regulations that are not in accord with the
requirements of the Act and to require the promulgation of regulations that are in accord
with the Act. 38
Footnotes
Footnote 34. 5 USCS § 552b(g).
Annotation: Availability of judicial review of agency compliance with Sunshine Act

(5 USCS § 552b(g) and (h)), 84 ALR Fed 251.
1038, 11 Media L R 2075.
§ 115 --For injunctive, declaratory, or other relief
View Entire Section

The District Courts have jurisdiction to enforce the requirements of the Federal
Government in the Sunshine Act by declaratory judgment, injunctive relief, or other
relief that may be appropriate. 39 Actions for such relief may be brought by any
person against an agency prior to, or within 60 days after, the meeting in which the
violation arises. 40 However, a meeting must actually be scheduled as a closed meeting
or actually closed by an agency before any such action is commenced. 41 If public
notice of a meeting is not initially provided by the agency in accordance with the
requirements of the law, an action may be instituted at any time prior to 60 days after any
public announcement of the meeting was made. 42 So long as the action is commenced
within the 60-day time limit, the case is not rendered moot by the fact that the meeting
has occurred and the court can no longer enjoin it, since a court may still declare the
illegality of the agency's action and order that the transcript of the proceedings be made
public. 43 Such actions may be brought in the Federal District Court for the district in
which the agency meeting is held or where the agency has its headquarters, or in the
District Court for the District of Columbia. 44
When such an action is commenced, the defendant must serve an answer within 30 days
after the service of the complaint, and has the burden to sustain the action. 45 In
deciding the case, the court may examine in camera any portion of the transcript,
electronic recording, or minutes of the meeting and may take additional evidence as it
deems necessary. 46 After hearing the case, the court, having due regard for orderly
administration and the public interest as well as the interests of the parties, may grant
such equitable relief as it deems appropriate, including the granting of an injunction
against further violations or ordering the agency to make available to the public such
portion of the transcript, recording, or minutes of the meeting that may not be withheld
under the exceptions to the open meetings law. 47
 Caution: While a court having jurisdiction to review agency action has the power to
afford such relief as it deems appropriate, a District Court hearing an original case
challenging a violation of the open meetings law 48 only has the power to enjoin
future violations, grant declaratory relief, and open the transcript, and does not have
the power to set aside, enjoin, or invalidate any agency action other than the action to
close a meeting or withhold information, even though the open meetings law might
have been violated in the course of the agency's deliberations. 49
Footnotes
Footnote 39. 5 USCS § 552b(h)(1).

Footnote 41. Johnston v Nuclear Regulatory Com. (CA7 Ill) 766 F2d 1182, 84 ALR Fed
235.
Footnote 43. Hunt v Nuclear Regulatory Com. (ND Okla) 468 F Supp 817, affd (CA10
Okla) 611 F2d 332, cert den 445 US 906, 63 L Ed 2d 322, 100 S Ct 1084 and
(criticized on other grounds by Edwards v Valdez (CA10 Colo) 789 F2d 1477).
§ 116 --For judicial review of agency action
View Entire Section

Violations of the Federal Government in the Sunshine Act may be raised in any federal
court otherwise authorized by law to review the particular agency action, at the
application of any person properly participating in the proceeding pursuant to other
applicable law. 50 Such a court may afford such relief as it deems appropriate. 51
However, the Sunshine Act, while it does not prohibit a court from vacating an agency's
substantive action, strongly indicates a congressional policy that release of transcripts is
to be the normal remedy for violations of the open meetings provisions, and it has been
noted that a court should deviate from the norm and invalidate agency action only where
a violation is intentional, prejudicial, and of a serious nature. 52

Footnotes
As to judicial review of agency action, generally, see §§ 415 et seq.

§ 117 Attorneys' fees
View Entire Section

A party who substantially prevails in an action brought under the Federal Government in
the Sunshine Act may be awarded reasonable attorneys' fees and other litigation costs
reasonably incurred. Costs may be assessed against the plaintiff only where the court
finds that the suit was initiated by the plaintiff primarily for frivolous or dilatory
purposes. If an agency loses, costs may be assessed against the United States. 53 An
agency must report its compliance with the law to Congress, and must also indicate
whether it has paid any litigation costs. 54
Footnotes
Footnote 53. 5 USCS § 552b(i).
Footnote 54. 5 USCS § 552b(j).
C. Agency Minutes, Records and Reports [118-121]
Research References
5 USCS §§ 301, 552b; 44 USCS §§ 1501, 1505, 1507, 1508, 3501 et seq.
§ 118 Generally

View Entire Section
Statutes may have specific requirements for the keeping of minutes or records. 55 In the
absence of a statute requiring the keeping of a written record of proceedings, some cases
hold that a written record of proceedings is not necessary. 56 However, where an
administrative agency is required to base its action on findings to be made after a hearing,
a definite record must be made of all evidence produced before the agency and all matters
upon which it bases its order. 57 A failure to make and preserve such a record for the
purposes of administrative 58 as well as judicial 59 review may constitute a denial
of a fair hearing.
Footnotes
Footnote 55. Union Light, Heat & Power Co. v Public Service Com. (Ky) 271 SW2d 361
(full and complete record shall be kept of all contested proceedings had before the
commission); Re Weston Ben. Assessment Special Road Dist. (Mo App) 294 SW2d 353;
Harris v Nordquist, 96 Or App 19, 771 P2d 637, (statutes may require minutes to be kept
for a certain period of time, for instance, in the absence of evidence that a longer time is
required, one year may be a reasonable time).
Footnote 56. United States v Fillebrown, 32 US 28, 7 Pet 28, 8 L Ed 596 (board to
administer navy hospital fund); Douglas County v State Board of Equalization &
Assessment, 158 Neb 325, 63 NW2d 449 (interested party is not prevented from having a
reporter and making a bill of exceptions of all or any part of the evidence).
Footnote 57. Colteryahn Sanitary Dairy v Milk Control Com., 332 Pa 15, 1 A2d 775,
122 ALR 1049.
See Dickinson v United States, 346 US 389, 98 L Ed 132, 74 S Ct 152, holding that,
where a board has found a draft registrant ineligible for some exemption, courts must
search the record for some affirmative evidence to support the board's overt or implicit
finding that a registrant has not painted a complete or accurate picture of his activities.
Footnote 58. Kwock Jan Fat v White, 253 US 454, 64 L Ed 1010, 40 S Ct 566 (decision
of Secretary of Labor denying admission into United States of a Chinese claiming
American citizenship).
Footnote 59. Kwock Jan Fat v White, 253 US 454, 64 L Ed 1010, 40 S Ct 566.
As to admissibility and weight and sufficiency of records and reports of administrative

agencies, and parol evidence as to such matters, see 29 Am Jur 2d, Evidence §§ 991 et
seq., 1027 et seq., 1110.
§ 119 Closed meetings under Federal Government in the Sunshine Act

View Entire Section
If a meeting is closed in accordance with the Federal Government in the Sunshine Act, 60
an agency must maintain a complete transcript or electronic recording which adequately
and fully records the proceedings. 61 In the case of a meeting, or a portion thereof,
closed to the public because reports of bank examinations, information which affects
financial markets, or information regarding impending litigation is to be discussed, the
agency must maintain either a transcript, a recording, or a set of minutes that fully and
clearly describes all matters discussed and accurately summarizes any actions taken and
the reasons therefor. 62 The agency must make promptly available to the public, in a
place easily accessible to the public, the transcript, electronic recording, or minutes
described above, except for such items that contain information which is exempt from
disclosure. 63 Copies of the transcript, minutes, or a transcription of the sound
recording must be furnished to any person at the actual cost of duplication. 64 The
agency must also keep a full copy of such records for at least two years after the meeting
or until one year after the conclusion of any agency proceeding with respect to which the
meeting was held, whichever occurs later. 65
While the Government in the Sunshine Act does not expand or limit rights under the
Freedom of Information Act, 66 the exemptions to disclosure prescribed in the open
meetings statute control any request to copy or inspect the transcripts, recordings, or
minutes of a closed meeting. 67 Nor does the open meetings statute authorize any
agency to withhold from any individual any information, including transcripts,
recordings, or minutes which is accessible under the Privacy Act. 68 Moreover, the
provisions governing open meetings do not constitute authority to withhold information
from Congress. 69
Footnotes
Footnote 60. As to closed meetings under the Government in the Sunshine Act, generally,
see §§ 111, 112.
Footnote 66. As to the Freedom of Information Act, generally, see 37A Am Jur 2d,
Freedom of Information Acts.
Footnote 67. 5 USCS § 552b(k).
Footnote 68. 5 USCS § 552b(m).

As to federal Privacy Act, generally, see 37A Am Jur 2d, Freedom of Information Acts.
Footnote 69. 5 USCS § 552b(l).
§ 120 Inspection of records and papers of administrative agencies
View Entire Section

It is generally accepted that there is no common-law right in all persons to inspect public
records and documents, but if a person has a legitimate purpose, which is not adverse to
the public interest, he or she may have such a right. 70 Apart from a statutory right, a
party to a proceeding before an administrative tribunal in which he or she is entitled to a
hearing may be entitled to inspect the records and data of the tribunal to secure
information or evidence to be used in such hearing, but this right cannot extend to a
general examination that would seriously impede the work of the tribunal. 71
Statutes frequently confer the right to examine the records and papers of administrative
agencies, and in such cases the extent of the right is determined by the statute. 72
Although the federal Housekeeping Statute 73 does not authorize the withholding of
information from, or limiting the availability of records to, the public, it does not bar an
agency from appointing an officer to make determinations under other statutes whether
records may be considered confidential. 74 The right of a member of the public to
inspect agency records may be regulated by the Freedom of Information Act and the
Privacy Act. 75
 Observation: Presidential proclamations or executive orders, and orders, regulations,

rules, certificates, codes of fair competition, licenses, notices, or similar instruments
issued, prescribed, or promulgated by a federal agency that have general applicability
and legal effect must be published in the Federal Register. 76 Filing a document
with the Federal Register for publication constitutes constructive notice of its contents
to persons subject to or affected by it, 77 and publication of such a document creates a
presumption that it was properly issued and is valid. 78 A notice of hearing or
opportunity to be heard published in the Federal Register is good notice to all persons
within the United States and the District of Columbia, except in cases where notice by
publication is insufficient by law. 79 Failure to publish a document does not void that
document where the affected persons received actual notice of its contents. 80 The
contents of the Federal Register must be judicially noticed. 81
Nevertheless, the right to inspect public records, in the absence of statutory direction,
must be exercised subject to such reasonable rules and regulations as it may be necessary
for the custodian to impose in the interest of the orderly government of the office. The
heads of executive departments and military departments and bureaus have the power to
promulgate regulations controlling the custody, use, and preservation of department
records, papers, and property. 82 This gives agencies the power to promulgate rules
governing the copying of records 83 and disclosure of records to other government
agencies. 84
Federal paperwork statutes now provide for the coordination of federal information
requests 85 and direct agencies to cooperate in making information available to other
agencies. 86
Footnotes
Footnote 70. 37A Am Jur 2d, Freedom of Information Acts.
Footnote 71. United States ex rel. St. Louis S. R. Co. v Interstate Commerce Com., 264
US 64, 68 L Ed 565, 44 S Ct 294.
Forms: Complaint, petition, or declaration–Class action on behalf of persons seeking

information from administrative agency–To overturn administrative procedures
denying access to records. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law,
Form 342.
Footnote 72. Pressman v Elgin, 187 Md 446, 50 A2d 560, 169 ALR 646.
Footnote 74. Committee for Nuclear Responsibility, Inc. v Seaborg, 149 US App DC
385, 463 F2d 788, 3 Envt Rep Cas 1210, 1 ELR 20529.
Footnote 75. For a general discussion of the Freedom of Information Act, see 37A Am
Jur 2d, Freedom of Information Acts.
Footnote 76. 44 USCS §§ 1501, 1505.
Footnote 80. United States v Floyd (CA10 Okla) 477 F2d 217, cert den 414 US 1044,
38 L Ed 2d 336, 94 S Ct 550; United States v San Juan Lumber Co. (DC Colo) 313 F
Supp 703, 1970 CCH Trade Cases 72989.
Footnote 83. Re Comingore (DC Ky) 96 F 552, affd 177 US 459, 44 L Ed 846, 20 S Ct
701, 3 AFTR 2678; Re Lamberton (DC Ark) 124 F 446.
Advisory Opinions 25 Op Atty Gen 326; 35 Op Atty Gen 5.
Footnote 84. Bank of America Nat. Trust & Sav. Ass'n v Douglas, 70 App DC 221, 105
F2d 100, 123 ALR 1266.

§ 121 --Prohibition against shielding records from court
View Entire Section

In light of the Supreme Court's pronouncement that executive privilege is not absolute
and must be weighed against the need to subpoena evidence needed for the resolution of
a controversy pending in a court, 87 it appears that an executive officer or agency
cannot shield records from the courts by promulgating regulations under federal law. 88
Instead, a claim of privilege must rest on some specific statute, such as the Freedom of
Information Act, or on a general constitutional basis of separation of powers, and must be
properly asserted and not tend to shelter official misconduct. 89 However, an executive
department can properly promulgate a regulation providing that subordinate employees
cannot disclose agency records, and in such a case, a court has no power to hold the
subordinate employee in contempt for failure to comply with the subpoena directing the
delivery of department records. 90 It has been questioned whether regulations
promulgated under federal law 91 governing the disclosure by an employee of any
information or material acquired while employed by an agency, as part of the
performance of the employee's official duties or because of the employee's official status,
applies to former employees of the agency required to testify in court proceedings; but in
any event, such federal law, which provides that nothing therein authorizes the
withholding of information, cannot create an evidentiary privilege in court. 92
It may be improper to hold a high executive officer, such as the Attorney General, in
contempt for failure to produce department records in court, although other sanctions
specified in the Federal Rules of Civil Procedure might be used. 93 However, an
employee of an agency may be held in contempt for refusing to testify, if the exhibits on
which the questioning is based were never in the agency's files. 94
A court may order production of government records if it finds that the government has
waived the confidentiality of the records, such as by instituting an action, 95 putting a
witness on the stand, 96 disclosing the records to others, 97 or admitting that the head
of the department will produce the records upon receipt of a court order. 98
 Observation: A state court cannot punish an agent of the Federal Government for
complying with a regulation that prohibits the agent from disclosing agency records
without permission of the head of the agency. 99
Footnotes
Footnote 87. United States v Nixon, 418 US 683, 41 L Ed 2d 1039, 94 S Ct 3090 (not

followed on other grounds by United States v Wiley (CA2 NY) 519 F2d 1348) as stated
in United States v Mangan (CA2 NY) 575 F2d 32, 78-1 USTC ¶ 9349, 3 Fed Rules Evid
Serv 315, 41 AFTR 2d 78-1174, cert den 439 US 931, 58 L Ed 2d 324, 99 S Ct 320 and
(not followed on other grounds by Kerttula v Abood (Alaska) 686 P2d 1197) and
(superseded by statute on other grounds as stated in Bourjaily v United States, 483 US
171, 97 L Ed 2d 144, 107 S Ct 2775, 22 Fed Rules Evid Serv 1105) and (superseded by
statute on other grounds as stated in People v Montoya (Colo) 753 P2d 729) and
(superseded by statute on other grounds as stated in United States v Hooks (CA7 Ill) 848
F2d 785, 88-1 USTC ¶ 13771, 25 Fed Rules Evid Serv 1298).
Footnote 88. Black v Sheraton Corp. of America (DC Dist Col) 371 F Supp 97, 18 FR
Serv 2d 563, construing 5 USCS § 301.
As to executive privilege, generally, see 81 Am Jur 2d, Witnesses §§ 525, 533-34.
Footnote 89. Black v Sheraton Corp. of America (DC Dist Col) 371 F Supp 97, 18 FR
Serv 2d 563.
Footnote 90. United States ex rel. Touhy v Ragen, 340 US 462, 95 L Ed 417, 71 S Ct
416.
Footnote 92. Gulf Oil Corp. v Schlesinger (ED Pa) 465 F Supp 913, 26 FR Serv 2d 1283.
Footnote 93. Re Atty. Gen. of United States (CA2 NY) 596 F2d 58, 27 FR Serv 2d 207,
cert den 444 US 903, 62 L Ed 2d 141, 100 S Ct 217, 28 FR Serv 2d 98, later proceeding
(SD NY) 642 F Supp 1357, supp op (SD NY) 666 F Supp 621.
As to sanctions for failure to comply with a discovery order, see 23 Am Jur 2d,
Depositions and Discovery §§ 373 et seq.
As to judicial enforcement of the Freedom of Information Act, see 66 Am Jur 2d,

Records and Recording Laws §§ 43 et seq.
Footnote 94. Giancana v Johnson (CA7 Ill) 335 F2d 372.
Footnote 95. United States ex rel. Touhy v Ragen (CA7 Ill) 180 F2d 321, affd 340 US
462, 95 L Ed 417, 71 S Ct 416; United States v Schneiderman (DC Cal) 106 F Supp
731.
Footnote 96. United States v Mesarosh (DC Pa) 116 F Supp 345, affd (CA3 Pa) 223 F2d
449, revd on other grounds 352 US 1, 1 L Ed 2d 1, 77 S Ct 1.
Footnote 97. Fireman's Fund Indem. Co. v United States (DC Fla) 103 F Supp 915.
Footnote 98. United States ex rel. Touhy v Ragen (CA7 Ill) 180 F2d 321, affd 340 US
462, 95 L Ed 417, 71 S Ct 416.
Footnote 99. Boske v Comingore, 177 US 459, 44 L Ed 846, 20 S Ct 701, 3 AFTR

2678.

IV. INVESTIGATIONS [122-151]
Research References
5 USCS §§ 555, 903
§ 122 Generally; purposes
View Entire Section

Go to Supplement
Administrative agencies have the power, which is not granted to the judiciary, 1 to
conduct investigations. 2 For instance, an administrative agency may be empowered
by Congress to obtain information bearing on activities which may be properly regulated
by federal legislation, 3 and such legislative delegation of investigative power is
constitutional. 4 To achieve its regulatory purpose, the scope of an agency's
investigative powers should be construed broadly, within statutory constraints. 5
No particular form is required in the investigative process, and the procedure may be
informal. 6 Rules governing court procedure, such as the Federal Rules of Civil
Procedure, are not applicable. 7 Judicial rules of evidence and standards of proof need
not be applied, because investigators are entitled to obtain clues and leads. 8
The purpose of an administrative investigation is to uncover facts with an eye toward the
potential initiation of an agency adjudication or, more generally, for the purpose of
facilitating an agency's regulatory goals, 9 and compliance with the law. 10 An
investigation discovers and produces evidence; it can take place only after the agency has
decided to investigate, and the procedures by which this determination is made are
separate from and precede the agency's ultimate act. 11 An administrative investigation
is not an adversary proceeding, and does not result in a judgment which determines guilt
or legal rights. 12 The purpose of such investigatory proceedings is not to
produce evidence to prove a pending charge or complaint, but upon which to make one if
the facts justify doing so. 13
An agency also has the authority to conduct an investigation to determine whether the
agency under investigation is subject to the agency's jurisdiction. 14 Other purposes for
investigation include licensing, reporting to Congress, and disseminating information to
the public. 15 An agency may be authorized for the sole purpose of investigating and
reporting its findings to Congress, 16 or may be authorized to ferret out information
required for the commencement of enforcement proceedings. 17 An agency may use
its investigative powers to monitor compliance with court decrees which it procured. 18

Investigations may also be conducted to determine if rules should be promulgated or
existing rules should be modified, but before such a decision is made, there must also be
compliance with the rulemaking requirements of the Administrative Procedure Act. 19
It is within the discretion of the administrative agency to determine the course that a
particular investigation will pursue 20 and what witnesses will or will not be called. 21
However, an investigation upon an agency's "own motion" may be at the instance of an
interested party. 22
§ 122 ----Generally; purposes [SUPPLEMENT]
Practice Aids: Order–For investigation to determine propriety of specific

administrative action–New information. 1A Am Jur Pl & Pr Forms (Rev),
Footnotes
State ex rel. Commissioner of Ins. v North Carolina Rate Bureau, 300 NC 381, 269 SE2d
547.
Footnote 3. Oklahoma Press Pub. Co. v Walling, 327 US 186, 90 L Ed 614, 66 S Ct

494, 10 CCH LC ¶ 51222, 166 ALR 531; Electric Bond & Share Co. v SEC, 303 US
419, 82 L Ed 936, 58 S Ct 678, 115 ALR 105.
As to the extent of, and limitations on, legislative power, see 16 Am Jur 2d,
Constitutional Law §§ 319 et seq.
Footnote 4. Kansas City S. R. Co. v United States, 231 US 423, 58 L Ed 296, 34 S Ct

125; State ex rel. McEldowney v Uhl, 111 Idaho 915, 728 P2d 1324.
Footnote 5. Harris v Stutzman, 42 Ohio St 3d 13, 536 NE2d 1154, 29 BNA WH Cas 446,
113 CCH LC ¶ 56146.
Footnote 6. Brotherhood of R. & S.S. Clerks, etc. v Association for Ben. of Non-Contract
Employees, 380 US 650, 14 L Ed 2d 133, 85 S Ct 1192, 59 BNA LRRM 2051, 51 CCH
LC ¶ 19667.
Footnote 7. Re Colton (SD NY) 201 F Supp 13, 62-1 USTC ¶ 9189, 9 AFTR 2d 646, affd
(CA2 NY) 306 F2d 633, 62-2 USTC ¶ 9658, 10 AFTR 2d 5311, cert den 371 US 951, 9
L Ed 2d 499, 83 S Ct 505 and (criticized on other grounds by Re Grand Jury
Investigation (CA11 Fla) 842 F2d 1223, 88-1 USTC ¶ 9368, 24 Fed Rules Evid Serv
1067, 10 FR Serv 3d 409, 61 AFTR 2d 88-1091) and (criticized on other grounds by
Olson v United States (CA8 SD) 872 F2d 820, 89-1 USTC ¶ 9339, 63 AFTR 2d
89-1169); Application of Compton (DC Tex) 101 F Supp 547.
Footnote 8. United States SEC v Isbrandtsen (SD NY) 245 F Supp 518.

Footnote 9. United States Dept. of Labor v Kast Metals Corp. (CA5 La) 744 F2d 1145.
Footnote 10. State, Dept. of Revenue v Moore (Tenn) 722 SW2d 367.
Footnote 12. Hannah v Larche, 363 US 420, 4 L Ed 2d 1307, 80 S Ct 1502, reh den
364 US 855, 5 L Ed 2d 79, 81 S Ct 33; Anonymous Nos. 6 & 7 v Baker, 360 US 287, 3
L Ed 2d 1234, 79 S Ct 1157; Isbrandtsen-Moller Co. v United States, 300 US 139, 81 L
Ed 562, 57 S Ct 407.
Footnote 14. Millan v Restaurant Enterprises Group, Inc. (Cal App 4th Dist) 18 Cal Rptr
2d 198, 93 CDOS 2168, 93 Daily Journal DAR 3759.
As to persons subject to investigation, see § 130.
364 US 855, 5 L Ed 2d 79, 81 S Ct 33 (Commission on Civil Rights).
Footnote 17. United States v La Salle Nat. Bank, 437 US 298, 57 L Ed 2d 221, 98 S Ct
2357, 78-2 USTC ¶ 9501, 42 AFTR 2d 78-5198 (superseded by statute on other grounds
as stated in Re EEOC (CA5) 709 F2d 392, 32 BNA FEP Cas 361, 32 CCH EPD ¶ 33716,
37 FR Serv 2d 1060) and (superseded by statute on other grounds as stated in Pickel v
United States (CA3 Pa) 746 F2d 176, 84-2 USTC ¶ 9934, 17 Fed Rules Evid Serv 372,
54 AFTR 2d 84-6087) and (superseded by statute on other grounds as stated in United
States v G & G Advertising Co. (CA8 Mo) 762 F2d 632, 85-1 USTC ¶ 9402, 56 AFTR
2d 85-5043) and (not followed on other grounds by United States v Goldman (CA9 Cal)
637 F2d 664, 80-2 USTC ¶ 9758, 46 AFTR 2d 80-6102) as stated in Ponsford v United
States (CA9 Alaska) 771 F2d 1305, 85-2 USTC ¶ 9689, 56 AFTR 2d 85-5888.
Footnote 19. Chicago, B. & Q. R. Co. v United States (ND Ill) 242 F Supp 414, affd 382
US 422, 15 L Ed 2d 498, 86 S Ct 616.
As to rule making requirements, generally, see §§ 152 et seq.
Footnote 20. Endicott Johnson Corp. v Perkins, 317 US 501, 87 L Ed 424, 63 S Ct 339,
6 CCH LC ¶ 51149; Tepel v Sima, 213 Minn 526, 7 NW2d 532, 6 CCH LC ¶ 61381; Re
Larsen, 17 NJ Super 564, 86 A2d 430.
Footnote 21. Haydon v Proskauer, 281 App Div 483, 120 NYS2d 322.
Footnote 22. United Gas Pipe Line Co. v Mobile Gas Service Corp., 350 US 332, 100 L
Ed 373, 76 S Ct 373, 5 OGR 808; Central R. Co. v Department of Public Utilities, 7 NJ
247, 81 A2d 162.

§ 123 Statutory authorization
View Entire Section

An agency must have statutory authority to conduct an investigation, 23 and must

keep within the bounds of this authority. 24 In this regard, the federal Administrative
Procedure Act provides that investigative acts or demands, including process, the
requirement of a report, or inspection, may not be issued, made, or enforced except as
authorized by law. 25 Therefore, the governing statute must explicitly grant the power
to investigate, 26 and the investigation must also be for a legislatively authorized
purpose. 27 Moreover, the power of administrative agencies to compel the attendance
and testimony of witnesses and the production of evidence is dependent on statute. 28
An administrative investigation that is in excess of statutory authority violates due
process. 29
Footnotes
Serr v Sullivan (ED Pa) 270 F Supp 544, affd (CA3 Pa) 390 F2d 619; Heritage House of
Glamour, Inc. v Atty. Gen. of Illinois (1st Dist) 179 Ill App 3d 336, 128 Ill Dec 466, 534
NE2d 648; National Freelancers, Inc. v State Tax Com., Dept. of Taxation & Finance (3d
Dept) 126 App Div 2d 218, 513 NYS2d 559, app den 70 NY2d 602, 518 NYS2d 1025,
512 NE2d 551 and app dismd without op 70 NY2d 795, 522 NYS2d 112, 516 NE2d
1225.
494, 10 CCH LC ¶ 51222, 166 ALR 531.
Footnote 26. Serr v Sullivan (ED Pa) 270 F Supp 544, affd (CA3 Pa) 390 F2d 619,
stating that a statute which granted subpoena power did not necessarily grant
investigative power, since the subpoenas could be used in licensing proceedings.
Footnote 27. United States v Humble Oil & Refining Co. (CA5 Tex) 518 F2d 747, 75-2
USTC ¶ 9705, 51 OGR 448, 36 AFTR 2d 75-5749 (agency having power to investigate
violations of a statute is not authorized to do research); United States v Humble Oil &
Refining Co. (CA5 Tex) 518 F2d 747, 75-2 USTC ¶ 9705, 51 OGR 448, 36 AFTR 2d
75-5749 (agency having power to investigate violations of a statute is not authorized to
do research).
Footnote 28. Francis v Accardo (La App 1st Cir) 602 So 2d 1066.
Footnote 29. People v McWhorter, 113 Ill 2d 374, 101 Ill Dec 646, 498 NE2d 1154.
As to due process right in investigations, generally, see § 140.

§ 124 Legitimacy of purpose
View Entire Section

In the exercise of powers of investigation, an administrative agency must not act

arbitrarily, 30 oppressively 31 or unreasonably. 32 An official inquisition to compel
disclosures of fact is not an end, but a means to an end, and the end must be a legitimate
one to justify the means. 33 An administrative investigation that is arbitrary, or
undertaken for an improper purpose, such as to harass, violates due process. 34
However, in matters relevant to purposes for which the agency is authorized to conduct
an investigation, the agency may investigate merely on suspicion that the law is being
violated or even just because it wants assurance that it is not. 35 Nevertheless, there is
also authority to the contrary. 36
Footnotes
494, 10 CCH LC ¶ 51222, 166 ALR 531; General Tobacco & Grocery Co. v Fleming
(CA6 Mich) 125 F2d 596, 5 CCH LC ¶ 60906, 140 ALR 783.
Footnote 31. Walling v La Belle S.S. Co. (CA6 Ohio) 148 F2d 198, 9 CCH LC ¶ 62583.
Footnote 32. Unnamed Attorney v Attorney Grievance Com., 313 Md 357, 545 A2d 685.
Footnote 33. Jones v SEC, 298 US 1, 80 L Ed 1015, 56 S Ct 654 (not followed on other
grounds by Craib v Bulmash, 49 Cal 3d 475, 261 Cal Rptr 686, 777 P2d 1120, 29 BNA
WH Cas 705, 114 CCH LC ¶ 56172); Walling v Benson (CA8 Mo) 137 F2d 501, 7 CCH
LC ¶ 61741, 149 ALR 186, cert den 320 US 791, 88 L Ed 476, 64 S Ct 206; Railroad
Com. v Houston Natural Gas Corp. (Tex Civ App) 186 SW2d 117, writ ref w o m
(upholding inspection to obtain evidence to be used in connection with pending hearing).
Footnote 34. People v McWhorter, 113 Ill 2d 374, 101 Ill Dec 646, 498 NE2d 1154.
As to due process in administrative investigations, generally, see § 140.
Millan v Restaurant Enterprises Group, Inc. (Cal App 4th Dist) 18 Cal Rptr 2d 198, 93
CDOS 2168, 93 Daily Journal DAR 3759; State ex rel. Wolgast v Schurle, 11 Kan App
2d 390, 722 P2d 585; Francis v Accardo (La App 1st Cir) 602 So 2d 1066.
Footnote 36. Unnamed Attorney v Attorney Grievance Com., 313 Md 357, 545 A2d 685,
holding that in order to meet the test of reasonableness, an investigation of an individual
by an administrative agency may not be based upon mere conjecture or supposition that a
violation of the law exists. Rather, it is incumbent upon an agency to demonstrate some
factual basis to support its concern.
§ 125 Relevancy and factual basis
View Entire Section

The information sought in the course of an investigation, such as subpoenaed testimony

or documents, must appear reasonably relevant to the investigation; 37 and there must
be an authentic factual basis to warrant the investigation, 38 which establishes the
relevancy of the item sought. 39 The permissible scope of an administrative subpoena,
and of any administrative demand for information or the production of documents, is
measured by the relevance of the information sought to the problem under investigation.
40 While it is well established that a governmental investigation, even into corporate
matters, may be of such a sweeping nature and so unrelated to the matter properly under
inquiry as to exceed the investigatory power, 41 some states, but not all, 42 have
rejected applying the stringent relevancy requirements that apply to subpoenas for civil or
criminal litigation to administrative agency subpoenas. 43 Such states claim that
where there is the possibility of relevancy the power to subpoena should be liberally
construed to permit inquiry. 44
Footnotes
Heritage House of Glamour, Inc. v Atty. Gen. of Illinois (1st Dist) 179 Ill App 3d 336,
128 Ill Dec 466, 534 NE2d 648 (validity of subpoena); Iowa City Human Rights Com. v
Roadway Express, Inc. (Iowa) 397 NW2d 508, 42 BNA FEP Cas 1270, 42 CCH EPD ¶
36938; Unnamed Attorney v Attorney Grievance Com., 313 Md 357, 545 A2d 685; New
York City Dept. of Investigation v Passannante (1st Dept) 148 App Div 2d 101, 544
NYS2d 1.
As to the Fourth Amendment and administrative inspections, see § 133.
Footnote 38. Unnamed Attorney v Attorney Grievance Com., 313 Md 357, 545 A2d 685;
National Freelancers, Inc. v State Tax Com., Dept. of Taxation & Finance (3d Dept) 126
App Div 2d 218, 513 NYS2d 559, app den 70 NY2d 602, 518 NYS2d 1025, 512 NE2d
551 and app dismd without op 70 NY2d 795, 522 NYS2d 112, 516 NE2d 1225.
Footnote 39. New York City Dept. of Investigation v Passannante (1st Dept) 148 App
Div 2d 101, 544 NYS2d 1.
Footnote 40. Heritage House of Glamour, Inc. v Atty. Gen. of Illinois (1st Dist) 179 Ill
App 3d 336, 128 Ill Dec 466, 534 NE2d 648.
Footnote 42. New York State Div. of Human Rights v Nationwide Mut. Ins. Co. (1st
Dept) 74 App Div 2d 16, 426 NYS2d 497, affd 53 NY2d 1008, 442 NYS2d 495, 425
NE2d 883, stating that no agency of government may conduct an unlimited and general
inquisition into the affairs of persons within its jurisdiction solely on the prospect of
possible violations of law being discovered, especially with respect to subpoenas duces
tecum; there must be authority, relevancy and some basis for inquisitorial action.
Footnote 43. State ex rel. Wolgast v Schurle, 11 Kan App 2d 390, 722 P2d 585.
As to subpoenas in civil and criminal litigation, generally, see 21A Am Jur 2d, Criminal
Law §§ 717-719, 953-955, and 81 Am Jur 2d, Witnesses §§ 7-17.
Footnote 44. State ex rel. Wolgast v Schurle, 11 Kan App 2d 390, 722 P2d 585.
§ 126 Specificity
View Entire Section

In order to be valid, the demand for information in an investigation must not be indefinite
45 or overbroad. 46 It must be sufficiently specific to permit reasonable compliance.
47 However, courts have found valid subpoenas calling for "all documents" or "all
papers" or "writings of any kind" with respect to a particular subject, so long as the
information sought is reasonably related to a proper area of investigation. 48
Footnotes
Unnamed Attorney v Attorney Grievance Com., 313 Md 357, 545 A2d 685.
Footnote 46. Unnamed Attorney v Attorney Grievance Com., 313 Md 357, 545 A2d 685.
Div 2d 101, 544 NYS2d 1.
§ 127 Differences between "investigations" and "hearings" or "adjudications"
View Entire Section

Investigations are not the same as hearings or adjudications. The term "hearing" refers to
quasi-judicial proceedings while "investigation" refers to nonjudicial functions of an
administrative agency. 49 An investigation is nonadversarial and contemplates a

procedure less formal and more flexible than applies to administrative hearings. 50 A
provision for an investigation ordinarily is not a requirement for a hearing. 51
Investigations may be conducted privately although a statute requires public hearings, 52
and it is not improper to conduct a private investigation prior to a public administrative
hearing. 53 In addition, constitutional rights in adjudicatory proceedings 54 and
provisions of statutes and regulations applicable to hearings 55 may be inapplicable
to investigations.
Footnotes
Footnote 49. State ex rel. Railroad & Warehouse Com. v Mees, 235 Minn 42, 49 NW2d
386, 27 ALR2d 1197.
As to hearings, generally, see §§ 294 et seq.
Footnote 50. Brotherhood of R. & S.S. Clerks, etc. v Association for Ben. of
Non-Contract Employees, 380 US 650, 14 L Ed 2d 133, 85 S Ct 1192, 59 BNA LRRM
2051, 51 CCH LC ¶ 19667; Bowles v Baer (CA7 Ill) 142 F2d 787; NLRB v Carlton
Wood Products Co. (CA9) 201 F2d 863, 31 BNA LRRM 2323, 23 CCH LC ¶ 67400, 36
ALR2d 1170; State ex rel. Railroad & Warehouse Com. v Mees, 235 Minn 42, 49 NW2d
386, 27 ALR2d 1197.
Footnote 51. Albert v Public Service Com., 209 Md 27, 120 A2d 346 (holding that
investigation, but not hearing, was contemplated on application for taxicab permit); State
v Keller, 108 Neb 742, 189 NW 374, 25 ALR 115 (investigation to determine whether
building constitutes a nuisance); Ex parte Anderson, 191 Or 409, 229 P2d 633, 29
ALR2d 1051, reh den 191 Or 452, 230 P2d 770, 29 ALR2d 1073 (revocation of parole
on basis of reports and investigations, and without notice or hearing).
Footnote 52. Bowles v Baer (CA7 Ill) 142 F2d 787; Woolley v United States (CA9 Cal)
97 F2d 258, cert den 305 US 614, 83 L Ed 391, 59 S Ct 73.
Footnote 53. Jarvella v Willoughby-Eastlake City School Dist., etc., 12 Ohio Misc 288,
41 Ohio Ops 2d 423, 233 NE2d 143.
Footnote 54. As to constitutional rights in investigations compared with those in

adjudications, see §§ 133 et seq.
Footnote 55. Re SEC (CA2 NY) 84 F2d 316, revd on other grounds 299 US 504, 81 L
Ed 374, 57 S Ct 18; Woolley v United States (CA9 Cal) 97 F2d 258, cert den 305 US
614, 83 L Ed 391, 59 S Ct 73.
§ 128 Specific investigatory methods
View Entire Section


Go to Supplement
Since the federal Administrative Procedure Act provides that investigative process may
not be issued, made, or enforced except as authorized by law, 56 in the case of federal
agencies, one must look to the particular regulatory statute, and not to the federal
Administrative Procedure Act, to determine if a particular investigative method is
authorized by statute. 57 However, when Congress invests an agency with
enforcement and investigatory authority, Congress need not explicitly identify each and
every technique that may be used in the course of executing the statutory mission:
regulatory or enforcement authority generally carries with it the power to use all the
modes of inquiry and investigation traditionally employed or useful to execute the
authority granted. 58 Thus, a regulatory and enforcement agency invested by
Congress with general investigatory powers needs no explicit statutory provision to
employ methods of observation commonly available to the public at large. 59
Furthermore, once a specific investigatory tool is authorized by a regulatory statute, no
objection to its use can be raised under the federal Administrative Procedure Act. 60
Investigative methods which have been authorized by state and federal statute include the
following:
• Gathering and compiling information 61
• Requiring the filing of accounts, records, or reports 62
• Subpoenaing witnesses to answer questions at hearings or depositions, or by means of

written interrogatories 63
• Subpoenaing records and documents 64
• Conducting on-site inspections 65
An agency has the power to promulgate rules or regulations governing the use of
particular investigative methods. 66 Some regulatory statutes may require that
agencies promulgate rules before using particular investigatory techniques, such as
requiring the filing of reports, but other regulatory statutes may not contain such
requirements. 67 The federal Administrative Procedure Act does not itself contain any
requirement that there be rulemaking before an investigative method is adopted. 68
Similarly, it contains no requirement that an agency promulgate rules requiring the
review of agency subpoenas. 69 But care must be taken that a particular technique is
properly characterized as an investigative method. Thus, while the power to compel the
filing of reports is considered an investigative power, the detailed prescription of
accounting methods is considered rulemaking, and therefore administrative rulemaking
procedures must be followed. 70
 Observation: It has been noted that the subpoena power differs materially from the
general power to gather data and make investigations, since a subpoena is an official
command compelling production of books and records or the presence of a witness.
Without subpoena power, an agency might be able only to investigate books and
records where they are located at the consent of the person being investigated. 71
The use of a subpoena also triggers the investigated party's right to counsel 72 and to

a transcript of evidence. 73
§ 128 ----Specific investigatory methods [SUPPLEMENT]
Case authorities:
Consistent with court's authority to develop general maritime law when new situations
arise that are not directly governed by congressional legislation or admiralty precedent,
court would hold that claims for emotional distress are cognizable under admiralty law;
there is no reason to disallow such claims when they are available to railroad workers
under FELA and to plaintiffs in nearly all states. Chan v Society Expeditions (1994, CA9
Wash) 39 F3d 1398, amd (1994, CA9 Wash) 94 CDOS 7866, 94 Daily Journal DAR
14571.
Footnotes
Law Reviews: Hamill, EPA Administrative Investigative Tools: An Inside

Perspective. 4 J Envtl L & Litigation 85 (1989).
Footnote 58. Dow Chemical Co. v United States, 476 US 227, 90 L Ed 2d 226, 106 S
Ct 1819, 24 Envt Rep Cas 1385, 16 ELR 20679 (not followed on other grounds by
People v Mayoff, 42 Cal 3d 1302, 233 Cal Rptr 2, 729 P2d 166).
People v Mayoff, 42 Cal 3d 1302, 233 Cal Rptr 2, 729 P2d 166) (EPA does not exceed its
investigatory authority under Clean Air Act, 42 USCS §§ 7401-7626, when it takes
aerial photographs of industrial complex, even though specific inspection provisions of
Act do not specifically authorize such techniques).
As to the Clean Air Act, generally, see 61A Am Jur 2d, Pollution Control §§ 55, 66.
Annotation: What constitutes investigative or prosecuting functions for purposes of

Administrative Procedure Act provision (5 USCS § 554(d)) requiring that federal
agencies separate investigatory and prosecutorial functions from adjudicative
responsibilities, 53 ALR Fed 724.
Footnote 61. See, for example, 15 USCS § 46(a).
Footnote 62. St. Regis Paper Co. v United States, 368 US 208, 7 L Ed 2d 240, 82 S Ct
289, reh den 368 US 972, 7 L Ed 2d 401, 82 S Ct 437 and motion den 369 US 809, 7
L Ed 2d 611, 82 S Ct 686; United States v Morton Salt Co., 338 US 632, 94 L Ed 401,
70 S Ct 357; Baltimore & O. R. Co. v Interstate Commerce Com., 221 US 612, 55 L Ed

878, 31 S Ct 621.
As to disclosure and keeping of records, reports, statements, and accounts, see § 129.
364 US 855, 5 L Ed 2d 79, 81 S Ct 33; Re Contempt Order Issued against Anderson
(Wyo) 765 P2d 933, 28 Envt Rep Cas 1916.
Particular statutes which grant such investigative powers include 5 USCS § 303, which
grants an employee of an executive department lawfully assigned to investigate frauds,
attempts to defraud the United States, or irregularities or misconduct of employees of the
United States and employees of the Department of Defense lawfully assigned to
investigative duties the power to administer oaths to witnesses in connection with an
official investigation, and 5 USCS § 304(a), which grants a head of an executive
department or military department or bureau the power to apply to a judge or clerk of a
court for a subpoena directed to a claimant for the purpose of examining the claimant by
deposition or written interrogatories.
Footnote 64. Interstate Commerce Com. v Brimson, 154 US 447, 38 L Ed 1047, 14 S

Ct 1125, appeal after remand 155 US 3, 39 L Ed 49, 15 S Ct 19; Re Contempt Order
Issued against Anderson (Wyo) 765 P2d 933, 28 Envt Rep Cas 1916.
As to enforcement of administrative subpoenas, see §§ 146 et seq.
Footnote 65. Marshall v Barlow's, Inc., 436 US 307, 56 L Ed 2d 305, 98 S Ct 1816, 8

ELR 20434 (not followed on other grounds by Donovan v Red Star Marine Services, Inc.
(CA2) 739 F2d 774, 1985 AMC 46).
United States v Caceres (CA9 Cal) 545 F2d 1182, 77-1 USTC ¶ 9226, 38 AFTR 2d
76-6215, revd on other grounds 440 US 741, 59 L Ed 2d 733, 99 S Ct 1465, 79-1
USTC ¶ 9294, 43 AFTR 2d 79-872.
As to rulemaking, generally, see §§ 152 et seq.
Footnote 67. Appeal of FTC Line of Business Report Litigation, 193 US App DC 300,
595 F2d 685, 1978-2 CCH Trade Cases ¶ 62152, later proceeding (App DC) 29 FR Serv
2d 1555.
Footnote 68. Appeal of FTC Line of Business Report Litigation, 193 US App DC 300,
595 F2d 685, 1978-2 CCH Trade Cases ¶ 62152, later proceeding (App DC) 29 FR Serv
2d 1555.
Footnote 69. United States v Exxon Corp., 202 US App DC 70, 628 F2d 70, cert den 446
US 964, 64 L Ed 2d 823, 100 S Ct 2940.
Footnote 71. Cudahy Packing Co. v Holland, 315 US 357, 86 L Ed 895, 62 S Ct 651, 5
CCH LC ¶ 51129 (superseded by statute on other grounds as stated in Donovan v
National Bank of Alaska (CA9 Alaska) 696 F2d 678, 3 EBC 2513).

As to disclosure and keeping of records, reports, statements, and accounts, see § 129.
§ 129 --Disclosure or keeping of accounts, records, reports, or statements
View Entire Section

An administrative agency is not required to exhaust other sources before seeking to

obtain information from a regulated corporation, 74 and official curiosity is sufficient
ground for a request for information. 75 Because judicial power is reluctant if not
unable to summon evidence until it is shown to be relevant to issues in litigation, it does
not follow that an administrative agency charged with seeing that the laws are enforced
may not have and exercise powers of original inquiry without a charge of statutory
violation. 76 Courts are generally liberal in permitting an administrative agency full
exercise of its powers to require the production of books, papers, and documents. 77
In addition, an order requiring a company to keep accounts and submit reports cannot be
challenged on the ground that it imposes so great a burden on the company as to
transgress statutory and constitutional limits, where all of the requirements of the
commission affirmatively appear to call for the precise kind of accounting system,
information, and reports that the legislature deemed relevant and necessary for the
commission in performing its regulatory duties, and the evidence does not show that the
expense will lay so heavy a burden upon the company as to overpass the bounds of
reason. 78 The purpose of requiring companies subject to regulation by
administrative agencies to keep uniform accounts is to inform the officers of the business
methods of such companies, so that matters within the jurisdiction of the agency may be
properly regulated, 79 and this purpose must be kept in mind in determining the
rationality of a system of accounting prescribed by a regulatory body. 80 To show that
a commission has exceeded its powers to prescribe a system of accounts for companies
subject to the act, it is not enough that the prescribed system of accounts appears unwise
or burdensome or inferior to another, but what has been ordered must appear to be so
entirely at odds with fundamental principles of correct accounting as to be the expression
of a whim rather than exercise of judgment. 81
Some statutes provide for a forfeiture or penalty for failure to file any report, account, or
record as provided by the administrative agency, 82 but application of a statute
imposing heavy penalties for each day's failure to comply with an order of a commission
requiring the disclosure of information, so as to subject the party to the risk of cumulative
penalties pending an attempt to test the validity of the order in the court and for a
reasonable time after decision, would be a denial of due process. 83
Footnotes

Footnote 74. Fleming v Montgomery Ward & Co. (CA7 Ill) 114 F2d 384, 2 CCH LC ¶
Footnote 75. United States v Morton Salt Co., 338 US 632, 94 L Ed 401, 70 S Ct 357,
stating that even if one were to regard the request for information in the case as caused by
nothing more than official curiosity, nevertheless law-enforcing agencies have a
legitimate right to satisfy themselves that corporate behavior is consistent with the law
and public interest.
Footnote 77. Goodyear Tire & Rubber Co. v NLRB (CA6 Ohio) 122 F2d 450, 8 BNA
LRRM 701, 4 CCH LC ¶ 60642, 136 ALR 883; Fleming v Montgomery Ward & Co.
(CA7 Ill) 114 F2d 384, 2 CCH LC ¶ 18734, cert den 311 US 690, 85 L Ed 446, 61 S Ct
71.
An administrative subpoena duces tecum is commonly referred to as a nonjudicial or

office subpoena. New York City Dept. of Investigation v Passannante (1st Dept) 148
App Div 2d 101, 544 NYS2d 1.
Footnote 78. Federal Power Com. v East Ohio Gas Co., 338 US 464, 94 L Ed 268, 70 S
Ct 266, reh den 339 US 905, 94 L Ed 1334, 70 S Ct 515 and (superseded by statute on
other grounds as stated in Public Utilities Com. v FERC, 283 US App DC 285, 900 F2d
269) and (superseded by statute on other grounds as stated in Williams Natural Gas Co.,
59 FERC ¶ 61306, 1992 FERC LEXIS 1460) and (superseded by statute on other grounds
as stated in Railroad Com. of Texas v Lone Star Gas Co. (Tex) 35 Tex Sup Ct Jour
1174).
Footnote 79. American Tel. & Tel. Co. v United States, 299 US 232, 81 L Ed 142, 57 S
Ct 170; Interstate Commerce Com. v Goodrich Transit Co., 224 US 194, 56 L Ed 729,
32 S Ct 436.
Footnote 80. American Tel. & Tel. Co. v United States, 299 US 232, 81 L Ed 142, 57 S
Ct 170.
Footnote 81. United States v New York Tel. Co., 326 US 638, 90 L Ed 371, 66 S Ct
393; American Tel. & Tel. Co. v United States, 299 US 232, 81 L Ed 142, 57 S Ct 170.
Footnote 82. Isbrandtsen-Moller Co. v United States, 300 US 139, 81 L Ed 562, 57 S

Ct 407.
Footnote 83. Natural Gas Pipeline Co. v Slattery, 302 US 300, 82 L Ed 276, 58 S Ct
199.
§ 130 Persons subject to investigation
View Entire Section

An agency's subpoena power is not necessarily confined to those persons over whom it
may exercise regulatory jurisdiction. Instead, if an agency has regulatory jurisdiction
over the subject matter, it may subpoena any person from which it can obtain information
and documents relevant and material to the inquiry. 84 With respect to administrative
subpoenas, courts have made no distinction between individuals and corporations. 85
Footnotes
Footnote 84. Freeman v Brown Bros. Harriman & Co. (CA2 NY) 357 F2d 741, cert den
384 US 933, 16 L Ed 2d 532, 86 S Ct 1446; Federal Communications Com. v Cohn (DC
NY) 154 F Supp 899; Freeman v Fidelity-Philadelphia Trust Co. (ED Pa) 248 F Supp
487; United States v Marshall Durbin & Co. (CA5 Ala) 363 F2d 1.
As to enforcement of subpoenas, see §§ 146 et seq.
Annotation: Power of administrative agency, in investigation of nonjudicial nature, to

issue subpoenas against persons not subject to agency's regulatory jurisdiction, 27
ALR2d 1208.
§ 131 Witnesses and evidence
View Entire Section

Even a person who is not subject to regulation may be called as a witness 86 in

investigatory proceedings. 87 Federal statutes sometimes provide that witnesses may be
called from any part of the United States, 88 which has been interpreted to
authorize compelling the production of evidence from abroad as well. 89 However,
even where an agency is entitled to compel production of evidence from anywhere in the
United States, Congress intended this power to be exercised reasonably. 90 Generally
speaking, the question whether a subpoenaed party might be subject to coverage by a
regulatory statute is to be determined in the first instance by the agency, and if it cannot
definitely be said that the regulatory statute does not regulate the question being
investigated, the agency's subpoena should be enforced. 91 However, it has also
been said that if an agency has clearly been denied power to regulate and investigate a
particular entity, a subpoena issued by that agency should not be enforced. 92
Footnotes
Footnote 86. Ellis v Interstate Commerce Com., 237 US 434, 59 L Ed 1036, 35 S Ct

645.
Footnote 87. State ex rel. Railroad & Warehouse Com. v Mees, 235 Minn 42, 49 NW2d
386, 27 ALR2d 1197.
WH Cas 705, 114 CCH LC ¶ 56172); Interstate Commerce Com. v Brimson, 154 US
447, 38 L Ed 1047, 14 S Ct 1125, appeal after remand 155 US 3, 39 L Ed 49, 15 S Ct
19; Penfield Co. of California v SEC (CA9 Cal) 143 F2d 746, 154 ALR 1027, cert den
323 US 768, 89 L Ed 614, 65 S Ct 121; Francis v Accardo (La App 1st Cir) 602 So 2d
1066.
Footnote 89. Federal Maritime Com. v Desmedt (CA2 NY) 366 F2d 464, cert den 385
US 974, 17 L Ed 2d 437, 87 S Ct 513.
F2d 100, 123 ALR 1266, holding that while an act authorizes the Securities and
Exchange Commission to subpoena witnesses from any part of the United States, it is a
fair statement that Congress never intended that the power should be exercised to bring
from one side of the country to the other the principal officers of a bank and the books
and records covering a period of 10 years, in order to appear before an examiner of an
administrative commission.
An investigation was improper where it required an individual to travel 350 miles on a

specified business day and to bring certain documents with him, and where there were
less disruptive methods of settling the underlying dispute. People v McWhorter, 113 Ill
2d 374, 101 Ill Dec 646, 498 NE2d 1154.
Footnote 91. SEC v Wall Street Transcript Corp. (CA2) 422 F2d 1371, CCH Fed Secur L
Rep ¶ 92576, cert den 398 US 958, 26 L Ed 2d 542, 90 S Ct 2170; Freeman v Brown
Bros. Harriman & Co. (CA2 NY) 357 F2d 741, cert den 384 US 933, 16 L Ed 2d 532,
86 S Ct 1446; Tobin v Banks & Rumbaugh (CA5 Tex) 201 F2d 223, 22 CCH LC ¶
Footnote 92. FTC v Miller (CA7 Ind) 549 F2d 452, 1977-1 CCH Trade Cases ¶ 61265.
As to enforcement of agency subpoenas, see §§ 146 et seq.
§ 132 Who may exercise power to issue subpoenas; delegation
View Entire Section

There is considerable diversity in the statutes as to who may exercise the power of
issuing subpoenas. Statutes may provide that a commission 93 or certain specified
persons, for instance a commissioner, 94 a deputy commissioner, 95 a commission
member, 96 a board, 97 a board member, 98 or a designated official, 99 has the
power to subpoena witnesses or records. Statutes may also allow employee boards or
certain delegated agency employees to subpoena witnesses and records. 1 However,
there may be additional statutory requirements as to who must sign the subpoena. 2 A
statute may require that the subpoena be signed by a commissioner, the secretary of a
commission, or, under certain circumstances, a member of a board. 3
While the Supreme Court initially held that an agency head may not subdelegate the
power to issue subpoenas to subordinate employees of the agency, unless Congress
explicitly granted such authority, 4 the Supreme Court later retreated from this broad
language by confining this case to its facts, 5 and found authorization to delegate the
function of signing and issuing subpoenas in the power granted to an agency by statute to
issue such regulations and orders as may be deemed necessary or proper to carry out its
purposes and provisions. 6 In addition, where the statute does not expressly grant the
power to delegate subpoena authority, some courts have, nevertheless, found authority
for delegation in the purpose of the statute. 7 Moreover, Congress has, by passing the
Reorganization Act, 8 provided that an officer may be authorized by a reorganization
plan to delegate any of the officer's functions. 9 Accordingly, if a reorganization plan
authorizes a department head to delegate his or her functions, the power to issue a
subpoena may be delegated. 10
Footnotes
Footnote 93. 15 USCS § 49 (Federal Trade Commission Act); 47 USCS § 409(e)

(Communications Act); 49 USCS § 10321(c)(1) (Interstate Commerce Act).
Footnote 94. 49 USCS § 10321(c)(1) (Interstate Commerce Act).
Footnote 95. 33 USCS § 927 (Longshore and Habor Workers' Compensation Act).
Footnote 96. 15 USCS § 77s(b) (Securities Act); 15 USCS § 78u(b) (Securities

Exchange Act).
Footnote 97. 29 USCS § 161(1) (National Labor Relations Act); 33 USCS § 927
(Longshore and Habor Workers' Compensation Act).
Footnote 98. 29 USCS § 161(1) (National Labor Relations Act).
Footnote 99. 15 USCS § 77s(b) (Securities Act); 15 USCS § 78u(b) (Securities

Exchange Act); 46 USCS § 6304(d) (federal law concerning investigation of marine
casualties).
Footnote 2. 15 USCS § 49 (Federal Trade Commission Act); 49 USCS § 10321(c)(2)

(Interstate Commerce Act).
Footnote 4. Cudahy Packing Co. v Holland, 315 US 357, 86 L Ed 895, 62 S Ct 651, 5

CCH LC ¶ 51129.

As to delegation in the administrative context, generally, see §§ 71 et seq.
Annotation: The Supreme Court and administrative subpoenas, 78 L Ed 2d 940.
67 S Ct 1129; Donovan v National Bank of Alaska (CA9 Alaska) 696 F2d 678, 3 EBC
2513.
67 S Ct 1129.
Footnote 7. NLRB v John S. Barnes Corp. (CA7 Ill) 178 F2d 156, 25 BNA LRRM 2158,
17 CCH LC ¶ 65464, holding that Congress by passage of the National Labor Relations
Act intended the National Labor Relations Board to have authority to delegate its power
to issue subpoenas to its various agents under the signature of a board member in order
that the purposes of the Act could be accomplished, even though the power was not
expressly given, where the magnitude of the program involved required speedy action in
enforcing its program in all sections of the United States.
Footnote 8. 5 USCS § 903(a)(5).
Footnote 9. United States v Marshall Durbin & Co. (CA5 Ala) 363 F2d 1.
Footnote 10. Federal Maritime Com. v New York Terminal Conference (SD NY) 262 F
Supp 225, 10 FR Serv 2d 1582, affd (CA2 NY) 373 F2d 424; Freeman v
Fidelity-Philadelphia Trust Co. (ED Pa) 248 F Supp 487; Federal Trade Com. v Gibson
(CA5 Tex) 460 F2d 605, 1972 CCH Trade Cases ¶ 73985; United States v Marshall
Durbin & Co. (CA5 Ala) 363 F2d 1.
B. Constitutional and Other Rights Affected by Investigations [133-145]
Research References
US Const, Amends 4-6
5 USCS § 555; 18 USCS §§ 1905, 6002, 6004
6A Federal Procedural Forms, L Ed, Contempt § 16:81
19 Am Jur POF2d 435, Lineups and Showups: Admissibility and Effect of Pretrial
Identification
§ 133 Fourth Amendment rights; administrative inspections
View Entire Section

The Fourth Amendment restrictions on unreasonable searches and seizures 11 are not
limited to criminal investigations, but also apply to administrative inspections. 12
The Fourth Amendment governs administrative inspections of both private dwellings and
businesses, 13 although it has been recognized that businesses may be
reasonably inspected in many more situations than private homes. 14 The Fourth
Amendment protection against unreasonable search and seizure also applies to
corporations. 15 However, corporations are not equal to individuals in enjoying the
right to privacy. 16
Footnotes
Footnote 11. As to Fourth Amendment restrictions on unreasonable searches and

seizures, generally, see 68 Am Jur 2d, Searches and Seizures §§ 1 et seq.

(CA2) 739 F2d 774, 1985 AMC 46); See v Seattle, 387 US 541, 18 L Ed 2d 943, 87 S
Ct 1737 (criticized on other grounds by Donovan v Dewey, 452 US 594, 69 L Ed 2d
262, 101 S Ct 2534) as stated in Allinder v Ohio (CA6 Ohio) 808 F2d 1180, app dismd
481 US 1065, 95 L Ed 2d 865, 107 S Ct 2455; Camara v Municipal Court of San
Francisco, 387 US 523, 18 L Ed 2d 930, 87 S Ct 1727.
As to administrative searches and seizures, generally, see 68 Am Jur 2d (Rev), Searches

and Seizures § 23.
Annotation: Admissibility of evidence obtained by unconstitutional search in

proceedings under Occupational Safety and Health Act (29 USCS §§ 651 et seq.), 67
ALR Fed 724.
Fourth Amendment's prohibition of unreasonable search and seizure as applied to

administrative inspections of private property–Supreme Court cases, 69 L Ed 2d 1078.

(CA2) 739 F2d 774, 1985 AMC 46); See v Seattle, 387 US 541, 18 L Ed 2d 943, 87 S
Ct 1737 (criticized on other grounds by Donovan v Dewey, 452 US 594, 69 L Ed 2d
262, 101 S Ct 2534) as stated in Allinder v Ohio (CA6 Ohio) 808 F2d 1180, app dismd
481 US 1065, 95 L Ed 2d 865, 107 S Ct 2455; Camara v Municipal Court of San
Francisco, 387 US 523, 18 L Ed 2d 930, 87 S Ct 1727.
People v Mayoff, 42 Cal 3d 1302, 233 Cal Rptr 2, 729 P2d 166) (taking of aerial
photographs of industrial plant complex from navigable airspace is not a search
prohibited by Fourth Amendment); See v Seattle, 387 US 541, 18 L Ed 2d 943, 87 S Ct
1737 (criticized on other grounds by Donovan v Dewey, 452 US 594, 69 L Ed 2d 262,
101 S Ct 2534) as stated in Allinder v Ohio (CA6 Ohio) 808 F2d 1180, app dismd 481
US 1065, 95 L Ed 2d 865, 107 S Ct 2455.
Footnote 15. 68 Am Jur 2d, Searches and Seizures § 15.

§ 134 --Probable cause
View Entire Section

While the Fourth Amendment provides that the right to be secure against unreasonable
searches and seizures must not be violated 17 and that no warrant is to issue except
upon probable cause, 18 probable cause is not the same in the administrative context as
it is in the police investigatory context. 19 Probable cause, as used in the
administrative context, only measures the reasonableness of the inspection against proper
legislative or administrative standards. 20
 Observation: An inspection plan must contain specific neutral criteria, 21 and it is

still necessary to have a neutral magistrate approve a warrant in order to assure that the
inspection is reasonable under the foregoing standards. 22
Footnotes

(CA2) 739 F2d 774, 1985 AMC 46); Camara v Municipal Court of San Francisco, 387
US 523, 18 L Ed 2d 930, 87 S Ct 1727.

(CA2) 739 F2d 774, 1985 AMC 46); Camara v Municipal Court of San Francisco, 387
US 523, 18 L Ed 2d 930, 87 S Ct 1727.
Footnote 21. Torres v Puerto Rico, 442 US 465, 61 L Ed 2d 1, 99 S Ct 2425.

(CA2) 739 F2d 774, 1985 AMC 46).
§ 135 --Exceptions to the warrant requirement; generally
View Entire Section

With regard to administrative inspections, there are several exceptions to the warrant
requirement. No warrant is needed in an emergency situation, such as where it is
necessary to seize unwholesome food. 23 A warrant may not be required under the
Constitution when Congress has reasonably determined that warrantless searches are
necessary to further a regulatory scheme and where the federal regulatory presence is
sufficiently comprehensive and defined that the owner of commercial property cannot
help but be aware that his or her property will be subject to periodic inspections
undertaken for specific purposes. 24 A warrant is thus not required before a
pervasively regulated business, such as a dispenser of liquors 25 or a merchant in
firearms, 26 is inspected, since such businesses have long been under federal
regulation and a person entering such a business knows that his or her establishment will
be subject to close scrutiny by the government. 27
The warrantless inspection of a pervasively regulated business will be deemed

reasonable, for purposes of the Fourth Amendment's prohibition against unreasonable
searches and seizures, so long as: (1) there is a substantial government interest that
informs the regulatory scheme pursuant to which the inspection is made; (2) the
warrantless inspection is necessary to further the regulatory scheme; and (3) the statute's
inspection program, in terms of the certainty and regularity of its application, provides a
constitutionally adequate substitute for a warrant, by advising the owner of the
commercial premises that the owner's property will be subject to periodic inspections for
specific purposes and by limiting the discretion of the inspecting officers in time, place,
and scope of the inspection. 28 However, the "closely regulated industry" doctrine is
limited to unique circumstances where the industry has been historically subject to
government oversight, and cannot be extended to all businesses and industries on the
assumption that anyone who opens a business has consented to inspections under new
government regulatory programs. 29
In addition, when a valid arrest is made under an administrative warrant, a search for
materials to prove the administrative charge made incidental to the administrative arrest
does not require a judicial warrant any more than a search incidental to a criminal arrest;
and the constitutional limitations upon such a search are not more severe than those upon
a search without warrant for materials probative of crime when a valid criminal arrest is
made. 30
Footnotes
Footnote 23. Camara v Municipal Court of San Francisco, 387 US 523, 18 L Ed 2d 930,
87 S Ct 1727.
Footnote 24. Donovan v Dewey, 452 US 594, 69 L Ed 2d 262, 101 S Ct 2534 (Federal
Mine Safety and Health Act, 30 USCS § 813(a), authorizing warrantless searches of
mines, held not violative of Fourth Amendment prohibition against unreasonable
searches and seizures).
As to the Federal Mine Safety and Health Act (originally known as the Federal Coal
Mine Health and Safety Act), see 54 Am Jur 2d, Mines and Minerals §§ 168, 169.

As to necessity of a search warrant and exceptions to the warrant requirement, see 68 Am
Jur 2d, Searches and Seizures §§ 60 et seq.
Footnote 25. Colonnade Catering Corp. v United States, 397 US 72, 25 L Ed 2d 60, 90
S Ct 774.
As to search and seizure with regard to intoxicating liquors, generally, see 45 Am Jur 2d,
Intoxicating Liquors §§ 467 et seq.
Footnote 26. United States v Biswell, 406 US 311, 32 L Ed 2d 87, 92 S Ct 1593

(criticized on other grounds by Donovan v Dewey, 452 US 594, 69 L Ed 2d 262, 101 S
Ct 2534) as stated in Commonwealth v Lutz, 512 Pa 192, 516 A2d 339, 25 Envt Rep Cas
1162, 17 ELR 20228.
As to public regulation of manufacturers of or dealers in firearms, see 79 Am Jur 2d,

Weapons and Firearms §§ 33 et seq.
Footnote 27. United States v Biswell, 406 US 311, 32 L Ed 2d 87, 92 S Ct 1593

(criticized on other grounds by Donovan v Dewey, 452 US 594, 69 L Ed 2d 262, 101 S
Ct 2534) as stated in Commonwealth v Lutz, 512 Pa 192, 516 A2d 339, 25 Envt Rep Cas
1162, 17 ELR 20228.
Footnote 28. New York v Burger, 482 US 691, 96 L Ed 2d 601, 107 S Ct 2636;
Donovan v Dewey, 452 US 594, 69 L Ed 2d 262, 101 S Ct 2534; Blackwelder v
Safnauer (ND NY) 689 F Supp 106, app dismd (CA2 NY) 866 F2d 548.

(CA2) 739 F2d 774, 1985 AMC 46).
Footnote 30. Abel v United States, 362 US 217, 4 L Ed 2d 668, 80 S Ct 683, reh den
362 US 984, 4 L Ed 2d 1019, 80 S Ct 1056.
§ 136 --Employee drug testing
View Entire Section

Urine or blood testing compelled or authorized by regulations promulgated by federal

agencies are searches within the meaning of the Fourth Amendment, even if carried out
by private parties, where the persons carrying out the testing act as an instrument or agent
of the government. 31 While the Fourth Amendment protects individuals from
unreasonable searches conducted by the government, even when the government acts as
an employer, 32 where a Fourth Amendment intrusion serves "special governmental
needs," beyond the normal need for law enforcement, it is necessary to balance the
individual's privacy expectations against the government's interests to determine whether
it is impractical to require a warrant or some level of individualized suspicion in the
particular context. 33 Pursuant to this "special needs" rationale, the Supreme Court
has upheld warrantless mandatory and authorized blood, breath and urine drug testing of
private railroad employees involved in certain major train accidents or safety rules
violations conducted pursuant to Federal Railroad Administration safety regulations, 34
and compulsory urinalysis drug testing for employees of the United States Customs
Service who apply for a promotion to positions directly involved in the interdiction of
illegal drugs or to positions that require the incumbent to carry firearms. 35 Similarly,
the federal appellate courts have employed the "special needs" rationale in upholding
warrantless random urinalysis drug testing of–
–army civilian air traffic controllers, pilots, aviation mechanics, aircraft attendants, police
and guards, and drug abuse prevention program counselors. 36
–Federal Railroad Administration hazardous material inspectors, Federal Aviation

Administration aircraft mechanics, and Department of Transportation motor vehicle
operators. 37
–Department of Agriculture motor vehicle operators. 38
Absent reasonable suspicion of on-duty drug use or drug-impaired work performance, the
courts have held unconstitutional the warrantless mandatory urinalysis drug testing of–
–employees of the Department of Agriculture who do not hold safety- or

security-sensitive jobs. 39
–army civilian laboratory workers and those in the biological specimen chain of custody.
40
Footnotes
Footnote 31. Skinner v Railway Labor Executives' Asso., 489 US 602, 103 L Ed 2d 639,
109 S Ct 1402, 4 BNA IER Cas 224, 130 BNA LRRM 2857, 13 BNA OSHC 2065, 49
CCH EPD ¶ 38791, 111 CCH LC ¶ 11001, 1989 CCH OSHD ¶ 28476 (among
conflicting authorities on other grounds noted in National Treasury Employees Union v
Yeutter, 287 US App DC 28, 918 F2d 968, 5 BNA IER Cas 1605, 1990 CCH OSHD ¶
29143).
As to blood tests as subject to the Fourth Amendment prohibition against unreasonable

searches and seizures generally, see 68 Am Jur 2d, Searches and Seizures § 195.
Footnote 32. National Treasury Employees Union v Von Raab, 489 US 656, 103 L Ed
2d 685, 109 S Ct 1384, 4 BNA IER Cas 246, 49 CCH EPD ¶ 38792, 1989 CCH OSHD ¶
28589, on remand (CA5 La) 876 F2d 376, 4 BNA IER Cas 896, 6 BNA IER Cas 307, on
remand (ED La) 756 F Supp 947, 6 BNA IER Cas 308 and (among conflicting authorities
on other grounds noted in National Treasury Employees Union v Yeutter, 287 US App
DC 28, 918 F2d 968, 5 BNA IER Cas 1605, 1990 CCH OSHD ¶ 29143).
Annotation: Validity, under Federal Constitution, of regulations, rules, or statutes

requiring random or mass drug testing of public employees or persons whose
employment is regulated by state, local, or Federal Government, 86 ALR Fed 420.

DC 28, 918 F2d 968, 5 BNA IER Cas 1605, 1990 CCH OSHD ¶ 29143); Skinner v
Railway Labor Executives' Asso., 489 US 602, 103 L Ed 2d 639, 109 S Ct 1402, 4
BNA IER Cas 224, 130 BNA LRRM 2857, 13 BNA OSHC 2065, 49 CCH EPD ¶ 38791,
111 CCH LC ¶ 11001, 1989 CCH OSHD ¶ 28476 (among conflicting authorities on other
grounds noted in National Treasury Employees Union v Yeutter, 287 US App DC 28,
918 F2d 968, 5 BNA IER Cas 1605, 1990 CCH OSHD ¶ 29143).
Footnote 34. Skinner v Railway Labor Executives' Asso., 489 US 602, 103 L Ed 2d 639,
109 S Ct 1402, 4 BNA IER Cas 224, 130 BNA LRRM 2857, 13 BNA OSHC 2065, 49
CCH EPD ¶ 38791, 111 CCH LC ¶ 11001, 1989 CCH OSHD ¶ 28476 (among
conflicting authorities on other grounds noted in National Treasury Employees Union v
Yeutter, 287 US App DC 28, 918 F2d 968, 5 BNA IER Cas 1605, 1990 CCH OSHD ¶
29143).
DC 28, 918 F2d 968, 5 BNA IER Cas 1605, 1990 CCH OSHD ¶ 29143).
Footnote 36. National Federation of Federal Employees v Cheney, 280 US App DC 164,
884 F2d 603, 4 BNA IER Cas 1164, 1989 CCH OSHD ¶ 28657, cert den 493 US 1056,
107 L Ed 2d 948, 110 S Ct 864, 4 BNA IER Cas 1888 and (among conflicting
authorities on other grounds noted in National Treasury Employees Union v Yeutter, 287
US App DC 28, 918 F2d 968, 5 BNA IER Cas 1605, 1990 CCH OSHD ¶ 29143).
Footnote 37. American Federation of Government Employees v Skinner, 280 US App

DC 262, 885 F2d 884, 4 BNA IER Cas 1153, 1989 CCH OSHD ¶ 28659, cert den 495
US 923, 109 L Ed 2d 321, 110 S Ct 1960, 5 BNA IER Cas 480.
Footnote 38. National Treasury Employees Union v Yeutter, 287 US App DC 28, 918
F2d 968, 5 BNA IER Cas 1605, 1990 CCH OSHD ¶ 29143.
Footnote 39. National Treasury Employees Union v Yeutter, 287 US App DC 28, 918
F2d 968, 5 BNA IER Cas 1605, 1990 CCH OSHD ¶ 29143.
Footnote 40. National Federation of Federal Employees v Cheney, 280 US App DC 164,
884 F2d 603, 4 BNA IER Cas 1164, 1989 CCH OSHD ¶ 28657, cert den 493 US 1056,
107 L Ed 2d 948, 110 S Ct 864, 4 BNA IER Cas 1888 and (among conflicting
authorities on other grounds noted in National Treasury Employees Union v Yeutter, 287
US App DC 28, 918 F2d 968, 5 BNA IER Cas 1605, 1990 CCH OSHD ¶ 29143).
§ 137 --Subpoenas for records

View Entire Section
Fourth Amendment protections not only extend to actual searches and seizures, but to the
orderly taking of documents under compulsion of process. 41 However, probable cause
for the issuance of an administrative summons is not the same as probable cause in the
criminal law area–an agency need not have probable cause to believe that a specific
violation of a statute has occurred before it can commence an investigation and subpoena
papers to determine if there has been a violation. 42 Instead, there is probable cause
for the issuance of an administrative subpoena if–
–the investigation is authorized by Congress.
–the investigation is for a purpose Congress can authorize.
–the documents sought are reasonably relevant to the inquiry. 43
Originally, it had been said that the Fourth Amendment prohibited an agency from taking
a fishing expedition through a corporation's papers hoping that something incriminating
would turn up. 44 However, the "fishing expedition" restriction was largely
abandoned by the Supreme Court, which noted that the earlier cases, in which the court
attempted to engraft judicial limitations on subpoenas issued by administrative agencies,
should no longer be followed, since the court became more tolerant of administrative
investigations. 45 Instead, the courts are now willing to enforce an administrative
subpoena, even if it is quite broad, so long as it does not demand the production of
clearly irrelevant documents. 46 All that is required is that the subpoena be
sufficiently limited in scope, relevant in purpose, and specific in directive so that
compliance will not be unreasonably burdensome. 47
A subpoena duces tecum by reason of its scope and onerous requirements may be
unreasonable or constitute an abuse of discretion 48 or an unreasonable search, 49 as
where the search involved is out of proportion to the end sought, 50 or where the
person served being required to bring all his or her books at once to an exploratory
investigation whose purposes and limitations can be determined only as it proceeds. 51
No warrant is required as a predicate to an administrative subpoena which does not

involve efforts of government personnel to make nonconsensual entries into areas not
open to the public, although the subject of a subpoena must be allowed to question the
reasonableness of the subpoena, in an action in district court, before suffering any
penalties for refusing to comply with it. 52
Footnotes
Footnote 41. 68 Am Jur 2d, Searches and Seizures §§ 1, 44.
Footnote 42. United States v Powell, 379 US 48, 13 L Ed 2d 112, 85 S Ct 248, 64-2
USTC ¶ 9858, 9 FR Serv 2d 81a.33, Case 1, 14 AFTR 2d 5942.

Annotation: The Supreme Court and administrative subpoenas, 78 L Ed 2d 940.
Oklahoma Press Pub. Co. v Walling, 327 US 186, 90 L Ed 614, 66 S Ct 494, 10 CCH
LC ¶ 51222, 166 ALR 531.
Footnote 44. FTC v American Tobacco Co., 264 US 298, 68 L Ed 696, 44 S Ct 336, 32
ALR 786.
As to "fishing expeditions" in the judicial discovery process, see 23 Am Jur 2d,

Depositions and Discovery §§ 4, 5.
Shapiro v United States, 335 US 1, 92 L Ed 1787, 68 S Ct 1375, reh den 335 US 836,
93 L Ed 388, 69 S Ct 9.
As to requirement of relevancy in investigations, see § 125.
Footnote 47. Donovan v Lone Steer, Inc., 464 US 408, 78 L Ed 2d 567, 104 S Ct 769,
26 BNA WH Cas 933, 99 CCH LC ¶ 34480.
Footnote 48. Goodyear Tire & Rubber Co. v NLRB (CA6 Ohio) 122 F2d 450, 8 BNA
LRRM 701, 4 CCH LC ¶ 60642, 136 ALR 883 (subpoena calling for card index of
600,000 employees for use not as evidence but to facilitate examination of other data);
Bank of America Nat. Trust & Sav. Ass'n v Douglas, 70 App DC 221, 105 F2d 100, 123
ALR 1266.
Subpoenaing all of a citizen's bank records is permissible under certain circumstances,

when reasonably calculated to obtain information relevant to a state investigation.
Winfield v Division of Pari-Mutuel Wagering, Dept. of Business Regulation (Fla) 477 So
2d 544, 10 FLW 548.
Footnote 49. McMann v SEC (CA2) 87 F2d 377, 109 ALR 1445, cert den 301 US 684,
81 L Ed 1342, 57 S Ct 785.
81 L Ed 1342, 57 S Ct 785; Goodyear Tire & Rubber Co. v NLRB (CA6 Ohio) 122 F2d
450, 8 BNA LRRM 701, 4 CCH LC ¶ 60642, 136 ALR 883.
81 L Ed 1342, 57 S Ct 785.
Footnote 52. Donovan v Lone Steer, Inc., 464 US 408, 78 L Ed 2d 567, 104 S Ct 769,
26 BNA WH Cas 933, 99 CCH LC ¶ 34480 (subpoena duces tecum).
§ 138 Self-incrimination

View Entire Section
It has been recognized that the privilege against self-incrimination can be claimed in any
proceeding, including administrative and investigatory proceedings. 53
However, the privilege against self-incrimination offers no protection against
administrative sanctions which are not criminal or penal in nature, 54 and the
privilege against self-incrimination may be waived. 55 A corporation cannot plead a
privilege against self-incrimination, 56 nor can an individual rely on the privilege
against self-incrimination to avoid producing records of a collective entity which are in
the individual's possession, even if the records might incriminate him or her personally,
although the individual may refuse to answer any question which tends to incriminate
him or her, even though the question relates to corporate affairs. 57
An entity subject to regulation by an administrative agency cannot claim a Fifth

Amendment privilege in records which the law requires it to keep. 58 For this
doctrine to apply, the purpose of the agency's inquiry must be essentially regulatory, the
information to be obtained through the production of the records must be of a kind which
the regulated party has customarily kept, and the records must have assumed public
aspects which render them at least analogous to public documents. 59 Thus, an
administrative agency, in enforcing its regulatory program, can require the delivery of
records which the law requires must be kept, 60 but the required records exception
does not apply if a person is not required to keep the records or the investigation is
essentially criminal. 61
 Caution: A subject of an administrative subpoena can generally not invoke a blanket

Fifth Amendment privilege. Instead, if the agency requests that the subject produce
documents, the subject must identify which documents contain information which may
tend to incriminate the subject. 62
Footnotes
Footnote 53. Re Gault, 387 US 1, 18 L Ed 2d 527, 87 S Ct 1428, 40 Ohio Ops 2d 378

(criticized on other grounds by Allen v Illinois, 478 US 364, 92 L Ed 2d 296, 106 S Ct
2988); Murphy v Waterfront Com. of New York Harbor, 378 US 52, 12 L Ed 2d 678,
84 S Ct 1594, 56 BNA LRRM 2544, 49 CCH LC ¶ 51102, motion den 379 US 898, 13
L Ed 2d 174, 85 S Ct 183 (per White, J., concurring); Commonwealth v Prince, 313
Mass 223, 46 NE2d 755, 152 ALR 571, affd 321 US 158, 88 L Ed 645, 64 S Ct 438, 7
CCH LC ¶ 51172, reh den 321 US 804, 88 L Ed 1090, 64 S Ct 784; State v Rixon, 180
Minn 573, 231 NW 217, 68 ALR 1501; Ronayne v Lombard, 92 Misc 2d 538, 400
NYS2d 693; Re Groban, 164 Ohio St 26, 57 Ohio Ops 70, 128 NE2d 106, affd 352 US
330, 1 L Ed 2d 376, 77 S Ct 510, 3 Ohio Ops 2d 127, 76 Ohio L Abs 368; Re Hearing
before Joint Legislative Committee, 187 SC 1, 196 SE 164, 118 ALR 591.
The privilege against self-incrimination not only permits a person to refuse to testify
against himself at a criminal trial in which he is a defendant, but also privileges him not
to answer official questions put to him in any other proceeding, civil or criminal, formal
or informal, where the answers might incriminate him in future criminal proceedings.

Allen v Illinois, 478 US 364, 92 L Ed 2d 296, 106 S Ct 2988.
As to privilege against self-incrimination, generally, see 21A Am Jur 2d, Criminal Law
§§ 701-716, 936-952, and 81 Am Jur 2d, Witnesses §§ 80-130.
Footnote 54. United States ex rel. Bilokumsky v Tod, 263 US 149, 68 L Ed 221, 44 S
Ct 54 (ovrld on other grounds by Immigration & Naturalization Service v
Lopez-Mendoza, 468 US 1032, 82 L Ed 2d 778, 104 S Ct 3479) (deportation
proceedings are civil in nature so a person may be compelled to testify whether or not he
or she is an alien); Hargis v Florida Real Estate Com. (Fla App D2) 174 So 2d 419
(calling of a broker in disciplinary proceedings as not violating privilege against
self-incrimination). See also Kimm v Rosenberg, 363 US 405, 4 L Ed 2d 1299, 80 S Ct
1139, reh den 364 US 854, 5 L Ed 2d 77, 81 S Ct 30; Abel v United States, 362 US
217, 4 L Ed 2d 668, 80 S Ct 683, reh den 362 US 984, 4 L Ed 2d 1019, 80 S Ct 1056
(involving evidence seized on administrative arrest and used in prosecution for crime).
Footnote 55. 81 Am Jur 2d, Witnesses §§ 152 et seq.
Footnote 56. 81 Am Jur 2d, Witnesses § 100.
335 US 836, 93 L Ed 388, 69 S Ct 9.
As to keeping and disclosure of records, see § 129.
Footnote 59. Grosso v United States, 390 US 62, 19 L Ed 2d 906, 88 S Ct 709, 43 Ohio
Ops 2d 226, 68-1 USTC ¶ 15801, 21 AFTR 2d 554.
335 US 836, 93 L Ed 388, 69 S Ct 9; Baltimore & O. R. Co. v Interstate Commerce
Com., 221 US 612, 55 L Ed 878, 31 S Ct 621.
Footnote 61. Grosso v United States, 390 US 62, 19 L Ed 2d 906, 88 S Ct 709, 43 Ohio
Ops 2d 226, 68-1 USTC ¶ 15801, 21 AFTR 2d 554; Marchetti v United States, 390 US
39, 19 L Ed 2d 889, 88 S Ct 697, 43 Ohio Ops 2d 215, 68-1 USTC ¶ 15800, 21 AFTR
2d 539.
Footnote 62. Interstate Commerce Com. v Gould (CA3 Pa) 629 F2d 847, cert den 449
US 1077, 66 L Ed 2d 800, 101 S Ct 856.
§ 139 --Effect of grant of immunity
View Entire Section

A legislature is empowered to deprive a witness of the constitutional privilege against

self-incrimination by according such witness complete immunity from prosecution for
the offense to which the testimony relates. 63 The general federal immunity statute
provides that whenever a witness refuses to comply with an order to testify or provide
other information on the basis of the privilege against self-incrimination in a proceeding
before or ancillary to an agency, the witness may not refuse to comply with the order on
the basis of the privilege. 64 However, no testimony or other information compelled
under the order, or any information directly or indirectly derived from such testimony or
other information, may be used against the witness in any criminal case, except a
prosecution for perjury, giving a false statement, or otherwise failing to comply with the
order. 65 In addition, an administrative agency conducting an investigation may, with
the approval of the Attorney General, issue an order requiring an individual to give
testimony or provide other information, and grant immunity, if, in the judgment of the
agency: (1) the testimony or other information may be necessary to the public interest;
and (2) such individual has refused or is likely to refuse to testify or provide information
on the basis of the privilege against self-incrimination. 66 However, the grant of
immunity is restricted by the rule that a Fifth Amendment privilege does not apply to
records which must be kept by law, meaning that documents which must be revealed
under this rule may be used in a subsequent prosecution. 67
Footnotes
335 US 836, 93 L Ed 388, 69 S Ct 9.
As to "required records" rule, see § 138.
§ 140 Due process and confrontation clause rights
View Entire Section

An administrative investigation is not an adversary proceeding, and does not result in a

judgment which determines guilt or legal rights. 68 Accordingly, when only
investigative powers of an agency are utilized, due process considerations do not attach.
69 Neither the due process clause of the Fifth Amendment nor the confrontation clause
of the Sixth Amendment is offended when a federal administrative agency, without
notifying a person under investigation, uses its subpoena power to gather evidence
adverse to the person. 70 There is no requirement that the person being investigated be
given notice of charges, 71 the names of informants, 72 a hearing, 73 or the
right to confront and cross-examine complainants, 74 even though the investigation
may affect reputations 75 or result in the commencement of other proceedings. 76
As long as no legal rights are adversely determined during the investigation, the demands
of due process are satisfied if procedural rights are granted in the subsequent
proceedings. 77 However, this rule only applies where the initial proceeding is purely
investigatory, and due process rights must be afforded if a proceeding is essentially
criminal and the agency makes a finding that a specific individual is guilty. 78
Footnotes
As to due process of law, generally, see 16A Am Jur 2d, Constitutional Law §§ 804 et
seq.
Footnote 70. SEC v Jerry T. O'Brien, Inc., 467 US 735, 81 L Ed 2d 615, 104 S Ct 2720,
CCH Fed Secur L Rep ¶ 91515, on remand (CA9) 773 F2d 1070, CCH Fed Secur L Rep
¶ 92362.
364 US 855, 5 L Ed 2d 79, 81 S Ct 33; Isbrandtsen-Moller Co. v United States, 300 US
139, 81 L Ed 562, 57 S Ct 407.
But see People v Lamb (Colo) 732 P2d 1216, holding that the process that is due a
customer of a bank whose records are sought by administrative subpoena includes notice
in advance of execution of the subpoena.
364 US 855, 5 L Ed 2d 79, 81 S Ct 33.
Footnote 73. Isbrandtsen-Moller Co. v United States, 300 US 139, 81 L Ed 562, 57 S

Ct 407.
364 US 855, 5 L Ed 2d 79, 81 S Ct 33.
364 US 855, 5 L Ed 2d 79, 81 S Ct 33.
Footnote 76. Anonymous Nos. 6 & 7 v Baker, 360 US 287, 3 L Ed 2d 1234, 79 S Ct

1157.
Footnote 77. Opp Cotton Mills, Inc. v Administrator of Wage & Hour Div., 312 US 126,
85 L Ed 624, 61 S Ct 524, 3 CCH LC ¶ 51109.
Footnote 78. Jenkins v McKeithen, 395 US 411, 23 L Ed 2d 404, 89 S Ct 1843, 71

BNA LRRM 2385, 60 CCH LC ¶ 52094, reh den 396 US 869, 24 L Ed 2d 123, 90 S Ct
35.

§ 141 Right to counsel
View Entire Section

Since administrative investigative proceedings are not adjudicatory in nature, 79 a party

has no constitutional right to be accompanied by counsel during such proceedings, 80
subject to a possible exception where investigatory administrative proceedings may result
in criminal prosecutions. 81 However, it has been held that no constitutional right is
violated by the denial of the assistance of counsel in purely investigatory preliminary
proceedings, even though information obtained at the proceedings might provide the
basis for subsequent criminal charges. 82
Footnotes
Footnote 80. Anonymous Nos. 6 & 7 v Baker, 360 US 287, 3 L Ed 2d 1234, 79 S Ct

1157; Wasson v Trowbridge (CA2 NY) 382 F2d 807, on remand (ED NY) 285 F Supp
936; United States v Steel (SD NY) 238 F Supp 575; Smith v United States (DC NJ) 250
F Supp 803, 66-1 USTC ¶ 9406, 17 AFTR 2d 910, app dismd (CA3 NJ) 377 F2d 739,
67-2 USTC ¶ 9485; Haines v Askew (MD Fla) 368 F Supp 369, affd 417 US 901, 41 L
Ed 2d 208, 94 S Ct 2596; Finance Com. of Boston v Mayor of Boston, 370 Mass 693,
351 NE2d 517 (no constitutional right to assistance of counsel for witness in
investigation of political fund raising); Haaland v Pomush, 263 Minn 506, 117 NW2d
194, 45 CCH LC ¶ 50626; Brougham v Normandy (Mo App) 812 SW2d 919.
As to right to counsel in criminal proceedings, see 21A Am Jur 2d, Criminal Law §§
732-763, 967-992.
Annotation: Comment Note.–Right to assistance by counsel in administrative

proceedings, 33 ALR3d 229.
Footnote 81. Mathis v United States, 391 US 1, 20 L Ed 2d 381, 88 S Ct 1503, 68-1

USTC ¶ 9357, 21 AFTR 2d 1251 (criticized on other grounds by Illinois v Perkins, 496
US 292, 110 L Ed 2d 243, 110 S Ct 2394) as stated in People v Alls (NY) 1993 NY
LEXIS 4361.
But see Popper v Board of Regents (3d Dept) 26 App Div 2d 871, 274 NYS2d 49,
holding that the presence of counsel is not a mandatory requirement in an administrative
proceeding such as an interview on possible professional misconduct charges despite the
fact that the information elicited might provide the basis for subsequent criminal charges.
Footnote 82. Ronayne v Lombard, 92 Misc 2d 538, 400 NYS2d 693.

§ 142 --Statutory right; federal Administrative Procedure Act
View Entire Section

Despite the fact that the right to counsel is not a constitutional right in investigations,
statutes may grant the right to assistance of counsel. Persons may have the right to be
accompanied by and assisted by counsel in informal administrative proceedings under
state statute. 83 In addition, the federal Administrative Procedure Act grants a person
compelled to appear in person before an agency or a representative thereof the right to be
accompanied, represented, and advised by counsel, or if permitted by the agency, by
another qualified representative. 84 Anyone compelled to appear before an investigator,
including a person other than the party being investigated, 85 is entitled to be
represented by counsel, although it has been questioned whether a person who
voluntarily appears before an investigator, and is not compelled to appear, has a right to
counsel under the federal Administrative Procedure Act. 86
The right to counsel, as granted by the federal APA, has been interpreted to mean counsel
of one's choice. 87 This general maxim has run into conflict with some agency rules
which provide that an attorney may not represent more than one witness or the person or
entity being investigated and other witnesses. While originally it was held that such rules
do not interfere with a party's statutory right to counsel, 88 it has been more recently
held that such rules do interfere with a party's right to counsel of the party's own choice
and cannot be enforced unless the agency can show by concrete evidence that such
multiple representation will obstruct and impede the investigation. 89
Footnotes
Footnote 83. Thompson v Department of Professional Regulation, Bd. of Medical

Examiners (Fla App D1) 488 So 2d 103, 11 FLW 937 (right to counsel at informal
hearing).
Footnote 85. Backer v Commissioner (CA5 Ga) 275 F2d 141, 60-1 USTC ¶ 9285, 5
AFTR 2d 824.
Footnote 86. Smith v United States (DC NJ) 250 F Supp 803, 66-1 USTC ¶ 9406, 17
AFTR 2d 910, app dismd (CA3 NJ) 377 F2d 739, 67-2 USTC ¶ 9485.
AFTR 2d 824; Great Lakes Screw Corp. v NLRB (CA7) 409 F2d 375, 70 BNA LRRM
2769, 59 CCH LC ¶ 13305; SEC v Higashi (CA9 Hawaii) 359 F2d 550.
Footnote 88. United States v Smith (DC Conn) 87 F Supp 293, 50-1 USTC ¶ 9205, 38
AFTR 1075; United States v Steel (SD NY) 238 F Supp 575.
AFTR 2d 824; SEC v Csapo, 174 US App DC 339, 533 F2d 7, CCH Fed Secur L Rep ¶
95502.
§ 143 Right to transcript
View Entire Section

The federal Administrative Procedure Act provides that a person who is compelled to
submit data or evidence to an administrative agency is entitled to retain or purchase a
copy or transcript of such evidence. 90 However, in a nonpublic investigatory
proceeding, for good cause shown, the witness may be limited to inspecting the official
transcript of the witness' testimony. 91 Again, the statute only applies to persons
compelled to submit data or information, and a person who appears voluntarily 92 or is
not subpoenaed 93 is not entitled to a transcript.
A witness at an investigative hearing is only entitled to the official transcript, and is not
entitled to have his or her own court reporter present to take down the witness' testimony.
94
If an agency decides to hold a nonpublic investigation, the Administrative Procedure Act

95 authorizes it to refuse to furnish a transcript to a witness. 96 However, only the
agency, and not the person submitting the information, has the power to withhold a
transcript and claim that its contents are confidential, and once an agency decides that
secrecy is no longer required, it can turn over a transcript to private parties in related civil
actions. 97 Furthermore, a copy of the transcript cannot be denied on the ground that the
witness was unwilling to sign the original. 98
Footnotes
As to right to inspect public records, generally, see 66 Am Jur 2d, Records and
Footnote 92. United States v Murray (CA2 NY) 297 F2d 812, 62-1 USTC ¶ 9188, 9
AFTR 2d 558, cert den 369 US 828, 7 L Ed 2d 794, 82 S Ct 845.
Footnote 93. United States v Van Allen (SD NY) 28 FRD 329.
Footnote 94. Re Neil (SD W Va) 209 F Supp 76, 62-2 USTC ¶ 9823, 10 AFTR 2d 6113;
Torras v Stradley (ND Ga) 103 F Supp 737, 52-1 USTC ¶ 9362, 41 AFTR 1029.

Footnote 96. Commercial Capital Corp. v SEC (CA7) 360 F2d 856.
Footnote 97. La Morte v Mansfield (CA2) 438 F2d 448, CCH Fed Secur L Rep ¶ 92935,
14 FR Serv 2d 1126.
Footnote 98. Re Neil (SD W Va) 209 F Supp 76, 62-2 USTC ¶ 9823, 10 AFTR 2d 6113.
§ 144 Confidentiality; trade secrets
View Entire Section

Although federal courts have long recognized a qualified evidentiary privilege for trade
secrets, they have not given trade secrets automatic and immediate immunity against
disclosure, but in each case weigh the claim to privacy against the need for disclosure. 99
Administrative agencies have the power to compel the production of confidential records,
in the course of an investigation. 1 All the agency need establish is that the
information is relevant and needed. 2
If a regulatory statute so permits or requires, an administrative agency may disclose

information contained in reports filed with it, even though the regulated party contends
that such information constitutes a trade secret. 3 In the absence of such statutory
authorization, the Trade Secrets Act 4 prohibits a government employee from disclosing
confidential information received in the employee's official capacity. 5 The Trade
Secrets Act does not, however, provide any assurance against internal agency use of
submitted data during consideration of the application of a subsequent applicant for
registration. 6
Where a statute empowers an agency to conduct its proceedings in such a manner as will
best conduct to the proper dispatch of business and to the ends of justice, an agency may
promulgate reasonable procedural rules governing the public disclosure of information. 7
Such rules may provide that information gathered during the course of an investigation
may be disclosed unless the person requesting confidential treatment demonstrates that
the public interest, public dispatch of business, or the ends of justice would be served by
a nonpublic investigation or in camera treatment of submitted materials. 8 Information
of a confidential nature gained by one administrative branch of the government from
another may be used in preparation for an investigation or in determining the matter
investigated, but it should not be disclosed to the public in advance of a hearing. 9
Footnotes
Footnote 99. 23 Am Jur 2d, Depositions and Discovery § 47.
Footnote 1. FCC v Schreiber, 381 US 279, 14 L Ed 2d 383, 85 S Ct 1459; Utah Fuel

Co. v National Bituminous Coal Com., 306 US 56, 83 L Ed 483, 59 S Ct 409.
The Board of Public Utilities could compel disclosure of customer lists, whether they
constituted trade secrets or not, so long as the lists were sufficiently protected from
public disclosure. Re Request for Solid Waste Utility Customer Lists, 106 NJ 508, 524
A2d 386.
Footnote 2. Federal Trade Com. v Lonning, 176 US App DC 200, 539 F2d 202, 1976-1
CCH Trade Cases ¶ 60942.
Footnote 3. Utah Fuel Co. v National Bituminous Coal Com., 306 US 56, 83 L Ed 483,
59 S Ct 409.
Footnote 5. As to the right to inspect records containing secret or privileged matters,

generally, see 66 Am Jur 2d, Records and Recording Laws §§ 27 et seq.
Footnote 6. Ruckelshaus v Monsanto Co., 467 US 986, 81 L Ed 2d 815, 104 S Ct 2862,

21 Envt Rep Cas 1062, 14 ELR 20539, later proceeding (CA8 Mo) 753 F2d 649, 22 Envt
Rep Cas 1169.
Footnote 7. FCC v Schreiber, 381 US 279, 14 L Ed 2d 383, 85 S Ct 1459.
Footnote 8. FCC v Schreiber, 381 US 279, 14 L Ed 2d 383, 85 S Ct 1459.
F2d 100, 123 ALR 1266 (use, by Federal Securities and Exchange Commission, of
national bank examiners' reports furnished to the Commission by Secretary of the
Treasury).
§ 145 Privileges of witnesses
View Entire Section

Courts have sometimes held that certain privileges of witnesses obtain in the context of
administrative investigations. It has been stated, for instance, under certain evidence
statutes that the attorney-client privilege applies to administrative investigations. 10
Such courts state that when an agency has the power to compel testimony, its power must
be tempered by the attorney-client privilege, unless there is an unambiguous statutory
directive to the contrary. 11 The principle of attorney-client privilege prevents an
agency from subpoenaing papers from an attorney if they would be privileged in the
hands of the client. 12 However, nonprivileged documents are not immunized when
they are turned over to an attorney. 13
Nevertheless, when administrative agencies conduct nonadjudicative, fact-finding

investigations, rights such as appraisal or specific notice, confrontation, and
cross-examination of witnesses on behalf of other witnesses before the agency generally
do not obtain. 14

Footnotes
Footnote 10. Southern Cal. Gas Co. v Public Utilities Com., 50 Cal 3d 31, 265 Cal Rptr
801, 784 P2d 1373.
As to privileges of witness in the judicial context, generally, see 81 Am Jur 2d,

Witnesses §§ 285 et seq.
Footnote 11. Southern Cal. Gas Co. v Public Utilities Com., 50 Cal 3d 31, 265 Cal Rptr
801, 784 P2d 1373.
Footnote 12. Fisher v United States, 425 US 391, 48 L Ed 2d 39, 96 S Ct 1569, 76-1
USTC ¶ 9353, 37 AFTR 2d 76-1244 (not followed on other grounds by Re Grand Jury
Proceedings of Guarino, 104 NJ 218, 516 A2d 1063).
Footnote 13. Fisher v United States, 425 US 391, 48 L Ed 2d 39, 96 S Ct 1569, 76-1
USTC ¶ 9353, 37 AFTR 2d 76-1244 (not followed on other grounds by Re Grand Jury
Proceedings of Guarino, 104 NJ 218, 516 A2d 1063).
Forms: Defense to contempt charge with respect to court-enforced agency

subpoena–Subpoenaed information protected from disclosure as privileged information
communicated pursuant to confidential attorney-client relation [5 USCS § 555(d); 18
USCS § 401(3); FRE 501, 1101(c)]. 6A Federal Procedural Forms, L Ed, Contempt §
16:81.
364 US 855, 5 L Ed 2d 79, 81 S Ct 33.
C. Enforcement of Administrative Order or Subpoena [146-151]
Research References
5 USCS § 555; 28 USCS § 1291
FRCP 7, 81
Model State Administrative Procedure Act (1981) §§ 5-201, 5-202, 5-205
6A Federal Procedural Forms, L Ed, Contempt §§ 16:76, 16:80
§ 146 Generally; necessity of court proceedings
View Entire Section

Administrative officials themselves do not have the power to enforce subpoenas, 15

and a subordinate administrative official cannot, consistently with due process, finally
determine whether a person is obligated to answer particular questions or turn over
specified records to an agency. 16 An administrative officer has no power to hold a
party in contempt or otherwise punish a party for contesting the validity of a subpoena
before there is a judicial order of enforcement. 17 Most regulatory statutes confer
appropriate jurisdiction and provide for an application by the administrative agency, 18
to a specified court for an order enforcing the administrative order or subpoena. 19
However, some statutes only allow judicial enforcement in the case of contumacy or
refusal to obey a subpoena issued by an agency in a contested case. 20
 Observation: Under the 1981 version of the Model State Administrative Procedure
Act, in addition to other remedies provided by law, an agency may seek enforcement of
its order by filing a petition for civil enforcement in the trial court of general
jurisdiction. 21 In addition, a person who would qualify under the Act as having
standing to obtain judicial review of an agency's failure to enforce its order may file a
petition for civil enforcement of that order under certain circumstances. 22
Judicial enforcement allows the person to whom the order or subpoena is directed to test
its validity, 23 before suffering penalties for refusal to comply, 24 and the parties
against whom the proceedings are brought to have finally determined any legal reason
why enforcement should be withheld. 25 Moreover, once a court grants an order of
enforcement, that order is like any other court order and may be enforced by the court in
contempt proceedings. 26
 Caution: Despite the fact that judicial enforcement of subpoenas is necessary, the
court has no authority to control the procedure in the investigation or to condition
enforcement of the subpoena upon the agency's first reaching and announcing a
decision on some of the issues in the administrative proceeding or to decide the
question which it is the purpose of the administrative proceeding, and the authority of
the agency, to decide. 27
Footnotes
494, 10 CCH LC ¶ 51222, 166 ALR 531; State, Dept. of Revenue v Moore (Tenn) 722
SW2d 367.
Law Reviews: Benton, Administrative Subpoena Enforcement. 41 Tex L Rev 874

(1962-63).

Ct 1125, appeal after remand 155 US 3, 39 L Ed 49, 15 S Ct 19.
Footnote 17. Reisman v Caplin, 375 US 440, 11 L Ed 2d 459, 84 S Ct 508, 64-1 USTC
¶ 9202, 13 AFTR 2d 457 (superseded by statute on other grounds as stated in United
States v Millman (CA2) 822 F2d 305, 87-2 USTC ¶ 9397, 61 AFTR 2d 88-1037);
Cudahy Packing Co. v Holland, 315 US 357, 86 L Ed 895, 62 S Ct 651, 5 CCH LC ¶
51129 (superseded by statute on other grounds as stated in Donovan v National Bank of
Alaska (CA9 Alaska) 696 F2d 678, 3 EBC 2513).
Footnote 18. Civil Aeronautics Board v Hermann, 353 US 322, 1 L Ed 2d 852, 77 S Ct

804, reh den 354 US 927, 1 L Ed 2d 1441, 77 S Ct 1376; Penfield Co. of California v
SEC, 330 US 585, 91 L Ed 1117, 67 S Ct 918, reh den 331 US 865, 91 L Ed 1870, 67
S Ct 1301; Goodyear Tire & Rubber Co. v NLRB (CA6 Ohio) 122 F2d 450, 8 BNA
LRRM 701, 4 CCH LC ¶ 60642, 136 ALR 883; State ex rel. Railroad & Warehouse
Com. v Mees, 235 Minn 42, 49 NW2d 386, 27 ALR2d 1197; Mayers v Bronson, 100
Utah 279, 114 P2d 213, 136 ALR 698.
Footnote 19. NLRB v Duval Jewelry Co., 357 US 1, 2 L Ed 2d 1097, 78 S Ct 1024, 42

BNA LRRM 2206, 35 CCH LC ¶ 71578, on remand (CA5 Fla) 257 F2d 672, 42 BNA
LRRM 2639, 35 CCH LC ¶ 71764; Harris v Stutzman, 42 Ohio St 3d 13, 536 NE2d
1154, 29 BNA WH Cas 446, 113 CCH LC ¶ 56146; Mayers v Bronson, 100 Utah 279,
114 P2d 213, 136 ALR 698.
Forms: Motion in district court–For order to show cause–Alleged contempt for refusal
to testify in violation of court-enforced agency subpoena [5 USCS § 555(d); 18 USCS
§ 401(3)]. 6A Federal Procedural Forms, L Ed, Contempt § 16:76.
Defense to contempt charge with respect to court-enforced agency subpoena–Failure to

obey subpoena for production for documents due to inability to comply [5 USCS §
555(d); 18 USCS § 401(3)]. 6A Federal Procedural Forms, L Ed, Contempt § 16:80.
Footnote 20. Re Contempt Order Issued against Anderson (Wyo) 765 P2d 933, 28 Envt
Rep Cas 1916.
494, 10 CCH LC ¶ 51222, 166 ALR 531.
Footnote 25. Walling v La Belle S.S. Co. (CA6 Ohio) 148 F2d 198, 9 CCH LC ¶ 62583.
Footnote 26. Shasta Minerals & Chemical Co. v SEC (CA10 Utah) 328 F2d 285, on
remand (DC Utah) 36 FRD 23.
Practice References Judicial contempt proceedings. 7A Federal Procedure, L Ed,

Contempt §§ 17:1 et seq.
Footnote 27. Endicott Johnson Corp. v Perkins, 317 US 501, 87 L Ed 424, 63 S Ct 339,
6 CCH LC ¶ 51149, holding that it was improper for the trial court to try the issue of
coverage, deciding against the Secretary of Labor, in a proceeding by the Secretary under
the Walsh-Healey Act, charging a contractor with the government with failure to pay
required overtime where the Secretary sought evidence of underpayment before making a
decision on the question whether the particular plants were covered by the act.
§ 147 Independent actions; necessity of exhausting administrative remedies

View Entire Section
Federal courts have heard independent actions to enjoin the holding of an investigative
hearing 28 or to enjoin a warrantless search. 29 Parties have also attempted to
bring independent actions to vacate and quash administrative summonses. 30 Such
independent actions may be proper if the agency has clearly violated a right secured by
statute or regulation and the issue presented is strictly legal and cannot be later judicially
reviewed. 31 However, if a challenge is not maintainable on the ground that the
investigatory method is not authorized by law, but a party instead challenges the scope of
the investigative demand, the party must first present its objection to the agency before
raising the objection in court. 32 This requirement assures that any problems with
the subpoena are brought to the attention of the agency and the agency has the
opportunity to disclaim any inadvertent excesses. 33 Once the party being investigated
makes a record before the agency, the party's remedy is to present a defense in the
proceeding to enforce the subpoena. 34 A cross-motion to quash may be brought in
the enforcement proceeding, and then the court must reach the merits of the objectant's
claims. 35
Although a challenge to a subpoena must be raised before an agency, there is no

requirement that the agency grant a formal hearing on the challenge. 36
Footnotes
364 US 855, 5 L Ed 2d 79, 81 S Ct 33.

(CA2) 739 F2d 774, 1985 AMC 46).
Footnote 30. Re Application of Levine (SD NY) 149 F Supp 642, 56-1 USTC ¶ 9292, 50
AFTR 2164, affd (CA2 NY) 243 F2d 175, 57-2 USTC ¶ 9861, 52 AFTR 593.
Footnote 31. FTC v Miller (CA7 Ind) 549 F2d 452, 1977-1 CCH Trade Cases ¶ 61265.
US 1, 6 L Ed 2d 625, 81 S Ct 1357, reh den 368 US 871, 7 L Ed 2d 72, 82 S Ct 20;
United States v Morton Salt Co., 338 US 632, 94 L Ed 401, 70 S Ct 357.
Footnote 34. Reisman v Caplin, 375 US 440, 11 L Ed 2d 459, 84 S Ct 508, 64-1 USTC
¶ 9202, 13 AFTR 2d 457 (superseded by statute on other grounds as stated in United
States v Millman (CA2) 822 F2d 305, 87-2 USTC ¶ 9397, 61 AFTR 2d 88-1037); United
States v Morton Salt Co., 338 US 632, 94 L Ed 401, 70 S Ct 357.
Footnote 35. United States SEC v Isbrandtsen (SD NY) 245 F Supp 518.

Footnote 36. Federal Trade Com. v Hallmark, Inc. (CA7 Ill) 265 F2d 433.
§ 148 Enforcement procedure
View Entire Section

Go to Supplement
The Federal Rules of Civil Procedure apply to court proceedings to enforce an agency
subpoena issued under any federal statute, except as otherwise provided by statute,
District Court rules, or court order in the particular proceeding. 37 Accordingly, if the
particular regulatory statute contains no provision specifying the procedure to be
followed in an enforcement proceeding, the procedures specified in the Federal Rules of
Civil Procedure are to be followed. 38 However, a rigid application of the rules in
proceedings for enforcement of administrative subpoenas may conflict with the summary
determination desired; accordingly, the rules are drawn to permit the application of any
of the Federal Rules of Civil Procedure in such proceedings whenever the District Court
deems them helpful. 39
An enforcement action may be commenced by way of motion or order to show cause, 40

and a formal complaint is not required. 41 Allowance of discovery may be discretionary
with the court. 42 Consistent with the summary nature of the proceedings, discovery is
usually not permitted, and the decision whether to allow discovery is in the trial judge's
discretion. 43 Discovery may be restricted, unless the respondent in the enforcement
proceeding presents some preliminary evidence which indicates that the issuance of the
subpoena was based on improper motives, 44 but a respondent will be granted discovery
once the respondent has successfully put the legitimacy of the subpoena at issue, so that
the respondent may meet the respondent's burden of showing that the subpoena was
issued for solely improper purposes. 45 It may not be necessary for the court to hold an
evidentiary hearing in all cases. 46
§ 148 ----Enforcement procedure [SUPPLEMENT]
Case authorities:
Court cannot entertain pre- enforcement challenge to administrative subpoenas issued by

Resolution Trust Corporation, since such challenge is not ripe for judicial review. Lopes
v Resolution Trust Corp. (1994, DC RI) 155 FRD 14.
Complaint seeking relief from RTC subpoenas duces tecum must be dismissed pursuant
to FRCP 12(b)(1), where former directors of failed savings institution are under no legal
compulsion to comply with subpoenas until RTC files enforcement action under 12
USCS § 1818(n), because preenforcement challenges to administrative subpoenas are
not ripe for judicial review. Sight v Resolution Trust Corp. (1994, DC Kan) 852 F Supp
28.

Footnotes
Footnote 37. FRCP 81(a)(3).
Annotation: Procedural requirements for judicial enforcement of subpoenas issued by

Federal Trade Commission under § 9 of Federal Trade Commission Act (15 USC §
49), 7 ALR Fed 347.
Footnote 39. United States v Morgan Guaranty Trust Co. (CA2 NY) 572 F2d 36, 78-1
USTC ¶ 9235, 24 FR Serv 2d 1322, 41 AFTR 2d 78-644, cert den 439 US 822, 58 L Ed
2d 114, 99 S Ct 89, reh den 439 US 997, 58 L Ed 2d 671, 99 S Ct 599.
Footnote 40. FRCP 7(b)(1).
Footnote 41. Federal Maritime Com. v New York Terminal Conference (SD NY) 262 F
Supp 225, 10 FR Serv 2d 1582, affd (CA2 NY) 373 F2d 424; United States v Newman
(CA5 Fla) 441 F2d 165, 71-1 USTC ¶ 9329, 14 FR Serv 2d 1632, 27 AFTR 2d 71-1169
(superseded by statute on other grounds as stated in Re EEOC (CA5) 709 F2d 392, 32
BNA FEP Cas 361, 32 CCH EPD ¶ 33716, 37 FR Serv 2d 1060); Federal Maritime Com.
v Transoceanic Terminal Corp. (ND Ill) 252 F Supp 743, 10 FR Serv 2d 1571; Long
Beach Federal Sav. & Loan Asso. v Federal Home Loan Bank Board (SD Cal) 189 F
Supp 589, revd on other grounds (CA9 Cal) 295 F2d 403; United States v Stoltz (DC Dist
Col) 525 F Supp 617; Federal Trade Com. v Sherry (DC Dist Col) 13 FR Serv 2d 1382.
Footnote 42. United States v Howard (CA3 Pa) 360 F2d 373, 66-1 USTC ¶ 9390, 10 FR
Serv 2d 1573, 17 AFTR 2d 900; Federal Trade Com. v Bramman (WD Mo) 54 FRD 364,
1972 CCH Trade Cases ¶ 74045, 16 FR Serv 2d 296; United States v Bell (CA9 Nev)
448 F2d 40, 71-2 USTC ¶ 9649, 28 AFTR 2d 71-5718; FTC v Browning, 140 US App
DC 292, 435 F2d 96, 1970 CCH Trade Cases ¶ 73349, 14 FR Serv 2d 1337; Federal
Trade Com. v Sherry (DC Dist Col) 13 FR Serv 2d 1382.
Footnote 43. EEOC v Roadway Express, Inc. (WD Tenn) 580 F Supp 1063, 35 BNA FEP
Cas 842, 33 CCH EPD ¶ 34178, affd (CA6 Tenn) 750 F2d 40, 36 BNA FEP Cas 867, 35
CCH EPD ¶ 34856.
Footnote 44. United States v Salter (CA1 RI) 432 F2d 697, 70-2 USTC ¶ 9648, 14 FR
Serv 2d 1020, 26 AFTR 2d 70-5686.
Footnote 45. United States v McGovern (MD Pa) 87 FRD 590, 30 FR Serv 2d 1246.
Footnote 46. FTC v MacArthur (CA7) 532 F2d 1135, 1976-1 CCH Trade Cases ¶ 60802;
Federal Trade Com. v Sherry (DC Dist Col) 13 FR Serv 2d 1382.
§ 149 Enforceability of subpoenas
View Entire Section

Go to Supplement
Generally, courts will not interfere with the decision of an agency to issue subpoenas in
conducting an investigation; 47 and under the federal Administrative Procedure Act, a
court is required to sustain a subpoena to the extent that it is found to be in accordance
with the law. 48 Since it is generally up to an administrator to define the scope of the
administrator's inquiry, a court has the plain duty to enforce an administrative subpoena
unless the evidence sought is clearly incompetent or irrelevant, 49 the demand for
information is too indefinite, 50 the purpose of the investigation was not authorized
by statute, 51 or proper administrative steps were not followed in issuing the
subpoena. 52 Thus, enforcement will be denied if the agency has clearly been
denied regulatory jurisdiction by the applicable statutes, 53 or the proceeding has been
terminated and administrative jurisdiction lost, 54 or the summons had been issued for
an improper purpose, such as harassing the respondent or putting pressure on the
respondent to settle a collateral dispute, 55 or the subpoena was issued by someone
who was not legally appointed or authorized to issue subpoenas; 56 and subpoenas duces
tecum have been quashed, when the only showing made by the issuing body is a bare
recital of the receipt of a complaint with no identifying or authenticating detail. 57
Likewise, an unreasonable order or subpoena will not be enforced, 58 and if it should
appear to the court that the subpoena is too broadly drawn, it may be modified
accordingly. 59 The court will also consider constitutional rights and privileges. 60
However, in the absence of clear-cut abuse or invalidity, a subpoena will be enforced. 61
Accordingly, generalized attacks on the breadth of an administrative subpoena are
seldom successful. 62
It has been indicated that the agency has the burden to show that the investigation will be
conducted pursuant to a legitimate purpose, that the information sought is not already
within the agency's possession, and that administrative steps required by statute have
been followed. 63 But once this burden is met, the challenger must then show that
the issuance of the summons was an abuse of process; otherwise the summons will be
enforced. 64 Once the agency has met its burden of proof by showing that the
subpoena was issued for a lawful purpose and that the information sought is relevant to
that purpose, the respondent must meet the heavy burden of showing extreme
circumstances that will justify further inquiry into the propriety of the subpoena. General
allegations of bad faith will not suffice. 65
Before determining whether a particular investigation method deprives a party of the

party's constitutional rights, the courts will determine whether that method is authorized
by statute. This procedure avoids a premature determination of the constitutional
question. 66
§ 149 ----Enforceability of subpoenas [SUPPLEMENT]
Practice Aids: Revoking the "fishing license:" recent decisions place unwarranted
restrictions on administrative agencies' power to subpoena personal financial records,
49 Vand LR 2:395 (1996).
Case authorities:

Subpoenas issued by Office of Inspector General (OIG) to operator of HUD-regulated
apartment project is enforced, where subpoena requested financial information relating to
accounts maintained by or transactions for benefit of operator, his wife, or their residence
beginning 6 months prior to operator's operation of project, because time period covered
by subpoenas is reasonably related to OIG's legitimate investigation of possible
misappropriation of project funds and because subpoenas are not overbroad since
transactions for benefit of or accounts of operator's wife and residence are relevant to
IOG's investigation of possible misappropriation of funds from HUD project. Dawar v
United States Dep't of Hous. & Urban Dev. (1993, DC Kan) 820 F Supp 545.
In proceeding to enforce administrative subpoena duces tecum issued by Resolution

Trust Corporation under 12 USCS § 1821(d)(2)(I) (as made applicable by 12 USCS §
1441a(b)), federal law, rather than state law, applies to determination of attorney-client
privilege claim. Linde Thomson Langworthy Kohn & Van Dyke, P.C. v Resolution Trust
Corp. (1993, App DC) 5 F3d 1508, 37 Fed Rules Evid Serv 1119, 26 FR Serv 3d 1330,
motion den (App DC) 1993 US App LEXIS 26648.
Footnotes
Footnote 47. Abrams v Kearney, 133 Misc 2d 845, 508 NYS2d 850.
Footnote 48. 5 USCS § 555(d).
5 USCS § 555(d) is permissive only and not a condition to any other action. Application
of Colton (CA2 NY) 291 F2d 487, 61-2 USTC ¶ 9530, 8 AFTR 2d 5062.
USTC ¶ 9858, 9 FR Serv 2d 81a.33, Case 1, 14 AFTR 2d 5942; Oklahoma Press Pub.
Co. v Walling, 327 US 186, 90 L Ed 614, 66 S Ct 494, 10 CCH LC ¶ 51222, 166 ALR
531; State ex rel. Railroad & Warehouse Com. v Mees, 235 Minn 42, 49 NW2d 386, 27
ALR2d 1197; Application of Dairymen's League Co-op. Ass'n, 274 App Div 591, 84
NYS2d 749, affd 299 NY 634, 86 NE2d 509.
531.
531; Millan v Restaurant Enterprises Group, Inc. (Cal App 4th Dist) 18 Cal Rptr 2d 198,
93 CDOS 2168, 93 Daily Journal DAR 3759.
531.
Some courts have adopted a four-part test for judicial enforceability of subpoenas which

requires that subpoenas be: (1) within the statutory authority of the agency; (2)
reasonably specific; (3) not unduly burdensome; and (4) reasonably relevant to the
matters under investigation. Iowa City Human Rights Com. v Roadway Express, Inc.
(Iowa) 397 NW2d 508, 42 BNA FEP Cas 1270, 42 CCH EPD ¶ 36938.
Footnote 53. FTC v Miller (CA7 Ind) 549 F2d 452, 1977-1 CCH Trade Cases ¶ 61265;
Federal Trade Com. v Feldman (CA7 Ill) 532 F2d 1092, 1976-1 CCH Trade Cases ¶
60742.
WH Cas 705, 114 CCH LC ¶ 56172).
As to requirement of legitimate purpose in investigation, see § 124.
Footnote 56. Federal Home Loan Bank Board v Long Beach Federal Sav. & Loan Asso.
(CA9 Cal) 295 F2d 403.
Div 2d 101, 544 NYS2d 1.
F2d 100, 123 ALR 1266; Francis v Accardo (La App 1st Cir) 602 So 2d 1066.
The conditions under which production of records are ordered must not be unreasonable.
Walling v Benson (CA8 Mo) 137 F2d 501, 7 CCH LC ¶ 61741, 149 ALR 186, cert den
320 US 791, 88 L Ed 476, 64 S Ct 206.
Footnote 59. Falsone v United States (CA5 Fla) 205 F2d 734, 53-2 USTC ¶ 9467, 44
AFTR 123, cert den 346 US 864, 98 L Ed 375, 74 S Ct 103.

Ct 1125, appeal after remand 155 US 3, 39 L Ed 49, 15 S Ct 19.
As to constitutional rights and privileges in investigations, generally, see §§ 133 et seq.
Footnote 62. Federal Trade Com. v Crafts, 355 US 9, 2 L Ed 2d 23, 78 S Ct 33, reh den
355 US 885, 2 L Ed 2d 115, 78 S Ct 146, in which the Supreme Court reversed a Court
of Appeals holding that a subpoena was too broad. The Supreme Court reversed without
any discussion, citing only Endicott Johnson Corp. v Perkins, 317 US 501, 87 L Ed 424,
63 S Ct 339, 6 CCH LC ¶ 51149 and Oklahoma Press Pub. Co. v Walling, 327 US 186,
90 L Ed 614, 66 S Ct 494, 10 CCH LC ¶ 51222, 166 ALR 531, both discussed supra,
this section.
USTC ¶ 9858, 9 FR Serv 2d 81a.33, Case 1, 14 AFTR 2d 5942; United States v Security
State Bank & Trust (CA5 Tex) 473 F2d 638, 22 ALR Fed 922.
As to requirement that investigation have a legitimate purpose, see § 124.
Footnote 65. United States v RFB Petroleum, Inc. (Em Ct App) 703 F2d 528, later
proceeding (Em Ct App) 731 F2d 901.
364 US 855, 5 L Ed 2d 79, 81 S Ct 33.
§ 150 Enforcement order
View Entire Section

If a court determines that an administrative subpoena should be enforced, it must issue an

order requiring the appearance of the witness, or the production of the evidence or data
requested, within a reasonable time. 67 The order must also provide that in the case of a
contumacious failure to comply, the respondent is subject to punishment for contempt. 68
If a court finds that an investigative order of an administrative agency is only sustainable
in part, it may order compliance with only part of the demand. 69 In addition, a
court may modify a subpoena if it appears that the subpoena as written is too broad or
oppressive, 70 and may also order production under conditions which assure that the
respondent's business is not unduly disrupted. 71
Footnotes
Footnote 69. St. Regis Paper Co. v United States, 368 US 208, 7 L Ed 2d 240, 82 S Ct
289, reh den 368 US 972, 7 L Ed 2d 401, 82 S Ct 437 and motion den 369 US 809, 7
L Ed 2d 611, 82 S Ct 686; NLRB v Anchor Rome Mills, Inc. (CA5 Ga) 197 F2d 447, 30
BNA LRRM 2292, 21 CCH LC ¶ 67013.
Footnote 70. Federal Communications Com. v Cohn (DC NY) 154 F Supp 899.
Footnote 71. Civil Aeronautics Board v Hermann, 353 US 322, 1 L Ed 2d 852, 77 S Ct

804, reh den 354 US 927, 1 L Ed 2d 1441, 77 S Ct 1376.
§ 151 Appeal of enforcement order

View Entire Section
A proceeding to enforce an administrative subpoena is an independent proceeding, and

an order by a District Court enforcing such a subpoena is a final order appealable 72 as
of right. 73 Finality is not defeated by the fact that the District Court retains
jurisdiction to grant further relief. 74 However, an order by a magistrate judge in a
subpoena enforcement proceeding is generally not final until it is reviewed by a district
judge. 75
An appeal from a district court order enforcing an administrative subpoena is rendered

moot upon the subject's compliance with the subpoena. 76 No live controversy is
created by the fact that the party remains subject to the subpoena, since future attempts at
enforcement may not occur and, if they do occur, present their own opportunity for
review. 77 Furthermore, while a party may challenge a subpoena in an effort to recover
records which the government obtained through the subpoena, a party cannot by means
of judicial review of enforcement of a subpoena prevent the future use of his or her
subpoenaed testimony by the government, since such a challenge is ripe only when such
future use is an actual and not a speculative possibility. 78
 Observation: The 1981 version of the Model State Administrative Procedure Act
states that decisions on petitions for civil enforcement are reviewable by the appellate
court as in other civil cases. 79
Footnotes
Footnote 72. Pursuant to 28 USCS § 1291.
Footnote 73. United States v McDonald (CA2 NY) 313 F2d 832, 63-1 USTC ¶ 9313, 11
AFTR 2d 899; United States v Church of Scientology (CA9 Cal) 520 F2d 818, 75-2
USTC ¶ 9584, 21 FR Serv 2d 833, 36 AFTR 2d 75-5291; Penfield Co. of California v
SEC (CA9 Cal) 143 F2d 746, 154 ALR 1027, cert den 323 US 768, 89 L Ed 614, 65 S
Ct 121; La Mura v United States (CA11 Fla) 765 F2d 974, 85-2 USTC ¶ 9548, 56 AFTR
2d 85-5449 (among conflicting authorities on other grounds noted in United States v
Michaud (CA7 Wis) 907 F2d 750, 90-2 USTC ¶ 50425, 66 AFTR 2d 90-5442); Federal
Trade Com. v Texaco, Inc., 180 US App DC 390, 555 F2d 862, 1977-2 CCH Trade Cases
¶ 61811, cert den 431 US 974, 53 L Ed 2d 1072, 97 S Ct 2939, 97 S Ct 2940, reh den
434 US 883, 54 L Ed 2d 168, 98 S Ct 250, 98 S Ct 251.
Footnote 74. Federal Trade Com. v Texaco, Inc., 180 US App DC 390, 555 F2d 862,
2939, 97 S Ct 2940, reh den 434 US 883, 54 L Ed 2d 168, 98 S Ct 250, 98 S Ct 251.
Footnote 75. United States v Jones (CA10 Okla) 581 F2d 816, 78-2 USTC ¶ 9641, 42
AFTR 2d 78-5634.
Footnote 76. Office of Thrift Supervision, Dept. of Treasury v Dobbs, 289 US App DC

318, 931 F2d 956.
318, 931 F2d 956.
318, 931 F2d 956.
V. RULEMAKING [152-245]
Research References
5 USCS §§ 551, 601-612
Model State Administrative Procedure Act (1961) §§ 1(7), 2(a); Model State
Administrative Procedure Act (1981) §§ 1-102(10), (11), 2-104, 2-105, 3-201, 3-203,
3-204
ALR Digests: Administrative Law § 60
1A Federal Procedural Forms, L Ed, Administrative Procedure §§ 2:28-2:30
§ 152 General nature and basis of authority
View Entire Section

Go to Supplement
It is fundamental law that the legislature can delegate to an administrative agency the
power to make rules and regulations to implement a statute. 80 Thus, the origin of the
rulemaking capacity is in a delegation from the legislature, 81 not a constitutional
grant of power to the executive; 82 and all rulemaking authority delegated to
administrative agencies is limited 83 and defined 84 by the statute conferring the
power. Consequently, in the absence of valid statutory authority, an administrative
agency may not, under the guise of a regulation, substitute its judgment for that of the
legislature. 85 An agency may not promulgate a regulation that adds a requirement that
does not exist under the statute. 86 An agency cannot create, 87 remove, or limit
substantive rights granted in the enabling act; 88 and an agency cannot, without
sufficient statutory criteria expressed in the statute, vary the impact of a statute by
restricting or limiting its operation through creating waivers or exemptions. 89
Nevertheless, rulemaking is considered to be a legislative 90 or quasi-legislative

function 91 because it is largely concerned with questions of policy. 92 Moreover, an
agency's power to authoritatively interpret its own regulations is a component of the

agency's delegated lawmaking powers. 93 However, subject only to constitutional
limits, the legislature is free, in a regulatory scheme, to sever the power to authoritatively
interpret regulations from the power to promulgate and enforce them. 94
Although the legislature may not delegate purely legislative power, it may declare its
will, and, after fixing a primary standard, devolve upon administrative officers, the power
to fill in the details by prescribing administrative rules and regulations. 95 In other
words, although the legislature may not delegate the legislative power to determine what
the law will be, it may delegate to administrative boards and agencies of the state the
power to ascertain and determine the facts upon which the laws are to be applied and
enforced. 96 While an administrative agency possesses no inherent legislative power, it
may constitutionally exercise its authority by promulgating rules within the boundaries of
its legislative delegation. 97 An administrative agency is empowered to adopt rules
and regulations that carry out the goals of the agency's enabling statute. 98 Agencies are
accorded wide discretion in the exercise of their lawful rulemaking authority, and
rulemaking authority may be implied to the extent necessary to properly implement a
statute governing the agency's statutory duties and responsibilities. 99 However,
administrative agencies may not act arbitrarily and capriciously in the enactment of rules
and regulations in the exercise of their delegated powers. 1 Since the agency
rulemaking function involves the exercise of discretion, 2 a court will not substitute its
judgment for that of the agency, 3 unless the statutes mandate the adoption of the
requested rule. 4
 Observation: Various proposals have been made to control the rulemaking

discretion of administrative agencies. The "Regulatory Flexibility Act" requires that
each agency publish a regulatory agenda 5 and a regulatory flexibility analysis,
showing the effect of a proposed rule on small businesses, organizations, and
governmental entities. 6 An agency must also take steps to assure that small entities
are given an opportunity to comment on proposed rules, 7 and must review its rules
periodically to determine their impact on small entities. 8 Agency determinations as
to the applicability of this new act and regulatory flexibility analyses are not subject to
judicial review, although a regulatory flexibility analysis comprises part of the record
when the rule itself is judicially reviewed. 9 Instead, the Chief Counsel for Advocacy
of the Small Business Administration is granted oversight duties. 10
§ 152 ----General nature and basis of authority [SUPPLEMENT]
Case authorities:
The United States Supreme Court does not lightly assume that an administrative
regulation setting forth specific limitations on the reimbursement of costs under a federal
program is devoid of substantive effect, especially when the language in question speaks
not in vague generalities but in precise terms about the conditions under which
reimbursement is and is not available. Thomas Jefferson Univ. v Shalala (US) 129 L Ed
2d 405, 114 S Ct 2381.
Regulatory Flexibility Act does not apply when head of agency certifies that rule or
regulation will not affect substantial number of small business entities; in such case, there
is no presumption against preemption of state insurance law under McCarran-Fergusen
Act, 15 USCS §§ 1011 et seq. State ex rel. Todd v United States (1993, CA10 Kan) 995

F2d 1505.
In a suit by a pipeline company and an affiliated special marketing company seeking a

declaration of the invalidity of rules promulgated by the Railroad Commission which
treated the pipeline company and the affiliated special marketing company as one entity,
the Supreme Court held that the Commission had the statutory authority to adopt the
rules, where the provisions of the rules were in harmony with the objectives of the
Natural Resources Code because a statute expressly authorizing an agency to regulate an
industry also impliedly authorized an agency to promulgate rules necessary to
accomplish such purpose. Railroad Com. of Texas v Lone Star Gas Co. (1992, Tex) 844
SW2d 679.
In a suit by a pipeline company and an affiliated special marketing company challenging

the Railroad Commission's authority to adopt rules treating the pipeline company and the
special marketing company as one entity without a contested case hearing, the Supreme
Court held that the Commission was authorized to exercise its informed discretion to use
rulemaking procedures as opposed to adjudication under general principles of
administrative law and specific provisions of the Natural Resource Code that authorized
rulemaking to prevent waste, promote conservation, and prevent discrimination. Railroad
Com. of Texas v Lone Star Gas Co. (1992, Tex) 844 SW2d 679.
Footnotes
Footnote 80. Robotham v State, 241 Neb 379, 488 NW2d 533; Ney v State Workmen's
Compensation Comm'r, 171 W Va 13, 297 SE2d 212.

remand (CA3 Del) 611 F2d 439, 20 BNA FEP Cas 1335, 21 CCH EPD ¶ 30331; Stop
H-3 Asso. v State Dept. of Transp., 68 Hawaii 154, 706 P2d 446; Mead v Arnell, 117
Idaho 660, 791 P2d 410.
Footnote 82. Mead v Arnell, 117 Idaho 660, 791 P2d 410.
Footnote 83. Bowen v Georgetown Univ. Hosp., 488 US 204, 102 L Ed 2d 493, 109 S
Ct 468; Board of Trustees of Internal Improv. Trust Fund v Board of Professional Land
Surveyors (Fla App D1) 566 So 2d 1358, 15 FLW D 2324; Stop H-3 Asso. v State Dept.
of Transp., 68 Hawaii 154, 706 P2d 446; Rivera v Illinois Dept. of Public Aid (1st Dist)
132 Ill App 3d 213, 87 Ill Dec 151, 476 NE2d 1143; Parmley v Missouri Dental Bd.
(Mo) 719 SW2d 745; State ex rel. Spire v Stodola, 228 Neb 107, 421 NW2d 436.
Footnote 84. Gunia v Cook County Sheriff's Merit Bd. (1st Dist) 211 Ill App 3d 761, 156
Ill Dec 177, 570 NE2d 653, app den 141 Ill 2d 540, 162 Ill Dec 487, 580 NE2d 113.
App 2d 1, 39 Cal Rptr 192.
Footnote 86. Emunim v Fallsburg, 78 NY2d 194, 573 NYS2d 43, 577 NE2d 34,
reconsideration den 78 NY2d 1008, 575 NYS2d 459, 580 NE2d 1062.

Footnote 87. People ex rel. Kilquist v Brown (5th Dist) 203 Ill App 3d 957, 148 Ill Dec
928, 561 NE2d 234.
Footnote 88. Knox County ex rel. Kessel v Knox County Personnel Bd. (Tenn App) 753
SW2d 357; Re Agency of Admin., State Bldgs. Div., 141 Vt 68, 444 A2d 1349.
Footnote 89. Booker Creek Preservation, Inc. v Southwest Florida Water Management
Dist. (Fla App D5) 534 So 2d 419, 13 FLW 2209, review den (Fla) 542 So 2d 1334.
Footnote 90. Shoreline Transp., Inc. v Robert's Tours & Transp., Inc., 70 Hawaii 585,
779 P2d 868, reconsideration den (Hawaii) 796 P2d 1005; Tennessee Cable Television
Assn. v Tennessee Public Service Com. (Tenn App) 844 SW2d 151, clarified, on reh,
remanded (Tenn App) 1992 Tenn App LEXIS 623. See Tahoe-Sierra Preservation
Council v State Water Resources Control Bd. (3rd Dist) 210 Cal App 3d 1421, 259 Cal
Rptr 132, review den (an administrative rule is legislative in character).

remand (CA3 Del) 611 F2d 439, 20 BNA FEP Cas 1335, 21 CCH EPD ¶ 30331; Booker
Creek Preservation, Inc. v Southwest Florida Water Management Dist. (Fla App D5) 534
So 2d 419, 13 FLW 2209, review den (Fla) 542 So 2d 1334; People v Samel (2d Dist)
115 Ill App 3d 905, 71 Ill Dec 738, 451 NE2d 892; Shell Oil Co. v Illinois Pollution
Control Bd. (5th Dist) 37 Ill App 3d 264, 346 NE2d 212.
But see Durrett v Bryan, 14 Kan App 2d 723, 799 P2d 110, stating that the power of an
administrative agency to adopt rules is administrative in nature, not legislative.
remanded (Tenn App) 1992 Tenn App LEXIS 623.
Footnote 93. Martin v OSHRC, 499 US 144, 113 L Ed 2d 117, 111 S Ct 1171, 91
CDOS 1985, 91 Daily Journal DAR 3294, 14 BNA OSHC 2097, 1991 CCH OSHD ¶
29257, 102-69 Fulton County D R 16B, on remand (CA10) 941 F2d 1051, 15 BNA
OSHC 1209, 1991 CCH OSHD ¶ 29431, on remand, remanded (OSHRC) 1991 CCH
OSHD ¶ 29525, on remand (OSHRC ALJ) 1992 CCH OSHD ¶ 29650, later proceeding
(OSHRC ALJ) 15 BNA OSHC 1668.
As to judicial deference to agency interpretations, see § 240.
(OSHRC ALJ) 15 BNA OSHC 1668.

Footnote 97. Junius v Flacke (4th Dept) 71 App Div 2d 423, 423 NYS2d 85, affd 53
NY2d 616, 438 NYS2d 786, 420 NE2d 978.
Footnote 98. Water Pipe Extension v Chicago (1st Dist) 206 Ill App 3d 63, 150 Ill Dec
953, 563 NE2d 1080.
The state administrative procedure act is not necessarily the statute conferring the power
to adopt rules. Bradco Supply Co. v Larsen, 183 Mont 97, 598 P2d 596, 20 CCH EPD ¶
30267.
So 2d 193, 16 FLW D 1468.
A court must look to the enabling statute to determine whether there is express or implied
authorization for the rule. Wisconsin Hosp. Assn. v Natural Resources Bd. (App) 156
Wis 2d 688, 457 NW2d 879.
Footnote 1. Thompson v Consolidated Gas Utilities Corp., 300 US 55, 81 L Ed 510, 57

S Ct 364; Busey v Deshler Hotel Co. (CA6 Ohio) 130 F2d 187, 42-1 USTC ¶ 9359, 42-1
USTC ¶ 9587, 29 AFTR 1091, 142 ALR 563; Florentine v Darien, 142 Conn 415, 115
A2d 328; People ex rel. Polen v Hoehler, 405 Ill 322, 90 NE2d 729; Foley v Benedict,
122 Tex 193, 55 SW2d 805, 86 ALR 477.
Footnote 2. Bayonet Point Hospital, Inc. v Department of Health & Rehabilitative

Services (Fla App D1) 490 So 2d 1318, 11 FLW 1426.

Services (Fla App D1) 490 So 2d 1318, 11 FLW 1426; American Network, Inc. v
Washington Utilities & Transp. Com., 113 Wash 2d 59, 776 P2d 950.
A reviewing court is not free to set aside regulations because it would have interpreted
the statute in a different manner. Batterton v Francis, 432 US 416, 53 L Ed 2d 448, 97
S Ct 2399 (not followed on other grounds by Whaley v Schweiker (CA9 Cal) 663 F2d
871) as stated in Vance v Hegstrom (CA9 Or) 793 F2d 1018.

Services (Fla App D1) 490 So 2d 1318, 11 FLW 1426.
Footnote 6. 5 USCS §§ 603-608.

§ 153 Definition of "rule" and "rulemaking"; federal Administrative Procedure
Act
View Entire Section

Go to Supplement
The federal Administrative Procedure Act defines "rulemaking" as an agency process for
formulating, amending, or repealing a rule. 11 A "rule" is defined in the Act as the
whole or a part of an agency statement of general or particular applicability and future
effect designed to implement, interpret, or prescribe law or policy or describing the
organization, procedure, or practice requirements of an agency. 12 Rulemaking
includes such diverse activities as setting rates and wages, 13 regulating profits, 14
regulating prices, facilities, appliances, services of allowances therefor, 15 setting tolls,
16 regulating corporate financial structures, 17 and establishing accounting or valuation
methods. 18
§ 153 ----Definition of "rule" and "rulemaking;" federal Administrative Procedure

Act [SUPPLEMENT]
Case authorities:
INS policy of placing on carriers burden of detaining stowaways who have applied for
asylum in United States is "rule" within meaning of 5 USCS § 551, and failure to comply
with notice and comment procedure renders rule invalid. Dia Navigation Co. v Pomeroy
(1994, CA3 NJ) 27 F3d 918, 1994 AMC 2090.
Interpretation by FDIC's Resolution Trust Corporation of regulation describing insurance

coverage for qualifying joint accounts separately from individually-held accounts was not
substantive rule making and therefore not invalid for failure to follow notice and
comment procedures, where interpretation merely clarified and explained regulation.
Sekula v FDIC (1994, CA3 Pa) 39 F3d 448.
Regulations regarding importation of banned goods, pursuant to which defendant was

convicted of violating "contrary to law" provision of 18 USCS § 545, were promulgated
pursuant to statutes, including 16 USCS § 1540, that contain express grant of authority
to Secretary of Interior to promulgate such regulations as may be appropriate; regulations
affect individual rights and obligations and are promulgated pursuant to congressional
grant of authority and are therefore substantive rules having force and effect of law.
United States v Mitchell (1994, CA4 Va) 39 F3d 465.
Open Network Architecture plans providing "enhanced service" to telephone customers,

approved by FCC, did not constitute new policy and was reasonably explained and
justified. California v FCC (1993, CA9) 4 F3d 1505, 93 CDOS 7117, 93 Daily Journal
DAR 12109.
Department of Commerce's interpretation of term "principal markets" did not constitute

rulemaking requiring compliance with APA. Zenith Elecs. Corp. v United States (1993,
CA FC) 988 F2d 1573, 15 BNA Intl Trade Rep 1001, reh, en banc, den (CA FC) 1993
US App LEXIS 10358.
Footnotes
Forms: Notice of intention to participate in hearing on rate schedules. 1A Federal

Objections and response to objections to proposed change in subsidy schedules. 1A

Federal Procedural Forms, L Ed, Administrative Procedure §§ 2:29, 2:30.
Footnote 14. Motor Carriers Traffic Asso. v United States (CA4) 559 F2d 1251, 1977-2
CCH Trade Cases ¶ 61552, on reh (CA4) 565 F2d 290, 1977-2 CCH Trade Cases ¶
61729, cert den 435 US 1006, 56 L Ed 2d 387, 98 S Ct 1875 and cert den 435 US
1007, 56 L Ed 2d 389, 98 S Ct 1877, reh den 437 US 911, 57 L Ed 2d 1143, 98 S Ct
3105.
Footnote 16. Automobile Club of New York, Inc. v Cox (CA2 NY) 592 F2d 658.
§ 154 --State law; Model State Administrative Procedure Act
View Entire Section

The 1961 version of the Model State Administrative Procedure Act defines "rule" as each
agency statement of general applicability that implements, interprets, or prescribes law or
policy, or describes the organization, procedure, or practice requirements of any agency.
19 Rules may be of general applicability even though of immediate concern only to one
person provided that the form is general and others who qualify in the future come within
its provisions. 20 A rule is considered to be a fixed, general principle to be applied
without regard to the facts and circumstances of the individual case. 21 Changes in
statewide policy may be considered rules. 22 The term "rule" includes the amendment
or repeal of a prior rule, 23 but does not include: (1) statements concerning only the
internal management of an agency and not affecting private rights or procedures available
to the public; 24 (2) certain declaratory rulings; 25 or (3) intra-agency memoranda.
26
According to the 1981 version of the Model State Administrative Procedure Act, a rule is
the whole or a part of an agency statement of general applicability that implements,
interprets, or prescribes: (1) law or policy; or (2) the organization, procedure, or practice
requirements of an agency. 27 The term "rule" includes the amendment, repeal, or
suspension of an existing rule. 28 The 1981 version defines rulemaking as the process
for formulation and adoption of a rule. 29 States have also defined rulemaking as the
process by which an administrative agency lays down new prescriptions to govern the
future conduct of those subject to its authority. 30
Footnotes
Footnote 20. Grand River Dam Authority v State (Okla) 645 P2d 1011.
 Observation: At least one state version of the Act has allowed rules to include
statements of general "or particular" applicability as long as they are of future effect.
Vega v National Union Fire Ins. Co., 67 Hawaii 148, 682 P2d 73.
Footnote 21. Cordero v Corbisiero, 80 NY2d 771, 587 NYS2d 266, 599 NE2d 670.
Footnote 22. NME Hosps., Inc. v Department of Social Servs., Div. of Medical Servs.
(Mo) 850 SW2d 71.
Footnote 23. As to amendment and repeal of rules, see § 221.
The administrative procedure act was created to give the public a voice in the enactment
of regulations; hence, the Act is only effective when a state agency seeks to make a rule
that directly impacts the public. Ex parte Alabama Criminal Justice Information Center
Com. (Ala App) 572 So 2d 487, later proceeding (Ala) 1992 Ala LEXIS 985, op
withdrawn, substituted op, reh overr (Ala) 620 So 2d 651.
Some courts consider custodial management of public property to be internal

management. Sharma v State, Dept. of Land & Natural Resources, 66 Hawaii 632, 673
P2d 1030, cert den 469 US 836, 83 L Ed 2d 72, 105 S Ct 131.
The right of an agency employee to smoke at his desk at work was not a private right or
interest requiring rulemaking. Rossie v State/Department of Revenue (App) 133 Wis 2d
341, 395 NW2d 801, 1 BNA IER Cas 1048, 105 CCH LC ¶ 55658, 65 ALR4th 1191.
Footnote 25. Model State Administrative Procedure Act (1961) § 1(7) (referring to
declaratory rulings issued pursuant to Model State Administrative Procedure Act § 8).
Two general orders of the State Highway Patrol, one prescribing standards of physical

fitness for patrol officers, and the other prescribing guidelines for supervisors in
assessing discipline for deficiencies in patrol officers' conduct, constituted internal
management memoranda which were exempt from formal rulemaking procedures, since
the orders were effective in themselves only as guidelines, and were subject in
application to the discretion of the enforcing officer. Department of Highway Safety &
Motor Vehicles v Florida Police Benev. Asso. (Fla App D1) 400 So 2d 1302, petition den
(Fla) 408 So 2d 1093.
Footnote 28. Model State Administrative Procedure Act (1981) § 1-102(10)
As to amendment and repeal of rules, see § 221.
As to suspension of rules, see § 237.
779 P2d 868, reconsideration den (Hawaii) 796 P2d 1005.
§ 155 Rulemaking distinguished from adjudication
View Entire Section

Although it is sometimes said that the preferred method of policymaking is by

promulgation of rules, 31 and it is always possible for the legislature to require an
agency to define a statutory term by rulemaking, 32 the choice whether to proceed by
general rulemaking or by individual ad hoc litigation lies primarily in the informed
discretion of the administrative agency. 33 However, substantial discretion does
not immunize an agency from considerations of fairness. 34 This discretion has limits,
35 and not every principle essential to the administration of a statute can or should be
cast immediately into the mold of a general rule. 36 Moreover, in practice, the
distinctions between rulemaking and adjudication are not always clearly defined. 37
The federal Administrative Procedure Act distinguishes adjudication from rulemaking by

stating that adjudication is an agency process for the formulation of an order 38 and an
order is a final disposition in a matter other than rulemaking. 39 Another distinction
may be based on the theory that rulemaking is a quasi-legislative function while
administrative adjudication is a quasi-judicial one. 40 Under this theory,
rulemaking looks to the future, while adjudication judges pre-existing events under
existing law. 41 The federal Administrative Procedure Act accepts this theory, and
provides that a rule is an agency statement of future effect. 42 However, this analysis
breaks down on two fronts. First, a rule is not necessarily invalid under all circumstances
where it has some retrospective application. 43 Second, the theory does not reflect the
fact that administrative agencies can and do make pronouncements of future applicability
when deciding an adjudicatory matter, in the same manner as a court may announce what
the common law is in deciding a case. 44 An agency is not precluded from
announcing new principles in an adjudicative proceeding or forced to choose rulemaking
in order to change agency precedents, even though the effect of the agency's action is to
formulate a general rule designed to govern the case before the agency and future cases.
45
Another possible distinction between rulemaking and adjudication is that rulemaking

may affect an entire class rather than particular members of a group. 46 Thus,
rulemaking proceedings primarily seek to or in effect determine policies or standards of
general applicability, whereas adjudicatory proceedings affect a specific party and
resolve particular issues of disputed fact by applying previously determined rules or
policies to the circumstances of the case. 47 This distinction, however, is not supported
by the federal Administrative Procedure Act, which provides that a rule may be of
general or particular applicability. 48 It is recognized that rules may affect individual
rights. 49 It may even appear that an administrative announcement is targeted at a
specific person or corporation, but it may be properly classified as a rule if it has the
potential to affect others who may become similarly situated or enter the industry, 50
or can affect the interests of the general public. 51
Perhaps the best approach to determine whether rulemaking or adjudication should be

employed is to take into account several relevant factors, including ones previously
mentioned. 52 Features of administrative rules that, if present, favor the adoption of the
rulemaking process are that the determination is to be applied generally and uniformly to
all similarly situated persons; that the determination prescribes a legal standard or
directive not conveyed by the enabling legislation; that the determination was not
previously expressed by the agency, and constitutes a material and significant change
from the past; and that it reflects a decision on administrative regulatory policy in the
nature of the interpretation of law or general policy. 53
Footnotes
Footnote 31. Detroit Base Coalition for Human Rights of Handicapped v Director, Dept.
of Social Services, 431 Mich 172, 428 NW2d 335, 88 ALR4th 1075; State ex rel.
Commissioner of Ins. v North Carolina Rate Bureau, 300 NC 381, 269 SE2d 547;
Tennessee Cable Television Assn. v Tennessee Public Service Com. (Tenn App) 844
SW2d 151, clarified, on reh, remanded (Tenn App) 1992 Tenn App LEXIS 623.
Because the rulemaking proceedings established by the state administrative procedure act
by permitting wider public participation than ordinarily found in the context of a
contested case are particularly appropriate for exercising rulemaking authority, the
existence of such authority permits a strong inference of legislative intent that the agency
exercise its policymaking in rulemaking proceedings rather than in the course of deciding
contested cases. Forelaws on Bd. v Energy Facility Siting Council, 306 Or 205, 760 P2d
212, later proceeding, en banc 307 Or 327, 767 P2d 899.
Footnote 32. Trebesch v Employment Div., 300 Or 264, 710 P2d 136.
Footnote 33. SEC v Chenery Corp., 332 US 194, 91 L Ed 1995, 67 S Ct 1575, reh den
332 US 783, 92 L Ed 367, 68 S Ct 26; United States v General Dynamics Corp. (CA9
Cal) 828 F2d 1356, 34 CCF ¶ 75364, later proceeding (ASBCA) 90-1 BCA ¶ 22581

(discussing National Labor Relations Board); Arkansas Power & Light Co. v Interstate
Commerce Com., 233 US App DC 189, 725 F2d 716; Potts v Bennett (Ala App) 487 So
2d 919; Florida Public Service Com. v Central Corp. (Fla App D1) 551 So 2d 568, 14
FLW 2478; State, Dept. of Environmental Protection v Stavola, 103 NJ 425, 511 A2d
622, 24 Envt Rep Cas 1828; Tennessee Cable Television Assn. v Tennessee Public
Service Com. (Tenn App) 844 SW2d 151, clarified, on reh, remanded (Tenn App) 1992
Tenn App LEXIS 623.
The United States Supreme Court has recognized time and again that even where an
agency's enabling statute expressly requires it to hold a hearing, the agency may rely on
its rulemaking authority to determine issues that do not require case-by-case
determination. Mobil Oil Exploration & Producing Southeast, Inc. v United Distribution
Cos., 498 US 211, 112 L Ed 2d 636, 111 S Ct 615, 91 CDOS 309, 91 Daily Journal
DAR 366, 110 OGR 366.
App) 844 SW2d 151, clarified, on reh, remanded (Tenn App) 1992 Tenn App LEXIS
623.
622, 24 Envt Rep Cas 1828; Tennessee Cable Television Assn. v Tennessee Public
Service Com. (Tenn App) 844 SW2d 151, clarified, on reh, remanded (Tenn App) 1992
Tenn App LEXIS 623.
Agencies may not predetermine particular cases by means of a rule. § 229.
332 US 783, 92 L Ed 367, 68 S Ct 26.
Footnote 37. Chicago v Federal Power Com., 147 US App DC 312, 458 F2d 731, cert
den 405 US 1074, 31 L Ed 2d 808, 92 S Ct 1495; United Gas Pipe Line Co. v Federal
Power Com., 86 US App DC 314, 181 F2d 796, cert den 340 US 827, 95 L Ed 607, 71
S Ct 63 and (criticized on other grounds by Investment Co. Institute v Board of
Governors of Federal Reserve System, 179 US App DC 311, 551 F2d 1270, 40 ALR Fed
573); Colorado Office of Consumer Counsel v Mountain States Tel. & Tel. Co. (Colo)
816 P2d 278; Shoreline Transp., Inc. v Robert's Tours & Transp., Inc., 70 Hawaii 585,
remanded (Tenn App) 1992 Tenn App LEXIS 623.
As to adjudication, generally, see §§ 261 et seq.
Footnote 40. Morgan v United States, 298 US 468, 80 L Ed 1288, 56 S Ct 906 (ovrld
on other grounds by United States v Morgan, 313 US 409, 85 L Ed 1429, 61 S Ct 999)
as stated in Yaretsky v Blum (CA2 NY) 629 F2d 817, revd 457 US 991, 73 L Ed 2d
534, 102 S Ct 2777.
As to quasi-legislative character of rulemaking, see § 154.

Footnote 41. Prentis v Atlantic Coast Line Co., 211 US 210, 53 L Ed 150, 29 S Ct 67.
332 US 783, 92 L Ed 367, 68 S Ct 26.
Footnote 45. NLRB v Bell Aerospace Co. Div. of Textron, Inc., 416 US 267, 40 L Ed
2d 134, 94 S Ct 1757, 85 BNA LRRM 2945, 73 CCH LC ¶ 14465 (ovrld on other
grounds by NLRB v Hendricks County Rural Electric Membership Corp., 454 US 170,
70 L Ed 2d 323, 102 S Ct 216, 108 BNA LRRM 3105, 92 CCH LC ¶ 13098).
Footnote 46. Flying Tiger Line, Inc. v Boyd (DC Dist Col) 244 F Supp 889; Woodland
Private Study Group v State, Dept. of Environmental Protection, 109 NJ 62, 533 A2d
387, 27 Envt Rep Cas 1834, 18 ELR 20263, vacated on other grounds (CA3 NJ) 846 F2d
921, 27 Envt Rep Cas 1911, 18 ELR 20868; State, Dept. of Environmental Protection v
Stavola, 103 NJ 425, 511 A2d 622, 24 Envt Rep Cas 1828.
See also Patagonia Corp. v Board of Governors of Federal Reserve System (CA9) 517
F2d 803, 35 ALR Fed 922, pointing out that legislative facts affect an industry as a
whole and may be resolved in rulemaking, but adjudicative facts immediately affect only
specific litigants and must be resolved through adjudicatory proceedings.
Footnote 47. Colorado Office of Consumer Counsel v Mountain States Tel. & Tel. Co.
(Colo) 816 P2d 278.
Footnote 49. Corn Products Co. v Department of Health, Education & Welfare, etc.
(CA3) 427 F2d 511, cert den 400 US 957, 27 L Ed 2d 265, 91 S Ct 354; Short Haul
Survival Committee v United States (CA9) 572 F2d 240; O'Donnell v Shaffer, 160 US
App DC 266, 491 F2d 59, 9 BNA FEP Cas 1299, 7 CCH EPD ¶ 9078 (disapproved on
other grounds by Vermont Yankee Nuclear Power Corp. v Natural Resources Defense
ELR 20288) as stated in United Air Lines, Inc. v Civil Aeronautics Bd. (CA7) 766 F2d
1107, 1985-2 CCH Trade Cases ¶ 66704.
Footnote 50. PBW Stock Exchange, Inc. v SEC (CA3) 485 F2d 718, CCH Fed Secur L
Rep ¶ 94162, 1973-2 CCH Trade Cases ¶ 74734, cert den 416 US 969, 40 L Ed 2d 558,
94 S Ct 1992, CCH Fed Secur L Rep ¶ 94510 and (criticized on other grounds by
Investment Co. Institute v Board of Governors of Federal Reserve System, 179 US App
DC 311, 551 F2d 1270, 40 ALR Fed 573).
Footnote 51. Hercules, Inc. v EPA, 194 US App DC 172, 598 F2d 91, 12 Envt Rep Cas
1376, 8 ELR 20811 (criticized on other grounds by Natural Resources Defense Council,
Inc. v U.S. EPA, 263 US App DC 166, 824 F2d 1146, 26 Envt Rep Cas 1263, 17 ELR
21032).
622, 24 Envt Rep Cas 1828; Metromedia, Inc. v Director, Div. of Taxation, 97 NJ 313,
478 A2d 742.
622, 24 Envt Rep Cas 1828; Metromedia, Inc. v Director, Div. of Taxation, 97 NJ 313,
478 A2d 742; Tennessee Cable Television Assn. v Tennessee Public Service Com. (Tenn
App) 844 SW2d 151, clarified, on reh, remanded (Tenn App) 1992 Tenn App LEXIS
623.
§ 156 Rulemaking distinguished from investigation
View Entire Section

Go to Supplement
Factfinding is generally done in the investigative rather than the rulemaking process. 54
An investigation, therefore, may be a prelude to rulemaking, 55 but rulemaking
requirements must be met once it is decided that a rule must be enacted or amended. 56
An agency may require the filing of reports under its factfinding authority, and no
rulemaking procedure is generally necessary before such a requirement can be enforced.
57 However, before concluding that rulemaking procedures are not required, the
decision must be made whether a particular requirement is an investigative technique or
may only be promulgated by rule. Since the federal Administrative Procedure Act
provides that a rule includes the prescription of accounting practices, 58 a directive that
a regulated entity meet audit requirements and file audited reports with an agency is a
rule. 59
§ 156 ----Rulemaking distinguished from investigation [SUPPLEMENT]
Case authorities:
IRS audit does not satisfy APA's definition of analogous term "agency proceeding"
which APA defines as "rule making or licensing." Mallas v United States (1993, CA4
NC) 993 F2d 1111, 93-1 USTC ¶ 50302, 93 TNT 116-14, 25 FR Serv 3d 977, 71 AFTR
2d 93-2036.
Footnotes
Footnote 54. American Express Co. v United States, 60 CCPA 86, CAD 1087, 472 F2d
1050.
As to investigations, generally, see §§ 122 et seq.

Footnote 56. Chicago, B. & Q. R. Co. v United States (ND Ill) 242 F Supp 414, affd 382
US 422, 15 L Ed 2d 498, 86 S Ct 616.
Footnote 59. Guardian Federal Sav. & Loan Asso. v Federal Sav. & Loan Ins. Corp., 191
US App DC 135, 589 F2d 658.
§ 157 Required rules
View Entire Section

Go to Supplement
Both the 1961 version and the 1981 version of the Model State Administrative Procedure
Act provide that states may require that agencies adopt certain rules. 60 States may
require that agencies adopt as a rule a description of the organization of the agency,
which states the general course and method of its operations and where and how the
public may obtain information or make submissions or requests. 61 States may also
require that agencies adopt rules of practice setting forth the nature and requirements of
all formal and informal procedures available to the public. 62
In addition, under the 1981 version of the Act, as soon as feasible and to the extent
practicable, agencies may have to adopt rules embodying standards, principles and
procedural safeguards that the agency will apply. 63 Also, agencies may be required to
adopt rules to supersede principles of law or policy lawfully declared by the agency as
the basis of its decisions in particular cases. 64 Agencies may also have to adopt, to the
extent practicable, model rules of procedure which have been adopted by the Attorney
General. 65
Despite the fact that some rules may be required, an agency does not, however, have to
promulgate rules to cover every particular situation. 66 For example, neither due
process, nor the federal Administrative Procedure Act, 67 requires an agency to
promulgate review regulations for all agency subpoenas. 68 In addition, principles
incorporated into a contract with a state agency need not necessarily be first promulgated
as rules. 69
§ 157 ----Required rules [SUPPLEMENT]
Case authorities:
Promulgation of Application Note 1 of Sentencing Guidelines did not constitute improper

rulemaking in violation of enabling statute, 28 USCS § 944; statute indicates that it
requires no more than that promulgation of Guidelines themselves shall be subject to
rulemaking procedures of APA and Note 1 is no more than interpretative aid. United
States v Piper (1994, CA1 Me) 35 F3d 611.
To the extent that 42 USCS § 1395x(v)(1)(A)'s broad delegation of authority to the

Secretary of Health and Human Services concerning Medicare reimbursement
determinations imposes on the Secretary a rulemaking obligation, such obligation is
discharged by the Secretary, because (1) there is no basis for suggesting that the
Secretary has a statutory duty to promulgate regulations that, either by default rule or by
specification, address every conceivable question in the process of determining equitable
reimbursement; and (2) the Secretary has issued regulations to address a wide range of
reimbursement questions, which regulations are comprehensive and intricate in detail and
address matters such as limits on cost reimbursement, apportioning costs to Medicare
services, and the specific treatment of numerous particular costs. Shalala v Guernsey
Memorial Hosp. (1995, US) 46 Soc Sec Rep Serv 640, 131 L Ed 2d 106, 115 S Ct 1232,
95 CDOS 1666, remanded, without op sub nom Guernsey Memorial Hosp. v Secretary of
Health & Human Servs. (CA6) 52 F3d 325, reported in full (CA6) 1995 US App LEXIS
9094.
Footnotes
Footnote 60. Model State Administrative Procedure Act (1961) § 2(a); Model State
Administrative Procedure Act (1981) § 2-104.
Footnote 61. Model State Administrative Procedure Act (1961) § 2(a)(1); Model State
Administrative Procedure Act (1981) § 2-104(1).
Administrative Procedure Act (1981) § 2-104(2).
Footnote 66. Total Petroleum, Inc. v Department of Treasury, 170 Mich App 417, 427
NW2d 639, app den 432 Mich 856.
Footnote 68. United States v Exxon Corp., 202 US App DC 70, 628 F2d 70, cert den 446
US 964, 64 L Ed 2d 823, 100 S Ct 2940.
Footnote 69. Re Park Nursing Center, Inc. (BC ED Mich) 28 BR 793.
§ 158 Review of rules under state law; administrative rules review committees
View Entire Section

Under the 1981 version of the Model State Administrative Procedure Act, agencies have
a duty to review all their rules as often as the Act requires to determine whether new
rules should be adopted. 70 Some states require administrative agencies to submit
legislative rules to the legislative rulemaking review committee for the approval of the
committee and the full legislature, in order for such rules to be effective. 71 The 1981
version of the Act says that states may create an administrative rules review committee of
the legislature. 72 The committee files an annual report with the presiding officer of
each house and the Governor. 73 The committee selectively reviews possible, proposed,
or adopted rules and prescribe appropriate committee procedures for that purpose, 74
and may recommend to an agency that it adopt a rule. 75 The committee may also
receive and investigate complaints from members of the public with respect to possible,
proposed, or adopted rules and hold public proceedings on those complaints. 76 The
committee may recommend enactment of a statute to improve the operation of an agency,
or recommend that a particular rule be suspended in whole or part by a statute. 77 It
may also file an objection to all or some portion of the rule because it believes it to be
beyond the power delegated to the agency. 78 However, the failure of the committee to
object is not an implied legislative authorization of the procedural or substantive validity
of the rule. 79 The agency must respond in writing to the committee within a certain
time of the objection. 80 After receipt of the response, the committee may withdraw or
modify its objection, 81 but if it does not withdraw its objection, the burden is on the
agency in any proceeding for judicial review or enforcement to establish that the rule is
within the agency's authority. 82
Footnotes
Footnote 71. Chico Dairy Co., Store No. 22 v West Virginia Human Rights Comm'n, 181
W Va 238, 382 SE2d 75, 2 AD Cas 347, 51 CCH EPD ¶ 39423.
Footnote 73. Model State Administrative Procedure Act (1981) § 3-204(f).
Footnote 75. Model State Administrative Procedure Act (1981) § 3-204(e).
Footnote 78. Model State Administrative Procedure Act (1981) § 3-204(d).
Footnote 79. Model State Administrative Procedure Act (1981) § 3-204(d)(6).

B. Types of Rules and Agency Statements [159-164]
Research References
5 USCS § 553
1 CFR § 305.92-2
Model State Administrative Procedure Act (1981) § 3-109(a)
§ 159 Generally
View Entire Section

Go to Supplement
Although the federal Administrative Procedure Act recognizes the existence of legislative
rules (sometimes referred to as substantive rules), 83 interpretive rules, 84 procedural
rules, 85 and general statements of policy, 86 it does not define these terms.
Nevertheless, courts have developed definitions for these terms, 87 and it is for the
courts to determine whether rules are interpretative rules, general statements of policy or
procedural rules. 88 Although the Model State Administrative Procedure Act does not
use these terms, states sometimes make use of them. 89
Not all statements of agency policy must be announced by means of published rules; 90
and the agency's label is not dispositive. 91 However, an agency may not adopt a
guideline or policy directive in lieu of a rule. 92 The inquiry as to whether a statement is
a rule, and subject to the rulemaking requirements, 93 must focus on the actual action
undertaken by the directive, to see whether the policy being implemented has the effect
of being a rule. 94 The classes of "rules" which are exempt from the rulemaking
requirements represent an effort to strike a fair balance between the need for adequate
procedures to govern the proposal, adoption, and effectiveness of rules on the one hand,
and the conflicting need for workable, efficient, economical, and effective government on
the other. 95
Practice Aids: What constitutes "interpretative rule" of agency so as to exempt such

action from notice requirements of Administrative Procedure Act (5 USCS §
553(b)(3)(a)). 126 ALR Fed 347.
Case authorities:
Memorandum of understanding entered into between EPA and private laboratory to work
together to develop "equivalent technical specifications and requirements for reference
materials" is final agency action fitting within definition of "rule"; EPA has entered into
statement of general applicability and future effect designed to implement Federal
Technology Transfer Act. Chem Serv. v Environmental Monitoring Sys. Laboratory-
Cincinnati (1993, CA3 Pa) 12 F3d 1256, 39 CCF ¶ 76617.
"Procedure paper", unpublished agency paper developed by Minerals Management

Service of Department of Interior for valuing natural gas liquid products, focusing
entirely on spot market price, rather than range of various types of prices presented in
governing regulation, was "rule" and its promulgation constituted rulemaking in violation
of APA's notice and comment requirements. Phillips Petroleum Co. v Johnson (1994,
CA5 Tex) 22 F3d 616.
Forest Service's environmental impact statement underlying vegetation management

policy for pacific southwest region complied with NEPA, as required by APA, where
Forest Service considered and analyzed studies of effects of sources of herbicide other
than its own, and fully complied with stricture of NEPA in evaluating future applications
of herbicides. Salmon River Concerned Citizens v Robertson (1994, CA9 Cal) 32 F3d
1346, 94 CDOS 5173, 94 Daily Journal DAR 9511, 39 Envt Rep Cas 1025.
Provision of VA's adjudication manual that claimant's assertion of radiation-risk activity

may be substantiated, for presumptive service-connection services, only through official
Defense Nuclear Agency documentation is substantive rule because it necessarily limits
administrative action and was invalid since it was not adopted subject to notice and
public comment procedures. Earle v Brown (1994) 6 Vet App 558.
Footnotes
Footnote 83. As to legislative rules, generally, see § 160.
Footnote 84. As to interpretive rules, generally, see § 161.
Footnote 85. As to procedural rules, generally, see § 162.
As to general statements of policy, generally, see § 163.

Annotation: Exceptions under 5 USCS § 553(b)(A) and § 553(b)(B) to notice

requirements of Administrative Procedure Act rule making provisions, 45 ALR Fed
12.
Footnote 88. Brown Express, Inc. v United States (CA5) 607 F2d 695.

381, 269 SE2d 547; Great American Nursing Centers, Inc. v Norberg (RI) 567 A2d 354
(legislative and interpretive rules); Chico Dairy Co., Store No. 22 v West Virginia
Human Rights Comm'n, 181 W Va 238, 382 SE2d 75, 2 AD Cas 347, 51 CCH EPD ¶
39423.
Footnote 90. Kaufman Grain Co. v Director of Dept. of Agriculture (4th Dist) 179 Ill
App 3d 1040, 128 Ill Dec 654, 534 NE2d 1259.
of Social Services, 431 Mich 172, 428 NW2d 335, 88 ALR4th 1075; State ex rel.
Commissioner of Ins. v North Carolina Rate Bureau, 300 NC 381, 269 SE2d 547; Rogue
Flyfishers, Inc. v Water Policy Review Bd., 62 Or App 412, 660 P2d 1089.
Footnote 92. Jordan v Department of Corrections, 165 Mich App 20, 418 NW2d 914.
Footnote 93. §§ 165 et seq., §§ §§ 198 et seq.
of Social Services, 431 Mich 172, 428 NW2d 335, 88 ALR4th 1075.
§ 160 Legislative rules
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A legislative rule is issued by an agency pursuant to statutory authority 96 or statutory

direction, 97 subject to limitations and procedural requirements imposed by Congress.
98 Legislative rules are those which effect a change in existing law or policy, 99 add
additional substantive requirements, 1 or affect previously existing individual rights or
obligations. 2 Courts have said that legislative rules have "substantial impact" on those
to whom they apply. 3 However, "substantial impact" alone cannot be used as a test for
legislative rules since interpretive and substantive rules may both vitally affect private
interests. 4 The substantial impact test is sometimes used, however, in distinguishing
legislative from procedural rules. 5
A legislative rule has the force and effect of law, 6 if promulgated in accordance with a
legislative delegation. 7 A valid legislative rule is binding upon all persons, 8 and
on the courts, 9 to the same extent as a statute. Consequently, when an
administrative agency exercises its rulemaking power by adopting such regulations, it
may not claim that such regulations were no more than an announcement of policy. 10
 Observation: Although an agency empowered to enact legislative rules may choose

to issue nonlegislative statements, an agency without legislative rulemaking authority
may issue only nonbinding statements. 11
§ 160 ----Legislative rules [SUPPLEMENT]

553(b)(3)(a)). 126 ALR Fed 347.
Case authorities:
Bureau of Prisons' Administrative Remedy Procedure (ARP), which is operative in

federal prisons and which allows inmate to seek formal review of complaint relating to
his imprisonment, is governed by administrative regulations promulgated and enforced
by executive branch under authority of 5 USCS § 301 and sections of Title 18, which
delegate authority to executive branch to establish substantive rules governing prisons;
ARP regulations are thus legislative, not interpretive. Nigro v Sullivan (1994, CA9 Cal)
40 F3d 990, 94 CDOS 8471, 94 Daily Journal DAR 15641.
Department of Interior's Notice of Inquiry (NOI), announcing that subsidence would not
be considered to fall within surface mining prohibitions of 30 USCS § 1272(e), is
legislative rulemaking and must be invalidated and remanded for compliance with
Administrative Procedure Act, 5 USCS § 553, where NOI defines "surface impacts
incident to underground coal mine," because Congress did not define surface impacts and
department's definition is exercise of delegated legislative power which requires notice
and comment under 5 USCS § 553. National Wildlife Fed'n v Babbitt (1993, DC Dist
Col) 835 F Supp 654, 23 ELR 21464.
Footnotes
Footnote 96. Batterton v Francis, 432 US 416, 53 L Ed 2d 448, 97 S Ct 2399 (not

followed on other grounds by Whaley v Schweiker (CA9 Cal) 663 F2d 871) as stated in
Vance v Hegstrom (CA9 Or) 793 F2d 1018; Dyer v Secretary of Health & Human
Services (CA6 Mich) 889 F2d 682, CCH Unemployment Ins Rep ¶ 15104A; American
Medical Asso. v Heckler (SD Ind) 606 F Supp 1422; W.C. v Bowen (CA9 Wash) 807
F2d 1502, reh den, amd on other grounds (CA9) 819 F2d 237 and (criticized on other
grounds by Dyer v Secretary of Health & Human Services (CA6 Mich) 889 F2d 682,
CCH Unemployment Ins Rep ¶ 15104A) and (criticized on other grounds by Higbee v
Sullivan (CA9 Cal) 935 F2d 1038, 91 CDOS 4376, 92 CDOS 7875, 91 Daily Journal
DAR 6669, 92 Daily Journal DAR 12839); Credit Union Nat. Asso. v National Credit
Union Admin. Bd. (DC Dist Col) 573 F Supp 586; Great American Nursing Centers, Inc.
v Norberg (RI) 567 A2d 354; Chico Dairy Co., Store No. 22 v West Virginia Human
Rights Comm'n, 181 W Va 238, 382 SE2d 75, 2 AD Cas 347, 51 CCH EPD ¶ 39423.
Footnote 97. W.C. v Bowen (CA9 Wash) 807 F2d 1502, reh den, amd on other grounds
(CA9) 819 F2d 237 and (criticized on other grounds by Dyer v Secretary of Health &
Human Services (CA6 Mich) 889 F2d 682, CCH Unemployment Ins Rep ¶ 15104A) and
(criticized on other grounds by Higbee v Sullivan (CA9 Cal) 935 F2d 1038, 91 CDOS
4376, 92 CDOS 7875, 91 Daily Journal DAR 6669, 92 Daily Journal DAR 12839).

Footnote 99. W.C. v Bowen (CA9 Wash) 807 F2d 1502, reh den, amd on other grounds
(CA9) 819 F2d 237 and (criticized on other grounds by Dyer v Secretary of Health &
Human Services (CA6 Mich) 889 F2d 682, CCH Unemployment Ins Rep ¶ 15104A) and
(criticized on other grounds by Higbee v Sullivan (CA9 Cal) 935 F2d 1038, 91 CDOS
4376, 92 CDOS 7875, 91 Daily Journal DAR 6669, 92 Daily Journal DAR 12839).
381, 269 SE2d 547.
Footnote 2. New York v Lyng (CA2 NY) 829 F2d 346; Dyer v Secretary of Health &
Human Services (CA6 Mich) 889 F2d 682, CCH Unemployment Ins Rep ¶ 15104A;
Chico Dairy Co., Store No. 22 v West Virginia Human Rights Comm'n, 181 W Va 238,
382 SE2d 75, 2 AD Cas 347, 51 CCH EPD ¶ 39423.
Footnote 3. United States Dept. of Labor v Kast Metals Corp. (CA5 La) 744 F2d 1145;
Standard Oil Co. v Department of Energy (Em Ct App) 596 F2d 1029.
Footnote 4. Rivera v Becerra (CA9 Cal) 714 F2d 887, 5 EBC 1917, cert den 465 US
1099, 80 L Ed 2d 124, 104 S Ct 1591, 5 EBC 1981; Cabais v Egger, 223 US App DC
121, 690 F2d 234.
The District of Columbia Circuit has noted that a possible application of the substantial
impact test is to determine whether agency action should be invalidated where the action
did not comport with federal APA procedures. This use of the test is similar to the
concept of harmless error. Even where notice and comment have been erroneously
omitted, a regulation or renewal need not be invalidated if it has no substantial impact.
Cabais v Egger, 223 US App DC 121, 690 F2d 234.
As to interpretive rules, see § 161.
Law Reviews: Mayton, A Concept of a Rule and the "Substantial Impact" Test in
Rulemaking. 33 Em LJ 889 (Fall, 1984).
Footnote 5. § 162.

remand (CA3 Del) 611 F2d 439, 20 BNA FEP Cas 1335, 21 CCH EPD ¶ 30331; Regular
Route Common Carrier Conference of Colorado Motor Carriers Asso. v Public Utilities
Com. (Colo) 761 P2d 737; Great American Nursing Centers, Inc. v Norberg (RI) 567
A2d 354; Chico Dairy Co., Store No. 22 v West Virginia Human Rights Comm'n, 181 W
Va 238, 382 SE2d 75, 2 AD Cas 347, 51 CCH EPD ¶ 39423.
As to discussion of rules as having the "effect of law," see § 235.


Footnote 8. Lilly v Grand T. W. R. Co., 317 US 481, 87 L Ed 411, 63 S Ct 347;

National Latino Media Coalition v FCC, 259 US App DC 481, 816 F2d 785; Mullins v
Bordeleau (RI) 517 A2d 600.

Atchison, T. & S. F. R. Co. v Scarlett, 300 US 471, 81 L Ed 748, 57 S Ct 541, reh den
301 US 712, 81 L Ed 1365, 57 S Ct 787; National Latino Media Coalition v FCC, 259
US App DC 481, 816 F2d 785.
Footnote 10. Columbia Broadcasting System, Inc. v United States, 316 US 407, 86 L Ed
1563, 62 S Ct 1194.
Footnote 11. American Hospital Asso. v Bowen, 266 US App DC 190, 834 F2d 1037.
§ 161 Interpretive rules; agency definitions
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Interpretive rules are statements as to what the administrative agency or officer thinks the
statute or regulation means, 12 a clarification or explanation of existing laws or
regulations rather than a substantive modification of existing regulations or an adoption
of new regulations. 13 They guide the administrative agency in the performance
of its duties, until it is otherwise directed by court decisions. 14 Agency manuals,
guidelines and memoranda may be interpretive rules. 15 Such rules only remind
affected parties of existing duties, 16 and are not intended to be determinative of issues
affecting private rights, privileges and interests, but may be used to show that certain
conduct was based on good faith reliance on the rule. 17 Besides interpreting statutes,
interpretive rules may also interpret existing tariffs 18 or regulations. 19
Although generally interpretive rules are not specifically authorized by legislative

enactment, 20 the fact that the authority for the agency action in enacting a rule is a
statutory grant does not prevent the rule from being interpretive rather than substantive in
nature. 21 Interpretive rules are based on specific statutory provisions, and their
validity depends on the correctness of the agency's interpretation of those provisions;
whereas a rule based on an agency's power to exercise its judgment as to how to best
implement the general statutory mandate is likely a legislative one. 22
Some factors which indicate the existence of an interpretative rule include prior
confusion and disagreement over the meaning of a statute, 23 the breadth of the statutory
language being interpreted, 24 the rule's lack of complexity, 25 the lack of drastic and
retroactive changes caused by the rule, 26 and the agency's lack of power to issue
substantive rules. 27
It is well established that an agency charged with the duty to enforce or administer a
statute has inherent authority to issue interpretive rules informing the public of the
procedures and standards it intends to apply in exercising its discretion, 28 and of the
agency's construction of the statutes or regulations that it administers. 29
Agency rules which are merely interpretive are exempt from statutory notice and
comment requirements of the federal Administrative Procedure Act 30 and the
administrative procedure acts of some states. 31
Where there has been no prior interpretation of the regulation in question, the agency's
interpretation does not change any existing rights or obligations and thus constitutes an
interpretive rule. 32 An agency, in light of changing circumstances, is free to alter
interpretive and policy views reflected in regulations construing an underlying statute, so
long as any changed construction of the statute is consistent with express congressional
intent or embodies a permissible reading of the statute. 33
Interpretive rules are not intended to have any legal effect 34 and do not have the force
and effect of law. 35 Accordingly, an interpretive rule is not binding on a court, which
may disagree with an administrator's interpretation of a statute 36 or regulation. 37
§ 161 ----Interpretive rules; agency definitions [SUPPLEMENT]

553(b)(3)(a)). 126 ALR Fed 347.
Case authorities:
Promulgation of application notes to sentencing guidelines does not constitute improper

rulemaking under statute since statute requires no more than that promulgation of
guidelines themselves shall be subject to APA rulemaking procedures, and application
notes are nothing more than interpretive aids which need not be promulgated in
accordance with such procedures. United States v Piper (1994, CA1 Me) 35 F3d 611.
SEC's "no action" letter, in which it announced that it was changing its interpretation of
SEC Rule 14a- 8(c)(7), was interpretive, not legislative and therefore not subject to
APA's notice and comment requirement applicable during adoption of Rule. New York
City Employees' Retirement Sys. v SEC (1995, CA2 NY) 45 F3d 7, 66 BNA FEP Cas
1197, CCH Fed Secur L Rep ¶ 98493, reh den (Mar 29, 1995).
Acquiescence Ruling in which Secretary of Health and Human Services provided,

pursuant to court ruling, that in order for recipient's benefit to be reduced because of
subsidized support, recipient must receive "actual economic benefit" from subsidy was
interpretive, not substantive and did not create rights or impose obligations; it merely
interpreted court's mandate and was therefore not subject to notice and comment
requirements. Gordon v Shalala (1995, CA2 NY) 55 F3d 101, 48 Soc Sec Rep Serv 24.
Compliance policy guides of FDA do not effect change in existing law or policy but
explain how FDA will enforce existing law and are interpretive rules or policy statements
and therefore exempt from notice and comment procedures. Takhar v Kessler (1996, CA9
Cal) 76 F3d 995, 96 CDOS 967, 96 Daily Journal DAR 1588.

"Program policy letters" of Mine Safety and Health Administration, stating agency's
position that certain x-ray readings qualify as diagnoses of lung disease within meaning
of agency reporting regulations are interpretive rules under APA; rule does not become
amendment merely because it supplies crisper and more detailed lines than authority
being interpreted. American Mining Congress v Mine Safety & Health Admin. (1993,
App DC) 995 F2d 1106, 1993 CCH OSHD ¶ 30096.
Rules issued by a federal administrative agency that interpret federal legislation do not
have the force and effect of law and are not accorded that weight in the adjudicatory
process. Shalala v Guernsey Memorial Hosp. (1995, US) 46 Soc Sec Rep Serv 640, 131
L Ed 2d 106, 115 S Ct 1232, 95 CDOS 1666, remanded, without op sub nom Guernsey
Memorial Hosp. v Secretary of Health & Human Servs. (CA6) 52 F3d 325, reported in
full (CA6) 1995 US App LEXIS 9094.
Footnotes
Footnote 12. Metropolitan School Dist. of Wayne Township v Davila (SD Ind) 770 F
Supp 1331, revd on other grounds (CA7 Ind) 969 F2d 485, reh, en banc, den (CA7) 1992
US App LEXIS 20530 and cert den (US) 122 L Ed 2d 740, 113 S Ct 1360; American
Medical Asso. v Heckler (SD Ind) 606 F Supp 1422; Herron v Heckler (ND Cal) 576 F
Supp 218; Cabais v Egger, 223 US App DC 121, 690 F2d 234.
Footnote 13. Jean v Nelson (CA11 Fla) 711 F2d 1455, on reh, en banc (CA11 Fla) 727
F2d 957, reh den (CA11 Fla) 733 F2d 908, cert gr 469 US 1071, 83 L Ed 2d 504, 105 S
Ct 563 and affd 472 US 846, 86 L Ed 2d 664, 105 S Ct 2992, later proceeding (SD Fla)
624 F Supp 836, later proceeding (SD Fla) 646 F Supp 1300, later proceeding (CA11 Fla)
854 F2d 405 and affd, in part, vacated (CA11 Fla) 863 F2d 759, cert gr 493 US 1055,
107 L Ed 2d 947, 110 S Ct 862 and affd 496 US 154, 110 L Ed 2d 134, 110 S Ct 2316,
CCH Unemployment Ins Rep ¶ 15427A, 20 ELR 20910 and (among conflicting
authorities on other grounds noted in Mada-Luna v Fitzpatrick (CA9 Ariz) 813 F2d
1006); Taunton Municipal Lighting Plant v Department of Energy (Em Ct App) 669 F2d
710.
An interpretive rule serves the advisory function of explaining the meaning of a word or
phrase in a statute or other rule, and describes the types of factors which an agency will
consider in future administrative proceedings, without binding an agency to a particular
result. Regular Route Common Carrier Conference of Colorado Motor Carriers Asso. v
Public Utilities Com. (Colo) 761 P2d 737.
Footnote 14. Waverly Press, Inc. v State Dept. of Assessments & Taxation, 312 Md 184,
539 A2d 223.
Footnote 15. Mile High Therapy Centers, Inc. v Bowen (DC Colo) 735 F Supp 984.
Footnote 16. American Medical Asso. v Heckler (SD Ind) 606 F Supp 1422; Herron v
Heckler (ND Cal) 576 F Supp 218.
Footnote 17. Chico Dairy Co., Store No. 22 v West Virginia Human Rights Comm'n, 181
W Va 238, 382 SE2d 75, 2 AD Cas 347, 51 CCH EPD ¶ 39423, stating that an
interpretive rule may not be relied on to impose a civil or criminal sanction, nor to

regulate private conduct, nor to confer any right or privilege not provided by law.
Law Reviews: Anthony, Robert A., Interpretive rules, policy statements, guidances,
manuals, and the like–should federal agencies use them to bind the public?
(Twenty-Third Annual Administrative Law Issue), 41 Duke LJ 1311-1384 (June,
1992).
Footnote 18. A.E. Staley Mfg. Co. v United States (DC Minn) 310 F Supp 485.
Footnote 19. Montana Power Co. v Environmental Protection Agency (DC Mont) 429 F
Supp 683, 9 Envt Rep Cas 2096, 7 ELR 20496, later proceeding (CA9 Mont) 608 F2d
334, 13 Envt Rep Cas 1385, 9 ELR 20667; Standard Oil Co. v Department of Energy
(Em Ct App) 596 F2d 1029.
Footnote 20. Great American Nursing Centers, Inc. v Norberg (RI) 567 A2d 354.
Footnote 21. Animal Legal Defense Fund v Quigg (CA FC) 932 F2d 920, 18 USPQ2d
1677.
As to legislative or substantive rules, see § 160.
Footnote 22. United Technologies Corp. v U.S. EPA, 261 US App DC 226, 821 F2d 714,
26 Envt Rep Cas 1110, 17 ELR 21015.
Footnote 23. Pharmaceutical Mfrs. Asso. v Finch (DC Del) 307 F Supp 858 (disapproved
on other grounds by Rivera v Becerra (CA9 Cal) 714 F2d 887, 5 EBC 1917); St. Francis
Memorial Hospital v Weinberger (ND Cal) 413 F Supp 323.
Footnote 24. Arkoosh v Dean Witter & Co. (DC Neb) 415 F Supp 535, later proceeding
(CA8 Neb) 571 F2d 437 and (disapproved on other grounds by Leist v Simplot (CA2
NY) 638 F2d 283).
Footnote 25. Springs Mills, Inc. v Consumer Product Safety Com. (DC SC) 434 F Supp
416.
Footnote 26. Springs Mills, Inc. v Consumer Product Safety Com. (DC SC) 434 F Supp
416; A.E. Staley Mfg. Co. v United States (DC Minn) 310 F Supp 485; Montana Power
Co. v Environmental Protection Agency (DC Mont) 429 F Supp 683, 9 Envt Rep Cas
2096, 7 ELR 20496, later proceeding (CA9 Mont) 608 F2d 334, 13 Envt Rep Cas 1385, 9
ELR 20667.
Footnote 27. Hall v EEOC (ND Cal) 456 F Supp 695, 17 BNA FEP Cas 1212, 17 CCH
EPD ¶ 8492; Joseph v United States Civil Service Com., 180 US App DC 281, 554 F2d
1140; National Retired Teachers Asso. v United States Postal Service (DC Dist Col) 430
F Supp 141, affd 193 US App DC 206, 593 F2d 1360.
Footnote 28. Production Tool Corp. v Employment & Training Admin., United States
Dept. of Labor (CA7 Ill) 688 F2d 1161.
Footnote 29. American Medical Asso. v Heckler (SD Ind) 606 F Supp 1422; Herron v
Heckler (ND Cal) 576 F Supp 218.

Footnote 32. New York v Lyng (CA2 NY) 829 F2d 346.
Footnote 33. National Family Planning & Reproductive Health Ass'n v Sullivan (App
DC) 298 US App DC 288, 979 F2d 227.
Footnote 34. National Nutritional Foods Asso. v Weinberger (CA2 NY) 512 F2d 688,
cert den 423 US 827, 46 L Ed 2d 44, 96 S Ct 44 and on remand (SD NY) 418 F Supp
394, revd (CA2 NY) 557 F2d 325 and (criticized on other grounds by Tabor v Joint Bd.
for Enrollment of Actuaries, 185 US App DC 40, 566 F2d 705, 1 EBC 1335); Continental
Oil Co. v Burns (DC Del) 317 F Supp 194; Reyes v Klein (DC NJ) 411 F Supp 1241;
Springs Mills, Inc. v Consumer Product Safety Com. (DC SC) 434 F Supp 416;
American Bancorporation, Inc. v Board of Governors of Federal Reserve System (CA8)
509 F2d 29 (criticized on other grounds by Cabais v Egger, 223 US App DC 121, 690
F2d 234); St. Francis Memorial Hospital v Weinberger (ND Cal) 413 F Supp 323; Joseph
v United States Civil Service Com., 180 US App DC 281, 554 F2d 1140; American
President Lines, Ltd. v Federal Maritime Com., 114 US App DC 418, 316 F2d 419.
for Enrollment of Actuaries, 185 US App DC 40, 566 F2d 705, 1 EBC 1335); Mullins v
Bordeleau (RI) 517 A2d 600; Jackson v W., 14 Va App 391, 419 SE2d 385.
Footnote 36. Aiken v Obledo (ED Cal) 442 F Supp 628; Pickus v United States Bd. of
Parole, 165 US App DC 284, 507 F2d 1107 (superseded by statute on other grounds as
stated in Clardy v Levi (CA9 Wash) 545 F2d 1241, 39 ALR Fed 798) and (disapproved
on other grounds by Califano v Sanders, 430 US 99, 51 L Ed 2d 192, 97 S Ct 980, 42
Cal Comp Cas 1112) and (criticized on other grounds by Wallace v Christensen (CA9
Cal) 802 F2d 1539) and (among conflicting authorities on other grounds noted in
National Latino Media Coalition v FCC, 259 US App DC 481, 816 F2d 785) and
(criticized on other grounds by American Hospital Asso. v Bowen, 266 US App DC 190,
834 F2d 1037); National Restaurant Asso. v Simon (DC Dist Col) 411 F Supp 993, 76-1
USTC ¶ 9311, 37 AFTR 2d 76-1144; Energy Consumers & Producers Asso. v
Department of Energy (Em Ct App) 632 F2d 129, cert den 449 US 832, 66 L Ed 2d 38,
101 S Ct 102.
Footnote 37. Ruangswang v Immigration & Naturalization Service (CA9) 591 F2d 39;
Energy Consumers & Producers Asso. v Department of Energy (Em Ct App) 632 F2d
129, cert den 449 US 832, 66 L Ed 2d 38, 101 S Ct 102.
As to judicial deference to interpretive rules, see § 242.
§ 162 Procedural rules

View Entire Section
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Procedural rules generally deal with an agency's methods of operation, and are not
intended to change the basic regulatory standards of the agency. 38 They often
describe how an agency will discharge its assigned functions and the requirements others
must follow in dealing with the agency. 39 For instance, rules relating to agency
employees and records promulgated under the Housekeeping Statute 40 are rules of
agency organization, procedure, or practice, and are not intended to be substantive. 41
However, it is also recognized that procedural rules may affect substantive rights, 42 and
where a procedural rule, such as a new rule of evidence, 43 has a substantial impact on a
party's rights, the distinction between procedural and substantive rules breaks down. 44
The substantial impact test is the primary means by which courts look beyond the label
"procedural" to determine whether a rule is of the type Congress thought appropriate for
public participation. 45 An agency rule that modifies substantive rights and interests
can only be nominally procedural, and the exemption for such rules of agency procedure
cannot apply to such a rule. 46 However, some courts, recognizing that even
unambiguously procedural measures affect parties to some degree, have shifted focus
from asking whether a given procedure has a substantial impact on parties to inquiring
more broadly whether the agency action also encodes a substantive value or puts a stamp
of approval or disapproval on a given type of behavior. 47
Absent extremely compelling circumstances, administrative agencies have great freedom

to fashion their own rules of procedure, subject, of course, to constitutional and statutory
constraints. 48
§ 162 ----Procedural rules [SUPPLEMENT]

553(b)(3)(a)). 126 ALR Fed 347.
Case authorities:
Handbook of HUD, providing procedures for processing rent increase requests, prepared
to promote efficient management and viability of projects was general statement of
policy to which APA did not apply. Reynolds Assocs. v United States (1994) 31 Fed Cl
335, 1994 US Claims LEXIS 98.
The General Assembly is not authorized to enact procedural rules that violate substantive
constitutional rights, and it remains the duty of the state courts to provide a forum for
individuals claiming that procedural rules abridge such rights. N.C. Const. art. IV, §
13(2). Simeon v Hardin (1994) 339 NC 358, 451 SE2d 858.
Footnotes
Footnote 38. EEOC v National Cash Register Co. (ND Ga) 405 F Supp 562, 14 BNA
FEP Cas 1118, 12 CCH EPD ¶ 11046; Aiken v Obledo (ED Cal) 442 F Supp 628; Pickus
v United States Bd. of Parole, 165 US App DC 284, 507 F2d 1107 (superseded by statute
on other grounds as stated in Clardy v Levi (CA9 Wash) 545 F2d 1241, 39 ALR Fed
798) and (disapproved on other grounds by Califano v Sanders, 430 US 99, 51 L Ed 2d
192, 97 S Ct 980, 42 Cal Comp Cas 1112) and (criticized on other grounds by Wallace v
Christensen (CA9 Cal) 802 F2d 1539) and (among conflicting authorities on other
grounds noted in National Latino Media Coalition v FCC, 259 US App DC 481, 816 F2d
785) and (criticized on other grounds by American Hospital Asso. v Bowen, 266 US App
DC 190, 834 F2d 1037); Kessler v Federal Communications Com., 117 US App DC 130,
326 F2d 673; American Meat Institute v Bergland (DC Dist Col) 459 F Supp 1308.
The Administrative Procedure Act refers to rules of agency organization, practice, and
procedure. 5 USCS § 553(b)(A).

12.
381, 269 SE2d 547.

Footnote 42. EEOC v National Cash Register Co. (ND Ga) 405 F Supp 562, 14 BNA
FEP Cas 1118, 12 CCH EPD ¶ 11046; Ranger v Federal Communications Com., 111 US
App DC 44, 294 F2d 240.
Footnote 43. Pharmaceutical Mfrs. Asso. v Finch (DC Del) 307 F Supp 858 (disapproved
on other grounds by Rivera v Becerra (CA9 Cal) 714 F2d 887, 5 EBC 1917).
Footnote 44. Reynolds Metals Co. v Rumsfeld (CA4 Va) 564 F2d 663, 15 BNA FEP Cas
1185, 15 CCH EPD ¶ 7878, 45 ALR Fed 1, cert den 435 US 995, 56 L Ed 2d 84, 98 S
Ct 1646, 17 BNA FEP Cas 409, 16 CCH EPD ¶ 8251; Sannon v United States (SD Fla)
460 F Supp 458, remanded (CA5 Fla) 631 F2d 1247, 30 FR Serv 2d 964; McDonnell
Douglas Corp. v Marshall (ED Mo) 465 F Supp 22, 19 BNA FEP Cas 227, 19 CCH EPD
¶ 8963, affd (CA8 Mo) 609 F2d 898, 21 BNA FEP Cas 475, 21 CCH EPD ¶ 30390;
Pickus v United States Bd. of Parole, 165 US App DC 284, 507 F2d 1107 (superseded by
statute on other grounds as stated in Clardy v Levi (CA9 Wash) 545 F2d 1241, 39 ALR
Fed 798) and (disapproved on other grounds by Califano v Sanders, 430 US 99, 51 L Ed
2d 192, 97 S Ct 980, 42 Cal Comp Cas 1112) and (criticized on other grounds by
Wallace v Christensen (CA9 Cal) 802 F2d 1539) and (among conflicting authorities on
other grounds noted in National Latino Media Coalition v FCC, 259 US App DC 481,
816 F2d 785).
As to legislative or substantive rules, see § 160.
Footnote 45. United States Dept. of Labor v Kast Metals Corp. (CA5 La) 744 F2d 1145;

Brown Express, Inc. v United States (CA5) 607 F2d 695 (disagreed with on other
grounds by American Trucking Asso. v United States (CA11) 688 F2d 1337, reh den
(CA11) 696 F2d 1007 and revd 467 US 354, 81 L Ed 2d 282, 104 S Ct 2458, 1984-1
CCH Trade Cases ¶ 66031) as stated in Jean v Nelson (CA11 Fla) 711 F2d 1455.
As to a disagreement among the courts as to whether the substantial impact test is a

viable method for distinguishing between legislative and interpretive rules, see § 160.
As to federal exemption from rulemaking requirements for procedural rules, see § 193.
As to state exemption from rulemaking requirements for procedural rules, see § 220.
Footnote 48. Vermont Yankee Nuclear Power Corp. v Natural Resources Defense
ELR 20288, on remand 222 US App DC 9, 685 F2d 459, 17 Envt Rep Cas 1457, 12 ELR
20465, reh, en banc, den (App DC) 18 Envt Rep Cas 1519 and revd 462 US 87, 76 L Ed
2d 437, 103 S Ct 2246, 19 Envt Rep Cas 1057, 13 ELR 20544; FCC v Schreiber, 381
US 279, 14 L Ed 2d 383, 85 S Ct 1459; FCC v Pottsville Broadcasting Co., 309 US
134, 84 L Ed 656, 60 S Ct 437, 2 CCH LC ¶ 17058.
§ 163 General statements of policy
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Some courts provide that a general statement of policy is neither a rule nor a precedent
but is merely an announcement to the public of the policy which the agency hopes to
implement in future rulemakings or adjudications, 49 or what the agency's prospective
position on an issue is likely to be. 50 Although there is some authority that general
statements of policy must operate only prospectively, 51 other authority provides that
general statements of policy need not operate exclusively in the future. 52
Policy statements often announce factors or tentative goals which are important to an
agency, 53 and a general statement of policy, like a press release, often precedes
an upcoming rulemaking or announces the course which the agency intends to follow in
future adjudications. 54 These types of statements are often important guides to the
exercise of discretion. 55 While under federal law policy statements are exempt from
rulemaking procedures, 56 under state law, policies may 57 or may not 58 have to be
promulgated as rules.
Under federal law, general statements of policy may establish flexible criteria 59 which
do not have the force and effect of law, 60 and might be open to challenge in particular
situations. 61 General statements of policy can be directed to the staff of an agency. 62
The critical factor in determining whether a directive announcing a new policy is a
substantive rule or a general statement of policy is the extent to which the challenged
directive leaves the agency, or its implementing official, free to exercise discretion to
follow, or not to follow, the announced policy in an individual case. 63 To the
extent the directive merely provides guidance to the agency officials in exercising their
discretionary powers while preserving their flexibility and their opportunity to make
individualized determinations, it constitutes a general statement of policy. 64
In the case of general statements of policy, Congress has determined that notice and
comment rulemaking of the federal Administrative Procedure Act 65 would be of
limited utility, and the parties can challenge the policy determinations made by the
agency only if and when the directive has been applied specifically to them. 66 In
contrast, if the directive narrowly limits administrative discretion or establishes a binding
norm that so fills out the statutory scheme that upon application one need only determine
whether a given case is within the rule's criteria, it effectively replaces the agency's
discretion with a new binding rule that is legislative in nature. 67 In these cases,
notice and comment rulemaking proceedings are required, as they would be for any other
legislative rule, and they will represent the only opportunity for parties to challenge the
policy determinations upon which the new rule is based. 68
Unlike legislative rules, nonbinding policy statements carry no more weight on judicial
review then their inherent persuasiveness commands. 69 When the agency applies a
general statement of policy in a particular situation, it must be prepared to support the
policy just as if the policy statement had never been issued. 70
 Comment: The situation can arise where federal agencies issue policy statements
which they treat or are reasonably regarded by the public as binding and dispositive of
the issues they address. To avoid the situation the Administrative Conference
recommends, first, that when an agency contemplates an announcement of a
substantive policy (other than through an adjudicative decision) it should decide
whether to issue the policy as a legislative rule, in a form that binds affected persons,
or as a nonbinding policy statement. Second, to prevent policy statements from being
treated as binding as a practical matter, the recommendation suggests that agencies
establish informal and flexible procedures that allow an opportunity to challenge policy
statements. 71
§ 163 ----General statements of policy [SUPPLEMENT]

553(b)(3)(a)). 126 ALR Fed 347.
Regulations:
In 1993, the Administrative Conference of the United States adopted recommendations

concerning use of APA formal procedures in civil penalty proceedings (1 CFR §
305.93-1), administrative and judicial review of prompt corrective action decisions by the
federal banking regulators (1 CFR § 305.93-2), and peer review in the award of
discretionary grants (1 CFR § 305.93-3).

Case authorities:
SEC violated Administrative Procedure Act, 5 USCS § 553, where SEC issued no-
action letter declining to prosecute company for failing to include shareholder proposal
for nondiscrimination policy on basis of sexual orientation in annual proxy statement,
and no-action letter changed long-standing SEC policy requiring inclusion of
employment proposals with social policy implications, because notice and comment
provisions of 5 USCS § 553 are mandatory, SEC's policy decision is legislative
rulemaking, and inclusion of policy decision in no-action letter does not insulate it from
notice and comment requirement. New York City Employees' Retirement Sys. v SEC
(1994, SD NY) 843 F Supp 858, 63 BNA FEP Cas 1358, 63 CCH EPD ¶ 42820, CCH
Fed Secur L Rep ¶ 98052.
Interim rule of Immigration and Naturalization Service amending existing regulation

governing asylum and withholding of deportation under specified circumstances was
general statement of policy and therefore exempt from notice and comment requirement;
thus, Attorney General could revoke interim rule without completing notice and comment
requirement. Chen Zhou Chai v Carroll (1995, CA4 Va) 48 F3d 1331.
Footnotes
Footnote 49. Telecommunications Research & Action Center v FCC, 255 US App DC
156, 800 F2d 1181.
Footnote 50. Dyer v Secretary of Health & Human Services (CA6 Mich) 889 F2d 682,
CCH Unemployment Ins Rep ¶ 15104A.
Footnote 51. Mada-Luna v Fitzpatrick (CA9 Ariz) 813 F2d 1006.
CCH Unemployment Ins Rep ¶ 15427A, 20 ELR 20910.
Footnote 53. Brown Express, Inc. v United States (CA5) 607 F2d 695 (criticized on other
grounds by American Trucking Asso. v United States (CA11) 688 F2d 1337) as stated in
Jean v Nelson (CA11 Fla) 711 F2d 1455, on reh, en banc (CA11 Fla) 727 F2d 957, reh
den (CA11 Fla) 733 F2d 908, cert gr 469 US 1071, 83 L Ed 2d 504, 105 S Ct 563 and
affd 472 US 846, 86 L Ed 2d 664, 105 S Ct 2992, later proceeding (SD Fla) 624 F Supp
836, later proceeding (SD Fla) 646 F Supp 1300, later proceeding (CA11 Fla) 854 F2d
405 and affd, in part, vacated (CA11 Fla) 863 F2d 759, cert gr 493 US 1055, 107 L Ed
2d 947, 110 S Ct 862 and affd 496 US 154, 110 L Ed 2d 134, 110 S Ct 2316, CCH
Unemployment Ins Rep ¶ 15427A, 20 ELR 20910.
156, 800 F2d 1181.

Footnote 55. United States ex rel. Parco v Morris (ED Pa) 426 F Supp 976 (disapproved
on other grounds by Williams v Immigration & Naturalization Service (CA9 Wash) 795
F2d 738); Pacific Gas & Electric Co. v Federal Power Com., 164 US App DC 371, 506
F2d 33, 50 OGR 395; Davis Walker Corp. v Blumenthal (DC Dist Col) 460 F Supp 283.
Footnote 57. Gilbert v State, Dept. of Fish & Game, Bd. of Fisheries (Alaska) 803 P2d
391 (policy fell within the meaning of a "regulation" and it was invalid for failure to
comply with the Administrative Procedures Act).
381, 269 SE2d 547.
Footnote 59. Dow Chemical, USA v Consumer Product Safety Com. (WD La) 459 F
Supp 378, 9 ELR 20016.
Footnote 60. Pacific Gas & Electric Co. v Federal Power Com., 164 US App DC 371,
506 F2d 33, 50 OGR 395.
Footnote 61. Dow Chemical, USA v Consumer Product Safety Com. (WD La) 459 F
Supp 378, 9 ELR 20016; Pacific Gas & Electric Co. v Federal Power Com., 164 US App
DC 371, 506 F2d 33, 50 OGR 395.
Footnote 62. Noel v Chapman (CA2 NY) 508 F2d 1023, cert den 423 US 824, 46 L Ed
2d 40, 96 S Ct 37; United States ex rel. Parco v Morris (ED Pa) 426 F Supp 976
(disapproved on other grounds by Williams v Immigration & Naturalization Service
(CA9 Wash) 795 F2d 738).

12.
1006).
The Department of Labor's statistical methodology for collecting and computing

unemployment statistics which triggered emergency job program allocations under
Comprehensive Employment and Training Act (29 USCS §§ 801-992) was not a general
policy statement exempt from notice and comment requirements where the methodology
was a formula and left no discretion to weigh or alter contributing elements. Batterton v
Marshall, 208 US App DC 321, 648 F2d 694.

1006).
As to notice and comment rulemaking under the federal Act, see §§ 165 et seq.
Footnote 66. Mada-Luna v Fitzpatrick (CA9 Ariz) 813 F2d 1006, appeal after remand
(CA9 Ariz) 874 F2d 816.
The Food and Drug Administration was not required to engage in notice and comment
procedures before implementing memorandum where such memorandum was general
statement of policy and not rule under 5 USCS § 553. Burroughs Wellcome Co. v
Schweiker (CA4 NC) 649 F2d 221 (among conflicting authorities on other grounds noted
in Mada-Luna v Fitzpatrick (CA9 Ariz) 813 F2d 1006).
As to exemption of general statements of policy from federal rulemaking procedures, see

§ 193.
1006).
A statement is likely to be considered binding if it narrowly circumscribes administrative

discretion in all future cases and if it finally and conclusively determines the issues to
which it relates. Dyer v Secretary of Health & Human Services (CA6 Mich) 889 F2d
682, CCH Unemployment Ins Rep ¶ 15104A.
1006).
Footnote 70. Mada-Luna v Fitzpatrick (CA9 Ariz) 813 F2d 1006, appeal after remand
(CA9 Ariz) 874 F2d 816.
Footnote 71. 1 CFR § 305.92-2.
§ 164 Restatement of statute
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An agency interpretation of the statute which simply reiterates the legislature's statutory
mandate and does not place upon the statute an interpretation that is not readily apparent
from its literal reading, nor in and of itself purport to create rights, or require compliance,
or to otherwise have the direct and consistent effect of the law, is not an unpromulgated
rule, and actions based upon such an interpretation are permissible without requiring an
agency to go through rulemaking. 72 Some state administrative procedure acts permit
agencies to obtain a waiver of the ordinary requirements for rulemaking where the
agency is allowed no discretion in interpreting statutes. 73 Where the statute contains
terms that allow for no discretion and are sufficiently precise to be applied without
implementing rules, rulemaking is sometimes considered contrary to public interest and a
futile gesture. 74 There is no reason for requiring rules that have already been
promulgated by the legislature to be readopted by an administrative agency, 75 and, in
some cases, courts will not enforce a regulation that is, in effect, a rewriting of the
statute. 76
§ 164 ----Restatement of statute [SUPPLEMENT]

553(b)(3)(a)). 126 ALR Fed 347.
Footnotes
Footnote 72. St. Francis Hospital, Inc. v Department of Health & Rehabilitative Services
(Fla App D1) 553 So 2d 1351, 15 FLW D 21.
Footnote 73. Burk v Sunn, 68 Hawaii 80, 705 P2d 17.
A2d 3.
Footnote 75. Vega v National Union Fire Ins. Co., 67 Hawaii 148, 682 P2d 73.
Footnote 76. Moses v Idaho State Tax Com., 118 Idaho 676, 799 P2d 964, reh den
(Idaho) 1990 Ida LEXIS 182.
C. Federal Procedure for Adoption of Rules [165-197]
Research References
5 USCS §§ 552, 553, 556, 557, 561 et seq.
1 CFR §§ 305.69-8, 305.71-6, 305.77-3, 305.85-5, 305.92-1
ALR Digests: Administrative Law §§ 61, 62
15 Federal Procedure, L Ed, Freedom of Information §§ 38:26-38:37
1A Federal Procedural Forms, L Ed, Administrative Procedure §§ 2:151, 2:152, 2:161
et seq.
1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Forms 34-39, 44-46
1. Types of Rulemaking [165-183]
a. In General; Informal Rulemaking [165-176]
§ 165 Generally
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The federal Administrative Procedure Act 77 generally provides that legislative rules
are to be promulgated in accordance with a legislative factfinding technique known as
notice and comment rulemaking, 78 subject to certain exceptions, 79 unless formal
rulemaking is required, 80 or negotiated rulemaking occurs. 81
 Observation: Other statutes may govern rulemaking in certain instances. For

example, for specified rulemaking actions, the Federal Clean Air Law has prescribed
the type of proceedings to be followed. 82
Case authorities:
Immigration and Naturalization Service's policy of placing upon common carriers burden
of detaining stowaways who have applied for asylum constitutes legislative rule and is
invalid for failure to comply with notice and comment procedures of APA. Dia
Navigation Co. v Pomeroy (1994, CA3 NJ) 34 F3d 1255, 1994 AMC 2921.
FDA's announcement in its "Notice of Applicability of Final Rule" that human heart
valve allografts were subject to regulations governing replacement heart valves was not
logical outgrowth of established regulation where allografts had been distributed for
years with no indication from FDA that they were subject to regulations, and judical
review of manufacturer's claim was not foreclosed by limitations period. Northwest
Tissue Ctr. v Shalala (1993, CA7 Ill) 1 F3d 522, reh, en banc, den (CA7 Ill) 1993 US
App LEXIS 24957.
In formulating Columbia River Basin Fish and Wildlife Program, Pacific Northwest
Power Planning and Conservation Council failed to explain statutory basis for its
rejection of recommendations of agencies and tribes, in violation of 16 USCS § 839b
and 5 USCS § 706, and suit challenging action will therefore be remanded for written
statutory explanation. Gateway E. Ry. v Terminal R.R. Ass'n (1994, CA7 Ill) 35 F3d
1134.
In suit by injured snowmobiler against organizer of snowmobile tour, Special Use Permit
between organizer and federal government does not operate as force of law to make
plaintiff's waiver of liability contrary to federal policy; for Specific Use Permit to have
force of law, permit would have to be adopted according to APA procedures. Anderson v
Eby (1993, CA10 Colo) 998 F2d 858 (not followed by Del Bosco v United States Ski
Ass'n (DC Colo) 1993 US Dist LEXIS 18169).
Plaintiff's challenge to regulation restricting Department of Transportation regulation

controlling operation of drawbridges on Chicago River is granted summarily, where
agency (1) discusses major comments in only a descriptive manner, not explanatory, (2)
fails to provide any explanation as to why old rule was unsatisfactory, and (3) fails to
reveal what major issues of policy were ventilated by informal proceedings and why
agency reacted to them as it did, because agency failed to provide general statement of
rule's basis and purpose as required by 5 USCS § 553(c). Crowley's Yacht Yard v Pena
(1994, DC Dist Col) 863 F Supp 18.
Footnotes
Footnote 78. Zotos International, Inc. v Kennedy (DC Dist Col) 460 F Supp 268
(disapproved on other grounds by Public Citizen Health Research Group v Food & Drug
Admin., 227 US App DC 151, 704 F2d 1280) and later proceeding 265 US App DC 202,
830 F2d 350, 4 USPQ2d 1330.
As to procedures for comment under the federal Administrative Procedure Act, see §
172.
Footnote 82. 61A Am Jur 2d, Pollution Control § 111.

§ 166 Purpose of notice and comment proceedings
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Notice serves three distinct purposes. First, notice improves the quality of agency
rulemaking by insuring that the agency regulations will be tested by exposure to diverse
public comment. 83 The notice and comment procedure assures that the public and the
persons being regulated are given an opportunity to participate, provide information and
suggest alternatives, 84 so that the agency is educated about the impact of a
proposed rule 85 and can make a fair and mature decision. 86
Second, notice and the opportunity to be heard are essential components of fairness to
affected parties. 87
Third, by giving affected parties an opportunity to develop evidence in the record to

support their objections to a rule, notice enhances the quality of judicial review. 88
However, these values must be balanced against the public's interest in expedition and
finality. 89
An opportunity to comment granted after a rule is promulgated cannot substitute for

notice and an opportunity to comment beforehand. 90 But while an interested party is
entitled to participate in the rulemaking process, that party does not have a right to insist
that a rule take on a particular form. 91
§ 166 ----Purpose of notice and comment proceedings [SUPPLEMENT]
Case authorities:
Department of Agriculture assessments on almond growers are "rules" subject to notice

and comment requirement of APA, because assessment rates directly affect financial
interests of growers. Cal- Almond, Inc. v United States Dep't of Agric. (1993, CA9 Cal)
Bureau of Indian Affairs violated APA in adopting, subsequent to Court of Appeals'

invalidation of existing criteria for higher education grant eligibility, new set of written
criteria without following notice and comment rulemaking procedures specified by APA.
Malone v Bureau of Indian Affairs (1994, CA9 Cal) 38 F3d 433, 94 CDOS 7782, 94
Even if Department of Labor previously failed to articulate "risk of loss" test, whereby
growers' "collaboration" in loaning funds to Jamaican migrant farmworkers for travel
expenses to United States for seasonal employment did not constitute "advance" under
regulations requiring growers to afford same collaboration and benefits to domestic
workers, on theory that growers did not bear any risk of loss in event of Jamaican
workers' default on loan obligations, risk of loss test was permissible interpretation of
Department's regulations and is therefore exempt from notice and comment requirements
of 5 USCS § 553. Caraballo v Reich (1993, App DC) 11 F3d 186.
EPA's repromulgation of regulations covering mining wastes had effect of rescinding

previous regulation, and EPA was therefore required to comply with applicable rule-
making provisions of APA; however, EPA is not required to start from scratch and may
not need to initiate new notice and comment proceedings. Mobil Oil Corp. v United
States EPA (1994, App DC) 35 F3d 579, 39 Envt Rep Cas 1481.
Congressional amendments completely revising scheme for reimbursing Medicare

hospitals constituted sufficiently "good cause" under 5 USCS § 553 for bypassing notice
and comment requirement, and prospective- only policy toward error correction
constituted sufficiently logical outgrowth of initial statement indicating that errors would
be recalculated; thus, final rules fell within allowance for modifications following public
comment pursuant to 42 USCS § 1395ww. Methodist Hosp. v Shalala (1994, App DC)
38 F3d 1225, 46 Soc Sec Rep Serv 63.
Office of Thrift Supervision (OTS) is enjoined from enforcing interim final rule
governing mutual-to-stock conversions of savings associations, where OTS issued rule
without prior notice and opportunity for comment, in reliance on good cause exception of
Administrative Procedure Act (5 USCS § 553(b)(3)(B)), because (1) OTS could not rely
on fact that it received public comments in response to another rule since that rule
discussed different matters from interim rule, (2) use of good cause exception cannot be
justified out of fear that savings association would apply for conversion before new rule
becomes effective, (3) practical reach of rule is quite expansive, and (4) rule is not
limited in time. Thrift Depositors of Am. v Office of Thrift Supervision (1994, DC Dist
Col) 862 F Supp 586.
Footnotes
Footnote 83. Small Refiner Lead Phase-Down Task Force v United States Environmental
Protection Agency, 227 US App DC 201, 705 F2d 506, 18 Envt Rep Cas 2033, 13 ELR
20490.
Footnote 84. Phillips Petroleum Co. v Department of Energy (DC Del) 449 F Supp 760,
affd (Em Ct App) 596 F2d 1029; Pharmaceutical Mfrs. Asso. v Finch (DC Del) 307 F
Supp 858 (disapproved on other grounds by Rivera v Becerra (CA9 Cal) 714 F2d 887, 5
EBC 1917); Sannon v United States (SD Fla) 460 F Supp 458, remanded (CA5 Fla) 631
F2d 1247, 30 FR Serv 2d 964; American Asso. of Councils of Medical Staffs of Private
Hospitals, Inc. v Mathews (ED La) 421 F Supp 848, vacated on other grounds (CA5 La)
575 F2d 1367, cert den 439 US 1114, 59 L Ed 2d 72, 99 S Ct 1018, reh den 440 US
951, 59 L Ed 2d 641, 99 S Ct 1434; Dow Chemical, USA v Consumer Product Safety
Com. (WD La) 459 F Supp 378, 9 ELR 20016; Pacific Coast European Conference v
United States (CA9) 350 F2d 197, cert den 382 US 958, 15 L Ed 2d 362, 86 S Ct 433;
Pickus v United States Bd. of Parole, 165 US App DC 284, 507 F2d 1107 (superseded by
statute on other grounds as stated in Clardy v Levi (CA9 Wash) 545 F2d 1241, 39 ALR
Fed 798) and (disapproved on other grounds by Califano v Sanders, 430 US 99, 51 L Ed
2d 192, 97 S Ct 980, 42 Cal Comp Cas 1112) and (criticized on other grounds by
Wallace v Christensen (CA9 Cal) 802 F2d 1539) and (among conflicting authorities on
other grounds noted in National Latino Media Coalition v FCC, 259 US App DC 481,
816 F2d 785) and (criticized by American Hospital Asso. v Bowen, 266 US App DC 190,

834 F2d 1037); American Standard, Inc. v United States, 220 Ct Cl 411, 602 F2d 256,
79-2 USTC ¶ 9417, 44 AFTR 2d 79-5149, later proceeding 223 Ct Cl 794; Standard Oil
Co. v Department of Energy (Em Ct App) 596 F2d 1029.
As to procedure for comment, see §§ 172 et seq.
Footnote 85. Lewis–Mota v Secretary of Labor (CA2 NY) 469 F2d 478; Texaco, Inc. v
Federal Power Com. (CA3) 412 F2d 740, 34 OGR 125; Chocolate Mfrs. Asso. v Block
(CA4 Va) 755 F2d 1098; Pacific Coast European Conference v United States (CA9) 350
F2d 197, cert den 382 US 958, 15 L Ed 2d 362, 86 S Ct 433; Pickus v United States Bd.
of Parole, 165 US App DC 284, 507 F2d 1107 (superseded by statute on other grounds as
stated in Clardy v Levi (CA9 Wash) 545 F2d 1241, 39 ALR Fed 798) and (disapproved
on other grounds by Califano v Sanders, 430 US 99, 51 L Ed 2d 192, 97 S Ct 980, 42
Cal Comp Cas 1112) and (criticized on other grounds by Wallace v Christensen (CA9
Cal) 802 F2d 1539) and (among conflicting authorities on other grounds noted in
National Latino Media Coalition v FCC, 259 US App DC 481, 816 F2d 785) and
(criticized by American Hospital Asso. v Bowen, 266 US App DC 190, 834 F2d 1037);
National Helium Corp. v Federal Energy Administration (Em Ct App) 569 F2d 1137.
See also Yakus v United States, 321 US 414, 88 L Ed 834, 64 S Ct 660, 28 Ohio Ops
220.
Footnote 86. NLRB v Wyman-Gordon Co., 394 US 759, 22 L Ed 2d 709, 89 S Ct 1426,

70 BNA LRRM 3345, 60 CCH LC ¶ 10032.
20490.
20490.
20490.
Footnote 90. Waco v Environmental Protection Agency (CA5) 620 F2d 84, 15 Envt Rep
Cas 1174, 10 ELR 20545; Mobil Oil Corp. v Department of Energy (Em Ct App) 610
F2d 796, cert den 446 US 937, 64 L Ed 2d 790, 100 S Ct 2156 and appeal after remand
(Em Ct App) 647 F2d 142, later proceeding (Em Ct App) 678 F2d 1083.
Footnote 91. Pacific Coast European Conference v United States (CA9) 350 F2d 197,
cert den 382 US 958, 15 L Ed 2d 362, 86 S Ct 433.
§ 167 Publication of notice
View Entire Section

The federal Administrative Procedure Act provides that general notice of proposed
rulemaking must be published in the Federal Register, unless persons subject to the rule
are named and are either personally served or otherwise have actual notice of the
rulemaking proceeding in accordance with the law. 92 The general theory is that
publication in the Federal Register imparts sufficient, albeit constructive, 93 notice of
the rulemaking proceeding, and a party is not entitled to personal notice. 94 The notice
provisions of the federal Administrative Procedure Act provide at least as much
protection as the due process provisions of the Fifth Amendment. 95
Footnotes
Footnote 93. Rodway v United States Dept. of Agriculture, 168 US App DC 387, 514
F2d 809.
Footnote 94. United States v Daniels (DC SD) 418 F Supp 1074.
Footnote 95. Forester v Consumer Product Safety Com., 182 US App DC 153, 559 F2d
774.
§ 168 Compliance with publication requirements
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Failure to publish a notice of proposed rulemaking as required by the federal

Administrative Procedure Act results in the invalidation of the ensuing rule, 96 if the
proceeding does not come within one of the exceptions to the notice and comment
rulemaking provisions of the federal Administrative Procedure Act. 97
The members of a regulated industry are not prejudiced by a failure to publish a notice of
proposed rulemaking in the Federal Register as required by the federal APA if they have
actual notice of the proposal and exercise their right to participate. 98 A regulated entity
may also waive an objection that notice of a proposed regulation was not published
where the entity participates in the proceeding without making a timely objection to the
agency. 99
Considering that a notice of proposed rulemaking must provide adequate warning that a
rule change is being considered, a long delay in issuing a rule may lull the members of a
regulated industry into believing that the rulemaking process has been abandoned and
may make republication of the proposal before the rule is promulgated desirable;
however, it has been held that a five-year delay in promulgating a rule after the initial
notice of rulemaking was published does not necessarily invalidate the rule. 1
§ 168 ----Compliance with publication requirements [SUPPLEMENT]
Case authorities:
Manual of Department of Health and Human Services, setting forth rules for
reimbursement to hospitals of reasonable advance refunding costs under Medicare on
amortized rather than lump sum basis, adopted without notice and comment procedure,
provided substantive rule change and was void. Guernsey Memorial Hosp. v Secretary of
Health & Human Servs. (1993, CA6 Ohio) 996 F2d 830, 41 Soc Sec Rep Serv 399, reh,
en banc, den (CA6) 1993 US App LEXIS 25524.
Footnotes
Footnote 96. Clever Idea Co. v Consumer Product Safety Com. (ED NY) 385 F Supp
688; Texaco, Inc. v Federal Power Com. (CA3) 412 F2d 740, 34 OGR 125; Chicago, B.
& Q. R. Co. v United States (ND Ill) 242 F Supp 414, affd 382 US 422, 15 L Ed 2d 498,
86 S Ct 616; Shell Oil Co. v Federal Energy Administration (Em Ct App) 527 F2d 1243.
Footnote 98. Arlington Oil Mills, Inc. v Knebel (CA5 Ga) 543 F2d 1092, reh den (CA5
Ga) 545 F2d 168; Amerada Petroleum Corp. v Federal Power Com. (CA10) 231 F2d 461,
5 OGR 819; Lloyd Noland Hospital & Clinic v Heckler (CA11 Ala) 762 F2d 1561.
Footnote 99. Southern R. Co. v United States (DC Dist Col) 412 F Supp 1122, appeal
after remand (DC Dist Col) 502 F Supp 975; United States v Elof Hansson, Inc., 48
CCPA 91, CAD 771, 296 F2d 779, cert den 368 US 899, 7 L Ed 2d 95, 82 S Ct 179.
Forms: Objection to proposed rulemaking. 1A Federal Procedural Forms, L Ed,

Footnote 1. United States v Daniels (DC SD) 418 F Supp 1074.
§ 169 Contents of notice
View Entire Section

The federal Administrative Procedure Act requires that a notice of proposed rulemaking
include a statement of the time, place, and nature of public rulemaking proceedings,
reference to the legal authority under which the rule is proposed, and either the terms or
substance of the proposed rule or a description of the subject and issues involved. 2
These requirements apply in both formal and informal proceedings. 3

The requirement that reference be made to the legal authority under which a rule is
proposed is met if the notice states that the rule is proposed under particular sections of
the United States Code 4 or particular sections of an act of Congress. 5 However, a
final rule may be invalid if it relies on different sections from those cited in the notice of
proposed rulemaking. 6
In order to allow for useful criticism, it is especially important for the agency to identify
and make available technical studies and data that it has employed in reaching decisions
to propose particular rules. 7 An agency commits serious procedural error when it
fails to reveal portions of the technical basis for a proposed rule and time to allow for
meaningful commentary. 8 When a proposed rule is based on scientific data, the
agency should identify the data and the methodology used to obtain it. 9
Footnotes
Footnote 3. Jones v Bergland (ED Pa) 456 F Supp 635.
Footnote 4. National Tour Brokers Asso. v United States, 192 US App DC 287, 591 F2d
896.
Footnote 5. Hooker Chemicals & Plastics Corp. v Train (CA2) 537 F2d 620.
896.
Footnote 7. Connecticut Light & Power Co. v Nuclear Regulatory Com., 218 US App
DC 134, 673 F2d 525, cert den 459 US 835, 74 L Ed 2d 76, 103 S Ct 79.
Footnote 9. Lloyd Noland Hospital & Clinic v Heckler (CA11 Ala) 762 F2d 1561.
§ 170 Adequacy of notice
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Since the federal Administrative Procedure Act 10 authorizes either notice which
specifies the "terms or substance" of the contemplated regulation or notice which merely
identifies the "subjects and issues involved" in the rulemaking proceeding inaugurated by
the notice, the statutory language makes clear that the notice need not identify every
precise proposal which the agency may ultimately adopt. 11 For instance, the notice
need not state the exact numerical standard that will be fixed in the revised rule, 12
agency data supporting the proposal, 13 or the exact position agency staff will take at the
rulemaking proceeding. 14 However, notice of proposed rulemaking is not adequate
where it fails to provide an accurate picture of the reasoning that has led the agency to the
proposed rule because interested parties will not be able to comment meaningfully upon
the agency's proposal. 15
The adequacy of notice in any case must be determined by a close examination of the
facts of the particular proceeding which produced a challenged rule. 16 Generally,
however, notice is adequate if it apprises interested parties of the issues to be addressed
in the rulemaking proceeding with sufficient clarity and specificity to allow them to
participate in the rulemaking in a meaningful and informed manner. 17 In addition,
the notice must at least specify that comments are being gathered for rulemaking; an
agency cannot promulgate a rule after announcing that it was gathering information only
for the purpose of proposing statutory amendments to Congress. 18
When an agency adopts final rules that differ from the proposed rules, and changes are so
major that the original notice does not adequately frame the subjects for discussion, the
agency may be required to give notice a second time. 19
§ 170 ----Adequacy of notice [SUPPLEMENT]
Case authorities:
EPA gave adequate notice that new testing procedure for determining toxicity
characteristics of hazardous solid waste would be more sensitive to lead and other
organic constituents than former procedure where EPA gave explicit notice of terms of
procedure ultimately adapted, and where sewer industry submitted comments criticizing
increased sensitivity, showing that they were given notice. Edison Elec. Inst. v United
States EPA (1993, App DC) 2 F3d 438, 37 Envt Rep Cas 1385, 23 ELR 21173.
Footnotes
Footnote 11. American Medical Asso. v United States (CA7 Ill) 887 F2d 760, 89-2
USTC ¶ 9585, 64 AFTR 2d 89-5715; Mobil Oil Corp. v Department of Energy (Em Ct
App) 728 F2d 1477, cert den 467 US 1255, 82 L Ed 2d 849, 104 S Ct 3545.
Footnote 12. Willapoint Oysters, Inc. v Ewing (CA9) 174 F2d 676, cert den 338 US 860,
94 L Ed 527, 70 S Ct 101, reh den 339 US 945, 94 L Ed 1360, 70 S Ct 793.
Footnote 13. Appalachian Power Co. v Environmental Protection Agency (CA4) 579 F2d
846, 8 ELR 20681.
Footnote 14. Colorado Interstate Gas Co. v Federal Power Com. (CA10) 209 F2d 717,
revd on other grounds 348 US 492, 99 L Ed 583, 75 S Ct 467, 4 OGR 897.

USTC ¶ 9585, 64 AFTR 2d 89-5715.
USTC ¶ 9585, 64 AFTR 2d 89-5715; Mobil Oil Corp. v Department of Energy (Em Ct
App) 728 F2d 1477, cert den 467 US 1255, 82 L Ed 2d 849, 104 S Ct 3545.
896.
§ 171 --Rule differing from published notice
View Entire Section

A final rule is not necessarily invalid for lack of adequate notice simply by reason of the
fact that the rule finally adopted differs from the original proposal. 20 An agency is
not required to publish in advance every precise proposal which it may ultimately adopt
as a rule, 21 and a final rule which contains changes from the proposed rule need not
always go through a second notice and comment period. An agency can make even
substantial changes from the proposed version. 22 If an agency could not change a
rule after receiving comments, it would be placed in the absurd position of either being
unable to learn from the comments or being forced to commence new comment periods
ad infinitum. 23
However, a problem arises when the final rule adopted differs substantially from the rule
proposed in the notice. In this situation the courts in evaluating the adequacy of the
initial notice have often employed one or both of the following tests: whether the final
rule is a logical outgrowth of the notice and comments during the rulemaking process
following the publication of the proposed rule; 24 and whether the notice of the
proposed rulemaking fairly apprised interested parties so that they had an opportunity to
comment. 25
Courts have upheld final rules which differed from proposals in the following significant
respects: outright reversal of the agency's initial position; elimination of compliance
options contained in a notice of proposed rulemaking; combining or further subdividing,
distinct categories of regulated entities established in a proposed rule; exempting certain
entities from the coverage of final rules; or altering the method of calculating or
measuring a quantity relevant to a party's obligations under the rule. 26 On the other
hand, a rule will be invalidated if no notice is given of an issue addressed by the final
rule. 27 Moreover, notice is inadequate where an issue is only addressed in the most
general terms in the initial proposal or where a final rule changes a preexisting agency
practice which was only mentioned in a notice of proposed rulemaking in order to place
unrelated changes in the overall regulatory scheme into the proper context. 28
Footnotes
Footnote 20. American Iron & Steel Institute v Environmental Protection Agency (CA3)
568 F2d 284, 10 Envt Rep Cas 1689, 7 ELR 20738 (even if eventual rule is substantially
different from proposed rule); American Medical Asso. v United States (CA7 Ill) 887
F2d 760, 89-2 USTC ¶ 9585, 64 AFTR 2d 89-5715; Mobil Oil Corp. v Department of
Energy (Em Ct App) 728 F2d 1477, cert den 467 US 1255, 82 L Ed 2d 849, 104 S Ct
3545.
Annotation: What constitutes adequate notice of proposed federal agency rule against
objection that rule adopted differed in substance from that published as proposed in
notice, 96 ALR Fed 411.
Footnote 22. Natural Resources Defense Council, Inc. v United States EPA (CA1) 824
F2d 1258, 26 Envt Rep Cas 1233, 18 ELR 20088; Natural Resources Defense Council,
Inc. v Thomas, 267 US App DC 274, 838 F2d 1224, 27 Envt Rep Cas 1041, 18 ELR
20519, cert den 488 US 888, 102 L Ed 2d 210, 109 S Ct 219, 28 Envt Rep Cas 1840
and cert den 488 US 901, 102 L Ed 2d 238, 109 S Ct 250, 28 Envt Rep Cas 1840.
USTC ¶ 9585, 64 AFTR 2d 89-5715; International Harvester Co. v Ruckelshaus, 155 US
App DC 411, 478 F2d 615, 4 Envt Rep Cas 2041, 3 ELR 20133; Association of
American Railroads v Adams (DC Dist Col) 485 F Supp 1077.
Footnote 24. Natural Resources Defense Council, Inc. v United States EPA (CA1) 824
F2d 1258, 26 Envt Rep Cas 1233, 18 ELR 20088; American Medical Asso. v United
States (CA7 Ill) 887 F2d 760, 89-2 USTC ¶ 9585, 64 AFTR 2d 89-5715; Natural
Resources Defense Council, Inc. v Thomas, 267 US App DC 274, 838 F2d 1224, 27 Envt
Rep Cas 1041, 18 ELR 20519, cert den 488 US 888, 102 L Ed 2d 210, 109 S Ct 219, 28
Envt Rep Cas 1840 and cert den 488 US 901, 102 L Ed 2d 238, 109 S Ct 250, 28 Envt
Rep Cas 1840; Mobil Oil Corp. v Department of Energy (Em Ct App) 728 F2d 1477, cert
den 467 US 1255, 82 L Ed 2d 849, 104 S Ct 3545. See Connecticut Light & Power Co.
v Nuclear Regulatory Com., 218 US App DC 134, 673 F2d 525, cert den 459 US 835,
74 L Ed 2d 76, 103 S Ct 79.
568 F2d 284, 10 Envt Rep Cas 1689, 7 ELR 20738; American Medical Asso. v United
States (CA7 Ill) 887 F2d 760, 89-2 USTC ¶ 9585, 64 AFTR 2d 89-5715; Natural
Resources Defense Council, Inc. v Hodel (ED Cal) 618 F Supp 848, 16 ELR 20096;
American Public Transit Asso. v Goldschmidt (DC Dist Col) 485 F Supp 811, 10 ELR
20581.
Notice is sufficient if the description of subjects and issues involved affords interested
parties a reasonable opportunity to participate in rulemaking. Trans-Pacific Freight
Conference v Federal Maritime Com., 209 US App DC 27, 650 F2d 1235, cert den 451
US 984, 68 L Ed 2d 840, 101 S Ct 2316.

The "fairly apprise" standard was the standard contemplated by Congress in enacting the
federal Administrative Procedure Act. Natural Resources Defense Council, Inc. v Hodel
(ED Cal) 618 F Supp 848, 16 ELR 20096.
USTC ¶ 9585, 64 AFTR 2d 89-5715.
USTC ¶ 9585, 64 AFTR 2d 89-5715.
USTC ¶ 9585, 64 AFTR 2d 89-5715.
§ 172 Opportunity for comment
View Entire Section

Go to Supplement
Unlike the Model State Administrative Procedure Act, 29 and the requirements for
formal rulemaking under the federal Administrative Procedure Act, 30 both of which
mandate a hearing for rulemaking, in the case of informal rulemaking 31 under the
federal Administrative Procedure Act, a hearing is not required. 32 The Act provides
that after notice of proposed rulemaking is provided, an agency must give interested
persons an opportunity to participate in the rulemaking process through submission of
written data, views, or arguments with or without the opportunity for an oral presentation.
33 All an agency need do is grant interested persons the opportunity to submit written
comments, and there is no need to afford an evidentiary hearing or oral argument, even
though the issues may be important. 34 Such a written comment procedure
fulfills the constitutional requirement of due process. 35
The notice-and-comment provision of the federal Administrative Procedure Act has not
been interpreted to require an agency to respond to every comment 36 or to analyze
every issue or alternative raised by comments, no matter how insubstantial. 37 Rather,
the agency need respond only to those comments which, if valid, would require a change
in an agency's proposed rule, 38 or that raise significant problems. 39
A claim of exemption from rulemaking requirements is strictly scrutinized where agency

seeks, by adoption of policy, to informally undo all it accomplished through rulemaking
without giving parties opportunity to comment on wisdom of repeal. 40
 Comment: In connection with notice-and-comment rulemaking, on-the-record

rulemaking, and adjudication by administrative agencies, the Administrative
Conference of the United States has recommended a number of criteria to facilitate,
and determine the scope of, public participation. The recommendations cover
intervention, cost of participation, filing and distribution requirements, transcripts,
availability of information and experts, and notice. 41

§ 172 ----Opportunity for comment [SUPPLEMENT]
Practice Aids: Request–For place on agenda at meeting of federal agency–To testify

on proposed agency rulemaking. 1A Am Jur Pl & Pr Forms (Rev), Administrative
Law, § 57.
Case authorities:
In setting routine cost limits under Medicare reimbursement to providers of health care to
aged and disabled persons, Secretary of Health and Human Services responded
adequately to public comment and acted reasonably in formulating wage index; given
fact that part- time worker issue was of minor significance at time wage index was
adopted, Secretary had no obligation to provide specific response to comments about it.
Mount Diablo Hosp. v Shalala (1993, CA9 Cal) 3 F3d 1226, 42 Soc Sec Rep Serv 213,
Department of Health and Human Services regulation requiring third party payer, who
learns that Health Care Financing Association has made Medicare primary payer for
services for which third party has or should have made primary payment, to give notice
to that effect to Medicare intermediary or carrier that paid claim, is logical outgrowth of
proposal on which public has had opportunity to comment, and adoption does not violate
APA. Health Ins. Ass'n of Am. v Shalala (1994, App DC) 23 F3d 412, 44 Soc Sec Rep
Serv 391.
Under Safe Drinking Water Act, EPA is not required to set maximum containment level
for lead at water tap rather than establish treatment technique, but Agency's explanation
for its decision not to regulate transient noncommunity water systems was inadequate
where it failed to provide adequate notice that it might adopt broad definition of control,
and where it failed to provide opportunity for public comment. American Water Works
Ass'n v EPA (1994, App DC) 40 F3d 1266, 39 Envt Rep Cas 1897, 25 ELR 20335.
FCC schedule of base penalties and adjustments, which schedule was used to determine
appropriate fines for violations of Communications Act, was not policy statement and
therefore should have been put out for comment under requirements of APA. United
States Tel. Ass'n v FCC (1994, App DC) 307 US App DC 365, 28 F3d 1232.
Footnotes
Footnote 31. As to the distinction between formal and informal rulemaking under the
federal Administrative Procedure Act, see § 178.

Forms: Comment–In response to proposed rulemaking action of federal agency. 1A
Objections–To proposed rulemaking of federal agency. 1A Am Jur Pl & Pr Forms

(Rev), Administrative Law, Form 36.
Footnote 34. Bell Tel. Co. v FCC (CA3) 503 F2d 1250, cert den 422 US 1026, 45 L Ed
2d 684, 95 S Ct 2620, reh den 423 US 886, 46 L Ed 2d 118, 96 S Ct 163; Tidewater
Express Lines, Inc. v United States (DC Md) 281 F Supp 995; Chip Steak Co. v Hardin
(ND Cal) 332 F Supp 1084, affd (CA9 Cal) 467 F2d 481, cert den 411 US 916, 36 L Ed
2d 308, 93 S Ct 1546; Mobil Oil Corp. v Federal Power Com., 152 US App DC 119, 469
F2d 130, 44 OGR 124, cert den 412 US 931, 37 L Ed 2d 159, 93 S Ct 2749, reh den
414 US 881, 38 L Ed 2d 129, 94 S Ct 35; C. M. C. Chemicals, Inc. v United States, 47
Cust Ct 466, 198 F Supp 902.
Forms: Written comment in response to proposed rulemaking action by federal

agency. 1A Federal Procedural Forms, L Ed, Administrative Procedure § 2:26.
Requests for opportunity to testify or present views at agency rulemaking proceeding.

1A Federal Procedural Forms, L Ed, Administrative Procedure §§ 2:24, 2:25, 2:28.
2d 684, 95 S Ct 2620, reh den 423 US 886, 46 L Ed 2d 118, 96 S Ct 163; Rosenthal v
Bagley (ND Ill) 450 F Supp 1120.
As to hearings and the rulemaking process, see § 176.
Footnote 36. North Carolina v Federal Aviation Admin. (CA4 NC) 957 F2d 1125; St.
James Hospital v Heckler (CA7 Ill) 760 F2d 1460, cert den 474 US 902, 88 L Ed 2d
228, 106 S Ct 229; American Mining Congress v United States EPA, 285 US App DC
173, 907 F2d 1179, 31 Envt Rep Cas 1935, 20 ELR 21415.
Footnote 37. American Mining Congress v United States EPA, 285 US App DC 173, 907
F2d 1179, 31 Envt Rep Cas 1935, 20 ELR 21415.
Footnote 38. American Mining Congress v United States EPA, 285 US App DC 173, 907
Footnote 39. North Carolina v Federal Aviation Admin. (CA4 NC) 957 F2d 1125.
Footnote 40. Environmental Defense Fund, Inc. v Gorsuch, 230 US App DC 8, 713 F2d
802, 19 Envt Rep Cas 1410, 13 ELR 20712.
Footnote 41. 1 CFR § 305.71-6.
§ 173 Length of comment period
View Entire Section

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The federal Administrative Procedure Act 42 does not prevent an agency from stating in
its notice of rulemaking that comments must be received by a specified date. 43 It is
recognized that some cutoff is necessary 44 and an abbreviated comment period, such as
10 days, may be proper if necessitated by deadlines for agency action. 45 An agency
may compensate for an abbreviated comment period by stating that comments received
after the effective date of the rule will be considered, and by repromulgating the rule after
those comments are received. 46 However, reliance on evidence that comes into
existence only after the close of the comment period is normally improper. 47
Nevertheless, a party objecting to an agency's use of such data must indicate with
reasonable specificity what portions of the document it objects to and how it might have
responded if given the opportunity. 48
§ 173 ----Length of comment period [SUPPLEMENT]
Case authorities:
Sixty-day limitations period applied to petitioner's notice and comment challenge to

FCC's "hard look" processing rules; procedural challenge to agency rules does not
constitute exceptional situation for enlarging jurisdictional limitation. Jem Broadcasting
Co. v FCC (1994, App DC) 22 F3d 320.
Footnotes
Footnote 43. Fund for Animals v Frizzell (DC Dist Col) 402 F Supp 35, 8 Envt Rep Cas
1393, affd 174 US App DC 130, 530 F2d 982, 8 Envt Rep Cas 1591, 6 ELR 20188.
Footnote 44. American Asso. of Meat Processors v Bergland (DC Dist Col) 460 F Supp
279.
Footnote 45. Fund for Animals v Frizzell (DC Dist Col) 402 F Supp 35, 8 Envt Rep Cas
1393, affd 174 US App DC 130, 530 F2d 982, 8 Envt Rep Cas 1591, 6 ELR 20188.
Forms: Complaint of insufficient time to review proposed regulation and comment. 9

Federal Procedural Forms, L Ed, Environmental Protection § 29:243.
Request for additional time to comment. 9 Federal Procedural Forms, L Ed, Food,
Drugs, and Cosmetics § 31:36.
Footnote 46. Pent-R-Books, Inc. v United States Postal Service (ED NY) 328 F Supp
297, 15 ALR Fed 464.
Footnote 47. American Iron & Steel Inst. v OSHA, 291 US App DC 147, 939 F2d 975,
15 BNA OSHC 1177, 1991 CCH OSHD ¶ 29406.

Footnote 48. American Iron & Steel Inst. v OSHA, 291 US App DC 147, 939 F2d 975,
15 BNA OSHC 1177, 1991 CCH OSHD ¶ 29406.
§ 174 Ex parte contacts
View Entire Section

Ideally, under the notice and comment rulemaking provisions of the federal
Administrative Procedure Act, everyone is given an opportunity to comment and then
comments are cut off and the agency makes its determination based on the comments
received. 49 However, in some cases, interested parties have made personal contacts
with members of an agency or its staff which were not reflected in the public comment
file. 50 While such contacts do not explicitly come within the prohibitions of the
Government in the Sunshine Act, because that Act technically deals only with ex parte
contacts during the course of a trial-type hearing, 51 such contacts can result in the
invalidation of a proposed rule if private parties are competing for available privileges 52
or if the existence of ex parte contacts so interferes with the public proceedings that it is
questionable whether the rule is based on comments in the public record, thereby raising
serious questions of fairness and imperiling judicial review. 53
However, it has also been said that while ex parte contacts are not always permissible,
they do not per se vitiate agency informal rulemaking unless it appears from the
administrative record that they may have materially influenced the action ultimately
taken. 54 It has also been said that the problem of ex parte contacts in rulemaking is one
of degree, and that a reviewing court should note whether or not the proceeding was of a
type susceptible to poisonous ex parte influence and whether serious questions of fairness
arose. 55 Accordingly, rules have not been invalidated where–
–inquiries were simply made as to whether rules would be promulgated. 56
–the record was kept open and nothing was kept secret. 57
–the agency used extra-record statistics to illuminate statistics already in the record. 58
–after obtaining public comments, the agency conferred with members of the industry
over self-regulation proposals, and deferred making a final decision until it determined
whether self-regulation would work. 59
–the contacts only involved isolated problems of implementation not involving general
policies settled in the rulemaking proceeding. 60
 Comment: The somewhat conflicting language in the cases discussing ex parte

contacts in administrative rulemaking has generated varied views among the
authorities. One committee reported that no absolute bar on ex parte communications
appears to exist under the Administrative Procedure Act, and that the legislative history
of the Government in the Sunshine Act indicates that ex parte contacts were not banned
in notice and comment rulemaking proceedings, although they are specifically banned
in formal proceedings. 61 However, a Court of Appeals judge has stated that there is
no justification for private access to rule makers, and that all comments should be
placed in the public record in order to give other interested persons an opportunity to
respond. 62 The Administrative Conference appears to agree with the latter view and
recommends to agencies that they place all written comments (except those exempted
by the Freedom of Information Act) received after notice of rulemaking is published in
a public inspection file, and experiment with procedures for the disclosure of oral
communications. 63
 Practice Guide: Complaints about the adequacy of rulemaking, on such grounds as

consideration of ex parte contacts and an agency's anticipated failure to give genuine
consideration to comments, can be considered only after completion of the rulemaking,
should it produce a rule with which a petitioner continues to disagree. 64
Footnotes
279.
Footnote 50. Home Box Office, Inc. v FCC, 185 US App DC 142, 567 F2d 9, 2 Media L
R 1561, cert den 434 US 829, 54 L Ed 2d 89, 98 S Ct 111, 3 Media L R 1128, reh den
434 US 988, 54 L Ed 2d 484, 98 S Ct 621 and appeal after remand 190 US App DC
351, 587 F2d 1248, 4 Media L R 1488 and (among conflicting authorities on other
grounds noted in Quincy Cable TV, Inc. v FCC, 248 US App DC 1, 768 F2d 1434, 12
Media L R 1001).
Footnote 52. Sangamon Valley Television Corp. v United States, 106 US App DC 30,
269 F2d 221.
Media L R 1001).
 Caution: As there is some authority objecting to the broad rule of Home Box Office,
at least one case asserts that the requirements presented in that case should only be
applied prospectively. Hercules, Inc. v EPA, 194 US App DC 172, 598 F2d 91, 12
Envt Rep Cas 1376, 8 ELR 20811 (criticized on other grounds by Natural Resources
Defense Council, Inc. v U.S. EPA, 263 US App DC 166, 824 F2d 1146, 26 Envt Rep
Cas 1263, 17 ELR 21032).
Footnote 56. Van Curler Broadcasting Corp. v United States, 98 US App DC 432, 236
F2d 727, cert den 352 US 935, 1 L Ed 2d 163, 77 S Ct 226.
Footnote 57. Courtaulds (Alabama) Inc. v Dixon, 111 US App DC 115, 294 F2d 899
(criticized on other grounds by Home Box Office, Inc. v FCC, 185 US App DC 142, 567
F2d 9, 2 Media L R 1561) as stated in Action for Children's Television v FCC, 183 US
App DC 437, 564 F2d 458, 2 Media L R 2120, later proceeding (DC Dist Col) 546 F
Supp 872, later proceeding 244 US App DC 190, 756 F2d 899, 11 Media L R 2080.
den 405 US 1074, 31 L Ed 2d 808, 92 S Ct 1495.
Footnote 60. Western Union International Inc. v Federal Communications Com. (CA2)
568 F2d 1012, cert den 436 US 944, 56 L Ed 2d 785, 98 S Ct 2845.
Footnote 61. Nathanson, Report to the Select Committee on Ex Parte Communications in

Rulemaking Proceedings, 30 Ad L Rev 377 (1978).
As to formal rulemaking proceedings, see §§ 177 et seq.
Footnote 62. Wright, Commentary: Rulemaking and Judicial Review, 30 Ad L Rev 461
(1978).
Footnote 63. 1 CFR § 305.77-3.
Footnote 64. Central Louisiana Electric Co. v Interstate Commerce Com., 233 US App
DC 41, 724 F2d 173.
§ 175 Reliance on agency knowledge and expertise
View Entire Section

A person designated to make a decision in a rulemaking proceeding may confer with staff
experts, 65 may act on the basis of data contained in the agency's files or on information
informally gained, and may rely on agency expertise, views, or opinions. 66 Thus, it is
proper for the presiding officer to ask the assistance of staff experts in interpreting
technical data in the record. 67 However, if an agency is basing a rule on information
gained from its own testing programs, it should disclose such information at the time
comments are solicited, in order to give interested persons an opportunity to raise
objections, since it may be improper to base rules on data that is only known to the
agency. 68 There may also be some unfairness if staff members who strongly
advocate a regulatory position have close contacts with agency members charged with
formulating the final rule, but such contacts are not directly regulated by statute and can
only be prohibited by new legislation or procedural rules of the agency. 69
Footnotes
21032).
Footnote 66. Pacific Coast European Conference v United States (CA9) 350 F2d 197,
cert den 382 US 958, 15 L Ed 2d 362, 86 S Ct 433; Flying Tiger Line, Inc. v Boyd (DC
Dist Col) 244 F Supp 889.
21032).
Footnote 68. Portland Cement Assn. v Ruckelshaus, 158 US App DC 308, 486 F2d 375,
5 Envt Rep Cas 1593, 3 ELR 20642, cert den 417 US 921, 41 L Ed 2d 226, 94 S Ct
2628, 6 Envt Rep Cas 1606 and appeal after remand 168 US App DC 248, 513 F2d 506,
7 Envt Rep Cas 1941, 5 ELR 20341, cert den 423 US 1025, 46 L Ed 2d 399, 96 S Ct
469, 8 Envt Rep Cas 1400, reh den 423 US 1092, 47 L Ed 2d 104, 96 S Ct 889 and
(criticized on other grounds by Eagle-Picher Industries, Inc. v United States
Environmental Protection Agency, 245 US App DC 196, 759 F2d 922, 22 Envt Rep Cas
1657, 15 ELR 20460).
21032).
§ 176 Necessity of hearing
View Entire Section

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The Constitution does not require that interested parties be granted a legislative, 70
evidentiary, 71 or any type of hearing in rulemaking, 72 since when a rule applies to
more than a few people, it is impractical that everyone should have a direct voice in its
adoption. 73 Generally speaking, a trial-type hearing is not required in rulemaking,
even though sharply contested issues of fact are involved, 74 policy issues of special
importance or complexity are presented, 75 or a rule of general applicability might
affect individual rights. 76 All that is required is that anyone interested be given the
opportunity to comment on all facts and all ideas that the agency considers. 77
Although the federal Administrative Procedure Act does not require that an agency hold
formal hearings and grant an opportunity for oral argument in rulemaking, some
particular regulatory acts may require the holding of a formal hearing, but in such a case,
legislative-type presentations are preferred, and full adjudicatory hearings are not
required. 78 Otherwise, an agency possesses the discretion whether to permit oral
presentations and reply submissions, and can determine their scope, character, and time
sequence. 79 Generally, these hearings are quite informal in nature, and a party is not
entitled to cross-examine witnesses or exercise other rights peculiar to adjudicatory
proceedings. 80 Such discretion resides only in the agency, and a court has no power to
order that an agency adopt procedures not required by the Administrative Procedure Act,
the Constitution, and other relevant statutes. 81
§ 176 ----Necessity of hearing [SUPPLEMENT]
Case authorities:
EPA was justified in refusing to hold evidentiary hearing regarding its determination that
facility owned by Puerto Rico sewer authority must fully comply with Clean Water Act's
secondary treatment requirements for publicly owned treatment works where EPA
previously established facility's requirements when facility was emitting pollutants, and
facility failed to proffer any legally cognizable basis for modifying requirements. Puerto
Rico Aqueduct & Sewer Auth. v United States EPA (1994, CA1) 35 F3d 600, 39 Envt
Rep Cas 1269.
Footnotes
Footnote 70. Powelton Civic Home Owners Asso. v Department of Housing & Urban
Development (ED Pa) 284 F Supp 809.
Footnote 71. Sima Products Corp. v McLucas (ND Ill) 460 F Supp 128, affd (CA7 Ill)
Footnote 72. Alaska S.S. Co. v Federal Maritime Com. (CA9) 356 F2d 59.
Footnote 73. Bi-Metallic Invest. Co. v State Board of Equalization, 239 US 441, 60 L
Ed 372, 36 S Ct 141.
Footnote 76. Air Line Pilots Ass'n, Int'l v Quesada (CA2 NY) 276 F2d 892, 9 BNA FEP
Cas 1027, 46 BNA LRRM 2022, 1 CCH EPD ¶ 9663, 40 CCH LC ¶ 66459, appeal after
remand (CA2 NY) 286 F2d 319, 9 BNA FEP Cas 1031, 47 BNA LRRM 2571, 42 CCH

LC ¶ 16785, cert den 366 US 962, 6 L Ed 2d 1254, 81 S Ct 1923, 9 BNA FEP Cas
1407, 48 BNA LRRM 2430, reh den 368 US 870, 7 L Ed 2d 71, 82 S Ct 27.
279.
Footnote 78. International Harvester Co. v Ruckelshaus, 155 US App DC 411, 478 F2d
615, 4 Envt Rep Cas 2041, 3 ELR 20133. See Vermont Yankee Nuclear Power Corp. v
Natural Resources Defense Council, Inc., 435 US 519, 55 L Ed 2d 460, 98 S Ct 1197,
11 Envt Rep Cas 1439, 8 ELR 20288, on remand 222 US App DC 9, 685 F2d 459, 17
Envt Rep Cas 1457, 12 ELR 20465, reh, en banc, den (App DC) 18 Envt Rep Cas 1519
and revd 462 US 87, 76 L Ed 2d 437, 103 S Ct 2246, 19 Envt Rep Cas 1057, 13 ELR
20544 and (among conflicting authorities on other grounds noted in National Latino
Media Coalition v FCC, 259 US App DC 481, 816 F2d 785).
As to rulemaking after a hearing, see §§ 177 et seq.
Footnote 79. Chemical Leaman Tank Lines, Inc. v United States (DC Del) 368 F Supp
925, 6 Envt Rep Cas 1129; American Public Gas Asso. v Federal Power Com., 186 US
App DC 23, 567 F2d 1016, 59 OGR 351, cert den 435 US 907, 55 L Ed 2d 499, 98 S Ct
1456, 98 S Ct 1457.
Footnote 80. Rosenthal v Bagley (ND Ill) 450 F Supp 1120.
Footnote 81. Vermont Yankee Nuclear Power Corp. v Natural Resources Defense
ELR 20288, on remand 222 US App DC 9, 685 F2d 459, 17 Envt Rep Cas 1457, 12 ELR
20465, reh, en banc, den (App DC) 18 Envt Rep Cas 1519 and revd 462 US 87, 76 L Ed
2d 437, 103 S Ct 2246, 19 Envt Rep Cas 1057, 13 ELR 20544 and (among conflicting
authorities on other grounds noted in National Latino Media Coalition v FCC, 259 US
App DC 481, 816 F2d 785).
b. Formal Rulemaking [177, 178]
§ 177 Generally
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The federal Administrative Procedure Act provides that when rules are required by
statute to be made on the record after an opportunity for an agency hearing, notice and
comment provisions 82 do not apply, and the provisions relating to formal,
adjudicatory-type hearings before administrative law judges 83 apply instead. 84
However, the Administrative Procedure Act itself never mandates formal rulemaking;
instead, formal procedures are required only when a regulatory statute provides that there
must be a hearing and the hearing must be on the record. 85 While the exact words
that the rule must be made on the record after an opportunity for a hearing need not be
contained in a regulatory act, 86 there must be a close conjunction of the concepts, and
the terms "hearing" and "on the record" are extremely relevant. 87 However, some courts
have said that they will make no presumption that a statutory "hearing" requirement does
or does not compel the agency to undertake a formal "hearing on the record," thereby
leaving it to the agency, as an initial matter, to resolve the ambiguity. 88 There is a
strong presumption that the procedural guarantees of the notice and comment provisions
of the federal Administrative Procedure Act 89 are sufficient unless Congress
specifically indicates to the contrary. 90
Case authorities:
Change in section of HHS's provider Medicare reimbursement manual calling for

amortization of advance refunding costs was not mere interpretation of regulation, but
worked substantive change in regulations and was therefore invalid attempt to make
substantive rule without satisfying formal rulemaking requirement. Mother Frances Hosp.
v Shalala (1994, CA5 Tex) 15 F3d 423, 43 Soc Sec Rep Serv 508.
Footnotes
Footnote 83. 5 USCS §§ 556, 557.
As to procedure under 5 USCS §§ 556, 557, see §§ 261 et seq.

453, 92 S Ct 1941.
Forms: Findings and conclusions in formal proceeding under 5 USCS § 557(c). 1A

Federal Procedural Forms, L Ed, Administrative Procedure §§ 2:151, 2:152.
Exceptions to proposed decision in formal proceeding under 5 USCS § 557(c). 1A

Federal Procedural Forms, L Ed, Administrative Procedure §§ 2:161 et seq.

453, 92 S Ct 1941.
Footnote 87. Marathon Oil Co. v EPA (CA9) 564 F2d 1253, 12 Envt Rep Cas 1098
(criticized on other grounds by Corn Refiners Asso. v Costle (CA8) 594 F2d 1223, 12
Envt Rep Cas 2054, 9 ELR 20233).
Footnote 88. Chemical Waste Management, Inc. v U.S. Environmental Protection

Agency, 277 US App DC 220, 873 F2d 1477, 29 Envt Rep Cas 1561, 19 ELR 20868.

Footnote 90. National Classification Committee v United States, 246 US App DC 393,
765 F2d 1146, later proceeding 250 US App DC 297, 779 F2d 687.
An example of a statute which requires rulemaking on the record after an opportunity for
a hearing is the Walsh-Healey Act (41 USCS § 43a), as generally discussed in 65 Am
Jur 2d, Public Works and Contracts §§ 216, 217.
§ 178 Formal and informal rulemaking distinguished
View Entire Section

The main distinction between "rulemaking on the record after an opportunity for an
agency hearing" and ordinary rulemaking is that rulemaking on the record invokes
certain procedural provisions of the federal Administrative Procedure Act 91 while
informal rulemaking only requires compliance with the notice and comment procedures
instead. 92 The rights granted by the federal APA 93 to submit evidence,
cross-examine witnesses, 94 and file exceptions 95 are only granted in formal
rulemaking proceedings. Furthermore, the requirements that a proponent of a rule
shoulder the burden of proof and that the agency's decision include a statement of
findings and conclusions only apply to formal hearings and not to notice and comment
rulemaking. 96 Only a statement of basis and purpose is required in informal
rulemaking. 97
Even though formal, adjudicatory-style procedures need not be followed if no statute

requires rulemaking on the record after an opportunity for a hearing, it may still be
necessary to hold "legislative-type" hearings 98 and compile a legislative record of
comments in order to support a rule on judicial review. 99 It may also be possible to
make oral presentations in notice and comment rulemaking, 1 or written presentations in
formal rulemaking. 2 The notice and publication requirements are also the same in
formal and informal rulemaking. 3
 Comment: An agency has the discretion to use formal rulemaking procedures, even
though the governing statute authorizes the use of the notice and comment approach. 4
Footnotes
Footnote 91. 5 USCS §§ 556, 557.
Footnote 93. 5 USCS §§ 556, 557.

810.
Footnote 95. Laminators Safety Glass Asso. v Consumer Products Safety Com., 188 US
App DC 164, 578 F2d 406.
Ct 307.
Footnote 99. Union Oil Co. v Federal Power Com. (CA9) 542 F2d 1036, 58 OGR 139
(criticized on other grounds by Public Citizen Health Research Group v Food & Drug
Admin., 227 US App DC 151, 704 F2d 1280).
But see Superior Oil Co. v Federal Energy Regulatory Com. (CA5) 563 F2d 191, holding
that the court did not have to implement additional fact-finding procedures that could
produce a record able to withstand a stricter scrutiny than courts give an informal
rulemaking proceeding governed simply by the APA despite the fact that the statute at
issue adopted a substantial evidence test for the factual components of an order.
A rulemaking record need not consist of a transcript of an agency hearing, but only of
such materials which show that the agency followed the mandate of the Administrative
Procedure Act and other relevant statutes. Vermont Yankee Nuclear Power Corp. v
Natural Resources Defense Council, Inc., 435 US 519, 55 L Ed 2d 460, 98 S Ct 1197,
11 Envt Rep Cas 1439, 8 ELR 20288, on remand 222 US App DC 9, 685 F2d 459, 17
Envt Rep Cas 1457, 12 ELR 20465, reh, en banc, den (App DC) 18 Envt Rep Cas 1519
and revd 462 US 87, 76 L Ed 2d 437, 103 S Ct 2246, 19 Envt Rep Cas 1057, 13 ELR
20544 and (among conflicting authorities on other grounds noted in National Latino
Media Coalition v FCC, 259 US App DC 481, 816 F2d 785).
As to judicial review of rulemaking, see §§ 415 et seq.
Footnote 1. § 172.
Footnote 2. Long Island R. Co. v United States (ED NY) 318 F Supp 490 (disapproved
on other grounds by United States v Florida E. C. R. Co., 410 US 224, 35 L Ed 2d 223,
93 S Ct 810) (noting the provision of 5 USCS § 556(d), discussed at § 303, infra, which
provides that written evidence may be presented in a trial-type hearing).
Footnote 3. Jones v Bergland (ED Pa) 456 F Supp 635.
As to publication of notice, see § 167.
As to publication of rules, see § 187.
Footnote 4. For examples of cases in which agencies exercised this option, see Chicago v
Federal Power Com., 147 US App DC 312, 458 F2d 731, cert den 405 US 1074, 31 L
Ed 2d 808, 92 S Ct 1495 and Hercules, Inc. v EPA, 194 US App DC 172, 598 F2d 91, 12
Envt Rep Cas 1376, 8 ELR 20811 (criticized on other grounds by Natural Resources
Defense Council, Inc. v U.S. EPA, 263 US App DC 166, 824 F2d 1146, 26 Envt Rep Cas
1263, 17 ELR 21032).
Law Reviews: Byse, Vermont Yankee and the Evolution of Administrative Procedure:
A Somewhat Different View, 91 Harv L Rev 1823 (1978).
c. Negotiated Rulemaking [179-183]
§ 179 Generally
View Entire Section

The federal Negotiated Rulemaking Act 5 defines "negotiated rulemaking" as

rulemaking through the use of a negotiated rulemaking committee. 6 A "negotiated
rulemaking committee" is an advisory committee established to consider and discuss
issues for the purpose of reaching a consensus in the development of a proposed rule. 7
The notice and comment procedures for rulemaking 8 do not apply to negotiated
rulemaking. 9
 Comment: The agency should recognize that negotiated rulemaking can be useful in
several stages of rulemaking proceedings. For example, negotiating the terms of a
final rule could be a useful procedure even after publication of a proposed rule.
Usually, however, negotiations should be used to help develop a notice of proposed
rulemaking, with negotiations to be resumed after comments on the notice are received.
10
 Caution: "Sunset and savings provisions" provide that the Negotiated Rulemaking
Act is repealed, effective 6 years after the date of the enactment of this Act, except that
provisions of such subchapter will continue to apply after the date of the repeal with
respect to then pending negotiated rulemaking proceedings initiated before the date of
repeal which, in the judgment of the agencies which are convening or have convened
such proceedings, require such continuation, until such negotiated rulemaking
proceedings terminate pursuant to such subchapter. 11
Footnotes
Law Reviews: Perritt, H. H., Administrative Alternative Dispute Resolution: The

Development of Negotiated Rulemaking and Other Processes. 14 Pepperdine L. Rev.
863-928 (1987).

Footnote 8. As to notice and comment rulemaking procedures, generally, see §§ 165 et
seq.
Footnote 9. 5 USCS § 566(e).
As to committee procedures for negotiated rulemaking, see § 181.
Footnote 10. 1 CFR § 305.85-5.
As to termination of the rulemaking committee, see § 182.
Footnote 11. Act Nov 29, 1990, P.L. 101-648, § 5, 104 Stat. 4976; Aug 26, 1992, P.L.
102-354, § 5(a)(2), 106 Stat. 945.
§ 180 Establishment of rulemaking committee
View Entire Section

A federal agency may establish a negotiated rulemaking committee to negotiate and

develop a proposed rule, if the agency has determined that the use of the negotiated
rulemaking procedure is in the public interest. 12 An agency may use the services of an
impartial "convener" 13 to assist an agency in identifying persons who will be
significantly affected by a proposed rule, and in conducting discussions with such
persons to identify the issues of concern and to ascertain whether establishment of a
committee is feasible and appropriate in the particular rulemaking. 14 After considering
the report of a convener or conducting its own assessment, the agency can decide to
establish a negotiated rulemaking committee. 15 An agency must publish in the Federal
Register and in specialized publications a notice announcing the establishment of a
negotiated rulemaking committee and inviting persons to apply for, or nominate persons
for, membership. 16 Persons who will be significantly affected by a proposed rule and
who believe their interests will not be adequately represented by any persons specified in
the notice may apply for, or nominate another person for, membership on the negotiated
rulemaking committee to represent their interests with respect to the proposed rule. 17
If after considering comments and applications, the agency decides not to establish a
negotiated rulemaking committee, an agency must properly publish notice of such a
decision and the reasons for it in the Federal Register. 18
Footnotes

§ 181 Committee procedures
View Entire Section

Each negotiated rulemaking committee will consider the matter proposed by the agency
for consideration and will attempt to reach a consensus concerning a proposed rule with
respect to such matter as well as any other matter the committee determines is relevant to
the proposed rule. 19 An agency may nominate either a person from the federal
government or a person from outside the government to serve as a facilitator for the
negotiations of the committee, subject to the approval of the committee by consensus. 20
If a committee does not approve any nominee of the agency for facilitator, the committee
must select by consensus a person to serve as facilitator. 21
The negotiating rulemaking committee may adopt procedures for the operation of the
committee. 22 If the committee reaches a consensus on a proposed rule, at the
conclusion of negotiations, the committee will transmit to the agency that established the
committee a report containing the proposed rule. 23 If the committee does not reach a
consensus on a proposed rule, the committee may transmit to the agency a report
specifying any areas in which the committee did reach a consensus. 24 In addition, the
committee may also include in a report any other information, recommendations, or
materials that the committee considers appropriate, and any committee member may
include additional materials as an addendum to the report. 25
 Comment: The Administrative Conference of the United States recommends that an

agency select a person skilled in techniques of dispute resolution to assist the
negotiating group in reaching an agreement. In some cases, that person may need to
have prior knowledge of the subject matter of negotiations. The person chosen may be
styled as a "mediator" or facilitator," and may be, but need not be, the same person as
the "convenor." In addition, the agency, mediator, facilitator, or the negotiating group
should consider appointing a neutral outside individual who could receive confidential
data, evaluate it, and report to negotiators. The parties would need to agree upon the
protection to be given confidential data. A similar procedure may also be desirable in
order to permit neutral technical advice to be given in connection with complex data.
26
 Practice guide: The agency, the mediator or facilitator, and, where appropriate, other
participants in negotiated rulemaking should be prepared to address internal
disagreements within a particular constituency. In some cases, it may be helpful to

retain a special mediator or facilitator to assist in mediating issues internal to a
constituency. The agency should consider the potential for internal constituency
disagreements in choosing representatives, in planning for successful negotiations, and
in selecting persons as mediators or facilitators. Agencies should also recognize the
possibility that a group viewed as a single constituency at the offset of negotiations
may later become so divided as to suggest modification of the membership of the
negotiating group. 27
Footnotes
Footnote 23. 5 USCS § 566(f).
Footnote 26. 1 CFR § 305.85-5.
Footnote 27. 1 CFR § 305.85-5.
§ 182 Termination of committee
View Entire Section

A negotiated rulemaking committee will generally terminate upon promulgation of the

final rule under consideration. However, the committee itself or the controlling agency
can decide on an earlier termination date for the committee. 28
Footnotes
§ 183 Judicial review

View Entire Section
An agency action relating to establishing, assisting, or terminating a negotiated

rulemaking committee is not subject to judicial review. 29 However, the Negotiated
Rulemaking Act does not bar judicial review of a rule if such judicial review is otherwise
provided for by law, although a rule which is the product of negotiated rulemaking and
subject to judicial review will not be accorded any greater deference by a court than a
rule which is the product of other rulemaking procedures. 30
Footnotes
2. Adoption of Rule [184-186]
§ 184 Generally; statement of basis and purpose
View Entire Section

Go to Supplement
Federal statutes governing particular agencies may contain specific requirements such as
that an order promulgating a regulation must be based on substantial evidence of record
at the public hearing required and set forth detailed findings of fact on which it is based.
31 Other federal statutes only require the agency to make a written report, stating its
conclusions, together with its decision and order. 32 The federal Administrative
Procedure Act requires that the agency must incorporate in the rules it adopts a concise
general statement of their basis and purpose. 33 The statement may also limit the
context in which a rule may be applied. 34
Generally speaking, an agency is not in compliance with the federal Administrative

Procedure Act if it provides absolutely no statement of the basis and purpose of a rule, 35
or if the statement is inadequate in content. 36 However, it has also been said that no
statement of basis and purpose is required if the basis and purpose of a rule are obvious
from a reading of a rule. 37
While a court reviewing whether an agency rule is arbitrary and capricious may not
supply a reasonable basis for the agency's action that the agency itself has not given, the
reviewing court will uphold a decision of less than ideal clarity if the agency's path may
be reasonably discerned. 38

§ 184 ----Generally; statement of basis and purpose [SUPPLEMENT]
Practice Aids: Order–Adopting, amending, or repealing administrative

regulations–Following notice. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, §
66.
Statutes:
The ICC Termination Act of 1995 (PL 104-88) abolished the Interstate Commerce
Commission and created the Surface Transportation Board (49 USCS §§ 701 et seq.),
which has authority over rail, motor, water, and pipeline carriers. 49 USCS § 10310 was
omitted in the Act.
Case authorities:
Secretary of Health and Human Services's promulgation of comprehensive new

regulations in response to major legislative changes in Social Security Act need not be
accompanied by "complete dissection on how and why" each regulation differed from
prior regulatory scheme where Secretary was consistent with new statute and where
policy adhered to prior policy. Macon County Samaritan Memorial Hosp. v Shalala
(1993, CA8 Mo) 7 F3d 762, 42 Soc Sec Rep Serv 450, reh, en banc, den (CA8) 1993 US
App LEXIS 30922.
Footnotes
Footnote 31. See, for example, 21 USCS § 271.
Annotation: Sufficiency of agency's compliance with requirement of Administrative

Procedure Act (5 USCS § 553(c)) that agency shall incorporate in rules adopted a
concise general statement of their basis and purpose, 46 ALR Fed 780.
Footnote 34. United States v Frontier Airlines, Inc. (CA10 Colo) 563 F2d 1008 (holding
that the basis and purpose statement accompanying the flight recorder regulations
showed that the tapes could only be used in accident investigations).
Footnote 35. P. A. M. News Corp. v Hardin, 142 US App DC 227, 440 F2d 255, appeal
after remand 168 US App DC 376, 514 F2d 272.
Footnote 37. Hoving Corp. v Federal Trade Com. (CA2) 290 F2d 803; Alabama Asso. of
Ins. Agents v Board of Governors of Federal Reserve System (CA5) 533 F2d 224,
vacated, in part (CA5) 558 F2d 729, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct
1448; Citizens to Save Spencer County v United States EPA, 195 US App DC 30, 600
F2d 844, 12 Envt Rep Cas 1961, 9 ELR 20194; American Standard, Inc. v United States,

220 Ct Cl 411, 602 F2d 256, 79-2 USTC ¶ 9417, 44 AFTR 2d 79-5149, later proceeding
223 Ct Cl 794.
Footnote 38. Motor Vehicle Mfrs. Asso. v State Farm Mut. Auto. Ins. Co., 463 US 29,
77 L Ed 2d 443, 103 S Ct 2856, 13 ELR 20672.
§ 185 Contents and sufficiency of statement
View Entire Section

The federal Administrative Procedure Act does not require an exhaustive explanation of
an agency's reasoning for adopting a rule. 39 The required statement of basis and
purpose need not justify the rules selected in every detail so long as it explains the
general basis for the rules chosen; 40 and there is no obligation to make references in the
agency explanation to all the specific issues raised in comments. 41 What is required is
a concise general statement of the regulation's basis and purpose 42 which indicates the
major issues of policy that were raised and explains why the agency responded in the
manner that it did, 43 and is sufficiently detailed and informative to satisfy a reviewing
court that the accompanying rule was properly promulgated, 44 that is, to convince the
court, without requiring it to examine the record, 45 that the rule is based on the
relevant factors 46 and is not arbitrary or capricious. 47 The statement should
illuminate the legal and factual framework underlying the agency's action, 48
demonstrate what major issues of policy were resolved, 49 respond in a reasoned
manner to the comments received, 50 and enunciate the basis and rationale of the
agency's action. 51 However, it is not necessary for an agency to discuss every fact,
opinion, or comment submitted to it. 52 Instead, it is generally sufficient for an agency
to review the history of the proceedings, refer to records of its methodology and
factfindings, cite the legal basis of the rule, and outline significant comments received
and its response to those comments. 53
While it has been recognized that detailed findings of fact are not always required in a
statement supporting a rule, a reviewing court can still reject such a statement if it is
inadequate. 54 A court may require a higher degree of factual support for a rule in its
statement of basis and purpose if the governing statute requires that the rule be supported
by substantial evidence, 55 or if the agency must justify a particular numerical standard
56 or dollar limitation. 57 A statement of basis is inadequate where it completely fails
to address criticisms of the data relied upon by the agency in formulating its new rules
and fails to address alternatives suggested by commenters. 58 The opportunity to
comment on proposed rules is meaningless unless the agency responds to significant
points raised by the public. 59 Nevertheless, absent a clear and specific congressional
requirement for detailed factual findings, a court should not import a formal factfinding
requirement into informal rulemaking. 60
Footnotes
Footnote 39. HLI Lordship Industries, Inc. v Committee for Purchase from Blind etc.
(CA4 Va) 791 F2d 1136.
Footnote 40. Universal Health Services of McAllen, Inc. v Sullivan (DC Dist Col) 770 F
Supp 704, affd (App DC) 298 US App DC 248, 978 F2d 745, reported in full (App DC)
1992 US App LEXIS 28798.
(CA4 Va) 791 F2d 1136; St. James Hospital v Heckler (CA7 Ill) 760 F2d 1460, cert den
474 US 902, 88 L Ed 2d 228, 106 S Ct 229.
(CA4 Va) 791 F2d 1136.
(CA4 Va) 791 F2d 1136; St. James Hospital v Heckler (CA7 Ill) 760 F2d 1460, cert den
474 US 902, 88 L Ed 2d 228, 106 S Ct 229; Universal Health Services of McAllen, Inc.
v Sullivan (DC Dist Col) 770 F Supp 704, affd (App DC) 298 US App DC 248, 978 F2d
745, reported in full (App DC) 1992 US App LEXIS 28798.
Footnote 44. Amoco Oil Co. v EPA, 163 US App DC 162, 501 F2d 722, 6 Envt Rep Cas
1481, 4 ELR 20397.
As to the scope of judicial review of rulemaking, see §§ 523 et seq.

Procedure Act (5 USCS § 553(c)) that agency shall incorporate in rules adopted
Media L R 1001).
Footnote 46. Natural Resources Defense Council, Inc. v SEC (DC Dist Col) 389 F Supp
689, 7 Envt Rep Cas 1199, 9 BNA FEP Cas 16, 8 CCH EPD ¶ 9835, CCH Fed Secur L
Rep ¶ 94910, 5 ELR 20074, appeal after remand (DC Dist Col) 432 F Supp 1190, 10
Envt Rep Cas 1026, 14 BNA FEP Cas 1544, 14 CCH EPD ¶ 7647, CCH Fed Secur L
Rep ¶ 96057, 7 ELR 20434, revd on other grounds 196 US App DC 124, 606 F2d 1031,
13 Envt Rep Cas 1321, 19 BNA FEP Cas 724, 19 CCH EPD ¶ 9219, CCH Fed Secur L
Rep ¶ 96832, 9 ELR 20367 (disapproved on other grounds by Heckler v Chaney, 470 US
821, 84 L Ed 2d 714, 105 S Ct 1649, 15 ELR 20335) as stated in North Dakota ex rel.
Board of University & School Lands v Yeutter (CA8 ND) 914 F2d 1031, reh den, en
banc (CA8) 1990 US App LEXIS 21879 and cert den (US) 114 L Ed 2d 710, 111 S Ct
2258.
Footnote 47. National Welfare Rights Organization v Mathews, 174 US App DC 410,
533 F2d 637.
Footnote 48. American Standard, Inc. v United States, 220 Ct Cl 411, 602 F2d 256, 79-2

USTC ¶ 9417, 44 AFTR 2d 79-5149, later proceeding 223 Ct Cl 794.
Footnote 49. Associated Industries of New York State, Inc. v United States Dept. of
Labor (CA2) 487 F2d 342, 25 ALR Fed 134 (criticized on other grounds by Union Oil
Co. v Federal Power Com. (CA9) 542 F2d 1036, 58 OGR 139); Citizens to Save Spencer
County v United States EPA, 195 US App DC 30, 600 F2d 844, 12 Envt Rep Cas 1961, 9
ELR 20194; Home Box Office, Inc. v FCC, 185 US App DC 142, 567 F2d 9, 2 Media L
Media L R 1001); Automotive Parts & Accessories Asso. v Boyd, 132 US App DC 200,
407 F2d 330.
F2d 809.
2258.
Footnote 52. Associated Industries of New York State, Inc. v United States Dept. of
Labor (CA2) 487 F2d 342, 25 ALR Fed 134 (criticized on other grounds by Union Oil
Co. v Federal Power Com. (CA9) 542 F2d 1036, 58 OGR 139); Logansport Broadcasting
Corp. v United States, 93 US App DC 342, 210 F2d 24.
Footnote 53. Hooker Chemicals & Plastics Corp. v Train (CA2) 537 F2d 620.
for Enrollment of Actuaries, 185 US App DC 40, 566 F2d 705, 1 EBC 1335).
Footnote 55. Union Oil Co. v Federal Power Com. (CA9) 542 F2d 1036, 58 OGR 139
(criticized on other grounds by Public Citizen Health Research Group v Food & Drug
Admin., 227 US App DC 151, 704 F2d 1280) (decided under the Natural Gas Act, 15
USCS § 717r, discussed in 64 Am Jur 2d, Public Utilities §§ 314 et seq.).
Footnote 56. Kennecott Copper Corp. v EPA, 149 US App DC 231, 462 F2d 846, 3 Envt
Rep Cas 1682, 2 ELR 20116.
Footnote 57. National Welfare Rights Organization v Mathews, 174 US App DC 410,
533 F2d 637.

Footnote 58. Bedford County Memorial Hospital v Health & Human Services (CA4 Va)
769 F2d 1017, on remand (ED Va) 660 F Supp 23.
Footnote 59. St. James Hospital v Heckler (CA7 Ill) 760 F2d 1460, cert den 474 US 902,
88 L Ed 2d 228, 106 S Ct 229.
Footnote 60. Superior Oil Co. v Federal Energy Regulatory Com. (CA5) 563 F2d 191.
§ 186 Timing of statement
View Entire Section

The language of the federal Administrative Procedure Act contemplates that the basis and
purpose statement will accompany the publication of the rule and not follow the rule long
after it has been published. 61 As a result, courts have held that post-hoc
rationalizations are unacceptable substitutions for a contemporaneous basis and purpose
statement. 62 Although, the basis and purpose statement need not be published at
precisely the same moment as the regulations, it must be published close enough to the
regulations in time that there is no doubt that the statement accompanies, rather than
rationalizes, the rules. 63
Footnotes
Footnote 61. Action on Smoking & Health v Civil Aeronautics Bd., 230 US App DC 1,
713 F2d 795, later proceeding 233 US App DC 79, 724 F2d 211 (criticized on other
grounds by Aston v Secretary of Health & Human Services (CA2 NY) 808 F2d 9) and
(among conflicting authorities on other grounds noted in Sierra Club v Secretary of Army
(CA1 Me) 820 F2d 513, 26 Envt Rep Cas 1017, 17 ELR 20991) and (criticized on other
grounds by Jean v Nelson (CA11 Fla) 863 F2d 759).
Footnote 62. Action on Smoking & Health v Civil Aeronautics Bd., 230 US App DC 1,
713 F2d 795, later proceeding 233 US App DC 79, 724 F2d 211 (criticized on other
grounds by Aston v Secretary of Health & Human Services (CA2 NY) 808 F2d 9) and
(among conflicting authorities on other grounds noted in Sierra Club v Secretary of Army
(CA1 Me) 820 F2d 513, 26 Envt Rep Cas 1017, 17 ELR 20991) and (criticized on other
grounds by Jean v Nelson (CA11 Fla) 863 F2d 759).
Footnote 63. Baltimore & O. C. T. R. Co. v United States (CA3) 583 F2d 678, 46 ALR
Fed 760, cert den 440 US 968, 59 L Ed 2d 784, 99 S Ct 1520; Action on Smoking &
Health v Civil Aeronautics Bd., 230 US App DC 1, 713 F2d 795, later proceeding 233
US App DC 79, 724 F2d 211 (criticized on other grounds by Aston v Secretary of Health
& Human Services (CA2 NY) 808 F2d 9) and (among conflicting authorities on other
grounds noted in Sierra Club v Secretary of Army (CA1 Me) 820 F2d 513, 26 Envt Rep
Cas 1017, 17 ELR 20991) and (criticized on other grounds by Jean v Nelson (CA11 Fla)
863 F2d 759); Mobil Oil Corp. v Department of Energy (Em Ct App) 728 F2d 1477, cert
den 467 US 1255, 82 L Ed 2d 849, 104 S Ct 3545.
3. Publication [187-189]
§ 187 Generally
View Entire Section

Go to Supplement
Publication is required as to substantive rules of general applicability, but not as to

matters that are related solely to the internal personnel rules and practices of an agency.
64 The federal Administrative Procedure Act requires the publication or service of
legislative rules, 65 and such rules are published in the Federal Register. 66 Such
publication makes the rule available to the public and gives members of the public
constructive notice of the promulgation of the rule. 67 Publication is also a necessary
procedural prerequisite to the validity of a substantive rule, for if a substantive rule is not
published, it does not have the force and effect of law. 68 However, a court may grant
persuasive weight to an unpublished rule, especially where it is the only authoritative
interpretation of a statute. 69
There is some authority that actual knowledge or notice of agency policy precludes
reliance on agency's failure to comply with publication requirement. 70 However,
there is also authority to the contrary holding that a member of the general public cannot
be prosecuted for a violation of an unpublished regulation 71 even when he or she has
had actual knowledge of it. 72
Case authorities:
FAA's failure to publish in CFR, after public notice and comment, rule authorizing
revocation of airman's certificate, does not violate APA. Hite v National Transp. Safety
Bd. (1993, CA1) 991 F2d 17, reh, en banc, den, clarified (CA1) 1993 US App LEXIS
13773.
Attorney General's "final rule" which provided that alien be considered refugee if,
pursuant to family planning policy in home country, alien has been forced to abort
pregnancy or undergo sterilization, was never published, thus never became effective.
Xin-Chang Zhang v Slattery (1995, CA2 NY) 55 F3d 732.
Airline's argument for reimbursement of cost of securing stowaway seeking political

asylum must fail, where airline asserts INS policy making it pay for stowaways
constitutes legislative or substantive rule within meaning of 5 USCS §§ 553 and
706(2)(D) that should have been promulgated pursuant to notice and comment
procedures, because INS policy is interpretive in nature, does not create rights or duties
apart from those clearly established by Immigration and Nationality Act (8 USCS §§
1101 et seq.), and did not require notice and comment rulemaking. Argenbright Sec. v
Ceskoslovenske Aeroline (1994, SD NY) 849 F Supp 276.
United States is entitled to summary judgment in Freedom of Information Act claim by

owners of federally subsidized housing, where owners sought to force U.S. to use annual
adjustment factor, rather than localized market study, in computing subsidized rents, and
charged that U.S. violated 5 USCS § 552(a)(1)(D) by failing to publish its market study
methodology in Federal Register, and 5 USCS § 553, by failing to follow rulemaking
procedures, because Housing and Urban Development Reform Act, 42 USCS §
1437f(c)(2)(C)), provides sole method for resolution of rent disputes, and 5 USCS § 552
and 5 USCS § 553 do not apply. Sheridan Square Partnership v United States ex rel.
United States Dep't of Hous. & Urban Dev. (1994, DC Colo) 844 F Supp 645.
Allegation that OSHA unreasonably delayed issuing health and safety standards for
environmental tobacco smoke (ETS), although qualifying as exception to rule that court
is without jurisdiction to review nonfinal orders, was made moot when OSHA issued its
Notice of Proposed Preliminary Rules on Indoor Air Quality Contaminants, which listed
ETS as contaminant. Action on Smoking & Health v Department of Labor (1994, App
DC) 28 F3d 162, 16 BNA OSHC 1865, 1994 CCH OSHD ¶ 30481.
Footnotes
Footnote 64. Whelan v Brinegar (CA2 NY) 538 F2d 924.
As to substantive or legislative rules, generally, see § 160.
Annotation: Compliance with provision of Administrative Procedure Act, 5 USCS §

553(d), providing that, with certain exceptions, required publication of a substantive
rule must be made at least 30 days before its effective date, 54 ALR Fed 553.
Footnote 66. 44 USCS § 1505(a)(3).
Footnote 67. Graham v Lawrimore (DC SC) 185 F Supp 761, affd (CA4 SC) 287 F2d
207; Hotch v United States (CA9 Alaska) 212 F2d 280.
Footnote 68. Hartnett v Cleland (DC SC) 434 F Supp 18; Estrada v Hills (ND Ill) 401 F
Supp 429; Hotch v United States (CA9 Alaska) 212 F2d 280.
Footnote 69. Estrada v Hills (ND Ill) 401 F Supp 429.
Footnote 70. Central Arkansas Auction Sale, Inc. v Bergland (CA8) 570 F2d 724, cert
den 436 US 957, 57 L Ed 2d 1121, 98 S Ct 3070.
Failure to publish a coast guard order restricting an area around the launching of a
nuclear-powered submarine capable of firing missiles did not immunize violators of the
order who had actual knowledge thereof. United States v Aarons (CA2 Conn) 310 F2d
341.

Footnote 71. United States v Gavrilovic (CA8 Mo) 551 F2d 1099; Hotch v United States
(CA9 Alaska) 212 F2d 280.
Footnote 72. Hotch v United States (CA9 Alaska) 212 F2d 280.
§ 188 Time of publication; effective date
View Entire Section

Generally, under the federal Administrative Procedure Act, a legislative rule must be
published not less than 30 days before its effective date. 73 The delay assures that
affected persons have a reasonable time to prepare for the effective date of the rule. 74
The delay may also give affected persons another opportunity to bring difficulties with
the rule to the attention of the agency. 75 Generally, a rule which is not published at
least 30 days before its effective date can be invalidated, 76 unless an exception to the
30-day requirement is available. The requirement that a substantive rule be published or
served at least 30 days before its effective date does not apply–
–to a legislative rule which grants or recognizes an exemption or relieves a restriction. 77
–to interpretive rules and statements of policy. 78
–as otherwise provided by the agency for good cause found and published with the rule.
79
Failure to publish a regulation within a prescribed period of time after its adoption will
not defeat its effectiveness after adequate notice is effected by subsequent publication. 80
Footnotes
Footnote 74. British American Commodity Options Corp. v Bagley (CA2 NY) 552 F2d
482, application den 434 US 1316, 54 L Ed 2d 28, 98 S Ct 10 and cert den 434 US
938, 54 L Ed 2d 297, 98 S Ct 427; United States v Gavrilovic (CA8 Mo) 551 F2d 1099.
Footnote 75. Sannon v United States (SD Fla) 460 F Supp 458, remanded (CA5 Fla) 631
F2d 1247, 30 FR Serv 2d 964.
Footnote 76. Universal Specialties, Inc. v Blount (CD Cal) 331 F Supp 52.
Footnote 77. 5 USCS § 553(d)(1).
As to interpretive rules and general statements of policy, generally, see §§ 161, 163.
Footnote 80. Go Leasing, Inc. v National Transp. Safety Bd. (CA9) 800 F2d 1514.
§ 189 --"Good cause" exception
View Entire Section

There is a "good cause" exception to the federal Administrative Procedure Act's

requirement of notice of the rule by publication 81 or service 30 days before its
effective date. 82 An agency attempting to determine whether the good cause
exception is to be invoked must balance the necessity for immediate implementation
against principles of fundamental fairness which require that all affected persons be
afforded a reasonable time to prepare for the effective date of a new rule. 83 When the
consequences of agency rulemaking is to make previously lawful conduct unlawful and
to impose criminal sanctions, the balance of these competing policies imposes a heavy
burden upon the agency to show "public necessity." 84 In order to avail itself of the
"good cause" exception to the 30-day notice rule, the agency must determine that
compliance with the 30-day requirement is either impracticable, unnecessary, or contrary
to the public interest. 85 A court may also require the agency to include this finding and
a short statement of reasons with the new regulations. 86
The good cause exception should be interpreted narrowly. 87 It is essentially an

emergency procedure; notice and comment procedures should be waived only where
delay would do real harm. 88 A finding of good cause for accelerating the effective date
of a rule may be based upon the urgency of the public problem addressed by the rule, 89
such as the lack of protection in an area historically fraught with abuses, 90 or the
need to implement a program by the commencement of a fiscal year. 91 Often, an
order making a rule immediately effective upon publication can be justified by the facts
that there has been ample notice and public participation in the formulation of the rule
and affected persons have had the opportunity to take necessary steps to comply with the
rule. 92 However, a much greater showing of good cause is required if violations of
the rule can constitute crimes, 93 or if it appears that the agency did not originally
perceive an emergency and delayed the commencement of rulemaking proceedings. 94
Where an agency statement regarding good cause does not explicitly cite the pertinent
section of the federal Administrative Procedure Act, this oversight does not preclude
claiming exemption if good cause is in fact present to forego the 30-day waiting period
requirement, the omission being characterized as a technical violation of normal
procedures. 95
 Caution: The "good cause" exception for the requirement of notice of the rule by
publication or service 30 days before its effective date, 96 should not be confused
with the "good cause" exception for the requirement of notice of proposed rulemaking.
97

Footnotes
Footnote 81. As to such requirement, see § 188.
Annotation: What constitutes "good cause" under provision of Administrative

Procedure Act (5 USCS § 553(d)(3)) allowing agency rule to become effective less
than 30 days after publication, 55 ALR Fed 880.
Footnote 83. United States v Gavrilovic (CA8 Mo) 551 F2d 1099; Nance v
Environmental Protection Agency (CA9) 645 F2d 701, 16 Envt Rep Cas 1497, 11 ELR
20526, cert den 454 US 1081, 70 L Ed 2d 615, 102 S Ct 635, 16 Envt Rep Cas 1728.
Footnote 84. United States v Gavrilovic (CA8 Mo) 551 F2d 1099.
Footnote 85. Buschmann v Schweiker (CA9 Or) 676 F2d 352 (criticized on other
grounds by Petry v Block, 238 US App DC 46, 737 F2d 1193).
Footnote 89. Texaco, Inc. v Federal Energy Administration (Em Ct App) 531 F2d 1071,
cert den 426 US 941, 49 L Ed 2d 394, 96 S Ct 2662; California by State Lands Com. v
Simon (Em Ct App) 504 F2d 430, cert den 419 US 1021, 42 L Ed 2d 294, 95 S Ct 496.
938, 54 L Ed 2d 297, 98 S Ct 427.
Footnote 91. Clay Broadcasting Corp. v United States (CA5) 464 F2d 1313, revd on
other grounds 415 US 336, 39 L Ed 2d 370, 94 S Ct 1146.
938, 54 L Ed 2d 297, 98 S Ct 427.
Footnote 93. United States v Gavrilovic (CA8 Mo) 551 F2d 1099.
Footnote 94. Kelly v United States Dept. of Interior (ED Cal) 339 F Supp 1095
(disapproved on other grounds by United States v Gavrilovic (CA8 Mo) 551 F2d 1099)
(no explanation was given why a 30-day delay between the publication and the effective
date of a rule would be critical where over one year had elapsed between the amendment
of the regulatory act and the promulgation of the rule).

Footnote 95. Wells v Schweiker (ED La) 536 F Supp 1314, 34 FR Serv 2d 951.
4. Exceptions to Rulemaking Procedures [190-197]
§ 190 Generally
View Entire Section

The rulemaking provisions of the federal Administrative Procedure Act do not apply to
the extent that a rule involves a military 98 or foreign affairs 99 function of the United
States, or a matter relating to agency management of personnel, or public property, loans,
grants, benefits, or contracts. 1 The rulemaking requirements also do not apply to
interpretive rules, general statements of policy, and rules of agency organization,
procedure, or practice. 2 In addition, when agencies follow negotiated rulemaking
procedures, the notice and comment rulemaking procedures do not generally apply. 3
Furthermore, a "good cause" exception exists to the rulemaking requirements where
notice is impracticable, unnecessary, or contrary to public interest, 4 and some other
miscellaneous exceptions exist as well. 5
The exemptions under the Act must, however, be narrowly construed, 6 or else broad
construction of terms such as "public benefits" could lead to the exemption of nearly all
rules from the rulemaking requirements of the Act. 7 Inevitably, in determining
whether the APA requires notice and comment rulemaking, the interest of agency
efficiency and public input are in tension. 8 However, when an exemption is clearly and
directly involved, the rule is exempt, even though it is not a mechanical or procedural
rule. 9 An enormous quantity of rulemaking is exempt under these exceptions. 10
Footnotes
Footnote 1. § 192.
Footnote 2. § 193.
Footnote 3. § 179.
Footnote 4. § 195.
Footnote 5. § 196.
Footnote 6. New York v Diamond (SD NY) 379 F Supp 503, 8 BNA FEP Cas 533, 8
CCH EPD ¶ 9577 (disapproved on other grounds by United States v Gavrilovic (CA8
Mo) 551 F2d 1099); Nuclear Data, Inc. v Atomic Energy Com. (ND Ill) 344 F Supp 719,
174 USPQ 212; Housing Authority of Omaha v United States Housing Authority (CA8
Neb) 468 F2d 1, cert den 410 US 927, 35 L Ed 2d 588, 93 S Ct 1360; United State v
Picciotto, 277 US App DC 312, 875 F2d 345.
Footnote 7. Housing Authority of Omaha v United States Housing Authority (CA8 Neb)
Footnote 9. Humana of South Carolina, Inc. v Califano, 191 US App DC 368, 590 F2d
1070 (criticized by V.N.A. of Greater Tift County, Inc. v Heckler (CA11 Ga) 711 F2d
1020) and appeal after remand 244 US App DC 376, 758 F2d 696, cert den 474 US
1055, 88 L Ed 2d 769, 106 S Ct 791; National Wildlife Federation v Snow, 182 US App
DC 229, 561 F2d 227, 7 ELR 20022, 41 ALR Fed 905.
Footnote 10. Center for Auto Safety v Tiemann (DC Dist Col) 414 F Supp 215, remanded
188 US App DC 426, 580 F2d 689.
§ 191 Rules regarding foreign affairs
View Entire Section

Go to Supplement
the extent that a rule involves a foreign affairs function of the United States. 11 The
"foreign affairs" exemption is not limited to diplomatic activities. 12 However, the
exemption was intended by Congress to receive limited application, 13 and does
not apply to functions merely because they have an impact beyond the borders of the
United States. 14 Rather, the exemption applies to the extent that the subject matter in
question is clearly and directly involved in a foreign affairs function. 15 While the
exemption applies to those matters which so affect relations with other governments that
public rulemaking would clearly provoke definitively undesirable international
consequences, 16 a finding of these consequences is not necessary for the
exemption to apply. 17 The exemption clearly applies when the President defines,
modifies or even violates the terms of an international agreement, or directs a subordinate
to do so. 18
§ 191 ----Rules regarding foreign affairs [SUPPLEMENT]
Case authorities:
Federal Highway Administration's rule implementing accord between Mexico and U.S.,
which requires commercial drivers of both nations to pass test meeting joint standards
and grants recognition to licenses issued by other nations, involves "foreign affairs
function" within meaning of 5 USCS § 553(a). Bellsouth Corp. v FCC (1994, App DC)
17 F3d 1487, dismd, motion dismd, motion den, motion gr (App DC) 1994 US App
LEXIS 4822.
Footnotes
Footnote 12. Mast Industries, Inc. v Regan, 8 CIT 214, 596 F Supp 1567 (among
conflicting authorities on other grounds noted in Mada-Luna v Fitzpatrick (CA9 Ariz)
813 F2d 1006).
1006).
813 F2d 1006).
813 F2d 1006).
1006).
813 F2d 1006).

813 F2d 1006).
§ 192 Rules regarding management of personnel, public property, loans, grants,

benefits and contracts
View Entire Section

Go to Supplement
the extent that a rule involves a matter relating to agency management of personnel, or
public property, loans, grants, benefits, or contracts. 19 The exemptions for grants,
benefits, and contracts should be narrowly construed. 20 The "contracts" exception
applies only to the extent that the exception is "clearly and directly involved." 21 The
exemption for "grants and benefits" has been justified on the grounds that the recipients
have no "right" to the grants, benefits, or contracts: if the government wishes to impose
restrictions, the recipients can avoid the restrictions by not accepting the grant or benefit
and if the government wishes to terminate the grant or benefit, the recipient had no right
to it and thus is not entitled to a voice in whether it is terminated. 22 The exemption for
government contracts has been justified on the same grounds: the recipient has no "right"
to the contract; therefore the government can terminate the contract as it sees fit, and the
recipient can avoid contract restrictions simply by not entering into the contract. 23 The
"contracts" exemption has also been justified on the grounds that the government enters
into contracts in its proprietary capacity, and private parties have no right to participate in
the government's conducting of its own business affairs. 24
 Comment: The Administrative Conference of the United States recommended that

the exemption from rulemaking requirements for rules promulgated in relation to
public property, loans, grants, benefits, or contracts is unwise and that the law should
be amended to discontinue the exemption in order to strengthen procedures that will
make for fair, informed exercise of rulemaking authority in these as in other areas. The
Conference noted that agencies already have the authority to utilize the generally
applicable procedural methods even when formulating rules with respect to the exempt
subject matter, and urged agencies to utilize their existing powers to employ the
rulemaking procedures provided by the APA, whenever appropriate, without awaiting
a legislative command to do so. 25
§ 192 ----Rules regarding management of personnel, public property, loans, grants,

benefits and contracts [SUPPLEMENT]
Case authorities:
Confusion caused by Federal Aviation Administration with respect to scope of changes in

flight patterns at city airport provided reasonable ground to explain delay of neighboring
towns in filing petition for review. Huron v Richards (1993, CA6 Mich) 997 F2d 1168.

Footnotes
Law Reviews: Bonfield, Public Participation in Federal Rulemaking Relating to Public

Property, Loans, Grants, Benefits, or Contracts, 118 U Pa L Rev 540 (1970).
Footnote 20. Vigil v Andrus (CA10 NM) 667 F2d 931 (noting that these exemptions have
met substantial criticism).
Footnote 21. Vigil v Andrus (CA10 NM) 667 F2d 931 (noting that these exemptions have
met substantial criticism).
Annotation: Construction and application of 5 USCS § 553(a)(2), exempting from

Administrative Procedure Act's rulemaking requirements matters relating to agency
management or personnel or to public property, loans, grants, benefits, or contracts, 41
ALR Fed 926.
Footnote 22. Vigil v Andrus (CA10 NM) 667 F2d 931.
Footnote 25. 1 CFR § 305.69-8.
§ 193 Interpretive rules, general statements of policy, and rules of agency

organization, procedure, or practice
View Entire Section

Go to Supplement
The federal Administrative Procedure Act provides that except when notice or hearing is
required by statute, the notice and comment rulemaking procedures 26 do not apply to
interpretive rules, general statements of policy, or rules of agency organization,
procedure, or practice. 27 The exemption from informal rulemaking requirements for
rules of agency organization, procedure, or practice reflects the congressional judgment
that such rules, because they do not directly guide public conduct, do not merit
administrative burdens of public input proceedings. 28 The function of the exemption
for interpretive rules is to allow agencies to explain ambiguous terms in legislative
enactments without having to undertake cumbersome proceedings. 29 The function of
the exemption from rulemaking procedures that applies to general policy statements is to
allow agencies to announce their tentative intentions for the future without binding
themselves. 30 The perimeters of the exemption for general statements of policy, like
those for interpretative pronouncements are blurred. Cases interpreting the federal
Administrative Procedure Act exemption for general statements of policy tend to turn on
distinctive facts of the case and thus are not susceptible to easy generalization. 31
Agency action or statements falling within these exemptions are not determinative of
issues or rights addressed. 32 They express the agency's intended course of action, its
tentative view of the meaning of a particular statutory term, or internal housekeeping
measures organizing agency activities. 33 They do not, however, foreclose alternate
courses of action or conclusively affect rights of private parties, although they may alter
the manner in which parties present themselves or their viewpoints to the agency. 34
Interpretive rules and general statements of policy are not entirely exempt from all
rulemaking requirements. For example, petitions may be filed for the issuance,
amendment, or repeal of interpretative rules, statements of policy, and procedural rules.
35 And while such rules are not subject to the requirement that their effective date be
delayed until 30 days after publication, 36 the Freedom of Information Act still requires
that such rules be published for the guidance of the public. 37
 Comment: The Administrative Conference of the United States recommends that

federal agencies exercise restraint in invoking the APA's statutory exceptions to the
notice and comment rulemaking procedures. For rules falling within the "organization,
procedure or practice" exemption, agencies should use notice and comment procedures
voluntarily except in situations in which the cost of such procedures will outweigh the
benefits of having public input and information on the scope and impact of the rules,
and of the enhanced public acceptance of the rules that would derive from public
comment. In determining whether a proposed rule falls within the statutory exemption
for rules of agency "organization, procedure or practice," agencies should apply the
following standard: a rule is within the terms of the exemption when it both (1) relates
solely to agency methods of internal operations or of interacting with regulated parties
or the public, and (2) does not significantly affect conduct, activity, or a substantive
interest that is the subject of agency jurisdiction, or affect the standards for eligibility
for a government program. 38
§ 193 ----Interpretive rules, general statements of policy, and rules of agency

organization, procedure, or practice [SUPPLEMENT]

553(b)(3)(a)). 126 ALR Fed 347.
Regulations:
In 1993, the Administrative Conference of the United States adopted recommendations

concerning use of APA formal procedures in civil penalty proceedings (1 CFR §
305.93-1), administrative and judicial review of prompt corrective action decisions by the
federal banking regulators (1 CFR § 305.93-2), and peer review in the award of
discretionary grants (1 CFR § 305.93-3).
Case authorities:
Social Security ruling requiring that Veteran's Administration benefits paid to veteran for
support of veteran's dependent be counted as dependent's unearned income in calculating
dependent's Supplemental Security Income benefits is interpretive rule and not subject to

notice and comment requirement. White v Shalala (1993, CA2 Vt) 7 F3d 296, 42 Soc Sec
Rep Serv 441.
"Program policy letters" of Mine Safety and Health Administration, stating agency's
position that certain x-ray readings qualify as diagnoses of lung disease within meaning
of agency reporting regulations are interpretive rules under APA; rule does not become
amendment merely because it supplies crisper and more detailed lines than authority
being interpreted. American Mining Congress v Mine Safety & Health Admin. (1993,
App DC) 995 F2d 1106, 1993 CCH OSHD ¶ 30096.
Footnotes
Footnote 26. As to notice and comment rulemaking, generally, under the federal APA,
Footnote 27. 5 USCS § 553(b)(A).
Law Reviews: Asimow, Public Participation in the Adoption of Interpretative Rules

and Policy Statements, 75 Mich L Rev 520 (1977).
Knoch, Public Procedures for the Promulgation of Interpretative Rules and General
Statements of Policy, 64 Georgetown LJ 1047 (1976).

12.
The FOIA only requires that statements of general policy or interpretations of general
applicability be published–all other statements of policy and interpretation need only be
made available for public inspection and copying. Bailey v Sullivan (CA3 Pa) 885 F2d

52, CCH Unemployment Ins Rep ¶ 14882A, 14 FR Serv 3d 535, later proceeding (MD
Pa) CCH Unemployment Ins Rep ¶ 16168A.
As to the Freedom of Information Act, generally, see 66 Am Jur 2d, Records and
Footnote 38. 1 CFR § 305.92-1.
§ 194 --Effect of agency characterization of rule as exempt
View Entire Section

Go to Supplement
An agency's characterization of a rule as exempt is not binding on a court, 39

although the agency's view of its regulation is entitled to some consideration. 40 The
court must independently inquire into the substance and effect of a policy
pronouncement, 41 and will honor an agency's characterization of a rule as legislative or
interpretive only if it reasonably describes what the agency has done. 42 In applying this
exemption, courts have been less concerned with the formal appellation of a rule–whether
it is "procedural" or "legislative"–than with effect on those within its regulatory scope. 43
A seemingly procedural rule does not have its apparent nature cast in stone for the
purposes of APA rulemaking requirements. 44
§ 194 --Effect of agency characterization of rule as exempt [SUPPLEMENT]

553(b)(3)(a)). 126 ALR Fed 347.
Footnotes
Footnote 39. Lewis–Mota v Secretary of Labor (CA2 NY) 469 F2d 478; Pharmaceutical
Mfrs. Asso. v Finch (DC Del) 307 F Supp 858 (disapproved on other grounds by Rivera
v Becerra (CA9 Cal) 714 F2d 887, 5 EBC 1917); Brown Express, Inc. v United States
(CA5) 607 F2d 695 (criticized on other grounds by American Trucking Asso. v United
States (CA11) 688 F2d 1337) as stated in Jean v Nelson (CA11 Fla) 711 F2d 1455, on
reh, en banc (CA11 Fla) 727 F2d 957, reh den (CA11 Fla) 733 F2d 908, cert gr 469 US
1071, 83 L Ed 2d 504, 105 S Ct 563 and affd 472 US 846, 86 L Ed 2d 664, 105 S Ct
2992, later proceeding (SD Fla) 624 F Supp 836, later proceeding (SD Fla) 646 F Supp
1300, later proceeding (CA11 Fla) 854 F2d 405 and affd, in part, vacated (CA11 Fla) 863
F2d 759, cert gr 493 US 1055, 107 L Ed 2d 947, 110 S Ct 862 and affd 496 US 154,
110 L Ed 2d 134, 110 S Ct 2316, CCH Unemployment Ins Rep ¶ 15427A, 20 ELR
20910; Detroit Edison Co. v United States EPA (CA6) 496 F2d 244, 6 Envt Rep Cas
1568, 4 ELR 20388; Aiken v Obledo (ED Cal) 442 F Supp 628; St. Francis Memorial
Hospital v Weinberger (ND Cal) 413 F Supp 323; Pacific Gas & Electric Co. v Federal
Power Com., 164 US App DC 371, 506 F2d 33, 50 OGR 395; Gosman v United States,
215 Ct Cl 617, 573 F2d 31; Standard Oil Co. v Department of Energy (Em Ct App) 596
F2d 1029.
Footnote 40. Daughters of Miriam Center for the Aged v Mathews (CA3 NJ) 590 F2d
1250; Yan Wo Cheng v Rinaldi (DC NJ) 389 F Supp 583; Pacific Gas & Electric Co. v
Federal Power Com., 164 US App DC 371, 506 F2d 33, 50 OGR 395; Energy Reserves
Group, Inc. v Department of Energy (Em Ct App) 589 F2d 1082, later proceeding (Jud
Pan Mult Lit) 472 F Supp 1282, appeal after remand (Em Ct App) 613 F2d 305, later
proceeding (Em Ct App) 690 F2d 1375, cert den 459 US 1127, 74 L Ed 2d 978, 103 S
Ct 763 and on remand (DC Kan) 578 F Supp 586, later proceeding (Em Ct App) 744 F2d
98, cert den 469 US 1077, 83 L Ed 2d 515, 105 S Ct 576, later proceeding (DC Kan)
608 F Supp 1104, 85 OGR 266, later proceeding (DC Kan) 653 F Supp 108, 91 OGR
477, later proceeding (DC Kan) 695 F Supp 1097 and summary judgment gr, in part (DC
Kan) 1987 US Dist LEXIS 15824, later proceeding (DC Kan) 671 F Supp 1318, 95 OGR
496, later proceeding (DC Kan) 707 F Supp 1267, 105 OGR 15 and affd (Em Ct App)
857 F2d 1481, 101 OGR 242, later proceeding (DC Kan) 1989 US Dist LEXIS 1922,
later proceeding (DC Kan) 707 F Supp 1269, 105 OGR 21 and affd (Em Ct App) 855 F2d
865, 101 OGR 223, later proceeding (Em Ct App) 855 F2d 871, 101 OGR 237, later
proceeding (Em Ct App) 864 F2d 796, 12 FR Serv 3d 594, later proceeding (DC Kan)
124 FRD 217, later proceeding (DC Kan) 739 F Supp 1449, 110 OGR 24, summary
judgment gr, in part, summary judgment den, in part, summary judgment gr (DC Kan)
743 F Supp 1476, 110 OGR 64, later proceeding (DC Kan) 743 F Supp 1465, 110 OGR
38, summary judgment gr, summary judgment den (DC Kan) 743 F Supp 1467, 110 OGR
43, later proceeding (DC Kan) 746 F Supp 1446, 110 OGR 79, later proceeding (DC
Kan) 746 F Supp 1452, 110 OGR 91, later proceeding (DC Kan) 746 F Supp 1462, 110
OGR 114, affd (Em Ct App) 945 F2d 1575, 116 OGR 40 and affd in part and revd in part
(Em Ct App) 944 F2d 914, 115 OGR 485, reh, en banc, den (Em Ct App) 1991 US App
LEXIS 29593 and reconsideration gr, in part (DC Kan) 1990 US Dist LEXIS 14218, later
proceeding (DC Kan) 752 F Supp 1526, 114 OGR 283 and clarified, on reconsideration,
motion den (DC Kan) 1990 US Dist LEXIS 18219 and dismd (CA10 Kan) 983 F2d 172,
motion gr, in part, motion den, in part, motion den (DC Kan) 821 F Supp 1432 and affd
(Em Ct App) 968 F2d 27, 23 FR Serv 3d 425, motion gr, in part and summary judgment
gr, motion gr (DC Kan) 722 F Supp 649, 106 OGR 17, reconsideration den (DC Kan)
739 F Supp 1446, 110 OGR 17, summary judgment gr, in part, partial summary judgment
den, in part (DC Kan) 752 F Supp 1527, 114 OGR 285, later proceeding (DC Kan) 752 F
Supp 1534, 115 OGR 58, later proceeding (DC Kan) 1991 US Dist LEXIS 6576, later
proceeding (DC Kan) 763 F Supp 498, 115 OGR 65, later proceeding (Em Ct App) 944
F2d 918, 115 OGR 492 and affd (Em Ct App) 1991 US App LEXIS 31487, withdrawn
by publisher, reported at (Em Ct App) 956 F2d 282.
Footnote 41. Mt. Diablo Hospital Dist. v Bowen (CA9 Cal) 860 F2d 951.
Footnote 42. American Federation of Government Employees v United States (ND Ga)
622 F Supp 1109, affd (CA FC) 780 F2d 720.

§ 195 "Good cause" exception where notice is impracticable, unnecessary, or
contrary to public interest
View Entire Section

Go to Supplement
The federal Administrative Procedure Act excuses noncompliance with the procedural
requirements for rulemaking where they are unnecessary, impracticable, or contrary to
the public interest. 45 Under the federal APA, any finding of good cause must be
incorporated into the rules as issued, along with a brief statement of reasons supporting
the finding. 46 The finding is not, however, binding on the courts. 47
The good cause exception is essentially an emergency procedure 48 and

should be narrowly construed. 49 Furthermore, it is important to note that the agency
bears the burden of demonstrating one of the grounds for good cause. 50
A finding of good cause indicates the agency's intention to promulgate a legislative type
rule. 51 Later attempts by the agency to recharacterize the rule as interpretative are
given very little weight. 52 However, the view has also been taken that use of the good
cause exception did not demonstrate the agency's intent in passing a legislative type rule.
Rather, it merely assured that, if a court determined that any portion of the final rule was
legislative, the agency had on record its justification for invocation of the "good cause"
exception. 53
The type of emergency situations which justifies resort by the agency to the "good cause"
exception is one in which delay would unavoidably frustrate agency powers. 54
"Impracticable" means a situation in which the due and required execution of the agency
functions would be unavoidably prevented by its undertaking public rulemaking
proceedings. 55 Impracticability is said to exist when the agency cannot both follow the
notice and comment procedure and execute its statutory duty. 56 For example, an
agency may claim the good cause exception on grounds of impracticability where
legislation changing an agency's procedures was effective immediately and provided no
transition period for developing new procedures to implement significant legislative
changes. 57 Failure to file notice and comment procedures is permissible where it is
necessary that the agency have new rules in place immediately following the enactment
of legislation and the agency is required to develop procedures to deal with a backlog of
old cases and an increased number of new cases. 58
However, while time constraints, 59 imminence of a deadline, 60 or the urgent need for
agency action 61 are factors to be considered, they are inadequate justification to invoke
the good cause exception, especially when it would have been possible to comply with
both the APA and with the statutory deadline. 62 Thus, good cause for eliminating
notice and the opportunity to comment may not exist, even though an agency feels the
need to provide immediate guidance regarding the operation of a new program, 63 or
even though the agency wishes to have the regulations in effect during the current harvest
season. 64
Notice and opportunity to comment may be unnecessary if the agency is making only a
minor or technical amendment to its rules which does not affect the public interest. 65
"Unnecessary," means unnecessary so far as the public is concerned, as is the case if a
minor or merely technical amendment in which the public is not particularly interested is
involved. 66 "Public interest" supplements the terms "impracticable" or "unnecessary;"
it requires that the public rulemaking procedures not prevent an agency from operating,
and that, on the other hand, lack of public interest in rulemaking warrants an agency's
dispensing with public procedure. 67 The exception should be narrowly construed
because it is an important safety valve to be used where delay would do real harm. 68 It
should not be used, however, to circumvent the notice and comment requirements
whenever an agency finds it inconvenient to follow them. 69
In some instances it has been held that in special circumstances good cause can exist
when the very announcement of a proposed rule itself can be expected to precipitate
activity by affected parties that would harm the public welfare. 70 However, if the
exception is not to become an all purpose escape-clause, the anticipated response must
involve a significant threat of serious damage to important public interest. 71
§ 195 ----"Good cause" exception where notice is impracticable, unnecessary, or

contrary to public interest [SUPPLEMENT]
Case authorities:
USDA is preliminarily enjoined from enforcing or implementing new interim rule on

mandatory labeling for meat and poultry products, although USDA states that new rule,
aimed at preventing problems like recent outbreaks of foodborne illness due to
mishandling and undercooking, is in public interest and falls within good cause exception
of 5 USCS § 553(b)(B), because food industry organizations have shown that USDA has
been considering problem for sometime, that no emergency exists, and that normal
rulemaking procedures–allowing affected parties and general public to participate in
process–can and should be followed. Texas Food Indus. Ass'n v United States Dep't of
Agric. (1993, WD Tex) 842 F Supp 254.
Footnotes
Footnote 45. 5 USCS § 553(b)(B).
Law Reviews: J. J. Lavilla, The good cause exemption to notice and comment
rulemaking requirements under the Administrative Procedure Act, 3 Admin LJ
317-423 (Fall, 1989).

12.
Footnote 46. 5 USCS § 553(b)(B).
Footnote 47. Mobil Oil Corp. v Department of Energy (Em Ct App) 610 F2d 796, cert
den 446 US 937, 64 L Ed 2d 790, 100 S Ct 2156 and appeal after remand (Em Ct App)
647 F2d 142, later proceeding (Em Ct App) 678 F2d 1083.

grounds by Petry v Block, 238 US App DC 46, 737 F2d 1193); Consumer Energy
Council v Federal Energy Regulatory Com., 218 US App DC 34, 673 F2d 425, affd 463
US 1216, 77 L Ed 2d 1402, 103 S Ct 3556, 1983-1 CCH Trade Cases ¶ 65474, reh den
463 US 1250, 77 L Ed 2d 1457, 104 S Ct 40 and affd 463 US 1216, 77 L Ed 2d 1402,
103 S Ct 3556 and affd 463 US 1216, 77 L Ed 2d 1402, 103 S Ct 3556 and affd 463
US 1216, 77 L Ed 2d 1402, 103 S Ct 3556 and cert den 463 US 1216, 77 L Ed 2d
1413, 103 S Ct 3556 and cert den 463 US 1216, 77 L Ed 2d 1413, 103 S Ct 3556.
Footnote 49. Levesque v Block (CA1 NH) 723 F2d 175.
Footnote 50. Northern Arapahoe Tribe v Hodel (CA10 Wyo) 808 F2d 741, 17 ELR
20682, 6 FR Serv 3d 1248.
Footnote 53. United Technologies Corp. v U.S. EPA, 261 US App DC 226, 821 F2d 714,
26 Envt Rep Cas 1110, 17 ELR 21015.
Footnote 54. National Nutritional Foods Asso. v Kennedy (CA2) 572 F2d 377; American
Iron & Steel Institute v Environmental Protection Agency (CA3) 568 F2d 284, 10 Envt
Rep Cas 1689, 7 ELR 20738.
Forms: Petition for reconsideration of emergency change or suspension of regulation

made without notice. 1A Federal Procedural Forms, L Ed, Administrative Procedure §
2:23.
20682, 6 FR Serv 3d 1248.
Footnote 57. American Transfer & Storage Co. v Interstate Commerce Com. (CA5) 719
F2d 1283.
F2d 1283.
Footnote 60. Natural Resources Defense Council, Inc. v U. S. EPA (CA3) 683 F2d 752,
17 Envt Rep Cas 1721, 12 ELR 20833.
17 Envt Rep Cas 1721, 12 ELR 20833.
17 Envt Rep Cas 1721, 12 ELR 20833.

den 446 US 937, 64 L Ed 2d 790, 100 S Ct 2156 and appeal after remand (Em Ct App)
647 F2d 142, later proceeding (Em Ct App) 678 F2d 1083.
Footnote 64. National Asso. of Farmworkers Organizations v Marshall, 202 US App DC

317, 628 F2d 604.
Footnote 65. National Nutritional Foods Asso. v Kennedy (CA2) 572 F2d 377; United
States v United States Trucking Corp. (SD NY) 317 F Supp 69; Texaco, Inc. v Federal
Power Com. (CA3) 412 F2d 740, 34 OGR 125.
20682, 6 FR Serv 3d 1248.
20682, 6 FR Serv 3d 1248.
20682, 6 FR Serv 3d 1248.
20682, 6 FR Serv 3d 1248; Mobil Oil Corp. v Department of Energy (Em Ct App) 728
den 467 US 1255, 82 L Ed 2d 849, 104 S Ct 3545.
den 467 US 1255, 82 L Ed 2d 849, 104 S Ct 3545.
§ 196 Other exceptions
View Entire Section

Go to Supplement
The federal Administrative Procedure Act does not govern rulemaking by territorial and
commonwealth officials. 72 APA rulemaking requirements also do not apply if, under
the pertinent regulatory statute, the administrator has discretion to change policies or
classifications at any time. 73 However, if no statute manifests a strong congressional
intent that rulemaking procedures should not be followed, and no exemption is granted
under the APA, no exemption should be permitted by the courts. 74
§ 196 ----Other exceptions [SUPPLEMENT]
Case authorities:
APA does not require FAA to promulgate rule or publish policy stating that it may
suspend pilot certificates for violations of Federal Aviation Regulations; clear grant of
statutory authority to suspend pilot certificates for disciplinary purposes (49 USCS Appx
§ 2419) renders promulgation and publication of rule or policy unnecessary. Dilley v
National Transp. Safety Bd. (1995, CA10) 49 F3d 667.
Approval of highway interchange design was not rule under 5 USCS § 551(4), and
therefore Administrative Procedure Act (APA) notice and comment procedures did not
apply, where National Park Service (NPS) entered into exchange agreement whereby
developer received easement to build highway interchange to land to be developed on
river island, and nonprofit groups in opposition contended that in approving interchange
design, NPS had not followed APA procedures in adopting rule, because this isolated
agency act would have no future effect on other parties. Daingerfield Island Protective
Soc'y v Babbitt (1993, DC Dist Col) 823 F Supp 950 (criticized by National Wildlife
Fed'n v Babbitt (DC Dist Col) 1993 US Dist LEXIS 10689).
Footnotes
Footnote 72. Nestle Products, Inc. v United States, 64 Cust Ct 158, 310 F Supp 792.
Footnote 73. Certified Color Mfrs. Asso. v Mathews, 177 US App DC 137, 543 F2d 284,
6 ELR 20629.
Footnote 74. Environmental Defense Fund, Inc. v Blum (DC Dist Col) 458 F Supp 650,
12 Envt Rep Cas 1088, 8 ELR 20748.
§ 197 Waiver of, or estoppel from asserting, exemption
View Entire Section

Go to Supplement
An agency's exemption from the rulemaking requirements of the federal Administrative

Procedure Act may be waived by an announcement in the Federal Register. 75 Under
some circumstances, an agency may also be estopped from claiming one exemption, if it
relies on another exemption, such as that notice is impracticable, unnecessary, or contrary
to public interest. 76 However, it has also been held that the voluntary publication of
notice in the Federal Register and permissive invitation for public comment does not
necessarily constitute an estoppel against the application of one of the exemptions. 77
§ 197 ----Waiver of, or estoppel from asserting, exemption [SUPPLEMENT]
Case authorities:
Administration Procedure Act (APA) (5 USCS § 551 et seq.) applies to temporary rules
issued by United States Coast Guard, where Coast Guard issued rule limiting drawbridge
openings crossing Chicago River for recreational vehicles during 4-month period,
because temporary rule is only exempted from APA requirements if rule meets one of
exemptions set forth under § 553(b)(3) and Coast Guard failed to invoke exemptions and
is therefore required to support rule with substantial evidence. Crowley's Yacht Yard v
Pena (1995, DC Dist Col) 886 F Supp 98.
Footnotes
Footnote 75. Crown Zellerbach Corp. v Marshall (ED La) 441 F Supp 1110, 15 BNA
FEP Cas 1628, 24 CCF ¶ 81793, 15 CCH EPD ¶ 7898 (noting, however, that a waiver is
not to be applied retroactively); Brown v Lynn (ND Ill) 392 F Supp 559, later proceeding
(ND Ill) 560 F Supp 1344, affd (CA7 Ill) 743 F2d 454, later proceeding (CA7 Ill) 785
F2d 1372; Linoz v Heckler (CA9 Hawaii) 800 F2d 871; Lewis v Weinberger (DC NM)
415 F Supp 652; Rodway v United States Dept. of Agriculture, 168 US App DC 387, 514
F2d 809; Florida v Weinberger (DC Dist Col) 401 F Supp 760; Duke City Lumber Co. v
Butz (DC Dist Col) 382 F Supp 362, 7 Envt Rep Cas 1104, 20 CCF ¶ 83673, 5 ELR
20080, affd, in part 176 US App DC 218, 539 F2d 220, 6 ELR 20629, cert den 429 US
1039, 50 L Ed 2d 751, 97 S Ct 737.
Footnote 76. New York v Diamond (SD NY) 379 F Supp 503, 8 BNA FEP Cas 533, 8
CCH EPD ¶ 9577 (disapproved on other grounds by United States v Gavrilovic (CA8
Mo) 551 F2d 1099).
Footnote 77. Lewis v Richardson (DC Mass) 428 F Supp 1164.
D. State Procedure for Adoption of Rules [198-220]
Research References
Model State Administrative Procedure Act (1961) §§ 2-5; Model State Administrative
Procedure Act (1981) §§ 2-101, 3-101 through 3-116
1. In General [198, 199]
§ 198 Generally
View Entire Section

Go to Supplement
As under federal law, 78 the state administrative procedure acts have specific
requirements for the adoption of rules. 79 When promulgating rules, an agency must
follow specified statutory procedures 80 that include notice and public hearing
requirements, 81 affording all interested persons information on the substance of any
proposed rule 82 and an opportunity to express their views on the proposed rule. 83
The rationale behind such requirements is that when action taken by an agency alters the
status quo, those who will be affected by its future application should have the
opportunity to be heard and to participate in the decision making. 84 Another purpose
for rulemaking proceedings is to acquaint rulemakers with basic legislative facts, 85 and
to educate them concerning the impact a proposed rule will have on affected parties. 86
In addition, when an agency undertakes rulemaking it ordinarily must follow publication
procedures. 87
Case authorities:
State agency was not required to comply with APA's notice, comment and publication
requirements in implementing guidelines for determining claimants' disability levels
since there was no evidence of contractual relationship between agency and Social
Security Administration that would subject agency to APA, nor was it case in which SSA
adopted state's regulations which might require SSA to comply with APA. Day v Shalala
(1994, CA6 Ohio) 23 F3d 1052, 44 Soc Sec Rep Serv 417, CCH Unemployment Ins Rep
¶ 17828A, 1994 FED App 145P.
Footnotes
Footnote 79. Weaver v Colorado Dept. of Social Services (Colo App) 791 P2d 1230;
Service Employees International Union, Local 6 v Idaho Dept. of Health & Welfare, 106
Idaho 756, 683 P2d 404; Bradco Supply Co. v Larsen, 183 Mont 97, 598 P2d 596, 20
CCH EPD ¶ 30267.
Law Reviews: Bonfield, A. E., The quest for an ideal state administrative rulemaking
procedure, 18 Fla St U LR 617-60 (Spring, 1991).
Footnote 80. Sharma v State, Dept. of Land & Natural Resources, 66 Hawaii 632, 673
P2d 1030, cert den 469 US 836, 83 L Ed 2d 72, 105 S Ct 131; Jordan v Department of
Corrections, 165 Mich App 20, 418 NW2d 914.
Footnote 81. Weaver v Colorado Dept. of Social Services (Colo App) 791 P2d 1230;
CBS, Inc. v Comptroller of Treasury, 319 Md 687, 575 A2d 324; Palozolo v Department
of Social Services, 189 Mich App 530, 473 NW2d 765, app den 439 Mich 879, 478
NW2d 143.
Footnote 82. U.S. Life Title Ins. Co. v Department of Commerce & Ins. (Tenn App) 770
SW2d 537.
Footnote 83. State v Hebert (Alaska App) 743 P2d 392, affd (Alaska) 803 P2d 863;
Weaver v Colorado Dept. of Social Services (Colo App) 791 P2d 1230 (opportunity to be

heard); Illies v Illies (ND) 462 NW2d 878.
Due process and sound governmental policy require giving the public an opportunity to
participate in rulemaking proceedings that might affect private business interests or the
personal liberties of private citizens. U.S. Life Title Ins. Co. v Department of Commerce
& Ins. (Tenn App) 770 SW2d 537.
The express legislative objective of the Hawaii Administrative Procedure Act rulemaking
provisions is to insure public participation in the rulemaking process by allowing any
interested persons to petition for a change in the rules and to participate in a public
hearing. State v Rowley, 70 Hawaii 135, 764 P2d 1233.
A2d 3.
Footnote 86. U.S. Life Title Ins. Co. v Department of Commerce & Ins. (Tenn App) 770
SW2d 537.
Footnote 87. CBS, Inc. v Comptroller of Treasury, 319 Md 687, 575 A2d 324.
§ 199 Effect of noncompliance with rulemaking procedures; substantial compliance
View Entire Section

Generally, rules not promulgated in accordance with the administrative procedure act are
invalid, 88 void, 89 and unenforceable. 90 Some state administrative procedure acts
provide that no rule may be relied upon or cited against any person, unless it has been
made available in accordance with the procedures established, 91 and promulgated in
compliance with the rulemaking provisions of the administrative procedure act. 92
However, many states say that the administrative procedure act requires only substantial
compliance for a rule to be valid. 93 This is the approach of both the 1961 version and
the 1981 version of the Model State Administrative Procedure Act which say that no rule
is valid unless adopted in substantial compliance with the Act. 94 Substantial
compliance means that the statute has been followed sufficiently so as to carry out the
intent for which it was adopted, and what constitutes substantial compliance depends on
the facts of each case. 95 Substantial compliance relates to forms of notice, but not time
periods. 96
 Comment: Both versions of the Model State Administrative Procedure Act say that
proceedings to contest any rule on the ground of noncompliance with the Act must be
commenced within a certain time period after the effective date of the rule. 97

Footnotes
Footnote 88. Burk v Sunn, 68 Hawaii 80, 705 P2d 17; Senn Park Nursing Center v
Miller, 104 Ill 2d 169, 83 Ill Dec 609, 470 NE2d 1029; Detroit Base Coalition for Human
Rights of Handicapped v Director, Dept. of Social Services, 431 Mich 172, 428 NW2d
335, 88 ALR4th 1075; Pyke v Department of Social Services, 182 Mich App 619, 453
NW2d 274 (criticized on other grounds by Palozolo v Department of Social Services, 189
Mich App 530, 473 NW2d 765) and app den 437 Mich 1025; Lane v Board of Review
(Utah) 727 P2d 206, 44 Utah Adv Rep 4.
Footnote 89. NME Hosps., Inc. v Department of Social Servs., Div. of Medical Servs.
(Mo) 850 SW2d 71.
Footnote 90. Burk v Sunn, 68 Hawaii 80, 705 P2d 17.
As to enforcement of rules, see §§ 243 et seq.
Footnote 91. Weaver v Colorado Dept. of Social Services (Colo App) 791 P2d 1230.
In order for rules to possess legal force, they must satisfy publication and filing
requirements. Missouri State Div. of Family Services v Barclay (Mo App) 705 SW2d
518.
Footnote 92. State v Rowley, 70 Hawaii 135, 764 P2d 1233.
Footnote 93. Service Employees International Union, Local 6 v Idaho Dept. of Health &
Welfare, 106 Idaho 756, 683 P2d 404; Dorignac v Louisiana State Racing Com. (La App
4th Cir) 436 So 2d 667; Industrial Liaison Committee of Niagara Falls Area Chamber of
Commerce v Williams, 72 NY2d 137, 531 NYS2d 791, 527 NE2d 274, 28 Envt Rep Cas
1173; Illies v Illies (ND) 462 NW2d 878; Watson v Oregon State Penitentiary, 90 Or
App 85, 750 P2d 1188; Tennessee Cable Television Assn. v Tennessee Public Service
Com. (Tenn App) 844 SW2d 151, clarified, on reh, remanded (Tenn App) 1992 Tenn
App LEXIS 623; Methodist Hosps. of Dallas v Texas Indus. Accident Bd. (Tex App
Austin) 798 SW2d 651, writ dism w o j (Mar 27, 1991) and claim dismissed (Tex App
Austin) 1993 Tex App LEXIS 2352; Mahoney v Shinpoch, 107 Wash 2d 679, 732 P2d
510.
One challenging an administrative regulation must show a substantial failure to comply

with the administrative procedures act in order to rebut the presumption of procedural
validity. Gilbert v State, Dept. of Fish & Game, Bd. of Fisheries (Alaska) 803 P2d 391.
Footnote 94. Model State Administrative Procedure Act (1961) § 3(c); Model State
Administrative Procedure Act (1981) § 3-113(a).
Footnote 95. Dorignac v Louisiana State Racing Com. (La App 4th Cir) 436 So 2d 667.
Footnote 96. Desmond-Americana v Jorling (3d Dept) 153 App Div 2d 4, 550 NYS2d
94, app den 75 NY2d 709, 555 NYS2d 691, 554 NE2d 1279.
Footnote 97. Model State Administrative Procedure Act (1961) § 3(c); Model State
Administrative Procedure Act (1981) § 3-113(b).

2. Notice and Publication of Information Concerning Proposed Rule [200-205]
§ 200 Notice
View Entire Section

The 1961 version of the Model State Administrative Procedure Act requires that, prior to
adoption of a proposed rule, the agency give notice of its intended action at least a certain
number of days in advance. 98 The notice must be mailed to all persons who have made
a timely request to the agency for advanced notice of its rulemaking proceedings and will
be published in the medium of publication appropriate for the adopting state. 99 The
1981 version of the Model State Administrative Procedure Act also requires notice for
adoption of a rule. 1 It provides that at least a specified number of days before the
adoption of a rule an agency must cause notice of its contemplated action to be published,
for example, in the administrative bulletin. 2 Within a certain number of days after
publication, the agency will mail a copy of the notice to each person who has made a
timely request. 3 An agency may charge persons for the actual cost of providing them
with mailed copies. 4
Footnotes
Footnote 98. Model State Administrative Procedure Act (1961) § 3(a)(1).
§ 201 --Contents of notice
View Entire Section

The contents of the notice of a proposed rule must be somewhat specific about the nature
of the proposed rule. Notices that merely state the general description of proposed rules

and amendments fail to provide interested parties with sufficient information to allow for
criticism, recommendations or formulation of alternatives. 5 Thus, notices that contain
little more than the headings of the new rules are insufficient. 6
The 1961 version of the Model State Administrative Procedure Act states that the notice
must include a statement of either the terms or substance of the intended action, or a
description of the subjects and issues involved, and the time when, the place where, and
the manner in which interested persons may present their views thereon. 7 A statement
of substance should include an intelligible abstract or synopsis of the material and
substantial elements of the proposed rule. 8 In some states, the text of the rule must be
provided unless it exceeds a certain number of words. 9 The 1981 version of the Model
Act states that the notice must include: (1) a short explanation of the purpose of the
proposed rule; (2) the specific legal authority authorizing the proposed rule; (3) subject to
certain statutory provisions, the text of the proposed rule; (4) where, when, and how
persons may present their views on the proposed rule; and (5) where, when, and how
persons may demand an oral proceeding on the proposed rule if the notice does not
already provide for one. 10 Furthermore, in some states, notice must include a
cost-benefit analysis. 11
Footnotes
Footnote 6. Costa v Sunn, 64 Hawaii 389, 642 P2d 530, appeal after remand 5 Hawaii
App 419, 697 P2d 43, cert den (Hawaii) 744 P2d 781.
Footnote 9. Hospital Assn. of New York State v Axelrod (3d Dept) 164 App Div 2d 518,
565 NYS2d 243.
Footnote 11. Methodist Hosps. of Dallas v Texas Indus. Accident Bd. (Tex App Austin)
798 SW2d 651, writ dism w o j (Mar 27, 1991) and claim dismissed (Tex App Austin)
1993 Tex App LEXIS 2352.
§ 202 Compliance with publication requirements
View Entire Section

Generally, the publication of notice in the manner and form prescribed by statute is
deemed jurisdictional, as it is a species of process and forms the basis of the proceeding.
12 However, while there is authority that even actual notice does not excuse compliance
with the publication requirements of an administrative procedure act, 13 there is also
authority that noncompliance with procedural requirements may be excusable or curable,
such as when there has been actual notice and no material prejudice. 14 The 1981
version of the Model State Administrative Procedure Act states that inadvertent failure to
mail a notice of proposed rule adoption does not invalidate a rule. 15
Footnotes
Footnote 13. Senn Park Nursing Center v Miller, 104 Ill 2d 169, 83 Ill Dec 609, 470
NE2d 1029.
Footnote 14. Minton v Fiscal Court of Jefferson County (Ky App) 850 SW2d 52.
§ 203 Rule differing from published notice
View Entire Section

An amendment of a proposed rule will be declared invalid where, as finally adopted, it is

so fundamentally different from the rule originally proposed as to amount to a new
proposal; but to require another hearing when there is any revision of an original proposal
after a full hearing would be too formidable a burden on the rulemaking process. 16 In
some states, notice and comment will suffice, and a hearing is not necessary, where the
amendments do not introduce new matter, but merely define or clarify an original
proposed order, but amendments that substantially deviate from the original proposal will
require a second hearing. 17
The 1981 version of the Model State Administrative Procedure Act states that an agency
may not adopt a rule that is substantially different from the proposed rule contained in the
published notice of proposed rule adoption. 18 However, an agency may terminate a
rulemaking proceeding and commence a new rulemaking proceeding for the purpose of
adopting a substantially different rule. 19 In determining whether an adopted rule is
substantially different from the published proposed rule upon which it is required to be
based, the following must be considered: (1) the extent to which all persons affected by
the adopted rule should have understood that the published proposed rule would affect
their interests; (2) the extent to which the subject matter of the adopted rule or the issues
determined by that rule are different from the subject matter or issues involved in the
published proposed rule; and (3) the extent to which the effects of the adopted rule differ
from the effects of the published proposed rule had it been adopted instead. 20

Footnotes
Footnote 16. Carlsmith, Carlsmith, Wichman & Case v CPB Properties, Inc., 64 Hawaii
584, 645 P2d 873.
Footnote 17. Summerson v Barber (3d Dept) 93 App Div 2d 652, 463 NYS2d 325,
stating that enlargement of a class of those subject to an assessment may so substantially
change the proposed order as to require a second notice and opportunity to be heard at a
hearing.
Further notice was not required where the final regulations did not enlarge the purpose of
the proposed regulation. Brocal Corp. v Commonwealth, Dept. of Transp., 515 Pa 224,
528 A2d 114.
§ 204 Regulatory analysis of proposed rule
View Entire Section

According to the 1981 version of the Model State Administrative Procedure Act, under
certain circumstances, a regulatory analysis must be issued 21 and considered 22 before
the rule may be adopted. An agency must issue a regulatory analysis of a proposed rule
if, within a certain time after the published notice of proposed rule adoption, a written
request for the analysis is filed in the office of an official such as the secretary of state by
individuals or groups, such as, the administrative rules review committee, the governor, a
political subdivision, an agency, or a specified number of persons signing the request. 23
The official responsible will immediately forward to the agency a certified copy of the
filed request. 24 Except to the extent that the written request expressly waives one or
more of the following, the regulatory analysis must contain: (1) a description of the
classes of persons who probably will be affected by the proposed rule, including classes
that will bear the costs of the proposed rule and classes that will benefit from the
proposed rule; (2) a description of the probable quantitative and qualitative impact of the
proposed rule, economic or otherwise, upon affected classes of persons; (3) the probable
costs to the agency and to any other agency of the implementation and enforcement of the
proposed rule and any anticipated affect on state revenues; (4) a comparison of the
probable costs and benefits of the proposed rule to the probable costs and benefits of
inaction; (5) a determination of whether there are less costly methods or less intrusive
methods for achieving the purpose of the proposed rule; and (6) a description of any
alternative methods for achieving the purpose of the proposed rule that were seriously
considered by the agency and the reasons why they were rejected in favor of the
proposed rule. 25 Each regulatory analysis must include quantification of the data to the
extent practicable and must take account of both short-term and long-term consequences.
26
A concise summary of the regulatory analysis must be published at least a certain number
of days before the earliest of: (1) the end of the period during which persons may make
written submissions on the proposed rule; (2) the end of the period during which an oral
proceeding may be requested; or (3) the date of any required oral proceeding on the
proposed rule. 27 The published summary of the regulatory analysis must also indicate
where persons may obtain copies of the full text of the regulatory analysis and where,
when, and how persons may present their views on the proposed rule and demand an oral
proceeding thereon if one is not already provided. 28
If the agency has made a good faith effort to comply with the requirements for regulatory
analysis, the rule may not be invalidated on the ground that the contents of the regulatory
analysis are insufficient or inaccurate. 29
Footnotes
§ 205 Rulemaking dockets
View Entire Section

The 1981 version of the Model State Administrative Procedure Act requires that each
agency maintain a current, public rulemaking docket. 30 The rulemaking docket may
contain a listing of the precise subject matter of each possible rule currently under active
consideration within the agency, the name and address of agency personnel with whom
persons may communicate with respect to the matter, and an indication of the present
status within the agency of that possible rule. 31 The rulemaking docket must also list
each pending rulemaking proceeding. 32 For each rulemaking proceeding, the docket
must give certain information, including the subject matter of the proposed rule where
written submissions on the proposed rule may be inspected; the time during which
written submissions may be made; the names of persons who have made written requests
for an opportunity to make oral presentations on the proposed rule, where those requests
may be inspected, and when oral presentations may be made; the current status of the
proposed rule and any agency determinations with respect thereto the date of the rule's
adoption; and when the rule will become effective. 33
Footnotes
Footnote 32. Model State Administrative Procedure Act (1981) § 3-102(c), also stating
that a rulemaking proceeding is pending from the time it is commenced by publication of
a notice of proposed rule adoption, to the time it is terminated, by publication of a notice
of termination or the rule becoming effective.
Model State Administrative Procedure Act (1981) § 3-102(c).
3. Opportunity to Comment; Hearings [206-208]
§ 206 Generally
View Entire Section

Go to Supplement
Both the 1961 and the 1981 versions of the Model State Administrative Procedure Act
provide that an agency must afford all interested parties a reasonable opportunity to
submit data, views, or arguments. 34 The 1961 version of the Act states that
submissions may be made either orally or in writing. 35 However, under the 1961
version of the Act, in the case of substantive rules, 36 an opportunity for an oral hearing
must be granted if requested by a certain number of persons, a governmental subdivision
or agency, or an association having not less than a statutorily specified number of
members. 37
The 1981 version of the Act states that an agency must schedule an oral proceeding on a
proposed rule if, within a certain number of days after the published notice, a written
request for an oral proceeding is submitted by a body such as the administrative rules
review committee or the administrative rules council, a political subdivision, an agency,
or a certain number of persons. 38 At that proceeding, persons may present oral
argument, data, and views on the proposed rule. 39 Oral proceedings must be open to
the public and must be recorded by stenographic or other means. 40 Under the 1981
version of the Act, an oral proceeding on a proposed rule, if required, may not be held
earlier than a specified number of days after notice of its location and time is published.
41
The 1981 version of the Act states that the agency, a member of the agency, or another
presiding officer designated by the agency, must preside at a required oral proceeding on
a proposed rule. 42 If the agency does not preside, the presiding official will prepare a
memorandum for consideration by the agency summarizing the contents of the
presentations made at the oral proceeding. 43 The 1981 version of the Act further states
that each agency will issue rules for the conduct of oral rulemaking proceedings, and
these rules may include provisions calculated to prevent undue repetition in the oral
proceedings. 44
 Comment: Under the 1981 version of the Model State Administrative Procedure
Act, the Governor may summarily terminate any pending rulemaking proceeding by an
executive order to that effect, stating therein the reasons for the action. 45 An
administrative rules council advises the Governor in the execution of such authority. 46
Practice Aids: Notice–Proposed changes in regulations–Time and place for hearing

objections. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 61.
Footnotes
Administrative Procedure Act (1981) § 3-104(a).
Footnote 36. As to substantive or legislative rules, generally, see § 160.
As to substantive or legislative rules, see § 160.
Footnote 38. Model State Administrative Procedure Act (1981) § 3-104(b)(1).

§ 207 Consideration of comments
View Entire Section

Where an administrative agency seeks to promulgate a rule, it must consider the views of
interested persons. 47 Under a state administrative procedure act, the agency may have
the affirmative duty in a rulemaking hearing to inform itself to the fullest extent possible
of the interest and problems of those who seek to present evidence and argument. 48
The 1961 version of the Model Administrative Procedure Act requires that the agency
fully consider all written and oral submissions respecting the proposed rule. 49 Under
the 1981 version of the Act, before the adoption of a rule, an agency must consider the
written submissions and oral submissions or any memorandum summarizing oral
submissions. 50 Some state administrative procedure acts contain no harmless error
provision permitting an agency not to consider public comment even when the public
comment proves persuasive. 51 However, the agency can choose to reject any adverse
submissions and adopt the rule. 52
Footnotes
Footnote 47. Vega v National Union Fire Ins. Co., 67 Hawaii 148, 682 P2d 73.
Footnote 48. Balino v Department of Health & Rehabilitative Services (Fla App D1) 362
So 2d 21, cert den (Fla) 370 So 2d 458 and app dismd without op (Fla) 370 So 2d 462
(where petitioners, whose substantial interests were affected by a proposed rule
modification, requested an evidentiary hearing, it was error for the hearing officer to
deny such request without making inquiry as to the nature of the testimony sought to be
elicited or the substantial interest of the petitioners which might require such a hearing,
and the fact that the petitioners' counsel was present did not eliminate the need for a more
thorough proceeding).
Footnote 51. Mahoney v Shinpoch, 107 Wash 2d 679, 732 P2d 510.
Footnote 52. Aurora v Public Utilities Com. (Colo) 785 P2d 1280.

§ 208 Sources of information other than comments after notice
View Entire Section

The 1981 version of the Model State Administrative Procedure Act states that, in addition
to seeking information by other methods, an agency, before publication of a notice of a
proposed rule adoption, may solicit comments from the public on a subject matter of
possible rulemaking under active consideration within the agency by causing notice to be
published of the subject matter and indication where, when, and how persons may
comment. 53 The Act also states that a committee for comment may be appointed prior
to notice of a proposed rule adoption. 54
Footnotes
Footnote 53. Model State Administrative Procedure Act § 3-101(a).
Footnote 54. Model State Administrative Procedure Act § 3-101(b).
4. Basis of Agency Decision; Requirements for Adoption [209-216]
§ 209 Adoption of rule
View Entire Section

Under the 1981 version of the Model State Administrative Procedure Act, an agency
must adopt a rule pursuant to the rulemaking proceeding or terminate the proceeding by
publication of a notice to that effect within a certain number of days after the later of the
publication of the notice of proposed rule adoption, or the end of oral proceedings
thereon. 55 An agency may not adopt a rule until the period for making written
submissions and oral presentations has expired. 56
In adopting a rule, an agency is not limited to the agency record as a basis for making
policy decisions. 57 It may rely on its experience, its expertise, and any facts known to
it from whatever source they are drawn. 58 The 1981 version of the Model
Administrative Procedure Act specifically states that, within the scope of its delegated
authority, an agency may use its own experience, technical competence, specialized
knowledge, and judgment in the adoption of a rule. 59
Footnotes

As to publication of notice, see § 200.
As to oral proceedings on rules, see § 216.
Footnote 57. State v Hebert (Alaska App) 743 P2d 392, affd (Alaska) 803 P2d 863.
As to comments upon which a decision may be based, see §§ 206 et seq.
Footnote 58. State v Hebert (Alaska App) 743 P2d 392, affd (Alaska) 803 P2d 863.
§ 210 Contents of adopted rule
View Entire Section

The 1981 version of the Model State Administrative Procedure Act states that each rule
adopted by an agency must contain the text of the rule, the date the agency adopted the
rule, a concise statement of the purpose of the rule, a reference to other rules affected by
the rule, a reference to the authority authorizing the rule, any findings required by law as
a prerequisite to the adoption or effectiveness of the rule. 60 An agency may incorporate
certain regulations or codes by reference. 61
Footnotes
§ 211 Evidence in support of rule
View Entire Section

In some states, when an agency exercises its rulemaking powers, it has no burden to
support its conclusions with a given quantum of evidence, 62 especially where an
administrative agency adopts a rule based on a policy judgment particularly within the
expertise of the agency, and not involving controverted questions of critical fact. 63

This is especially so in those proceedings in which the proposed rule involves a policy
judgment relating to the effective implementation of a statutory purpose, as distinguished
from the resolution of controverted questions of fact. 64 There is no requirement that an
agency make formal findings. 65 As long as a proposed rule involving a policy
judgment is made part of the record and there is a rational basis for the agency's action,
the agency can choose to adopt the proposed rule. 66 Consequently, a court will not
generally examine a record for substantial evidence in reviewing a declaratory judgment
on the validity of a rule. 67
Nevertheless, the 1961 version of the Model State Administrative Procedure Act provides
that, upon adoption of a rule, the agency, if requested to do so by an interested person
either prior to adoption or within a certain time thereafter, must issue a concise statement
of the principle reasons for and against its adoption, incorporating therein its reasons for
overruling the considerations urged against its adoption. 68 The 1981 version of the Act
goes further and says that the agency must issue a concise explanatory statement, and
only the reasons contained in the explanatory statement may be used by any party as
justifications for the adoption of the rule in any proceeding in which its validity is at
issue. 69
Footnotes
Footnote 62. Illinois State Chamber of Commerce v Pollution Control Bd. (2d Dist) 177
Ill App 3d 923, 127 Ill Dec 158, 532 NE2d 987.
Footnote 64. Regular Route Common Carrier Conference of Colorado Motor Carriers
Asso. v Public Utilities Com. (Colo) 761 P2d 737.
Footnote 65. Tenneco Oil Co. v New Mexico Water Quality Control Com. (App) 107
NM 469, 760 P2d 161, cert den 106 NM 714, 749 P2d 99.
Footnote 67. American Network, Inc. v Washington Utilities & Transp. Com., 113 Wash
2d 59, 776 P2d 950.
As to declaratory judgment on the validity of a rule, see § 232.
Footnote 68. Model State Administrative Procedure Act (1961) § 3(a).
§ 212 Public access to rule
View Entire Section

In the interest of fairness, an agency must give to the public notice of, and access to, rules
and regulations prior to an intent to enforce them. 70 According to the 1961 version of
the Model State Administrative Procedure Act, an agency must make available for public
inspection all rules and all other written statements of policy or interpretations
formulated, adopted, or used by the agency in the discharge of its function. 71 No
agency rule is valid or effective against any person or party, nor may be invoked by the
agency for any purpose, until it has been made available for public inspection, unless the
person or party has actual knowledge of it. 72
Under the 1981 version of the Model Act, each agency must make available for public
inspection and copying those portions of the administrative bulletin and administrative
code containing the rules adopted or used by the agency in the discharge of its functions,
and the index to those rules. 73 Certain types of rules excepted from general rulemaking
procedures 74 are subject to different requirements for public inspection. 75
Footnotes
Footnote 70. Everett v Baltimore Gas & Electric Co., 307 Md 286, 513 A2d 882.
Footnote 72. Model State Administrative Procedure Act (1961) § 2(b).
As to compilation of administrative code and bulletin, see § 213.
Footnote 75. Model State Administrative Procedure Act (1981) § 2-101(g).
§ 213 Filing of rule
View Entire Section

The 1961 version of the Model State Administrative Procedure Act states that each
agency must file in the office of an official, such as the Secretary of State, a certified
copy of each rule adopted by it, including all rules existing on the effective date of the
Act. 76 The official responsible will keep a permanent register of the rules open to
public inspection. 77
The 1981 version of the Model Act also requires an agency to file each rule it adopts, and
all rules existing on the effective date of the Act that have not previously been filed, in
the office of an official, such as the Secretary of State. 78 The filing must be done as
soon after adoption of the rule as is practicable. 79 At the time of filing, each rule
adopted after the effective date of the Act must have attached to it the explanatory
statement. 80 The official responsible will affix to each rule and statement a certificate
of the time and date of filing and keep a permanent register open to public inspection of
old filed rules and attached explanatory statements. 81
Some statutes state that a regulation is considered procedurally presumptively valid once
a certified copy has been filed. 82
Footnotes
As to explanatory statements, see § 211.
Footnote 82. Gilbert v State, Dept. of Fish & Game, Bd. of Fisheries (Alaska) 803 P2d
391.
As to presumption of validity, generally, see § 234.
§ 214 Compilation, publishing and indexing of effective rules
View Entire Section

According to the 1961 version of the Model State Administrative Procedure Act, an
official, such as the Secretary of State, must compile, index, and publish all effective
rules adopted by each agency. 83 Compilations must be supplemented and revised. 84
The official must publish a bulletin, as often as required by statute, setting forth the text
of all rules filed during the preceding time period excluding rules in effect upon adoption
of the Act. 85 However, the official may omit from the bulletin or compilation any rule
the publication of which would be unduly cumbersome, expensive, or otherwise
inexpedient, if the rule in printed or processed form is made available on application to
the adopting agency, and if the bulletin or compilation contains a notice stating the
general subject matter of the omitted rule and stating how a copy thereof may be
obtained. 86 Bulletins and compilations must be made available upon request to state
agencies and officials free of charge and to other persons at prices fixed to cover mailing
and publication costs. 87
The 1981 version of the Model Act has similar requirements. The Governor appoints an
individual to act as an "administrative rules editor." 88 The administrative rules editor
causes the administrative bulletin to be published in pamphlet form as often as the state
requires. 89 The administrative rules editor also complies, indexes by subject, and
causes the administrative code to be published, and is responsible for supplements to it
also. 90 The administrative rules editor may omit from the administrative bulletin or
code any proposed or filed adopted rule the publication of which would be unduly
cumbersome, expensive, or otherwise inexpedient, if: (1) knowledge of the rule is likely
to be important to only a small class of persons; (2) on application to the issuing agency,
the proposed or adopted rule in printed or processed form is made available at no more
than its cost of reproduction; and (3) the administrative bulletin or code contains a notice
stating in detail the specific subject matter of the omitted proposed or adopted rule and
how a copy of the omitted material may be obtained. 91 The administrative bulletin and
administrative code must be furnished to the designated officials without charge and to
all subscribers at cost. 92 Different rules apply for the indexing and compilation of some
rules generally exempt under the 1981 version of the Act. 93
Footnotes
Footnote 86. Model State Administrative Procedure Act (1961) § 5(c).
Footnote 87. Model State Administrative Procedure Act (1961) § 5(d).
As to rules exempt under the 1981 version of the Act, see § 220.
§ 215 Effective date

View Entire Section
An administrative rule is operative from its effective date. 94 The 1961 version of the
Model State Administrative Procedure Act states that each rule adopted after the Act is
effective a specified number of days after filing, except that: (1) if a later date is required
by statute or specified in the rule, the later date is the effective date; (2) special rules
apply to emergency rules and regulations. 95
The 1981 version of the Model Act states that, except as otherwise provided, each rule
adopted after the effective date of the Act becomes effective a certain number of days
after the later of: (1) its filing; or (2) its publication and indexing in the administrative
bulletin. 96 A rule becomes effective on a later date if a later date is required by
another statute or specified in the rule. 97 In addition, a rule may become effective
immediately upon its filing, or on any subsequent date earlier than would generally be the
case, if the agency establishes such an effective date and finds that: (1) it is required by
constitution, statute, or court orders; (2) the rule only confers a benefit or removes a
restriction on the public or some segment thereof; (3) the rule only delays the effective
date of a rule that is not effective; or (5) the earlier effective date of a rule that is not
effective; or (6) the earlier effective date is necessary because of imminent peril to the
public heath, safety, or welfare. 98 Where the rule becomes effective earlier than usual,
or upon filing, the finding and a brief statement of the reasons for the action must be
made a part of the rule. 99 The burden is on the agency in such a case to justify its
finding. 1 In addition, if a rule is made effective before publishing and indexing, the
agency must make a reasonable effort to make it known to persons who may be affected
by it. 2
The 1981 version of the Model Act states that it does not relieve an agency from
compliance with any other provision of law requiring that some or all of its rules be
adopted by other designated officials or bodies before they become effective. 3
Footnotes
Footnote 94. Jordan v Department of Professional Regulation (Fla App D1) 522 So 2d
450, 13 FLW 684.
Where rules were not on file with the Secretary of State at the time prisoners were
charged with the violation of inmate rules, the rules were ineffective, and the findings of
guilt had to be annulled. Davidson v Smith, 69 NY2d 677, 512 NYS2d 13, 504 NE2d
380.
As to emergency rules, see § 218.
As to filing of administrative rules, see § 213.

As to publication and indexing in the administrative bulletin, see § 214.
§ 216 Rulemaking records
View Entire Section

Under the 1981 version of the Model State Administrative Procedure Act, an agency
must maintain a rulemaking record, available for public inspection, for adopted and
proposed rules. 4 The agency rulemaking record must contain information about the
rule, and its adoption, including: (1) copies of all publications in the administrative
bulletin with respect to the rule or proceeding upon which the rule is based; (2) copies of
any portions of the agency's public rulemaking docket containing entries relating to the
rule or the proceeding upon which the rule was based; 5 all written petitions, requests,
submissions, and comments received by the agency and all other written materials
considered by the agency in connection with the formulation, proposal, or adoption of the
rule or the proceeding upon which the rule is based; (3) any official transcript of oral
presentations made in the proceeding upon which the rule is based or, if not transcribed
any tape recording or stenographic record of those presentations, and any memorandum
prepared by a presiding official summarizing the contents of those presentations; (4) a
copy of any regulatory analysis prepared for the proceeding upon which the rule is based;
6 (5) a copy of the filed rule and explanatory statement; (6) all petitions or exceptions
to, amendments of, or repeal or suspension of, the rule; (7) a copy of any filed request; 7
(8) a copy of any objection to the rule filed by the administrative rules review committee
8 and the agency's response; and (9) a copy of any filed executive order with respect to
the rule. 9
Footnotes
Footnote 5. As to rulemaking dockets, see § 205.
Footnote 6. As to regulatory analysis, see § 204.

Footnote 7. Pursuant to Model State Administrative Procedure Act (1981) § 3-108(c).
Footnote 8. Pursuant to Model State Administrative Procedure Act (1981) § 3-204(d).
5. Exceptions to Rulemaking Requirements [217-220]
§ 217 "Good cause" exception where notice is impracticable, unnecessary, or

contrary to public interest
View Entire Section

The 1981 version of the Model State Administrative Procedure Act, unlike the 1961
version, has an exemption from the rulemaking requirements for good cause. 10 The
1981 version of the Act excuses noncompliance with the procedural requirements for
rulemaking where they are unnecessary, impracticable, or contrary to the public interest.
11 Under the 1981 version, the finding of good cause must be incorporated into the
rules as issued, along with a brief statement of reasons supporting the finding. 12 The
burden is on the agency to demonstrate that any omitted requirements were
impracticable, unnecessary, or contrary to the public interest in the particular
circumstances involved. 13
When the good cause exception has been used in the adoption of a rule, the Act provides
that within a certain time period, someone designated by statute, such as the governor or
the administrative rules review committee, may file a request with the Secretary of State
for the administrative agency to hold a rulemaking proceeding. 14 The Secretary of
State must forward a certified copy of the request to the agency and others as required by
statute, and notice of the filing must be published. 15 The rule will cease to be effective
a certain number of days after the filing. 16 However, an agency may subsequently
adopt an identical rule. 17
Footnotes
As to exception applicable for emergencies under the 1961 version of the Model State

§ 218 Emergency rules
View Entire Section

Go to Supplement
The 1961 version of the Model State Administrative Procedure Act contains an exception
to the usual rulemaking procedures in the case of an emergency. 18 This version of the
Act states that if an agency finds that an eminent peril to the public health, safety, or
welfare requires adoption of a rule upon fewer days notice than is normally required, and
states in writing its reasons for that finding, it may proceed without prior notice or
hearing or upon any abbreviated notice and hearing that it finds practicable, to adopt an
emergency rule. 19 The emergency rule must be fair and necessary, and the agency
must publish the facts and reasons for finding an immediate danger to the public health,
safety, or welfare, and its reasons for concluding that the procedure used is fair under the
circumstances. 20
Subject to the applicable constitutional or statutory provisions, an emergency rule

becomes effective immediately upon filing, or at a stated date less than a certain number
of days thereafter, if the agency finds that this effective date is necessary because of
eminent peril to the public health, safety or welfare. 21 The agency's finding and a brief
statement of the reasons therefor must be filed with the rule. 22 The reason should be
truly emergent and persuasive to a reviewing court, and considerations of administrative
and fiscal convenience alone do not satisfy that standard. 23 The agency must take
appropriate measures to make emergency rules known to the persons who may be
affected by them. 24 The rule is only effective for a certain number of days, and may be
renewed once for a period not exceeding the number of days prescribed by statute. 25
However, the adoption of an identical rule under the usual rulemaking procedures is not
precluded. 26 Agencies may not adopt emergency rules to eliminate an administrative
need that does not threaten the public interest, safety, or welfare. 27
The existence of an emergency is primarily a matter of agency discretion. 28 An

agency's finding of an emergency is generally given every presumption in its favor and is
not subject to question unless palpably wrong. 29 However, courts are not conclusively
bound by an agency's determination that an emergency exists. 30
§ 218 ----Emergency rules [SUPPLEMENT]
Practice Aids: Finding of emergency–Adoption of regulation or order of repeal. 1A

Am Jur Pl & Pr Forms (Rev), Administrative Law, § 60.
Footnotes
As to the good cause exception under the 1981 version of the Model State Administrative
Procedure Act, see § 217.
Forms: Finding of emergency–Adoption of regulation or order of repeal. 1A Am Jur

Pl & Pr Forms (Rev), Administrative Law, Form 37.
Footnote 20. Little v Coler (Fla App D1) 557 So 2d 157, 15 FLW D 446.
As to effective date of rules, generally, see § 215.
Forms: Certificate–Asserting statutory compliance prior to adoption of emergency

regulation or order of repeal. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law,
Form 44.
Footnote 23. Mauzy v Gibbs, 44 Wash App 625, 723 P2d 458.
Forms: Notice–Emergency adoption, amendment, or repeal of regulations. 1A Am Jur

Footnote 27. Citizens for a Better Environment v Pollution Control Bd. (Ill App 1st Dist)
152 Ill App 3d 105, 105 Ill Dec 297, 504 NE2d 166.
Footnote 29. Massachusetts Auto Body Assn. v Commissioner of Ins., 409 Mass 770,
570 NE2d 147.

§ 219 Interpretive rules
View Entire Section

As under federal law, 31 some states also have an exemption from rulemaking
requirements for interpretive rules, 32 and the 1981 version of the Model State
Administrative Procedure Act, while not using the term "interpretive rules," says that an
agency need not follow the provisions for rulemaking in the adoption of a rule that only
defines the meaning of a statute or other provision of law or precedent, if the agency does
not possess delegated authority to bind the courts to any extent with its definition. 33 A
rule adopted in such a manner must include a statement that it was so adopted, and there
must be an indication to that effect adjacent to the rule when it is published. 34 A
reviewing court may determine de novo the validity of such a rule. 35
Footnotes
381, 269 SE2d 547.
See Fair Winds Manor v Commonwealth, Dept. of Public Welfare, 517 Pa 106, 535 A2d
42, stating that an agency may formulate interpretations of general applicability without
publishing such opinions.
As to interpretive rules, generally, see § 161.
§ 220 Other state exemptions; procedural rules
View Entire Section

Although there is some state authority that an amendment of an agency procedure

constitutes the adoption of a rule and is subject to the requirements for promulgation of a
rule, 36 other states exempt "rules of practice" that do not affect private rights or
procedures available to the public, 37 and say that agency protocols and procedures, like
agency manuals, do not have the force or effect of a statute or an administrative

regulation. 38 Some states allow agencies to make rules for the conduct of their own
procedures even without explicit statutory authorization. 39
The rulemaking provisions of the 1981 version of the Model State Administrative
Procedure Act do not apply to certain types of rules. Among the exceptions are rules
concerning internal management; certain guidelines for investigation; rules establishing
specific prices for goods or services of the agency; certain rules concerning prisons,
schools, or hospitals; rules concerning agency owned or maintained property; agency
budgets; forms whose substantive requirements are prescribed elsewhere; and opinions of
the attorney general. 40 Although indexing and compilation 41 and public inspection
42 requirements may apply, they are not the same as for non-exempt rules. 43
States also sometimes exempt certain types of rules from publication requirements, 44 or
notice and publication requirements for rulemaking. 45 For instance, in some states,
notice and publication requirements do not apply to a matter relating solely to agency
management, personnel practices, or to public property, loans or contracts. 46
Furthermore, in some jurisdictions, a rule concerning inmates of a correctional or
detention facility is not a rule subject to the procedures of the Act. 47 Rulemaking
involving program funding may also be exempt under certain limited circumstances. 48
Footnotes
App 3d 1040, 128 Ill Dec 654, 534 NE2d 1259.
As to requirements under state law for promulgation of rules, see §§ 198 et seq.
Footnote 37. Waugh v University of Hawaii, 63 Hawaii 117, 621 P2d 957 (rules
applicable to faculty claims for lost or damaged research materials were exempt from
rulemaking procedures because they affected only the staff and faculty of the university).
See Mentor v Kitsap County, 22 Wash App 285, 588 P2d 1226, stating that an agency
may relax or modify its procedural rules when justice so requires.
Footnote 38. Wanzer v District of Columbia (Dist Col App) 580 A2d 127, companion
case (Dist Col App) 580 A2d 140.
As to regulations having the effect of law, see § 235.
Footnote 39. Weyerhaeuser Co. v Miller, 306 Or 1, 760 P2d 1317.
Footnote 44. See, for example, Tai v Chang, 58 Hawaii 386, 570 P2d 563, stating that the
publication requirement does not apply to policy decisions governing the transfer of

prisoners from state to federal prison.
NE2d 1029.
NE2d 1029.
Footnote 47. Jensen v Little (ND) 459 NW2d 237.
But see Martin v Department of Corrections, 424 Mich 553, 384 NW2d 392, appeal after
remand 168 Mich App 647, 425 NW2d 205, app den 432 Mich 905, stating that a
regulation which affects only prison inmates is within the definition of "rule" as defined
by the state administrative procedure act, and, therefore, such regulations must be
properly promulgated as rules under the act.
As to correctional facilities, generally, see 60 Am Jur 2d, Penal and Correctional

Institutions §§ 1 et seq.
Footnote 48. Mahoney v Shinpoch, 107 Wash 2d 679, 732 P2d 510.
E. Amendment and Repeal of Rules; Petitions for Issuance, Amendment or Repeal

of Rules [221-224]
Research References
5 USCS § 553
Model State Administrative Procedure Act (1961) § 6; Model State Administrative
Procedure Act (1981) §§ 3-202, 3-117
ALR Digests: Administrative Law §§ 60, 61, 70
§ 221 Amendment and repeal, generally
View Entire Section

Go to Supplement
Some statutes expressly confer the power to amend and rescind rules and regulations. 49
Consequently, as regards future action, there is generally no fundamental objection to
modification, alteration, or rescission of rules and regulations by administrative agencies.
50 Some cases state that the power to make rules includes the power to alter them.
51 An agency may even prohibit a practice which in the past it has required. 52 It
may change a rule entirely or it may allow the rule to stand as a general rule and provide
exceptions to it. 53 It may also modify a regulation pending its administrative and
judicial review. 54
Nevertheless, agencies are not permitted unilaterally to repeal regulations dealing with
substantive rights by merely declaring that earlier regulations were mistaken, and failure
to provide notice and opportunity to comment is not justified even where the regulation
to be repealed was allegedly beyond agency's jurisdiction. 55 An administrative rule
may not under the guise of interpretation be modified, revised, amended, or rewritten. 56
The federal Administrative Procedure Act 57 requires agencies to afford notice of a
proposed rulemaking and an opportunity for comment prior to the amendment,
modification or repeal of a rule. 58 For the amendment or repeal of any rule, the 1961
version of the Model State Administrative Procedure Act, requires the same procedure as
for the adoption of a rule, 59 and the 1981 version of the Act defines "rule" to include
the amendment or repeal of a rule. 60 The states generally require rulemaking
proceedings in such cases. 61 In addition, the United States Supreme Court has said that
an agency changing its course by rescinding a rule must supply a reasoned analysis for
the change beyond that which may be required when an agency does not act in the first
instance. 62 An administrative agency may not be arbitrary or unreasonable in altering
its own rules. 63
It may be appropriate to withhold judicial action as to the constitutionality of

administrative procedures because of the adoption, pending appeal, of new regulations
governing the procedures, and to remand the case for administrative proceedings and to
retain jurisdiction for such further judicial proceedings, if any, as may be necessary upon
completion of the administrative proceedings. 64 A later regulation, however, will
not revoke an earlier one by implication, if there is nothing in the second one inconsistent
with the continuance of the first. 65
Some authority states that, in the absence of genuine necessity, administrative rules and
regulations should not be amended so as to effect a retroactive change. 66 There is other
authority, however, stating that revocation of an administrative regulation does not
preclude a criminal prosecution for a violation committed prior to such revocation, 67
issued pursuant to a statute which expresses a continuing policy that the regulation was
authorized to enforce. 68
 Comment: The 1981 version of the Model State Administrative Procedure Act states
that to the extent the agency itself would have authority, the governor may rescind all
or a severable portion of a rule of an agency. 69 In exercising this authority, the
governor will act by an executive order that is subject to the provisions of the Act
applicable to the adoption and effectiveness of a rule. 70
§ 221 ----Amendment and repeal, generally [SUPPLEMENT]
Practice Aids: Petition or application–Request that rulemaking authority be exercised.

1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 53.
Petition or application–For adoption of new and repeal of existing regulation. 1A Am Jur

Pl & Pr Forms (Rev), Administrative Law, § 229.
Case authorities:
Where controlling statute, which swept away obsolete regulations of Federal Energy

Regulatory Commission that had occupied more than 500 pages of fine print in CFR, left
Commission no authority to retain particular regulation, repeal of which may have had
material collateral importance, notice and comment under 5 USCS § 553 could not have
served purpose of hearing arguments for retention of regulation, nor does § 553 require
agency to delay formal removal of legally defunct regulations while it canvasses all
possible regulatory impacts; better procedure is to petition agency to open rulemaking to
amend existing regulations. Hadson Gas Sys. v FERC (1996, App DC) 75 F3d 680.
Footnotes
Footnote 49. 15 USCS § 79t (Public Utility Holding Company Act); 43 Penn Stats § 761
(Pennsylvania Unemployment Compensation Law).
Forms: Order–Adopting, amending, or repealing administrative regulations. 1A Am

Jur Pl & Pr Forms (Rev), Administrative Law, Forms 40, 41.
787 (Treasury Regulation); Arizona Grocery Co. v Atchison, T. & S. F. R. Co., 284 US
370, 76 L Ed 348, 52 S Ct 183 (rate order of Interstate Commerce Commission).
Footnote 51. State ex rel. Springfield v Public Service Com. (Mo App) 812 SW2d 827.
Ct 307.
Footnote 53. Railroad Com. v Shell Oil Co., 139 Tex 66, 161 SW2d 1022.
Ops 220.
Footnote 55. National Treasury Employees Union v Cornelius (DC Dist Col) 617 F Supp
365.
As to notice and comment proceedings, see §§ 165 et seq., , see §§ 198 et seq.
Footnote 56. Consumer Advocate Div. of Pub. Serv. Comm'n etc. v Public Serv.
Comm'n, 182 W Va 152, 386 SE2d 650.
LEXIS 10567.
As to procedure for adoption of rule, see §§ 198 et seq.

Footnote 61. See State v Hebert (Alaska App) 743 P2d 392, affd (Alaska) 803 P2d 863
(agency must consider all relevant matter presented to it before adopting, amending or
repealing a regulation); State v Rowley, 70 Hawaii 135, 764 P2d 1233 (administrative
procedure act demands advance notice of agency's plan to adopt, amend or repeal its
rules); CBS, Inc. v Comptroller of Treasury, 319 Md 687, 575 A2d 324 (when a rule
containing a policy of general application is changed, it must be changed through
rulemaking).
77 L Ed 2d 443, 103 S Ct 2856, 13 ELR 20672.
Footnote 63. Mayberry v University of Colorado Health Sciences Center (Colo App) 737
P2d 427.
Footnote 64. Richardson v Wright, 405 US 208, 31 L Ed 2d 151, 92 S Ct 788, reh den
405 US 1033, 31 L Ed 2d 490, 92 S Ct 1274 and reh den 405 US 1033, 31 L Ed 2d
490, 92 S Ct 1296.
Footnote 65. United States v Lane, 75 US 185, 8 Wall 185, 19 L Ed 445. See California
Drive-In Restaurant Asso. v Clark, 22 Cal 2d 287, 140 P2d 657, 7 CCH LC ¶ 61672, 147
ALR 1028.
Amendment of a regulation does not open to attack other, somewhat related regulations
that are not proposed to be changed. American Cyanamid Co. v State, Dept. of
Environmental Protection, 231 NJ Super 292, 555 A2d 684, certif den 117 NJ 89, 563
A2d 847.
Footnote 66. Holstein v North Chemical Co., 194 Ga App 546, 390 SE2d 910.
Footnote 67. O'Neal v United States (CA6 Tenn) 140 F2d 908, 151 ALR 1474, cert den
322 US 729, 88 L Ed 1565, 64 S Ct 945.
As to rules as the basis of a criminal charge, see § 238.
Footnote 68. United States v Hark, 320 US 531, 88 L Ed 290, 64 S Ct 359, reh den 321
US 802, 88 L Ed 1089, 64 S Ct 517.
§ 222 Federal petitions
View Entire Section

The federal Administrative Procedure Act provides that each agency must give interested
persons the right to petition for the issuance, amendment, or repeal of a rule. 71 Some
agencies have promulgated procedural rules for the presentation of such petitions. 72
Organizations representing the concerns of their members may also file rulemaking
petitions. 73
Public petitions for the institution of rulemaking may be proper if members of the public
believe that certain rules are required for the implementation of a statute, 74 if a
regulated entity believes that an agency is applying a general statement of policy as
though it were a substantive rule, 75 or if agency rules provide that this is the correct
procedure for requesting the amendment or revocation of a rule without the necessity of
reopening the rulemaking record. 76 However, an agency cannot excuse its
noncompliance with the rulemaking requirements of the Administrative Procedure Act by
stating that interested persons may petition to have the rule repealed. 77
 Caution: Under the federal Administrative Procedure Act, 78 a request that a rule
be repealed must first be addressed to the agency, and it is improper to bring a court
action to compel the rescission of the rule. 79 However, once an administrator has
acted on or denied the request, this action is reviewable, but if a particular method of
judicial review is specified in the regulatory statute, that method must be followed. 80
 Comment: It has been noted that a member of the public may petition for the
promulgation, amendment, or repeal of interpretative rules, procedural rules, and
general statements of policy, even though such rules are exempt from the notice and
comment requirements of the federal Administrative Procedure Act, but this procedure
is not available if a subject matter is entirely excluded from the rulemaking provisions
of the Administrative Procedure Act by 5 USCS § 553(a). 81
Footnotes
Law Reviews: Luneburg, W. V., Petitioning federal agencies for rulemaking: an

overview of administrative and judicial practice and some recommendations for
improvement, 1988 Wis LR 1-63 (1988).
Forms: Petitions for adoption, amendment, repeal, or reconsideration of rules. 1A

Federal Procedural Forms, L Ed, Administrative Procedure §§ 2:21-2:23.
Citizen petition–General form [21 CFR §§ 2.6(a), 2.7(b)]. 9 Federal Procedural

Forms, L Ed, Bankruptcy § 31:31.
Footnote 72. Laminators Safety Glass Asso. v Consumer Product Safety Com., 188 US
App DC 164, 578 F2d 406.
Footnote 73. Flint Ridge Dev. Co. v Scenic Rivers Assn., 426 US 776, 49 L Ed 2d 205,
96 S Ct 2430, 8 Envt Rep Cas 2137, 6 ELR 20528, reh den 429 US 875, 50 L Ed 2d
159, 97 S Ct 198, 97 S Ct 199.
Footnote 74. Flint Ridge Dev. Co. v Scenic Rivers Assn., 426 US 776, 49 L Ed 2d 205,
96 S Ct 2430, 8 Envt Rep Cas 2137, 6 ELR 20528, reh den 429 US 875, 50 L Ed 2d
159, 97 S Ct 198, 97 S Ct 199.
Footnote 75. Guardian Federal Sav. & Loan Asso. v Federal Sav. & Loan Ins. Corp., 191
US App DC 135, 589 F2d 658.
Footnote 76. Laminators Safety Glass Asso. v Consumer Product Safety Com., 188 US
App DC 164, 578 F2d 406.
Forms: Petition or application–Request that rulemaking authority be exercised. 1A

Petition–For adoption, amendment, or repeal of rule or regulation of federal agency.

Footnote 77. Wagner Electric Corp. v Volpe (CA3) 466 F2d 1013; Joseph v United
States Civil Service Com., 180 US App DC 281, 554 F2d 1140.
Footnote 79. Schuck v Butz, 163 US App DC 142, 500 F2d 810.
Footnote 80. Oljato Chapter of Navajo Tribe v Train, 169 US App DC 195, 515 F2d 654,
7 Envt Rep Cas 2190, 5 ELR 20481, 38 ALR Fed 558 (superseded by statute on other
grounds as stated in Environmental Defense Fund v Thomas (CA2 NY) 870 F2d 892, 29
Envt Rep Cas 1242, 19 ELR 20660).
Footnote 81. Knoch, Public Procedures for the Promulgation of Interpretative Rules and
General Statements of Policy, 64 Geo LJ 1047 (1976).
As to exemptions under the federal Administrative Procedure Act, see §§ 190 et seq.
§ 223 --Disposition of rulemaking petitions
View Entire Section

If a rulemaking petition appears in the proper form, a federal agency should accept it for
filing and consider it on the merits. 82 It may then decide to institute rulemaking
proceedings, 83 or it may decide, without instituting notice and comment proceedings,
that the relief requested cannot be granted, such as where the proposed rule might be
inconsistent with controlling statutes or treaties. 84 While an agency should be free to
fashion its own rules, procedures and to pursue methods of inquiry capable of permitting
it to discharge its multitudinous duties, an agency, at a minimum, must respond to the
petition and if it denies the request must set forth its reasons. 85 A denial of a
rulemaking petition is subject to the requirement of the federal Administrative Procedure
Act 86 that prompt notice be given of the denial, in whole or in part, of a written
application to an agency. 87 However, a failure by an agency to provide a notice of
denial becomes moot if the agency reverses its field and subsequently decides to
commence rulemaking proceedings. 88
An agency's denial of a request for new rulemaking will be upheld by a reviewing court
unless the agency's action was arbitrary or capricious, an abuse of discretion, or
otherwise not in accordance with the law. 89
 Observation: Given the Supreme Court's admonition that the reviewing courts must
refrain from creating administrative procedures not required by positive law, a
petitioner faces a formidable task in challenging on procedural grounds an agency's
decision on a rulemaking petition. 90
Footnotes
Footnote 82. National Organization for Reform of Marijuana Laws (NORML) v

Ingersoll, 162 US App DC 67, 497 F2d 654, appeal after remand 182 US App DC 114,
Footnote 83. As to federal rulemaking proceedings, generally, see §§ 165 et seq.; as to

adoption of a rule, see §§ 184 et seq.
Footnote 84. National Organization for Reform of Marijuana Laws (NORML) v

Ingersoll, 162 US App DC 67, 497 F2d 654, appeal after remand 182 US App DC 114,
Footnote 85. Wisconsin Electric Power Co. v Costle (CA7) 715 F2d 323, 19 Envt Rep
Cas 1774, 13 ELR 20803.
2258.
Footnote 88. Beltone Electronics Corp. v Federal Trade Com. (ND Ill) 402 F Supp 590,
1975-2 CCH Trade Cases ¶ 60566.
Footnote 89. General Motors Corp. v United States EPA (CA3) 738 F2d 97, 21 Envt Rep
Cas 1380, 14 ELR 20553.
Footnote 90. Wisconsin Electric Power Co. v Costle (CA7) 715 F2d 323, 19 Envt Rep
Cas 1774, 13 ELR 20803.

§ 224 State petitions
View Entire Section

Some state statutes provide for the promulgation, amendment or repeal of regulations
upon the petition of an interested person. The purpose of a statute which provides that an
interested person may petition an agency requesting the promulgation, amendment or
repeal of a rule, is to enable persons, on their own initiative, to induce a reasoned
consideration of the propriety of the issuance, amendment, or repeal of a rule by those
authorized to make and modify rules. 91
Under the 1981 version of the Model State Administrative Procedure Act, any person
may petition an agency requesting the adoption of the rule. 92 Each agency may
prescribe by rule the format of the petition and the procedure for its submission,
consideration, and disposition. 93 Within a certain time after submission of a petition,
the agency will either deny the petition in writing, stating its reasons therefore, initiate
rulemaking proceedings, or if otherwise lawful, adopt a rule. 94
The 1961 version of the Model Act provides that an interested person may petition an
agency requesting the promulgation, amendment, or repeal of a rule. 95 Each agency
must prescribe by rule the form for petitions and the procedure for their submission,
consideration, and disposition. 96 Within a certain time after submission of a petition,
the agency either must deny the petition in writing, stating its reasons for the denials, or
initiate rulemaking proceedings. 97
Agency rules may require that the petition show the text of the proposed rule, or its
change, and set forth the reason in support of the petition. 98 If a rule is adopted after
hearings and a petition for alteration of such rule does not set forth reasons, sufficient if
true, to justify a change or waiver of the rule, the agency is not required to waste time on
such application by granting a full hearing. 99
Footnotes
Footnote 91. Community Action Research Group v Iowa State Commerce Com. (Iowa)
275 NW2d 217.

S Ct 763, 1 Media L R 1983.
S Ct 763, 1 Media L R 1983, stating that if any applicant is aggrieved by the refusal the
way is open for judicial review.
As to hearings for adoption of a rule, see §§ 206 et seq.
F. General Requirements of Rules; Validity [225-234]
Research References
Model State Administrative Procedure Act (1961) § 7
§ 225 Generally
View Entire Section

Go to Supplement
The validity of a rule or regulation depends upon whether the administrative agency was
empowered to adopt the particular rule, 1 that is, whether the rule was within the
agency's statutory authority. 2 It must be within the matter covered by the enabling
statute, and comply with the underlying legislative intent. 3 Regulations made by an
agency that exceed its statutory authority are invalid or void. 4 An agency may not
go beyond declared statutory policy. 5
 Comment: In determining whether a rule is within the statutory authority of the

agency, the court may apply the "rational agency" test. 6 A rule is within the agency's
authority if a rational agency could conclude that the rule is within the statutory
mandate. 7
If a regulation conflicts with a case law interpretation of a statute, little weight is afforded
the regulation. 8 However, before a rule or regulation may be declared void it must be
definitely in excess of the scope of authority, 9 or plainly and palpably inconsistent with
law. 10
If the agency is empowered to adopt the rule, validity further depends on whether the rule
is reasonable, 11 and reasonably 12 necessary 13 or appropriate 14 to effectuate the
purpose of the statute. To find that an agency rule is reasonably related to a legitimate
governmental objective, there must be facts of record that demonstrate a reasonable basis
for the agency's rule. 15 In addition, the standard laid down by administrative rule must
afford a fair degree of predictability and intelligibility of decision. 16 However, the mere
fact that application of a rule may yield a harsh or undesirable result in a particular case
does not make the rule invalid. 17 Rules and regulations will generally be upheld where
they are within the statutory authority of the agency and reasonable, 18 and there has
been no abuse of discretion on the part of the agency. 19
A regulation is invalid if the statute under which it is issued is invalid, 20 and

administrative regulations that go beyond what the legislature can authorize are void and
may be disregarded. 21 In addition, when the statute creating the agency and
giving it rulemaking power expires, the rules become null and void. 22 However, a rule
is not invalid simply because it may work a hardship, create inconveniences or because
an evil intended to be regulated does not exist in a particular case; 23 and, in the absence
of weighty countervailing circumstances, facial invalidation of a regulation is generally
improvident. 24
 Observation: An act of an administrative agency which is legislative in character

and has the force of a statute is subject to the same tests as to its validity as an act of
the legislature 25 intended to accomplish the same purpose. 26 In addition, some
courts say that an interpretative rule will be upheld as long as the agency's action was
not arbitrary, capricious, or an abuse of discretion, and that the standard of review
should be highly deferential, requiring approval of the agency's action if a rational
basis exists for the agency's decision. 27
Case authorities:
It is proper for the Secretary of Health and Human Services to issue a guideline or
interpretive rule in determining that for purposes of reimbursement to Medicare
providers, defeasance losses–accounting losses from refinancing of debts incurred for
capital expenditures– should be amortized rather than being fully reimbursable in the
year of the refinancing, because (1) the interpretive guideline issued by the Secretary is
the means to insure that capital-related costs allowable under the Medicare regulations
are reimbursed in a manner consistent with the mandate, under 42 USCS §
1395x(v)(1)(A)(i), that the program bear neither more nor less than its fair share of costs;
(2) proper reimbursement requires proper timing, where (a) reimbursement in 1 year of
costs attributable to a span of years would be determined by the provider's Medicare
utilization for that 1 year and would lead to distortion, and (b) with respect to full
reimbursement in 1 year, if the provider's utilization rate changed or the provider dropped
from the program, the Secretary would have reimbursed up front an amount other than
that attributable to Medicare services, which would result in the cross-
subsidization–reimbursement of an amount other than that attributable to
Medicare–which § 1395x(v)(1)(A)(i) forbids; (3) the guideline (a) implements the
statutory ban on cross- subsidization in a reasonable way, and (b) as an application of the
statutory ban on cross-subsidization and the requirement, under 42 CFR § 413.9, that
only the actual cost of services rendered to beneficiaries during a given year be
reimbursed, is a prototypical example of an interpretive rule issued by an agency to
advise the public of the agency's construction of the statutes and rules which the agency
administers. (O'Connor, Scalia, Souter, and Thomas, JJ., dissented from this holding.)
Shalala v Guernsey Memorial Hosp. (1995, US) 46 Soc Sec Rep Serv 640, 131 L Ed 2d
106, 115 S Ct 1232, 95 CDOS 1666, remanded, without op sub nom Guernsey Memorial

Hosp. v Secretary of Health & Human Servs. (CA6) 52 F3d 325, reported in full (CA6)
The fact that the regulations of the Secretary of Health and Human Service do not resolve
a specific timing question before the United States Supreme Court–whether the Medicare
reimbursement to which a hospital is entitled for a defeasance loss from issuing new
bonds to replace old bonds that were issued to fund capital improvements must be
amortized over the life of the old bonds rather than being fully reimbursed in the year of
the refinancing–in a conclusive way, or could use a more exact mode of calculating, does
not render the regulations invalid, for (1) the methods for the estimation of a Medicare
provider's reasonable costs required by 42 USCS § 1395x(v)(1)(A) need be only
generalizations that necessarily will fail to yield exact numbers, and (2) the
Administrative Procedure Act (5 USCS §§ 551 et seq.) does not require that all the
specific applications of a rule evolve by further, more precise rules rather than by
adjudication. Shalala v Guernsey Memorial Hosp. (1995, US) 46 Soc Sec Rep Serv 640,
131 L Ed 2d 106, 115 S Ct 1232, 95 CDOS 1666, remanded, without op sub nom
Guernsey Memorial Hosp. v Secretary of Health & Human Servs. (CA6) 52 F3d 325,
reported in full (CA6) 1995 US App LEXIS 9094.
Footnotes
Footnote 1. Whitcomb Hotel, Inc. v California Employment Com., 24 Cal 2d 753, 151
P2d 233, 155 ALR 405; Iowa Power & Light Co. v Iowa State Commerce Com. (Iowa)
410 NW2d 236.
Footnote 2. Curtis v Canyon Highway Dist. No. 4, 122 Idaho 73, 831 P2d 541 (a rule
must be adopted pursuant to statutory authority to be valid); Peck v University Residence
Committee, 248 Kan 450, 807 P2d 652.
Administrative regulations must be drafted to comply with statutory grants of power. Re

Trulove, 54 NC App 218, 282 SE2d 544, petition den 304 NC 727, 288 SE2d 808.
Footnote 3. Cevigney v Economy Fire & Casualty Co., 185 Mich App 256, 460 NW2d
294, app den 437 Mich 1027.
Regulations will not be struck down unless compelling reasons are present sufficient to
show that the scheme is in conflict with the intent and purpose of the legislation.
American Network, Inc. v Washington Utilities & Transp. Com., 113 Wash 2d 59, 776
P2d 950.
Footnote 4. Utah Power & Light Co. v United States, 243 US 389, 61 L Ed 791, 37 S
Ct 387 (not followed on other grounds by Rogers v Tennessee Valley Authority (CA6
Ky) 692 F2d 35) and (ovrld on other grounds by Montana v Kennedy, 366 US 308, 6 L
Ed 2d 313, 81 S Ct 1336) as stated in Woodstock/Kenosha Health Center v Schweiker
(CA7 Wis) 713 F2d 285; Powers v State, Public Employees' Retirement Bd. (Alaska) 757
P2d 65; Stop H-3 Asso. v State Dept. of Transp., 68 Hawaii 154, 706 P2d 446; Curtis v
Canyon Highway Dist. No. 4, 122 Idaho 73, 831 P2d 541 (regulation cannot exceed
authority granted by the legislature); Pumice Products, Inc. v Robison, 79 Idaho 144, 312
P2d 1026, 40 BNA LRRM 2311; Annear v State (Iowa) 454 NW2d 869, 1 AD Cas 1582,
58 BNA FEP Cas 345, 54 CCH EPD ¶ 40099 (agency action in promulgating a rule may

not exceed its statutory authority); State v Pierce, 246 Kan 183, 787 P2d 1189 (rules that
go beyond the authority authorized are void); Revenue Cabinet v Joy Technologies, Inc.
(Ky App) 838 SW2d 406; West Plains Electric Coop., Inc. v Petroleum Tank Release
Compensation Fund (ND) 489 NW2d 337 (a regulation that goes beyond what the
legislature has authorized is void); Medical Properties, Inc. v North Dakota Board of
Pharmacy (ND) 80 NW2d 87 (this is a basic rule of administrative law); State ex rel.
West v Seattle, 50 Wash 2d 94, 309 P2d 751; Liberty Homes, Inc. v Department of
Industry, Labor & Human Relations, 136 Wis 2d 368, 401 NW2d 805.
An administrative rule that does not comport with the intent of the enabling legislation
may be abrogated as an act in excess of the agency's authority. Lenning v Iowa Dept. of
Transp., Motor Vehicle Div. (Iowa) 368 NW2d 98.
As to inability of regulations to add to or change statute, see §§ 227, 228.
Footnote 5. Hills Dev. Co. v Bernards, 229 NJ Super 318, 551 A2d 547.
Footnote 6. Dunlap Care Center v Iowa Dept. of Social Services (Iowa) 353 NW2d 389.
Footnote 7. Dunlap Care Center v Iowa Dept. of Social Services (Iowa) 353 NW2d 389.
The court must study the record to determine whether the agency could reasonably have
concluded that the rule chosen would effectuate the governmental objective it sought to
implement. Liberty Homes, Inc. v Department of Industry, Labor & Human Relations,
136 Wis 2d 368, 401 NW2d 805.
Footnote 8. Johnson County Farm Bureau Coop. Assn. v Indiana Dept. of State Revenue
(Ind Tax) 568 NE2d 578, affd, adopted (Ind) 585 NE2d 1336.
Footnote 9. California Employment Com. v Butte County Rice Growers Ass'n (Cal) 146
P2d 908, subsequent op on reh 25 Cal 2d 624, 154 P2d 892.
Footnote 10. See Flemming v Florida Citrus Exchange, 358 US 153, 3 L Ed 2d 188, 79
S Ct 160, reh den 358 US 948, 3 L Ed 2d 353, 79 S Ct 349; W. S. Dickey Clay Mfg.
Co. v Ferguson Invest. Co. (Okla) 388 P2d 300.
Footnote 11. Outdoor Sys., Inc. v Mesa, 169 Ariz 301, 819 P2d 44, 97 Ariz Adv Rep 11,
remanded (CA9 Ariz) 997 F2d 604, 93 CDOS 4971, 93 Daily Journal DAR 8426;
ALR 405; Fairfield Communities v Florida Land & Water Adjudicatory Com. (Fla App
D1) 522 So 2d 1012, 13 FLW 817 (to be valid, rule may not be arbitrary and capricious);
State v Pierce, 246 Kan 183, 787 P2d 1189; Sullivan v Board of License Comrs., 293 Md
113, 442 A2d 558; Cevigney v Economy Fire & Casualty Co., 185 Mich App 256, 460
NW2d 294, app den 437 Mich 1027 (to be valid, rule may not be arbitrary and
capricious); Ney v State Workmen's Compensation Comm'r, 171 W Va 13, 297 SE2d
212.
As to reasonableness of rules, generally, see § 230.
Footnote 12. Trustees for Alaska v State, Dep't of Natural Resources (Alaska) 795 P2d
805, 111 OGR 164, appeal after remand, remanded (Alaska) 847 P2d 1061, op
withdrawn, reh den, in part, mod, on reh (Alaska) 1993 Alas LEXIS 34 and substituted
op (Alaska) 851 P2d 1340, 37 Envt Rep Cas 1225.
Footnote 13. Bick v State Dept. of Justice, Div. of Motor Vehicles, 224 Mont 455, 730
P2d 418.
Footnote 14. Fairfield Communities v Florida Land & Water Adjudicatory Com. (Fla
App D1) 522 So 2d 1012, 13 FLW 817; Idaho County Nursing Home v Idaho Dept. of
Health & Welfare, 120 Idaho 933, 821 P2d 988, appeal after remand 124 Idaho 116, 856
P2d 1283 (regulation will be upheld if reasonably directed to accomplishment of purpose
of statute under which it is established); Michels v Department of Social & Rehabilitation
Services, 187 Mont 173, 609 P2d 271 (regulations must effectively effectuate the purpose
of the statute).
Substantive due process requires that a rule be rationally related to the objective sought
to be achieved. Mammenga v State Dept. of Human Services (Minn) 442 NW2d 786.
Footnote 15. Liberty Homes, Inc. v Department of Industry, Labor & Human Relations,
136 Wis 2d 368, 401 NW2d 805.
Footnote 16. Blue Cross of Northwest Ohio v Supt. of Ins. (Franklin Co) 40 Ohio App 2d
285, 69 Ohio Ops 2d 266, 319 NE2d 212.
Footnote 17. Mammenga v State Dept. of Human Services (Minn) 442 NW2d 786.
As to invalidity in the application of a rule, see § 226.
Footnote 18. Burge v Commissioner (CA4) 253 F2d 765, 58-1 USTC ¶ 9379, 1 AFTR 2d
1214, 74 ALR2d 664; Connolly v O'Malley (1st Dept) 17 App Div 2d 411, 234 NYS2d
889, 46 CCH LC ¶ 50645; Burkitt v School Dist., 195 Or 471, 246 P2d 566;
Commonwealth v Anheuser-Busch, Inc., 181 Va 678, 26 SE2d 94. See Home Mortg.
Bank v Ryan (CA10 Utah) 986 F2d 372, stating that regulations will be upheld unless
arbitrary and capricious or manifestly contrary to statute.
Courts will not disturb regulations unless they are so lacking in reason that they are
essentially arbitrary. Molina v Games Management Services, 58 NY2d 523, 462 NYS2d
615, 449 NE2d 395, 40 ALR4th 655.
Courts will uphold agency regulations that are consistent with the legislative scheme.
Asarco, Inc. v Puget Sound Air Pollution Control Agency, 112 Wash 2d 314, 771 P2d
335, 74 ALR4th 557.
As to reasonableness requirement, generally, see § 230.
Footnote 19. Tenneco Oil Co. v New Mexico Water Quality Control Com. (App) 107
NM 469, 760 P2d 161, cert den 106 NM 714, 749 P2d 99.
Footnote 20. Payne v Griffin (DC Ga) 51 F Supp 588.
Mere publication cannot resurrect rules adopted under an expired statute. Hija Lee Yu v
District of Columbia Rental Housing Com. (Dist Col App) 505 A2d 1310.
(CA7 Wis) 713 F2d 285; People ex rel. Chicago Bar Ass'n v Goodman, 366 Ill 346, 8
NE2d 941, 11 ALR 1, cert den 302 US 728, 82 L Ed 562, 58 S Ct 49, reh den 302 US
777, 82 L Ed 601, 58 S Ct 138.
Footnote 22. Hija Lee Yu v District of Columbia Rental Housing Com. (Dist Col App)
505 A2d 1310.
Footnote 23. Department of Human Services v Berry, 297 Ark 607, 764 SW2d 437.
Footnote 24. Bombero v Planning & Zoning Com., 218 Conn 737, 591 A2d 390.
Footnote 25. Tahoe-Sierra Preservation Council v State Water Resources Control Bd.
(3rd Dist) 210 Cal App 3d 1421, 259 Cal Rptr 132, review den.
Regulations and statutes are void for overbreadth if their object is achieved by means
which sweep unnecessarily broadly, and thereby invade the area of protected freedoms.
Kirby v Mobile County Com. (Ala App) 564 So 2d 447.
As to overbreadth of legislation, generally, see 16A Am Jur 2d, Constitutional Law §

460.
705; Mazza v Cavicchia, 15 NJ 498, 105 A2d 545 (superseded by statute on other
grounds as stated in New Jersey Civil Service Asso. v State, 88 NJ 605, 443 A2d 1070)
(rule held to establish reasonable presumption); Burkitt v School Dist., 195 Or 471, 246
P2d 566 (adequate standard for delegation by school district to superintendent).
§ 226 Invalidity in application
View Entire Section

To say a rule is "invalid as applied" means that the rule is invalid if, as employed, it is
unreasonable in a due process sense, that is, that the rule is not rationally related to the
legislative ends sought to be achieved. 28 Application of an otherwise valid regulation
in such a way as to achieve a statutorily impermissible end cannot be sanctioned by
allowing the administrative body's action to stand. 29 The proper setting for testing the
application of a rule that is valid on its face is in a contested case. 30

Footnotes
Footnote 28. Mammenga v State Dept. of Human Services (Minn) 442 NW2d 786.
Footnote 29. Stop H-3 Asso. v State Dept. of Transp., 68 Hawaii 154, 706 P2d 446.
Footnote 30. Oregon Bankers Assn. v State, 102 Or App 539, 796 P2d 366, 55 CCH EPD
¶ 40510.
As to contested cases, generally, see §§ 261 et seq.
§ 227 Consistency of rule with statutes or constitution
View Entire Section

Administrative rules must conform to the laws enacted by the legislature. 31 There is
authority that a regulation may not enlarge, 32 restrict, 33 modify 34 or contravene an
existing statute, 35 even when broad rulemaking authority has been granted, 36 and
that administrative regulations in conflict with the constitution or statutes are generally
declared to be null or void. 37 When a conflict exists between a statute and a regulation,
the regulation must be set aside to the extent of the conflict. 38
A regulation, valid when promulgated, becomes invalid upon the enactment of a statute
in conflict with the regulation. 39 However, an administrative regulation will not be
considered as having been impliedly annulled by a subsequent act of the legislature
unless the two are irreconcilable, clearly repugnant, and so inconsistent that they cannot
have concurrent operation. 40 Moreover, implied repeal of a regulation by a statute is
disfavored, especially where the regulation has been approved by the legislative
regulation review committee. 41
If a regulation has been in existence for a substantial period of time and the legislature
has not sought to override the regulation, this fact, although not determinative, provides
persuasive evidence of the continued validity of the regulation. 42
Footnotes
Footnote 31. Ney v State Workmen's Compensation Comm'r, 171 W Va 13, 297 SE2d
212.
Agencies may not make rules and regulations that conflict with, or are contrary to, the
provisions of statute, particularly the statute it is administering or that created it.
Mississippi Public Service Com. v Mississippi Power & Light Co. (Miss) 593 So 2d 997.
So 2d 193, 16 FLW D 1468.

Footnote 33. Grant v Cuomo, 73 NY2d 820, 537 NYS2d 115, 534 NE2d 32.
Footnote 34. Cartwright v State Bd. of Accountancy (Colo App) 796 P2d 51; Department
of Natural Resources v Wingfield Dev. Co. (Fla App D1) 581 So 2d 193, 16 FLW D
1468; Michels v Department of Social & Rehabilitation Services, 187 Mont 173, 609 P2d
271.
Footnote 35. Cartwright v State Bd. of Accountancy (Colo App) 796 P2d 51; Department
of Natural Resources v Wingfield Dev. Co. (Fla App D1) 581 So 2d 193, 16 FLW D
1468; Dunlap Care Center v Iowa Dept. of Social Services (Iowa) 353 NW2d 389;
Natural Resources & Environmental Protection Cabinet v Pinnacle Coal Corp. (Ky) 729
SW2d 438, 25 Envt Rep Cas 1795; Beer Garden, Inc. v New York State Liquor
Authority, 79 NY2d 266, 582 NYS2d 65, 590 NE2d 1193; Hoover Universal, Inc. v
Limbach, 61 Ohio St 3d 563, 575 NE2d 811, reh den 62 Ohio St 3d 1434, 578 NE2d 826.
Footnote 36. Beer Garden, Inc. v New York State Liquor Authority, 79 NY2d 266, 582
NYS2d 65, 590 NE2d 1193.
App 2d 1, 39 Cal Rptr 192; Cartwright v State Bd. of Accountancy (Colo App) 796 P2d
51; Liberty Homes, Inc. v Department of Industry, Labor & Human Relations, 136 Wis
2d 368, 401 NW2d 805.
Footnote 38. Ex parte State Dept. of Human Resources (Ala) 548 So 2d 176; Idaho
County Nursing Home v Idaho Dept. of Health & Welfare, 120 Idaho 933, 821 P2d 988,
appeal after remand 124 Idaho 116, 856 P2d 1283; State Div. of Human Rights ex rel.
Valdemarsen v Genesee Hosp., 50 NY2d 113, 428 NYS2d 210, 405 NE2d 692, 23 CCH
EPD ¶ 31010; Debeck v Department of Natural Resources (App) 172 Wis 2d 382, 493
NW2d 234.
When a local board regulation is in conflict with a state statute, the local regulation is
subordinated. Berry v Peoples Broadcasting Corp. (Ind) 547 NE2d 231, 17 Media L R
Media L R 1526.
Footnote 39. Scofield v Lewis (CA5 Tex) 251 F2d 128, 58-1 USTC ¶ 9212, 1 AFTR 2d
702; Sherman v Higgins, 272 NY 286, 5 NE2d 822 (police department rule and
ordinance).
Footnote 40. California Drive-In Restaurant Asso. v Clark, 22 Cal 2d 287, 140 P2d 657,
7 CCH LC ¶ 61672, 147 ALR 1028.
Footnote 41. Dugas v Lumbermens Mut. Casualty Co., 217 Conn 631, 587 A2d 415.
Footnote 42. Dugas v Lumbermens Mut. Casualty Co., 217 Conn 631, 587 A2d 415.
§ 228 --Consistency with enabling statute or constitutional provision
View Entire Section

Go to Supplement
Administrative regulations must be consistent with the constitutional or statutory

authority by which they are authorized. 43 Administrative rules may not enlarge, alter
or restrict the provisions of the statute being administered. 44 Whatever force and effect
a rule or regulation has is derived entirely from the statute under which it is enacted, 45
so administrative regulations that are inconsistent or out of harmony with the statute 46
or that conflict with the statute, 47 for instance by extending 48 or restricting 49
the statute contrary to its meaning, or that modify or amend the statute 50 or enlarge 51
or impair its scope 52 are invalid or void, and courts not only may, but it is their
obligation to strike down such regulations. 53 To the extent that a regulation is not in
conformity with the statute and with controlling judicial interpretations of the statute, it
conflicts with the meaning of such statute and so is unauthorized. 54 Therefore, an
agency may not even engraft additional non-contradictory requirements on the statute
which were not contemplated by the legislature. 55 However, an agency may be allowed
to fill in the gaps in the statutory framework if necessary to effectuate the general
statutory scheme. 56 An agency may make supplementary rules for the complete
operation and enforcement of legislation, 57 so long as they are reasonably related to the
legislative purposes. 58
§ 228 --Consistency with enabling statute or constitutional provision

[SUPPLEMENT]
Case authorities:
ICC rules, which require any carrier that has ceased or is ceasing operations to file
representative claims with Commission, embody process by which Commission may
partially adjudicate motor carrier undercharge claims, and because Interstate Commerce
Act places original jurisdiction of those claims in courts, rules are in excess of
Commission's authority. White v United States (1993, CA3) 989 F2d 643.
Texas comptroller was without authority to promulgate rule contrary to plain language of
taxation statute and foreign corporation was liable for payment of franchise tax, where
the taxation statute required that foreign corporations actually doing business in Texas
were required to pay franchise tax, but the rule had incorrectly tied the definition of doing
business to that of transacting business in the Texas Corporation Act, so that franchise
taxes were not collected from foreign corporation that sold goods through independent
distributors to Texas consumers until the rule was amended, at which time foreign
corporation contended that the tax could not now be collected since it had not been
collected in the past, because the rule was contrary to the plain language of the statute.
Sharp v House of Lloyd, Inc. (1991, Tex) 815 SW2d 245.
Footnotes
Footnote 43. Ex parte State Dept. of Human Resources (Ala) 548 So 2d 176; Trustees for
Alaska v State, Dep't of Natural Resources (Alaska) 795 P2d 805, 111 OGR 164, appeal
after remand, remanded (Alaska) 847 P2d 1061, op withdrawn, reh den, in part, mod, on

reh (Alaska) 1993 Alas LEXIS 34 and substituted op (Alaska) 851 P2d 1340, 37 Envt
Rep Cas 1225; Hyatt Corp. v Honolulu Liquor Com., 69 Hawaii 238, 738 P2d 1205;
Insurance Comr. v Bankers Independent Ins. Co., 326 Md 617, 606 A2d 1072 (rules must
be consistent with the letter and the spirit of the statute under which the agency acts);
Vang v Commissioner of Public Safety (Minn App) 432 NW2d 203; Robotham v State,
241 Neb 379, 488 NW2d 533; Re Petition for Substantive Certification, 132 NJ 1, 622
A2d 1257; Emunim v Fallsburg, 78 NY2d 194, 573 NYS2d 43, 577 NE2d 34,
reconsideration den 78 NY2d 1008, 575 NYS2d 459, 580 NE2d 1062; Knox County ex
rel. Kessel v Knox County Personnel Bd. (Tenn App) 753 SW2d 357; Sanders Brine
Shrimp v Audit Div., Utah State Tax Com. (Utah) 846 P2d 1304, 205 Utah Adv Rep 18;
Ney v State Workmen's Compensation Comm'r, 171 W Va 13, 297 SE2d 212.
Footnote 44. Topliss v Planning Comm'n, 9 Hawaii App 377, 842 P2d 648.
Footnote 45. Metlakatla Indian Community v Egan, 369 US 45, 7 L Ed 2d 562, 82 S Ct

552; Hija Lee Yu v District of Columbia Rental Housing Com. (Dist Col App) 505 A2d
1310; Swaney v Peden Steel Co., 259 NC 531, 131 SE2d 601; Application of State Board
of Medical Examiners, 201 Okla 365, 206 P2d 211.
Footnote 46. United States v Larionoff, 431 US 864, 53 L Ed 2d 48, 97 S Ct 2150;

ALR 405; Berrios v Department of Public Welfare, 411 Mass 587, 583 NE2d 856,
remanded 414 Mass 1004, 608 NE2d 734; Casualty Reciprocal Exchange v Sutfin, 196
Okla 567, 166 P2d 434; Sanders Brine Shrimp v Audit Div., Utah State Tax Com. (Utah)
846 P2d 1304, 205 Utah Adv Rep 18.

Gunia v Cook County Sheriff's Merit Bd. (1st Dist) 211 Ill App 3d 761, 156 Ill Dec 177,
570 NE2d 653, app den 141 Ill 2d 540, 162 Ill Dec 487, 580 NE2d 113; Johnson County
Farm Bureau Coop. Assn. v Indiana Dept. of State Revenue (Ind Tax) 568 NE2d 578,
affd, adopted (Ind) 585 NE2d 1336 (agency may not make rules inconsistent with the
statute which it is administering); Morris v Commonwealth, 412 Mass 861, 593 NE2d
241; Michels v Department of Social & Rehabilitation Services, 187 Mont 173, 609 P2d
271.
Where a regulation conflicts with a statute, the statute which represents the true
legislative intent must prevail. Parmley v Missouri Dental Bd. (Mo) 719 SW2d 745.
Footnote 48. Roberts v Commissioner (CA9) 176 F2d 221, 49-2 USTC ¶ 9330, 38 AFTR
296, 10 ALR2d 186; Morrison-Knudsen Co. v State Tax Com., 242 Iowa 33, 44 NW2d
449, 41 ALR2d 523 (tax statute); Bick v State Dept. of Justice, Div. of Motor Vehicles,
224 Mont 455, 730 P2d 418 (rule must not engraft additional and contradictory
requirements on the statute).
Footnote 49. Helvering v Sabine Transp. Co., 318 US 306, 87 L Ed 773, 63 S Ct 569,
43-1 USTC ¶ 9317, 30 AFTR 393.
796, 793 P2d 2, reh den 1990 Cal LEXIS 4383; Booker Creek Preservation, Inc. v
Southwest Florida Water Management Dist. (Fla App D5) 534 So 2d 419, 13 FLW 2209,
review den (Fla) 542 So 2d 1334.

An administrative agency may not employ its rulemaking power to modify, alter or
enlarge provisions of a statute which it is charged with administering. State ex rel. Spire
v Stodola, 228 Neb 107, 421 NW2d 436.
Footnote 51. Peters v Hobby, 349 US 331, 99 L Ed 1129, 75 S Ct 790 (regulation

broader than executive order which authorized it); Teal v Felton, 53 US 284, 12 How
284, 13 L Ed 990; California Assn. of Psychology Providers v Rank, 51 Cal 3d 1, 270
Cal Rptr 796, 793 P2d 2, reh den 1990 Cal LEXIS 4383; Wilmington Country Club v
Delaware Liquor Com. (Super) 47 Del 352, 91 A2d 250; Indiana Dept. of State Revenue,
etc. v Colpaert Realty Corp., 231 Ind 463, 109 NE2d 415; Johnson County Farm Bureau
Coop. Assn. v Indiana Dept. of State Revenue (Ind Tax) 568 NE2d 578, affd, adopted
(Ind) 585 NE2d 1336; Morrison-Knudsen Co. v State Tax Com., 242 Iowa 33, 44 NW2d
449, 41 ALR2d 523; Peck v University Residence Committee, 248 Kan 450, 807 P2d
652 (rules that go beyond statutory authority are void); Union Light, Heat & Power Co. v
Public Service Com. (Ky) 271 SW2d 361; Commonwealth v Di Meglio, 385 Pa 119, 122
A2d 77, 56 ALR2d 1120; Chas. Uhden, Inc. v Greenough, 181 Wash 412, 43 P2d 983,
98 ALR 1181. See Massachusetts Municipal Wholesale Electric Co. v Massachusetts
Energy Facilities Siting Council, 411 Mass 183, 580 NE2d 1028.
An administrative agency's authority to promulgate regulations is limited to those

regulations that are consonant with the statutory framework and neither contrary to the
statute nor beyond its scope. Crowther v Nationwide Mut. Ins. Co. (Utah App) 762 P2d
1119, 93 Utah Adv Rep 22 (criticized on other grounds by Ferro v Utah Dept. of
Commerce, Div. of Occupational & Professional Licensing (Utah App) 828 P2d 507, 181
Utah Adv Rep 60).
796, 793 P2d 2, reh den 1990 Cal LEXIS 4383; Johnson County Farm Bureau Coop.
Assn. v Indiana Dept. of State Revenue (Ind Tax) 568 NE2d 578, affd, adopted (Ind) 585
NE2d 1336.
796, 793 P2d 2, reh den 1990 Cal LEXIS 4383.
An agency cannot create rules, through its own interstitial declaration, that were not
contemplated or authorized by the legislature and thus, in effect, empowered themselves
to rewrite or add substantially to the administrative charter itself. Tze Chun Liao v New
York State Banking Dept., 74 NY2d 505, 549 NYS2d 373, 548 NE2d 911.
Footnote 54. Trust of Bingham v Commissioner, 325 US 365, 89 L Ed 1670, 65 S Ct

1232, 45-2 USTC ¶ 9327, 33 AFTR 842, 163 ALR 1175; Casualty Reciprocal Exchange
v Sutfin, 196 Okla 567, 166 P2d 434.
In determining whether a challenged regulation is valid, a reviewing court must first

determine if the regulation is consistent with the language of the statute. K mart Corp. v
Cartier, Inc., 486 US 281, 100 L Ed 2d 313, 108 S Ct 1811, 6 USPQ2d 1897, 1988-1
Footnote 55. Bick v State Dept. of Justice, Div. of Motor Vehicles, 224 Mont 455, 730
P2d 418.
Footnote 56. Morton v Ruiz, 415 US 199, 39 L Ed 2d 270, 94 S Ct 1055 (among

conflicting authorities on other grounds noted in National Latino Media Coalition v FCC,
259 US App DC 481, 816 F2d 785); Asarco, Inc. v Puget Sound Air Pollution Control
Agency, 112 Wash 2d 314, 771 P2d 335, 74 ALR4th 557.
Footnote 57. Boyce v Scottsdale (App) 157 Ariz 265, 756 P2d 934, 8 Ariz Adv Rep 37.
Footnote 58. Security Environmental Systems, Inc. v South Coast Air Quality
Management Dist. (2nd Dist) 229 Cal App 3d 110, 280 Cal Rptr 108, 91 CDOS 1860, 91
Daily Journal DAR 3033, later proceeding (Cal App 2nd Dist) 91 Daily Journal DAR
3033 and review den (Cal) 1991 Cal LEXIS 1755.
§ 229 Predetermination of particular cases by general rule
View Entire Section

It has been alternately stated that an administrative agency having power to determine
rights in particular cases may not lay down a general regulation that predetermines cases
within the regulation in disregard of particular circumstances, 59 that the exercise of
discretion in a determinative power requires an actual exercise of judgment and precludes
adoption of a fixed policy which ignores meaningful differences in cases, 60 and that
power to make rules and regulations does not authorize a general regulation converting
what under the statute is a question of fact to be decided from case to case into a
conclusive presumption. 61
Footnotes
Footnote 59. Work v United States, 261 US 352, 67 L Ed 693, 43 S Ct 389 (stating this
is legislation beyond the power of the officer).
Footnote 60. Swalbach v State Liquor Authority, 7 NY2d 518, 200 NYS2d 1, 166 NE2d
811 (no warrant for policy which excludes liquor stores from all modern shopping centers
in disregard of facts of particular case).
Footnote 61. Miller v United States, 294 US 435, 79 L Ed 977, 55 S Ct 440, reh den
294 US 734, 79 L Ed 1262, 55 S Ct 635 (order of Director of Veteran's Bureau as to
what constitutes total and permanent disability under a war risk policy).
As to differences between rulemaking and adjudication, see § 155.
§ 230 Reasonableness
View Entire Section

An administrative regulation must be reasonable 62 and reasonably related to the

purposes of the implemented statutes 63 to be valid. Rules or regulations that are
arbitrary and capricious 64 or, in some jurisdictions, arbitrary and unreasonable, 65
are not valid. Reasonableness or reasonable relation to statutory objectives may be
required by statute 66 or by judicial decision, 67 or a restriction upon exercise of
the police power. 68
Because the courts lack certain expertise possessed by administrative agencies, they will
hesitate to find a regulation unreasonable. 69 The courts are not inclined to interfere
with rules established by legislative direction when the rules bear a reasonable relation to
the subject of a legislation and constitute a reasonable exercise of the powers conferred.
70 It is not necessarily a valid objection to the choice of a standard by means of a
regulation that another choice could reasonably have been made, 71 that experts
disgreed over the desirability of a particular standard, 72 and that some other method
of regulation would have accomplished the same purpose and would have been less
onerous. 73 It is enough that the administrator has acted within the statutory
bounds of his or her authority, and that the choice among possible alternatives adapted to
the statutory end is one which a rational person could have made. 74 Thus, rules and
regulations, enacted by the legislature pursuant to statutory authority, 75 are presumed
reasonable, 76 and the burden of establishing they are not is on the party complaining of
the rule. 77
The regulation of certain activities involving mere privilege, such as the sale of
intoxicating liquor 78 or the conduct of horse racing, 79 is accorded liberal judicial
support, and the court is slow to find such regulations unreasonable.
If a commission is without power to adopt a particular rule it is unnecessary to consider

whether, if given such power, the provisions of the rule were reasonable. 80
Footnotes

1010, 56 S Ct 587, 17 AFTR 479; Whitcomb Hotel, Inc. v California Employment Com.,
24 Cal 2d 753, 151 P2d 233, 155 ALR 405; State v Pierce, 246 Kan 183, 787 P2d 1189;
Medical Properties, Inc. v North Dakota Board of Pharmacy (ND) 80 NW2d 87.
App D1) 522 So 2d 1012, 13 FLW 817.
Judicial review will be limited to a determination of whether the regulation in question is

reasonably consistent with the statute being implemented. St. Francis Extended Health
Care v Department of Social & Health Services, 115 Wash 2d 690, 801 P2d 212.
App D1) 522 So 2d 1012, 13 FLW 817; State v Pierce, 246 Kan 183, 787 P2d 1189;
Cevigney v Economy Fire & Casualty Co., 185 Mich App 256, 460 NW2d 294, app den

437 Mich 1027.
Footnote 65. Busey v Deshler Hotel Co. (CA6 Ohio) 130 F2d 187, 42-1 USTC ¶ 9359,
42-1 USTC ¶ 9587, 29 AFTR 1091, 142 ALR 563; Cowen v Reavy, 283 NY 232, 28
NE2d 390; Liberty Homes, Inc. v Department of Industry, Labor & Human Relations,
136 Wis 2d 368, 401 NW2d 805.
Where an administrative agency has adopted a standard as an interpretation of the broad

powers granted to it by statute, such a standard is invalid only if it is so lacking in reason
for its promulgation that it is essentially arbitrary. Connolly v O'Malley (1st Dept) 17
App Div 2d 411, 234 NYS2d 889, 46 CCH LC ¶ 50645.
Footnote 66. United States ex rel. Knauff v Shaughnessy, 338 US 537, 94 L Ed 317, 70
S Ct 309 (statute required regulations to be reasonable); Thomas v Housing Authority of
Little Rock (ED Ark) 282 F Supp 575 (regulations by local housing authorities must bear
a reasonable relation to the low rent housing program and its proper operation).

1010, 56 S Ct 587, 17 AFTR 479; Medical Properties, Inc. v North Dakota Board of
Pharmacy (ND) 80 NW2d 87; Foley v Benedict, 122 Tex 193, 55 SW2d 805, 86 ALR
477.
Footnote 68. Corthouts v Newington, 140 Conn 284, 99 A2d 112, 38 ALR2d 1136,
stating that zoning regulations constitute a valid exercise of the police power only when
they are not such an unreasonable exercise of the police power as to become arbitrary,
destructive or confiscatory.
Footnote 69. Shell Oil Co. v Illinois Pollution Control Bd. (5th Dist) 37 Ill App 3d 264,
346 NE2d 212.
Footnote 70. Cornhusker Christian Children's Home, Inc. v Department of Social

Services, 227 Neb 94, 416 NW2d 551, app dismd 488 US 919, 102 L Ed 2d 317, 109 S
Ct 298.
Footnote 71. Federal Secur. Admr. v Quaker Oats Co., 318 US 218, 87 L Ed 724, 63 S
Ct 589, 158 ALR 832.
Footnote 72. Mitchell v Budd, 350 US 473, 100 L Ed 565, 76 S Ct 527, 30 CCH LC ¶
69846, reh den 351 US 934, 100 L Ed 1462, 76 S Ct 786.
(CA7 Wis) 713 F2d 285; Green Mountain Post, American Legion v Liquor Control
Board, 117 Vt 405, 94 A2d 230, 35 ALR2d 1060; Liberty Homes, Inc. v Department of
Industry, Labor & Human Relations, 136 Wis 2d 368, 401 NW2d 805.
Footnote 74. Federal Secur. Admr. v Quaker Oats Co., 318 US 218, 87 L Ed 724, 63 S
Ct 589, 158 ALR 832.

Footnote 75. J. Brotton Corp. v Oklahoma Alcoholic Beverage Laws Enforcement Com.
(Okla) 822 P2d 683.
Footnote 76. Re Petition for Substantive Certification, 132 NJ 1, 622 A2d 1257; Toxic
Waste Impact Group, Inc. v Leavitt (Okla) 755 P2d 626.
As to presumptions and proofs of validity, see § 234.
Footnote 77. J. Brotton Corp. v Oklahoma Alcoholic Beverage Laws Enforcement Com.
(Okla) 822 P2d 683.
Footnote 78. Manchester Press Club v State Liquor Com., 89 NH 442, 200 A 407, 116
ALR 1093 (requiring clubs licensed to sell liquor to furnish keys to liquor law
enforcement authority); Mazza v Cavicchia, 15 NJ 498, 105 A2d 545 (superseded by
statute on other grounds as stated in New Jersey Civil Service Asso. v State, 88 NJ 605,
443 A2d 1070); McCanless v State, 181 Tenn 308, 181 SW2d 154, 153 ALR 832; Green
Mountain Post, American Legion v Liquor Control Board, 117 Vt 405, 94 A2d 230, 35
ALR2d 1060; Commonwealth v Anheuser-Busch, Inc., 181 Va 678, 26 SE2d 94.
As the control and regulation of intoxicating liquors, generally, see 45 Am Jur 2d,
Intoxicating Liquors §§ 22 et seq.
Footnote 79. State ex rel. Morris v West Virginia Racing Com., 133 W Va 179, 55 SE2d
263.
Footnote 80. Whitcomb Hotel, Inc. v California Employment Com., 24 Cal 2d 753, 151
P2d 233, 155 ALR 405.
As to power to create rules, see § 152.
§ 231 --What constitutes reasonableness
View Entire Section

The requirement of reasonableness of an administrative regulation means no more and no

less than that the regulation must be based upon reasonable grounds 81 –that is, it must
be supported by good reasons. 82 There is authority that an agency rule is arbitrary and
capricious if the agency relies on factors Congress has not intended it to consider,
entirely fails to consider an important aspect of problem, or offers an explanation for its
decision that runs counter to evidence before the agency, or offers an explanation that is
so implausible that it could not be ascribed to a difference in view or the product of
agency expertise. 83 Generally, a rule is reasonable if it is rationally related to the
ends sought to be achieved. 84 Rules and regulations of administrative agencies must be
reasonably directed to the accomplishment of the purposes of the statute under which
they are made. 85

Footnotes
Ct 307 (argument that rule is arbitrary must mean that commission had no reasonable
ground for the exercise of judgment); Senior Citizens League, Inc. v Department of
Social Secur., 38 Wash 2d 142, 228 P2d 478 (stating also regulation must affect alike all
persons or things within the same class).
Footnote 82. Commonwealth v Anheuser-Busch, Inc., 181 Va 678, 26 SE2d 94.
77 L Ed 2d 443, 103 S Ct 2856, 13 ELR 20672.
An administrative action, such as a rule, is arbitrary and capricious if the agency has
failed to consider relevant factors. American Mining Congress v United States EPA
(CA9) 965 F2d 759, 92 CDOS 4465, 92 Daily Journal DAR 7079, 35 Envt Rep Cas
1032, 22 ELR 21135.
Footnote 84. Vang v Commissioner of Public Safety (Minn App) 432 NW2d 203.
Footnote 85. Blatz Brewing Co. v Collins, 69 Cal App 2d 639, 160 P2d 37.
§ 232 Proceedings to determine validity; declaratory judgment actions
View Entire Section

The 1961 version of the Model State Administrative Procedure Act says that the validity
or applicability of a rule may be determined in an action for declaratory judgment, if it is
alleged that the rule, or its threatened application, interferes with or impairs, or threatens
to interfere or impair, the legal rights or privileges of the plaintiff. 86 The agency must
be made a party to the action. 87 A declaratory judgment may be rendered whether the
plaintiff has requested the agency to pass upon the validity or applicability of the rule in
question. 88
In an action for declaratory judgment on the validity of an agency's rules and regulations,
the court has authority to grant ancillary coercive relief; and where the court declares an
administrative agency's rules and regulations invalidly promulgated, the court may order
reinstatement of the prior existing rules and regulations. 89 The court may also order
reinstatement of the recipients and benefits that were terminated pursuant to the invalid
rules. 90 However, declaratory relief under the administrative procedure act is not
available for review of adjudications effected in the course of an individual proceeding.
91
Footnotes

Footnote 89. Costa v Sunn, 5 Hawaii App 419, 697 P2d 43, cert den (Hawaii) 744 P2d
781.
As to judicial enforcement of rules, generally, see § 244.
781.
Footnote 91. Texas County Irrig. & Water Resources Assn. v Oklahoma Water Resources
Bd. (Okla) 803 P2d 1119.
As to adjudications, generally, see §§ 261 et seq.
§ 233 --Attorneys' fees
View Entire Section

Some state administrative procedure acts award the party bringing an action in which the
party has any rule invalidated by the court the reasonable expenses of the litigation,
including reasonable attorney fees. 92 This type of provision is to discourage
enforcement of invalid rules and provide incentive to those subject to regulations to
oppose doubtful rules where compliance would otherwise be less costly than litigation.
93 In order to fulfill the purpose of such a provision, attorneys' fees may be awarded in
proceedings before an administrative agency, as well as administrative review
proceedings, as proceedings before an administrative agency are quite often more costly
and time consuming than administrative review proceedings. 94
Footnotes
Footnote 92. Chicago v Illinois Commerce Com. (1st Dist) 187 Ill App 3d 468, 135 Ill
Dec 101, 543 NE2d 336.
Footnote 93. Chicago v Illinois Commerce Com. (1st Dist) 187 Ill App 3d 468, 135 Ill
Dec 101, 543 NE2d 336; Kaufman Grain Co. v Director of Dept. of Agriculture (4th
Dist) 179 Ill App 3d 1040, 128 Ill Dec 654, 534 NE2d 1259.
App 3d 1040, 128 Ill Dec 654, 534 NE2d 1259.

§ 234 Proof and presumptions of validity
View Entire Section

The presumption of validity that attaches to statutes 95 also applies to administrative

rules and regulations. 96 A rule adopted pursuant to a statutory rulemaking proceeding
97 is presumed to be valid, 98 as long as it is authorized by statute and does not
contradict any other statute or the federal or state constitution, 99 and is not arbitrary or
capricious. 1 The burden is upon the challenging party 2 to demonstrate that the
rulemaking body acted in an unconstitutional manner, 3 exceeded its statutory authority,
4 or otherwise acted in a manner contrary to statutory requirements. 5 When lack of
statutory authority is advanced as a principle reason against adoption of a rule, the
agency may be required to address the issue in a concise statement. 6
 Comment: Interpretive rules, 7 unlike legislative rules, 8 enjoy no presumption of

validity. 9
Footnotes
Footnote 96. Department of Human Services v Berry, 297 Ark 607, 764 SW2d 437;
Colorado Civil Rights Com. v Travelers Ins. Co. (Colo) 759 P2d 1358, 10 EBC 1843, 47
CCH EPD ¶ 38289; Pre-School Owners Asso. v Department of Children & Family
Services, 119 Ill 2d 268, 116 Ill Dec 197, 518 NE2d 1018, app dismd 487 US 1212, 101
L Ed 2d 897, 108 S Ct 2861.
As to proceedings for adoption of rules, see §§ 165 et seq., , see §§ 198 et seq.
Footnote 98. Department of Human Services v Berry, 297 Ark 607, 764 SW2d 437;
Aurora v Public Utilities Com. (Colo) 785 P2d 1280; Mass v United States Fidelity &
Guaranty Co., 222 Conn 631, 610 A2d 1185; Lloyd's Window Products Co. v District of
Columbia Minority Business Opportunity Com. (Dist Col App) 585 A2d 1323 (rules
promulgated pursuant to a statute are valid unless arbitrary, capricious or manifestly
contrary to statute); Overton v State (Iowa) 493 NW2d 857; Peck v University Residence
Committee, 248 Kan 450, 807 P2d 652; Berrios v Department of Public Welfare, 411
Mass 587, 583 NE2d 856, remanded 414 Mass 1004, 608 NE2d 734; Re Petition for
Substantive Certification, 132 NJ 1, 622 A2d 1257; Kaprow v Board of Educ., 131 NJ
572, 622 A2d 237 (the presumption attaches if the regulation is within the authority
delegated to an agency, and is not on its face beyond the agency's power); Tenneco Oil
Co. v New Mexico Water Quality Control Com. (App) 107 NM 469, 760 P2d 161, cert
den 106 NM 714, 749 P2d 99; Toxic Waste Impact Group, Inc. v Leavitt (Okla) 755 P2d
626; St. Francis Extended Health Care v Department of Social & Health Services, 115
Wash 2d 690, 801 P2d 212.

Footnote 99. Lloyd's Window Products Co. v District of Columbia Minority Business
Opportunity Com. (Dist Col App) 585 A2d 1323; Cohen v Board of Water Comrs., Fire
Dist. No. 1, 411 Mass 744, 585 NE2d 737.
Footnote 1. Lloyd's Window Products Co. v District of Columbia Minority Business

Opportunity Com. (Dist Col App) 585 A2d 1323.
Footnote 2. Aurora v Public Utilities Com. (Colo) 785 P2d 1280; Mass v United States
Fidelity & Guaranty Co., 222 Conn 631, 610 A2d 1185; Overton v State (Iowa) 493
NW2d 857; Peck v University Residence Committee, 248 Kan 450, 807 P2d 652;
Kaprow v Board of Educ., 131 NJ 572, 622 A2d 237; Tenneco Oil Co. v New Mexico
Water Quality Control Com. (App) 107 NM 469, 760 P2d 161, cert den 106 NM 714,
749 P2d 99; J. Brotton Corp. v Oklahoma Alcoholic Beverage Laws Enforcement Com.
(Okla) 822 P2d 683; St. Francis Extended Health Care v Department of Social & Health
Services, 115 Wash 2d 690, 801 P2d 212.
Footnote 4. Aurora v Public Utilities Com. (Colo) 785 P2d 1280; Travelers Ins. Co. v
Kulla, 216 Conn 390, 579 A2d 525.
Footnote 6. Anderson, Leech & Morse, Inc. v Washington State Liquor Control Board,
89 Wash 2d 688, 575 P2d 221.
Footnote 7. Interpretive rules are generally discussed in § 161.
Footnote 8. As to legislative rules, generally, see § 160.
Footnote 9. Great American Nursing Centers, Inc. v Norberg (RI) 567 A2d 354.
G. Effect of Rules or Violation Thereof [235-238]
Research References
§ 235 Generally
View Entire Section

Legislative or substantive rules are said to have the force and effect of law. 10
Sometimes it is also stated that rules properly adopted 11 for the purpose of carrying
out the policy declared by the legislature in the statute, 12 or rules adopted by an agency
pursuant to its statutory authority 13 have the force and effect of law. Rules and
regulations, however, only have the force and effect of law if reasonable 14 and
consistent with the statute. 15 In addition, it has been held that a regulation of an
administrative agency cannot be given the force and effect of law within the rule that
general laws of a state enter into and form a part of contracts. 16
Once a legislative rule is properly promulgated, it is considered to be an integral part of

the regulatory statute. 17 When Congress delegates rulemaking authority to an
agency, and the agency adopts legislative rules, the agency stands in the place of
Congress and makes law. 18 Thus, the principle that everyone is presumed to know the
law and that ignorance of the law is no excuse applies to administrative regulations, 19
and the courts may take judicial notice of such regulations, although there is some
authority to the contrary. 20 Furthermore, federal regulations have the same pre-emptive
effect as federal statutes, provided the administrator did not exceed statutory authority or
act in an arbitrary manner. 21
While in the strict sense of the term an administrative regulation is not actually a
"statute" but is at most an offspring of a statute, 22 a regulation may be deemed to
come within the term "statute," 23 and have the same force and effect as a statute. 24
However, there is also authority that rules are less than the equivalent of statutory law. 25
In any event, administrative regulations are held to be "laws" for various purposes, 26
including jurisdiction of courts. 27 In addition, subject to certain restrictions,
regulations may be the basis of a criminal charge. 28
Footnotes
Footnote 11. State v Pierce, 246 Kan 183, 787 P2d 1189; State ex rel. Springfield v
Public Service Com. (Mo App) 812 SW2d 827; Nucor Steel, Div. of Nucor Corp. v
Leuenberger, 233 Neb 863, 448 NW2d 909, ALR4th 3608; Chicago Pacific Corp. v
Limbach, 65 Ohio St 3d 432, 605 NE2d 8, reh den 65 Ohio St 3d 1483, 604 NE2d 759;
Larsen v Munz Corp., 166 Wis 2d 751, 480 NW2d 800, revd 167 Wis 2d 583, 482
NW2d 332.
Footnote 12. State v Pierce, 246 Kan 183, 787 P2d 1189.
Footnote 13. Department of Corrections v Illinois Civil Service Com. (1st Dist) 187 Ill
548 NE2d 1067; Johnson County Farm Bureau Coop. Assn. v Indiana Dept. of State
Revenue (Ind Tax) 568 NE2d 578, affd, adopted (Ind) 585 NE2d 1336; State v Pierce,
246 Kan 183, 787 P2d 1189; Staley v Board of Education, 308 Md 42, 517 A2d 349;
People v Willis, 180 Mich App 31, 446 NW2d 562 (superseded by statute on other
grounds as stated in People v Tomko (Mich App) 1993 Mich App LEXIS 476); Doyle v
Ohio Bureau of Motor Vehicles, 51 Ohio St 3d 46, 554 NE2d 97; Toxic Waste Impact
Group, Inc. v Leavitt (Okla) 755 P2d 626; Doidge v State, Bd. of Charities & Reform
(Wyo) 789 P2d 880.
As to an agency's statutory authority to promulgate a rule as affecting the rule's validity,

see § 225.

Footnote 14. Molina v Games Management Services, 58 NY2d 523, 462 NYS2d 615,
449 NE2d 395, 40 ALR4th 655; Chicago Pacific Corp. v Limbach, 65 Ohio St 3d 432,
605 NE2d 8, reh den 65 Ohio St 3d 1483, 604 NE2d 759.
Footnote 15. Parr v California (ED Cal) 811 F Supp 507, 124 CCH LC ¶ 35772; Chicago
Pacific Corp. v Limbach, 65 Ohio St 3d 432, 605 NE2d 8, reh den 65 Ohio St 3d 1483,
604 NE2d 759.
Footnote 16. Motsinger v Perryman, 218 NC 15, 9 SE2d 511 (insurance policy).

Atchison, T. & S. F. R. Co. v Scarlett, 300 US 471, 81 L Ed 748, 57 S Ct 541, reh den
301 US 712, 81 L Ed 1365, 57 S Ct 787.
Footnote 18. National Latino Media Coalition v FCC, 259 US App DC 481, 816 F2d 785.
Footnote 19. State ex rel. Kaser v Leonard, 164 Or 587, 102 P2d 197, 129 ALR 1125;
Hieb v Opp (SD) 458 NW2d 797.
Footnote 20. 29 Am Jur 2d, Evidence § 39.
Footnote 21. Spitz v Goldome Realty Credit Corp., 151 Ill 2d 71, 175 Ill Dec 727, 600
NE2d 1185.
As to pre-emption of inconsistent state legislation, see 16 Am Jur 2d, Constitutional Law

§ 291.
Footnote 22. United States v Mersky, 361 US 431, 4 L Ed 2d 423, 80 S Ct 459.
Footnote 23. Alabama Public Service Com. v Southern R. Co., 341 US 341, 95 L Ed
1002, 71 S Ct 762; Mora v Mejias (CA1 Puerto Rico) 206 F2d 377; Frasier v Board of
Trustees (DC NC) 134 F Supp 589, affd 350 US 979, 100 L Ed 848, 76 S Ct 467.
Footnote 24. Panfel v Boyd, 187 Ga App 639, 371 SE2d 222, appeal after remand 195 Ga
App 891, 395 SE2d 80; Liberty Homes, Inc. v Department of Industry, Labor & Human
Relations, 136 Wis 2d 368, 401 NW2d 805.
Regulations stand on the same footing as statutes. Berrios v Department of Public

Welfare, 411 Mass 587, 583 NE2d 856, remanded 414 Mass 1004, 608 NE2d 734.
Footnote 25. Mead v Arnell, 117 Idaho 660, 791 P2d 410; Major v Waverly & Ogden,
Inc., 7 NY2d 332, 197 NYS2d 165, 165 NE2d 181.
A violation of an administrative regulation is not tantamount to a constitutional violation

unless the regulation is mandated to protect a constitutional right. Brown v State (Ala)
592 So 2d 621, on remand (Ala App) 592 So 2d 624.
Footnote 26. Singer v United States, 323 US 338, 89 L Ed 285, 65 S Ct 282; Grand T.
W. R. Co. v Railroad Com. of Indiana, 221 US 400, 55 L Ed 786, 31 S Ct 537;
Christgau v Fine, 223 Minn 452, 27 NW2d 193; Banks v Batesburg Hauling Co., 202 SC
273, 24 SE2d 496.
Footnote 27. Arkadelphia Milling Co. v St. Louis S. R. Co., 249 US 134, 63 L Ed 517,
39 S Ct 237.
Annotation: What actions arise under the laws and treaties of the United States so as
to vest jurisdiction of Federal courts, 14 ALR2d 992 § 4.
§ 236 Prospective or retroactive effect
View Entire Section

There is a division of authority on the retroactivity of regulations. Some cases state that
regulations operate prospectively only, 29 absent strong and compelling reasons. 30
Thus, violation of an administrative requirement, which apparently could not be read in
the statute, has been held not to show negligence in regard to a condition that antedated
the requirement. 31 This is the approach of the federal Administrative Procedure Act
which contemplates that when an agency employs rulemaking procedures, its orders are
to have only prospective effect. 32 Although the Supreme Court has said that an
appellate court should generally apply the law in effect at the time it renders its decision
unless it would result in manifest injustice or there is statutory direction or legislative
history to the contrary, and that this reasoning must apply with equal force where a
change is made by an administrative agency pursuant to legislative authorization, 33
the Supreme Court has subsequently taken the approach that rules are presumed to
operate prospectively, although this may not be the case where the express language of a
rule 34 or specific legislative directive 35 requires retroactivity. Consequently,
any power to promulgate retroactive rules must be conveyed in express terms, because
the statutory grant of legislative rulemaking authority will not, as a general matter, be
understood to encompass the power to promulgate retroactive rules. 36
Another view expressed by the courts allows retroactivity under certain circumstances.
Some courts hold that the absence of language specifically allowing retroactivity does not
conclusively bar retroactive application in all cases; 37 for instance, under some
circumstances, it would be an abuse of discretion for an agency to refuse to apply a rule
retroactively, irrespective of a prospective presumption. 38 In some instances it has
been said that the general rule against retroactivity is not violated where the retroactive
effect only defines that aspect of an old rule that must be discarded as legally excessive.
39 There is also authority that a rule is not necessarily invalid, even though it has some
retrospective application, if the retroactive effect is limited and reasonable, prior notice of
the impending promulgation of the rule was given, and the rule is part of an on-going
adjustment process in the administration of a federal program. 40 However, regulations
that say nothing about retroactive application are not applied retroactively if such
construction will impair existing rights, create new obligations or impose additional
duties with respect to past transactions. 41
Some cases discuss retroactivity in terms of certain types of regulations. For instance,
some cases hold that new or amended regulations that change existing law or another
regulation will generally not be given retroactive application, 42 and an agency may not
apply a modified rule to a party who has had no prior notice thereof and who has
detrimentally relied upon the agency's prior rule. 43 In some states, procedural rules
operate retroactively. 44 However, there is also authority that retrospective application
of procedural rules should not apply to steps previously taken in pending actions. 45
 Comment: There is a conflict of authority as to whether statutes operate

retroactively, 46 and this conflict is not without significance for regulations, since
regulations are construed in the same manner as statutes. 47 While the Court has said
that statutes should not generally operate retroactively unless their language requires
that result, 48 the Court has also said that statutes should operate retroactively unless
it would operate a manifest injustice to a party or there is a clear congressional intent to
the contrary. 49 Even where retrospective application is presumed, however, an
intervening change will not be applied to a pending action where the court concludes
that to do so would infringe upon or deprive a person of a right that has matured or
become unconditional. 50 This limitation to retrospective application comports with
the rule of statutory interpretation that statutes affecting substantive rights and
liabilities are presumed to have only prospective effect, 51 and some cases attempt
to resolve the conflict between the Supreme Court cases by making a distinction
between procedural and substantive statutes, saying that retroactivity is appropriate
where remedies or procedures are involved, but not where substantive rights are
involved. 52 Many lower court cases follow the precedent favoring retroactivity, 53
while many other such cases follow the precedent disfavoring retroactivity. 54
Under either view, if congressional intent is clear, it governs. 55
Footnotes
Footnote 29. Abrego v United Peoples Federal Sav. & Loan Asso., 281 Ark 308, 664
SW2d 858, appeal after remand 285 Ark 434, 688 SW2d 724 and (criticized on other
grounds by Damron v University Estates, Phase II, Inc., 295 Ark 533, 750 SW2d 402).
Administrative rules should not be amended to effect a retroactive change, and should not
be applied retroactively in determining a claimant's rights. Holstein v North Chemical
Co., 194 Ga App 546, 390 SE2d 910.
Law Reviews: Luneburg, Retroactivity and Administrative Rulemaking. 1991 Duke

LJ 106 (F 1991).
Footnote 30. Manns v State Dept. of Highways (Ind) 541 NE2d 929.
Footnote 31. Franklin v Skelly Oil Co. (CA10 Okla) 141 F2d 568, 153 ALR 156 (letter
offered as a supplement to or interpretation of a regulation was not part of the regulation
because not promulgated in accordance with statute); La Com v Pacific Gas & Electric
Co. (1st Dist) 132 Cal App 2d 114, 281 P2d 894, 48 ALR2d 1455 (to apply rule for
painting poles near airports to poles erected before rule became effective would take
property without due process).
264 US App DC 58, 826 F2d 1074, cert den 485 US 913, 99 L Ed 2d 247, 108 S Ct

1088.
Footnote 33. Bradley v School Bd., 416 US 696, 40 L Ed 2d 476, 94 S Ct 2006.
Footnote 34. Bowen v Georgetown Univ. Hosp., 488 US 204, 102 L Ed2d 493, 109 S
Ct 468; Jordan v Department of Professional Regulation (Fla App D1) 522 So 2d 450, 13
FLW 684.
For a regulation to operate retroactively, an intention for it to do so must appear

unequivocally. Miller v United States, 294 US 435, 79 L Ed 977, 55 S Ct 440, reh den
294 US 734, 79 L Ed 1262, 55 S Ct 635.
Footnote 35. Rose Associates v Bernstein, 138 Misc 2d 1044, 526 NYS2d 383.
Ct 468; American Mining Congress v United States EPA (CA9) 965 F2d 759, 92 CDOS
4465, 92 Daily Journal DAR 7079, 35 Envt Rep Cas 1032, 22 ELR 21135.
450, 13 FLW 684; Guerrero v Adult & Family Services Div., 67 Or App 119, 676 P2d
928.
450, 13 FLW 684.
Footnote 39. Allied-Signal, Inc. v United States Nuclear Regulatory Com., 300 App DC
198, 988 F2d 146.
Footnote 40. Summit Nursing Home, Inc. v United States, 215 Ct Cl 581, 572 F2d 737.
Footnote 41. Derenco, Inc. v Benj. Franklin Federal Sav. & Loan Asso., 281 Or 533, 577
P2d 477, cert den 439 US 1051, 58 L Ed 2d 712, 99 S Ct 733.
Footnote 42. Marine American State Bank v Lincoln (Iowa) 433 NW2d 709.
A new rule should not be applied to invalidate prior legally effective acts. Rose
Associates v Bernstein, 138 Misc 2d 1044, 526 NYS2d 383.
Footnote 43. Water Pipe Extension v Chicago (1st Dist) 206 Ill App 3d 63, 150 Ill Dec
953, 563 NE2d 1080.
Footnote 44. State ex rel. Western Outdoor Advertising Co. v State Highway & Transp.
Com. (Mo App) 813 SW2d 360.
As to procedural rules, generally, see § 162.
Footnote 45. Rose Associates v Bernstein, 138 Misc 2d 1044, 526 NYS2d 383.
Footnote 46. Kaiser Aluminum & Chemical Corp. v Bonjorno, 494 US 827, 108 L Ed
2d 842, 110 S Ct 1570, 1990-1 CCH Trade Cases ¶ 68992, later proceeding (ED Pa)
1990 US Dist LEXIS 11231.

Ct 468.
An appellate court must apply the law in effect at the time it renders its decision. Thorpe
v Housing Authority of Durham, 393 US 268, 21 L Ed 2d 474, 89 S Ct 518, 49 Ohio
Ops 2d 374 (criticized on other grounds by Goldberg v Kelly, 397 US 254, 25 L Ed 2d
287, 90 S Ct 1011) as stated in National Tenants Organization v Pierce (DC Dist Col)
1989 US Dist LEXIS 18348, later proceeding (DC Dist Col) 1989 US Dist LEXIS 18347.
Footnote 51. Bennett v New Jersey, 470 US 632, 84 L Ed 2d 572, 105 S Ct 1555.
Footnote 52. See Lee v Sullivan (ND Cal) 787 F Supp 921, 92 Daily Journal DAR 4442,
58 BNA FEP Cas 1616, 59 CCH EPD ¶ 41601 (the "manifest injustice" exception to the
presumption in favor of retroactivity should be construed to prevent the retroactive
application of legislation defining or otherwise changing substantive rights).
Footnote 53. Tyler v Pennsylvania, Dep't of Revenue (MD Pa) 793 F Supp 98, 61 BNA
FEP Cas 911, 59 CCH EPD ¶ 41548; Federal Deposit Ins. Corp. v Yemelos (ED La) 778
F Supp 329; Federal Deposit Ins. Corp. v Bancinsure, Inc. (DC Minn) 770 F Supp 496;
Kent v Howard (SD Cal) 801 F Supp 329, 93 Daily Journal DAR 843, 62 BNA FEP Cas
945, 60 CCH EPD ¶ 41934; United States v Coffman (DC Kan) 761 F Supp 1493; Muller
v Resolution Trust Corp. (SD Ga) 148 BR 650, affd without op (CA11 Ga) 7 F3d 241.
Footnote 54. Sargisson v United States (CA FC) 913 F2d 918 (retroactivity is not
presumed); Futch v Stone (MD Pa) 782 F Supp 284, 58 BNA FEP Cas 28, 58 CCH EPD
¶ 41282; Kennedy v Fritsch (ND Ill) 796 F Supp 306, 60 BNA FEP Cas 46, 59 CCH
EPD ¶ 41694, summary judgment den, summary judgment gr, in part (ND Ill) 1993 US
Dist LEXIS 2458; Nigrelli v Catholic Bishop (ND Ill) 794 F Supp 246, 58 CCH EPD ¶
41520; Libisch v Black & Decker Corp. (DC Md) 803 F Supp 1066, 60 BNA FEP Cas
97; DeVargas v Mason & Hanger-Silas Mason Co. (CA10 NM) 911 F2d 1377, 1 AD Cas
1661, 53 BNA FEP Cas 1241, 54 CCH EPD ¶ 40155, cert den 498 US 1074, 112 L Ed
2d 860, 111 S Ct 799, 2 AD Cas 214, 56 BNA FEP Cas 96, 56 BNA FEP Cas 776, 55
CCH EPD ¶ 40495; Senior Unsecured Creditors' Committee of First Republicbank Corp.
on behalf of First Republicbank Corp., etc. v Federal Deposit Ins. Corp. (ND Tex) 749 F
Supp 758 (legislation should be applied prospectively absent unequivocal Congressional
intent); Khandelwal v Compuadd Corp. (ED Va) 780 F Supp 1077, 57 BNA FEP Cas
1308, 58 CCH EPD ¶ 41302 (courts should not retroactively apply statutes or regulations
without a clear indication that the legislature intends to diverge from the norm of acting
prospectively).
Footnote 55. Kaiser Aluminum & Chemical Corp. v Bonjorno, 494 US 827, 108 L Ed
2d 842, 110 S Ct 1570, 1990-1 CCH Trade Cases ¶ 68992, later proceeding (ED Pa)
1990 US Dist LEXIS 11231; DeVargas v Mason & Hanger-Silas Mason Co. (CA10 NM)
911 F2d 1377, 1 AD Cas 1661, 53 BNA FEP Cas 1241, 54 CCH EPD ¶ 40155, cert den
498 US 1074, 112 L Ed 2d 860, 111 S Ct 799, 2 AD Cas 214, 56 BNA FEP Cas 96, 56
BNA FEP Cas 776, 55 CCH EPD ¶ 40495.
§ 237 Binding effect on agency; agency's disregard, waiver, or suspension of rule
View Entire Section

Despite the fact that administrative agencies may entertain a petition for amendment or
repeal of rules, 56 once promulgated, the rules made by an agency to govern its activity
cannot be violated or waived by that agency. 57 Agencies are bound by the rules they
promulgate, 58 until they amend or rescind them; 59 and agencies cannot
arbitrarily disregard their rules, or apply them in a discriminate fashion. 60 This is
especially true where fundamental, constitutionally protected liberties are at stake. 61
However, it appears that an administrative agency may, at least under some statutes, have
discretion to suspend a rule or regulation pending its administrative 62 or judicial 63
review. Nevertheless, under the 1981 version of the Model Administrative Procedure
Act, since the definition of rule includes suspension of an existing rule, 64 rulemaking
proceedings apply to suspensions.
An administrative agency's failure to follow its own rules and regulations does not create
a constitutional due process right on behalf of a party who suffers some wrong at the
hands of the administrative body. 65 Rather, the obligation of such a body to follow its
own rules and regulations is founded in principles of administrative law. 66 However,
some courts say that there must be a showing of prejudice before an agency's disregard of
its own rules constitutes reversible error. 67
 Comment: The 1981 version of the Model State Administrative Procedure Act says
that to the extent the agency itself would have authority, the governor may suspend all
or a severable portion of a rule of an agency. 68 In exercising this authority, the
governor will act by an executive order that is subject to the provisions of the Act
applicable to the adoption and effectiveness of a rule. 69
Footnotes
Footnote 57. Micu v Warren, 147 Mich App 573, 382 NW2d 823, 56 BNA FEP Cas 883,
app den 425 Mich 877.
The proposition that an agency action made in violation of its own regulations cannot be
sustained is premised on the validity of the regulations. Seman v District of Columbia
Rental Housing Com. (Dist Col App) 552 A2d 863.
Footnote 58. Columbia Broadcasting System, Inc. v United States, 316 US 407, 86 L Ed
1563, 62 S Ct 1194 (licensing agency); Facchiano Constr. Co. v United States Dep't of
Labor (CA3 Pa) 987 F2d 206, 1 BNA WH Cas 2d 468, 39 CCF ¶ 76542, 124 CCH LC ¶
35782, cert den (US) 126 L Ed 2d 48, 114 S Ct 80, 1 BNA WH Cas 2d 1056, 126 CCH

LC ¶ 33018; Clay v Arizona Interscholastic Asso., 161 Ariz 474, 779 P2d 349, 37 Ariz
Adv Rep 10; Cambridge Management Co. v District of Columbia Rental Housing Com.
(Dist Col App) 515 A2d 721; Department of Corrections v Illinois Civil Service Com.
(1st Dist) 187 Ill App 3d 304, 134 Ill Dec 907, 543 NE2d 190, app den 128 Ill 2d 662,
139 Ill Dec 511, 548 NE2d 1067; Coleman v Gary, 220 Ind 446, 44 NE2d 101; Hagan v
Farris (Ky) 807 SW2d 488; Benevolent & Protective Order of Elks, Lodge No. 65 v
Planning Bd. of Lawrence, 403 Mass 531, 531 NE2d 1233; Detroit Base Coalition for
Human Rights of Handicapped v Director, Dept. of Social Services, 431 Mich 172, 428
NW2d 335, 88 ALR4th 1075; Berry v Moorman Mfg. Co. (Mo App) 675 SW2d 131;
Appeal of Nolan, 134 NH 723, 599 A2d 112; Lehman v Board of Education (2d Dept)
82 App Div 2d 832, 439 NYS2d 670; Re Application for Permits to Drain Related to
Stone Creek Channel Improv. etc. (ND) 424 NW2d 894; Clark v Ohio Dept. of Mental
Retardation & Developmental Disabilities (Lucas Co) 55 Ohio App 3d 40, 562 NE2d
497; Re Peel Gallery of Fine Arts, 149 Vt 348, 543 A2d 695; Consumer Advocate Div. of
Pub. Serv. Comm'n etc. v Public Serv. Comm'n, 182 W Va 152, 386 SE2d 650.
Footnote 59. Facchiano Constr. Co. v United States Dep't of Labor (CA3 Pa) 987 F2d
206, 1 BNA WH Cas 2d 468, 39 CCF ¶ 76542, 124 CCH LC ¶ 35782, cert den (US) 126
L Ed 2d 48, 114 S Ct 80, 1 BNA WH Cas 2d 1056, 126 CCH LC ¶ 33018; Re Peel
Gallery of Fine Arts, 149 Vt 348, 543 A2d 695.
As to amendment or repeal of rules, generally, see § 221.
Footnote 60. Rivera v Illinois Dept. of Public Aid (1st Dist) 132 Ill App 3d 213, 87 Ill
Dec 151, 476 NE2d 1143.
Footnote 61. Illinois Bell Tel. Co. v Allphin (1st Dist) 95 Ill App 3d 115, 50 Ill Dec 739,
419 NE2d 1188, affd 93 Ill 2d 241, 66 Ill Dec 654, 443 NE2d 580.
Strict compliance is not necessary where internal regulations merely facilitate the internal
agency policies and are not necessary to afford significant procedural protections. Brown
v State (Ala) 592 So 2d 621, on remand (Ala App) 592 So 2d 624.
Ops 220 (authority under Emergency Price Control Act); Berkowitz v Department of
Licensing & Regulation, 127 Mich App 556, 339 NW2d 484.
Ops 220 (authority under Emergency Price Control Act).
Footnote 65. Tiffany v Arizona Interscholastic Asso. (App) 151 Ariz 134, 726 P2d 231.
Footnote 66. Tiffany v Arizona Interscholastic Asso. (App) 151 Ariz 134, 726 P2d 231.
Footnote 67. Benevolent & Protective Order of Elks, Lodge No. 65 v Planning Bd. of
Lawrence, 403 Mass 531, 531 NE2d 1233.

§ 238 Violation of rule as basis of criminal charge
View Entire Section

Violation of a rule or regulation properly promulgated by an administrative body may

form the basis for a criminal prosecution. 70 In addition, administrative regulations may
furnish the opportunity and occasion for a crime that is defined in and denounced by
statute. 71 While a substantive rule cannot itself prescribe criminal penalties, if it
has the force of law, it may be incorporated into a penal law which provides that a
violation of the rule is a crime, 72 or which provides that an act is a crime unless it is
otherwise authorized by law. 73 Special care must be taken by courts when criminal
penalties may be imposed for violation of an administrative rule or regulation. 74
Breach of a departmental regulation is not a criminal offense unless made so by
Congress; 75 and similar principles apply in regard to state administrative agencies. 76
Regulations promulgated by an administrative agency under an act of the legislature

imposing criminal sanctions upon a violation of such regulations are governed by the
same requirements of definiteness as statutes defining criminal action. 77 Such
regulations must be explicit and unambiguous in order to sustain a criminal prosecution,
and must adequately inform those who are subject to their terms as to what conduct will
be considered such as to bring the criminal penalties of the statutes into operation. 78
 Reminder: An interpretive rule may not be relied on to impose a criminal sanction.

79
Footnotes
Footnote 70. People v Samel (2d Dist) 115 Ill App 3d 905, 71 Ill Dec 738, 451 NE2d
892.
Footnote 71. United States v Mersky, 361 US 431, 4 L Ed 2d 423, 80 S Ct 459

(requirement that imports be marked in manner prescribed by regulations); Rosen v
United States, 245 US 467, 62 L Ed 406, 38 S Ct 148 (postal regulation designating
authorized mail receptacles, abstraction from which is made crime); Caha v United
States, 152 US 211, 38 L Ed 415, 14 S Ct 513 (false swearing in a proceeding provided
for only by administrative regulation).
Footnote 72. United States v Mersky, 361 US 431, 4 L Ed 2d 423, 80 S Ct 459.
It is unnecessary that an administrative rule or regulation contain a penalty clause before

it can act as a basis for bringing a charge of official misconduct. People v Samel (2d

Footnote 74. Commonwealth v Stein, 519 Pa 137, 546 A2d 36, cert den 490 US 1046,
104 L Ed 2d 422, 109 S Ct 1953.
Footnote 75. United States v Eaton, 144 US 677, 36 L Ed 591, 12 S Ct 764, 3 AFTR
2542.
Footnote 76. United States v Howard, 352 US 212, 1 L Ed 2d 261, 77 S Ct 303.
705, holding that indefiniteness in such regulations cannot be cured by an interpretation
by the administrative agency, so as to sustain a criminal prosecution.
705 (regulations promulgated by the price administrator under the Emergency Price
Control Act).
A regulation of the Interstate Commerce Commission that required drivers of motor

vehicles transporting explosives to avoid, "so far as practicable, and where feasible," by
prearrangement of routes, driving through congested thoroughfares, tunnels, etc., was
held not invalid on the ground of vagueness, where the statute under which the regulation
was promulgated punished only those who knowingly violated the regulation. Boyce
Motor Lines, Inc. v United States, 342 US 337, 96 L Ed 367, 72 S Ct 329.
See Commonwealth v Stein, 519 Pa 137, 546 A2d 36, cert den 490 US 1046, 104 L Ed
2d 422, 109 S Ct 1953, stating that when criminal penalties may be imposed for
violation of an administrative rule or regulation, the rule or regulation must describe with
particularity what is permitted and what is forbidden.
H. Construction of Rules [239-242]
Research References
§ 239 Generally
View Entire Section

Go to Supplement
An administrative regulation will be construed in harmony with a statute relating to the

same subject matter so that both may be given effect if possible. 80 If a statute is silent
or ambiguous with respect to the specific issue addressed by a regulation, the question
becomes whether the agency regulation is a permissible construction of the statute. 81
The first rule of construction as to administrative rules and regulations is that rules made
in the exercise of a power delegated by statute should be construed together with the
statute to make, if possible, an effectual piece of legislation in harmony with common
sense and sound reason. 82 The second rule is that generally 83 the same rules of
construction 84 and interpretation 85 that apply to statutes, particularly those in the
same field, 86 govern the construction and interpretation of rules and regulations of
administrative agencies. Thus, rules applicable to statutes, such as construction to uphold
validity; 87 construction in accordance with the legislative intent and purpose; 88
construction as a whole, by comparing every section as part of a whole; 89 construction
to harmonize two or more provisions on the same subject, 90 giving effect, if
possible to all the provisions of the regulations; 91 construction of general provisions
as limited in their application by specific ones on the same subject; 92 construction in
accord with the natural and plain meaning of words; 93 strict construction of
provisions defining conduct for which criminal 94 or penal 95 sanctions are
imposed. Some state administrative procedure acts codify the rule of statutory
construction, providing that any statutory definitions of words, phrases, or rules of
construction made applicable to all statutes also apply to rules unless it is clear that such
definition or construction was not intended. 96
An agency's interpretation of a regulation is valid only if the interpretation complies with

the actual language of the regulation. 97 However, when state regulations have the same
purpose as their federal counterparts, the court will look to federal decisions to aid it in
reaching the appropriate construction. 98 If an administrative rule is clear and
unambiguous, there is no need to resort to rules of construction or interpretation to
ascertain its meaning. 99
Case authorities:
The logical sequence of an administrative agency's regulation or a part of the regulation

can be significant in interpreting the meaning of the regulation. Shalala v Guernsey
Memorial Hosp. (1995, US) 46 Soc Sec Rep Serv 640, 131 L Ed 2d 106, 115 S Ct 1232,
95 CDOS 1666, remanded, without op sub nom Guernsey Memorial Hosp. v Secretary of
Health & Human Servs. (CA6) 52 F3d 325, reported in full (CA6) 1995 US App LEXIS
9094.
With respect to accounting methods used to determine reimbursement to Medicare

providers, the Secretary of Health and Human Services is not self-bound to delegate the
determination of any matter not specifically addressed by the Medicare regulations to the
conventions of financial accounting that comprise generally accepted accounting
principles (GAAP); the nature and objectives of GAAP illustrate the unlikelihood that the
Secretary would choose such a course, where (1) contrary to the Secretary's mandate to
match reimbursement with Medicare services, GAAP does not necessarily parallel
economic reality, (2) financial accounting has as its foundation the principle of
conservatism, with a corollary that possible errors in measurement should be in the
direction of understatement rather than overstatement of net income and net assets, which
orientation may be consistent with the objective of informing investors but ill-serves the
needs of Medicare reimbursement and its mandate to avoid cross- subsidization, and (3)
rather than being a single-source accounting rulebook, GAAP (a) encompasses the
conventions, rules, and procedures that define accepted accounting practice at a particular
point in time, (b) changes, and (c) even at any one point, is often indeterminate.
(O'Connor, Scalia, Souter, and Thomas, JJ., dissented from this holding.) Shalala v
Guernsey Memorial Hosp. (1995, US) 46 Soc Sec Rep Serv 640, 131 L Ed 2d 106, 115
S Ct 1232, 95 CDOS 1666, remanded, without op sub nom Guernsey Memorial Hosp. v
Secretary of Health & Human Servs. (CA6) 52 F3d 325, reported in full (CA6) 1995 US
App LEXIS 9094.
Footnotes
Footnote 80. Peck v University Residence Committee, 248 Kan 450, 807 P2d 652.
Footnote 82. Matthews v Will County Dept. of Public Aid (3d Dist) 152 Ill App 3d 400,
105 Ill Dec 429, 504 NE2d 529; Shell Oil Co. v Illinois Pollution Control Bd. (5th Dist)
37 Ill App 3d 264, 346 NE2d 212; Younie v Doyle, 306 Mass 567, 29 NE2d 137, 131
ALR 379.
Where an ambiguous term in an administrative rule can be construed to bring the rule
within the substantive requirements of the statute, and avoid the necessity for striking it,
the court will do so. Re Agency of Admin., State Bldgs. Div., 141 Vt 68, 444 A2d 1349.
Footnote 83. California Drive-In Restaurant Asso. v Clark, 22 Cal 2d 287, 140 P2d 657,
7 CCH LC ¶ 61672, 147 ALR 1028; Shell Oil Co. v Illinois Pollution Control Bd. (5th
Dist) 37 Ill App 3d 264, 346 NE2d 212.
705; Auchmoody v 911 Emergency Services (2nd Dist) 214 Cal App 3d 1510, 263 Cal
Rptr 278, 29 BNA WH Cas 999; Preston v Department of Environmental Protection, 218
Conn 821, 591 A2d 421, 22 ELR 20251; Williams v Hawaii Medical Service Assn., 71
Hawaii 545, 798 P2d 442, 12 EBC 2619, reconsideration den 71 Hawaii 666, 833 P2d
900; Bingham Memorial Hosp. v Idaho Dep't of Health & Welfare, 112 Idaho 1094, 739
P2d 393 (superseded by statute on other grounds as stated in Tomorrow's Hope, Inc. v
State Dep't of Health & Welfare (Idaho) 1993 Ida LEXIS 190); John Sexton Contractors
Co. v Pollution Control Bd. (1st Dist) 201 Ill App 3d 415, 146 Ill Dec 888, 558 NE2d
1222; Shell Oil Co. v Illinois Pollution Control Bd. (5th Dist) 37 Ill App 3d 264, 346
NE2d 212; Johnson County Farm Bureau Coop. Assn. v Indiana Dept. of State Revenue
(Ind Tax) 568 NE2d 578, affd, adopted (Ind) 585 NE2d 1336; Hollinrake v Iowa Law
Enforcement Academy (Iowa) 452 NW2d 598, 2 AD Cas 1066; Revenue Cabinet v Joy
Technologies, Inc. (Ky App) 838 SW2d 406; Massachusetts Municipal Wholesale
Electric Co. v Massachusetts Energy Facilities Siting Council, 411 Mass 183, 580 NE2d
1028; Detroit Base Coalition for Human Rights of Handicapped v Director, Dept. of
Social Services, 431 Mich 172, 428 NW2d 335, 88 ALR4th 1075; Re Peila, 249 Mont
272, 815 P2d 139; Stratbucker Children's Trust v Zoning Bd. of Appeals, 243 Neb 68,
497 NW2d 671; Re N.J.A.C. 14A:20-1.1, 216 NJ Super 297, 523 A2d 686; Madler v
McKenzie County (ND) 496 NW2d 17; Estate of He Crow v Jensen (SD) 494 NW2d

186; Railroad Com. v Shell Oil Co., 139 Tex 66, 161 SW2d 1022; Slocum v Department
of Social Welfare, 154 Vt 474, 580 A2d 951; Multicare Medical Center v Department of
Social & Health Services, 114 Wash 2d 572, 790 P2d 124; Re Marriage of Zimmerman
(App) 169 Wis 2d 516, 485 NW2d 294.
705; Auchmoody v 911 Emergency Services (2nd Dist) 214 Cal App 3d 1510, 263 Cal
Rptr 278, 29 BNA WH Cas 999; Shell Oil Co. v Illinois Pollution Control Bd. (5th Dist)
37 Ill App 3d 264, 346 NE2d 212; Revenue Cabinet v Joy Technologies, Inc. (Ky App)
838 SW2d 406; States' Rights Democratic Party v State Board of Elections, 229 NC 179,
49 SE2d 379; Railroad Com. v Shell Oil Co., 139 Tex 66, 161 SW2d 1022.
Footnote 86. Ex parte Mitsuye Endo, 323 US 283, 89 L Ed 243, 65 S Ct 208; Shell Oil
Co. v Illinois Pollution Control Bd. (5th Dist) 37 Ill App 3d 264, 346 NE2d 212;
Revenue Cabinet v Joy Technologies, Inc. (Ky App) 838 SW2d 406.
Footnote 87. Ex parte Mitsuye Endo, 323 US 283, 89 L Ed 243, 65 S Ct 208; Newsome
v Trans International Airlines (Ala) 492 So 2d 592, cert den 479 US 950, 93 L Ed 2d
386, 107 S Ct 436; Robinson v Fair Employment & Housing Com., 2 Cal 4th 226, 5 Cal
Rptr 2d 782, 825 P2d 767, 92 CDOS 2285, 92 Daily Journal DAR 3599, 58 BNA FEP
Cas 887; Green Mountain Post, American Legion v Liquor Control Board, 117 Vt 405,
94 A2d 230, 35 ALR2d 1060.
As to validity of rules and regulations, generally, see §§ 225 et seq.
Footnote 88. United States v Carroll, 345 US 457, 97 L Ed 1147, 73 S Ct 757, 53-1
USTC ¶ 9356, 43 AFTR 393; California Drive-In Restaurant Asso. v Clark, 22 Cal 2d
287, 140 P2d 657, 7 CCH LC ¶ 61672, 147 ALR 1028; Revenue Cabinet v Joy
Technologies, Inc. (Ky App) 838 SW2d 406; Smith v Highway Board, 117 Vt 343, 91
A2d 805 (must construe to serve the purpose for which enacted).
Footnote 89. Madler v McKenzie County (ND) 496 NW2d 17; Estate of He Crow v
Jensen (SD) 494 NW2d 186.
Footnote 90. United States v Allied Oil Corp., 341 US 1, 95 L Ed 697, 71 S Ct 544;
State v Christie, 70 Hawaii 158, 766 P2d 1198, cert den 490 US 1067, 104 L Ed 2d 633,
109 S Ct 2068.
A reading of two separate sections of estate tax regulations that would make them
overlap instead of confining them to their mutually exclusive subjects was rejected by the
court. Commissioner v Estate of Sternberger, 348 US 187, 99 L Ed 246, 75 S Ct 229,
55-1 USTC ¶ 11504, 46 AFTR 976.
Footnote 91. Cammarano v United States, 358 US 498, 3 L Ed 2d 462, 79 S Ct 524,

59-1 USTC ¶ 9262, 3 AFTR 2d 697 (superseded by statute on other grounds as stated in
Cloud v Commissioner, 97 TC 613); Johnson County Farm Bureau Coop. Assn. v
Indiana Dept. of State Revenue (Ind Tax) 568 NE2d 578, affd, adopted (Ind) 585 NE2d
1336 (the court will give effect, if possible, to every word and clause); Hellman v Board
of Registration in Medicine, 404 Mass 800, 537 NE2d 150 (no words are to be
considered superfluous); States' Rights Democratic Party v State Board of Elections, 229
NC 179, 49 SE2d 379; Slocum v Department of Social Welfare, 154 Vt 474, 580 A2d
951 (all language is inserted for a purpose).
Courts strive to give meaning to all parts of an administrative rule and to avoid
construing any part as superfluous. Williams v Hawaii Medical Service Assn., 71 Hawaii
545, 798 P2d 442, 12 EBC 2619, reconsideration den 71 Hawaii 666, 833 P2d 900.
Footnote 92. Spreckels v Commissioner, 315 US 626, 86 L Ed 1073, 62 S Ct 777, 42-1

USTC ¶ 9345, 28 AFTR 1010.
Footnote 93. Commissioner v Wodehouse, 337 US 369, 93 L Ed 1419, 69 S Ct 1120,

81 USPQ 482, 49-1 USTC ¶ 9310, 37 AFTR 1363, reh den 338 US 840, 94 L Ed 514,
70 S Ct 31, 38 AFTR 502; Alabama Medicaid Agency v Beverly Enterprises (Ala App)
521 So 2d 1329; Linderman v Illinois Civil Service Com. (1st Dist) 188 Ill App 3d 554,
136 Ill Dec 320, 544 NE2d 1095, app den (Ill) 139 Ill Dec 514, 548 NE2d 1070; Iowa
Federation of Labor v Iowa Dept. of Job Service (Iowa) 427 NW2d 443 (words are used
in their ordinary and usual sense with the meaning commonly attributed to them);
Insurance Comr. v Bankers Independent Ins. Co., 326 Md 617, 606 A2d 1072;
Warcewicz v Department of Environmental Protection, 410 Mass 548, 574 NE2d 364
(words are accorded their usual and ordinary meaning); Nelson v South Dakota State Bd.
of Dentistry (SD) 464 NW2d 621 (terms should be given their accepted usage); Slocum v
Department of Social Welfare, 154 Vt 474, 580 A2d 951.
Footnote 94. United States v Mersky, 361 US 431, 4 L Ed 2d 423, 80 S Ct 459

(prosecution for concealing country of origin by removing label from imports did not lie
where the regulation relied upon was enacted for purposes of valuation rather than
information); M. Kraus & Bros., Inc. v United States, 327 US 614, 90 L Ed 894, 66 S
Ct 705 (criminal conviction ought not to rest on interpretation reached by use of policy
judgments rather than inexorable demand of relevant language).
Footnote 95. See Cole v Young, 351 US 536, 100 L Ed 1396, 76 S Ct 861.
Footnote 97. Hagan v Farris (Ky) 807 SW2d 488.
Footnote 98. Peoples State Bank v Hickey, 55 Wash App 367, 777 P2d 1056, review den
113 Wash 2d 1029, 784 P2d 530.
Footnote 99. Coppola v Fulton (Okla) 809 P2d 1291; Consumer Advocate Div. of Pub.
Serv. Comm'n etc. v Public Serv. Comm'n, 182 W Va 152, 386 SE2d 650.
When faced with an unambiguous regulation, the court may not speculate as to the intent
of the regulation or add words to the regulation. Multicare Medical Center v Department
of Social & Health Services, 114 Wash 2d 572, 790 P2d 124.
§ 240 Judicial deference to administrative construction
View Entire Section

Go to Supplement
Although some courts say that an agency's interpretation of its own rules is not entitled to
deference, 1 or is merely persuasive, 2 the more widely accepted view is that a court
construing a regulation will give substantial deference 3 to the administrative
construction or interpretation by an agency of its own regulation, so long as it is
reasonable, 4 and not in conflict with the plain language of the statute, 5 and
especially when the construction or interpretation is long continued and uniform. 6
Some courts even state that, in construing administrative regulations, the ultimate
criterion is the administrative interpretation, which becomes of controlling weight unless
it is plainly erroneous or inconsistent with the regulation, 7 or inconsistent with the
statute under which it was promulgated. 8 Courts also defer to the interpretation of
regulations by agencies charged with their implementation. 9
When the construction of an administrative regulation rather than a statute is in issue,

judicial deference to the administrative agency's interpretation is even more clearly in
order. 10 Deference is particularly required when the agency construction rests on
matters peculiarly within the agency's field of expertise, 11 or concerns internal agency
matters. 12 Moreover, where a regulation has received a particular construction with
substantial consistency and the statute, with the meaning thus settled, has been reenacted
by Congress, the construction should be followed until Congress sees fit to change it. 13
Nevertheless, it is the court, rather than the agency, which must ultimately determine the
true construction or interpretation, 14 and courts will not construe rules in a manner
inconsistent with the governing statute 15 or the regulation itself, 16 or in a manner that
produces an impractical, 17 unjust, 18 unreasonable, 19 or absurd result. 20
Furthermore, if the agency's rule is unambiguous on its face, no interpretation is
necessary and the court must give effect to the agency's intention as clearly expressed, 21
and even a long standing interpretation should be disregarded when such interpretation
conflicts with the clear language of the rules. 22
§ 240 ----Judicial deference to administrative construction [SUPPLEMENT]
Case authorities:
The Interstate Commerce Commission's interpretation of its own regulation is entitled to

controlling weight unless that interpretation is plainly erroneous or inconsistent with the
regulation. Security Servs. v Kmart Corp. (1994, US) 128 L Ed 2d 433, 114 S Ct 1702,
94 CDOS 3454, 94 Daily Journal DAR 6513, 25 BCD 1026, 8 FLW Fed S 107.
Footnotes
Footnote 1. Nelson v South Dakota State Bd. of Dentistry (SD) 464 NW2d 621.
Footnote 2. Beverly Enterprises-Arkansas, Inc. v Arkansas Health Services Com., 308

Ark 221, 824 SW2d 363.
Footnote 3. Martin v OSHRC, 499 US 144, 113 L Ed 2d 117, 111 S Ct 1171, 91 CDOS
1985, 91 Daily Journal DAR 3294, 14 BNA OSHC 2097, 1991 CCH OSHD ¶ 29257,

102-69 Fulton County D R 16B, on remand (CA10) 941 F2d 1051, 15 BNA OSHC 1209,
1991 CCH OSHD ¶ 29431, on remand, remanded (OSHRC) 1991 CCH OSHD ¶ 29525,
on remand (OSHRC ALJ) 1992 CCH OSHD ¶ 29650, later proceeding (OSHRC ALJ) 15
BNA OSHC 1668; Transcanada Pipelines, Ltd. v Federal Energy Regulatory Com., 278
US App DC 299, 878 F2d 401 (considerable deference); Orsinger Outdoor Advertising,
Inc. v Department of Highways (Colo) 752 P2d 55; Department of Natural Resources v
Wingfield Dev. Co. (Fla App D1) 581 So 2d 193, 16 FLW D 1468 (great weight); Hagan
v Farris (Ky) 807 SW2d 488; Wright v Saco School Dept. (Me) 610 A2d 257 (great
deference); Changing Point, Inc. v Maryland Health Resources Planing Com., 87 Md
App 150, 589 A2d 502 (deference); Boston Police Superior Officers Federation v Boston,
414 Mass 458, 608 NE2d 1023 (considerable deference); Helms v State, Div. of Envtl.
Protection (Nev) 109 Nev 310, 849 P2d 279 (great weight); Cuyahoga County Bd. of
Comrs. v Ford (Cuyahoga Co) 35 Ohio App 3d 88, 520 NE2d 1 (criticized on other
grounds by Bachtel v Summit County Recorder (Ohio App, Summit Co) 1989 Ohio App
LEXIS 4447) (due deference); Carbondale Nursing Home, Inc. v Commonwealth, Dept.
of Public Welfare, 120 Pa Cmwlth 186, 548 A2d 376 (substantial weight); Slocum v
Department of Social Welfare, 154 Vt 474, 580 A2d 951 (great weight); Thomas v
Department of Social & Health Services, 58 Wash App 427, 793 P2d 466 (great weight);
Wagner v Department of Health & Social Servs. (App) 163 Wis 2d 318, 471 NW2d 269,
appeal after remand (Wis App) 1993 Wisc App LEXIS 1220 (court will ordinarily defer).
Courts give agencies a reasonable range of discretion in the interpretation and application
of their own administrative rules. Hollinrake v Iowa Law Enforcement Academy (Iowa)
452 NW2d 598, 2 AD Cas 1066.
The deferential rule of construction is an important part of official immunity; if an

administrative agency interprets its own ambiguous rule, and its interpretation is
reasonable, the agency's employees must be able to follow that interpretation without fear
of liability. Wagner v Department of Health & Social Servs. (App) 163 Wis 2d 318, 471
NW2d 269, appeal after remand (Wis App) 1993 Wisc App LEXIS 1220.
Law Reviews: Weaver and Schweitzer, Deference to Agency Interpretations of

Regulations: A Post-Chevron Assessment. 22 Mem St U LR 412 (Spring 1992).
Footnote 4. Martin v OSHRC, 499 US 144, 113 L Ed 2d 117, 111 S Ct 1171, 91 CDOS
1985, 91 Daily Journal DAR 3294, 14 BNA OSHC 2097, 1991 CCH OSHD ¶ 29257,
102-69 Fulton County D R 16B, on remand (CA10) 941 F2d 1051, 15 BNA OSHC 1209,
on remand (OSHRC ALJ) 1992 CCH OSHD ¶ 29650, later proceeding (OSHRC ALJ) 15
BNA OSHC 1668; Hija Lee Yu v District of Columbia Rental Housing Com. (Dist Col
App) 505 A2d 1310; Easy v State Dept. of Natural Resources & Conservation, 231 Mont
306, 752 P2d 746.
Footnote 5. K mart Corp. v Cartier, Inc., 486 US 281, 100 L Ed 2d 313, 108 S Ct 1811,
6 USPQ2d 1897, 1988-1 CCH Trade Cases ¶ 68018.
When a rule does not conflict with statutory and constitutional requirements, courts will
ascertain and effectuate the intent of the agency that promulgated the rule. Williams v
Hawaii Medical Service Assn., 71 Hawaii 545, 798 P2d 442, 12 EBC 2619,
reconsideration den 71 Hawaii 666, 833 P2d 900.

Footnote 6. Power Reactor Development Co. v International Union of Electrical, etc.,
367 US 396, 6 L Ed 2d 924, 81 S Ct 1529; Consumer Advocate Div. of Pub. Serv.
Comm'n etc. v Public Serv. Comm'n, 182 W Va 152, 386 SE2d 650.
The agency interpretation should be adhered to as long as it is rational, and adhered to

consistently. Boston Police Superior Officers Federation v Boston, 414 Mass 458, 608
NE2d 1023.
Deference is particularly warranted where the subject of the rule is technical and has long
been applied in a particular manner. State v Acosta, 112 Or App 191, 827 P2d 1368.

Facchiano Constr. Co. v United States Dep't of Labor (CA3 Pa) 987 F2d 206, 1 BNA
WH Cas 2d 468, 39 CCF ¶ 76542, 124 CCH LC ¶ 35782, cert den (US) 126 L Ed 2d 48,
114 S Ct 80, 1 BNA WH Cas 2d 1056, 126 CCH LC ¶ 33018; Transcanada Pipelines,
Ltd. v Federal Energy Regulatory Com., 278 US App DC 299, 878 F2d 401; Trustees for
Alaska v State, Dep't of Natural Resources (Alaska) 795 P2d 805, 111 OGR 164, appeal
after remand, remanded (Alaska) 847 P2d 1061, op withdrawn, reh den, in part, mod, on
reh (Alaska) 1993 Alas LEXIS 34 and substituted op (Alaska) 851 P2d 1340, 37 Envt
Rep Cas 1225; General Tel. Co. of Southwest v Arkansas Public Service Com., 23 Ark
App 73, 744 SW2d 392, affd 295 Ark 595, 751 SW2d 1; Maha'ulepu v Land Use Com.,
71 Hawaii 332, 790 P2d 906; State ex rel. Blair v Gettinger, 230 Ind 588, 105 NE2d 161;
Miller's Smorgasbord v DOT, 139 Pa Cmwlth 385, 590 A2d 854; Rogers v Watson, 156
Vt 483, 594 A2d 409; Wagner v Department of Health & Social Servs. (App) 163 Wis
2d 318, 471 NW2d 269, appeal after remand (Wis App) 1993 Wisc App LEXIS 1220;
Doidge v State, Bd. of Charities & Reform (Wyo) 789 P2d 880.
The construction of a statue by those charged with its execution should be followed
unless there are compelling indications that such construction is wrong. E. I. Du Pont de
Nemours & Co. v Collins, 432 US 46, 53 L Ed 2d 100, 97 S Ct 2229, CCH Fed Secur L
Rep ¶ 96081.
Since the court must endeavor to ensure that deference does not result in unjust, absurd or
unreasonable consequences, the presumption of validity for an agency's interpretation of
its regulations may be overcome by the existence of compelling indications of error in
such interpretations. In re Verburg, 159 Vt 161, 616 A2d 237.
Footnote 8. Miller's Smorgasbord v DOT, 139 Pa Cmwlth 385, 590 A2d 854.
Footnote 9. Kershaw v Resolution Trust Corp. (CA5 La) 987 F2d 1206; Preston v
Department of Environmental Protection, 218 Conn 821, 591 A2d 421, 22 ELR 20251;
Falk v Beard (Fla) 614 So 2d 1086, 18 FLW S 135; Secretary of Dept. of Revenue &
Taxation v Texas Gas Exploration Corp. (La App 1st Cir) 506 So 2d 528, 93 OGR 663.
See Scates v Rydingsword (1st Dist) 229 Cal App 3d 1085, 280 Cal Rptr 544, 91 CDOS
3230, 91 Daily Journal DAR 5194, reh den (Cal App 1st Dist) 91 CDOS 4317, 91 Daily
Journal DAR 6532, stating that a court must accord great weight to an interpretation
placed on a board enactment by the administrative agency charged with its enforcement
and interpretation, especially where that interpretation is longstanding and has remained
uniform.
Footnote 10. Udall v Tallman, 380 US 1, 13 L Ed 2d 616, 85 S Ct 792, 22 OGR 715,

reh den 380 US 989, 14 L Ed 2d 283, 85 S Ct 1325.
As to judicial deference to statutory interpretations of agency, see §§ 85 et seq.
Footnote 11. Transcanada Pipelines, Ltd. v Federal Energy Regulatory Com., 278 US
App DC 299, 878 F2d 401; A. O. Smith Corp. v Oglesby (App) 108 Wis 2d 583, 323
NW2d 143.
Footnote 12. Boston Police Superior Officers Federation v Boston, 414 Mass 458, 608
NE2d 1023.
Footnote 13. Fondren v Commissioner, 324 US 18, 89 L Ed 668, 65 S Ct 499, 45-1

USTC ¶ 10164, 33 AFTR 302.
Footnote 14. Bartels v Birmingham, 332 US 126, 91 L Ed 1947, 67 S Ct 1547, 35

AFTR 1340, 172 ALR 317 (superseded by statute on other grounds as stated in Donovan
v Agnew (CA1 Mass) 712 F2d 1509, 26 BNA WH Cas 466, 98 CCH LC ¶ 34418) and
(superseded by statute on other grounds as stated in Far West Services, Inc. v Livingston
(4th Dist) 156 Cal App 3d 931, 203 Cal Rptr 486); M. Kraus & Bros., Inc. v United
States, 327 US 614, 90 L Ed 894, 66 S Ct 705; Hollinrake v Iowa Law Enforcement
Academy (Iowa) 452 NW2d 598, 2 AD Cas 1066.
An agency's interpretation of its own rule remains subject to independent appellate

review. Thomas v Department of Social & Health Services, 58 Wash App 427, 793 P2d
466.
Law Reviews: Weaver, Judicial Interpretation of Administrative Regulations: An

Overview. 535 U Cin LR 681 (1984).
Footnote 15. Palmer v Bath Iron Works Corp. (Me) 559 A2d 340; Smith v Director, Div.
of Taxation, 108 NJ 19, 527 A2d 843.
Footnote 16. Warcewicz v Department of Environmental Protection, 410 Mass 548, 574
NE2d 364.
Footnote 17. Iowa Federation of Labor v Iowa Dept. of Job Service (Iowa) 427 NW2d
443.
Footnote 18. In re Verburg, 159 Vt 161, 616 A2d 237.
Footnote 19. Massachusetts Municipal Wholesale Electric Co. v Massachusetts Energy

Facilities Siting Council, 411 Mass 183, 580 NE2d 1028; In re Verburg, 159 Vt 161, 616
A2d 237; Franklin v Housing Authority of Milwaukee (App) 155 Wis 2d 419, 455
NW2d 668.
Footnote 20. Williams v Hawaii Medical Service Assn., 71 Hawaii 545, 798 P2d 442, 12
EBC 2619, reconsideration den 71 Hawaii 666, 833 P2d 900; Iowa Federation of Labor v
Iowa Dept. of Job Service (Iowa) 427 NW2d 443; In re Verburg, 159 Vt 161, 616 A2d
237.
Footnote 21. Jordan v Department of Corrections, 165 Mich App 20, 418 NW2d 914.

Footnote 22. Consumer Advocate Div. of Pub. Serv. Comm'n etc. v Public Serv.
Comm'n, 182 W Va 152, 386 SE2d 650.
§ 241 --Limitations of deference doctrine
View Entire Section

Deference is inappropriate where the interpretation is contrary to administrative and

decisional precedent, 23 or contrary to public policy. 24 Deference to the post hoc
interpretation of agency appellate counsel advanced for the first time to a reviewing court
is also inappropriate. 25
Footnotes
Footnote 23. Carbondale Nursing Home, Inc. v Commonwealth, Dept. of Public Welfare,
120 Pa Cmwlth 186, 548 A2d 376.
Footnote 24. Re Akina Bus Service, Ltd., 9 Hawaii App 240, 833 P2d 93.
(OSHRC ALJ) 15 BNA OSHC 1668; Portland Audubon Soc'y v Oregon Lands Coalition
(CA9) 984 F2d 1534, 93 CDOS 1003, 93 Daily Journal DAR 1935, 35 Envt Rep Cas
2081, 23 ELR 20560, amd on other grounds (CA9) 93 CDOS 2411, 93 Daily Journal
DAR 4157.
§ 242 Interpretive rules
View Entire Section

Although some courts state that an interpretive regulation receives great judicial
deference, 26 some courts are undecided as to whether the great deference due to
legislative rules applies to interpretive decisions, 27 and there is some authority that
courts may accord less weight to agency guidelines than to administrative regulations,
enacted pursuant to statutory authority, in determining legislative intent. 28
Some authority holds that interpretive rulings, while not controlling upon the court by
reason of their authority, do constitute a body of experience and informed judgment to

which courts and litigants may property resort for guidance. 29 Thus, some
courts provide that interpretive rules are entitled only to such deference as their inherent
persuasiveness commands. 30 Some courts state that, with respect to the role of
interpretative rulings, the weight of such a judgment in a particular case will depend upon
the thoroughness evident in its consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors that give it power to
persuade, if lacking power to control. 31
Footnotes
Footnote 26. Wagner Seed Co., Inc v Bush, 292 US App DC 44, 946 F2d 918, 1991 US
App LEXIS 23721, 33 Envt Rep Cas 1897, 22 ELR 20001, cert den 118 L Ed 2d 304,
1992 US LEXIS 2145, 112 S Ct 1584, 60 USLW 3687, 34 Envt Cas 1784.
As to judicial deference to administrative constructions of statutes, generally, see §§ 85

et seq.
Footnote 27. International Raw Materials v Stauffer Chem. Co. (CA3 Pa) 978 F2d 1318,
1992-2 CCH Trade Cases ¶ 700162, cert den 123 L Ed 2d 154, 1993 US LEXIS 2207,
113 S Ct 1588, 61 USLW 3651ec.
Footnote 28. General Elec. Co. v Gilbert, 429 US 125, 50 L Ed 2d 343, 97 S Ct 401, 1
EBC 1046, 13 BNA FEP Cas 1657, 12 CCH EPD ¶ 11240, reh den 429 US 1079, 50 L
Ed 2d 799, 97 S Ct 825, 13 CCH EPD ¶ 11408 and reh den 429 US 1079, 50 L Ed 2d
800, 97 S Ct 825, 13 CCH EPD ¶ 11408 and (superseded by statute on other grounds as
stated in Islesboro Sch. Comm. v Califano (CA1) 593 F2d 424, 19 BNA FEP Cas 172, 19
CCH EPD ¶ 9019) and (superseded by statute on other grounds as stated in Spirt v
Teachers Ins. & Annuity Ass'n (CA2 NY) 691 F2d 1054, 3 EBC 2009, 29 BNA FEP Cas
1599, 30 CCH EPD ¶ 33072) and (superseded by statute on other grounds as stated in
Newport News Shipbuilding & Dry Dock Co. v EEOC, 462 US 669, 77 L Ed 2d 89,
103 S Ct 2622, 4 EBC 1553, 32 BNA FEP Cas 1, 32 CCH EPD ¶ 33673) and (not
followed on other grounds by Bankers Life & Casualty Co. v Peterson (Mont) 1993 Mont
LEXIS 416).
LEXIS 416); Bader v Norfolk Redevelopment & Housing Authority, 10 Va App 697, 396
SE2d 141.

Footnote 30. Shakopee Mdewakanton Sioux Community v Hope (DC Minn) 798 F Supp
1399.
LEXIS 416); Bader v Norfolk Redevelopment & Housing Authority, 10 Va App 697, 396
SE2d 141.
I. Enforcement of Rules [243-245]
Research References
Model State Administrative Procedure Act (1981) § 5-201
§ 243 Generally; administrative enforcement
View Entire Section

Go to Supplement
Generally, a regulation may be enforced only in the manner prescribed by statute, and the
administrative agency may not add to the penalties the legislature has placed behind a
statute. 32 Some administrative agencies have summary or enforcement powers, 33
and in this connection it has been held that the power to enforce a rule is implied in the
power to establish it. 34 Thus, in particular cases enforcement of a rule, regulation, or
general order may be by the administrative process, 35 such as the suspension,
revocation, or withholding of a license 36 or other privilege or benefit, 37 suspension
or expulsion from school, 38 or even the imposition of a monetary penalty under an
authorizing statute. 39 However, as a general rule, an administrative agency does not
have the power to impose punishment for contempt, unless constitutional provisions
expressly give the agency that power. 40
§ 243 ----Generally; administrative enforcement [SUPPLEMENT]
Case authorities:

Congress intended moratorium of Omnibus Budget Reconciliation Act, 42 USCS §
1395f, to apply only where Medicare provider was in compliance with rules existing on
August 1, 1987; Secretary may not retroactively apply more stringent interpretation of
those then-existing rules, nor reopen notice of program reimbursement. Hennepin County
Medical Ctr. v Shalala (1996, CA8 Minn) 81 F3d 743, 50 Soc Sec Rep Serv 526.
Footnotes
Footnote 32. L. P. Steuart & Bro., Inc. v Bowles, 322 US 398, 88 L Ed 1350, 64 S Ct
1097.
Footnote 33. Bergeda v State, 179 Tenn 460, 167 SW2d 338, 144 ALR 696.
An agency that is granted the authority to adopt certain regulations has the authority to
enforce such regulations. Drysdale v University of State of New York at Stony Brook,
60 Misc 2d 180, 302 NYS2d 882.
Footnote 34. White Way Pure Milk Co. v Alabama State Milk Control Board, 265 Ala
660, 93 So 2d 509 (enforcement by ordering payment of fine or loss of license); Motor
Truck Transfer, Inc. v Southwestern Transp. Co., 197 Ark 346, 122 SW2d 471
(enforcement by withholding a license); Nicholls v Lynn, 297 Mass 65, 7 NE2d 577, 110
ALR 377 (enforcement by expulsion from school); Burkitt v School Dist., 195 Or 471,
246 P2d 566 (enforcement by expulsion from school).
An agency is authorized to take such action as necessary to prevent circumvention of its

rules. Boffa v Department of Public Aid (1st Dist) 168 Ill App 3d 139, 118 Ill Dec 974,
522 NE2d 644.
As to power to impose penalties as incidental to licensing power, see 51 Am Jur 2d,

Licenses and Permits § 52.
Footnote 35. See Gemsco, Inc. v Walling, 324 US 244, 89 L Ed 921, 65 S Ct 605, 9
CCH LC ¶ 51195, stating that the function of the wage and hour administrator though
primarily preventive, is obviously related to enforcement, where the statute provided that
minimum wage orders must contain such terms and conditions as the administrator finds
necessary to carry out the purposes of such orders, to prevent the circumvention of
evasion thereof, and to safeguard the minimum wage rates established therein.
Footnote 36. 51 Am Jur 2d, Licenses and Permits § 58.
1097, involving the issuance of suspension orders against violators of rationing
regulations prohibiting them from receiving, selling, or using rationed products.
Footnote 38. See 68 Am Jur 2d, Schools §§ 278 et seq.
Footnote 39. Re Rumsey Mfg. Corp., 296 NY 113, 71 NE2d 426, 174 ALR 401, reh den
296 NY 857, 72 NE2d 35.

548 So 2d 330.
§ 244 Judicial enforcement
View Entire Section

Go to Supplement
Generally, a regulation may only be enforced in the manner prescribed by statute, and the
courts may not add to the penalties the legislature has placed behind a statute. 41
Rules not authorized by statute are void and cannot be enforced, 42 Moreover,
regulations that are arbitrary are not to be enforced. 43
Unless otherwise clearly provided by statute, all the inherent equitable powers of the
court are available for the proper and complete exercise of the court's statutory
jurisdiction to enforce compliance with a regulation or enjoin its violation; and where the
public interest is involved in a proceeding of such nature such equitable powers assume
an even broader and more flexible character than when only a private controversy is at
stake. 44 Additionally, statutes have provided various methods for enforcing rules and
regulations of administrative agencies by proceedings in courts, sometimes by private
parties, 45 or through a suit by the agency for an enforcing or restraining order, 46
mandamus, 47 injunction, 48 or other order. 49 In addition, courts generally are
authorized in declaratory judgment actions to grant affirmative or coercive relief. 50
The 1981 version of the Model State Administrative Procedure Act provides that, in
addition to other remedies provided by law, an agency may seek enforcement of its rule
by filing a petition for civil enforcement in the trial court of general jurisdiction. 51
Under the Act, a petition for civil enforcement filed by an agency may request, and the
court may grant, declaratory relief, temporary or permanent injunctive relief, any other
civil remedy provided by law, or any combination of the foregoing. 52 Some courts say
that enforcement should only be refused if the regulation is plainly in excess of
legislative power. 53
Where a government official, such as a police officer, fails to comply with administrative
rules, exclusion of evidence, while not necessarily always the appropriate remedy, may
be appropriate in the context of certain cases. 54
§ 244 ----Judicial enforcement [SUPPLEMENT]
Case authorities:
Department of Health and Human Services, by seeking to recover interest earned on

state's insurance accounts, did not effectively amend Office of Management and Budget
regulation in violation of APA rulemaking procedure; HHS simply sought to enforce by
adjudication state's obligation to return interest owed federal government in accordance
with long-established rule. Commonwealth Office of Budget v Department of Health &
Human Servs. (1993, CA3 Pa) 996 F2d 1505, petition for certiorari filed (Sep 9, 1993).
Footnotes
1097.
Footnote 42. Hyatt Corp. v Honolulu Liquor Com., 69 Hawaii 238, 738 P2d 1205.
Footnote 43. Busey v Deshler Hotel Co. (CA6 Ohio) 130 F2d 187, 42-1 USTC ¶ 9359,
42-1 USTC ¶ 9587, 29 AFTR 1091, 142 ALR 563.
Footnote 44. Porter v Warner Holding Co., 328 US 395, 90 L Ed 1332, 66 S Ct 1086
(ordering restitution of rent overcharges that violated regulations).
Footnote 45. Goldstein v Groesbeck (CA2 NY) 142 F2d 422, 154 ALR 1285, cert den
323 US 737, 89 L Ed 590, 65 S Ct 36 (recovery of refund on contracts made void as a
penalty for failure of holding company to register under the Public Utility Holding
Company Act).
Footnote 46. United States v Ruzicka, 329 US 287, 91 L Ed 290, 67 S Ct 207.
Footnote 47. State ex rel. Railroad Com'rs. v Atlantic C. L. R. Co., 60 Fla 465, 54 So
394.
Footnote 48. Civil Aeronautics Board v Modern Air Transport, Inc. (CA2 NY) 179 F2d
622; Pearson v Walling (CA8 Ark) 138 F2d 655, 7 CCH LC ¶ 61864, cert den 321 US
775, 88 L Ed 1069, 64 S Ct 616.
Footnote 49. Porter v Warner Holding Co., 328 US 395, 90 L Ed 1332, 66 S Ct 1086
("other order" contemplates remedy to be adopted in the exercise of the court's equitable
discretion).
781.
As to affirmative or coercive relief in declaratory judgment actions, see § 232.
Footnote 53. Berrios v Department of Public Welfare, 411 Mass 587, 583 NE2d 856,
remanded 414 Mass 1004, 608 NE2d 734.
Footnote 54. People v Willis, 180 Mich App 31, 446 NW2d 562 (superseded by statute
on other grounds as stated in People v Tomko (Mich App) 1993 Mich App LEXIS 476)
(where the administrative rules concerning the administration of breathalyzer tests were
not complied with, the accuracy of those tests was sufficiently questionable as to
preclude the test results from being admitted into evidence).

§ 245 Actions for damages or penalties; prosecutions for crime
View Entire Section

In certain instances violation of a rule or order may give rise to an individual right of
action in a person benefited by the rule or order. 55 Sometimes a private cause of
action for enforcement of rules or regulations may be implied, even though not expressly
provided for by statute. 56 In addition, violation of a rule may result in a civil
penalty, and some courts state that such rules are penal and must be strictly construed. 57
An interpretive rule may not be relied upon to impose a civil sanction. 58
In addition, under some statutes, administrative regulations have been enforced by

criminal proceedings, the offense of violation of the regulation being created, and
punishment imposed, by the statute. 59 While in such case the regulation being
enforced may be subjected to special scrutiny as to its validity, 60 there is no denial of
due process in withholding from the court trying the criminal charge jurisdiction to
determine the validity of the regulation, where other adequate procedure is provided to
determine such question. 61
Footnotes
Footnote 55. Wirtz v Lobello (4th Dept) 1 App Div 2d 416, 151 NYS2d 474, 30 CCH
LC ¶ 70026, reh and app den (4th Dept) 2 App Div 2d 807, 153 NYS2d 631 and app
dismd without op 2 NY2d 707 and app dismd 2 NY2d 721, 157 NYS2d 356, 138 NE2d
724 and app den 2 NY2d 708.
Footnote 56. Ernst & Ernst v Hochfelder, 425 US 185, 47 L Ed 2d 668, 96 S Ct 1375,
CCH Fed Secur L Rep ¶ 95479, reh den 425 US 986, 48 L Ed 2d 811, 96 S Ct 2194 (a
private cause of action exists for the antifraud provisions of the Securities and Exchange
Commission Rule 10b-5, a rule issued pursuant to 15 USCS § 78j(b)).
Annotation: Civil action by private person under § 10(b) of Securities Exchange Act
of 1934 (15 USC § 78j(b)), 37 ALR2d 649.
Footnote 57. Re Woodrow Wilson Constr. Co. (La App 1st Cir) 563 So 2d 385.
705; United States v Hark, 320 US 531, 88 L Ed 290, 64 S Ct 359, reh den 321 US
802, 88 L Ed 1089, 64 S Ct 517; Atchley v Board of Barber Examiners, 208 Okla 453,
257 P2d 302.
As to administrative rules as the basis of a criminal charge, see § 238.
Footnote 60. State v Miles, 5 Wash 2d 322, 105 P2d 51.

Ops 220 (among conflicting authorities on other grounds noted in Touby v United States,
500 US 160, 114 L Ed 2d 219, 111 S Ct 1752, 91 CDOS 3627, 91 Daily Journal DAR
5811) (due process is not violated by making violations of an administrative regulation a
penal offense unless the offender has established its unlawfulness by an independent
statutory proceeding).
VI. LICENSING [246-260]
A. Definitions of License and Licensing [246, 247]
Research References
5 USCS § 551
Model State Administrative Procedure Act (1961) § 1(2), (3), (4)
Model State Administrative Procedure Act (1981) § 1-102(4)
1A Federal Procedure Forms, L Ed, Administrative Procedure § 2:95
§ 246 Federal Administrative Procedure Act provisions
View Entire Section

Under the federal Administrative Procedure Act, a license is the whole or part of an
agency permit, certificate, approval, registration, charter, membership, statutory
exemption or other form of permission, 62 while licensing is defined to include agency
process respecting the grant, renewal, denial, revocation, suspension, annulment,
withdrawal, limitation, amendment, modification, or condition of a license. 63 It has
been recognized that the definitions of license and licensing under the federal Act are
very broad 64 and include the issuance of permits, 65 certificates, 66 and
approvals. 67 However, it has also been said that although an approval procedure may
appear on the surface to fall within the broad definition of licensing, a license does not
exist where the procedure in question involves the performance of a skilled, but
essentially pro forma act. 68 There is authority that in determining whether a particular
activity constitutes a license or the act of licensing, the adjudicative body may look
beyond the terms of the federal Act definitions, to the functions and duties of the
particular body with respect to the permission sought and the nature of the industry in
question. 69
The terms license and licensing appear throughout the federal APA as part of the
definition of other terms. Thus, the word "order" is said to mean the whole or part of a
final disposition of an agency in a matter other than rulemaking but including licensing.
70 And, the term "sanction" is defined to include the whole or part of an agency

requirement, revocation, or suspension of a license. 71 The term "relief" includes the
whole or part of an agency license. 72 And, the term "agency action" is defined to
include the whole or part of an agency license. 73 However, although the APA defines
many terms used in the Act, it is not exhaustive, leaving such terms as "initial license" 74
and "withdrawal," 75 which are found in the Act, to be defined by the courts.
Footnotes
As to licenses, generally, see 51 Am Jur 2d, Licenses and Permits.
Footnote 64. Seacoast Anti-Pollution League v Costle (CA1) 572 F2d 872, 11 Envt Rep
Cas 1358, 8 ELR 20207, cert den 439 US 824, 58 L Ed 2d 117, 99 S Ct 94, 12 Envt
Rep Cas 1081, later proceeding (CA1) 597 F2d 306, 13 Envt Rep Cas 1001, 9 ELR
20320 and (criticized on other grounds by Chemical Waste Management, Inc. v U.S.
1561, 19 ELR 20868).
2d 963, 77 S Ct 999; Marathon Oil Co. v EPA (CA9) 564 F2d 1253, 12 Envt Rep Cas
1098; Blackwell College of Business v Atty. Gen., 147 US App DC 85, 454 F2d 928.
2d 963, 77 S Ct 999; Green v Brantley (ND Ga) 719 F Supp 1570, app dismd (CA11 Ga)
895 F2d 1387, 16 FR Serv 3d 1492, vacated, reh, en banc, gr (CA11 Ga) 921 F2d 1124
and different results reached on reh, remanded, en banc (CA11 Ga) 941 F2d 1146, 21 FR
Serv 3d 1048 (criticized on other grounds by Schrob v Catterson (CA3 NJ) 967 F2d 929)
and vacated, remanded (CA11 Ga) 981 F2d 514, 6 FLW Fed C 1519, reh, en banc, den
(CA11 Ga) 992 F2d 330.
Forms: Protest against issuance of certificate or permit to applicant. 1A Federal

Footnote 67. New York Pathological & X-Ray Laboratories, Inc. v Immigration &
Naturalization Service (CA2 NY) 523 F2d 79; Blackwell College of Business v Atty.
Gen., 147 US App DC 85, 454 F2d 928.
Footnote 68. American Cylinder Mfrs. Committee v Department of Transp. (CA2 NY)
578 F2d 24.
Footnote 69. Canadian-American Working Arrangement (1976) FMC DKT No 75-56, 39

AdL2d 994.
Footnote 71. 5 USCS § 551(10)(F).

Footnote 72. 5 USCS § 551(11)(A).
§ 247 Model State Administrative Procedure Act provisions
View Entire Section

Under the 1961 version of the Model State Administrative Procedure Act, the term
"license" includes the whole or part of any agency permit, certificate, approval,
registration, charter or similar form of permission required by law, but it does not include
a license required solely for revenue purposes. 76 Some courts say that this broad
definition evidences a legislative intent to include practically any form of permission
required by law. 77 "Licensing" is the agency process respecting the grant, denial,
renewal, revocation, suspension, annulment, withdrawal, or amendment of a license. 78
Under the 1961 version of the Model Act, a licensing proceeding may also be a contested
case. 79 Under the 1981 version of the Model Act, "license" means a franchise, permit,
certification, approval, registration, charter, or similar form of authorization required by
law. 80
Footnotes
As to licenses, generally, see 51 Am Jur 2d, Licenses and Permits.
Footnote 77. Bois Blanc Island Township v Natural Resources Com., 158 Mich App 239,
404 NW2d 719, holding that permits issued to operate sanitary landfills on state land
were "licenses".
B. Grant or Denial of License [248-253]

Research References
5 USCS §§ 555-558
§ 248 Application proceeding as adjudicatory in nature
View Entire Section

Go to Supplement
Historically, there has been considerable debate among courts and scholars whether the
grant or denial of a license application is an adjudicatory or legislative process. This
debate is, of course, more than a philosophical one since due process requirements,
including the right to a full hearing, are generally applicable to adjudicatory proceedings
but not always to legislative proceedings. 81 The debate over the nature of license
application proceedings now seems settled in favor of viewing those proceedings as
adjudicatory in nature, and thus subject to constitutional due process limitations. 82
Under the federal Administrative Procedure Act, proceedings involving applications for
licenses are generally treated as adjudicatory, as the hearing provisions 83 of the Act
are applicable to license applications. 84 There is, however, disagreement whether the
Act itself requires that a hearing be held in license application proceedings. Thus, while
it has been said that the statute requires full adjudicatory hearings to be held whenever
application is made of a license required by law, 85 the prevailing view is that the statute
does not independently require an adjudicative hearing. 86 As a result, the position
has been taken that the Act merely means that any proceeding required to be conducted
in accordance with the provisions on hearings, 87 or any other proceeding required to
be held by law, must be set and completed and a decision made, all within a reasonable
time and with due regard for the interests of the parties. 88 It has also been said that
when an application for a license has been made, the agency must conduct those
proceedings required by the provisions on hearings, 89 assuming that statute otherwise
applies, and if the provisions on hearings do not apply, the agency must set and complete
whatever other proceedings are required by law or the Constitution. 90 There is
authority that these provisions 91 do not apply to temporary licenses. 92 However, the
provisions of the Act 93 relating to license extensions are applicable to temporary
licenses. 94
Although the 1961 version of the Model State Administrative Procedure Act does not
specifically require a hearing, it does state that when the grant of a license is required to
be preceded by notice and opportunity for hearing, the provisions of the Model Act
concerning contested cases apply. 95
§ 248 ----Application proceeding as adjudicatory in nature [SUPPLEMENT]
Case authorities:
Federal Communications Commission adequately explained reasons for dismissing 15
"pioneer preference" applications where, although FCC's dismissal letters provided only
brief explanations of why applications failed to satisfy pioneer preference filing
requirements, those explanations were sufficient for applicants to understand basis for
decision, that applicants described only concepts, not developed service or technological
capabilities. Adams Telcom v FCC (1994, App DC) 38 F3d 576.
Footnotes
Footnote 81. §§ 172, 176, 206, 294.
Footnote 82. Hornsby v Allen (CA5 Ga) 326 F2d 605, reh den (CA5 Ga) 330 F2d 55.
Footnote 83. 5 USCS §§ 556, 557.
Forms: Application or petition for grant of license or other right by agency. 1A

Federal Procedural Forms, L Ed, Administrative Procedure § 2:87.
Footnote 85. United States Steel Corp. v Train (CA7 Ill) 556 F2d 822, 10 Envt Rep Cas
1001, 7 ELR 20419.
20320 (stating that the most that can be said is that Congress assumed that most licensing
would be governed by 5 USCS §§ 556 and 557); Taylor v District Engineer, U. S. Army
Corps of Engineers (CA5 Fla) 567 F2d 1332, 11 Envt Rep Cas 1219, 8 ELR 20194;
Marathon Oil Co. v EPA (CA9) 564 F2d 1253, 12 Envt Rep Cas 1098.
Footnote 87. 5 USCS §§ 556, 557.
Footnote 88. Marathon Oil Co. v EPA (CA9) 564 F2d 1253, 12 Envt Rep Cas 1098.
Footnote 90. Taylor v District Engineer, U. S. Army Corps of Engineers (CA5 Fla) 567
Footnote 92. Bowen Transports, Inc. v United States (DC Ill) 116 F Supp 115.

§ 249 Effect of using rulemaking, rather than adjudicatory, procedures to

determine license criteria
View Entire Section

Go to Supplement
Although license applications under the federal Administrative Procedure Act are
generally considered to be adjudicatory in nature and thus subject to the hearing
requirements applicable to adjudicatory procedures generally, 96 the question arises
whether agency actions performed as part of the agency's rulemaking function and
generally not subject to the full hearing requirements of adjudicatory procedures may, in
some instances, deny potential licensees adjudicatory rights. The leading case dealing
with this question is the Storer Broadcasting case, 97 in which the Supreme Court
rejected the contention that an FCC rule, adopted without formal adjudicatory procedures
and which limited the number of radio and television stations in which a license applicant
could have an interest, violated the applicant's rights under an FCC statute providing that
a license could be denied only after an adjudicatory hearing. The court based its decision
on the fact that the FCC had the power to promulgate such a rule even though the rule
may have the impact of determining future license applications. 98 have been
interpreted to mean that an agency has the power to employ rulemaking for the purpose
of determining general licensing criteria which may deny fact-seeking hearings even
though those criteria will influence, and perhaps summarily decide, the fate of later
license applications. 99 An agency is entitled to diminish the licensee's entitlements
under the license by means of rulemaking, so that no adjudicatory hearing is required
where there is no contested issue, as a result of generic rules that are otherwise
procedurally and substantively valid. 1
 Practice guide: Since as a general matter licensing applications fall within the
general due process requirements of notice and hearing, counsel representing the
licensee should, of course, pursue the argument that the agency's rule violates due
process. 2
§ 249 ----Effect of using rulemaking, rather than adjudicatory, procedures to

determine license criteria [SUPPLEMENT]
Corrections:
The text supported by footnote 99 should read: Storer and similar court decisions have
been interpreted to mean than an agency has the power to employ rulemaking for the
purpose of determining general licensing criteria which may deny fact-seeking hearings
even though those criteria will influence, and perhaps summarily decide, the fate of later
license applications.

Footnotes
S Ct 763, 1 Media L R 1983.
Footnote 98. Federal Power Com. v Texaco, Inc., 377 US 33, 12 L Ed 2d 112, 84 S Ct
1105, 20 OGR 447, reh den 377 US 984, 12 L Ed 2d 753, 84 S Ct 1881; Air North
America v DOT (CA9) 937 F2d 1427, 91 CDOS 5345, 91 Daily Journal DAR 7960.
Footnote 99. Chemical Leaman Tank Lines, Inc. v United States (DC Del) 368 F Supp
925, 6 Envt Rep Cas 1129; Hispanic Information & Telecommunications Network, Inc. v
FCC, 275 US App DC 190, 865 F2d 1289.
See Law Motor Freight, Inc. v Civil Aeronautics Board (CA1) 364 F2d 139, cert den 387
US 905, 18 L Ed 2d 622, 87 S Ct 1683, in which the court, recognizing that an act of an
agency may have both rulemaking and licensing characteristics, concluded that an agency
order constituted rulemaking even though the "rule" resulted from an application filed by
one company.
Footnote 1. Upjohn Co. v Food & Drug Admin., 258 US App DC 394, 811 F2d 1583.
Footnote 2. See Law Motor Freight, Inc. v Civil Aeronautics Board (CA1) 364 F2d 139,
cert den 387 US 905, 18 L Ed 2d 622, 87 S Ct 1683, where argument was rejected.
§ 250 Initial license
View Entire Section

A0lthough under the federal Administrative Procedure Act, applications for licenses are
subject to the same statutory safeguards provided for in adjudicatory proceedings
generally, the Act provides for special treatment of some aspects of applications for
"initial licenses." Thus, the Act provides that an agency may, when a party will not be
prejudiced thereby, adopt procedures for the submission of all or part of the evidence in a
proceeding in written form. 3 The Act further provides that in determining applications
for initial licenses the agency may dispense with the requirement of an initial decision by
the presiding employee (administrative law judge) and instead may issue a tentative
decision, or one of its responsible employees may recommend a decision or eliminate a
preliminary decision completely, where the agency finds on the record that due and
timely execution of its functions imperatively and unavoidably requires it. 4
 Practice guide: The issuance of a license or certificate which is a prerequisite to

engaging in certain employment may not be conditioned upon waiver of a persons
statutory or constitutional due process rights and therefore any such condition must be

void. 5 However, Congress may condition the issuance of licenses on compliance
with agency procedures. 6
Footnotes
The legislative history for 5 USCS § 566(d) suggests limited use of this provision by
stating that to the extent that cross-examination "is necessary to bring out the truth, the
party must have it." House Report No. 79-1980 (1946, 79th Cong, 2d Sess.).
Footnote 5. White v Franklin (ND Miss) 637 F Supp 601.

CCH Bankr L Rptr ¶ 73369).
§ 251 --What constitutes an initial license
View Entire Section

Although the definitional section of the federal Administrative Procedure Act 7 does not
define the phrase "initial license," an initial license has been described as an original
license in contrast to renewals or amendments of existing licenses. 8
While there is authority that an abandonment application is not an application for an

initial license, 9 on the theory that to hold otherwise would render the word "initial" in
the statute mere surplusage, there is other authority to the effect that an application to
abandon a license constitutes an application for an initial license, 10 and further
authority that an application seeking operating authority in an area not included in an
original application constitutes an initial application under 5 USCS § 557(b). 11
 Comment: The differing conclusions appear to depend on whether the court focuses
on the application itself or whether the court focuses on whether the applicant seeks to
engage in a new course of conduct; focusing on the latter results in a broader definition
of an initial license.
Footnotes

Footnote 8. Brotherhood of Locomotive Engineers v United States (ND Ohio) 217 F
Supp 98, 53 BNA LRRM 2180; Marathon Oil Co. v EPA (CA9) 564 F2d 1253, 12 Envt
Rep Cas 1098.
Footnote 9. Chotin Towing Corp. v Federal Power Com., 102 US App DC 69, 250 F2d
394.
Footnote 10. Brotherhood of Locomotive Engineers v United States (ND Ohio) 217 F
Supp 98, 53 BNA LRRM 2180.
Footnote 11. Carl Subler Trucking, Inc. v United States (SD Ohio) 313 F Supp 971
(involving an application to amend).
§ 252 Restrictions on grant of license
View Entire Section

Courts have held that licenses and permits are privileges from which no vested property
rights attach. 12 Congress has the power to condition issuance of licenses on
compliance with agency procedures. 13 In the absence of any infringement on a
constitutionally protected right or liberty, a licensing authority need only show that the
challenged requirement is rationally related to an applicant's fitness for the occupation.
14 One who seeks a license has the burden of proving eligibility to the satisfaction of the
licensing agency. 15
Footnotes
Footnote 12. Chicago v Westphalen (1st Dist) 93 Ill App 3d 1110, 49 Ill Dec 419, 418
NE2d 63, cert den and app dismd 455 US 996, 71 L Ed 2d 858, 102 S Ct 1625.
CCH Bankr L Rptr ¶ 73369).
Footnote 14. Chalfy v Turoff (CA2 NY) 804 F2d 20, 5 FR Serv 3d 1479.
Footnote 15. Arkansas Health Planning & Dev. Agency v Hot Spring County Memorial
Hospital, 291 Ark 186, 723 SW2d 363.
§ 253 Denial of license; notice and statement of grounds
View Entire Section

Go to Supplement
Courts will give evidence its strongest probative value to support an administrative
decision to deny a license. 16 To establish an absence of substantial evidence to support
the administrative decision to deny a license, the appellant must demonstrate that the
proof before the administrative tribunal was so nearly undisputed that fair-minded
persons could not reach its conclusion. 17 The question is not whether the testimony
would have supported a contrary finding, but whether it supports the finding that was
made. 18 This is so despite the fact that the denial of a business license involves rights
subject to the due process clause. 19 However, some states also assert that when the
denial of a license is judicially reviewed, the courts are empowered to reverse or modify
any decision by an agency that violates constitutional or statutory provisions, exceeds the
agency's delegated authority, or is affected by other error of law. 20 The court reviewing
such an agency action will enter the order that it considers just and equitable. 21
Prompt notice must be given by the agency of the denial in whole or in part of written
applications, petitions or requests of an interested person made in connection with agency
proceedings. 22 Except in affirming a prior denial or when the denial is
self-explanatory, the notice must be accompanied by a brief statement of the grounds for
denial. 23
§ 253 ----Denial of license; notice and statement of grounds [SUPPLEMENT]
Case authorities:
Since neither 33 USCS § 403 nor its regulations place restriction on Army Corps of
Engineers' discretion to issue permits under § 403, Corps was fully entitled to take into
account pertinent factors other than navigability, such as environmental impact, when
refusing to issue permits for houseboats on bay. United States v Members of the Estate of
Boothby (1994, CA1 Puerto Rico) 16 F3d 19, summary op at (CA1 Puerto Rico) 22
M.L.W. 1209.
Footnotes
Hospital, 291 Ark 186, 723 SW2d 363.
Hospital, 291 Ark 186, 723 SW2d 363.
Where none of the members of a commission had technical expertise, the court agreed
that the record did not disclose sufficient reliable evidence to sustain the action taken by
the commission. Levinson v Connecticut Bd. of Chiropractic Examiners, 211 Conn 508,
560 A2d 403.
Hospital, 291 Ark 186, 723 SW2d 363.

Footnote 19. Housworth v Glisson (ND Ga) 485 F Supp 29.
C. Withdrawal, Suspension, Revocation, and Annulment [254-257]
Research References
5 USCS § 558
1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Forms 135, 341.2, 351
40 Am Jur POF2d 517, Suspension or Revocation of Mariner's License, Certificate, or
Document
19 Am Jur Trials 123, Defense on Charge of Driving While Intoxicated § 9
§ 254 Generally
View Entire Section

Go to Supplement
Administrative agencies with licensing power also generally have the authority to revoke
or suspend licenses. 24 The exercise of power to revoke a license is "judicial in
nature," and "quasi-judicial." 25 However, a proceeding to suspend a license is
considered an administrative, not a criminal proceeding, 26 and the suspension or
revocation of a license does not depend on the government authority overcoming a
presumption of innocence. 27 The burden rests on the licensee in such cases to prove
that the agency acted illegally and unreasonably. 28 In addition, immunity obtained in
criminal proceedings does not necessarily bar revocation of a license. 29 The agency
involved may not ignore its responsibility concerning licenses, although it must take into
account the licensee's cooperation. 30
Under the federal Administrative Procedure Act, 31 the "withdrawal" of a permit or

license does not include a failure to renew an existing license, apparently on the ground
that a failure to renew does not impose a sanction on the licensee. 32 Also, an order to
refrain from engaging in particular conduct does not constitute withdrawal, suspension,
revocation, or annulment where the licensee does not have an unqualified right to engage
in the conduct in question. 33 And, the provisions relating to withdrawal, and the like
have been held not to apply to a disciplinary proceeding which does not involve the
suspension or revocation of a license. 34
Case authorities:
Secretary of Agriculture's decision to revoke fruit distributor's license under Perishable

Agricultural Commodities Act was not arbitrary and capricious where distributor did not
challenge Secretary's conclusion that underlying violations were willful, flagrant, and
repeated and where "mitigating circumstances," including distributor's financial
difficulties, accords reached with suppliers, absence of actual harm to suppliers, and
potential harm to distributor's creditors, were considered and rejected by Judicial Officer.
Norinsberg Corp. v United States Dep't of Agric. (1995, App DC) 47 F3d 1224.
Where certified pilot examiner received written notice of procedure that FAA was to
follow prior to any hearings or determination of his status, and procedure ensured him 2
distinct reviews of his application and opportunity to present his case before initial
decision maker, and where he offered no evidence of prejudice at district level, FAA's
decision not to renew his certification did not violate its own rules. Fried v NTSB (1996,
App DC) 78 F3d 688.
Footnotes
318, 777 P2d 91, reh den.
But see Bivins Constr. v State Contractors' Bd., 107 Nev 281, 809 P2d 1268, where the
State Contractors' Board suspended a contractor's license pending payment of a claim, the
suspension was tantamount to an award of contract damages in a contested case and the
board did not have the power to impose damages upon parties subject to it licensing
authority.
As to suspension and revocation of licenses, generally, see 51 Am Jur 2d, Licenses and
Permits §§ 58 et seq., 142 et seq.
Forms: Notice–Order revoking license to practice. 1A Am Jur Pl & Pr Forms (Rev),

Administrative Law, Form 135.
318, 777 P2d 91, reh den.
Footnote 26. Sapstein Bros. Pharmacy, Inc. v Department of Registration & Educ. (1st
Dist) 177 Ill App 3d 349, 126 Ill Dec 655, 532 NE2d 340 (proceeding to suspend
pharmacist license); E & H Enterprises, Inc. v Skaggs (Mo App) 607 SW2d 215.
Footnote 27. E & H Enterprises, Inc. v Skaggs (Mo App) 607 SW2d 215.

Footnote 28. Blesso v Board of Plumbing & Piping Examiners, 30 Conn Supp 262, 310
A2d 136.
Footnote 29. Greco v Board of Examiners of Nursing Home Admrs. (3d Dept) 91 App
Div 2d 1108, 458 NYS2d 343, affd 60 NY2d 709, 468 NYS2d 867, 456 NE2d 808.
Footnote 30. Greco v Board of Examiners of Nursing Home Admrs. (3d Dept) 91 App
Div 2d 1108, 458 NYS2d 343, affd 60 NY2d 709, 468 NYS2d 867, 456 NE2d 808.
Footnote 32. Bankers Life & Casualty Co. v Callaway (CA5 Fla) 530 F2d 625, 10 Envt
Rep Cas 1741, reh den (CA5 Fla) 536 F2d 1387 and cert den 429 US 1073, 50 L Ed 2d
791, 97 S Ct 811.
Footnote 33. Music Broadcasting Co. v Federal Communications Com., 95 US App DC

12, 217 F2d 339 (involving an order to a radio station to refrain broadcasting before
sunrise).
Footnote 34. George Steinberg & Son, Inc. (1973) 32 Ag Dec 236, 33 Ad LJ 395.
§ 255 Requirement of notice and opportunity to comply
View Entire Section

Go to Supplement
Due process considerations are more demanding in proceedings involving the revocation
of a license. 35 The federal Administrative Procedure Act states that proceedings for
withdrawal, suspension, revocation, or annulment of a license are lawful only if, before
the institution of agency proceedings, the licensee has been given notice in writing of the
facts which warrant action 36 and an opportunity to demonstrate or achieve compliance
with all lawful requirements. 37 This provision of the federal Act does not apply where
a license expires on its own terms, as the result of an objective condition, beyond the
control of the licensee. 38 The 1961 version of the Model State Administrative
Procedure Act contains a similar provision, 39 and further states that when the denial of
a license is required to be preceded by notice and opportunity for hearing, the provisions
of the Act concerning contested cases apply. 40 Some states, however, have not
followed the Model Act, and require no notice and opportunity to be heard before
revocation. 41
Where notice is required a notice is sufficient where the record and the transcript of the
hearing clearly show that the licensee knew exactly what charges had been brought and
was aware of the factors upon which he or she could predicate a defense. 42 It has
been said that a paraphrase of the federal provision might read that before an agency can
institute proceedings to withdraw, or revoke, an existing license, it must provide the
licensee with notice in writing of the pending conduct and a hearing at which the licensee
can refute the charges. 43 It has also been said that a licensee must be afforded an
opportunity to put its house in lawful order before formal agency proceedings are
undertaken. 44 The "opportunity to comply" provision is not limited to continuing
violations and, except in situations specifically exempted by the provision, all licensees
must be given a second chance before an action is instituted to suspend or revoke a
license. 45 However, the notice and opportunity to comply provision contemplates a
notice and hearing procedure only when some sanction is imposed. 46 As a matter of
due process, the government may impose an interim suspension of a license without
affording the licensee an evidentiary hearing prior to suspension, pending a prompt
administrative hearing that will definitely determine the issue. 47 Moreover, whether
a hearing is required before suspension of a license depends on the provisions of the
organic statute governing the license. 48
This provision is sometimes referred to as the "second chance" doctrine, 49 but while it
may "allow the dog one bite," it does not sanction the habit. 50 And, the opportunity to
comply provision does not prohibit an action for fraud and breach of contract with regard
to past conduct of a licensee. 51 Also, the required written notice does not have to
include an express offer of an opportunity to demonstrate or achieve compliance. 52
The sufficiency of notice is a fact-specific inquiry and ordinarily notice is sufficient when
the notice warns the licensee of the parameters of acceptable conduct to prevent unfair
surprise. 53
It appears that the imposition of a temporary suspension of a license without a hearing

does not violate federal APA procedural requirements since the license was not revoked
and the decision of suspension itself did not constitute rulemaking. 54 The provisions of
the APA dealing with withdrawal, suspension, revocation, and annulment do not cover
nonrenewal of a designation after expiration of the period, instead of termination during
the period of designation. 55
§ 255 ----Requirement of notice and opportunity to comply [SUPPLEMENT]
Case authorities:
Written notice to respondent firm from Packers and Stockyards Administration, which
stated that firm's continued employment of, or affiliation with, named individual who had
been suspended would result in suspension or revocation of firm's license, was sufficient
under Administrative Procedure Act (5 USCS § 558(c)), despite fact that Administration
had prior policy of giving party additional notice before taking action against its license.
In re ABL Produce, Inc. (1993) 52 Ag Dec 1578.
Footnotes
Footnote 35. New York City Transit Authority v White (3d Dept) 144 App Div 2d 782,
534 NYS2d 547, app gr 74 NY2d 607, 545 NYS2d 103, 543 NE2d 746 and affd 75
NY2d 734, 551 NYS2d 200, 550 NE2d 453.
Without question, the revocation of business licenses involves rights subject to the due
process clause. Housworth v Glisson (ND Ga) 485 F Supp 29.
Footnote 36. 5 USCS § 558(c)(1).

Some courts, but not all, provide that the compliance requirement means that the agency
must give the licensee either an opportunity to demonstrate compliance, or, if but only if,
no such opportunity has been given, an opportunity to achieve compliance. Central
National Bank v United States Dept. of Treasury (CA7) 912 F2d 897, reh den, en banc
Footnote 38. Atlantic Richfield Co. v United States, 249 US App DC 224, 774 F2d 1193.
Footnote 41. Chicago v Westphalen (1st Dist) 93 Ill App 3d 1110, 49 Ill Dec 419, 418
NE2d 63, cert den and app dismd 455 US 996, 71 L Ed 2d 858, 102 S Ct 1625.
Footnote 42. Lillis v Department of Health Services, 41 Conn Supp 211, 564 A2d 646;
Fitzgerald v Libous, 44 NY2d 660, 405 NYS2d 32, 376 NE2d 192. See E & H
Enterprises, Inc. v Skaggs (Mo App) 607 SW2d 215.
Notice was sufficient where it specified each act of misconduct, the date and place where
it occurred, and the particular section of the ordinance violated. Bahouth v Sardino (4th
Dept) 125 App Div 2d 990, 510 NYS2d 387.
791, 97 S Ct 811.
Footnote 44. New York Pathological & X-Ray Laboratories, Inc. v Immigration &
Naturalization Service (CA2 NY) 523 F2d 79; Blackwell College of Business v Atty.
Gen., 147 US App DC 85, 454 F2d 928 (concluding that indications on the record of
informal warnings were insufficient to meet the opportunity to comply with requirements
of 5 USCS § 558(c)).
Footnote 45. American Fruit Purveyors, Inc. (1971) 30 Ag Dec 1542, 30 AdL2d 548
(rejecting the position that upon a licensee's failure to pay for vegetables shipped in
interstate commerce, an agency, upon notification to the licensee in writing, may institute
an action).
791, 97 S Ct 811.
Footnote 47. Barry v Barchi, 443 US 55, 61 L Ed 2d 365, 99 S Ct 2642.
Annotation: Supreme Court's views as to propriety under Federal Constitution's due

process guaranties of summary administrative deprivation of property interest, 69 L

Ed 2d 1044.
Footnote 48. Illinois v Nuclear Regulatory Com. (CA7) 591 F2d 12, 12 Envt Rep Cas
1652, 9 ELR 20100 (the fact that Atomic Energy Act does not require a hearing renders
the APA hearing rules inapplicable).
Forms: Complaint, petition, or declaration–By license holder–Against administrative

agency–To enjoin further proceedings to suspend or revoke license–Attempt to
suspend or revoke license on grounds not listed in statute authorizing suspension or
revocation of license. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form
341.2.
Footnote 49. George Steinberg & Son, Inc. v Butz (CA2) 491 F2d 988, cert den 419 US
830, 42 L Ed 2d 55, 95 S Ct 53.
Footnote 50. H. P. Lambert Co. v Secretary of Treasury (CA1) 354 F2d 819 (noting that
the record showed a pattern of repeated derelictions on the part of the licensee).
Footnote 51. United States v Institute of Computer Technology (ED Mich) 403 F Supp
922, in which the court found it unnecessary to rule on the question whether an agency's
order to cease participation in a government program constituted the revocation of a
license without an opportunity to achieve compliance.
Footnote 52. Shuck v SEC, 105 US App DC 72, 264 F2d 358, where the court pointed
out that the agency staff had discussed the matter of compliance with the licensee and
that written notice followed in court proceedings seeking injunctive relief against the
licensee had taken place prior to the revocation.
Footnote 53. Air North America v DOT (CA9) 937 F2d 1427, 91 CDOS 5345, 91 Daily
Journal DAR 7960.
Footnote 54. Gun South, Inc. v Brady (CA11 Ala) 877 F2d 858.
Footnote 55. Tamura v Federal Aviation Admin. (DC Hawaii) 675 F Supp 1221.
§ 256 Public interest exception
View Entire Section

The federal Administrative Procedure Act excepts from the notice and opportunity to
comply requirements relating to license withdrawal, suspension, revocation, or
annulment, 56 situations in which the public health, interest, or safety requires
otherwise. 57 Similarly, the 1961 version of the Model State Administrative
Procedure Act states that summary suspension of a license may be ordered pending
proceedings for revocation or other action if an agency finds that public health, safety, or
welfare imperatively requires emergency action, and incorporates a finding to that effect
in its order. 58 It further states that in such cases the proceedings must be promptly
instituted and determined. 59
 Comment: Emergency revocation of an operating certificate without a hearing has

been held consistent with due process. 60
Footnotes
Footnote 56. As to notice and opportunity to comply, see § 255.
Footnote 57. 5 USCS § 558(c); New England Air Express, Inc. v Civil Aeronautics
Board, 90 US App DC 215, 194 F2d 894 (applying the public safety exception to an air
carrier).
Annotation: "Willfulness" and "public health, interest, or safety" exceptions to notice

and opportunity for compliance provisions of Administrative Procedure Act (5 USCS §
558(c)) dealing with withdrawal, suspension, revocation, or annulment of license, 46
ALR Fed 560.
Footnote 58. Model State Administrative Procedure Act § 14(c).
Footnote 60. Air East, Inc. v National Transp. Safety Bd. (CA3) 512 F2d 1227, cert den
423 US 863, 46 L Ed 2d 92, 96 S Ct 122, in which the court, without mentioning 5
USCS § 558(c), pointed out that under 49 USCS Appx § 1429(a) the revocation had an
effective limit of 60 days, since the statute provided that an appeal by a licensee must be
decided within that time period.
§ 257 Willfulness exception
View Entire Section

Excepted from the notice and opportunity for compliance provisions of the federal
Administrative Procedure Act 61 are cases involving willfulness. 62 It has been held
that evil intent is unnecessary to a finding of willfulness under the APA 63 although
the willfulness required must be manifest, which may consist of an intentional misdeed or
gross neglect of duty. 64 Willfulness has been found where–
–the party in question had been rebuked previously for similar conduct. 65
–the conduct involved a pattern extending over a number of years. 66
–the conduct was in disregard or in violation of specific statutory or regulatory

prohibitions. 67

–the conduct constituted a fraud on the public. 68
–repeated warnings had been given to the party. 69
–the licensee deliberately chose to disregard a prerevocation order suspending the

license. 70
–there was no express finding that certain licensees engaged in knowing and willful
conduct but there was a finding that these licensees acted jointly with another licensee as
to whom an express finding of willful conduct was made. 71
The 1961 version of the Model State Administrative Procedure Act provision relating to
notice and opportunity to comply 72 does not include a willfulness exception.
Footnotes
Footnote 61. As to notice and opportunity to comply, see § 255.
Annotation: "Willfulness" and "public health, interest, or safety" exceptions to notice

and opportunity for compliance provisions of Administrative Procedure Act (5 USCS §
558(c)) dealing with withdrawal, suspension, revocation, or annulment of license, 46
ALR Fed 560.
Footnote 63. George Steinberg & Son, Inc. v Butz (CA2) 491 F2d 988, cert den 419 US
830, 42 L Ed 2d 55, 95 S Ct 53; Eastern Produce Co. v Benson (CA3) 278 F2d 606;
Koden v United States Dept. of Justice (CA7 Ill) 564 F2d 228; Goodman v Benson
(CA7) 286 F2d 896; Capitol Packing Co. v United States (CA10) 350 F2d 67; Schwebel
v Orrick (DC Dist Col) 153 F Supp 701, affd 102 US App DC 210, 251 F2d 919, cert den
356 US 927, 2 L Ed 2d 759, 78 S Ct 716.
Footnote 64. Capitol Packing Co. v United States (1965, CA10) 350 F2d 67.
Footnote 65. Goodman v Benson (CA7) 286 F2d 896.
Footnote 66. Silverman v Commodity Futures Trading Com. (CA7) 549 F2d 28, 46 ALR
Fed 549.
Footnote 67. Dlugash v Securities & Exchange Com. (CA2) 373 F2d 107; Capitol
Packing Co. v United States (CA10) 350 F2d 67; Finer Foods Sales Co. v Block, 228 US
App DC 205, 708 F2d 774, later proceeding 271 US App DC 157, 851 F2d 412.
Footnote 68. KWK Radio, Inc. v Federal Communications Com., 119 US App DC 144,
Footnote 69. Air Transport Associates, Inc. v Civil Aeronautics Board, 91 US App DC
147, 199 F2d 181, cert den 344 US 922, 97 L Ed 710, 73 S Ct 386, reh den 345 US
914, 97 L Ed 1348, 73 S Ct 641.

Footnote 70. Walker v Civil Aeronautics Board (CA2) 251 F2d 954.
Footnote 71. Great Lakes Airlines, Inc. v Civil Aeronautics Board (CA9) 291 F2d 354,
cert den 368 US 890, 7 L Ed 2d 89, 82 S Ct 143, reh den 368 US 936, 7 L Ed 2d 198,
82 S Ct 359.
D. Renewals or Extensions [258-260]
Research References
5 USCS § 558
§ 258 Federal Administrative Procedure Act provisions
View Entire Section

Go to Supplement
The federal Administrative Procedure Act provides that when a licensee has made timely
and sufficient application for a renewal for a new license in accordance with agency
rules, a license with respect to an activity of a continuing nature does not expire until the
application has been finally determined by the agency. 73 Speaking of an earlier version
of this extension provision, the Supreme Court said that the provision constitutes a
direction to the agencies by which there must be (1) a license outstanding, (2) covering
activities of a continuing nature, and that a timely and sufficient application to continue
the existing operation must have been filed, and (3) the application for the new or
extended license must not have been finally determined. 74
Since the thrust of this extension provision is to protect licensees, not to impose unsought
applications on them, the sentence providing that the activity of the licensee does not
expire until an application for renewal has been determined by the agency, does not
sanction through administrative inaction requiring an unwilling licensee to continue with
activity beyond the period for which the licensee has sought renewal. 75 However, the
extension provision does not apply when the application for renewal is deficient. 76
The mere filing of a renewal application does not prevent an agency from effectuating
rule changes adopted prior to the expiration of a previous license by incorporating those
changes in a renewal of the license. 77 Moreover, even though a carrier's temporary
authority remains in full force and effect by virtue of the extension provision, an agency
is not precluded from bringing a proceeding alleging that the carrier's operations
exceeded the scope of its temporary authority. 78

§ 258 ----Federal Administrative Procedure Act provisions [SUPPLEMENT]
Case authorities:
Third sentence of 5 USCS § 558(c), relating to licenses "of a continuing nature" does not
apply to extend, as matter of law, permits for construction of fixed radio facilities for
common carrier service beyond FCC's formal denial of last extension request. Miami
MDS Co. v FCC (1994, App DC) 14 F3d 658.
Footnotes
2d 963, 77 S Ct 999.
Footnote 75. County of Sullivan v Civil Aeronautics Board (CA2) 436 F2d 1096
(acknowledging that a liberal application of 5 USCS § 558(c) might lead to the
conclusion that a licensee should not be permitted to withdraw).
791, 97 S Ct 811; Lac Courte Oreilles Band of Lake Superior Chippewa Indians v
Federal Power Com., 166 US App DC 245, 510 F2d 198.
Footnote 77. Goodwill Stations, Inc. v Federal Communications Com., 117 US App DC
64, 325 F2d 637.
Footnote 78. Riss & Co. v United States (DC Mo) 117 F Supp 296, affd 346 US 890, 98
L Ed 393, 74 S Ct 221.
§ 259 --Temporary licenses
View Entire Section

The extension provision of the federal Administrative Procedure Act, which prevents the
expiration of licenses for activities of a continuing nature until applications for renewal
have been finally determined, 79 has been held applicable to temporary licenses 80
on the theory the term license as defined in the Administrative Procedure Act includes a
permit or certificate which in turn is broad enough to include a temporary permit. 81
As a result, if an application for permanent authority is made, a temporary authority, even
if given an expiration date by the specific agency statute in question, will not expire until
the permanent application has been finally determined by the agency. 82

 Comment: Although the extension provision of is applicable to temporary licensees,
other portions of 5 USCS § 558(c) apparently do not apply to temporary licenses. 83
Footnotes
2d 963, 77 S Ct 999; Navajo Freight Lines, Inc. v United States (DC NM) 320 F Supp
318; Barrett Mobile Home Transport, Inc. v Interstate Commerce Com., 185 US App DC
283, 567 F2d 150.
2d 963, 77 S Ct 999.
2d 963, 77 S Ct 999; Barrett Mobile Home Transport, Inc. v Interstate Commerce Com.,
185 US App DC 283, 567 F2d 150.
Footnote 83. Bowen Transports, Inc. v United States (DC Ill) 116 F Supp 115.
§ 260 Model State Administrative Procedure Act provisions
View Entire Section

The 1961 version of the Model State Administrative Procedure Act states that when a
licensee has made timely and sufficient application for the renewal of a license, or a new
license with reference to any activity of a continuing nature, the existing license does not
expire until the application has been finally determined by the agency, and, in case the
application is denied or the terms of the new license limited, until the last day for seeking
review of the agency order or a later date fixed by order of the reviewing court. 84
Under the 1961 version of the Model State Administrative Procedure Act, when the
renewal of a license is required to be preceded by notice and opportunity for hearing, the
provisions of the Act concerning contested cases apply as in the case of the grant of a
license. 85
In some cases, there may be an implied agreement for automatic renewal, or an estoppel,
where the agency has not acted on the license for a long period of time. 86
Footnotes
Footnote 84. Model State Administrative Procedure Act § 14(b).
Footnote 85. Model State Administrative Procedure Act § 14(a).

Footnote 86. Bois Blanc Island Township v Natural Resources Com., 158 Mich App 239,
404 NW2d 719, where agency did not acted on expired permits for nine years.
VII. ADJUDICATIONS [261-414]
A. General Principles [261-273]
Research References
5 USCS §§ 500, 551(6), (7), 554(a)
Model State Administrative Procedure Act (1981) §§ 4-101 et seq., 4-201-4-221,
4-401-4-403, 4-502-4-506
Model State Administrative Procedure Act (1961) §§ 1(2), 9-14
ALR Digests: Administrative Law §§ 72, 73, 80-85
1. Generally [261-265]
§ 261 Definitions
View Entire Section

Go to Supplement
Adjudication is a process by which an agency applies either law or policy, or both, to the
facts of a particular case, in order to determine past and present rights and liabilities. 87
The federal Administrative Procedure Act defines "adjudication" as an agency process
for the formulation of an order, and an "order" as a whole or part of a final disposition,
whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter
other than rulemaking, but including licensing. 88 Under the 1961 Model State
Administrative Procedure Act, a "contested case" is synonymous with "adjudication"
under the federal Act. 89
 Observation: The 1981 Model State Administrative Procedure Act uses the term
"adjudicative proceedings" instead of the "contested case" terminology of the 1961
Model Act; although the 1981 Model Act does not formally define the term
"adjudicative proceedings," Article IV of the 1981 Model Act is entitled "Adjudicative
Proceedings" and establishes an elaborate set of procedures applicable to such
proceedings. 90
The requirement that adjudication lead to a disposition having some determinate

consequences for the parties to a proceeding distinguishes adjudication from other
administrative processes, such as investigations and rulemaking, which follow different
procedures under the administrative acts. 91
§ 261 ----Definitions [SUPPLEMENT]
Case authorities:
Ruling of ICC declaring that particular type of transportation is in interstate commerce

and subject to ICC, rather than state regulation, is adjudicatory ruling for purpose of
review under 5 USCS § 706. Merchants Fast Motor Lines v ICC (1993, CA5) 5 F3d 911.
Footnotes
779 P2d 868, reconsideration den (Hawaii) 796 P2d 1005.
Footnote 88. 5 USCS § 551(6), (7).
An order must fix obligations or impose liability on a party. Georator Corp. v EEOC
(CA4 Va) 592 F2d 765, 19 BNA FEP Cas 70, 19 CCH EPD ¶ 8982.
As to orders in administrative proceedings, see § 376.
Footnote 89. Debruhl v District of Columbia Hackers' License Appeal Board (Dist Col
App) 384 A2d 421.
Model State Administrative Procedure Act (1961) § 1(2).
Footnote 90. Model State Administrative Procedure Act (1981) §§ 4-101 et seq.
For a general discussion of the adjudicatory procedures prescribed under the

administrative procedure acts, see §§ 263, 265.
Footnote 91. International Tel. & Tel. Corp., Communications Equipment & Systems
Div. v International Brotherhood of Electrical Workers, 419 US 428, 42 L Ed 558, 95 S
Ct 600, 88 BNA LRRM 2227, 75 CCH LC ¶ 10559; Georator Corp. v EEOC (CA4 Va)
592 F2d 765, 19 BNA FEP Cas 70, 19 CCH EPD ¶ 8982.
As to distinctions between adjudications and investigations, see § 127.
As to distinctions between adjudications and rulemaking, see § 155.
§ 262 Adjudicatory practice and procedure, generally
View Entire Section


Go to Supplement
Although administrative proceedings are generally considered to be civil in nature, the

procedure to be followed before administrative agencies generally differs from the
procedure followed in ordinary civil actions. 92 Differences in the origin and
function of administrative agencies and courts prevent the wholesale transplanting of the
rules of procedure, trial, and review which have evolved from the history and experience
of the courts. 93 Administrative procedure may be prescribed in the statute creating
the agency, 94 in the rules of the agency, 95 or by general administrative procedure
statutes. 96 Where the statute does not require any particular method of procedure to
be followed by an administrative agency, the agency may adopt any reasonable method
to carry out its functions. 97
The prototype adjudicatory proceeding consists of a hearing before an administrative law

judge who makes findings of fact and conclusions of law, and who initially decides the
case by making a recommended decision to the agency, which can become the agency's
order unless there is an appeal to the agency or the agency reviews the initial decision on
its own motion. 98 However, this procedure is only required in formal adjudicatory
proceedings, and is not followed in numerous circumstances when agencies informally
determine private rights. 99
Due process requires that proceedings be conducted in an orderly manner, 1 and

conform to the rudimentary requirements of fair play. 2
§ 262 ----Adjudicatory practice and procedure, generally [SUPPLEMENT]
Case authorities:
Actions by U.S. Military Academy, other than those committed to agency discretion by
law, are subject to requirements of 5 USCS §§ 551 et seq., where dismissed cadet
alleged that his right to due process and his rights under statutes were violated by virtue
of his suspension. Phillips v United States (1996, ED NY) 910 F Supp 101.
Footnotes
364 US 855, 5 L Ed 2d 79, 81 S Ct 33 (civil rights investigation); Varholy v Sweat, 153
Fla 571, 15 So 2d 267 (quarantine proceedings); Keller v Kentucky Alcoholic Beverage
Control Board, 279 Ky 272, 130 SW2d 821; Prawdzik v Grand Rapids, 313 Mich 376, 21
NW2d 168, 165 ALR 1165 (license revocation); Farry v Ward (1st Dept) 126 App Div
2d 7, 512 NYS2d 39, app gr 69 NY2d 612, 517 NYS2d 1028, 511 NE2d 87 and revd on
other grounds, petition dismd 70 NY2d 436, 522 NYS2d 478, 517 NE2d 193, later
proceeding (1st Dept) 158 App Div 2d 319, 551 NYS2d 7; Re Groban, 164 Ohio St 26,
57 Ohio Ops 70, 128 NE2d 106, affd 352 US 330, 1 L Ed 2d 376, 77 S Ct 510, 3 Ohio
Ops 2d 127, 76 Ohio L Abs 368 (state fire marshall investigation); Fuller v Mitchell (Tex
Civ App) 269 SW2d 517, writ ref n r e.

Comp Cas 920; Appeal of Nolan, 134 NH 723, 599 A2d 112; Hackensack v Winner, 82
NJ 1, 410 A2d 1146, 104 BNA LRRM 2259.
The administrative context does not and need not match the judicial model, and
administrative proceedings need not contain all the formalities of judicial proceedings.
Ridgewood Properties, Inc. v Department of Community Affairs (Fla) 562 So 2d 322, 15
FLW S 169.
Footnote 94. United States Fidelity & Guaranty Co. v Cruce, 129 Okla 60, 263 P 462, 56
ALR 879.
Footnote 96. §§ 263, 265.
Footnote 97. FCC v WJR, Goodwill Station, Inc., 337 US 265, 93 L Ed 1353, 69 S Ct
1097; Douglas County v State Board of Equalization & Assessment, 158 Neb 325, 63
NW2d 449; State ex rel. York v Board of Com'rs, 28 Wash 2d 891, 184 P2d 577, 172
ALR 1001.
Absent unreasonable delay or significant prejudice to parties, an administrative agency

cannot be said to abuse its discretion merely by adopting procedures and time tables
which it considers necessary to affect treatment of complex and difficult problems. GTE
Service Corp. v FCC, 251 US App DC 181, 782 F2d 263.
An administrative body possesses broad discretion in conducting its hearings, but that
discretion must be exercised judicially and not arbitrarily. Six-Brothers King Drive
Supermarket, Inc. v Department of Revenue (1st Dist) 192 Ill App 3d 976, 139 Ill Dec
860, 549 NE2d 586, app den 132 Ill 2d 554, 144 Ill Dec 266, 555 NE2d 385.
Div. v International Brotherhood of Electrical Workers, 419 US 428, 42 L Ed 2d 558,
95 S Ct 600, 88 BNA LRRM 2227, 75 CCH LC ¶ 10559; Re Issuance of Permit by Dept.
of Environmental Protection etc., 120 NJ 164, 576 A2d 784.
As to the right to a hearing, generally, see § 294.
Footnote 99. As to informal adjudication procedures, see §§ 298 et seq.
Footnote 1. Wignall v Fletcher, 303 NY 435, 103 NE2d 728; H. F. Wilcox Oil & Gas Co.
v State, 162 Okla 89, 19 P2d 347, 86 ALR 421.
Footnote 2. As to the requirement that administrative hearings be fair and impartial, see
§ 302.
§ 263 Procedure under federal Administrative Procedure Act
View Entire Section

Go to Supplement
The federal Administrative Procedure Act, which applies to federal agencies generally,
does not itself impose on any agency the requirement that it hold formal, adversary
hearings; instead, it only specifies the procedure to be followed when a hearing is
required by some other statute. 3 The Act provides that it applies in cases of
adjudication required by statute to be determined on the record after an opportunity for an
agency hearing. 4 Thus, the federal Administrative Procedure Act requirements for
formal adjudications do not apply to all proceedings defined as adjudicatory by the Act,
but only to adjudications required by statute to be determined on the record after an
opportunity for an agency hearing. 5 The condition of the Administrative Procedure
Act that a statute require a hearing "on the record" may be implied from the substantive
content of the adjudication even if the words themselves are missing from the statute. 6
Even where the governing regulatory statute does not contain language that there be a
"determination on the record after an opportunity for an agency hearing," requirements of
due process and fair play inherent in the Constitution may require that an adjudicatory
proceeding along the lines prescribed by the Administrative Procedure Act be held, and
in such cases, the formal hearing requirements of the Administrative Procedure Act must
still be followed. 7 However, if neither the Constitution nor relevant statutes mandate
that a hearing be held, there is no requirement of compliance with the adjudicatory
procedures prescribed by the Administrative Procedure Act. 8
An agency which is not subject to the hearing requirements of the Administrative

Procedure Act is still free to provide by rule that parties are entitled to additional
procedural rights of a type specified in the Act, but it is not under an obligation to do so.
9
In addition, an administrative adjudication may be made by means of informal

procedures. 10
§ 263 ----Procedure under federal Administrative Procedure Act [SUPPLEMENT]
Case authorities:
Navy lieutenant's discharge under 10 USCS § 654, governing homosexuality in military

did not violate his procedural rights under APA where he received full and adequate
hearing in which substantial evidence established that he stated he was homosexual and
that he failed to rebut presumption triggered thereby. Thomasson v Perry (1996, CA4 Va)
80 F3d 915, ops combined at (1996, CA4 Va) 66 CCH EPD ¶ 43971.
Plaintiff who has alleged cause of action under APA or Mandamus Act need not rely
upon implied right of action under any other statute, and because mandamus is properly
sought where government officials owe duty to plaintiff, and duty is owed in
administrative context if plaintiff's interests fall within zone of interests which underlying
statute protects, plaintiff seeking mandamus in administrative context need only show
that interest sought to be vindicated falls within statutory zone of interests.
Hernandez-Avalos v INS (1995, CA10 Colo) 50 F3d 842.

Footnotes
Footnote 3. § 294.
The hearing required in rate making proceedings by the Interstate Commerce Act is not
the equivalent of a hearing for rules "made on record" under the Administrative
Procedure Act, and in such circumstances the Interstate Commerce Commission's
decision is a product of informal rulemaking rather than adjudication. Food Marketing
Institute v Interstate Commerce Com., 190 US App DC 388, 587 F2d 1285.
As to exceptions under the federal Administrative Procedure Act, see § 189.
Footnote 5. ITT World Communications, Inc. v Federal Communications Com. (CA2)

595 F2d 897; American Tel. & Tel. Co. v Federal Communications Com. (CA2) 572 F2d
17, 46 ALR Fed 610, cert den 439 US 875, 58 L Ed 2d 190, 99 S Ct 213; Consolidated
Aluminum Corp. v Tennessee Valley Authority (MD Tenn) 462 F Supp 464.
There is a fundamental distinction between a statutory requirement that an agency

provide a "hearing" and a requirement that an agency provide a "hearing on the record;"
formal proceedings do not attach to a requirement of a "hearing," or a "full hearing," but
attach only where there is a requirement of a "hearing on the record." Railroad Com. of
Texas v United States, 246 US App DC 352, 765 F2d 221.
Footnote 6. Steadman v SEC, 450 US 91, 67 L Ed 2d 69, 101 S Ct 999, CCH Fed Secur
L Rep ¶ 97878, reh den 451 US 933, 68 L Ed 2d 318, 101 S Ct 2008.
Footnote 7. § 294.
Footnote 8. Gart v Cole (CA2 NY) 263 F2d 244, 1 FR Serv 2d 13, cert den 359 US 978,
3 L Ed 2d 929, 79 S Ct 898.

810.
§ 264 --Exceptions from application of federal Act
View Entire Section

The federal Administrative Procedure Act provides that its requirements relating to
federal agency adjudications do not apply to the extent that there is involved a matter
subject to a subsequent trial of the law and the facts de novo in a court. 11 This
exclusion does not turn on whether there was in fact a subsequent trial de novo but on
whether the administrative proceeding was of a sort which was subject to subsequent de
novo judicial inquiry; that is, the statutory definition operates ex ante, not ex post. 12
Thus, any alleged noncompliance with the Administrative Procedure Act does not affect
the subsequent de novo court action. 13
In addition, the APA requirements relating to adjudications do not apply to the extent that
there is involved the selection or tenure of an employee, except an administrative law
judge, 14 proceedings in which decisions rest solely on inspections, tests, or elections,
15 the conduct of military or foreign affairs functions, 16 cases in which the agency is
acting as an agent for a court, 17 or the certification of worker representatives. 18 The
provisions of the federal Act do not apply generally to a determination which is not "a
case of adjudication," 19 such as a general fact-finding investigation by a
nonadjudicatory agency. 20
Footnotes
Footnote 12. D'Angelo v Department of Navy (ED Pa) 593 F Supp 1307, 35 BNA FEP
Cas 1658, 36 CCH EPD ¶ 35195.
Footnote 13. United States v New York C. R. Co. (DC Mass) 252 F Supp 508, affd (CA1
Mass) 358 F2d 747.
See 16 Federal Procedure, L Ed, Government Officers and Employees §§ 40:1 et seq. for
further discussion of this provision.
As to administrative law judges, see § 310.
The 5 USCS § 554(a)(3) exception may be used only when the decision turns upon
physical facts as to which there is little room for difference of opinion, or upon technical
facts within the area of agency expertise. Door v Donaldson, 90 US App DC 188, 195
F2d 764.
95 S Ct 600, 88 BNA LRRM 2227, 75 CCH LC ¶ 10559; Gart v Cole (CA2 NY) 263 F2d
244, 1 FR Serv 2d 13, cert den 359 US 978, 3 L Ed 2d 929, 79 S Ct 898; Georator
Corp. v EEOC (CA4 Va) 592 F2d 765, 19 BNA FEP Cas 70, 19 CCH EPD ¶ 8982.

364 US 855, 5 L Ed 2d 79, 81 S Ct 33 (Civil Rights Commission).
§ 265 Procedure under Model State Administrative Procedure Acts
View Entire Section

The 1961 Revised Model State Administrative Procedure Act, which governs the action
of state administrative agencies and which has been adopted at least in part by over half
of the states, prescribes a single type of adjudicative hearing–the contested case. 21 This
type of proceeding is generally described as "formal," involving the presentation of
evidence, cross-examination and rebuttal in a manner similar to non-jury trials, with the
requirement that the decision be based exclusively upon the evidence of record.
Although the 1961 Act makes passing reference to other possible types of
adjudication–Section 9(d) permits "informal disposition" of any contested case by
"stipulation, agreed settlement, consent order, or default," and Section 2(a)(2) requires
each agency to adopt rules of practice setting forth "the nature and requirements of all
formal and informal procedures available"–these provisions do not establish any
procedural framework for adjudicative proceedings of any type other than the "formal"
contested case. 22
In contrast, the 1981 Model State Administrative Procedure Act states that a formal
hearing is required in all adjudicative proceedings, except where otherwise provided by
statute, agency rule, emergency provisions of the Model Act, or under Section 2-103 of
the Model Act, pertaining to declaratory proceedings, 23 and establishes three
procedural models for adjudication; the "formal adjudicative hearing," developed from
the "contested case" of the 1961 Act, 24 and two types of informal hearings: (1) the
"conference adjudicative hearing;" 25 and (2) the "summary adjudicative proceeding."
26
As is the case under the federal Administrative Procedure Act, 27 the procedural
requirements of the Model State Administrative Acts apply only to adjudications or
"contested cases"–proceedings where a constitutional provision, statute, municipal
charter, or ordinance requires a hearing to determine the legal rights, duties, or privileges
of specific parties. 28
Footnotes
Footnote 21. Model State Administrative Procedure Act (1961) §§ 9-14.
Footnote 22. Model State Administrative Procedure Act (1981) § 4-201, comment.
Footnote 24. Model State Administrative Procedure Act (1981) §§ 4-201-4-221.

For a discussion of the various informal adjudication procedures, see §§ 299 et seq.
Footnote 28. Rose v Arizona Dept. of Corrections (App) 167 Ariz 116, 804 P2d 845, 78
Ariz Adv Rep 33; Shoreline Transp., Inc. v Robert's Tours & Transp., Inc., 70 Hawaii
585, 779 P2d 868, reconsideration den (Hawaii) 796 P2d 1005; Office of Consumer
Advocate v Iowa State Commerce Com. (Iowa) 465 NW2d 280; Citizens'
Aide/Ombudsman v Rolfes (Iowa) 454 NW2d 815; Sheet Metal Contractors v
Commissioner of Ins. (Iowa) 427 NW2d 859; Benton-Hecht Moving & Storage, Inc. v
Call (Mo App) 782 SW2d 668; Travers v Board of Trustees (Mo App) 756 SW2d 623.
As to the right to an administrative hearing, generally, see § 294.
Despite the general language of the District of Columbia Administrative Procedure Act
relating to procedures to follow in contested cases, the fact that a statute provides a right
of hearing is not dispositive of the question whether a particular proceeding is a contested
case; the question is whether the required hearing is in essence adjudicatory or legislative
in nature. L'Enfant Plaza Properties, Inc. v District of Columbia Redevelopment Land
Agency, 184 US App DC 30, 564 F2d 515.
Intra-agency personnel actions do not fall within the term "contested case" as defined by
a provision of the state administrative procedure act. Klein v State Bd. of Education (Ala
App) 547 So 2d 549, cert quashed (Ala) 547 So 2d 554.
A hearing on a county multiplier to be used in the equalization of assessed real property

values for tax purposes was not a "contested case" within the meaning of the
Administrative Procedure Act, so as to make the Act's procedures applicable. Advanced
Systems, Inc. v Johnson, 126 Ill 2d 484, 129 Ill Dec 32, 535 NE2d 797.
A police officer's appearance before the superintendent of the state police department to
answer charges of driving while intoxicated, failing to supervise subordinate employees,
and causing negligent destruction of state property and property of another was an
interdepartmental prehearing procedure rather than an administrative adjudication; thus,
the administrative adjudication act did not apply and the summary prehearing procedure
was not required to comport with the act. Meeks v Shettle (Ind App) 514 NE2d 1272.
2. Rules Governing Adjudicatory Proceedings [266-270]
§ 266 Court rules
View Entire Section


Due to the differences in the origin and function of courts and of administrative agencies,
the rules of procedure, trial, and review customarily followed in court proceedings do not
always apply to administrative proceedings. 29 Usually the procedure of
administrative agencies is not as formal and strict as that of the court, 30 and the
regularity of such proceedings should not be tested by the strict legal rules which prevail
in courts of law. 31 Administrative tribunals are generally unrestricted by the technical
or formal rules of procedure which govern trials before a court, 32 especially
where the administrative order has only the effect of prima facie evidence. 33 Statutes
and rules, such as the Rules of Civil Procedure, relating to courts or actions, do not apply
to administrative proceedings. 34
Particular administrative agencies may maintain a procedure which resembles court

procedure, and, in some instances, the practice before administrative tribunals has been
assimilated to that obtaining in equity, and the chancery rules held applicable. 35
Footnotes
Wallace Corp. v NLRB, 323 US 248, 89 L Ed 216, 65 S Ct 238, 15 BNA LRRM 697, 9
CCH LC ¶ 51187, reh den 324 US 885, 89 L Ed 1435, 65 S Ct 682; FCC v Pottsville
Broadcasting Co., 309 US 134, 84 L Ed 656, 60 S Ct 437, 2 CCH LC ¶ 17058; State ex
rel. Public Service Com. v Northern P. R. Co. (ND) 75 NW2d 129.
Footnote 30. Bandeen v Howard (Ky) 299 SW2d 249, cert den 355 US 813, 2 L Ed 2d
31, 78 S Ct 13 and (ovrld on other grounds by Pearl v Marshall (Ky) 491 SW2d 837);
Board of Medical Examiners v Steward, 203 Md 574, 102 A2d 248; Dairy Employees
Independent Union v Wisconsin Employment Relations Board, 262 Wis 280, 55 NW2d
3, 30 BNA LRRM 2735, 22 CCH LC ¶ 67184.
251, 143 ALR 503; McAlpine v Garfield Water Com., 135 NJL 497, 52 A2d 759, 171
ALR 172.
Footnote 32. Vitarelli v Seaton, 359 US 535, 3 L Ed 2d 1012, 79 S Ct 968; Employers'

Liability Assur. Corp. v Matlock, 151 Kan 293, 98 P2d 456, 127 ALR 461; Lowell v
Commissioners of Middlesex County, 152 Mass 372, 25 NE 469; State ex rel. Rockwell
v State Bd. of Education, 213 Minn 184, 6 NW2d 251, 143 ALR 503; Hecht v
Monaghan, 307 NY 461, 121 NE2d 421; United States Fidelity & Guaranty Co. v Cruce,
129 Okla 60, 263 P 462, 56 ALR 879; Emerson v Hughes, 117 Vt 270, 90 A2d 910, 34
ALR2d 539; State v Huber, 129 W Va 198, 40 SE2d 11, 168 ALR 808; Dairy
Employees Independent Union v Wisconsin Employment Relations Board, 262 Wis 280,
55 NW2d 3, 30 BNA LRRM 2735, 22 CCH LC ¶ 67184.
In an administrative proceeding to revoke or suspend a dentist's license to practice, a

104-day delay in refiling the accusation following a dismissal of the original accusation
did not entitle the dentist to a writ of prohibition to prevent further proceedings,
notwithstanding the 20-day time limitation on amendments for pleadings; the
administrative code chapter establishing the procedural rules for agency proceedings did
not specifically adopt the 20-day time limit, and did not otherwise specify a time to refile
or amend complaints. Gordon v Savage (Fla App D5) 383 So 2d 646, petition den (Fla)

389 So 2d 1110 and (criticized on other grounds by Harriston v Georgia Highway
Express, Inc. (Fla App D2) 437 So 2d 224).
Annotation: Right of student to hearing on charges before suspension or expulsion

from educational institution, 58 ALR2d 903 § 2; Mail fraud orders, 94 L Ed 81.
Footnote 33. Spiller v Atchison, T. & S. F. R. Co., 253 US 117, 64 L Ed 810, 40 S Ct

466.
Footnote 34. FCC v Allentown Broadcasting Corp., 349 US 358, 99 L Ed 1147, 75 S Ct

855; Falsone v United States (CA5 Fla) 205 F2d 734, 53-2 USTC ¶ 9467, 44 AFTR 123,
cert den 346 US 864, 98 L Ed 375, 74 S Ct 103; Emerson v Hughes, 117 Vt 270, 90
A2d 910, 34 ALR2d 539.
The extent of discovery to which a party in an administrative proceeding is entitled is

primarily determined by the particular agency. Pacific Gas & Electric Co. v Federal
Energy Regulatory Com. (CA9) 746 F2d 1383, later proceeding 50 FERC ¶ 61383, 1990
FERC LEXIS 581, reh den 52 FERC ¶ 61032, 1990 FERC LEXIS 1545.
As to discovery in adjudicatory administrative proceedings, generally, see §§ 327 et seq.
As to the applicability of the Federal Rules of Evidence to administrative proceedings,

see § 345.
Footnote 35. Jones v SEC, 298 US 1, 80 L Ed 1015, 56 S Ct 654 (not followed by

Craib v Bulmash, 49 Cal 3d 475, 261 Cal Rptr 686, 777 P2d 1120, 29 BNA WH Cas 705,
114 CCH LC ¶ 56172) (action of the Securities and Exchange Commission in instituting
inquiry to determine whether stop order shall issue suspending the effectiveness of a
registration statement); Oliphant v Carthage Bank, 224 Miss 386, 80 So 2d 63.
§ 267 Official rules
View Entire Section

Statutes creating administrative agencies uniformly confer upon those agencies the power
to prescribe rules of practice and procedure to govern the proceedings before them. 36
Some such statutes expressly provide that these official rules need not conform to
common law or statutory rules of evidence or procedure, 37 while others provide for
certain rules in conjunction with the rules to be administratively prescribed. 38 In the
absence of such a provision an administrative agency has implied power to devise its own
procedure in ascertaining the facts upon which it is to act or decide. 39 In addition, a
superior officer may make rules governing procedure before his or her subordinate even
though no appeal lies to the superior from the determination made by the subordinate. 40
Footnotes

Footnote 36. Vinson v Washington Gas Light Co., 321 US 489, 88 L Ed 883, 64 S Ct
731; Re 17 Club, Inc., 26 NJ Super 43, 97 A2d 171; United States Fidelity & Guaranty
Co. v Cruce, 129 Okla 60, 263 P 462, 56 ALR 879; Atlantic Greyhound Corp. v Public
Service Com., 132 W Va 650, 54 SE2d 169.
Footnote 37. Geegan v Unemployment Compensation Com. (Super) 45 Del 513, 76 A2d
116; Huiet v Schwob Mfg. Co., 196 Ga 855, 27 SE2d 743, conformed to 70 Ga App 226,
28 SE2d 184.
Footnote 38. Railroad Com. v Herrin Transp. Co. (Tex Civ App) 262 SW2d 426, writ ref
n r e.
Footnote 39. FCC v Pottsville Broadcasting Co., 309 US 134, 84 L Ed 656, 60 S Ct

437, 2 CCH LC ¶ 17058; Ex parte Morris, 263 Ala 664, 83 So 2d 717; German Ins. Co. v
Hayden, 21 Colo 127, 40 P 453; Reck v Whittlesberger, 181 Mich 463, 148 NW 247;
Atlantic Exp. Co. v Wilmington & W. R. Co., 111 NC 463, 16 SE 393.
Footnote 40. Stotesbury v United States, 146 US 196, 36 L Ed 940, 13 S Ct 1.
§ 268 --Scope and extent of power
View Entire Section

Go to Supplement
Pursuant to their power to make procedural rules, administrative agencies may adopt any
fair and reasonable practice and procedure, 41 and agencies are given wide discretion in
making such procedural rules. 42 An administrative agency may not, however, make
a procedural rule which the legislature may not make, 43 and rules of the agency may
not operate to deny due process of law. 44 An agency may not assume the powers of
the legislature in making procedural rules 45 or ignore plain limitations on its authority.
46 It may not enlarge the jurisdiction granted to it by the legislature, 47 or otherwise
by addition or subtraction alter the requirements stated in the statute. 48 Procedural
regulations should not run counter to the purpose and intent of the statute being
administered; 49 they must be consistent with law, 50 and must be reasonable and not
arbitrary. 51
Administrative agencies have the power to interpret their own rules. 52
§ 268 --Scope and extent of power [SUPPLEMENT]
Case authorities:
Although APA directly grants ALJs broad adjudicatory powers, authority to dismiss
agency complaints is not one of enumerated powers; moreover, authority to regulate
course of hearing (5 USCS § 556(c)(5)) cannot be reasonably interpreted as direct grant
of authority to dismiss complaints. In re Trillion Japan Company, Ltd. (1994, CFTC)
CCH Comm Fut L Rep ¶ 26,082.
Footnotes
Footnote 41. German Ins. Co. v Hayden, 21 Colo 127, 40 P 453; Re 17 Club, Inc., 26 NJ
Super 43, 97 A2d 171.
Footnote 42. Wallace Corp. v NLRB, 323 US 248, 89 L Ed 216, 65 S Ct 238, 15 BNA
LRRM 697, 9 CCH LC ¶ 51187, reh den 324 US 885, 89 L Ed 1435, 65 S Ct 682
(holding that the National Labor Relations Board has power to fashion its procedure to
achieve the purpose of the National Labor Relations Act to protect employees from unfair
labor practices, and the court cannot, by incorporating the judicial concept of estoppel
into its procedure, render the Board powerless to prevent an obvious frustration of the
purposes of the act).
Footnote 43. H. F. Wilcox Oil & Gas Co. v State, 162 Okla 89, 19 P2d 347, 86 ALR 421
(holding that where the legislature is prohibited from passing local or special laws
regulating the practice of courts, a commission may not make local or special rules
regulating practice before it).

LC ¶ 65644; Juster Bros., Inc. v Christgau, 214 Minn 108, 7 NW2d 501.
Footnote 45. States' Rights Democratic Party v State Board of Elections, 229 NC 179, 49
SE2d 379.
Footnote 47. Hoffmann v Brooks Const. Co., 220 Ind 150, 41 NE2d 613, 143 ALR 1256.
Footnote 48. Union Light, Heat & Power Co. v Public Service Com. (Ky) 271 SW2d
361; State ex rel. Rouveyrol v Donnelly, 365 Mo 686, 285 SW2d 669 (superseded on
other grounds by statute as stated in Bank of Belton v State Banking Board (Mo App)
554 SW2d 451) and (superseded on other grounds by statute as stated in St. Joseph's Hill
Infirmary, Inc. v Mandl (Mo App) 682 SW2d 821) (board could not affect provisions for
judicial review of its own acts); States' Rights Democratic Party v State Board of
Elections, 229 NC 179, 49 SE2d 379.
Footnote 49. Juster Bros., Inc. v Christgau, 214 Minn 108, 7 NW2d 501.
Court of Jefferson County (Ky App) 850 SW2d 52); Juster Bros., Inc. v Christgau, 214
Minn 108, 7 NW2d 501.

114 CCH LC ¶ 56172); United States ex rel. Steinmetz v Allen, 192 US 543, 48 L Ed
555, 24 S Ct 416; Juster Bros., Inc. v Christgau, 214 Minn 108, 7 NW2d 501.

Footnote 52. § 77.
§ 269 --Disregard of rules; waiver or suspension
View Entire Section

Rules and regulations of an administrative agency governing proceedings before it, duly
adopted and within the authority of the agency, are as binding on the agency as if they
were statutes enacted by the legislature. 53 Such rules are also binding upon the public
of the agency, and the agency does not generally have the discretion to waive, suspend,
or disregard them in a particular case, 54 even where the adoption of the rule was a
discretionary function. 55 To be valid the action of the agency must conform to its
rules which are in effect at the time the action is taken, 56 particularly those designed to
provide procedural safeguards for fundamental rights. 57
However, a court or an administrative agency always has the discretion to relax or

modify its procedural rules adopted for the orderly transaction of business before it when
in a given case the ends of justice require it; the action in such a case is not reviewable
except on showing of substantial prejudice to the complaining party. 58
Under some circumstances a failure to observe regulations may be regarded as harmless

error. 59
Footnotes
Footnote 53. Union Light, Heat & Power Co. v Public Service Com. (Ky) 271 SW2d
361; State ex rel. Independent School Dist. v Johnson, 242 Minn 539, 65 NW2d 668;
People ex rel. Jordan v Martin, 152 NY 311, 46 NE 484.
Footnote 54. Service v Dulles, 354 US 363, 1 L Ed 2d 1403, 77 S Ct 1152; United

States ex rel. Accardi v Shaughnessy, 347 US 260, 98 L Ed 681, 74 S Ct 499; State ex
rel. Independent School Dist. v Johnson, 242 Minn 539, 65 NW2d 668; People ex rel.
Jordan v Martin, 152 NY 311, 46 NE 484.
Footnote 55. State ex rel. Independent School Dist. v Johnson, 242 Minn 539, 65 NW2d
668.
Plenary powers resting in the "absolute discretion" of an agency may thus be rendered
subject to procedural limitations. Service v Dulles, 354 US 363, 1 L Ed 2d 1403, 77 S
Ct 1152.
Footnote 56. Coleman v Gary, 220 Ind 446, 44 NE2d 101; State ex rel. Independent
School Dist. v Johnson, 242 Minn 539, 65 NW2d 668.
Footnote 57. Vitarelli v Seaton, 359 US 535, 3 L Ed 2d 1012, 79 S Ct 968; Service v

Dulles, 354 US 363, 1 L Ed 2d 1403, 77 S Ct 1152; Bridges v Wixon, 326 US 135, 89
L Ed 2103, 65 S Ct 1443; People ex rel. Jordan v Martin, 152 NY 311, 46 NE 484.
Footnote 58. American Farm Lines v Black Ball Freight Service, 397 US 532, 25 L Ed
2d 547, 90 S Ct 1288.
Footnote 59. Olin Indus., Inc. v NLRB (CA5) 192 F2d 799, 29 BNA LRRM 2117, 20
CCH LC ¶ 66656 (notice by ordinary rather than registered mail); Union Starch &
Refining Co. v NLRB (CA7) 186 F2d 1008, 27 BNA LRRM 2342, 19 CCH LC ¶ 66152,
27 ALR2d 629, cert den 342 US 815, 96 L Ed 617, 72 S Ct 30, 28 BNA LRRM 2625
(charge as basis for complaint not sworn to).
§ 270 Compliance with statutes
View Entire Section

The general principles that all powers of an administrative agency must be exercised in
accordance with the statute or other law conferring such power, 60 and that an agency's
jurisdiction or authority to act depends upon compliance with the statute vesting power in
the agency, 61 apply in relation to procedural provisions laid down in the statutes
governing the agency, 62 at least where such provisions are deemed mandatory 63
and involve matters of substance and not mere technicalities. 64 An attempt to exercise
a power without compliance with the provisions as to the manner and circumstances of
its exercise is a nullity. 65
In some jurisdictions, substantial compliance with prescribed procedure is all that is

required, 66 while in other the statutorily prescribed procedure must be strictly
pursued, particularly in penal proceedings. 67
A technical failure to comply may be excused where no prejudice results, 68 and the
failure to observe a nonmandatory requirement intended for the benefit of the
government does not invalidate an administrative act so as to open it to attack by the
private individual involved in the proceeding. 69
Footnotes
869, 81 S Ct 1611; Edgerton v International Co. (Fla) 89 So 2d 488; Kovack v Licensing
Board, Waterville, 157 Me 411, 173 A2d 554; Oliphant v Carthage Bank, 224 Miss 386,
80 So 2d 63; Williams Electric Cooperative, Inc. v Montana-Dakota Utilities Co. (ND)
79 NW2d 508; Ex parte Anderson, 191 Or 409, 229 P2d 633, 29 ALR2d 1051, reh den
191 Or 452, 230 P2d 770, 29 ALR2d 1073; Roper v Winner (Tex Civ App) 244 SW2d
355; E. C. Olsen Co. v State Tax Com., 109 Utah 563, 168 P2d 324.
Footnote 63. Pittsburgh v Pennsylvania Public Utility Com., 157 Pa Super 595, 43 A2d
348; State Dept. of Public Safety v Cox (Tex Civ App Dallas) 279 SW2d 661, writ ref n r
e; Atlantic Greyhound Corp. v Public Service Com., 132 W Va 650, 54 SE2d 169.
Footnote 64. Crozier v County Com'rs of Prince George's County, 202 Md 501, 97 A2d
296, 37 ALR2d 1137 (superseded on other grounds by statute as stated in Board of
County Comrs. v Schuhly, 72 Md App 702, 532 A2d 716); New Jersey Bell Tel. Co. v
Communications Workers, etc., 5 NJ 354, 75 A2d 721, 26 BNA LRRM 2585, 18 CCH
LC ¶ 65997.
Footnote 65. North Laramie Land Co. v Hoffman, 268 US 276, 69 L Ed 953, 45 S Ct
491; California Adjustment Co. v Atchison, T. & S. F. R. Co., 179 Cal 140, 175 P 682,
13 ALR 274; Howell School Bd. Dist. v Hubbartt, 246 Iowa 1265, 70 NW2d 531; Stiles
v Morse, 233 Mass 174, 123 NE 615, 4 ALR 1365 (disapproved on other grounds by
Chartrand v Riley, 354 Mass 242, 237 NE2d 10) and (ovrld on other grounds by Gildea v
Ellershaw, 363 Mass 800, 298 NE2d 847); Railroad Com. of Texas v Red Arrow Freight
Lines, Inc. (Tex Civ App) 96 SW2d 735, writ ref.
Footnote 66. Witmer v United States, 348 US 375, 99 L Ed 428, 75 S Ct 392; Mahler v
Eby, 264 US 32, 68 L Ed 549, 44 S Ct 283; Crozier v County Com'rs of Prince
George's County, 202 Md 501, 97 A2d 296, 37 ALR2d 1137 (superseded on other
grounds by statute as stated in Board of County Comrs. v Schuhly, 72 Md App 702, 532
A2d 716); Oliphant v Carthage Bank, 224 Miss 386, 80 So 2d 63.
Footnote 67. Hawkins v Common Council of Grand Rapids, 192 Mich 276, 158 NW 953;
New Jersey State Board of Optometrists v Nemitz, 21 NJ Super 18, 90 A2d 740
(suspension or revocation of license); Commonwealth ex rel. Bowman v Slifer, 25 Pa 23
(removal of public officer).
Footnote 68. Witmer v United States, 348 US 375, 99 L Ed 428, 75 S Ct 392; K.

Whiskey Store, Inc. v Shearer (Ky) 276 SW2d 457.
Footnote 69. United States v Ranlett, 172 US 133, 43 L Ed 393, 19 S Ct 114

(appraisement for import duties).
3. Limitation of Actions [271-273]
§ 271 Generally
View Entire Section

The time in which an administrative proceeding may be brought is often regulated by the
statute providing for such proceeding, and a failure to comply with such statute may bar
the administrative proceeding. 70

Some statutes setting a time during which specified administrative action may be taken
are merely directory and do not preclude the administrative agency from taking such
action after expiration of the time stated. 71
In other situations there may be no statutory time limitations applicable to particular

administrative proceedings and the question of whether or not there is a bar by time may
turn on the question of laches. 72 Laches is not to be imputed by the mere passage of
time, but must be determined after all the circumstances of the case are developed;
prejudice is a necessary element for the application of the doctrine of laches. 73
Footnotes
Footnote 70. Pillsbury v United Engineering Co., 342 US 197, 96 L Ed 225, 72 S Ct

223 (superseded by statute on other grounds as stated in Marathon Oil Co. v Lunsford
(CA5) 733 F2d 1139) (liberal construction of humanitarian act does not give court power
to rewrite statute of limitations); Marshall v Pletz, 317 US 383, 87 L Ed 348, 63 S Ct
284 (superseded by statute on other grounds as stated in Lazarus v Chevron USA, Inc.
(CA5 La) 958 F2d 1297); Edgerton v International Co. (Fla) 89 So 2d 488; State ex rel.
Victor Chemical Works v Gay (Fla) 74 So 2d 560, 46 ALR2d 1340 (statute was more in
nature of nonclaim than of limitations).
In determining whether a period of delay is reasonable within the meaning of the state
Administrative Procedure Act, the administrative body must weigh the nature of the
private interest allegedly compromised by the delay, the actual prejudice to the private
party, the causal connection between the conduct of the parties and the delay, and the
underlying public policy advanced by governmental regulation. Reid v Axelrod (4th
A state Administrative Procedure Act section providing that in an adjudicatory

proceeding all parties shall be afforded a reasonable opportunity for a hearing within a
reasonable time places an affirmative duty on the state to conduct adjudicatory
proceedings within a "reasonable time;" "reasonable time" commences with the date of
the incident giving rise to the adjudicatory proceeding. Walia v Axelrod, 120 Misc 2d
104, 465 NYS2d 443.
Annotation: Applicability of statute of limitations or doctrine of laches to proceeding

to revoke or suspend license to practice medicine, 51 ALR4th 1147.
Footnote 71. Christgau v Fine, 223 Minn 452, 27 NW2d 193; Re Application of Koch
Exploration Co. (SD) 387 NW2d 530, 89 OGR 549.
A regulation which establishes a time limit within which an individual must act merely
grants a limited right to that individual and does not necessarily subtract from the
agency's discretionary power to act on a matter that is brought before it. Gibson v United
States, 11 Cl Ct 6.
Footnote 72. Order of R. Telegraphers v Railway Express Agency, Inc., 321 US 342, 88
L Ed 788, 64 S Ct 582, 14 BNA LRRM 506, 8 CCH LC ¶ 51174 (holding that there is
no federal statute of limitations applicable to unadjusted claims which the Railway Labor
Adjustment Board may consider).

The defense of laches may be available to an aggrieved party in an administrative action
in which substantial delay has occurred between the time of the subject occurrence and
the charges stemming therefrom, such as when a delay prevents the fair conclusion
because the evidence has become obscured or when the evidence consists of conflicting
recollection testimony and several witnesses are unavailable. Bultas v Board of Fire &
Police Comrs. (1st Dist) 171 Ill App 3d 189, 121 Ill Dec 124, 524 NE2d 1172, app den
122 Ill 2d 570, 125 Ill Dec 211, 530 NE2d 239.
Footnote 73. O'Brien v Department of Police (La App 4th Cir) 522 So 2d 1231;
Cerminaro v Board of Regents (3d Dept) 120 App Div 2d 262, 508 NYS2d 693;
Schireson v Shafer, 354 Pa 458, 47 A2d 665, 165 ALR 1133.
The doctrine of laches applies in administrative proceedings when challenged

administrative action has been unreasonably delayed, resulting in the prejudice to a party
against whom the action was taken. Hope Rehabilitation Services v Department of
Rehabilitation (3rd Dist) 212 Cal App 3d 938, 261 Cal Rptr 123.
§ 272 Application of general statutes of limitation
View Entire Section

Go to Supplement
The provisions of the general statute of limitations may apply to administrative

proceedings, in the absence of a specially applicable provision. 74 Thus, the general
provision as to a liability created by statute, other than a penalty or forfeiture, will bar an
administrative proceeding. 75 However, where the proceeding is a substitute for a
common-law action, the provision formerly governing such action is applicable. 76
In regard to a proceeding which is in the public interest, general statutes of limitation

may not provide a bar. 77
§ 272 ----Application of general statutes of limitation [SUPPLEMENT]
Case authorities:
Former employee's claims under Title VII and Age Discrimination in Employment Act,
alleging acts occurring prior to passage of Financial Institutions Reform, Recovery, and
Enforcement Act, are not dismissed as untimely, because question of whether
administrative time limits should be tolled cannot be resolved on motion to dismiss since
administrative filing requirements are construed as statutes of limitations, not
jurisdictional prerequisites, so court may not look beyond face of complaint to resolve
factual disputes. Mirza v Department of Treasury ex rel. Bentsen (1995, ND Ill) 875 F
Supp 513.
Five-year catch-all federal statute of limitations, 28 USCS § 2462, applicable to

situations where Congress failed to specifically include limitations period, applies to
claim filed by Federal Election Commission (FEC) against political organization for
violations of Federal Election Campaign Act (FECA) (2 USCS §§ 431 et seq.) 7 years
after events at issue occurred and FEC's administrative proceedings did not toll
applicable time period, but § 2462 does not apply to equitable claims because statute only
refers to enforcement of civil fines, penalty, or forfeiture. Federal Election Comm'n v
National Republican Senatorial Comm. (1995, DC Dist Col) 877 F Supp 15.
Five-year statute of limitations contained in 28 USCS § 2462 does not apply to action
brought by Federal Aviation Administration to revoke individual's pilot certificate for
violation of 49 USCS § 44710(b) (formerly 49 USCS Appx § 1429(c)), since
revocation, which is remedial sanction, does not involve enforcement of civil fine,
penalty or forfeiture. Hinson v Brzoska (1994) NTSB EA-4288.
Footnotes
Footnote 74. Utah Consol. Mining Co. v Industrial Com. of Utah, 57 Utah 279, 194 P
657, 16 ALR 458; Federal Rubber Co. v Industrial Com., 185 Wis 299, 201 NW 261,
40 ALR 491.
Annotation: Applicability of statute of limitations or doctrine of laches to proceeding

to revoke or suspend license to practice medicine, 51 ALR4th 1147.
Character or kind of action or proceeding within operation of statute permitting new

action after limitation period, upon failure of timely action, 79 ALR2d 1309 § 14.
Footnote 75. Utah Consol. Mining Co. v Industrial Com. of Utah, 57 Utah 279, 194 P
657, 16 ALR 458.
Footnote 76. Federal Rubber Co. v Industrial Com., 185 Wis 299, 201 NW 261, 40 ALR
491.
See Oklahoma City v Wells, 185 Okla 369, 91 P2d 1077, 123 ALR 662, holding that a
landowner's right to recover compensation in condemnation proceedings is barred only
by lapse of the period necessary to acquire title by adverse possession.
Footnote 77. Federal Trade Com. v Algoma Lumber Co., 291 US 67, 78 L Ed 655, 54 S
Ct 315 (holding that lapse of time does not bar a proceeding in the public interest to
suppress unfair competition consisting of the misapplication of a name, unless
submission has gone so far that the occasion for any misunderstanding worthy of
correction is already at an end); State Medical Examining Board v Stewart, 46 Wash 79,
89 P 475; State v Schaeffer, 129 Wis 459, 109 NW 522 (revocation of license to practice
medicine).
§ 273 Waiver; excuses; suspension
View Entire Section

An administrative agency may not enlarge its powers by waiving a time requirement
which is jurisdictional or which is a prerequisite to the action taken. 78 However, if
the time requirement is not regarded as jurisdictional, and relates merely to the remedy
and not to the right or authority, compliance may be subject to waiver by the party to be
affected. 79
Provisions of the general statute of limitations suspending the running of the statute as to
persons under disability do not apply to special statutory proceedings before
administrative agencies governed by their own specific time limitations. 80 However,
they do evince the general policy of the state as to persons under disability, and an
administrative agency which applies equitable rules should relieve against the effect of
failure to move in time where such failure is due to insanity. 81
Under some circumstances, particularly in regard to rights conferred by humanitarian

statutes, fraud will toll the period for bringing proceedings under a statute which creates
and prescribes a time for bringing such proceedings. 82
Footnotes
Footnote 78. United States v Garbutt Oil Co., 302 US 528, 82 L Ed 405, 58 S Ct 320,
38-1 USTC ¶ 9021, 19 AFTR 1248 (time for filing claim for refund of taxes); Rosenthal
v State Employees' Retirement System, 30 NJ Super 136, 103 A2d 896.
Footnote 79. Bohn v Watson (2nd Dist) 130 Cal App 2d 24, 278 P2d 454 (rejecting a
claim that a ground for license revocation was barred under a specific statute where the
defense was not raised in the administrative proceedings or the court below).
As to workers' compensation proceedings, see 82 Am Jur 2d, Workers' Compensation §§

534-536.
Footnote 80. Ames v Department of Labor & Industries, 176 Wash 509, 30 P2d 239, 91
ALR 1392.
Footnote 81. Ames v Department of Labor & Industries, 176 Wash 509, 30 P2d 239, 91
ALR 1392.
Footnote 82.
 Annotations: Effect of fraud to toll the period for bringing action prescribed in
statute creating the right of action, 15 ALR2d 500 §§ 5, 9.
When will Federal Government employee be excused from 30-day limitation period,
established by Equal Employment Opportunity Commission regulation (29 CFR §
1613.214(a)(l)(i)), for bringing matters relating to employment discrimination to
attention of Equal Employment Opportunity Counselor, 57 ALR Fed 116.
B. Jurisdiction [274-282]

Research References
§ 274 Generally
View Entire Section

Go to Supplement
 Definition: "Jurisdiction" in regard to administrative agencies generally may be

defined as power given by law 83 to hear and decide controversies. 84
In administrative law the term jurisdiction has three aspects: (1) personal jurisdiction,
referring to the agency's authority over the parties and intervenors involved in the
proceedings; (2) subject matter jurisdiction, referring to an agency's power to hear and
determine the causes of a general class of cases to which a particular case belongs; and
(3) the agency's scope of authority under statute. 85
Jurisdiction is essential to give validity to the determinations of administrative agencies;

86 without jurisdiction, their acts are void and open to collateral attack. 87
Practice Aids: Administrative law–Administrative Procedure Act–D.C. Circuit holds

that trade representative's failure to prepare environmental impact statement for
NAFTA is not reviewable under the Administrative Procedure Act– Public Citizen v.
United States Trade Representative [5 F3d 549 (1993)], 107 Harv LR 1819 (1994).
Motion–To administrative agency–For dismissal of proceedings lying in exclusive

jurisdiction of court. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 512.
Case authorities:
Tucker Act (29 USCS § 1491) provides Japanese citizens seeking eligibility for
restitution under Civil Liberties Act (50 USCS §§ 1989 et seq.) with adequate remedy
within meaning of 5 USCS § 704; therefore, jurisdiction for action under APA against
Office of Redress Administration is not available. Kanemoto v Reno (1994, CA FC) 41
F3d 641.
Footnotes
Footnote 83. State ex rel. Spurck v Civil Service Board, 226 Minn 253, 32 NW2d 583
(no jurisdiction to make findings without evidence); Foy v Schechter, 1 NY2d 604, 154

NYS2d 927, 136 NE2d 883, reh den 2 NY2d 774 and motion den 2 NY2d 774.
Footnote 84. State Board of Dental Examiners v Savelle, 90 Colo 177, 8 P2d 693, 82
ALR 1176, app dismd 287 US 562, 77 L Ed 496, 53 S Ct 5; Cacek v Munson, 160 Neb
187, 69 NW2d 692; Fowler v Young (Mahoning Co) 77 Ohio App 20, 32 Ohio Ops 298,
65 NE2d 399.
Footnote 85. State Board of Dental Examiners v Savelle, 90 Colo 177, 8 P2d 693, 82
ALR 1176, app dismd 287 US 562, 77 L Ed 496, 53 S Ct 5; Business & Professional
People for Public Interest v Illinois Commerce Com., 136 Ill 2d 192, 144 Ill Dec 334,
555 NE2d 693, appeal after remand, remanded 146 Ill 2d 175, 166 Ill Dec 10, 585 NE2d
1032, on remand (Ill Comm Com) 133 PUR4th 69, later proceeding (Ill Comm Com) 134
PUR4th 305, later proceeding (Ill Comm Com) 139 PUR4th 165, amd on other grounds
(Ill Comm Com) 139 PUR4th 243 and corrected (Ill Comm Com) 140 PUR4th 461;
Department of Conservation v Sowders (Ky) 244 SW2d 464; Fowler v Young (Mahoning
Co) 77 Ohio App 20, 32 Ohio Ops 298, 65 NE2d 399.
If an administrative agency lacks the statutory power to consider a matter, then the
agency is without subject matter jurisdiction. Livingston Manor, Inc. v Department of
Social Services, Div. of Family Services (Mo App) 809 SW2d 153.
As to jurisdiction conferred by statute, see § 275.
Footnote 86. NLRB v Highland Park Mfg. Co., 341 US 322, 95 L Ed 969, 71 S Ct 758,
28 BNA LRRM 2033, 19 CCH LC ¶ 66327; Gerson v Industrial Acci. Com. (2nd Dist)
188 Cal App 2d 735, 11 Cal Rptr 1; Business & Professional People for Public Interest v
Illinois Commerce Com., 136 Ill 2d 192, 144 Ill Dec 334, 555 NE2d 693, appeal after
remand, remanded 146 Ill 2d 175, 166 Ill Dec 10, 585 NE2d 1032, on remand (Ill Comm
Com) 133 PUR4th 69, later proceeding (Ill Comm Com) 134 PUR4th 305, later
proceeding (Ill Comm Com) 139 PUR4th 165, amd on other grounds (Ill Comm Com)
139 PUR4th 243 and corrected (Ill Comm Com) 140 PUR4th 461; Springville
Community School Dist. v Iowa Dept. of Public Instruction, 252 Iowa 907, 109 NW2d
213; Delaware, L. & W. R. Co. v Hoboken, 10 NJ 418, 91 A2d 739; Bartron v Codington
County, 68 SD 309, 2 NW2d 337, 140 ALR 550.
Footnote 87. Doolan v Carr, 125 US 618, 31 L Ed 844, 8 S Ct 1228; Findlay v Board of
Sup'rs, 72 Ariz 58, 230 P2d 526, 24 ALR2d 841; Nicolai v Board of Adjustment, 55 Ariz
283, 101 P2d 199; City Street Improv. Co. v Pearson, 181 Cal 640, 185 P 962, 20 ALR
1317 (ovrld on other grounds by Hoffman v Red Bluff, 63 Cal 2d 584, 47 Cal Rptr 553,
407 P2d 857); Johnson v Mortenson, 110 Conn 221, 147 A 705, 66 ALR 1428; Mitchell
v Delaware Alcoholic Beverage Control Com. (Super) 56 Del 260, 193 A2d 294, revd on
other grounds (Sup) 57 Del 103, 196 A2d 410; Antrim v Civil Service Com., 261 Iowa
396, 154 NW2d 711; State ex rel. Spurck v Civil Service Board, 226 Minn 240, 32
NW2d 574; Oliphant v Carthage Bank, 224 Miss 386, 80 So 2d 63; Foy v Schechter, 1
NY2d 604, 154 NYS2d 927, 136 NE2d 883, reh den 2 NY2d 774 and motion den 2
NY2d 774; Lee v Board of Adjustment, 226 NC 107, 37 SE2d 128, 168 ALR 1; Di
Palma v Zoning Board of Review, 72 RI 286, 50 A2d 779, 175 ALR 399; State Dept. of
Public Safety v Cox (Tex Civ App Dallas) 279 SW2d 661, writ ref n r e; State ex rel.
Anderton v Sommers, 242 Wis 484, 8 NW2d 263, 145 ALR 1324.
As to the effect of jurisdictional defects on administrative determinations, generally, see

§§ 380 et seq.
§ 275 Statute as source; general limitations
View Entire Section

Go to Supplement
Administrative agencies are tribunals of limited jurisdiction. 88 As a general rule,

they have only such adjudicatory jurisdiction as is conferred on them by statute. 89
Their jurisdiction is dependent entirely upon the validity 90 and the terms 91 of
the statutes reposing power in them, and they cannot confer jurisdiction on themselves.
92 If the provisions of the statutes, at least the basic mandatory provisions 93
and the conditions precedent are not met, they have no jurisdiction. 94
Jurisdiction of administrative tribunals may be limited territorially as well as by subject

matter, and such tribunals may not exercise their powers extraterritorially. 95
Where the jurisdiction of an administrative tribunal is established by a state constitution,

a statute attempting to enlarge such jurisdiction is unconstitutional, and a constitutional
amendment relating to the jurisdiction cannot have a retroactive effect so as to embrace a
case arising and decided prior to the amendment. 96
§ 275 ----Statute as source; general limitations [SUPPLEMENT]
Case authorities:
Although adjudication of the constitutionality of congressional enactments has generally

been thought to be beyond the jurisdiction of federal administrative agencies, this rule is
not mandatory. Thunder Basin Coal Co. v Reich (US) 127 L Ed 2d 29, 114 S Ct 771.
Construing GS § 113A- 123(a) together with GS § 150B-43, the Court of Appeals finds
that the legislature intended to confer jurisdiction over appeals pursuant to GS §
113A-123(a) on the superior court of the county where the land or any part thereof is
located as well on the Superior Court of Wake County or of the county where the
petitioner resides; further, the legislature intended to establish the superior court of the
county where the land or any part thereof is located as the proper venue for appeals
pursuant to GS § 113A-123(a). Friends of Hatteras Island Nat'l Historic Maritime Forest
Land Trust for Preservation v Coastal Resources Comm'n (1995) 117 NC App 556, 452
SE2d 337.
Footnotes
Footnote 88. United States v Baltimore & O. S. R. Co., 226 US 14, 57 L Ed 104, 33 S
Ct 5; Gerson v Industrial Acci. Com. (2nd Dist) 188 Cal App 2d 735, 11 Cal Rptr 1;
Bennett v State Corp. Com., 157 Kan 589, 142 P2d 810, 150 ALR 1140; Delaware, L. &
W. R. Co. v Hoboken, 10 NJ 418, 91 A2d 739; O'Mara v Andrews, 146 Okla 57, 293 P
257, 72 ALR 1007.
Footnote 89. Springville Community School Dist. v Iowa Dept. of Public Instruction, 252
Iowa 907, 109 NW2d 213.
Footnote 90. Findlay v Board of Sup'rs, 72 Ariz 58, 230 P2d 526, 24 ALR2d 841;
Flickenger v Industrial Acci. Com., 181 Cal 425, 184 P 851, 19 ALR 1150 (criticized on
other grounds by S. G. Borello & Sons, Inc. v Department of Industrial Relations, 48 Cal
3d 341, 256 Cal Rptr 543, 769 P2d 399, 54 Cal Comp Cas 80); Dallas Fuel Co. v Horne,
230 Iowa 1148, 300 NW 303; Department of Conservation v Sowders (Ky) 244 SW2d
464; Fink v Cole, 1 NY2d 48, 150 NYS2d 175, 133 NE2d 691.
Footnote 91. NLRB v Denver Bldg. & Constr. Trades Council, 341 US 675, 95 L Ed
1284, 71 S Ct 943, 28 BNA LRRM 2108, 19 CCH LC ¶ 66347 (superseded by statute on
other grounds as stated in Pacific Northwest Chapter of Associated Builders &
Contractors, Inc. v NLRB (CA9) 609 F2d 1341, 103 BNA LRRM 2144, 87 CCH LC ¶
11754); McLean v Jephson, 123 NY 142, 25 NE 409; State Dept. of Public Safety v Cox
(Tex Civ App Dallas) 279 SW2d 661, writ ref n r e; State ex rel. Public Utility Dist. v
Department of Public Service, 21 Wash 2d 201, 150 P2d 709; Monroe v Railroad Com.
of Wisconsin, 170 Wis 180, 174 NW 450, 9 ALR 1007.
The former Federal Home Savings and Loan Insurance Corporation did not have the
power, under the federal statutes that governed the FSLIC and the Federal Home Loan
Bank Board, to adjudicate creditors' claims against the assets of the failed savings and
loan association under FSLIC receivership, and such creditors were entitled to de novo
consideration of their claims in court; the plain language of the applicable federal statutes
could not be read to confer upon the FSLIC such power. Coit Independence Joint
Venture v Federal Sav. & Loan Ins. Corp., 489 US 561, 103 L Ed 2d 602, 109 S Ct
1361, on remand (CA5 Tex) 874 F2d 249 and (superseded by statute on other grounds as
stated in Gibraltar Financial Corp. v Federal Home Loan Bank Bd. (CD Cal) 1990 US
Dist LEXIS 19197) and (superseded by statute as stated in George Kellett & Sons v
Homes (ED La) 1992 US Dist LEXIS 7269) and (superseded by statute as stated in
Bender v CenTrust Mortgage Corp. (SD Fla) 833 F Supp 1540).
The Commodity Exchange Act empowers the Commodity Futures Trading Commission
(CFTC) to entertain state law counterclaims by commodity futures brokers, in reparations
proceedings brought under the Act by customers for injuries caused by such brokers'
violations of the Act. Commodity Futures Trading Com. v Schor, 478 US 833, 92 L Ed
2d 675, 106 S Ct 3245.
Footnote 92. Soars v Soars-Lovelace, Inc., 346 Mo 710, 142 SW2d 866 (superseded by
statute on other grounds as stated in McFarland v Bollinger (Mo App) 792 SW2d 903);
Federal Deposit Ins. Corp. v Board of Finance & Revenue, 368 Pa 463, 84 A2d 495; Di
Palma v Zoning Board of Review, 72 RI 286, 50 A2d 779, 175 ALR 399.
One of the facts necessary to support jurisdiction in the Federal Trade Commission to
make an order to cease and desist from an unfair method of competition is the existence
of competition, and the Commission cannot, by assuming the existence of competition, if
in fact there is none, give itself jurisdiction to make such an order. FTC v Raladam Co.,
283 US 643, 75 L Ed 1324, 51 S Ct 587, 79 ALR 1191, motion den (US) 76 L Ed
1300, 52 S Ct 14 and (superseded by statute on other grounds as stated in American
Financial Services Asso. v FTC, 247 US App DC 167, 767 F2d 957, 1985-2 CCH Trade
Cases ¶ 66702).
Footnote 93. Peters v Hobby, 349 US 331, 99 L Ed 1129, 75 S Ct 790; Alabama Power
Co. v Ft. Payne, 237 Ala 459, 187 So 632, 123 ALR 1337; McGuinn v High Point, 217
NC 449, 8 SE2d 462, 128 ALR 608; Federal Deposit Ins. Corp. v Board of Finance &
Revenue, 368 Pa 463, 84 A2d 495; Tedars v Savannah River Veneer Co., 202 SC 363, 25
SE2d 235, 147 ALR 914; State ex rel. Anderton v Sommers, 242 Wis 484, 8 NW2d
263, 145 ALR 1324.
Annotation: Validity, construction and effect of provision of Labor Management

Relations Act requiring officers of labor organization to file noncommunist affidavits,
2 L Ed 2d 1765.
Validity, construction and effect of provision of Labor Management Relations Act

requiring officers of labor organization to file noncommunist affidavits, 1 L Ed 2d
1671 (supplemented by Validity, construction and effect of provision of Labor
Management Relations Act requiring officers of labor organization to file
noncommunist affidavits, 2 L Ed 2d 1765).
Footnote 94. Bair v Blue Ribbon, Inc., 256 Iowa 660, 129 NW2d 85; Superior Oil Co. v
Foote, 214 Miss 857, 59 So 2d 85, 1 OGR 735, 37 ALR2d 415, sugg of error overr 214
Miss 890, 59 So 2d 844, 1 OGR 1239, 37 ALR2d 433.
As to the effect of statutory time requirements on jurisdiction, see §§ 271 et seq.
Footnote 95. Public Service Com. v Baltimore & O. R. Co., 121 Md 179, 88 A 347, supp
op 121 Md 182, 88 A 348; McCullough v Scott, 182 NC 865, 109 SE 789; McGarry v
Industrial Com. of Utah, 64 Utah 592, 232 P 1090, 39 ALR 306.
Footnote 96. Flickenger v Industrial Acci. Com., 181 Cal 425, 184 P 851, 19 ALR 1150
(criticized by S. G. Borello & Sons, Inc. v Department of Industrial Relations, 48 Cal 3d
341, 256 Cal Rptr 543, 769 P2d 399, 54 Cal Comp Cas 80).
§ 276 Consent; waiver; estoppel
View Entire Section

An administrative agency cannot enlarge its own jurisdiction nor can jurisdiction be
conferred upon the agency by parties before it; thus, deviations from an agency's
statutorily established sphere of action cannot be upheld because based upon agreement,
contract, or consent of the parties. 97 Nor can they be made effective by waiver 98 or
estoppel. 99
Footnotes
Footnote 97. Plaquemines Port, Harbor & Terminal Dist. v Federal Maritime Com., 267
US App DC 238, 838 F2d 536, 1988 AMC 2774; Walsh v A. Waldron & Sons, 112 Conn
579, 153 A 298, 78 ALR 1301; Gulf American Corp. v Florida Land Sales Board (Fla
App D2) 206 So 2d 457; Rockford Township Highway Dept. v Illinois State Labor
Relations Bd. (2d Dist) 153 Ill App 3d 863, 106 Ill Dec 683, 506 NE2d 390; Springville
Community School Dist. v Iowa Dept. of Public Instruction, 252 Iowa 907, 109 NW2d
213; Livingston Manor, Inc. v Department of Social Services, Div. of Family Services
(Mo App) 809 SW2d 153; Rosenthal v State Employees' Retirement System, 30 NJ
Super 136, 103 A2d 896; Cofman v Ousterhous, 40 ND 390, 168 NW 826, 18 ALR 219;
Diack v Portland, 306 Or 287, 759 P2d 1070, 19 ELR 20114.
Footnote 98. Walsh v A. Waldron & Sons, 112 Conn 579, 153 A 298, 78 ALR 1301;
Springville Community School Dist. v Iowa Dept. of Public Instruction, 252 Iowa 907,
109 NW2d 213; Soars v Soars-Lovelace, Inc., 346 Mo 710, 142 SW2d 866 (superseded
by statute on other grounds as stated in McFarland v Bollinger (Mo App) 792 SW2d
903); Rosenthal v State Employees' Retirement System, 30 NJ Super 136, 103 A2d 896.
Private, regulated parties cannot agree to waive subject matter jurisdiction of an agency
charged with statutory responsibility to insure that parties implement agreements as
approved by and filed with that agency. A/S Ivarans Rederi v United States, 283 US App
DC 19, 895 F2d 1441, review den 291 US App DC 106, 938 F2d 1365, 1992 AMC 292.
Footnote 99. Bair v Blue Ribbon, Inc., 256 Iowa 660, 129 NW2d 85; Soars v
Soars-Lovelace, Inc., 346 Mo 710, 142 SW2d 866 (superseded by statute on other
grounds as stated in McFarland v Bollinger (Mo App) 792 SW2d 903); Rosenthal v State
Employees' Retirement System, 30 NJ Super 136, 103 A2d 896; Fowler v Young
(Mahoning Co) 77 Ohio App 20, 32 Ohio Ops 298, 65 NE2d 399; Leschner v
Department of Labor & Industries, 27 Wash 2d 911, 185 P2d 113; Wisconsin Gas &
Electric Co. v Ft. Atkinson, 193 Wis 232, 213 NW 873, 52 ALR 1033.
§ 277 Determination of existence of jurisdiction
View Entire Section

Go to Supplement
No violation of constitutional rights occurs where an administrative agency is vested with

exclusive initial power to determine whether it has jurisdiction in a particular case, so
long as there is a provision for adequate judicial review. 1 An administrative agency
generally may 2 and must determine whether it has jurisdiction in a particular
situation. 3 When a particular statute authorizes an administrative agency to act in a
particular situation it necessarily confers upon such agency authority to determine
whether the situation is one in which the agency is authorized to determine the coverage
of the statute–a question which cannot be initially decided by a court. 4 However, an
administrative agency's determination as to its jurisdiction is not conclusive upon the
courts, but is a judicial function finally to decide the limits of the statutory power of an
administrative agency. 5
 Observation: Some courts have held that a specific administrative determination as

to jurisdiction, even though not judicially reviewed, is conclusive on collateral attack. 6
§ 277 ----Determination of existence of jurisdiction [SUPPLEMENT]
Case authorities:
Regulations of Farmer's Home Administration that implement debt restructuring and loan
servicing provisions of Agricultural Credit Act require state director approval of
proposed buyout, but Administration's failure to meet this procedural requirement did not
divest Administration of jurisdiction. Kinion v United States (1993, CA8 Ark) 8 F3d 639.
Nonfrivolous allegation that, as operations performance analyst, appellant was

managerial employee entitled appellant to jurisdictional hearing on his claim of
involuntary retirement. Carrier v United States Postal Serv. (1994, MSPB) 65 MSPR 54.
When petitioner petitioned the superior court for review of a final agency decision, this
gave the superior court jurisdiction under GS § 136-13 (1) to determine the whole case,
including the taxing of costs. Therefore, a superior court judge had jurisdiciton to
interpret GS § 6- 1 (1) pertaining to the taxing of costs, and it was error for another
superior judge to overrule his order taxing attorney fees against the State agency. Able
Outdoor v Harrelson (1995) 341 NC 167, 459 SE2d 626.
Footnotes
Footnote 1. Newport News Shipbuilding & Dry Dock Co. v Schauffler, 303 US 54, 82 L
Ed 646, 58 S Ct 466, 1 A BNA LRRM 580, 1 CCH LC ¶ 17025; Myers v Bethlehem
Shipbuilding Corp., 303 US 41, 82 L Ed 638, 58 S Ct 459, 1 A BNA LRRM 575, 1
CCH LC ¶ 17024.
334 US 839, 92 L Ed 1764, 68 S Ct 1492; Anderson Lumber & Supply Co. v Fletcher,
228 Ind 383, 89 NE2d 449.
Annotation: Validity, construction and effect of provision of Labor Management

Relations Act requiring officers of labor organization to file noncommunist affidavits,
2 L Ed 2d 1765.
Validity, construction and effect of provision of Labor Management Relations Act

requiring officers of labor organization to file noncommunist affidavits, 1 L Ed 2d
1671 (supplemented by Validity, construction and effect of provision of Labor
Management Relations Act requiring officers of labor organization to file
noncommunist affidavits, 2 L Ed 2d 1765).
Footnote 3. Federal Power Com. v Panhandle Eastern Pipe Line Co., 337 US 498, 93 L
Ed 1499, 69 S Ct 1251.
Where a statute sets up conditions to the exercise of jurisdiction in particular situations,

the agency has the duty to determine whether there has been a compliance with the
statutory conditions. Leedom v International Union of M., M. & S. W., 352 US 145, 1

L Ed 2d 201, 77 S Ct 154, 39 BNA LRRM 2146, 31 CCH LC ¶ 70349.
Footnote 4. See Macauley v Waterman S.S. Corp., 327 US 540, 90 L Ed 839, 66 S Ct

712; State ex rel. Bliss v Dority, 55 NM 12, 225 P2d 1007, app dismd 341 US 924, 95 L
Ed 1356, 71 S Ct 798.
Footnote 5. State ex rel. Public Utility Dist. v Department of Public Service, 21 Wash 2d
201, 150 P2d 709, holding that the department of public service cannot itself determine
the question of its jurisdiction, nor can it assume that it has jurisdiction when it does not
have it, for the question of jurisdiction is a judicial one, to be decided only by the courts.
Footnote 6. § 380.
§ 278 Declining jurisdiction
View Entire Section

While the doctrine of absolute discretion to entertain jurisdiction does not generally
prevail, 7 some administrative agencies may have the right to decline to take
jurisdiction of a matter which it is empowered to determine. 8 The exercise by an
administrative agency of a right to decline jurisdiction does not result in loss of
jurisdiction. 9
Footnotes
Footnote 7. Schwabacher v United States, 334 US 182, 92 L Ed 1305, 68 S Ct 958;

Alton R. Co. v United States, 287 US 229, 77 L Ed 275, 53 S Ct 124.
Footnote 8. Connecticut Light & Power Co. v Federal Power Com., 324 US 515, 89 L
Ed 1150, 65 S Ct 749 (holding that Congress appears to have left to the sound
administrative discretion of the Federal Power Commission to determine whether or not
to assert its authority in situations where the volume of energy passing over certain
facilities is insignificant in proportion to the total).
Footnote 9. § 379.
§ 279 Loss or termination of jurisdiction
View Entire Section

Jurisdiction, although once obtained, may be lost, and in such a case proceedings cannot

be validly continued beyond the point at which jurisdiction ceases. 10 This is true
where the basic jurisdictional facts provided in a statute and assumed or tentatively
determined to exist turn out, on fuller inquiry, to be unsupported. 11
Jurisdiction in relation to ordering and approving a certain act is not lost until the act is
done. 12
While an agency's prolonged failure to use an important power indicates a practical

construction that the power does not exist, 13 a failure to exercise jurisdiction does not
result in its loss. 14 This principle is applicable where an agency has declined in
certain cases to assume jurisdiction which it possesses. 15
An administrative tribunal vested with jurisdiction of a matter does not lose that
jurisdiction by not giving sufficient weight to evidence, or by rejecting proper evidence,
or by admitting that which is improper, 16 and jurisdiction is not divested by an error
of judgment in reaching the result. 17 However, for the purposes of review, clear
violations of law in reaching the result, such as acting without evidence when evidence is
required, or making a decision contrary to all the evidence, are just as much jurisdictional
error as is the failure to take the proper steps to acquire jurisdiction at the beginning of
the proceeding. 18
Footnotes
Footnote 10. Lahoma Oil Co. v State Industrial Com., 71 Okla 160, 175 P 836, 15 ALR
817 (ovrld on other grounds by Western Indem. Co. v State Industrial Com., 96 Okla
100, 219 P 147, 29 ALR 1419) (death of employee terminates jurisdiction of industrial
commission where compensation act does not apply to death cases).
Footnote 11. FTC v Raladam Co., 283 US 643, 75 L Ed 1324, 51 S Ct 587, 79 ALR
1191, motion den (US) 76 L Ed 1300, 52 S Ct 14 and (superseded by statute on other
grounds as stated in American Financial Services Asso. v FTC, 247 US App DC 167, 767
F2d 957, 1985-2 CCH Trade Cases ¶ 66702).
If it appears at any time during the course of proceedings before the Federal Trade
Commission that the proceeding which it authorized is not in the public interest, the
Commission should dismiss the complaint. FTC v Klesner, 280 US 19, 74 L Ed 138,
50 S Ct 1, 68 ALR 838.
Footnote 12. United States ex rel. Johnson v Payne, 253 US 209, 64 L Ed 863, 40 S Ct
513, holding that the Secretary of Interior, who had affirmed a decision of the
Commissioner to the Five Civilized Tribes favorable to placing certain persons on the
rolls of the Creek Nation, may reverse such affirmance before the names are actually put
upon the rolls.
Footnote 13. § 90.
Footnote 14. United States v Morton Salt Co., 338 US 632, 94 L Ed 401, 70 S Ct 357
(pointing out also that unquestioned powers are sometimes unexercised from lack of
funds, motives of expediency, or the competition of more immediately important
concerns).

Footnote 15. NLRB v Dixie Terminal Co. (CA6) 210 F2d 538, 33 BNA LRRM 2565, 25
CCH LC ¶ 68181, 43 ALR2d 902, cert den 347 US 1015, 98 L Ed 1138, 74 S Ct 871,
34 BNA LRRM 2250 and motion to vacate den (CA6) 35 BNA LRRM 2059 and cert den
348 US 952, 99 L Ed 744, 75 S Ct 440, 35 BNA LRRM 2532, declining jurisdiction did
not establish ruling that jurisdiction did not exist.
Footnote 16. Lee Lung v Patterson, 186 US 168, 46 L Ed 1108, 22 S Ct 795; Fowler v
Young (Mahoning Co) 77 Ohio App 20, 32 Ohio Ops 298, 65 NE2d 399.
An administrative law judge's refusal, on grounds of lack of authority, to subpoena

documents could be legal error, reviewable at a later stage under 5 USCS § 706(2)(D), if
the administrative law judge could have subpoenaed the documents had he found them
relevant. Columbia Packing Co. v United States Dept. of Agriculture (CA1 Mass) 563
F2d 495, 3 Media L R 1441.
Footnote 17. Callanan Road Improv. Co. v United States, 345 US 507, 97 L Ed 1206,
73 S Ct 803, reh den 345 US 977, 97 L Ed 1392, 73 S Ct 1127; Butte, A. & P. R. Co. v
United States, 290 US 127, 78 L Ed 222, 54 S Ct 108 (error in construing statute);
McFarland v McCowen, 98 Cal 329, 33 P 113.
Footnote 18. Borgnis v Falk Co., 147 Wis 327, 133 NW 209.
§ 280 --Discontinuance of practice; compliance
View Entire Section

Voluntary discontinuance of a practice denounced by statute prior to the institution of

any proceeding in regard to such proceeding does not affect the jurisdiction of the agency
administering the statute to make an order barring its resumption. 19 Nor does
compliance with the recommendations of a trial examiner furnish grounds for a dismissal
of a proceeding on the ground that a board has thereby lost jurisdiction. 20
Footnotes
Footnote 19. NLRB v American Nat. Ins. Co., 343 US 395, 96 L Ed 1027, 72 S Ct 824,
30 BNA LRRM 2147, 21 CCH LC ¶ 66980; Consolidated Edison Co. v NLRB, 305 US
197, 83 L Ed 126, 59 S Ct 206, 3 BNA LRRM 645, 1 CCH LC ¶ 17038 (criticized on
other grounds by Richardson v Perales, 402 US 389, 28 L Ed 2d 842, 91 S Ct 1420) as
stated in Watker v Vermont Parole Bd., 157 Vt 72, 596 A2d 1277; Sears, Roebuck & Co.
v Federal Trade Com. (CA7 Ill) 258 F 307, 6 ALR 358.
Footnote 20. NLRB v Oregon Worsted Co. (CA9) 94 F2d 671, 1 A BNA LRRM 638, 1
CCH LC ¶ 18080.

§ 281 --Expiration or repeal of statute
View Entire Section

An administrative agency may have the power to enforce a statute, even though the
regulatory provisions of the statute have expired, provided that the proceedings are
limited to violations preceding the expiration date and a savings statute is applicable. 21
Where there is no saving clause, repeal of a statute while proceedings are pending and
prior to the filing of an order may remove any support in law for such order. 22
However, the simultaneous repeal and re-enactment of substantially the same statute is
regarded at common law as a substitution and not a repeal; the substituted statute is
construed as a continuation of the original provisions and the jurisdiction of a board is
not disturbed nor its order voided. 23
Footnotes
25 CCH LC ¶ 68407 (ovrld on other grounds by Warden, Lewisburg Penitentiary v
Marrero, 417 US 653, 41 L Ed 2d 383, 94 S Ct 2532) as stated in United States v Breier
(CA9 Cal) 813 F2d 212, cert den 485 US 960, 99 L Ed 2d 423, 108 S Ct 1222 and
(criticized on other grounds by Martin v United States (CA8) 989 F2d 271).
251, 143 ALR 503.
Footnote 23. Pentheny, Ltd. v Virgin Islands (CA3 VI) 360 F2d 786; Bandeen v Howard
(Ky) 299 SW2d 249, cert den 355 US 813, 2 L Ed 2d 31, 78 S Ct 13 and (ovrld on
other grounds by Pearl v Marshall (Ky) 491 SW2d 837).
§ 282 --Miscellaneous factors
View Entire Section

The bad faith or unlawful motive of the person making a charge which sets an inquiry in
motion will not oust an administrative agency of jurisdiction to make a particular order.
24 Nor will inserting in an application a provision limiting the scope of inquiry by the
agency, 25 the filing of alternative proposals, 26 or failure to appoint an
independent hearing examiner as required by statute, where no objection is made. 27
Footnotes

Footnote 24. NLRB v Indiana & Michigan Electric Co., 318 US 9, 87 L Ed 579, 63 S
Ct 394, 11 BNA LRRM 763, 6 CCH LC ¶ 51150.
Footnote 25. Atlantic Refining Co. v Public Service Com., 360 US 378, 3 L Ed 2d 1312,
79 S Ct 1246, 10 OGR 1021, motion den 361 US 801, 4 L Ed 2d 53, 80 S Ct 42, 11
OGR 305 (holding that the Federal Power Commission's authority to act on an
application for certificate of convenience and necessity was not affected by the fact that
the applicant's proposal was limited to a firm price at which gas was to be sold and it
refused to accept certification at a lower price).
133 (holding that the Securities & Exchange Commission was not ousted of its
jurisdiction to direct an order against a holding company by alternative plans filed by the
holding company under another provision of the statute).
C. Institution of Proceedings; Notice [283-288]
Research References
5 USCS §§ 554(b), 558(c)
1A Am Jur Pl & Pr Forms, Administrative Law, Forms 61-64, 74, 75
1A Federal Procedural Forms, L Ed, Administrative Procedure §§ 2:81, 2:91, 2:92,
2:101-2:103, 2:106-2:108, 2:135-2:137
§ 283 Institution of proceedings, generally
View Entire Section

Go to Supplement
The manner in which proceedings are instituted before an administrative agency depends
upon the purpose served by the particular agency and the governing statute or rules of the
agency; some proceedings are instituted by simple ex parte application, such as an
application for license, permit, approval, or consent, 28 or the filing of a claim or an
application for benefits. 29 Others are instituted by the filing of a charge or complaint
by an aggrieved person on the basis of which a formal complaint may be issued by the
agency, or the filing of a formal complaint by such person 30 on the basis of which
notice of hearing is issued. 31 Thus, under some statutes an administrative agency does
not have authority to institute proceedings on its own motion. 32
Under other statutes particular administrative agencies may institute proceedings on their
own initiative, motion, or complaint, 33 or proceedings may be instituted
either by the agency or by other persons. 34
Whether an administrative agency proceeds upon its own motion or upon complaint from
outside sources, the issuance of a formal complaint is often not the first step in the
administrative process, but follows only as the culmination of a period of preliminary
investigation and consideration by the staff of the agency, the sifting of charges, 35
and sometimes the application of other techniques, such as conference, conciliation, and
persuasion. 36
§ 283 ----Institution of proceedings, generally [SUPPLEMENT]
Practice Aids: Affidavit–In support of application to set aside order revoking

permit–Revocation without notice and hearing on plea of guilty. 1A Am Jur Pl & Pr
Forms (Rev), Administrative Law, § 322.
Case authorities:
Appellant was not entitled to waiver of time limit for filing review petition where,
although she underwent surgery two days before expiration of filing period, she had time
to make arrangements for timely filing or to request extension, she did not state how long
she was incapacitated, nor did she state that filing petition 14 days late was due to
circumstances beyond her control. Olson v United States Postal Serv. (1995, MSPB) 66
MSPR 383.
Footnotes
Footnote 28. Alabama Power Co. v Ft. Payne, 237 Ala 459, 187 So 632, 123 ALR 1337.
Forms: Petition or application–For administrative order authorizing person engaged in

business to take specific action. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law,
Form 61.
–Protesting grant of permit or certificate to another. 1A Am Jur Pl & Pr Forms (Rev),

–To amend certificate of corporate applicant. 1A Am Jur Pl & Pr Forms (Rev),

–To determine rights of claimants in particular matter. 1A Am Jur Pl & Pr Forms

(Rev), Form 64.
Informal request–For administrative action. 1A Federal Procedural Forms, L Ed,

Footnote 29. O'Mara v Andrews, 146 Okla 57, 293 P 257, 72 ALR 1007; Palle v
Industrial Com. of Utah, 79 Utah 47, 7 P2d 284, 81 ALR 1222.
Footnote 30. Henderson v United States, 339 US 816, 94 L Ed 1302, 70 S Ct 843;

Holland v Edwards, 307 NY 38, 119 NE2d 581, 1 BNA FEP Cas 9, 34 BNA LRRM

2018, 1 CCH EPD ¶ 9634, 25 CCH LC ¶ 68388, 44 ALR2d 1130; State ex rel. Public
Utility Dist. v Department of Public Service, 21 Wash 2d 201, 150 P2d 709.
As to particular pleadings used in administrative proceedings, see §§ 289 et seq.
Footnote 31. As to the requirement of notice in administrative proceedings, see § 284.
Footnote 32. Peters v Hobby, 349 US 331, 99 L Ed 1129, 75 S Ct 790; Radio Officers'
Union of Commercial Telegraphers Union v NLRB, 347 US 17, 98 L Ed 455, 74 S Ct
323, 33 BNA LRRM 2417, 25 CCH LC ¶ 68111, 41 ALR2d 621.
Footnote 33. Public Utilities Com. v Pollak, 343 US 451, 96 L Ed 1068, 72 S Ct 813;
FCC v Pottsville Broadcasting Co., 309 US 134, 84 L Ed 656, 60 S Ct 437, 2 CCH LC
¶ 17058; FTC v Klesner, 280 US 19, 74 L Ed 138, 50 S Ct 1, 68 ALR 838; United
States v New York C. R. Co., 272 US 457, 71 L Ed 350, 47 S Ct 130; Whitten v
California State Bd. of Optometry, 8 Cal 2d 444, 65 P2d 1296, 115 ALR 1; Walker v
Clinton, 244 Iowa 1096, 59 NW2d 785; Hoover Motor Exp. Co. v Railroad & Public
Utilities Com., 195 Tenn 593, 261 SW2d 233; Brown v Humble Oil & Refining Co., 126
Tex 296, 83 SW2d 935, 99 ALR 1107, reh overr 126 Tex 314, 87 SW2d 1069, 101 ALR
1393; Manlowe Transfer & Distributing Co. v Department of Public Service, 18 Wash 2d
754, 140 P2d 287, 155 ALR 928.
A state civil rights commission may proceed by way of an administrative class action and
order relief for similarly situated individuals who have been victims of unlawful
discriminatory practices where the commission or its executive director is given the right
to initiate complaints. Greyhound Lines-East, Operating Div. of Greyhound Lines, Inc. v
Geiger, 179 W Va 174, 366 SE2d 135, 47 CCH EPD ¶ 38205.
Footnote 34. Central R. Co. v Department of Public Utilities, 7 NJ 247, 81 A2d 162.
Footnote 35. See Report of Attorney General's Committee on Administrative Procedure,

p. 286; Phillips Petroleum Co. v Wisconsin, 347 US 672, 98 L Ed 1035, 74 S Ct 794, 3
OGR 745, reh den 348 US 851, 99 L Ed 670, 75 S Ct 17.
Footnote 36. Holland v Edwards, 307 NY 38, 119 NE2d 581, 1 BNA FEP Cas 9, 34 BNA
LRRM 2018, 1 CCH EPD ¶ 9634, 25 CCH LC ¶ 68388, 44 ALR2d 1130.
§ 284 Requirement of notice
View Entire Section

Go to Supplement
Due process requires that a party be afforded reasonable notice before a liberty or
property interest may be affected by the action of an administrative agency, 37 and the
failure to give notice constitutes a jurisdictional defect. 38 A proceeding without having
gained jurisdiction over the person is void, 39 and an order required by statute to be
made upon notice may be attacked and set aside as without validity where it is made
without proper notice. 40
Whether a statute confers a right to notice in a particular proceeding or upon a particular

person is a matter of construction of the specific statute. 41 The federal and Model
State Administrative Procedure Acts provide for agency notification of persons entitled
to notice of an agency hearing. 42
§ 284 ----Requirement of notice [SUPPLEMENT]
Practice Aids: Notice–By administrative agency–Of complaint–With order to satisfy

or answer. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 111.
Petition or application–Allegation–Failure to give notice of hearing. 1A Am Jur Pl & Pr

Petition or application–Allegation–Determinations of federal agency not in compliance

with statutory requirements governing notice of hearing. 1A Am Jur Pl & Pr Forms
(Rev), Administrative Law, § 319.
Case authorities:
Department of Agriculture's letter satisfied APA's notice requirement where it warned

Perishable Agricultural Commodities Act licensee, who was facing suspension on
unrelated issue, that administrative action could be filed if he was found to be affiliated
with new operation he helped commence. ABL Produce v United States Dep't of Agric.
(1994, CA8) 25 F3d 641.
For purposes of determining when claim is presented to federal agency, presentment of

request for reconsideration is same as presentment of claim itself; thus, request for
reconsideration is not presented to agency until it is received by agency, and mailing of
request for reconsideration is not sufficient to satisfy presentment requirement. Moya v
Department of Veteran's Affairs (1994, CA10 NM) 35 F3d 501.
When State Board of Funeral directors, assisted by Attorney General, was conducting an
inquiry into whether a seller of preneed funeral contracts violated the preneed
arrangements law, the statutory exception to the open meetings law allowing the Board
"to confer, and receive advice from, legal counsel" included receiving facts relevant to
the basis for potential litigation, and deliberation and decision making based on the legal
advice received; the Board had no duty to notify the target of inquiry until an action was
filed. Funeral Sec. Plans v State Bd. of Funeral Directors & Embalmers (1993, 3rd Dist)
16 Cal App 4th 1672, 21 Cal Rptr 2d 92, 93 CDOS 5112, 93 Daily Journal DAR 8597,
review gr Funeral Sec. Plans v State Bd. of Funeral Directors (1993, Cal) 24 Cal Rptr 2d
73, 860 P2d 465, 93 CDOS 7843, 93 Daily Journal DAR 13373.
In issuing a compliance order and assessing a $225,000 penalty against petitioner, the
Dept. of E.H.N.R. did not use unlawful procedure in its notification of violation or in its
calculation of the amount of the civil penalty. Air-A-Plane Corp. v North Carolina Dep't
of Env't, Health & Natural Resources (1995) 118 NC App 118, 454 SE2d 297, review
den 340 NC 358, 458 SE2d 184.

Footnotes
Footnote 37. Brandt v Hickel (CA9 Cal) 427 F2d 53, 36 OGR 407 (disapproved on other
grounds by Califano v Sanders, 430 US 99, 51 L Ed 2d 192, 97 S Ct 980, 42 Cal Comp
Cas 1112); Oklahoma Aerotronics, Inc. v United States, 213 US App DC 64, 661 F2d
976, 29 CCF ¶ 81837, later proceeding 291 US App DC 401, 943 F2d 1344, 37 CCF ¶
76229; Alaska Airlines, Inc. v Civil Aeronautics Board, 178 US App DC 116, 545 F2d
194; Carroll v District of Columbia Dept. of Employment Services (Dist Col App) 487
A2d 622; Hardges v Department of Social Servs., 177 Mich App 698, 442 NW2d 752,
appeal after remand 201 Mich App 24, 506 NW2d 532; Atkins v Department of Social
Services, 92 Mich App 313, 284 NW2d 794; Farmington R-VII School Dist. v Allen (Mo
App) 676 SW2d 53, 26 BNA WH Cas 1499; Murray v Jacobs, 99 Pa Cmwlth 39, 512
A2d 785; West Virginia Nonintoxicating Beer Comm'r v A & H Tavern, 181 W Va 364,
382 SE2d 558.
As to notice required prior to withdrawal, suspension, revocation, or annulment of a

license by an administrative agency, see § 255.
Footnote 38. Edelson v Zoning Com. of Berlin, 2 Conn App 595, 481 A2d 421
(disapproved on other grounds by Lauer v Zoning Com. of Redding, 220 Conn 455, 600
A2d 310) as stated in Delfino v Planning & Zoning Com., 30 Conn App 454, 620 A2d
836; Arthritis Medical Center, Inc. v Department of Health & Rehabilitative Services
(Fla App D4) 543 So 2d 1304, 14 FLW 1329.
Footnote 39. National Licorice Co. v NLRB, 309 US 350, 84 L Ed 799, 60 S Ct 569, 6
BNA LRRM 674, 2 CCH LC ¶ 17056; Landover Books, Inc. v Prince George's County,
81 Md App 54, 566 A2d 792; Oliphant v Carthage Bank, 224 Miss 386, 80 So 2d 63;
Hutton v Camden, 39 NJL 122.
As to jurisdiction of adjudicatory proceedings, generally, see § 274.
River Assoc., 459 US 297, 74 L Ed 2d 465, 103 S Ct 634); State v Pollock, 251 Ala
603, 38 So 2d 870, 7 ALR2d 757; Louisville & Jefferson County Planning & Zoning
Com. v Ogden, 307 Ky 362, 210 SW2d 771 (superseded by statute on other grounds as
stated in Minton v Fiscal Court of Jefferson County (Ky App) 850 SW2d 52); Caucus
Distributors, Inc. v Maryland Secur. Comr., 320 Md 313, 577 A2d 783; Oliphant v
Carthage Bank, 224 Miss 386, 80 So 2d 63; Paine v State, 156 Wash 31, 286 P 89.
As to waiver of notice, see § 288.
Footnote 41. United States v Libby, McNeil & Libby (DC Alaska) 107 F Supp 697;
Superior Oil Co. v Foote, 214 Miss 857, 59 So 2d 85, 1 OGR 735, 37 ALR2d 415, sugg
of error overr 214 Miss 890, 59 So 2d 844, 1 OGR 1239, 37 ALR2d 433; Ottinger v
Arenal Realty Co., 257 NY 371, 178 NE 665 (neighboring property owners are not
"parties" entitled to notice of application for a variance).
Notice must be given to all parties which may be affected by the issuance of an order.
Pinkett v United States (DC Md) 105 F Supp 67; Dolphin v Board of Review, 70 Wis 2d
403, 234 NW2d 277.

Interested persons entitled to notice of an administrative hearing are those who have a
legally recognized private interest, and not simply a possible pecuniary benefit, in the
form of legal rights or legal liabilities which may be enlarged or diminished by official
action. Bay Harbor Islands v Driggs (Fla App D3) 522 So 2d 912, 13 FLW 617, review
den (Fla) 531 So 2d 1352.
Forms: Notice–By administrative agency–Of complaint–With order to satisfy or

answer. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 74.
––Citation in proceedings for revocation or suspension of certificate or permit for

violation of statute. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 75.
Notice–Of filing of charges against respondent–With order to show cause. 1A Federal

Footnote 42. 5 USCS § 554(b); Model State Administrative Procedure Act (1961) § 9;
Model State Administrative Procedure Act (1981) § 4-206.
§ 285 Content and sufficiency of notice
View Entire Section

The requirement of notice in an administrative proceeding is not as strict or exacting as

that in a judicial proceeding; the notice must be reasonable under the circumstances of
the particular case. 43
A notice of an agency hearing must inform interested persons of: (1) the time, place, and
nature of the hearing; 44 (2) the legal authority and jurisdiction under which the hearing
is to be held; and (3) the matters of fact and law asserted. 45 Notice of an
administrative proceeding should give the respondent adequate warning of the nature of
the proceedings so that the respondent may prepare a reply case and arguments in
opposition. 46 If notice of charges does not fully apprise a person of the nature of
the offense with which he or she is charged, the court may set aside an order of an agency
for deficiency of notice. 47
While in most instances, the notice need not detail the agency's case or specify the exact
consequences of adverse agency action, in some cases more specificity is required. 48 If
members of the public are allowed to intervene in a proceeding, the notice should also
understandably state the essential attributes of the application, so that potential
intervenors can determine whether their interests may be affected in the proceeding. 49
Public notice must be clear, definite, explicit, and not ambiguous; notice is not clear
unless its meaning can be apprehended without explanation or argument. 50
Footnotes

Footnote 43. Earnshaw v United States, 146 US 60, 36 L Ed 887, 13 S Ct 14; Smith v
Department of Health & Rehabilitative Services (Fla App D3) 555 So 2d 1254, 14 FLW
2797; Kovack v Licensing Board, Waterville, 157 Me 411, 173 A2d 554; Re Hot Spot,
Inc., 149 Vt 538, 546 A2d 799.
Footnote 44. Simon v Lafayette Automotive, Wrecker & Towing Control Committee (La
App 3d Cir) 532 So 2d 283; Dullam v Willson, 53 Mich 392, 19 NW 112; Oliphant v
Carthage Bank, 224 Miss 386, 80 So 2d 63; Munk v Frink, 81 Neb 631, 116 NW 525.
Simon v Lafayette Automotive, Wrecker & Towing Control Committee (La App 3d Cir)
532 So 2d 283; Strasnick v Board of Registration in Pharmacy, 408 Mass 654, 562 NE2d
1333; Levinson v Connecticut Bd. of Chiropractic Examiners, 211 Conn 508, 560 A2d
403; Traverse Oil Co. v Chairman, Natural Resources Com., 153 Mich App 679, 396
NW2d 498, 93 OGR 500; Re Bertram (SD) 343 NW2d 382.
Forms: Notices of hearing. 1A Federal Procedural Forms, L Ed, Administrative

Procedure §§ 2:134-2:136.
Footnote 46. United States ex rel. Turner v Fisher, 222 US 204, 56 L Ed 165, 32 S Ct
37; Lara v Secretary of Interior (CA9 Or) 820 F2d 1535; Brahy v Federal Radio Com., 61
App DC 204, 59 F2d 879; Baker v Illinois Racing Bd. (5th Dist) 101 Ill App 3d 580, 56
Ill Dec 554, 427 NE2d 959; Faure v Department of Health & Human Resources, Office
of Preventive & Public Health Service (La App 1st Cir) 504 So 2d 1022; Kovack v
Licensing Board, Waterville, 157 Me 411, 173 A2d 554; Jackson v Director of Revenue
(Mo App) 784 SW2d 913; Reda v Department of Health, 137 Misc 2d 61, 519 NYS2d
774; Camaione v Latrobe, 113 Pa Cmwlth 113, 536 A2d 500, app gr 520 Pa 608, 553
A2d 970 and revd on other grounds 523 Pa 363, 567 A2d 638, cert den 498 US 921, 112
L Ed 2d 251, 111 S Ct 298; Emerson v Hughes, 117 Vt 270, 90 A2d 910, 34 ALR2d
539.
For an agency's notice to be adequate, it is enough that the parties be sufficiently apprised
of the nature of the proceedings so that there is no unfair surprise. Re Vermont Health
Service Corp., 155 Vt 457, 586 A2d 1145; Re Appeal of Bonnett, 216 Neb 587, 344
NW2d 657.
Footnote 47. Fleischman v Connecticut Bd. of Examiners in Podiatry, 22 Conn App 193,
576 A2d 1308.
Footnote 48. NLRB v A. P. W. Products Co. (CA2) 316 F2d 899, 53 BNA LRRM 2055,
47 CCH LC ¶ 18221; Hess & Clark, Div. of Rhodia, Inc. v Food & Drug Admin., 161 US
App DC 395, 495 F2d 975, 4 ELR 20147.
When the grant, denial, or renewal of a license is required to be proceeded by notice and
a hearing, the notice must, under statute, contain "a short and plain statement of the
matters asserted"; however, in a proceeding for revocation, suspension, annulment or
withdrawal of any license, the notice must inform the licensee "of facts or conduct which
warrant the intended action"–the stricter notice requirements for the latter type of
proceeding are a function of the more compelling private interest involved. Levinson v
Connecticut Bd. of Chiropractic Examiners, 211 Conn 508, 560 A2d 403.

Footnote 49. North Alabama Express, Inc. v United States (CA5) 585 F2d 783.
Footnote 50. Fedder v McCurdy (Colo App) 768 P2d 711.
§ 286 Method of service
View Entire Section

Methods of serving agency process may be specified by statute or rule and may include
such methods as personal service, registered or certified mail, telegram, and abode
service. 51
Where a statute or rule provides the manner, form, and time of notice, the notice must
conform with the prescribed provisions, 52 at least substantially, 53 and a statutory
provision may not be altered by a rule of the agency. 54
Under a requirement for "public notice" of an application, notice may be given in any
form that is reasonably adapted to inform the public generally that the application will be
heard. 55 Where proceeding against a class by serving notice on representatives of such
class is a proper mode of acquiring jurisdiction in judicial proceedings, an administrative
tribunal may secure jurisdiction in the same manner. 56 The length of notice depends
primarily on the circumstances of each case. 57 Unduly short notice may be ground
for a continuance 58 and may violate due process of law if the objection is not waived.
59
Footnotes
CCH LC ¶ 66656.
As to constructive or substituted service, see § 287.
Footnote 52. State ex rel. Public Service Com. v Northern P. R. Co. (ND) 75 NW2d 129;
Pittsburgh v Pennsylvania Public Utility Com., 157 Pa Super 595, 43 A2d 348.
CCH LC ¶ 66656 (holding that a technical defect in serving notice, such as service by
ordinary instead of registered mail, can be disregarded if the party received actual
notice).
Procedural irregularities in fulfilling statutory notice requirements are not grounds for
reversal of an administrative action absent a showing of material prejudice. Livonia v
Department of Social Services, 123 Mich App 1, 333 NW2d 151, affd 423 Mich 466, 378
NW2d 402.

Footnote 54. Union Light, Heat & Power Co. v Public Service Com. (Ky) 271 SW2d 361.
Footnote 55. Ottinger v Arenal Realty Co., 257 NY 371, 178 NE 665.
Footnote 56. Chamber of Commerce v Federal Trade Com. (CA8) 13 F2d 673.
Footnote 57. Burlington v Dunn, 318 Mass 216, 61 NE2d 243, 168 ALR 1181, cert den
326 US 739, 90 L Ed 441, 66 S Ct 51; Dullam v Willson, 53 Mich 392, 19 NW 112;
Emerson v Hughes, 117 Vt 270, 90 A2d 910, 34 ALR2d 539.
A party must receive 20 days' notice of his or her right to present evidence in an
administrative proceeding before the industrial accident board. Slingwine v Industrial
Acci. Bd. (Del Sup) 560 A2d 998.
Footnote 58. As to continuances, generally, see § 336.
Footnote 59. United States ex rel. Turner v Fisher, 222 US 204, 56 L Ed 165, 32 S Ct
37; Varney v Florida Real Estate Com. (Fla App D5) 515 So 2d 383, 12 FLW 2601.
Forms: Notice–To appear and answer complaint filed with administrative agency. 1A
–Of filing of charges against respondent–With order to show cause. 1A Federal

§ 287 --Constructive or substituted service
View Entire Section

Go to Supplement
As in judicial proceedings, 60 due process of law is afforded in state administrative

proceedings by constructive or substituted service of notice or process on parties residing
within the state. 61 Notice by publication pursuant to provisions of a statute
prescribing such notice will sustain jurisdiction. 62 The fact that the date and place of
meeting of an administrative board is set by statute may be regarded as sufficient notice
in certain cases. 63 A posting of notice may also be sufficient. 64
Failure to comply with a rule of the agency requiring an affidavit that the party to be
served with notice by publication could not be personally served does not preclude the
acquisition of jurisdiction by publication of notice, where the party has knowledge of the
hearing and an opportunity to be heard. 65
§ 287 --Constructive or substituted service [SUPPLEMENT]
Case authorities:

Parole Commission did not unreasonably delay in complying with prisoner's request for
documents since delay was largely attributable to fact that request came at same time
prisoner was appealing adverse parole decision; therefore, his file was simply unavailable
to regional office for copying for most of first four months after it had received prisoner's
request. Strout v United States Parole Comm'n (1994, CA6 Mich) 40 F3d 136, 1994 FED
App 387P.
Footnotes
Footnote 60. 62B Am Jur 2d, Process § 164.
Footnote 61. Elk River Coal & Lumber Co. v Funk, 222 Iowa 1222, 271 NW 204, 110
ALR 1415; Borgnis v Falk Co., 147 Wis 327, 133 NW 209.
Substituted service of mail to licensed premises, instead of the licensee, would be

adequate where only the address of the premises was listed on the license; thus, a city
department's failure to serve notice of a hearing concerning alleged parking garage
violations to a parking garage owner's principal place of business was a denial of due
process where the department had available an address to whom the license was
originally mailed and should have utilized that address to provide notice to the owner.
Amy Realty Co. v Aponte, 132 Misc 2d 932, 505 NYS2d 979.
Footnote 62. North Laramie Land Co. v Hoffman, 268 US 276, 69 L Ed 953, 45 S Ct
491; State ex rel. Public Service Com. v Boone Circuit Court, 236 Ind 202, 138 NE2d 4,
reh den 236 Ind 212, 139 NE2d 552.
Footnote 63. Merchants' & Mfrs' Bank v Pennsylvania, 167 US 461, 42 L Ed 236, 17 S
Ct 829; Hagar v Reclamation Dist. No. 108, 111 US 701, 28 L Ed 569, 4 S Ct 663.
Footnote 64. Anderson Nat. Bank v Luckett, 321 US 233, 88 L Ed 692, 64 S Ct 599,
151 ALR 824 (holding that a provision for summary taking into custody of abandoned
bank accounts by a state, by posting notice to depositors on the courthouse door, was
sufficient; in all such proceedings the seizure of the property is in itself a form of notice
of the claim asserted, to those who may claim an interest in the property).
Footnote 65. Parsons v Venzke, 4 ND 452, 61 NW 1036, affd 164 US 89, 41 L Ed 360,
17 S Ct 27 (cancellation of entry for public lands).
§ 288 --Appearance and waiver
View Entire Section

Go to Supplement
Although the failure to give notice to a party to an administrative proceeding is fatal to

the administrative agency's jurisdiction and may result in a vacation of its decision, 66
notice goes to jurisdiction of the person rather than of the subject matter; thus, the right to
notice in an administrative proceeding ordinarily may be waived. 67 If a general
appearance is entered, jurisdiction of the person is conferred even though it was not
acquired by proper service of notice or process, 68 and this rule applies where notice
was given but was defective. 69
§ 288 --Appearance and waiver [SUPPLEMENT]
Practice Aids: Notice–General appearance. 1A Am Jur Pl & Pr Forms (Rev),

Footnotes
Footnote 67. Caucus Distributors, Inc. v Maryland Secur. Comr., 320 Md 313, 577 A2d
783.
A party may waive his or her right to formal notice if, after being informed by the
presiding officer of the nature of the hearing, the party replies that he or she is ready to
proceed. United States ex rel. Bauer v Shaughnessy (DC NY) 115 F Supp 780.
Where the complaining litigant had knowledge of the facts, the requirement of
notification may be satisfied by actual knowledge, especially when it is acted upon.
Landover Books, Inc. v Prince George's County, 81 Md App 54, 566 A2d 792.
Footnote 68. Application of Hvidsten (ND) 72 NW2d 524.
Forms: Notice–Of general appearance. 1A Federal Procedural Forms, L Ed,

––Qualification by attorney. 1 Federal Procedural Forms, L Ed, Administrative

Procedure § 2:102.
–Of special appearance. 1 Federal Procedural Forms, L Ed, Administrative Procedure

§ 2:103.
Footnote 69. Brahy v Federal Radio Com., 61 App DC 204, 59 F2d 879; Elk River Coal
& Lumber Co. v Funk, 222 Iowa 1222, 271 NW 204, 110 ALR 1415; First Nat. Bank v
Oklahoma Sav. & Loan Board (Okla) 569 P2d 993; Bogue v Laughlin, 149 Wis 271, 136
NW 606 (notice unduly short or for less than full statutory period).
A defendant who was not served with notice as required by statute but who was apprised
of and participated in a driver's license suspension proceeding waived any objection to
improper notice where he knew the nature of the proceedings against him and there was
no indication that he did not have sufficient time to prepare his defense. Summerville v
Louisiana Dept. of Public Safety (La App 2d Cir) 497 So 2d 344.
Any irregularity or imperfection in the service of notice is waived by an appearance in

person and by attorney at the hearing. Kovack v Licensing Board, Waterville, 157 Me

411, 173 A2d 554.
An order issued by an administrative board after defective notice was void only as to
those persons over whom the board failed to obtain personal jurisdiction, and thus, was
valid as to persons who made a general appearance in proceedings before the board. Re
Application of Koch Exploration Co. (SD) 387 NW2d 530, 89 OGR 549.
D. Pleadings [289-293]
Research References
5 USCS § 554(b)
1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Forms 68-73, 76, 77
1A Federal Procedural Forms, L Ed, Administrative Procedure §§ 2:87-2:90, 2:93-2:95
§ 289 Generally
View Entire Section

Go to Supplement
The right to some sort of due, adequate, and appropriate statement of issues or pleading
may exist under a constitutional or statutory right to a hearing, 70 or under specific
provisions of statutes or rules of the particular administrative agency; although the
federal Administrative Procedure Act 71 does not explicitly mention the need for
pleadings, and only requires that affected persons be given notice, 72 many federal
regulatory statutes require the filing and service of a formal complaint. 73 and these
complaints must comply with the notice requirements of the federal Act. 74
The 1981 Model State Administrative Procedure Act provides that the presiding officer
in adjudicative proceedings shall give all parties full opportunity to file pleadings and
motions. 75
Usually "notice pleadings," similar to the pleadings permitted under the Federal Rules of
Civil Procedure, are adequate. 76 Agencies may also by rule require responsive
pleading. 77
State administrative procedure acts may provide for written complaints or statement of
issues, and compliance with such statutes is a prerequisite to jurisdiction. 78 However,
written charges may not always be required on a hearing. 79
Certain requirements by procedural rules as to applications or pleadings may 80 or

may not 81 be consistent with statutory provisions.

Practice Aids: Petition or application–For issuance of order. 1A Am Jur Pl & Pr

Petition or application–For administrative order authorizing person engaged in business

to take specific action. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 93.
Complaint–General form. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 103.
Footnotes
Footnote 72. As to the requirement of notice, generally, see § 284.
Footnote 73. See, for example, 15 USCS § 45(b), discussed in 55 Am Jur 2d,
Monopolies, Restraints of Trade and Unfair Trade Practices §§ 747, 832; 32 Federal
Procedure, L Ed, Trade Regulation and Unfair Trade Practices §§ 75:1 et seq. and 29
USCS § 160(b), discussed in 48 Am Jur 2d, Labor and Labor Relations §§ 1388 et seq.
As to the content and sufficiency of notice, see § 285.
Footnote 76. Akers Motor Lines, Inc. v United States (WD NC) 286 F Supp 213.
As to notice pleading, generally, see 61A Am Jur 2d, Pleading §§ 23 et seq.
Forms: Various administrative complaints and petitions. 1A Am Jur Pl & Pr Forms

(Rev), Administrative Law, Forms 68-73.
Application or petition–For grant of license or other right by agency. 1A Federal

Petition–For leave to adopt rules, regulations, or rates. 1A Federal Procedural Forms,

L Ed, Administrative Procedure § 2:88.
Complaint–By individual against federal licensee. 1A Federal Procedural Forms, L

–To determine private contest among claimants. 1A Federal Procedural Forms, L Ed,

As to responsive pleading, see § 291.
Footnote 78. State ex rel. Public Service Com. v Northern P. R. Co. (ND) 75 NW2d 129;
Pittsburgh v Pennsylvania Public Utility Com., 157 Pa Super 595, 43 A2d 348.
As to jurisdiction in adjudicatory administrative procedures, generally, see §§ 274 et seq.
Footnote 79. Cowan v State, 57 Wyo 309, 116 P2d 854, 136 ALR 1330, holding that
written notice and charges are not necessary to sustain removal of a public officer or
employee under a statute which is silent as to whether such removal may be made with or
without a hearing where, taking all facts and circumstances into consideration no
arbitrariness is involved and the person was given a fair hearing and opportunity to
defend himself.
Footnote 80. United States v Smull, 236 US 405, 59 L Ed 641, 35 S Ct 349.
As to necessity for application for permit on prescribed form, see Buck v California, 343
US 99, 96 L Ed 775, 72 S Ct 502, reh den 343 US 932, 96 L Ed 1341, 72 S Ct 756.
Footnote 81. States' Rights Democratic Party v State Board of Elections, 229 NC 179, 49
SE2d 379, holding that where a statute provided for action to be taken upon the filing of a
"petition" the board could not also require the filing of a "certificate."
So far as Rule 41 of the Patent Office Rules of Practice prevents an inventor from uniting
in one application process and apparatus claims which are essentially the same invention,
it was invalid as an abuse of the discretion vested in the Patent Office to permit or deny a
joinder of inventions. United States ex rel. Steinmetz v Allen, 192 US 543, 48 L Ed
555, 24 S Ct 416.
§ 290 Sufficiency of complaint
View Entire Section

Although the charges or complaint in administrative proceedings need not be drawn with
the same precision as pleadings in a judicial proceeding, they must be specific enough to
allow a party to prepare a defense. 82 Statutes and rules often require a brief statement
of the facts 83 or a clear and concise statement of the claims or charges upon which the
petitioner relies and of the relief sought. 84 The facts stated in the complaint must be
sufficient to establish all the essential elements of the particular claim, 85 but it is
not necessary to plead the law relied on. 86
What constitutes a specific designation of the issue raised or charges made depends upon
the violation alleged and the type of investigation being conducted. 87 However,
pleadings should be liberally construed, 88 especially where the applicant is not
represented by counsel. 89

Where a complaint fails as a sufficient foundation for a proceeding due to failure to
comply with statutory requirements, a proceeding may nevertheless be sustained under
the general statutory powers of the administrative authorities to investigate and act upon
facts brought to their notice in any fashion. 90
Footnotes
Footnote 82. A. E. Staley Mfg. Co. v Federal Trade Com. (CA7) 135 F2d 453; Seminole
County Bd. of County Comrs. v Long (Fla App D5) 422 So 2d 938, petition den (Fla)
431 So 2d 989; Perry v Planning Com. of County of Hawaii, 62 Hawaii 666, 619 P2d 95;
Elkay Mfg. Co. v Sweet (1st Dist) 202 Ill App 3d 466, 147 Ill Dec 718, 559 NE2d 1058;
Community of Woodston v State Corp. Com., 186 Kan 747, 353 P2d 206; Personnel Bd.
v Heck (Ky App) 725 SW2d 13; Hopping v Louisiana Horticulture Com. (La App 1st
Cir) 509 So 2d 751; Wheeler v Department of Public Safety & Corrections, Washington
Correctional Institute (La App 1st Cir) 500 So 2d 786, appeal after remand (La App 1st
Cir) 544 So 2d 66; Re Appeal of Bonnett, 216 Neb 587, 344 NW2d 657; Roberts v
Knoxville Transit Lines, 36 Tenn App 595, 259 SW2d 883; Palle v Industrial Com. of
Utah, 79 Utah 47, 7 P2d 284, 81 ALR 1222; Marysville v Puget Sound Air Pollution
Control Agency, 104 Wash 2d 115, 702 P2d 469.
The function of the civil service rule requiring that notice of appeal contain a clear and
concise statement of the actions complained against and a clear and concise statement of
the basis of the appeal is to apprise the appellee and the civil service commission of the
material facts in the dispute and thus to establish the scope of the evidentiary hearing, and
to enable the commission to engage the amount of time needed for evidentiary hearing by
narrowing the issues. Wheeler v Department of Public Safety & Corrections,
Washington Correctional Institute (La App 1st Cir) 500 So 2d 786, appeal after remand
(La App 1st Cir) 544 So 2d 66.
Footnote 83. Lewis-Simas-Jones Co. v Southern Pacific Co., 283 US 654, 75 L Ed

1333, 51 S Ct 592.
In proceedings to remove an officer for sufficient cause, general charges without any
specification of facts are not sufficient to support an order of removal. State ex rel. Hart
v Common Council of Duluth, 53 Mich 238, 55 NW 118.
Footnote 84. Seminole County Bd. of County Comrs. v Long (Fla App D5) 422 So 2d
938, petition den (Fla) 431 So 2d 989; Community of Woodston v State Corp. Com., 186
Kan 747, 353 P2d 206; State ex rel. Public Service Com. v Northern P. R. Co. (ND) 75
NW2d 129.
A statement with reasonable and substantial certainty is required so as to advise a

respondent of the matters charged and the relief sought. Jaffe v State Dept. of Health,
135 Conn 339, 64 A2d 330, 6 ALR2d 664.
Footnote 85. FTC v Gratz, 253 US 421, 64 L Ed 993, 40 S Ct 572 (ovrld on other
grounds by FTC v Brown Shoe Co., 384 US 316, 16 L Ed 2d 587, 86 S Ct 1501, 1966
CCH Trade Cases ¶ 71785) and (superseded by statute on other grounds as stated in
American Financial Services Asso. v FTC, 247 US App DC 167, 767 F2d 957, 1985-2
CCH Trade Cases ¶ 66702); Iwanicki v State Industrial Acc. Com., 104 Or 650, 205 P

990, 29 ALR 682; State ex rel. Public Utility Dist. v Department of Public Service, 21
Wash 2d 201, 150 P2d 709.
Footnote 86. Chicago, R. I. & P. R. Co. v United States, 274 US 29, 71 L Ed 911, 47 S
Ct 486.
Footnote 87. See Vitarelli v Seaton, 359 US 535, 3 L Ed 2d 1012, 79 S Ct 968;

Yoshizawa v Hewitt (CA9 Hawaii) 52 F2d 411, 79 ALR 317; State ex rel. Kirby v
Henderson, 145 Iowa 657, 124 NW 767; Munk v Frink, 81 Neb 631, 116 NW 525.
Footnote 88. Yaffe Iron & Metal Co. v United States Environmental Protection Agency
(CA10) 774 F2d 1008, 16 ELR 20431; Ethridge v Arizona State Bd. of Nursing (App)
165 Ariz 97, 796 P2d 899, 50 Ariz Adv Rep 73; Community of Woodston v State Corp.
Com., 186 Kan 747, 353 P2d 206; Board of Trustees v State, 185 Mont 104, 604 P2d
778, 103 BNA LRRM 2285; Roberts v Knoxville Transit Lines, 36 Tenn App 595, 259
SW2d 883; Palle v Industrial Com. of Utah, 79 Utah 47, 7 P2d 284, 81 ALR 1222; Fox
Park Timber Co. v Baker, 53 Wyo 467, 84 P2d 736, 120 ALR 1020.
Footnote 89. Palle v Industrial Com. of Utah, 79 Utah 47, 7 P2d 284, 81 ALR 1222.
Footnote 90. Voight v Board of Excise Com'rs, 59 NJL 358, 36 A 686.
§ 291 Responsive pleadings
View Entire Section

Go to Supplement
Proceedings instituted by petition, complaint, or application necessarily involve the right

of counterpleading or answer. 91 The federal Administrative Procedure Act provides,
in effect, for responsive pleadings in actions commenced by private parties, by stating
that when private persons are the moving parties, other parties to the proceeding must
give prompt notice of the issues controverted in fact or in law. 92 Federal regulatory
statutes may provide that a respondent may file an answer, 93 or agency rules may
require that responsive pleadings be filed. 94 Agency rules may also provide that if no
answer is filed to a complaint, the allegations of the complaint are deemed admitted and
true unless good cause to the contrary is shown. 95
Responsive pleadings must contain a short and concise statement of facts relevant to the
issues raised in the complaint, rather than conclusions of law. 96
An administrative agency hearing charges and complaints in punitive or disciplinary

proceedings may provide for disposition of the causes upon a plea of non vult or nolo
contendere. 97
§ 291 ----Responsive pleadings [SUPPLEMENT]

Practice Aids: Answer–To administrative complaint. 1A Am Jur Pl & Pr Forms (Rev),
Footnotes
Footnote 91. Ross v Stewart, 227 US 530, 57 L Ed 626, 33 S Ct 345; State ex rel.
Public Utility Dist. v Department of Public Service, 21 Wash 2d 201, 150 P2d 709.
Forms: Answer–Complaint to administrative agency. 1A Am Jur Pl & Pr Forms

Answer to complaint filed by private individual for damages or other private relief. 1A
–By contestee–Asserting claim in disputed property. 1 Federal Procedural Forms, L

Ed, Administrative Procedure § 2:94
Protest–Against issuance of certificate or permit to applicant. 1A Am Jur Pl & Pr

Forms (Rev), Form 77; 1A Federal Procedural Forms, L Ed, Administrative
Procedure § 2:95.
Footnote 93. See, for example, 29 USCS § 160(b), discussed in 48 Am Jur 2d, Labor and
Labor Relations §§ 1402 et seq.; 22 Federal Procedure, L Ed, Labor and Labor Relations
§§ 52:1 et seq.
Footnote 95. McKees Rocks Foodland (1975) 216 NLRB 968, 88 BNA LRRM 1575,
1974-75 CCH NLRB ¶ 15561.
In circumstances in which no response whatsoever has been filed, the division obviously
has the right, in its supervision of orderly administrative proceedings, to conclude that a
party has waived his or her right to respond, and to thereafter enter a summary of final
order, pursuant to state code rule. State, Dept. of Environmental Regulation v Puckett
Oil Co. (Fla App D1) 577 So 2d 988, 16 FLW D 926.
Footnote 96. Ballew v Ainsworth (Mo App) 670 SW2d 94.
Footnote 97. Re 17 Club, Inc., 26 NJ Super 43, 97 A2d 171.
§ 292 Amended and supplemental pleadings
View Entire Section


Administrative pleadings are easily amended, 98 and a presiding officer at an
administrative proceeding has the power to grant motions to amend pleadings and to
conform the pleadings to the proof in order to make the pleadings more definite and
certain. 99 Amendments to pleadings may also be permitted when the pleadings are
dismissed for technical reasons. 1
Agency rules may govern amendment of pleadings, and absent specific agency rules,
Rule 15 of the Federal Rules of Civil Procedure may be followed. 2 The requisites for
amendment of a pleading must be strictly pursued in a proceeding to punish violation of
administrative regulations. 3
Administrative pleadings may be amended after introduction of all evidence and after
close of the hearing where the opposing party has notice of the facts claimed in the
amendment and the opportunity at the hearing to meet the claims. 4
Where there is a change of theory during an agency proceeding, the respondent is entitled
to be given timely notice of the new charges and an opportunity to contest them. 5 If an
administrative complaint is amended to include new counts after the close of hearings,
additional hearings must be held to address the new violations. 6
Footnotes
Footnote 98. Yaffe Iron & Metal Co. v United States Environmental Protection Agency
(CA10) 774 F2d 1008, 16 ELR 20431.
Footnote 99. Consolidated Edison Co. v NLRB, 305 US 197, 83 L Ed 126, 59 S Ct 206,
3 BNA LRRM 645, 1 CCH LC ¶ 17038 (criticized on other grounds by Richardson v
Perales, 402 US 389, 28 L Ed 2d 842, 91 S Ct 1420) as stated in Watker v Vermont
Parole Bd., 157 Vt 72, 596 A2d 1277; State ex rel. Rockwell v State Bd. of Education,
213 Minn 184, 6 NW2d 251, 143 ALR 503; Williams Electric Cooperative, Inc. v
Montana-Dakota Utilities Co. (ND) 79 NW2d 508.
Footnote 1. Secretary of Labor v Armory Cotton Oil Co. (1976) OSHRC Docket No.
10330, 38 AdL2d 92.
Footnote 2. Secretary of Labor v Marquette Cement Mfg. Co. (1976) OSHRC Docket
No. 4725, 38 AdL2d 651.
For a discussion of FRCP Rule 15, see 61A Am Jur 2d, Pleading §§ 307, 311.
Footnote 3. St. Louis & S. F. R. Co. v State, 26 Okla 62, 107 P 929 (holding that it is
reversible error for a state corporation commission which has directed the amendment of
an original affidavit charging a violation of one of its orders, to proceed with the trial
over the objection of the defendant, upon the theory that the affidavit has been amended
so as to charge a violation of a different order, where such amendment has never been
made nor verified).
Footnote 4. Usery v Marquette Cement Mfg. Co. (CA2) 568 F2d 902, 50 ALR Fed 727;
Mineral Industries & Heavy Constr. Group v Occupational Safety & Health Review
Com. (CA5) 639 F2d 1289; Yaffe Iron & Metal Co. v United States Environmental

Protection Agency (CA10) 774 F2d 1008, 16 ELR 20431.
Leave to file a supplemental answer may be denied if the hearing date is imminent and
the opposing party does not have sufficient time to prepare a response. Ace Produce Co.
v L. & M. Vegetable Distributors (1976) 35 Ag Dec 1264, 40 AdL2d 553.
Footnote 5. NLRB v Kanmak Mills, Inc. (CA3) 200 F2d 542, 31 BNA LRRM 2187, 22
CCH LC ¶ 67296; Rodale Press, Inc. v FTC, 132 US App DC 317, 407 F2d 1252, 1968
CCH Trade Cases ¶ 72603; Rodale Press, Inc. v FTC, 132 US App DC 317, 407 F2d
1252, 1968 CCH Trade Cases ¶ 72603.
Footnote 6. Glotfelty v Commonwealth, State Bd. of Veterinary Medicine, 133 Pa

Cmwlth 660, 577 A2d 238.
§ 293 Dismissal and discontinuance
View Entire Section

Where jurisdiction, although once obtained, has been lost, administrative proceedings
must be dismissed. 7 However, where there are cumulative administrative and judicial
remedies, an administrative proceeding need not be dismissed because a civil action has
been filed in which much of the evidence before the agency might also be relevant. 8
In the absence of statute to the contrary, the power of a commission to refuse to dismiss a
proceeding on motion of the one who instituted it cannot be greater than the power which
may be exercised by the judicial tribunals under similar circumstances. 9 A plaintiff
in an administrative proceeding possesses the unqualified right to dismiss his or her
complaint unless some plain legal prejudice will result to the defendant other than the
mere prospect of a second litigation upon the subject matter, in the absence of statutes to
the contrary. 10
A dismissal for want of jurisdiction is equivalent to a nonsuit, 11 and the withdrawal of a

charge which is the basis of the issuance of a complaint by the administrative agency may
require the withdrawal of the complaint. 12
Footnotes
Footnote 7. § 279.
As to jurisdiction issues in adjudicatory administrative proceedings, generally, see §§

274 et seq.
334 US 839, 92 L Ed 1764, 68 S Ct 1492.
Footnote 9. Jones v SEC, 298 US 1, 80 L Ed 1015, 56 S Ct 654 (not followed by Craib

v Bulmash, 49 Cal 3d 475, 261 Cal Rptr 686, 777 P2d 1120, 29 BNA WH Cas 705, 114
CCH LC ¶ 56172).
An applicant for transfer of a liquor license had no absolute right to withdraw the
application, and the act of granting the application was not arbitrary or in excess of
jurisdiction. Manoogian v Williamson, 89 RI 426, 153 A2d 165, 73 ALR2d 1219.

114 CCH LC ¶ 56172); Resources Corp. International v SEC, 70 App DC 58, 103 F2d
929 (upholding a finding by the commission that withdrawal of an application after it had
been granted would not be in the public interest).
Footnote 11. Anderson Lumber & Supply Co. v Fletcher, 228 Ind 383, 89 NE2d 449.
Footnote 12. NLRB v Hopwood Retinning Co. (CA2) 98 F2d 97, 2 BNA LRRM 650, 1
CCH LC ¶ 18193 (rule so provided).
E. Hearing [294-364]
Research References
5 USCS §§ 500-504, 551, 554-557, 559, 3105, 7521; 18 USCS §§ 207, 2515, 3500,
3500,
Model State Administrative Procedure Act (1961) §§ 9, 10, 13; Model State
Administrative Procedure Act (1981) §§ 1-103, 1-105, 1-106, 4-202, 4-204 through
4-218, 4-301, 4-401 through 4-403, 4-501, 4-503 through 4-506
ALR Digest: Administrative Law §§ 93, 94, 97-116
1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Forms 81-84, 91-98, 111-116,
117-121
1A Federal Procedural Forms, L Ed, Administrative Procedure §§ 2:101-2:104,
2:111-2:118, 2:131, 2:132-2:137, 2:139
1. Right to Hearing [294-297]
§ 294 Generally
View Entire Section

Go to Supplement
An agency must initiate an adjudicatory hearing when one is required by law. 13 The
right to a hearing in an adjudication proceeding before an administrative agency may be
based on the statute conferring a particular power upon the agency. 14 However, if no
such right is granted by statute or ordinance or administrative regulation, the right is
embodied in due process and the principles of fundamental fairness which may require
that an opportunity for a hearing be provided, considering such matters as the private
interests that will be affected by official action, the risk of the erroneous deprivation of
such interests through the use of informal procedures, the probable value of additional or
substitute procedural safeguards, and the government's interest, including the burdens
that additional or substitute procedural requirements would entail. 15 The
administrative procedure acts do not create a substantive right to a hearing; they merely
delineate the procedure to be followed when a hearing is required by statute or
constitutional law. 16 An administrative order is void if a hearing is denied, or if the
hearing which was granted was inadequate or manifestly unfair. 17 A
determination cannot be binding on a person who has not been given notice or an
opportunity to be heard. 18
Practice Aids: Demand–For hearing. 1A Am Jur Pl & Pr Forms (Rev), Administrative

Law, § 163.
Case authorities:
A plaintiff who filed charges implicating G.S. § 87-47(a1)(7) against another licensed
electrical contractor with the State Board of Examiners of Electrical Contractors was
entitled to a hearing and decision from the Board on the charges. Where the Board was
unable or unwilling to provide plaintiff with a hearing and decision, plaintiff had a right
under G.S. § 150B-40(e) to a contested case hearing and a proposal for decision on the
charges by an administrative law judge designated by the Director of the OAH. G.S. §
87-47(a3). Bryant v North Carolina State Bd. of Examiners of Elec. Contractors (1994)
338 NC 288, 449 SE2d 188.
The administrative hearing provisions of the NCAPA apply to respondent DEHNR and to
the pollution control permit proceeding where neither the agency nor the proceeding is
expressly exempted from the NCAPA. Thus, under the NCAPA, G.S. § 150B-23, the
third party petitioner is entitled to an administrative hearing to resolve a dispute
involving his rights, duties, or privileges unless (1) he is not a "person aggrieved" by the
permitting decision of the DEHNR, or (2) the organic statute, specifically G.S. §
143-215.108(e), amends, repeals or makes an exception to the NCAPA so as to exclude
him from those expressly entitled to appeal thereunder. Empire Power Co. v North
Carolina Dep't of Env't, Health & Natural Resources, Div. of Envtl. Management (1994)
337 NC 569, 447 SE2d 768, reh den (1994, NC) 1994 NC LEXIS 694.
The Court of Appeals erred by holding that the Office of Administrative Hearings did not
have jurisdiction to conduct a contested case hearing regarding a permit to operate a rock
quarry. The Administrative Procedure Act grants the right to a contested case hearing to
all persons aggrieved by a state agency decision unless jurisdiction is expressly excluded
by the APA or the organic act which created the right. There was no such exclusion in
this case. North Buncombe Ass'n of Concerned Citizens v North Carolina Dep't of
Environment, Health & Natural Resources (1994) 338 NC 302, 449 SE2d 451.
Petitioner was not entitled to a contested case hearing on his alleged violation of the
Coastal Area Management Act and the State Dredge and Fill Act by excavating and
filling salt marsh on his property in Carteret County, since the Office of Administrative
Hearings lacked subject matter jurisdiction in this case because the petition was not
verified as required by the Administrative Procedures Act and was not filed within
twenty days after petitioner received notice of the penalty imposed by the Division of
Coastal Management. G.S. §§ 113A-126(a)(3) and 150B- 23(a). Gaskill v State (1993)
109 NC App 656, 428 SE2d 474.
Footnotes
Footnote 13. Kovack v Licensing Board, Waterville, 157 Me 411, 173 A2d 554; Henry v
Minnesota Public Utilities Com. (Minn) 392 NW2d 209, later proceeding (Minn App)
417 NW2d 274, cert den 488 US 849, 102 L Ed 2d 103, 109 S Ct 130.
Where a statute which commands the exercise of a quasi-judicial function by an

administrative agency contains no specific provision for notice and hearing, such
requirements may be implied. Juzek v Hackensack Water Co., 48 NJ 302, 225 A2d 335.
Footnote 14. Jackson v State (Wyo) 786 P2d 874 (holding that foremost among the
procedural protections of the Model State Administrative Procedure Act is the
requirement that contested cases be determined following trial-type proceedings).
To be entitled to benefits and procedural protections of the hearing requirement of a local

agency law, an individual must have had a personal or property right in the matter which
is the subject of the adjudication. Cope v Bethlehem Housing Authority, 95 Pa Cmwlth
99, 514 A2d 295.

Comp Cas 920; Zwingle Independent School Dist. v State Board of Public Instruction
(Iowa) 160 NW2d 299; American Beauty Homes Corp. v Louisville & Jefferson County
Planning & Zoning Com. (Ky) 379 SW2d 450; Kovack v Licensing Board, Waterville,
157 Me 411, 173 A2d 554; Quesenberry v Washington Suburban Sanitary Com., 311 Md
417, 535 A2d 481; Fitzgerald v Maryland Heights (Mo App) 796 SW2d 52; Geringer v
Omaha, 237 Neb 928, 468 NW2d 372, later proceeding (CA8 Neb) 1993 US App LEXIS
941; State ex rel. Ormet Corp. v Industrial Com. of Ohio, 54 Ohio St 3d 102, 561 NE2d
920.
In the context of an administrative proceeding, a party whose property interest may be

affected is entitled to a procedure tailored to insure a meaningful opportunity to present a
case. Amy Realty Co. v Aponte, 132 Misc 2d 932, 505 NYS2d 979.
A teacher is entitled to a hearing to determine the propriety of a teacher's dismissal even

where the teacher's misconduct is so egregious that a sufficient cause determination can
be made as a matter of law. Clarke v Shoreline School Dist. No. 412, 106 Wash 2d 102,
720 P2d 793, 1 AD Cas 944, 57 BNA FEP Cas 442, 43 CCH EPD ¶ 37119.
Footnote 16. United States v Drefke (CA8 Mo) 707 F2d 978, 83-1 USTC P 9354, 52
AFTR 2d 83-5083, cert den 464 US 942, 78 L Ed 2d 321, 104 S Ct 359; Re Application
of Rockland Electric Co., 231 NJ Super 478, 555 A2d 1140, certif den 117 NJ 129, 564
A2d 855.
Federal Administrative Procedure Act (5 USCS § 554); Model State Administrative

Procedure Act (1961) § 9(a); Model State Administrative Procedure Act (1981) § 1-103.

A party's substantial interests must be affected to trigger a hearing under the
administrative procedure act; the party must show that it has a substantial interest in the
outcome of the proceeding by proving that it will suffer an injury in fact and that a
substantial injury is of the type or nature in which the proceeding was designed to
protect. Amalgamated Transit Union, Local 1267 v Benevolent Assn. of Coachmen, Inc.
(Fla App D4) 576 So 2d 379, 16 FLW D 685.
For purposes of a state administrative procedure act, a ratemaking proceeding was

considered "contested case" if legal rights, duties or privileges of a party were required
by either the constitution or a statute to be determined by an agency after an opportunity
for an evidentiary hearing. Office of Consumer Advocate v Iowa State Commerce Com.
(Iowa) 465 NW2d 280.
133; Southern R. Co. v Virginia, 290 US 190, 78 L Ed 260, 54 S Ct 148; Interstate
Commerce Com. v Louisville & N. R. Co., 227 US 88, 57 L Ed 431, 33 S Ct 185.
As to the requirement that an administrative hearing be fair and impartial, see § 302.
Footnote 18. Dallas v Southwest Airlines Co. (ND Tex) 371 F Supp 1015, affd (CA5
Tex) 494 F2d 773, reh den (CA5 Tex) 496 F2d 1407 and cert den 419 US 1079, 42 L Ed
2d 674, 95 S Ct 668, reh den 420 US 913, 42 L Ed 2d 845, 95 S Ct 837; American Nat.
Bank & Trust Co. v Pennsylvania R. Co. (1st Dist) 52 Ill App 2d 406, 202 NE2d 79, affd
35 Ill 2d 145, 219 NE2d 529, cert den 385 US 1035, 17 L Ed 2d 683, 87 S Ct 777.
As to the requirement of notice in adjudicatory administrative proceedings, generally, see

§ 284.
§ 295 After a default
View Entire Section

A party may lose its right to a hearing and may have an adverse order entered against it if
the party fails to respond to an invitation to appear, 19 does not appear on an adjourned
date for a hearing, 20 or otherwise deliberately and persistently fails to participate. 21
While the 1961 Model State Administrative Procedure Act simply provides that an
informal disposition may be made of any contested case by default, 22 the 1981 Model
State Administrative Procedure Act goes further, providing details as to the procedure
necessary in issuing a default order, including provisions as to proper notice and time
limits on the filing of a written motion for vacation of the order. 23 A default may be set
aside if a party's failure to appear can be excused upon a showing of good cause. 24
Footnotes
Footnote 19. King v Hampton (CA8 Mo) 451 F2d 247, 79 BNA LRRM 2677.
Footnote 20. Earnshaw v United States, 146 US 60, 36 L Ed 887, 13 S Ct 14.
Footnote 21. Old Ben Coal Co. (1975) 82 ID 355, 37 AdL2d 635.
Entry of default against an employer was warranted where the employer, which allegedly
racially discriminated against an employee in discharging him and which was given
several opportunities to either present the discharged employee's supervisors or submit
good reason for their nonattendance but did neither, engaged in a deliberate and
unwarranted disregard of the investigatory authority of the Department of Human Rights.
Chicago Transit Authority v Department of Human Rights (1st Dist) 169 Ill App 3d 749,
120 Ill Dec 197, 523 NE2d 1108, 46 BNA FEP Cas 1185.
Footnote 24. Secretary of Labor v Simpson Roofing Co. (1977) OSHRC Docket No.
76-1841, 42 AdL2d 1102 (respondent's failure to appear was caused by his injury in an
accident prior to the hearing); Secretary of Labor v Duquesne Electric & Mfg. Co. (1977)
OSHRC Docket No. 76-553, 42 AdL2d 1101 (the respondent had a justifiable belief that
case would be settled and that the hearing would not proceed as scheduled).
A company officer's vacation with his family was not a "good cause" for his
nonattendance at a fact-finding meeting held by the Department of Human Rights; thus,
the hearing officer's recommendation of a default judgment in favor of the employee was
not improper. Glassworks, Inc. v Human Rights Com. (1st Dist) 164 Ill App 3d 842, 115
Ill Dec 818, 518 NE2d 343, app den 119 Ill 2d 556, 119 Ill Dec 385, 522 NE2d 1244.
§ 296 Waiver
View Entire Section

The right to a hearing or the right to particular elements of a fair trial may be waived. 25
A party may not claim that he or she was not accorded a hearing or an opportunity to be
heard on facts which merely show that the party did not avail himself or herself of the
opportunities afforded for a hearing. 26 Taking part in informal proceedings
without objection may constitute the waiver of a right to the elements of a judicial
hearing. 27 Where agency rules may provide that initial comments should be sent to a
local office, but a hearing must be demanded before the entire board, a failure to submit a
demand for a hearing with the comments does not constitute a waiver of the right to a
hearing, so long as a hearing is requested when the proposal comes before the full board.
28 It is also possible to demand a hearing on only some issues which are in dispute, and
a failure to demand a hearing on all issues does not constitute a waiver of the right to
have a hearing on defined, separable issues. 29 A failure to submit a grievance within a
time period mandated by an agency rule need not result in a waiver of the right to an
adjudicative hearing. 30
A plea of non vult or nolo contendere in punitive or disciplinary proceedings conducted
by administrative agencies may make a formal hearing unnecessary. 31
Footnotes
Footnote 25. General Chemical Div. Allied Chemical & Dye Corp. v Fasano (Super) 47
Del 546, 94 A2d 600; People ex rel. Packwood v Riley, 232 NY 283, 133 NE 891.
Section 1-105 of the Section 1981 Model State Administrative Procedure Act provides
that, except to the extent precluded by another provision of law, a person may waive any
right conferred upon that person by the Act.
Footnote 26. Lichter v United States, 334 US 742, 92 L Ed 1694, 68 S Ct 1294, reh den
335 US 836, 93 L Ed 389, 69 S Ct 11; Ross v Stewart, 227 US 530, 57 L Ed 626, 33 S
Ct 345; Reetz v Michigan, 188 US 505, 47 L Ed 563, 23 S Ct 390.
When notice was given to licensed vendors prior to suspending or revoking their licenses,
those licensees who failed to respond or plead to citations issued to them cannot be heard
to complain that their licenses were suspended or revoked without a hearing, since by
their conduct they waived their right thereto. Scott v Ratner, 101 Misc 2d 841, 422
NYS2d 285.
Footnote 27. Central Freight Lines, Inc. v United States (CA5) 669 F2d 1063 (hybrid
procedure allowing oral testimony and cross-examination of a certain percentage of the
witnesses and the receipt of written verified statements from the remainder); Martin v
Wolfson, 218 Minn 557, 16 NW2d 884, 9 CCH LC ¶ 62451.
Footnote 28. Independent Bankers Asso. v Board of Governors of Federal Reserve

System, 170 US App DC 278, 516 F2d 1206, 31 ALR Fed 489.
Footnote 29. Patagonia Corp. v Board of Governors of Federal Reserve System (CA9)
517 F2d 803, 35 ALR Fed 922.
Footnote 30. Filter v Vernonia, 81 Or App 585, 726 P2d 946, review den 302 Or 594,
732 P2d 915 and review den 302 Or 594, 732 P2d 915 and appeal after remand 95 Or
App 550, 770 P2d 83 (holding that a provision in a police department manual that
employees may submit grievances directly to the chief of police and that such grievances
must be submitted within five days of the occurrence grieved did not mean that a failure
to file a grievance within the five days constituted a waiver of the right to a hearing).
Footnote 31. Re 17 Club, Inc., 26 NJ Super 43, 97 A2d 171.
§ 297 No requirement of predeprivation hearing
View Entire Section

Due process does not require that a hearing be afforded in advance of any action taken by
an agency. 32 An important government interest, accompanied by a substantial
assurance that the deprivation is not baseless or unwarranted, may in limited cases
demanding prompt action justify postponing the opportunity to be heard until after the
initial deprivation. 33 Accordingly, an agency may take action in an emergency
situation without first granting a hearing. 34 However, there is a point at which an
unjustified delay in completing a post-deprivation proceeding would become a
constitutional violation. 35 In determining how long a delay is justified in affording a
post-deprivation hearing and decision, it is appropriate to examine the importance of the
private interests and the harm to this interest occasioned by delay, the justification
offered by the government for delay and its relation to the underlying governmental
interest, and the likelihood that the interim decision may have been mistaken. 36
Footnotes
Footnote 32. Bowles v Willingham, 321 US 503, 88 L Ed 892, 64 S Ct 641, 28 Ohio

Ops 180.
A landowner was not constitutionally entitled to a full trial-type hearing prior to the
designation of property as a historic landmark by the District of Columbia Historic
Preservation Review Board. Donnelly Associates v District of Columbia Historic
Preservation Review Bd. (Dist Col App) 520 A2d 270.
Footnote 33. Federal Deposit Ins. Corp. v Mallen, 486 US 230, 100 L Ed 2d 265, 108 S
Ct 1780.
A workers' compensation claimant was not denied procedural due process by an

industrial commission's refusal to allow her a full evidentiary hearing in review of an
arbitrator's decision regarding her claim, as the review procedure allows a claimant the
opportunity to be heard by filing a petition for review; in light of the legislative directive
that review petitions be concluded promptly, the commission was within its authority in
denying full hearings which might delay resolution of the issues presented. Cole v
Industrial Com. (1st Dist) 166 Ill App 3d 486, 116 Ill Dec 866, 519 NE2d 1081.
Footnote 34. Morton v Dow (CA10) 525 F2d 1302.
Section 4-501 of the Model State Administrative Procedure Act (1981) provides that in
certain emergency situations an agency may use emergency adjudicative proceedings and
describes the procedure the agency must follow in utilizing such proceedings.
Footnote 35. O'Keefe v Murphy, 38 NY2d 563, 381 NYS2d 821, 345 NE2d 292 (holding
that whenever a delay in administrative adjudication significantly or deliberately
interferes with party's capacity to prepare or present his or her case the right to due
process has been violated).
Ct 1780 (holding that due process does not require that a federally indicted bank official

who has been suspended from office by the Federal Deposit Insurance Corporation be
provided with an opportunity to be heard prior to the order of suspension, because: (1)
postponement of the hearing until after the official's suspension is supported by an
important governmental interest–the congressional finding that prompt suspension of
indicted bank officers may be necessary to protect the interests of depositors and to
maintain public confidence in banking institutions; and (2) the official's federal
indictment by a grand jury constituted an ex parte finding of probable cause to believe
that the official had committed a crime punishable by a term of imprisonment in excess
of one year).
In a matter of such seriousness as suspension of a driver's license which is the source of

petitioner truck driver's income, based upon a default judgment allegedly entered without
actual notice to petitioner, the truck driver is at least entitled to minimal due process
guarantees prior to the administrative action. Johnson v Melton, 100 Misc 2d 991, 420
NYS2d 473.
A preliminary agency decision which does not cause irreparable harm need not be
preceded by a hearing where the hearing is held before the final administrative order
becomes effective. State ex rel. Oklahoma Dept. of Agriculture v Yanes (Okla) 755 P2d
611.
2. Nature of Hearing [298-303]
§ 298 No absolute right to formal hearing
View Entire Section

Although a party to an administrative proceeding has a right to appear before an agency,

present evidence and contest the case against him or her, this does not mean that a party
has an absolute right to demand that an agency hold a formal hearing. 37
Generally, the holding of a formal hearing is appropriate where adjudicative facts
involving the particular parties are at issue. 38 Conversely, an agency may ordinarily
dispense with hearing when there is no genuine dispute as to a material issue of fact. 39
Nor is an agency required to hold hearings where the ultimate decision will not be
enhanced or assisted by the receipt of evidence. 40 Accordingly, a hearing need not be
held if a proceeding is not adjudicatory in nature, 41 if a petition or complaint is not
timely filed, 42 if the application does not conform to criteria stated in regulations which
reasonably implement the regulatory statute, 43 or if the respondent does not appear, 44
answer, 45 or raise an issue of material fact. 46
However, an agency is under a heavy burden to demonstrate that a hearing is

unnecessary, 47 especially where it appears that individual facts relevant to the dispute
are at issue. 48
Footnotes
Footnote 37. De Vyver v Warden, U. S. Penitentiary (MD Pa) 388 F Supp 1213;
Colorado River Water Conservation Dist. v United States (CA10 Colo) 593 F2d 907;
Fraioli's Hydro-Power, Inc. v Department of Environmental Protection, 143 Misc 2d
866, 542 NYS2d 934; Committee on Legal Ethics of the W. Va. State Bar v Triplett, 180
W Va 533, 378 SE2d 82, cert gr 493 US 807, 107 L Ed 2d 17, 110 S Ct 48, motion gr
493 US 962, 107 L Ed 2d 368, 110 S Ct 401 and revd on other grounds 494 US 715,
108 L Ed 2d 701, 110 S Ct 1428, 14 BNA OSHC 1505.
The legislature has the inherent power to establish procedure for a particular type of case.
Medeiros v Hawaii County Planning Comm'n, 8 Hawaii App 183, 797 P2d 59, 21 ELR
20463, reconsideration den 8 Hawaii App 661.
Section 4-401 of the Model State Administrative Procedure Act (1981) provides that a
conference adjudicative hearing may be used if its use does not violate any provision of
law and the matter is entirely within one or more enumerated categories, including: (1) a
matter in which there is no disputed issue of material fact; or (2) a matter in which there
is a disputed issue of material fact, if the matter involves only (a) a monetary amount of
not more than an amount to be specified; (b) a disciplinary sanction against a prisoner;
(c) a disciplinary sanction against a student which does not involve expulsion from an
academic institution or suspension for more than 10 days; or (d) a disciplinary sanction
against a licensee which does not involve revocation, suspension, annulment, withdrawal,
or amendment of a license. Sections 4-402 and 4-403 of the Act describe the procedure
to be followed in utilizing the conference adjudicative hearing.
As to the use of summary adjudicative proceedings under the 1981 Model State
Footnote 38. Alaska Airlines, Inc. v Civil Aeronautics Board, 178 US App DC 116, 545
F2d 194; Maryland-National Capital Park & Planning Com. v Friendship Heights, 57 Md
App 69, 468 A2d 1353, cert den 300 Md 89, 475 A2d 1200 and cert den 300 Md 89, 475
A2d 1200; Re Request for Solid Waste Utility Customer Lists, 106 NJ 508, 524 A2d 386.
Footnote 39. As to informal adjudication, generally, see § 299.
As to summary judgment in lieu of adjudicatory proceedings, see § 300.
Footnote 40. De Vyver v Warden, U. S. Penitentiary (MD Pa) 388 F Supp 1213; Bendix
Aviation Corp., Bendix Radio Div. v Federal Communications Com., 106 US App DC
304, 272 F2d 533, cert den 361 US 965, 4 L Ed 2d 545, 80 S Ct 593 (dismissal by
Federal Communications Commission without hearing of application for use of
frequency, where government use of such frequency was already essentially exclusive).
Footnote 41. Hoxsey Cancer Clinic v Folsom (DC Dist Col) 155 F Supp 376 (holding
that due process does not require a hearing where the agency is merely disseminating
information and not adjudicating rights); Forest Constr. Co. v Planning & Zoning Com.,
155 Conn 669, 236 A2d 917 (a municipal planning commission approving or
disapproving particular subdivision plan is acting in administrative capacity and therefore
no public hearing is required).
In a permitting process, a hearing is not adjudicatory and is not required to be conducted

as a contested hearing under the administrative procedure act, even though the property
owner should have full opportunity to be heard by the agency and to respond to any
conclusions which are unfavorable to the property owner. High Horizons Dev. Co. v
State, DOT, 120 NJ 40, 575 A2d 1360.
Footnote 42. Van Tran Electric Corp. v NLRB (CA6) 449 F2d 774, 78 BNA LRRM
2575, 66 CCH LC ¶ 12124.


Forms: Demands–For hearing. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law,

Forms 111-116.
Request–For hearing. 1A Federal Procedural Forms, L Ed, Administrative Procedure §

2:131.
Motion–For additional hearing. 1A Federal Procedural Forms, L Ed, Administrative

Procedure § 2:131.
§ 299 Informal adjudication, generally
View Entire Section

Go to Supplement
 Definition: "Informal action" is statutorily authorized agency action that is neither

adjudication nor rulemaking. 49
Despite the fact that formal procedure is generally available with testimony of witnesses,
stenographic record, briefs, arguments, and findings of fact or opinion, many
administrative adjudications are made informally, 50 especially where the decision is
made upon inspection or tests, 51 or complaints are disposed of by consent 52 or by
correspondence. 53 If no hearing is required, the necessary judgment may be formed
informally, 54 and informality is a hallmark of administrative proceedings generally
even where a hearing is required. 55 The proceedings may not, however, be so
informal as to amount to a denial of the right to a hearing, 56 and a mere general
discussion without issues drawn is not a hearing. 57 Even where a hearing is not
involved, informality cannot be carried to the point of violating statutory requirements.
58
Absent a dismissal of an administrative proceeding which terminates jurisdiction, if

informal proceedings which parties incorrectly expected to satisfactorily terminate the
matter fail to do so, then the proper procedure is to resume formal administrative
proceedings; upon resumption of formal proceedings all evidence presented in the
informal proceeding becomes part of the record of the formal proceeding. 59
§ 299 ----Informal adjudication, generally [SUPPLEMENT]
Case authorities:
Plaintiff will not be allowed to allege 5 USCS § 553 violation based on need for notice
and comment on adoption of informal hearing rules after complete hearing has been held
and final decision has been reached by agency. Moore v Madigan (1993, CA8 Mo) 990
F2d 375, reh den (CA8) 1993 US App LEXIS 10330.
Footnotes
386.

1333, 51 S Ct 592 (reparation proceedings before Interstate Commerce Commission).
Footnote 51. United States v Sherman & Sons Co., 237 US 146, 59 L Ed 883, 35 S Ct
520 (determination of customs duties).
As to appraisement of merchandise under customs laws, see 21A Am Jur 2d, Customs
Duties and Import Regulations § 88.

1333, 51 S Ct 592 (claims on account of excessive charges are dealt with by means of
correspondence carried on by the Interstate Commerce Commission with claimants and
carriers respectively).
Footnote 54. Walker v Clinton, 244 Iowa 1096, 59 NW2d 785.
In administrative proceedings conducted by laymen, strict rules of procedure do not

apply. Mattison v Signal Hill (2nd Dist) 241 Cal App 2d 576, 50 Cal Rptr 682.
Footnote 55. Parsons v Board of Zoning Appeals, 140 Conn 290, 99 A2d 149 (ovrld on
other grounds by Ward v Zoning Bd. of Appeals, 153 Conn 141, 215 A2d 104); Bandeen
v Howard (Ky) 299 SW2d 249, cert den 355 US 813, 2 L Ed 2d 31, 78 S Ct 13 and
(ovrld on other grounds by Pearl v Marshall (Ky) 491 SW2d 837); Hecht v Monaghan,

307 NY 461, 121 NE2d 421.
Section 4-502 of the Section 1981 Model State Administrative Procedure Act provides
that an agency may utilize summary adjudicative proceedings in lieu of a full formal
hearing under certain enumerated circumstances; sections 4-503 through ; sections 4-506
describe the procedures to be followed.
Footnote 56. Flick v Gately, 328 Ill App 81, 65 NE2d 137; Parker v Board of Barber
Examiners (La App 1st Cir) 84 So 2d 80; Hecht v Monaghan, 307 NY 461, 121 NE2d
421.
Footnote 58. Greely v Thompson, 51 US 225, 10 How 225, 13 L Ed 397.
Footnote 59. New v Department of Banking & Finance, Div. of Accounting & Auditing
(Fla App D1) 554 So 2d 1203, 15 FLW D 149.
§ 300 --Summary judgment in lieu of hearing
View Entire Section

If no factual dispute is presented, such as where the facts are admitted or stipulated, and
only issues of law are in dispute, an agency is not obligated to provide an adversary
hearing, even though the governing regulatory statute provides that a determination is to
be made after a hearing. 60 Agencies may utilize summary judgment procedures if
there are no factual disputes or if an application clearly does not conform to the
regulatory requirements of the agency. 61 Purely legal disputes may also be
determined on memoranda of law, without the need to provide an evidentiary hearing. 62
However, if a factual dispute arises, an adversary hearing is necessary. 63
 Practice guide: In order to avoid summary judgment, a party must state with
particularity the issues which it believes are in dispute and which must be resolved by a
hearing. 64
Footnotes
Footnote 60. Case v Weinberger (CA2 NY) 523 F2d 602; First Bank & Trust Co. v
Board of Governors of Federal Reserve System (ED Ky) 605 F Supp 555; United States v
Consolidated Mines & Smelting Co. (CA9 Wash) 455 F2d 432, 42 OGR 126; Dredge
Corp. v Penny (CA9 Nev) 362 F2d 889; Veg-Mix, Inc. v U.S. Dept. of Agriculture, 266
US App DC 1, 832 F2d 601; Citizens for Allegan County, Inc. v Federal Power Com.,
134 US App DC 229, 414 F2d 1125 (criticized on other grounds by Bell Tel. Co. v FCC
(CA3) 503 F2d 1250); Persian Gulf Outward Freight Conference v Federal Maritime
Com., 126 US App DC 159, 375 F2d 335; Hobe Associates, Ltd. v State, Dept. of

Business Regulation, Div. of Florida Land Sales, etc. (Fla App D1) 504 So 2d 1301, 12
FLW 678; Smith v Lansing School Dist., 428 Mich 248, 406 NW2d 825, 126 BNA
LRRM 3169; Frank v Ivy Club, 120 NJ 73, 576 A2d 241, cert den 498 US 1073, 112 L
Ed 2d 860, 111 S Ct 799; Mason County v Public Employment Relations Com., 54
Wash App 36, 771 P2d 1185, review den 113 Wash 2d 1013, 779 P2d 730; Walker v
Karpan (Wyo) 726 P2d 82.
A contested matter can be summarily disposed of before an administrative law judge

without a plenary hearing in instances where undisputed material facts, as developed on a
motion or otherwise, indicate that a particular disposition is required as a matter of law.
Re Robros Recycling Corp., 226 NJ Super 343, 544 A2d 411, certif den 113 NJ 638, 552
A2d 164.
Section 4-401 of the Model State Administrative Procedure Act (1981) provides that a
conference adjudicative hearing may be used in certain enumerated situations, including
where the matter to be adjudicated is one in which there is no disputed issue of material
fact; sections 4-402 and 4-403 of the Act describe the procedure to be followed in
utilizing the conference adjudicative hearing.
Footnote 61. Weinberger v Hynson, Westcott & Dunning, Inc., 412 US 609, 37 L Ed 2d
207, 93 S Ct 2469.
Annotation: Supreme Court's views as to propriety under Federal Constitution's due

process guaranties of summary administrative deprivation of property interest, 69 L
Ed 2d 1044.
Forms: Motion–For summary decision. 1A Federal Procedural Forms, L Ed,

Footnote 62. Persian Gulf Outward Freight Conference v Federal Maritime Com., 126
US App DC 159, 375 F2d 335.
Footnote 63. Patagonia Corp. v Board of Governors of Federal Reserve System (CA9)
517 F2d 803, 35 ALR Fed 922.
A summary judgment in a contested case denied an employee the ability to fully develop
facts material to the disposition of his application for modification of permanent partial
disability award; in particular, the employee was deprived of an opportunity to respond
and present evidence in argument on what proved to be the most crucial issue in the case,
and was denied the opportunity to cross-examine the primary physician on that same
issue. Jackson v State (Wyo) 786 P2d 874.
Footnote 64. Dredge Corp. v Penny (CA9 Nev) 362 F2d 889.
§ 301 --Settlement by consent
View Entire Section

The 1981 Model State Administrative Procedure Act provides that, except to the extent
precluded by another provision of law, informal settlement of matters that may make
unnecessary more elaborate proceedings under the Act is encouraged, and requires
agencies to establish specific procedures to facilitate such informal settlement, but does
not compel any party or other person to settle a matter pursuant to informal procedures.
65 The 1961 Model State Administrative Procedure Act provides that informal
disposition may be made of any contested case by stipulation, agreed settlement, or
consent order, unless precluded by law. 66
The federal Administrative Procedure Act provides that a hearing is required only to the
extent that the parties are unable to determine a controversy by consent. 67 Under the
federal Act, an agency which has commenced proceedings may settle matters informally,
including related disputes which have not yet become the subjects of formal complaints.
68 The federal Act places agencies under the duty to consider reasonable compromise
offers, but it does not compel an agency to accept an offer against its better judgment. 69
An administrative agency may approve the settlement of a contested case or an entry of a

consent decree even though some parties, including intervenors, do not concur in the
agreement. 70 A settlement agreement also may be upheld by the courts. 71
Footnotes
Footnote 68. Secretary of Labor v Davies Can Co. (1976) OSHRC Docket No. 8182, 40
AdL2d 154.
Footnote 69. Pinkus v Reilly (DC NJ) 178 F Supp 399.
Footnote 70. Halstead v Dials, 182 W Va 695, 391 SE2d 385 (holding that where there
are objections by intervenors to the settlement of a contested case or an entry of consent
decree, the administrative agency is required to make an independent assessment of the
agreement on its merits, and if the agency determines that the settlement of the contested
case or the entry of the consent decree is just and reasonable, with due consideration
given to public interest and to applicable legislative dictates, it may confirm the
settlement or enter the consent order without the authorization of the dissenting parties).
Footnote 71. Placid Oil Co. v Federal Power Com. (CA5) 483 F2d 880, affd 417 US 283,
41 L Ed 2d 72, 94 S Ct 2328, 49 OGR 543.
§ 302 Requirement that hearing be fair and impartial

View Entire Section
Go to Supplement
Although administrative hearings need not possess the formality of judicial proceedings,
72 due process dictates that administrative hearings be conducted and decided in a fair
and impartial manner. 73 A fair hearing before an administrative agency includes the
opportunity to be heard, the right to cross-examine adverse witnesses, and impartiality in
ruling upon evidence. 74 All parties must be afforded an opportunity to respond
and present evidence and argument on all issues involved. 75 The hearing must be
tailored, in light of the decision to be made, to the particular circumstances of those who
are to be heard, in order to insure that the hearing is meaningful. 76 Hearings before
administrative agencies should be investigatory proceedings instituted for the purpose of
ascertaining and making findings of fact; hearings are not meant to be partisan, with the
agency pitted against the individual. 77
If the elements constituting a fair and impartial hearing are absent from administrative
proceedings, the hearing is void. 78 In alleging a denial of the constitutional right to an
unbiased tribunal in a quasi-judicial hearing, a party assumes a heavy burden of showing
unfairness, and must overcome the presumption that an administrative agency has fairly
adjudicated the matter before it. 79
§ 302 ----Requirement that hearing be fair and impartial [SUPPLEMENT]
Practice Aids: Petition or application–Allegation–Bias of administrative officials in

conducting investigation. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, §
311.
Footnotes
Footnote 72. Nelson v Department of Employment Secur. (Utah App) 801 P2d 158, 147
Utah Adv Rep 33.
Although an agency must be reasonable and comply with the standards of natural justice
and fair play, administrative hearings need not comport with any particular form.
Strasnick v Board of Registration in Pharmacy, 408 Mass 654, 562 NE2d 1333.
Footnote 73. Utica Packing Co. v Block (CA6 Mich) 781 F2d 71; Jordan v Dukes (App)
269 Ark 581, 600 SW2d 21; Sclavenitis v Cherry Hills Village Bd. of Adjustment &
Appeals (Colo App) 751 P2d 661; Rado v Board of Educ., 216 Conn 541, 583 A2d 102;
Canney v Board of Public Instruction (Fla) 278 So 2d 260; North Fulton Community
Hospital, Inc. v State Health Planning & Dev. Agency, 168 Ga App 801, 310 SE2d 764;
Six-Brothers King Drive Supermarket, Inc. v Department of Revenue (1st Dist) 192 Ill
555 NE2d 385; Robitaille v State (Me) 468 A2d 311; Spratt v Department of Social
Services, 169 Mich App 693, 426 NW2d 780; Rudner v Board of Regents (3d Dept) 105
App Div 2d 555, 481 NYS2d 502; State ex rel. Ormet Corp. v Industrial Com. of Ohio,
54 Ohio St 3d 102, 561 NE2d 920; Mutual Federal Sav. & Loan Asso. v Savings & Loan
Advisory Committee, 38 Wis 2d 381, 157 NW2d 609; ANR Production Co. v Wyoming
Oil & Gas Conservation Com. (Wyo) 800 P2d 492, 111 OGR 392.
The fact-finding process of an administrative body should be free from suspicion or even
an inference of impropriety. Koeneman v New Haven (Ind App) 506 NE2d 1135;
Hayden v Port Townsend, 28 Wash App 192, 622 P2d 1291.
As to presumption that the officers conducting a hearing and the members of a board
behave honestly and fairly in the conduct of the hearings, see § 316.
Law Reviews: Postol, Litigating Cases Before Administrative Law Judges. 13 Litig
47 (Spring, 1987).
Footnote 74. Willner v Committee on Character & Fitness, 373 US 96, 10 L Ed 2d 224,
83 S Ct 1175, 2 ALR3d 1254; Morgan v United States, 304 US 1, 82 L Ed 1129, 58 S
Ct 773, 58 S Ct 999, 1 CCH LC ¶ 17033, 1 CCH LC ¶ 17037; Pundy v Department of
Professional Regulation (1st Dist) 211 Ill App 3d 475, 155 Ill Dec 945, 570 NE2d 458;
Renny v Port Huron Hospital, 427 Mich 415, 398 NW2d 327, 105 CCH LC ¶ 55624, reh
den 428 Mich 1206; Christian Care Home, Inc. v State Certificate of Need Review Bd.
(Franklin Co) 48 Ohio App 3d 158, 548 NE2d 981, appeal after remand (Franklin Co) 64
Ohio App 3d 461, 581 NE2d 1157, appeal after remand (Franklin Co) 74 Ohio App 3d
453, 599 NE2d 342.
As to cross-examination of witnesses in adjudicatory administrative proceedings,

generally, see §§ 355 et seq.
Footnote 76. Altholtz v Connecticut Dental Com., 4 Conn App 307, 493 A2d 917;
Goranson v Department of Registration & Education (1st Dist) 92 Ill App 3d 496, 47 Ill
Dec 936, 415 NE2d 1249.
Footnote 77. Pundy v Department of Professional Regulation (1st Dist) 211 Ill App 3d
475, 155 Ill Dec 945, 570 NE2d 458.
Members of an administrative board may question a witness appearing before the board
as long as the questioning is not argumentative or done in a manner so as to breach the
board's duty as a neutral, detached and impartial decision-maker. Texaco Refining &
Marketing, Inc. v Assessment Bd. of Appeals (Del Super) 579 A2d 1137, appeal after
remand (Del Super) 1991 Del Super LEXIS 101.
Footnote 78. Sorin v Bd. of Educ., 39 Ohio Misc 108, 68 Ohio Ops 2d 270, 315 NE2d
848, later proceeding 46 Ohio St 2d 177, 75 Ohio Ops 2d 224, 347 NE2d 527.
Footnote 79. State ex rel. Powell v Wallace (Mo App) 718 SW2d 545; New York State
Dept. of Transp. v Matt, 124 Misc 2d 1080, 478 NYS2d 1007, later proceeding (3d
Dept) 117 App Div 2d 151, 501 NYS2d 961, revd on other grounds 71 NY2d 154, 524
NYS2d 180, 518 NE2d 1172, cert den 486 US 1007, 100 L Ed 2d 197, 108 S Ct 1734,
reh den 487 US 1250, 101 L Ed 2d 962, 109 S Ct 11 and reconsideration dismd 78
NY2d 909, 573 NYS2d 470, 577 NE2d 1062; State ex rel. Kalt v Board of Fire & Police
Comrs. (App) 145 Wis 2d 504, 427 NW2d 408.

§ 303 Oral hearing or written submission
View Entire Section

Under the federal Administrative Procedure Act, an agency must give all interested
parties the opportunity to submit facts, arguments, offers of settlement, or proposals of
adjustment, when time, the nature of the proceeding, and the public interest permit. 80
To the extent that the parties are not able to settle the controversy by consent, they are
entitled to a hearing and decision on notice in accordance with the formal hearing
sections of the Administrative Procedure Act. 81 Although the Act provides that a party
is entitled to present its case or defense by oral or documentary evidence, 82 an agency
is not required to provide oral hearings unless the statute governing the agency's actions
makes an oral hearing mandatory. 83 The due process clause does not require that oral
testimony be heard in every administrative proceeding in which it is tendered, and a
statute which grants discretionary authority to admit or reject such evidence is not
unconstitutional simply because it may be applied in an arbitrary or unfair manner in
some hypothetical case. 84
Furthermore, the Act provides that in formal rulemaking, 85 determinations of claims

for money or benefits, or applications for initial licenses, 86 an agency may adopt
procedures for the submission of all or part of the evidence in written form, if no party is
prejudiced by such procedures. 87 Since ratemaking is a form of rulemaking, 88 no
oral testimony need be permitted in ratemaking proceedings and evidence in such cases
may be submitted in written form. 89 However, in proceedings such as license
application proceedings, such a "paper hearing" procedure will ordinarily be appropriate
only where a party fails to point out the existence of any material disputed facts that
should appropriately be resolved through a trial-type proceeding, that is, one with
witnesses under oath, cross-examination, and compulsory process. 90
 Practice guide: The Administrative Procedure Act mandates only "such

cross-examination as may be required for a full and true disclosure of the facts," 91
and therefore cross-examination is not an absolute right in administrative cases. 92
Accordingly, where a substantial number of witnesses is involved, the hearing officer
may choose a hybrid procedure allowing oral testimony and cross-examination of a
certain percentage of the witnesses and the receipt of written verified statements from
the remainder. 93
The Model State Administrative Procedure Act (1981) contains no express provision as
to the use of written submissions, except with regard to nonparties, who may be given an
opportunity to present oral or written statements. 94
Footnotes

As to the settlement of an administrative case by consent, see § 301.
F2d 1283; Sea-Land Service, Inc. v Federal Maritime Com., 209 US App DC 289, 653
F2d 544.
Ct 1780.
Footnote 85. As to the requirement that trial-type hearings be held in formal rulemaking
proceedings, see § 177.
Footnote 86. As to licenses, generally, see §§ 246 et seq.
Footnote 89. Tenneco Oil Co. v Federal Energy Regulatory Com. (CA5) 571 F2d 834, 61
OGR 268, cert dismd 439 US 801, 58 L Ed 2d 94, 99 S Ct 43; Shell Oil Co. v Federal
Power Com. (CA5) 520 F2d 1061, 53 OGR 392, reh den (CA5) 525 F2d 1261, 53 OGR
433 and cert den 426 US 941, 49 L Ed 2d 394, 96 S Ct 2660, 96 S Ct 2661, 96 S Ct
2662.
Footnote 90. Sierra Asso. for Environment v Federal Energy Regulatory Com. (CA9) 744
F2d 661, 14 ELR 20531, 14 ELR 20830, later proceeding (CA9) 789 F2d 921, supp op
(CA9) 791 F2d 1403, 17 ELR 20018.
Footnote 93. Central Freight Lines, Inc. v United States (CA5) 669 F2d 1063.
3. Parties [304-307]
§ 304 Interested parties
View Entire Section


Go to Supplement
Who may or must be a party to an administrative proceeding depends on the purpose and
effect of the proceeding and the particular statute under which it is brought, as well as on
the rules of the agency. 95 Absent a reasonable regulation providing for a more formal
method of becoming a party, anyone clearly identifying himself or herself to the agency
for the record as having an interest in the outcome of the matter being considered by that
agency thereby becomes a party to the proceedings. 96 Under the administrative
procedure acts, in order to have standing to initiate administrative proceedings, a party
generally must show either that its legal rights may be adversely affected by the agency's
action, 97 or that it has a legally vested private right which may be enforced in the
administrative proceeding. 98 Accordingly, if someone is only a "charging party" who
may request that an agency investigate a matter and file a complaint, but who has no
vested rights under a regulatory statute, the person is not an interested party who may
demand a hearing, 99 even though the person may be awarded restitution or backpay
as a result of the proceeding. 1
One not made a party to a proceeding before a commission which results in an order
affecting his or her interests is not deprived of due process of law where the statute
provides for a rehearing on his application. 2
Agencies may honor the usual rules relating to abatement of actions and substitution of
parties. 3
§ 304 ----Interested parties [SUPPLEMENT]
Case authorities:
Operator of mobile radio communications facilities did not have standing to bring claim
against FCC under National Environmental Policy Act challenging issuance of special
use permit to competitor where sole complaint was alleged interference with its
operations; such complaint is economic and is therefore not one that NEPA aims to
redress. Western Radio Servs. Co. v Espy (1996, CA9 Or) 79 F3d 896, 96 CDOS 1808,
96 Daily Journal DAR 3134, 26 ELR 20829.
Footnotes
Footnote 95. Nevada County Office of Education v Riles (3rd Dist) 149 Cal App 3d 767,
197 Cal Rptr 152.
Footnote 96. Morris v Howard Research & Development Corp., 278 Md 417, 365 A2d 34
(holding that a resident who was present at zoning hearings before the county zoning
board, testified as a witness, and made statements or arguments as to why certain
amendments to the zoning regulations should not be approved was entitled to notice of an
appeal resulting in reversal of the board's decision).
Footnote 97. Fugazy Travel Bureau, Inc. v Civil Aeronautics Board, 121 US App DC
355, 350 F2d 733.

The federal Administrative Procedure Act provides that "all interested parties" are to be
given an opportunity for a hearing. 5 USCS § 554(c).
Under an administrative code, persons whose substantial interest may be affected by an

agency decision, such as a final agency action of the issuance of a declaratory statement,
must be provided a clear point of entry into formal proceedings. Florida Optometric
Assn. v Department of Professional Regulation, Bd. of Opticianry (Fla App D1) 567 So
2d 928, 15 FLW D 2250.
Petitioner can satisfy the injury-in-fact standard necessary to obtain an administrative

hearing by demonstrating in his or her petition either that he or she had sustained actual
injury in fact at the time of the filing of his or her petition, or that he or she is
immediately in danger of sustaining some direct injury as a result of the challenged
agency's action. Village Park Mobile Home Asso. v State, Dept. of Business Regulation,
Div. of Florida Land Sales, etc. (Fla App D1) 506 So 2d 426, 12 FLW 280, reh den (Fla
App D1) 12 FLW 1200 and review den (Fla) 513 So 2d 1063.
A person is properly a party to an administrative proceeding by either being named as a

party, becoming a party by an applicable statute, or if his or her interest in the proceeding
is of constitutional proportions. Stewart v Rood (Okla) 796 P2d 321, 21 ELR 20026
(ovrld on other grounds by DuLaney v Oklahoma State Dep't of Health (Okla) 1993 Okla
LEXIS 134).
Footnote 98. NLRB v Oil, Chemical & Atomic Workers International Union (CA1) 476
F2d 1031, 82 BNA LRRM 3159, 71 CCH LC ¶ 13600.
Footnote 99. FTC v Klesner, 280 US 19, 74 L Ed 138, 50 S Ct 1, 68 ALR 838.
Footnote 1. NLRB v Oil, Chemical & Atomic Workers International Union (CA1) 476
F2d 1031, 82 BNA LRRM 3159, 71 CCH LC ¶ 13600 (criticized by George Ryan Co. v
NLRB (CA7) 609 F2d 1249, 102 BNA LRRM 2885, 87 CCH LC ¶ 11695) and
(criticized by Donovan v Occupational Safety & Health Review Com. (CA2) 713 F2d
918).
Footnote 2. Chicago v O'Connell, 278 Ill 591, 116 NE 210, 8 ALR 916 (public service
commission).
Footnote 3. Holiday Magic, Inc. (1974) FTC Docket No. 8834, 35 AdL2d 613.
§ 305 Agency as party
View Entire Section

Many administrative proceedings are instituted on the complaint or motion of the agency
before which the hearing is had. 4 However, an administrative agency is generally not a
party to a litigation as that term is customarily used and should not be so considered
unless the legislature has so provided. 5 Thus, in the absence of statute an
administrative officer is not a party where the administrative agency seeks review of a
judicial review of its determination. 6
Footnotes
Footnote 4. § 283.
Footnote 5. Miles v McKinney, 174 Md 551, 199 A 540, 117 ALR 207; Minnesota State
Board of Health v Governor's Certificate of Need Appeal Board, 304 Minn 209, 230
NW2d 176.
Footnote 6. § 642.
§ 306 Intervention
View Entire Section

Go to Supplement
The right to intervene in administrative proceedings is frequently provided by statute or

rule of the agency. 7 In the absence of a clear legislative mandate to the contrary, an
agency may impose reasonable conditions upon the admission of an intervenor to
participation in an agency proceeding. 8 However, the possibility that an adjudicative
proceeding will result in an interpretation of law or regulation applicable as legal
precedent to nonparties is not a basis for intervention by all who may possibly be so
affected. 9
Intervention may be made subject to agency rules which require a showing of interest. 10
Agencies may rely on judicial standing concepts in determining whether a person has an
interest sufficient to support intervention, although there is no requirement that agencies
strictly follow judicial precedents. 11
Generally, an intervening party's rights in an administrative proceeding are subordinate to

the principal issues raised by the original parties to the action, and the intervening party
is limited to litigating only his or her interests as affected by those issues. 12 Once
intervention has been granted in an administrative proceeding, the original parties may
not stipulate away, by consent order or otherwise, the rights of the intervenors. 13
Although an agency retains untapped authority to insure orderly procedure by

promulgating rules limiting both the number of intervenors and the nature of their
participation, the agency may not avoid its obligation to wield this power responsibly by
implementing a flat ban upon all intervention. 14
§ 306 ----Intervention [SUPPLEMENT]

Practice Aids: Petition–For leave to intervene as interested party. 1A Am Jur Pl & Pr
Forms (Rev), Administrative Law, Form .
Case authorities:
In environmental groups' action challenging government agencies' decision approving

plan to manage federal land with spotted owl habitat, district court properly exercised
jurisdiction over federal defendants' cross-claims for declaratory relief against one
plaintiff group since that plaintiff had been long-time intervenor in underlying action,
vigorous in its opposition to successive forest management plans, and had filed coercive
actions, so that district court was thus presented with substantial controversy arising
under federal law between parties with adverse interests which presented concrete legal
questions in context of federal defendants' real and reasonable apprehension that, unless
group's claims were litigated within single proceeding, they faced likelihood of confusion
and differing judgments. Seattle Audubon Soc'y v Moseley (1996, CA9 Wash) 80 F3d
1401, 96 CDOS 2449, 96 Daily Journal DAR 4131, 42 Envt Rep Cas 1568, 26 ELR
20980.
Footnotes
Footnote 7. FCC v National Broadcasting Co., 319 US 239, 87 L Ed 1374, 63 S Ct

1035; State ex rel. Rouveyrol v Donnelly, 365 Mo 686, 285 SW2d 669 (superseded by
statute on other grounds as stated in Bank of Belton v State Banking Board (Mo App)
554 SW2d 451) and (superseded by statute on other grounds as stated in St. Joseph's Hill
Infirmary, Inc. v Mandl (Mo App) 682 SW2d 821).
Forms: Petition–For leave to intervene as interested party. 1A Am Jur Pl & Pr Forms

(Rev), Administrative Law, Form 84; 1A Federal Procedural Forms, L Ed,

731.
Whether to allow interested persons to intervene in proceedings for judicial review of an

administrative determination is discretionary with the circuit court. Re Delavan Lake
Sanitary Dist. (App) 160 Wis 2d 403, 466 NW2d 227.
Footnote 9. Great Atlantic & Pacific Tea Co. (1974) FTC Docket No. 8916, 34 AdL2d
574.
Footnote 10. Chicago Junction Case, 264 US 258, 68 L Ed 667, 44 S Ct 317 (not
followed on other grounds by Simmons v Interstate Commerce Com., 230 US App DC
236, 716 F2d 40).
Optometrists had standing to intervene and request a formal hearing with respect to
opticians' request for a declaratory statement from the board of opticianry that opticians
could use vision screening equipment to check customers' visual acuity; the optometrists
alleged invasion of a statutorily delineated, exclusive area of practice. Florida
Optometric Assn. v Department of Professional Regulation, Bd. of Opticianry (Fla App
D1) 567 So 2d 928, 15 FLW D 2250.

Forms: Petition–For leave to intervene as interested party. 1A Federal Procedural
Footnote 11. Virginia Electric & Power Co. (1976) ALAB-363, 41 AdL2d 129; Edlow
International Co. (1976) NRC Docket Nos. 70-2071, 70-2131, 38 AdL2d 1075; Public
Service Co. of Oklahoma (1977) 5 NRC 1143, 41 AdL2d 869.
731; Siegel v Atomic Energy Com., 130 US App DC 307, 400 F2d 778; Lewis Oil Co. v
Alachua County (Fla App D1) 496 So 2d 184, 11 FLW 2116, later proceeding (Fla App
D1) 516 So 2d 1033, 12 FLW 2811, later proceeding (Fla App D1) 554 So 2d 1210, 15
FLW D 148.
Footnote 13. Halstead v Dials, 182 W Va 695, 391 SE2d 385.
Footnote 14. Nichols v Board of Trustees, 266 US App DC 304, 835 F2d 881, 9 EBC
1177, 10 FR Serv 3d 66, later proceeding (DC Dist Col) 725 F Supp 568, 11 EBC 2220.
§ 307 Class actions
View Entire Section

Agencies may formulate their own rules regarding joinder of parties and representative
actions, and are not bound by the class action provisions of the rules of civil procedure.
15 Accordingly, an agency may promulgate a rule providing that all parties must appear
personally or by representatives granted duly executed powers of attorney. 16 However,
once administrative remedies are exhausted, a party may bring a class action in court,
assuming the prerequisites for a class action can be satisfied. 17
Footnotes
Footnote 15. Pennsylvania by Sheppard v National Asso. of Flood Insurers (CA3 Pa) 520
F2d 11, 20 FR Serv 2d 601 (ovrld on other grounds by Pennsylvania v Porter (CA3 Pa)
659 F2d 306, 9 Fed Rules Evid Serv 1062) and (criticized on other grounds by GAF
Corp. v United States, 260 US App DC 252, 818 F2d 901, ALR Fed 4251); Greyhound
Lines-East, Operating Div. of Greyhound Lines, Inc. v Geiger, 179 W Va 174, 366 SE2d
135, 47 CCH EPD ¶ 38205.
659 F2d 306, 9 Fed Rules Evid Serv 1062) and (criticized by GAF Corp. v United States,
260 US App DC 252, 818 F2d 901, ALR Fed 4251).
659 F2d 306, 9 Fed Rules Evid Serv 1062) and (criticized by GAF Corp. v United States,
260 US App DC 252, 818 F2d 901, ALR Fed 4251).
A state civil rights commission may proceed by way of an administrative class action and
order relief for similarly situated individuals who have been victims of unlawful
discriminatory practices where the commission or its executive director is given the right
to initiate complaints, and compliance with the transaction requirement under the rules of
civil procedure is not necessary in an administrative civil rights class action; however,
notice must be given to the employer that the class action must be undertaken, and that
evidence is required about individual damages suffered if individual relief is awarded.
Greyhound Lines-East, Operating Div. of Greyhound Lines, Inc. v Geiger, 179 W Va
174, 366 SE2d 135, 47 CCH EPD ¶ 38205.
4. Hearing Officers [308-320]
§ 308 Who may preside at agency hearings
View Entire Section

Go to Supplement
The administrative procedure acts provide that the agency itself, one or more of the
members of the body which comprises the agency, or one or more administrative law
judges may preside at a formal agency hearing at which evidence is taken. 18 In
addition, hearings may be held before boards or other employees specially designated
under regulatory statutes. 19 Thus, special statutory boards or presiding officers are
continued under the federal Administrative Procedure Act, 20 and special provisions
relating to the appointment of presiding officers cannot be deemed to conflict with the
federal Act. 21
Hearings are to be conducted only by specially qualified persons. 22 The appointment

of an unqualified hearing officer is an irregularity which invalidates the resulting order.
23
 Caution: An objection to the qualifications of the hearing officer must first be made
in the administrative proceedings, and the objection comes too late if it is raised for the
first time on judicial review, since the action of the agency, while improper, does not
deprive the agency of power or jurisdiction. 24 In addition, the objection is waived
if made before the agency but not in a timely manner. 25
§ 308 ----Who may preside at agency hearings [SUPPLEMENT]
Practice Aids: Petition or application–Allegation–Failure of proper official to conduct

hearing and issue order. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 305.

Footnotes
Model State Administrative Procedure Act (1981) § 4-202(a).
An agency may legally be vested with quasi-judicial powers, including the power to hear
and determine facts as a necessary adjunct to determining what action the law imposes.
State ex rel. Keasling v Keasling (Iowa) 442 NW2d 118.
Footnote 19. 5 USCS § 556(b) provides that the administrative procedure act does not
supersede provisions governing the conduct of this specified class of proceedings.
Model State Administrative Procedure Act (1981) § 4-202(a) provides that the agency
head may designate one or more other persons to be the presiding officer, unless
prohibited by law.
It is not denial of due process for state administrative hearing to be conducted by an

agency employee, with review of the hearing officer's decision to be conducted by the
agency head. Department of Transp. v Del-Cook Timber Co., 248 Ga 734, 285 SE2d
913; United Cement Co. v Safe Air for Environment, Inc. (Miss) 558 So 2d 840; Grace v
Structural Pest Control Bd. (Tex Civ App Waco) 620 SW2d 157, writ ref n r e (Dec 9,
1981) and rehg of writ of error overr (Jan 27, 1982).
Footnote 20. Twigger v Schultz (CA3) 484 F2d 856.
Footnote 21. Marcello v Bonds, 349 US 302, 99 L Ed 1107, 75 S Ct 757, reh den 350
US 856, 100 L Ed 761, 76 S Ct 38, later proceeding (CA5 La) 803 F2d 851.
Footnote 22. U. S. Health Club, Inc. v Major (CA3 NJ) 292 F2d 665, cert den 368 US
896, 7 L Ed 2d 92, 82 S Ct 172.
Section 4-301 of the Section 1981 Model State Administrative Procedure Act has an
optional provision that only a person admitted to practice law in the particular state or
jurisdiction may be employed as an administrative law judge.
Footnote 23. United States v L. A. Tucker Truck Lines, Inc., 344 US 33, 97 L Ed 54, 73
S Ct 67.
Annotation: Necessity for federal agency to order de novo hearing where presiding
employee at agency adjudication under Administrative Procedure Act (5 USCS §§
554(d)) must be replaced during hearing, 51 ALR Fed 470.
Footnote 24. United States v L. A. Tucker Truck Lines, Inc., 344 US 33, 97 L Ed 54, 73
S Ct 67.

administrative tribunal. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form
117.
Footnote 25. International Paper Co. v Federal Power Com. (CA2) 438 F2d 1349, 38

OGR 495, cert den 404 US 827, 30 L Ed 2d 56, 92 S Ct 61; Democrat Printing Co. v
FCC, 91 US App DC 72, 202 F2d 298.
§ 309 Powers of presiding officers
View Entire Section

The federal Administrative Procedure Act provides that, subject to published rules of an
agency and the powers of an agency, an employee presiding at a formal, trial-type
hearing may: (1) administer oaths and affirmations; (2) issue subpoenas authorized by
law; (3) rule on offers of proof and receive relevant evidence; (4) take depositions or
have depositions taken when the ends of justice would be served; (5) regulate the course
of the hearing; (6) hold conferences for the settlement or simplification of the issues by
consent of the parties or by the use of alternate means of dispute resolution; 26 (7)
inform the parties as to the availability of one or more alternative means of dispute
resolution, and encourage use of such methods; (8) require the attendance, at any
conference for the settlement or simplification of the issues, of at least one representative
of each party who has authority to negotiate concerning resolution of the issues in
controversy; (9) dispose of procedural requests or similar matters; (10) make or
recommend decisions in accordance with 5 USCS § 557; and (11) take other action
authorized by agency rule consistent with the Administrative Procedure Act. 27 In
addition, various provisions of the 1981 Model State Administrative Procedure Act
describe the powers of presiding officers. 28
Parties may, by stipulation, confer on a quasi-judicial officer authority to determine a

case submitted to the officer before he or she leaves the quasi-judicial office to take a
judicial office. 29
Footnotes
Footnote 26. As provided in 5 USCS §§ 581 et seq., generally discussed in §§ 395 et seq.
Footnote 28. Model State Administrative Procedure Act (1981) §§ 4-204 through 4-218.
As to specific powers of presiding officers, see § 284 (providing parties with notice); § ,
see § 306 (granting petition for intervention); § , see § 338 (issuing subpoenas); § , see
§ 333 (conducting prehearing conferences); § , see § 327 (issuing discovery orders); § ,
see § 335 (scheduling hearings); § , see § 342 (regulating course of hearings); § , see §
345 (ruling on evidence); § , see § 365 (rendering initial orders); § , see § 376
(rendering final orders); § , see § 336 (taking action on petition for stay); § , see § 393
(considering petition for reconsideration).
Footnote 29. Gnacek v Hercules Powder Co., 49 NJ 106, 228 A2d 341 (in which a judge
of the Division of Workmen's Compensation was appointed to a judicial office).
§ 310 Administrative law judges–appointment and assignment
View Entire Section

The federal Administrative Procedure Act provides that administrative law judges
(ALJ's) 30 may preside at the taking of evidence in a formal administrative proceeding.
31 Administrative law judges, formerly known as "hearing examiners," 32 are
appointed by the respective agencies 33 in accordance with regulations established by
the Office of Personnel Management. 34 In order to assure the independence of
ALJ's from the prosecutors of an agency, 35 the statutes provide that the judges are
to be assigned to cases in rotation, so far as practicable. 36 Factors to be considered
include the complexity of the case as well as experience and ability of the ALJ. 37
The assignment of the ALJ's cannot be made with the intent or a fact of interfering with
the independence of the judges or otherwise depriving a party of a fair hearing. 38
The 1981 Model State Administrative Procedure Act creates an office of administrative
hearings–an independent organization of administrative law judges which is empowered
to employ ALJ's as necessary to conduct proceedings required by law. 39 The 1981 Act
provides that if the office is unable to furnish one of its ALJ's in response to an agency
request, an employee of an agency may be designated to serve as an ALJ for that
particular proceeding. 40 The Act further provides that ALJ's may be furnished on a
contract basis to any governmental entity to conduct any proceeding not subject to the
Act. 41
Footnotes
Footnote 30. Appointed under 5 USCS § 3105.
Footnote 32. See Amendment Note to 5 USCS § 3105.
Footnote 34. 5 CFR §§ 930.201 et seq.
As to the power of the Office of Personnel Management to adopt rules governing the
promotion, compensation, tenure, and assignment of cases to administrative law judges,
see Ramspeck v Federal Trial Examiners Conference, 345 US 128, 97 L Ed 872, 73 S
Ct 570, 31 BNA LRRM 2437, reh den 345 US 931, 97 L Ed 1360, 73 S Ct 778.
Footnote 35. Federal Trial Examiners Conference v Ramspeck (DC Dist Col) 104 F Supp
734, affd 91 US App DC 164, 202 F2d 312, revd on other grounds 345 US 128, 97 L Ed
872, 73 S Ct 570, 31 BNA LRRM 2437, reh den 345 US 931, 97 L Ed 1360, 73 S Ct
778.
The "so far as practicable" language in the statute allows assignments to be determined
by more than just the mere mechanical rotation of giving the next case on the docket to
the top name on the list of available administrative law judges. Ramspeck v Federal Trial
Examiners Conference, 345 US 128, 97 L Ed 872, 73 S Ct 570, 31 BNA LRRM 2437,
reh den 345 US 931, 97 L Ed 1360, 73 S Ct 778.
Footnote 37. Sykes v Bowen (CA8 Ark) 854 F2d 284, CCH Unemployment Ins Rep ¶
14170A; Aaacon Auto Transport, Inc. v Interstate Commerce Com., 253 US App DC
202, 792 F2d 1156, cert den 481 US 1048, 95 L Ed 2d 834, 107 S Ct 2178, later
proceeding 261 US App DC 333, 821 F2d 821.
Footnote 38. Sykes v Bowen (CA8 Ark) 854 F2d 284, CCH Unemployment Ins Rep ¶
14170A (holding that reassigning a case on remand to the same ALJ who presided over
the claimant's initial hearing did not violate the federal APA, where the claimant did not
argue that the judge who presided over the hearing was biased or incompetent).
As to the disqualification of hearing officers for bias, generally, see § 316.
Footnote 39. Model State Administrative Procedure Act (1981) § 4-301(a)-(b).
§ 311 --Discipline and removal
View Entire Section

Go to Supplement
Under the federal Administrative Procedure Act, administrative law judges (ALJ's) may
not perform duties inconsistent with their duties and responsibilities as ALJ's, 42 and
may be disciplined only for good cause established and determined by the Merit Systems
Protection Board on the record after an opportunity for a hearing before the Board. 43
Disciplinary actions against ALJ's are reviewable in District Courts in actions against the
Merit Systems Protection Board. 44
 Comment: Rules for the removal of ALJ's provide that the ALJ has the right to a
hearing before the Merit Systems Protection Board or an ALJ designated by the Board,
and that, if an ALJ presides, there must be a recommended decision to the Board in
accordance with 5 USCS § 557. 45
The 1981 Model State Administrative Procedure Act provides that the Office of
Administrative Hearings may adopt rules to establish standards and procedures for the
discipline of ALJ's. 46
§ 311 --Discipline and removal [SUPPLEMENT]
Case authorities:
Annuitant may waive annuity and thus not be reemployed at will of appointing agency
within meaning of § 3323(b)(1) so as to become eligible for reemployment as
administrative law judge, removal from such appointment being only for cause;
revocation of annuity waiver by ALJ could be basis for disqualification and removal
under cause standard of § 7521. Vesser v Office of Personnel Management (1994, CA
FC) 29 F3d 600, 94 Daily Journal DAR 10661.
Footnotes
Footnote 44. McEachern v United States (CA4 SC) 321 F2d 31.
As to MSPB actions against ALJ's and judicial review of MSPB decisions, see 16 Federal
Procedure, L Ed, Government Officers and Employees §§ 40:517-40:519,
40:570-40:575.
See also 5 USCS § 554(a)(2), discussed at § 264, which provides that matters relating to
the tenure of an ALJ are subject to the hearing provisions of the federal Administrative
Procedure Act.
Footnote 46. Model State Administrative Procedure Act (1981) § 4-301(e)(4).
§ 312 Substitution of hearing officers
View Entire Section

The 1981 Model State Administrative Procedure Act provides that if a substitute is
required for a presiding officer in an administrative proceeding who is disqualified or
who otherwise becomes unavailable, the substitute must be appointed by the Governor or
the official who appointed the presiding officer. 47 Such a substituted officer has
authority to decide all legal issues presented in an request for review, and based on his or
her resolution of such legal issues, the authority to affirm, modify or reverse a decision
and award entered by an administrative law judge. 48
In providing that the employee who presides at the reception of evidence must also make
the recommended or initial decision, 49 unless the employee becomes unavailable to the
agency, 50 the federal Administrative Procedure Act contemplates that the substitution
of hearing officers may be necessary in some circumstances, such as where an
administrative law judge retires. 51
If the substitution of administrative law judges is necessary, an agency has the discretion
to decide whether the hearing should be recommenced de novo. 52 Such a decision
generally turns on whether credibility determinations must be made, 53 and whether the
decision may be made on the record of prior proceedings. 54 A party is not prejudiced
by the substitution of hearing officers if the party is granted a de novo hearing and there
is no suggestion that the new officer is biased or incompetent. 55 However, due
process is violated when an agency replaces a judicial officer after that officer renders
final decision in a case which displeases the agency and then the agency presents a
petition for reconsideration of the case to the officer's replacement, even though no actual
bias on the part of the replacement is proven. 56
Footnotes
Footnote 48. W.A. Krueger Co. v Industrial Com. of Arizona (App) 150 Ariz 169, 722
P2d 337, vacated on other grounds, en banc 150 Ariz 66, 722 P2d 234.
Footnote 49. As to recommended or initial decisions, generally, see § 365.
Footnote 51. Brooklyn Eastern Dist. Terminal v United States (ED NY) 302 F Supp
1095; Kellogg Co. (1978, FTC) 45 AdL2d 20 (noting that if the retired administrative
law judge's reappointment has not been approved by the Office of Personnel
Management, the judge's service is of questionable validity and a substitute
administrative law judge should be appointed).
Footnote 52. New England Coalition on Nuclear Pollution v United States Nuclear
Regulatory Com. (CA1) 582 F2d 87, 8 ELR 20707, 51 ALR Fed 451.
employee at agency adjudication under Administrative Procedure Act (5 USCS §
Footnote 53. Van Teslaar v Bender (DC Md) 365 F Supp 1007 (accused was deprived of
a fair hearing where the resolution of the case required a determination of credibility and
the accused did not agree to proceed without a de novo determination after a new hearing
officer was substituted); Gamble-Skogmo, Inc. v Federal Trade Com. (CA8) 211 F2d 106
(criticized on other grounds by Millar v Federal Communications Com., 228 US App DC
125, 707 F2d 1530) (de novo hearing not granted where no credibility determinations
need be made).
Footnote 54. New England Coalition on Nuclear Pollution v United States Nuclear
Regulatory Com. (CA1) 582 F2d 87, 8 ELR 20707, 51 ALR Fed 451.

Footnote 55. Tractor Training Service v Federal Trade Com. (CA9) 227 F2d 420, cert
den 350 US 1005, 100 L Ed 867, 76 S Ct 649, reh den 351 US 934, 100 L Ed 1462,
76 S Ct 786.
As to the disqualification of hearing officers for bias, generally, see § 316.
Footnote 56. Utica Packing Co. v Block (CA6 Mich) 781 F2d 71.
§ 313 Separation of prosecutorial and adjudicatory functions
View Entire Section

Due process requires that the prosecutory and investigatory aspects of administrative
matters be adequately separated from the adjudicatory function. 57 Thus, counsel who
performs as an advocate in a given case is generally precluded from advising a
decision-making body in the same case. 58 However, the combination of investigative
and adjudicative functions standing alone generally does not create a due process
violation, without a showing of bias. 59
The administrative procedure acts provide that an employee or agent engaged in the
performance of investigative or prosecuting functions for an agency in a case may not
participate or advise in the decision, recommended decision, or agency review of that
case or a factually related case, except as a witness or counsel in public proceedings. 60
The federal Administrative Procedure Act has been interpreted as forbidding any
employee engaged in the performance of investigative or prosecuting functions from
presiding over an adjudication, even if the employee did not have the title of
"investigator" or "prosecutor," so long as the employee was involved with the case or a
factually related case in a capacity that gives the employee a will to win the case for the
agency. 61 The federal Act also provides that a hearing officer cannot be responsible
or subject to the supervision or direction of an employee or agent of the agency who is
engaged in the performance of investigative or prosecuting tasks. 62
The findings of an administrative officer who acts both as an advocate and a judge may
be attacked on judicial review. 63 However, an objection that the rules relating to
separation of functions were disregarded by the agency may be waived if it is not first
timely presented to the agency. 64
Footnotes
Footnote 57. Shah v State Bd. of Medicine, 139 Pa Cmwlth 94, 589 A2d 783, reh den (Pa
Cmwlth) 1991 Pa Commw LEXIS 320 and app den 528 Pa 646, 600 A2d 197.
Footnote 58. People ex rel. Woodard v Brown (Colo App) 770 P2d 1373, cert den (Colo)
783 P2d 1223.

The due process rule of overlapping functions in administrative disciplinary proceedings
applies to prevent the participant from being in the position of reviewing his or her own
decision or adjudging a person whom he or she has either charged or investigated. Rhee
v El Camino Hospital Dist. (6th Dist) 201 Cal App 3d 477, 247 Cal Rptr 244.
Footnote 59. Park v District of Columbia Alcoholic Beverage Control Bd. (Dist Col App)
555 A2d 1029; Ridgewood Properties, Inc. v Department of Community Affairs (Fla)
562 So 2d 322, 15 FLW S 169; Abrahamson v Department of Professional Regulation
(1st Dist) 210 Ill App 3d 354, 154 Ill Dec 870, 568 NE2d 1319, app gr 141 Ill 2d 535,
162 Ill Dec 481, 580 NE2d 107 and revd on other grounds 153 Ill 2d 76, 180 Ill Dec 34,
606 NE2d 1111; Van Fossen v Board of Governors, etc., 228 Neb 579, 423 NW2d 458;
Seven South Main Street, Inc. v Seaboyer (3d Dept) 57 App Div 2d 1031, 395 NYS2d
257; Smith v Mount, 45 Wash App 623, 726 P2d 474, 84 ALR4th 627, review den 107
Wash 2d 1016.
A doctor was not denied due process during disciplinary hearings because the regulatory
section of the Attorney General's office served as legal advisors for both some inquiry
disciplinary panels and some hearing disciplinary panels; the relationship between the
Attorney General's office and the state board of medical examiners was not so great to
undermine the appearance of the court's impartiality. People ex rel. Woodard v Brown
(Colo App) 770 P2d 1373, cert den (Colo) 783 P2d 1223.

Footnote 61. Grolier, Inc. v Federal Trade Com. (CA9) 615 F2d 1215, 1980-1 CCH
Trade Cases ¶ 63153, 53 ALR Fed 711, appeal after remand (CA9) 699 F2d 983,
235 (former attorney-advisor to commission member within prohibition).
The person challenging the adjudicator under the federal Act has the burden of showing
that some past involvement has acquainted the adjudicator with ex parte information or
engendered in the adjudicator an unjudgelike "will to win." Utica Packing Co. v Block
(CA6 Mich) 781 F2d 71.
As to ex parte contacts, generally, see § 318.
An agency complies with this requirement if its prosecutors and administrative law
judges report to different supervisors. Clearfield Cheese Co. v United States (WD Mo)
308 F Supp 1072.
Footnote 63. Wilson v Folsom (DC ND) 151 F Supp 195.

Footnote 64. International Paper Co. v Federal Power Com. (CA2) 438 F2d 1349, 38
OGR 495, cert den 404 US 827, 30 L Ed 2d 56, 92 S Ct 61; Democrat Printing Co. v
FCC, 91 US App DC 72, 202 F2d 298.
§ 314 --Limitation to adjudicatory proceedings
View Entire Section

The provisions of the Administrative Procedure Act relating to separation of

prosecutorial and adjudicatory functions 65 apply only to persons presiding over
adjudicatory proceedings. 66 This rule does not govern persons presiding over
investigations, 67 rulemaking, 68 or nonbinding attempts at conciliation. 69
Footnotes
Footnote 66. Hoffmann–La Roche, Inc. v Kleindienst (CA3) 478 F2d 1; Marketing
Assistance Program, Inc. v Bergland, 183 US App DC 357, 562 F2d 1305.

Footnote 67. Federal Trade Com. v Hallmark, Inc. (CA7 Ill) 265 F2d 433.
Footnote 68. Hoffmann–La Roche, Inc. v Kleindienst (CA3) 478 F2d 1; Willapoint
Oysters, Inc. v Ewing (CA9) 174 F2d 676, cert den 338 US 860, 94 L Ed 527, 70 S Ct
101, reh den 339 US 945, 94 L Ed 1360, 70 S Ct 793; Environmental Defense Fund v
EPA, 194 US App DC 143, 598 F2d 62, 12 Envt Rep Cas 1353, 8 ELR 20765.
§ 315 --Other exceptions
View Entire Section

The federal Administrative Procedure Act provides that the provisions relating to

separation of functions do not apply in three particular circumstances: in determinations
of applications for initial licenses; 70 to proceedings involving the validity or
application of rates, facilities, or practices of public utilities or carriers; 71 and to the
agency or member or members of the body comprising the agency. 72 The exception
relating to the agency or members of the body comprising the agency has spawned the
most litigation, but is justified on the basis that members of the body comprising the
agency are responsible for all staff functions. 73 Accordingly, the combination of
investigative and adjudicative functions by agency members does not constitute a
violation of the Administrative Procedure Act or of due process of law. 74 However,
notwithstanding the exception in the Administrative Procedure Act for members of the
agency, due process may still mandate that members of an agency not combine
investigatory and adjudicatory functions when the combination poses a risk of actual bias
or prejudgment. 75
The Administrative Procedure Act authorizes the continuance of the use of statutory
boards or presiding officers designated in regulatory statutes, who are not members of the
agency or administrative law judges. 76 However, this "savings clause" does not
necessarily overcome the provision of the Administrative Procedure Act providing for
separation of functions, if the regulatory statute does not indicate to the contrary. 77 If a
regulatory statute establishes a procedure independent of that established by the
Administrative Procedure Act, and clearly provides that one officer shall have both
investigatory and adjudicatory functions, the provisions of that act control and the
separation of functions provisions of the Administrative Procedure Act are not
applicable. 78
Footnotes
Footnote 70. 5 USCS § 554(d)(A).
Footnote 71. 5 USCS § 554(d)(B).
An inquiry into whether rate increases are just and reasonable falls within this category.
International Tel. & Tel. Corp. v American Tel. & Tel. Co. (SD NY) 444 F Supp 1148,
Footnote 72. 5 USCS § 554(d)(C).

Footnote 73. San Francisco Mining Exchange v SEC (CA9) 378 F2d 162.

There is nothing in the Administrative Procedure Act which prevents the commissioners
of an agency from reviewing a staff report before authorizing the issuance of a complaint,
or even announcing to the press that it has found probable cause that a violation has

occurred. FTC v Cinderella Career & Finishing Schools, Inc., 131 US App DC 331, 404
F2d 1308, 1968 CCH Trade Cases ¶ 72385; San Francisco Mining Exchange v SEC
(CA9) 378 F2d 162.
Footnote 75. Porter County Chapter of Izaak Walton League, Inc. v Nuclear Regulatory
Com., 196 US App DC 456, 606 F2d 1363, 9 ELR 20626 (criticized on other grounds by
Gallagher & Ascher Co. v Simon (CA7 Ill) 687 F2d 1067, 66 ALR Fed 264); Amos
Treat & Co. v SEC, 113 US App DC 100, 306 F2d 260.
Footnote 77. Twigger v Schultz (CA3) 484 F2d 856.
Footnote 78. Marcello v Bonds, 349 US 302, 99 L Ed 1107, 75 S Ct 757, reh den 350
US 856, 100 L Ed 761, 76 S Ct 38, later proceeding (CA5 La) 803 F2d 851.
§ 316 Disqualification for bias
View Entire Section

Go to Supplement
Due process entitles an individual in an administrative proceeding to a fair hearing before

an impartial tribunal, and a biased hearing officer who conducts a hearing unfairly
deprives the litigant of this impartiality. 79 There is a presumption that the officers
conducting a hearing and the members of a board behave honestly and fairly in the
conduct of the hearings and in the decision-making process; however, absent some
showing of personal or financial interest on the part of the hearing officer or evidence of
misconduct on the officer's part, this presumption is not overcome. 80
The administrative procedure acts provide that the presiding officer or employee in an
administrative proceeding is subject to disqualification due to bias. 81 An
administrative officer can be disqualified for bias if the officer has prejudged a case 82
or labors under a personal ill will toward a party. 83 The same common-law rules of
disqualification for conflict of interest that apply to judges also apply to administrative
tribunals; 84 thus, a charge of bias against a person presiding over an administrative
proceeding generally cannot be based on improper rulings; 85 the denial of a
continuance; 86 previous participation in prior proceedings in the same case 87 or in
related matters, such as a court action for a preliminary injunction pending agency
proceedings; 88 defending the agency's decision before reviewing courts; 89 signing
documents; 90 stating an opinion as to the general legality of a practice, without
prejudging a particular case; 91 discussing with the press the contents of a
complaint in a particular case; 92 commenting on the attitude 93 or qualities 94 of
witnesses, or actively participating in the questioning of witnesses, 95 so long as in
taking any of these actions the hearing officer does not encroach on the prosecutorial
function to an extent that the prohibition on commingling of powers is violated. 96
 Observation: Unlike the rule relating to separation of functions, the rule

disqualifying a hearing officer for prejudice also applies to members of the agency. 97
§ 316 ----Disqualification for bias [SUPPLEMENT]
Practice Aids: Defining and addressing ALJ bias and unfitness in the social security
system, 27 Clearinghouse R 1460 (1994).
Case authorities:
Director of Office of Thrift Supervision, which heard charges against petitioner, banned
him from banking industry, and directed him to pay $36 million in restitution, was not
required to recuse himself from case where petitioner's allegation of bias was not
accompanied by timely and sufficient affidavit stating grounds for recusal; moreover,
although Director's public statements were "very disturbing" in light of fact that, when
made, he had final authority over petitioner's case, Director ultimately did not have role
in outcome of case, which was conducted by administrative law judge, and final order
was issued by Director's successor. Keating v Office of Thrift Supervision (1995, CA9)
Footnotes
Footnote 79. Roach v National Transp. Safety Bd. (CA10) 804 F2d 1147, cert den 486
US 1006, 100 L Ed 2d 195, 108 S Ct 1732; State ex rel. Kalt v Board of Fire & Police
Comrs. (App) 145 Wis 2d 504, 427 NW2d 408.
Footnote 80. United Cement Co. v Safe Air for Environment, Inc. (Miss) 558 So 2d 840.
Model State Administrative Procedure Act (1981) § 4-202(b).
Footnote 82. Helena Laboratories Corp. v NLRB (CA5) 557 F2d 1183, 96 BNA LRRM
2101, 82 CCH LC ¶ 10086, later proceeding 228 NLRB 294, 96 BNA LRRM 1369,
1976-77 CCH NLRB ¶ 17920; Cinderella Career & Finishing Schools, Inc. v FTC, 138
US App DC 152, 425 F2d 583, 1970 CCH Trade Cases ¶ 73114, 8 ALR Fed 283; Center
for United Labor Action, 209 NLRB 814, 85 BNA LRRM 1485, 1974 CCH NLRB ¶
26337, supp op 219 NLRB 873, 90 BNA LRRM 1004, 1974-75 CCH NLRB ¶ 16069.
375 US 943, 11 L Ed 2d 274, 84 S Ct 350.

Fed 400.
Footnote 84. Hill v Department of Labor & Industries, 90 Wash 2d 276, 580 P2d 636.
Footnote 85. McLaughlin v Union Oil Co. (CA7) 869 F2d 1039, 13 BNA OSHC 2033,

1989 CCH OSHD ¶ 28453, on remand (OSHRC) 13 BNA OSHC 2165, 1989 CCH
OSHD ¶ 28511; Donnelly Garment Co. v NLRB (CA8) 123 F2d 215, 9 BNA LRRM
590, 5 CCH LC ¶ 60754.
Footnote 86. Colucci v Carpenter (1968, DC NY) 25 AdL2d 287.
Footnote 87. Kennedy, Cabot & Co. (1970) SEC File No. 3-326, 26 AdL2d 532.
Footnote 88. Susquehanna Corp. (1970, SEC) 27 AdL2d 291; Pepsico, Inc. (1973) FTC
Docket No. 8903, 33 AdL2d 493.
Footnote 89. Exxon Corp. (1975) FTC Docket No. 8934, 36 AdL2d 934.
Footnote 90. Converse v Udall (DC Or) 262 F Supp 583, affd (CA9 Or) 399 F2d 616, 5
ALR Fed 553, cert den 393 US 1025, 21 L Ed 2d 569, 89 S Ct 635.
334 US 839, 92 L Ed 1764, 68 S Ct 1492; Skelly Oil Co. v Federal Power Com. (CA10)
375 F2d 6, 26 OGR 237, affd in part and revd in part on other grounds 390 US 747, 20
L Ed 2d 312, 88 S Ct 1344, 28 OGR 689, reh den 392 US 917, 20 L Ed 2d 1379, 88 S
Ct 2050.
Footnote 92. Kennecott Copper Corp. v FTC (CA10) 467 F2d 67, 1972 CCH Trade
Cases ¶ 74157, cert den 416 US 909, 40 L Ed 2d 114, 94 S Ct 1617, reh den 416 US
963, 40 L Ed 2d 314, 94 S Ct 1983 and (criticized on other grounds by Emhart Corp. v
USM Corp. (CA1 Mass) 527 F2d 177, 1975-2 CCH Trade Cases ¶ 60598).
Footnote 93. Donnelly Garment Co. v NLRB (CA8) 123 F2d 215, 9 BNA LRRM 590, 5
CCH LC ¶ 60754.
Footnote 94. Chaney Creek Coal Corp. v Federal Mine Safety & Health Review Com.,
275 US App DC 306, 866 F2d 1424, 1989 CCH OSHD ¶ 28415, on remand (FMSHRC)
1990 CCH OSHD ¶ 28865, motion gr (FMSHRC) 1990 CCH OSHD ¶ 28958.
Footnote 95. Leitman v McAusland (CA4 Va) 934 F2d 46, 37 CCF ¶ 76107; Eastern
Detective Academy, Inc. (1971) FTC Docket No. 8793, 29 AdL2d 124; Old Ben Coal
Co. (1975) 82 ID 277, 37 AdL2d 632; Scheble v Missouri Clean Water Com. (Mo App)
734 SW2d 541.
Footnote 96. As to the rule against combining the prosecutorial and adjudicatory
functions, see § 313.
Footnote 97. American Cyanamid Co. v Federal Trade Com. (CA6) 363 F2d 757, 150
USPQ 135, 1966 CCH Trade Cases ¶ 71807, appeal after remand (CA6) 401 F2d 574,
159 USPQ 193, 1968 CCH Trade Cases ¶ 72580, cert den 394 US 920, 22 L Ed 2d 453,
89 S Ct 1195, 161 USPQ 832.
Annotation: Disqualification of Federal Trade Commission or members thereof, 8

ALR Fed 300.

§ 317 --Procedure
View Entire Section

The federal Administrative Procedure Act provides that a presiding or participating

employee of an agency may at any time disqualify himself or herself. 98 An
administrative law judge's request to be relieved from further participation should be
honored if the judge believes that his or her impartiality might be affected by a charge
leveled by a party against the judge, even though he or she believes that the charge is
groundless. 99
A party has the right to file in good faith a timely and sufficient affidavit of personal bias
or other ground for disqualification of a presiding or participating employee. 1 Such
an affidavit must be timely and sufficient, 2 and a party may waive its objection if the
party withholds its affidavit until an adverse order is entered. 3 However, the
failure to raise such allegations of bias at the administrative level does not preclude later
constitutional challenge where the challenge is not to the prejudices of an individual
judge but to administrative policies which created agency-wide bias or lack of
impartiality on the part of administrative law judges. 4
Upon the filing of a timely and sufficient affidavit, the agency must determine the matter
as part of the record and decision of the case. 5 Generally, the matter of disqualification
is to be primarily determined by the individual being challenged, 6 but the final decision
to either grant or deny the motion is to be made by the agency as a whole, 7 and an
agency can receive evidence of bias and prejudice on the part of one of its members. 8
If partiality appears, and a disqualification request was improperly rejected, the hearing
officer's report generally cannot stand, 9 and the administrative decision must be
reversed. 10
 Caution: If the reviewing court finds a party's allegations of the judge's bias to be
frivolous and dishonestly presented, the court may sanction the party and direct it to
pay the agency's attorneys' fees incurred in defending the allegations. 11
Footnotes
Footnote 99. NLRB v Dixie Shirt Co. (CA4) 176 F2d 969, 24 BNA LRRM 2561, 17
CCH LC ¶ 65360.
Forms: Notice of objections–To hearing examiner or member of administrative

board–Existence of personal or pecuniary interest in matter involved in proceeding.

–Bias toward party objecting. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law,
Form 119.
–Relationship (by blood or marriage) to interested person. 1A Am Jur Pl & Pr Forms

–Issue involved in hearing prejudged. 1A Am Jur Pl & Pr Forms (Rev),

Administrative Law, Form 121; 1A Federal Procedural Forms, L Ed § 2:137.
Footnote 3. Pomprowitz v United States (DC Wis) 119 F Supp 824, affd 348 US 803, 99
L Ed 634, 75 S Ct 42, reh den 348 US 889, 99 L Ed 699, 75 S Ct 203; Safeway Stores,
Inc. v Federal Trade Com. (CA9) 366 F2d 795, 1966 CCH Trade Cases ¶ 71891, cert den
386 US 932, 17 L Ed 2d 805, 87 S Ct 954; Marcus v Director, Office of Workers'
Compensation Programs, U. S. Dept. of Labor, 179 US App DC 89, 548 F2d 1044.
Footnote 4. Stieberger v Heckler (SD NY) 615 F Supp 1315, vacated on other grounds
(CA2 NY) 801 F2d 29, later proceeding (SD NY) 738 F Supp 716, CCH Unemployment
Ins Rep ¶ 15416A, later proceeding (SD NY) 792 F Supp 1376, 38 Soc Sec Rep Serv
119, later proceeding (SD NY) 801 F Supp 1079 and (superseded by statute on other
grounds as stated in Odorizzi v Sullivan (ED NY) 1993 US Dist LEXIS 18831) and
(among conflicting authorities on other grounds noted in Ayuda, Inc. v Thornburgh, 279
US App DC 252, 880 F2d 1325, 50 CCH EPD ¶ 39174).
Footnote 6. Hearst Corp. (1972, FTC) 30 AdL2d 1127.
Footnote 7. Standard Oil Co. of California (1971) FTC Docket No. 8827, 29 AdL2d 339.
Footnote 8. Federal Home Loan Bank Board v Long Beach Federal Sav. & Loan Asso.
(CA9 Cal) 295 F2d 403.
Footnote 9. NLRB v National Paper Co. (CA5) 216 F2d 859, 35 BNA LRRM 2117, 27
CCH LC ¶ 68811.
Footnote 10. NLRB v Phelps (CA5) 136 F2d 562, 12 BNA LRRM 793, 7 CCH LC ¶
61655.
Footnote 11. McLaughlin v Union Oil Co. (CA7) 869 F2d 1039, 13 BNA OSHC 2033,
1989 CCH OSHD ¶ 28453, on remand (OSHRC) 13 BNA OSHC 2165, 1989 CCH
OSHD ¶ 28511.
§ 318 Ex parte contacts
View Entire Section

The 1981 Model State Administrative Procedure Act prohibits ex parte communication
by a presiding officer in an administrative proceeding, and provides for the
disqualification of a presiding officer if necessary to eliminate the effect of an ex parte
communication. 12 Similarly, the federal Administrative Procedure Act provides that
except to the extent required for the disposition of ex parte matters as authorized by law,
an officer presiding at an adjudicatory hearing may not consult a person or party on a fact
in issue, unless on notice and opportunity for all parties to participate. 13 The 1961
Model State Administrative Procedure Act tracks the language of the federal Act except
that it additionally prohibits ex parte communication between an officer and the
representative of a party. 14 The provisions of the Government in the Sunshine Act
relating to ex parte contacts with agency decisionmakers also apply to formal federal
adjudicatory proceedings. 15
A court will not reverse an agency's decision because of improper ex parte contacts
without a showing that the complaining party suffered prejudice from such contacts; the
court must consider whether as a result the agency's decision-making process was
irrevocably tainted so as to make the ultimate judgment unfair, either to the innocent
party or to the public interest that the agency was obliged to protect. In making such
determination, the court may consider the gravity of ex parte communications, whether
the contacts may have influenced the agency's ultimate decision, whether the party
making improper contacts benefited from the decision, and other factors. 16 Once a
party seeking relief has demonstrated that a violation of a statute prohibiting ex parte
communications in a contested case has occurred, a presumption of prejudice arises;
although this presumption is rebuttable, the burden shifts to the agency to prove that no
prejudice has resulted. 17
Footnotes
Annotation: Propriety of ex parte communication made in connection with

administrative proceeding by interested party or by member or employee of agency (5
USCS § 557(d)(1)), 58 ALR Fed 834.
Generally, administrative bodies should not proceed ex parte without notice to all parties.
Taylor v Franzen (5th Dist) 93 Ill App 3d 758, 48 Ill Dec 840, 417 NE2d 242, supp op
(5th Dist) 93 Ill App 3d 1152, 51 Ill Dec 645, 420 NE2d 1203.
Ex parte communications to a commissioner of insurance by a staff specialist who was

assigned to assist the commissioner did not deny the insurer of due process where the
staff specialist did not represent either party to the hearing, but was merely assisting the
commissioner. Nationwide Mut. Ins. Co. v Insurance Comr., 67 Md App 727, 509 A2d
719, cert den 307 Md 433, 514 A2d 1211.

Footnote 15. §§ 319, 320.
Footnote 16. E & E Hauling, Inc. v Pollution Control Bd. (2d Dist) 116 Ill App 3d 586,
71 Ill Dec 587, 451 NE2d 555 (criticized on other grounds by Waste Management of
Illinois, Inc. v Illinois Pollution Control Bd. (3d Dist) 122 Ill App 3d 639, 77 Ill Dec 919,
461 NE2d 542) and affd 107 Ill 2d 33, 89 Ill Dec 821, 481 NE2d 664.
A state pollution control board's prior remand of a case to a county board, which required
that ex parte contacts of the county board members with opponents to the city's proposed
landfill site be placed on the record and that certain county board members recuse
themselves from voting, removed the danger of prejudice so that the state board properly
decided that the county board hearing on the city's application for landfill site approval
was fundamentally fair. Rockford v County of Winnebago (2d Dist) 186 Ill App 3d 303,
134 Ill Dec 244, 542 NE2d 423, app den (Ill) 139 Ill Dec 511, 548 NE2d 1067.
Material error occurs when a party not notified of ex parte communication is prejudiced
by an inability to rebut facts presented in the communication and where improper
influence upon decision making appears with reasonable certainty. Seebach v Public
Service Com. (App) 97 Wis 2d 712, 295 NW2d 753.
Footnote 17. Henderson v Department of Motor Vehicles, 202 Conn 453, 521 A2d 1040.
§ 319 --Government in the Sunshine Act
View Entire Section

The Government in the Sunshine Act contains prohibitions on ex parte contacts with
administrative officials in "on the record" proceedings before agencies, including
adjudicatory proceedings and rulemaking which must be made on the record after an
opportunity for a hearing. 18 The Act is not directly applicable to ex parte contacts
during the course of "notice and comment" rulemaking, 19 although such contacts are
not encouraged and might lead to a violation of the rulemaking requirements of the Act.
20
The Act bars ex parte communications only if they are "relevant to the merits of the
proceeding" before the agency. 21 Other communications, including meetings to
facilitate settlement, inquiries into the procedural status of the case, and general
background discussions, are not prohibited, so long as such informal contacts do not
frustrate judicial review or raise serious questions of fairness. 22
The statute governs ex parte contacts between an interested person outside the agency
and members of the body comprising the agency, administrative law judges, and other
employees who are or may reasonably be expected to be involved in the decisional
process. 23 The statutory language should be read broadly to include anyone who was
involved in the decisional process but is no longer an agency employee or has recused
himself or herself from further involvement. 24 The Act may even prohibit ex parte
contacts with consultants, where consultants are considered part-time employees of the
agency. 25
The Act works both ways–neither the outside party 26 nor the agency member or
employee 27 may make an improper communication or cause one to be made.
An agency may designate the time when the above prohibitions will begin to apply in any
proceeding. 28 However, the prohibitions must apply at least from the time when a
proceeding is noticed for hearing, unless the person responsible for the communication
has knowledge that a proceeding will be noticed for hearing, in which case the
prohibitions apply beginning at the time of the person's acquisition of such knowledge.
29 Subsequent suspension of proceedings does not abrogate the applicability of the ex
parte rules. 30
The Government in the Sunshine Act does not constitute authority to withhold
information from Congress. 31
Footnotes
Footnote 18. 5 USCS § 557(d) (incorporating the provisions of 5 USCS §§ 556(a),

557(a)).
Annotation: Propriety of ex parte communication made in connection with

administrative proceeding by interested party or by member or employee of agency (5
USCS § 557(d)(1)), 58 ALR Fed 834.
Footnote 19. Marketing Assistance Program, Inc. v Bergland, 183 US App DC 357, 562
F2d 1305; Action for Children's Television v FCC, 183 US App DC 437, 564 F2d 458, 2
Media L R 2120, later proceeding (DC Dist Col) 546 F Supp 872, later proceeding 244
Footnote 21. 5 USCS § 557(d)(1)(A)-(B).
Footnote 22. Professional Air Traffic Controllers Organization v Federal Labor Relations
Authority, 222 US App DC 97, 685 F2d 547, 110 BNA LRRM 2676; Louisiana Assn. of
Independent Producers & Royalty Owners v FERC, 294 US App DC 243, 958 F2d 1101,
later proceeding 61 FERC ¶ 61341, 1992 FERC LEXIS 2667, later proceeding (FERC)
slip op.
Footnote 23. 5 USCS § 557(d)(1)(A)-(B).
Footnote 24. North Carolina, Environmental Policy Institute v Environmental Protection

Agency (CA4) 881 F2d 1250, 30 Envt Rep Cas 1966.
The term "interested person" is intended to be a wide, inclusive term covering any
individual or other person with an interest in the agency proceeding that is greater than
the general interest the public as a whole may have. Professional Air Traffic Controllers
Organization v Federal Labor Relations Authority, 222 US App DC 97, 685 F2d 547, 110

BNA LRRM 2676.
Footnote 25. Continental-Western Merger, Consultant's Analysis, 79-6-43, CAB Adv

Dig, June, 1979, p 38.
Footnote 26. 5 USCS § 557(d)(1)(A).
Footnote 27. 5 USCS § 557(d)(1)(B).
Footnote 28. 5 USCS § 557(d)(1)(E).
The prohibitions of the Government in the Sunshine Act do not apply before adjudication
commences. American Brands, Inc. (1970) FTC Dkt No. 8799, 27 AdL2d 501.
Footnote 29. 5 USCS § 557(d)(1)(E).

§ 320 ----Consequences of ex parte communications
View Entire Section

Under the Government in the Sunshine Act, if an improper ex parte communication

relevant to the merits of an adjudicatory administrative proceeding is made, the agency
member, administrative law judge, or other employee involved must place all written
communications and written responses, and memoranda or oral communications and oral
responses in the public record of the proceeding. 32 Upon receipt of an ex parte
communication which was knowingly made or knowingly caused to be made in violation
of the Act, an agency, administrative law judge, or other presiding officer may require a
party to show cause why his or her claim or interest in the proceeding should not be
dismissed, denied, disregarded, or otherwise adversely affected on account of the
violation. 33 In deciding to issue the order to show cause, the agency member or
employee must consider the interest of justice and the policy of the underlying statutes.
34 An agency can consider a violation of the Act sufficient grounds for a decision
adverse to the party who has knowingly committed the violation or knowingly caused it
to occur. 35
The existence of ex parte contacts can also be considered on judicial review of agency
action, but do not necessarily void an agency decision. 36 Rather, agency proceedings
that have been blemished by ex parte communications may be voidable. 37 Agency
action may be invalidated if such contacts irrevocably tainted the agency's
decisionmaking process so as to make the ultimate judgment of the agency unfair, either
to an innocent party or to the public interest the agency was obliged to protect. 38

Footnotes
Footnote 32. 5 USCS § 557(d)(1)(C).
Footnote 33. 5 USCS § 557(d)(1)(D).
Footnote 34. 5 USCS § 557(d)(1)(D).
Authority, 222 US App DC 97, 685 F2d 547, 110 BNA LRRM 2676.
As to judicial review of administrative action, see §§ 420 et seq.
Authority, 222 US App DC 97, 685 F2d 547, 110 BNA LRRM 2676.
Footnote 38. United States Lines, Inc. v Federal Maritime Com., 189 US App DC 361,
584 F2d 519, 1978-2 CCH Trade Cases ¶ 62158 (criticized on other grounds by Boston
Shipping Asso. v Federal Maritime Com. (CA1) 706 F2d 1231, 97 CCH LC ¶ 10098,
1984 AMC 1351); Professional Air Traffic Controllers Organization v Federal Labor
Relations Authority, 222 US App DC 97, 685 F2d 547, 110 BNA LRRM 2676.
5. Representation by Counsel [321-326]
§ 321 Right to counsel, generally
View Entire Section

Go to Supplement
The Sixth Amendment provision relating to the right to be represented by counsel in

criminal cases does not apply to administrative proceedings. 39 Nor does the due
process clause of the Fifth Amendment inexorably mandate the right to be represented by
counsel in administrative proceedings, 40 except where a hearing is required by due
process. 41 However, the federal Administrative Procedure Act provides that a
person compelled to appear in person before an agency or representative of an agency is
entitled to be accompanied, represented, and advised by counsel or, if permitted, by
another qualified representative. 42 In addition, an agency may not systematically deny
a witness' counsel the assistance of a technical expert in agency proceedings where the
subject matter is beyond the counsel's expertise. 43
The Model State Administrative Procedure Act provides that any party may be advised
and represented at the party's own expense by counsel, or if permitted by law, other
representative. 44
 Practice guide: Once a party chooses to be represented by counsel in an action or
proceeding, whether administrative or judicial, the attorney is deemed to act as the
party's agent in all respects relevant to the proceeding; thus any documents, particularly
those purporting to have legal effect on the proceeding, should be served on the
attorney the party has chosen to handle the matter on his or her behalf. 45
§ 321 ----Right to counsel, generally [SUPPLEMENT]
Case authorities:
ALJ abused his discretion when, after excluding employer's representative from hearing
on alleged violations of Occupational Safety and Health Act (29 USCS §§ 651 et seq.),
he did not give employer opportunity to obtain alternative representation, since such is
required by 29 CFR § 2200.104(b), and ALJ effectively precluded employer from cross-
examining Secretary of Labor's witnesses and presenting its own evidence, which
violated Administrative Procedure Act (5 USCS § 556(d)). Secretary of Labor v
Talasila, Inc. (1996, OSHRC) 17 BNA OSHC 1550, 1996 CCH OSHD ¶ 30980.
Footnotes
Footnote 39. Ex parte Chin Loy You (DC Mass) 223 F 833; Jeung Bow v United States
(CA2 NY) 228 F 868; United States ex rel. Ivanow v Greenawalt (DC Pa) 213 F 901;
Suess v Pugh (ND W Va) 245 F Supp 661; Brownlow v Miers (CA5 Ala) 28 F2d 653;
Father & Sons Lumber & Bldg. Supplies, Inc. v NLRB (CA6) 931 F2d 1093, 137 BNA
LRRM 2561, 118 CCH LC ¶ 10697; Nickerson v United States (CA10 Kan) 391 F2d
760, cert den 392 US 907, 20 L Ed 2d 1366, 88 S Ct 2061; United States v Capson
(CA10 Utah) 347 F2d 959, cert den 382 US 911, 15 L Ed 2d 163, 86 S Ct 254; Martin
v United States Board of Parole (DC Dist Col) 199 F Supp 542; Puleo v Department of
Revenue (4th Dist) 117 Ill App 3d 260, 72 Ill Dec 743, 453 NE2d 48; Prokopiw v
Commissioner of Education (3d Dept) 149 App Div 2d 874, 540 NYS2d 562, app dismd
without op 75 NY2d 809, 552 NYS2d 111, 551 NE2d 604.

Comment Note.–Federal Constitution as guaranteeing assistance of counsel at

administrative proceedings–federal cases, 1 L Ed 2d 1865.
Footnote 40. Madera v Board of Education (CA2 NY) 386 F2d 778, cert den 390 US
1028, 20 L Ed 2d 284, 88 S Ct 1416; Father & Sons Lumber & Bldg. Supplies, Inc. v
NLRB (CA6) 931 F2d 1093, 137 BNA LRRM 2561, 118 CCH LC ¶ 10697; Federal
Communications Com. v Schreiber (CA9 Cal) 329 F2d 517, mod on other grounds 381
US 279, 14 L Ed 2d 383, 85 S Ct 1459; Puleo v Department of Revenue (4th Dist) 117
Footnote 41. Goldberg v Kelly, 397 US 254, 25 L Ed 2d 287, 90 S Ct 1011 (criticized

on other grounds by Mathews v Eldridge, 424 US 319, 47 L Ed 2d 18, 96 S Ct 893, 41
Cal Comp Cas 920) as stated in High Horizons Dev. Co. v State, DOT, 120 NJ 40, 575

A2d 1360.
As to when a hearing is mandated by due process, see § 294.
Where a party is served with a subpoena requiring the party to appear before an agency to
produce documents, the party has a right to counsel at the production of the documents,
but this right to counsel does not extend to any subsequent examination of the documents
by the agency. United States v McPhaul (WD NC) 617 F Supp 58, 86-1 USTC ¶ 9134,
56 AFTR 2d 85-6286, dismd without op (CA4 NC) 786 F2d 1158.
Footnote 43. SEC v Whitman (DC Dist Col) 613 F Supp 48, CCH Fed Secur L Rep ¶
92061, reconsideration den (DC Dist Col) 625 F Supp 96, CCH Fed Secur L Rep ¶ 92338
(SEC investigatory proceedings).
Footnote 45. Bianca v Frank, 43 NY2d 168, 401 NYS2d 29, 371 NE2d 792.
§ 322 Qualifications for appearance before agency
View Entire Section

A statutory grant of power to prescribe rules of practice and procedure impliedly

authorizes a quasi-judicial board or commission to prescribe rules governing the
admission of persons to practice before it, 46 even though statutes creating other
administrative agencies make express provision for power to regulate admission of
attorneys to practice. 47
Attorneys who are admitted to the bar of the highest court of a state, commonwealth, or
the District of Columbia may appear before administrative agencies; a similar provision
permits certified public accountants to represent others before the Internal Revenue
Service of the Treasury Department. 48 The Administrative Procedure Act prohibits
agencies from erecting their own supplemental admission requirements for such duly
admitted members of a state bar. 49 In addition, members of the reserves or National
Guard may practice before an agency. 50
While the Administrative Procedure Act does not require that an agency permit or
prohibit lay representation, 51 it does recognize an agency's power to admit nonlawyers
by stating that a person may be represented by a qualified representative other than an
attorney, if the agency so permits. 52
An administrative agency has the power to suspend or exclude attorneys failing to

maintain the qualifications of those permitted to practice before it. 53 A citizen of the
United States who shows that he or she is within the class of those entitled to be admitted
to practice before the agency should not be rejected upon charges of his or her unfitness
without having an opportunity by notice for hearing and answer sufficient to constitute
due process of law. 54
Footnotes
Footnote 46. Goldsmith v United States Bd. of Tax Appeals, 270 US 117, 70 L Ed 494,
46 S Ct 215, 1 USTC ¶ 164, 5 AFTR 5842.
46 S Ct 215, 1 USTC P 164, 5 AFTR 5842.
As to whether appearance before administrative agencies constitutes the practice of law,

see 7 Am Jur 2d, Attorneys at Law § 101.
Footnote 48. 5 USCS § 500(a)(2), (b).
Footnote 49. Polydoroff v Interstate Commerce Com., 249 US App DC 109, 773 F2d
372.
Footnote 51. 5 USCS §§ 500(d)(1), 555(b) provide that nothing therein grants or denies
a person who is not a lawyer the right to appear or represent others before an agency or in
an agency proceeding.
Footnote 52. Sperry v Florida, 373 US 379, 10 L Ed 2d 428, 83 S Ct 1322, 137 USPQ
578, on remand (Fla) 159 So 2d 229.
Footnote 53. Camp v Herzog (DC Dist Col) 104 F Supp 134, 29 BNA LRRM 2709, 30
BNA LRRM 2304, 21 CCH LC ¶ 66936, 21 CCH LC ¶ 66987; Harary v Blumenthal
(CA2 NY) 555 F2d 1113, 77-2 USTC P 9472, 40 AFTR 2d 77-5056, 50 ALR Fed 809.
5 USCS § 500 merely prohibits agencies from erecting their own supplemental
admission requirements for duly admitted members of state bar; the agency retains power
to discipline attorneys who practice before it, and has authority to suspend from practice
an attorney who represents conflicting interests. Polydoroff v Interstate Commerce
Com., 249 US App DC 109, 773 F2d 372.
Annotation: Disciplinary action under 31 USCS § 1026 authorizing Secretary of the

Treasury to suspend and disbar any person representing claimants from further practice
before the Treasury Department, 50 ALR Fed 817.
46 S Ct 215, 1 USTC P 164, 5 AFTR 5842.
§ 323 Appearance procedure
View Entire Section

A qualified person may represent a party before an agency upon the filing with the
agency of a written declaration that the individual is currently qualified and is authorized
to represent the particular party on whose behalf the individual acts. 55 Once such
an appearance is filed, any notice or other written communication required or permitted
to be given to a participant in a hearing must be given to the representative, in addition to
any other service specifically required by statute. 56 If a participant is represented by
more than one person, service on any one of the representatives is sufficient. 57
However, a person may be questioned during a preliminary investigation before formal
proceedings are instituted without the person's attorney being notified, notwithstanding
the general statutory requirement that notices be served on a respondent's attorney. 58
Nothing in the statutes regarding appearances by attorneys prevents an agency from

requiring a power of attorney as a condition to the settlement of a controversy involving
the payment of money. 59 In addition, attorneys must comply with any special statutes
requiring that representatives file statements of retainer. 60
Footnotes
As to appearances by certified public accountants in tax proceedings, see 20 Federal

Procedure, L Ed, Internal Revenue § 48:45.
Forms: Notice–Of general appearance. 1A Am Jur Pl & Pr Forms (Rev),

Administrative Law, Form 81; 1A Federal Procedural Forms, L Ed, Administrative
Procedure § 2:101.
–By attorney. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 81; 1A
–Special appearance. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 82;
1A Federal Procedural Forms, L Ed, Administrative Procedure § 2:103.
Footnote 58. Nai Cheng Chen v Immigration & Naturalization Service (CA1) 537 F2d
566.
Footnote 60. SEC v Morgan, Lewis & Bockius (CA3 Pa) 209 F2d 44.
§ 324 Appointed counsel or financial assistance by agency

View Entire Section
The right to counsel in an administrative proceeding does not mean that counsel must be
provided, but only that the recipient must be allowed to retain an attorney if it so desires.
61 Accordingly, the government is not required to provide appointed counsel to an
indigent appearing in an administrative proceeding. 62 Counsel will have to be
provided in a Miranda type situation where the respondent might also face criminal
charges. 63 A party's right to counsel is not abridged by the fact that counsel fees
may be limited by statute. 64
However, some agencies have permitted funding for counsel. 65
Footnotes
Footnote 61. Goldberg v Kelly, 397 US 254, 25 L Ed 2d 287, 90 S Ct 1011 (criticized

by Mathews v Eldridge, 424 US 319, 47 L Ed 2d 18, 96 S Ct 893, 41 Cal Comp Cas
920) as stated in High Horizons Dev. Co. v State, DOT, 120 NJ 40, 575 A2d 1360.

Footnote 62. United States ex rel. Obler v Kenton (DC Conn) 262 F Supp 205; United
States ex rel. Bradshaw v Parker (MD Pa) 307 F Supp 451, vacated on other grounds
(CA3 Pa) 432 F2d 1248; McGaughy v Gardner (ED La) 296 F Supp 33; Hodge v
Markley (CA7 Ind) 339 F2d 973, cert den 381 US 927, 14 L Ed 2d 685, 85 S Ct 1564;
Nees v SEC (CA9) 414 F2d 211, CCH Fed Secur L Rep ¶ 92455; Hyser v Reed, 115 US
App DC 254, 318 F2d 225, cert den 375 US 957, 11 L Ed 2d 315, 84 S Ct 446 and cert
den 375 US 957, 11 L Ed 2d 316, 84 S Ct 447; Grover v United States, 200 Ct Cl 337.
Footnote 63. Mathis v United States, 391 US 1, 20 L Ed 2d 381, 88 S Ct 1503, 68-1

USTC ¶ 9357, 21 AFTR 2d 1251 (criticized on other grounds by Illinois v Perkins, 496
US 292, 110 L Ed 2d 243, 110 S Ct 2394) as stated in People v Alls (NY) 1993 NY
LEXIS 4361.
Footnote 64. Gostovich v Valore (CA3 Pa) 257 F2d 144, cert den 359 US 916, 3 L Ed
2d 577, 79 S Ct 592.
Footnote 65. Financial Assistance to Participants in Commission Proceedings (1976,

NRC) 41 Fed Reg 50829, 41 AdL2d 305.
Funding for counsel was permitted where the agency felt it could not make a required
determination unless it extended financial assistance to a party raising the contention.
Financial Assistance to Participants in Commission Proceedings (1976, NRC) 41 Fed
Reg 50829, 41 AdL2d 305.
As to the recovery of attorneys' fees under the Equal Access to Justice Act, 5 USCS §
504, see §§ 405 et seq.
Annotation: Authority of federal agency to spend public funds to reimburse expenses
of qualified participants in its proceedings, 62 ALR Fed 849.
§ 325 Parties not represented by counsel
View Entire Section

A party can waive its right to counsel. 66 Nonrepresentation does not affect
the need to exhaust administrative remedies 67 and need not result in the granting of a
rehearing 68 or the overturning of the agency decision, even though the party could have
presented its case more effectively if it were represented by counsel, 69 so long as the
agency decision is clearly supported by the evidence. 70 However, while an
administrative law judge should not act as an advocate for an unrepresented party, 71 he
or she must take care to see that all relevant facts and circumstances, both favorable and
unfavorable to the unrepresented party, are brought out, and agency decisions may be
reversed where the hearing officer does not meet this duty. 72
Footnotes
Footnote 66. United States v Weiner (CA9 Cal) 578 F2d 757, CCH Fed Secur L Rep ¶
96541, cert den 439 US 981, 58 L Ed 2d 651, 99 S Ct 568, reh den 439 US 1135, 59 L
Ed 2d 98, 99 S Ct 1060 and (disapproved on other grounds by Ohio v Roberts, 448 US
56, 65 L Ed 2d 597, 100 S Ct 2531, 17 Ohio Ops 3d 240, 7 Fed Rules Evid Serv 1) as
stated in United States v Massa (CA8 Mo) 740 F2d 629, 16 Fed Rules Evid Serv 339,
cert den 471 US 1115, 86 L Ed 2d 258, 105 S Ct 2357 and (criticized on other grounds
by United States v Chindawongse (CA4 Md) 771 F2d 840, 19 Fed Rules Evid Serv 79)
and (criticized on other grounds by United States v Balistrieri (CA7 Wis) 779 F2d 1191)
and appeal after remand (CA8 Mo) 804 F2d 1020, appeal after remand (CA8 Mo) 854
F2d 315, cert den 488 US 973, 102 L Ed 2d 543, 109 S Ct 508 and cert den (US) 114 L
Ed 2d 462, 111 S Ct 2057; United States ex rel. Bauer v Shaughnessy (DC NY) 115 F
Supp 780.
Footnote 67. Grover v United States, 200 Ct Cl 337.
Footnote 68. Re Johnson (1971) POD Docket No. 3/59, 29 AdL2d 1042.
Footnote 69. Concrete Materials Corp. v Federal Trade Com. (CA7) 189 F2d 359; Nees v
SEC (CA9) 414 F2d 211, CCH Fed Secur L Rep ¶ 92455.
Footnote 70. Alves v Shaughnessy (DC NY) 107 F Supp 443.
Footnote 71. Air Transport Equipment, Inc., 190 NLRB 377, 77 BNA LRRM 1431, 1971
CCH NLRB ¶ 23028, enforced (CA2) 486 F2d 1394, 82 BNA LRRM 2392, 69 CCH LC
¶ 13119.

Footnote 72. Stewart v Cohen (ED NY) 309 F Supp 949; Coyle v Gardner (DC Hawaii)
298 F Supp 609.
The responsibility of a referee conducting a hearing on a claim for unemployment

compensation benefits to insure that full inquiry is made is especially important
whenever the claimant is unrepresented by an experienced advocate at a hearing. Dennis
v Employment Div., 302 Or 160, 728 P2d 12.
§ 326 Regulation of attorney conduct
View Entire Section

Agencies have the power to prescribe rules of practice providing for the admission,
discipline, and disbarment of attorneys. 73 Such power arises under an agency's general
rulemaking authority or under specific statutory grants. 74 Agencies can regulate such
matters as acceptance of fees, 75 conflicts of interest, 76 appearances by former
members of the agency, 77 and trial conduct. 78 However, an agency first must
promulgate a regulation authorizing it to discipline an attorney before it can permanently
exclude the attorney from agency proceedings, 79 and it must find that an attorney's
conduct is contemptuous and disruptive before expelling the attorney from a hearing. 80
Attorneys appearing before agencies are also subject to statutory constraints relating to
advertising, 81 fee limitations, 82 and representing a party before an agency after
representing the agency in the same matter. 83
Footnotes
Footnote 73. Touche Ross & Co. v SEC (CA2) 609 F2d 570, CCH Fed Secur L Rep ¶
96854 (criticized on other grounds by Ticor Title Ins. Co. v FTC, 259 US App DC 202,
814 F2d 731, 1987-1 CCH Trade Cases ¶ 67490); Koden v United States Dept. of Justice
(CA7 Ill) 564 F2d 228; Herman v Dulles, 92 US App DC 303, 205 F2d 715.
See also 5 USCS § 500(d)(2), relating to appearances by attorneys, which provides that
nothing therein authorizes or limits an agency's power to discipline or disbar individuals
who appear before the agency.
Footnote 74. Re Kivitz (1971, SEC) Securities Act Release No. 5163, 29 AdL2d 361.
Footnote 75. Re Koden (1976) Bd Imm App File No. A18 919 327, Chicago, 39 AdL2d
673.
Footnote 76. Toledo Edison Co. (1976) ALAB-332, 39 AdL2d 769.
Footnote 77. RKO General, Inc. (1976, FCC) 39 AdL2d 122 (former chairman's law firm
can only represent a client before an agency if the former chairman is isolated from the
case); National Talent Associates, Inc. (1977, FTC) 42 AdL2d 301 (former attorney
advisor of an agency cannot participate on the other side of the case).
See also 5 USCS § 500(d)(3), relating to appearances by attorneys, which provides that
nothing therein authorizes an individual who is a former employee of an agency to
represent a person before the agency when the representation is prohibited by statute or
regulation.
Footnote 78. Great Lakes Screw Corp. v NLRB (CA7) 409 F2d 375, 70 BNA LRRM
2769, 59 CCH LC ¶ 13305; Federal Communications Com. v Schreiber (CA9 Cal) 329
F2d 517, mod on other grounds 381 US 279, 14 L Ed 2d 383, 85 S Ct 1459.
Footnote 79. Camp v Herzog (DC Dist Col) 104 F Supp 134, 29 BNA LRRM 2709,130
BNA LRRM 2304, 21 CCH LC ¶ 66936, 21 CCH LC ¶ 66987.
Footnote 80. Great Lakes Screw Corp. v NLRB (CA7) 409 F2d 375, 70 BNA LRRM
2769, 59 CCH LC ¶ 13305.
Footnote 81. 5 USCS § 501 restricts a practitioner from using the name of a member of
Congress or an individual in the service of the United States in advertising the
practitioner's business.
6. Discovery [327-332]
§ 327 General right to discovery
View Entire Section

Go to Supplement
The right to discovery in administrative proceedings is often limited, 84 and nothing in

the constitution 85 or administrative procedure acts mandates that an agency grant
discovery. 86 Furthermore, the discovery provisions of the Federal Rules of Civil
Procedure and the Federal Rules of Criminal Procedure do not generally apply to agency
proceedings. 87 Thus, any right to discovery is grounded in the procedural rules of the
particular agency. 88 Agencies may promulgate specific discovery rules, or rules
providing that in the absence of anything to the contrary, the Federal Rules of Civil
Procedure may be followed. 89 An agency may properly refuse to grant discovery
where there are no material issues of fact in dispute for which discovery is necessary. 90
Although court-type discovery is not required in administrative proceedings, fundamental

fairness requires that a party be given the opportunity to know what evidence is offered
or considered and a chance to rebut such evidence. 91 Accordingly, a decision not to
grant discovery may result in unfairness, 92 and an agency which has promulgated
discovery rules is bound by those rules and must insure that its procedures meet due
process requirements. 93 The Model State Administrative Procedure Act provides that
the presiding officer in an administrative proceeding may issue discovery order in
accordance with the rules of civil procedure, at the request of any party or upon the
officer's own motion. 94
§ 327 ----General right to discovery [SUPPLEMENT]
Case authorities:
There is no constitutional right to discovery in proceedings before administrative

tribunal, including proceedings to discipline health care provider. Chafian v Alabama Bd.
of Chiropractic Examiners (1994, Ala App) 647 So 2d 759.
Physician's due process rights were not violated by state medical board's order that
physician's requested discovery of all records of board meetings at which physician's case
was discussed be provided at pre-hearing conference, where conference discovery was
usual practice before board, whose regulations did not provide for formal discovery.
Cooper v State Bd. of Medicine (1993, Pa Cmwlth) 623 A2d 433.
ALJ abused his discretion when he sanctioned pro se complainant's shortcomings as

litigant (she had failed to comply with ALJ's order to supplement her complaint and had
failed to respond to respondent's discovery requests) by dismissing her reparations
complaint with prejudice, since her complaint was sufficient to provide respondent notice
of nature of her claims, and her failure to respond to discovery requests was not done in
bad faith. Hall v Diversified Trading Systems, Inc., et al. (1994, CFTC) CCH Comm Fut
L Rep ¶ 26,131.
ALJ abused his discretion when he selected dismissal as sanction for pro se complainant's
failure to comply with discovery deadlines. Radden v Futures Trading Group, Inc., et al.
(1994, CFTC) CCH Comm Fut L Rep ¶ 26,281.
Footnotes
Footnote 84. Frilette v Kimberlin (CA3 Del) 508 F2d 205, 184 USPQ 266, 19 FR Serv 2d
1108, cert den 421 US 980, 44 L Ed 2d 472, 95 S Ct 1983, 185 USPQ 705.
The only statutorily authorized means of discovery in an administrative proceeding are

depositions, subpoenas duces tecum, and methods of discovery not specifically permitted
by statute or excluded; therefore, neither discovery of documents by request or motion,
nor interrogatories, are allowed. Fitzgerald v Maryland Heights (Mo App) 796 SW2d 52.
Footnote 85. NLRB v Interboro Contractors, Inc. (CA2) 432 F2d 854, 75 BNA LRRM
2459, 64 CCH LC ¶ 11235, cert den 402 US 915, 28 L Ed 2d 661, 91 S Ct 1375, 76
BNA LRRM 3027, 65 CCH LC ¶ 11671; Kenrich Petrochemicals, Inc. v NLRB (CA3)
893 F2d 1468, 133 BNA LRRM 2417, 114 CCH LC ¶ 11902, vacated, in part, on reh, en
banc (CA3) 133 BNA LRRM 2906, 115 CCH LC ¶ 10014 and enforced, on reh, en banc
(CA3) 907 F2d 400, 134 BNA LRRM 2673, 116 CCH LC ¶ 10227, cert den 498 US
981, 112 L Ed 2d 522, 111 S Ct 509, 135 BNA LRRM 3056.

Footnote 86. Kenrich Petrochemicals, Inc. v NLRB (CA3) 893 F2d 1468, 133 BNA
LRRM 2417, 114 CCH LC ¶ 11902, vacated, in part, on reh, en banc (CA3) 133 BNA
LRRM 2906, 115 CCH LC ¶ 10014 and enforced, on reh, en banc (CA3) 907 F2d 400,
134 BNA LRRM 2673, 116 CCH LC ¶ 10227, cert den 498 US 981, 112 L Ed 2d 522,
111 S Ct 509, 135 BNA LRRM 3056; Frilette v Kimberlin (CA3 Del) 508 F2d 205, 184
USPQ 266, 19 FR Serv 2d 1108, cert den 421 US 980, 44 L Ed 2d 472, 95 S Ct 1983,
185 USPQ 705.
There is no statutory authorization permitting the production of documents on motion or

by interrogatory and no due process requirement that a terminated teacher be furnished
with such materials. Hanlon v Board of Education (Mo App) 695 SW2d 930.
An administrative procedure statute does not provide for prehearing discovery

depositions by a party to an adjudication hearing. Ohio State Bd. of Pharmacy v Frantz,
51 Ohio St 3d 143, 555 NE2d 630.
Footnote 87. McClelland v Andrus, 196 US App DC 371, 606 F2d 1278.
Footnote 88. NLRB v Interboro Contractors, Inc. (CA2) 432 F2d 854, 75 BNA LRRM
BNA LRRM 3027, 65 CCH LC ¶ 11671; Frilette v Kimberlin (CA3 Del) 508 F2d 205,
184 USPQ 266, 19 FR Serv 2d 1108, cert den 421 US 980, 44 L Ed 2d 472, 95 S Ct
1983, 185 USPQ 705; McClelland v Andrus (1979) 196 US App DC 371, 606 F2d 1278.
Absent a statutory provision expressly authorizing pretrial discovery, the extent to which
a party to an administrative proceeding is entitled to discovery is determined by the rules
of a particular agency. Pet v Department of Health Services, 207 Conn 346, 542 A2d
672, later proceeding (Conn Super) 1991 Conn Super LEXIS 2499, appeal after remand
(Conn Super) 1992 Conn Super LEXIS 2173.
Annotation: Pretrial discovery in disciplinary proceedings against physician, 28

ALR3d 1440.
Footnote 89. Secretary of Labor v Reynolds Metals Co. (1975) OSHRC Docket No.
4385, 37 AdL2d 1077.
Footnote 90. Pacific Gas & Electric Co. v Federal Energy Regulatory Com. (CA9) 746
F2d 1383, later proceeding 50 FERC ¶ 61383, 1990 FERC LEXIS 581, reh den 52 FERC
¶ 61032, 1990 FERC LEXIS 1545.
Footnote 91. Interstate Commerce Com. v Louisville & N. R. Co., 227 US 88, 57 L Ed
431, 33 S Ct 185.
A physician was entitled to a prehearing examination of witnesses' statements, in a

proceeding to revoke his medical license, on a determination that such examination was
crucial to the physician's exercise of his right of cross-examination. Dragan v
Connecticut Medical Examining Bd., 24 Conn App 662, 591 A2d 150, app gr 220 Conn
901, 593 A2d 967 and affd 223 Conn 618, 613 A2d 739.
A registered nurse, whose license was sought to be revoked for prescribing medications,

was entitled to a production of copies of statements relative to the investigation of the
complaints filed against the nurse, as well as any other information in control or
possession of the licensing agency which might have been helpful in the hearing,
notwithstanding that such matter may have been outside the scope of the agency
discovery rules; the failure to provide the requested information necessitated a new
hearing. Montgomery v Department of Registration & Education (1st Dist) 146 Ill App
3d 222, 100 Ill Dec 35, 496 NE2d 1100.
In an administrative proceeding, an agency is required to disclose evidence which might

be helpful to the accused. McCabe v Department of Registration & Education (1st Dist)
90 Ill App 3d 1123, 46 Ill Dec 240, 413 NE2d 1353, cert den 454 US 838, 70 L Ed 2d
119, 102 S Ct 143.
Footnote 92. NLRB v Rex Disposables, Div. of DHJ Industries, Inc. (CA5) 494 F2d 588,
86 BNA LRRM 2495, 74 CCH LC ¶ 10061 (criticized on other grounds by G.W.
Galloway Co. v NLRB, 272 US App DC 321, 856 F2d 275, 129 BNA LRRM 2370, 109
CCH LC ¶ 10702).
Footnote 93. Grimm v Brown (ND Cal) 291 F Supp 1011, affd (CA9 Cal) 449 F2d 654;
McClelland v Andrus, 196 US App DC 371, 606 F2d 1278.
§ 328 Jencks discovery
View Entire Section

Underthe Jencks Act, statements of a witness must be provided to the defense for the
purpose of cross-examination. 95 Although both the Jencks case and the Jencks Act
are only directly applicable to criminal prosecutions, 96 many administrative agencies
have applied the Jencks doctrine, believing that compliance is required in the interests of
justice and fair play. 97 While it is not clear whether all the technical requirements
of the Jencks Act must be followed in administrative proceedings, 98 the requirement of
the Act that a statement need not be produced until after a witness has testified has been
enforced by administrative agencies. 99 The harmless error rule, which provides that
there is no error if a witness was in fact cross-examined, may also be followed. 1
 Caution: A party must bring a request for witness statements and reports explicitly
to the attention of an agency in order to preserve the point for review. 2
Footnotes
For a further discussion, see 9 Federal Procedure, L Ed, Criminal Procedure §§ 22:1131

et seq.
Footnote 96. L. G. Balfour Co. v FTC (CA7) 442 F2d 1, 169 USPQ 693, 1971 CCH
Trade Cases ¶ 73542.
Footnote 97. Fairbank v Hardin (CA9) 429 F2d 264, cert den 400 US 943, 27 L Ed 2d
247, 91 S Ct 244; Fairbank v Hardin (CA9) 429 F2d 264, cert den 400 US 943, 27 L Ed
2d 247, 91 S Ct 244; Harvey Aluminum (Inc.) v NLRB (CA9) 335 F2d 749, 56 BNA
LRRM 2982, 50 CCH LC ¶ 19179.
Some agency rules incorporate the Jencks Act; see, for example, 22 Federal Procedure, L
Ed, Labor and Labor Relations § 52:298.
Footnote 98. L. G. Balfour Co. v FTC (CA7) 442 F2d 1, 169 USPQ 693, 1971 CCH
Footnote 99. Moore v Administrator, Veterans Administration, 155 US App DC 14, 475
F2d 1283; Moore v Administrator, Veterans Administration, 155 US App DC 14, 475
F2d 1283.
Footnote 1. NLRB v Rex Disposables, Div. of DHJ Industries, Inc. (CA5) 494 F2d 588,
86 BNA LRRM 2495, 74 CCH LC ¶ 10061 (criticized on other grounds by G.W.
Galloway Co. v NLRB, 272 US App DC 321, 856 F2d 275, 129 BNA LRRM 2370, 109
CCH LC ¶ 10702).
§ 329 Discovery under Freedom of Information Act
View Entire Section

While a litigant before an agency is a member of the public entitled to obtain disclosures
under the Freedom of Information Act, the litigant's rights are neither increased nor
decreased by the mere fact that the individual is a litigant, since the Freedom of
Information Act is designed to inform the public about agency action and not to benefit
specific private litigants. 3 Accordingly, the Freedom of Information Act does not
increase discovery rights in agency proceedings and cannot be used to transfer the
adjudication of discovery disputes from the agencies to the courts. 4
Courts have been reluctant to stay agency proceedings pending the determination of a
Freedom of Information Act claim; such stays are usually denied on the grounds that a
party is obligated to pursue its administrative remedy under a particular regulatory
scheme, 5 or that a party failed to show irreparable injury in being forced to submit to
agency hearings. 6

Footnotes
Footnote 3. NLRB v Sears, Roebuck & Co., 421 US 132, 44 L Ed 2d 29, 95 S Ct 1504,
89 BNA LRRM 2001, 1 Media L R 2471, 76 CCH LC ¶ 10803.
Footnote 4. Roger J. Au & Son, Inc. v NLRB (CA3) 538 F2d 80, 92 BNA LRRM 3193,
79 CCH LC ¶ 11514; Essex Electro Engineers, Inc. (1979, DOT CAB) 79-2 CCH BCA
Dec ¶ 14158; Foster, 2 DOE ¶ 80,112; Hearst Corp. (1971) FTC Docket No. 8832, 30
AdL2d 92; J. J. Newberry Co. (1972) FTC Docket No. 8849, 30 AdL2d 816.
It is unlikely that Congress intended to overrule previously recognized limitations on

discovery in administrative actions by enacting the Freedom of Information Act, when it
could have disapproved of such limitations in an explicit amendment to the controlling
regulatory statute. Title Guarantee Co. v NLRB (CA2) 534 F2d 484, 91 BNA LRRM
2993, 78 CCH LC ¶ 11363, cert den 429 US 834, 50 L Ed 2d 99, 97 S Ct 98, 93 BNA
LRRM 2363, 79 CCH LC ¶ 11679 and (criticized on other grounds by
Charlotte-Mecklenburg Hospital Authority v Perry (CA4 NC) 571 F2d 195, 16 BNA FEP
Cas 680, 3 Media L R 1884, 15 CCH EPD ¶ 8091).

94 S Ct 1028.
Footnote 6. Sears, Roebuck & Co. v NLRB, 153 US App DC 380, 473 F2d 91, 81 BNA
LRRM 2481, 69 CCH LC ¶ 13087, cert den 415 US 950, 39 L Ed 2d 566, 94 S Ct
1474, 85 BNA LRRM 2466.
§ 330 Privileges precluding discovery of agency documents
View Entire Section

The Administrative Procedure Act provides that except as otherwise required by law,
privileges relating to procedure apply equally to agencies and persons. 7 Thus, an
agency may resist production of its files, if it can rely on certain, judicially approved
privileges, including the attorney work product privilege 8 and the qualified privilege
that protects the internal deliberations of a government agency. 9
Although one cannot force a government agency to disclose information it deems

confidential, the government has the option of holding back such information and taking
the risk of not being able to prove its case, or of producing the material and allowing it to
be subject to cross-examination. 10
Footnotes
Footnote 8. NLRB v Sears, Roebuck & Co., 421 US 132, 44 L Ed 2d 29, 95 S Ct 1504,
89 BNA LRRM 2001, 1 Media L R 2471, 76 CCH LC ¶ 10803.
Footnote 9. J. H. Rutter Rex Mfg. Co. v NLRB (CA5) 473 F2d 223, 82 BNA LRRM
2264, 70 CCH LC ¶ 13344, reh den (CA5) 472 F2d 1405 and cert den 414 US 822, 38 L
Footnote 10. Wirtz v Baldor Electric Co., 119 US App DC 122, 337 F2d 518.
§ 331 Scope of discovery
View Entire Section

Go to Supplement
The extent of discovery to which a party to an administrative proceeding is entitled is

primarily determined by the particular agency; if an agency has adopted rules providing
for discovery in its proceedings, the agency is bound by those rules and must insure that
its procedures meet due process requirements. 11 Some agencies provide a broad array
of discovery tools and permit quite sweeping discovery, 12 while discovery is quite
limited in other agencies. 13 For instance, an agency may make its public file
available to litigants. 14 However, an agency need not grant an unlimited license to
rummage through its files, 15 and may deny discovery requests into irrelevant, 16
cumulative, or immaterial matters. 17 An agency may also limit the pretrial examination
of its expert witnesses, requiring a showing of exceptional circumstances or the
impracticability of determining the information through other means. 18
§ 331 ----Scope of discovery [SUPPLEMENT]
Case authorities:
Where central issue of suit brought by Administrative Law Judges is whether pay
regulation adopted by Office of Personnel Management is contrary to its authorizing
statute, primary dispute relates to interpretation to be afforded provisions of Federal
Employees Pay Comparability Act, and interpretation will not be aided through discovery
requested by plaintiffs. Sprague v Brook (1993, ND Ill) 149 FRD 575, complaint dismd
(ND Ill) 825 F Supp 1324.
Footnotes
Footnote 11. Pacific Gas & Electric Co. v Federal Energy Regulatory Com. (CA9) 746
F2d 1383, later proceeding 50 FERC ¶ 61383, 1990 FERC LEXIS 581, reh den 52 FERC
¶ 61032, 1990 FERC LEXIS 1545 (holding that the scope of discovery may also be
limited in a pretrial conference).
As to prehearing conferences, generally, see § 333.

Footnote 12. Coca-Cola Co. (1975) FTC Docket No. 8855, 36 AdL2d 506.
Forms: Discovery motions, notices, and requests. 1A Federal Procedural Forms, L

Ed, Administrative Procedure §§ 2:111-2:119.
Footnote 13. Title Guarantee Co. v NLRB (CA2) 534 F2d 484, 91 BNA LRRM 2993, 78
CCH LC ¶ 11363, cert den 429 US 834, 50 L Ed 2d 99, 97 S Ct 98, 93 BNA LRRM
2363, 79 CCH LC ¶ 11679 and (criticized on other grounds by Charlotte-Mecklenburg
Hospital Authority v Perry (CA4 NC) 571 F2d 195, 16 BNA FEP Cas 680, 3 Media L R
1884, 15 CCH EPD ¶ 8091).
Footnote 14. Farmers Nat. Bank v Camp (DC Md) 345 F Supp 622.
Footnote 15. Sperry & Hutchinson Co. v FTC (SD NY) 256 F Supp 136, 1966 CCH
Footnote 16. Pacific Gas & Electric Co. (1976) ALAB-334, 39 AdL2d 787.
Footnote 17. Fried v United States (SD NY) 212 F Supp 886.
Footnote 18. Carl W. Olson & Sons Co. (1973, IBCA) 34 AdL2d 103.
§ 332 Discovery by agency
View Entire Section

Although agencies usually gather information in precomplaint investigations, 19 there is

nothing barring an agency from issuing a subpoena as part of the postcomplaint discovery
process. 20
Discovery requests to parties in an administrative action are subject to recognized

privileges, 21 including the trade secret privilege; however, an administrative law judge
has the power to issue protective orders to protect the interests of the party and agency.
22
Footnotes
Footnote 20. Food Fair Stores, Inc. (1974) FTC Docket No. 8935, 34 AdL2d 968.
Footnote 22. Secretary of Labor v Reynolds Metals Co. (1978) OSHRC Docket No.
4385, 43 AdL2d 951.

7. Prehearing Conferences [333, 334]
§ 333 Generally
View Entire Section

Go to Supplement
An administrative law judge has the power to hold conferences for the settlement or
simplification of the issues by the consent of the parties. 23 Reasonable notice of the
prehearing conference should be given to all parties and to all persons who have filed
written petitions to intervene in the matter. 24 The Model State Administrative
Procedure Act provides guidelines as to various procedures which may be followed in
conducting prehearing conferences. 25 In addition, an administrative law judge may use
the Manual for Complex Litigation as a guide for establishing prehearing procedures,
although the judge is not bound to accept the Manual in its entirety. 26 Pretrial
conferences may be held by telephone, television, or other electronic means so long as
each participant in the conference has an opportunity to participate in, hear, and if
possible, see the entire proceeding while it is taking place. 27
An administrative law judge is not guilty of an abuse of discretion if he or she refuses to

hold an informal conference, in the absence of a showing that a conference would have
aided the simplification of the issues and expedited the formal hearing. 28
Case authorities:
Ancillary to his authority to convene conferences for settlement of issues with consent of
parties (5 USCS § 556(c)(6)), ALJ has discretion to require settlement reports from
parties which describe their settlement negotiations, but such discretion must be
exercised in manner consistent with goals of settlement process established by CFTC's
rules of practice. In re Bilello, et al. (1994, CFTC CCH Comm Fut L Rep ¶ 26,32.
Footnotes
For a discussion of discovery under the Manual for Complex Litigation, see 10A Federal
Procedure, L Ed, Discovery and Depositions §§ 26:565 et seq.
Care should be taken not to exclude some parties from a conference call, except in cases
of dire necessity or where purely procedural matters are discussed. Puerto Rico Water
Resources Authority (1976) ALAB-313, 38 AdL2d 761.
Footnote 28. Columbia General Invest. Corp. v SEC (CA5) 265 F2d 559.
§ 334 Prehearing order
View Entire Section

At the conclusion of a prehearing conference, the administrative law judge should issue a
prehearing order incorporating the matters determined at the prehearing conference
which will govern future proceedings. 29 While the pretrial order generally should be
written, it may also be oral so long as the parties are aware of such oral order. 30
A party is denied due process if the ALJ later fails to comply with the pretrial order and
the party is prejudiced by such failure. 31
If a prehearing conference is not held, the presiding officer for the hearing may issue a
prehearing order, based on the pleadings, to regulate the conduct of the proceedings. 32
Footnotes
Pacific Molasses Co. v Federal Trade Com. (CA5) 356 F2d 386, 1966 CCH Trade Cases
¶ 71663.
Footnote 30. Pacific Gas & Electric Co. (1976) ALAB-334, 39 AdL2d 787.
Footnote 31. Pacific Molasses Co. v Federal Trade Com. (CA5) 356 F2d 386, 1966 CCH
Trade Cases ¶ 71663 (testimony of witness who was not named in pretrial order was
admitted without notice, thereby denying respondent the opportunity to prepare effective
cross-examination questions).
8. Scheduling of Hearing [335-337]

§ 335 Time and place
View Entire Section

Go to Supplement
An administrative law judge has the power to set the time and place of a hearing, 33
with due regard given to the convenience and necessity of the parties or their
representatives. 34
A hearing should be held near the respondent's residence 35 or the place where a
violation is alleged to have occurred. 36 However, the convenience of the agency should
also be taken into account. 37 An administrative agency cannot conduct a hearing
outside its jurisdiction, 38 although it may have statutory power to cause depositions to
be taken outside the jurisdiction. 39
A party does not have a right to insist that a hearing be scheduled on a specific date to
avoid inconvenience to its attorney, 40 or that a hearing be held at any particular place.
41
Presiding officers may waive unavoidable delays by the agency staff 42 and may order
that each witness' testimony be taken at one sitting. 43
§ 335 ----Time and place [SUPPLEMENT]
Case authorities:
Travel expenses are recoverable under EAJA (5 USCS § 504(b)(1)(A)); thus, cited
employer who prevailed in OSHA proceeding was entitled to recover for mileage to and
from administrative hearings and for parking fees at hearings. Ruhlin Co. (1995,
OSHRC) 17 BNA OSHC 1068, 1995 CCH OSHD ¶ 20678.
Footnotes
Footnote 33. Cella v United States (CA7) 208 F2d 783, cert den 347 US 1016, 98 L Ed
1138, 74 S Ct 864; Nichols v Council on Judicial Complaints (Okla) 615 P2d 280.
As to an administrative body's obligation to promptly decide a case, see § 378.
Forms: Notices of hearing. 1A Federal Procedural Forms, L Ed, Administrative

Procedure §§ 2:134-2:136.
Footnote 35. Jeffries v Olesen (DC Cal) 121 F Supp 463.

Footnote 36. Bethlehem Steel Corp. (1978) OSHRC Docket No. 77-2876.
Footnote 37. Burnham Trucking Co. v United States (DC Mass) 216 F Supp 561.
Footnote 39. McGarry v Industrial Com. of Utah, 64 Utah 592, 232 P 1090, 39 ALR
306.
Footnote 40. Garan, Inc. v Reynolds (ND Miss) 371 F Supp 404, 85 BNA LRRM 2460,
73 CCH LC ¶ 14366.
As to the validity of administrative proceedings conducted on a Sunday or holiday, see

73 Am Jur 2d, Sundays and Holidays §§ 122, 123.
Footnote 41. Eastern Utilities Associates v SEC (CA1) 162 F2d 385.
Footnote 42. Secretary of Labor v Rollins Outdoor Advertising, Inc. (1977, OSHRC) 40
AdL2d 822.
Footnote 43. Cella v United States (CA7) 208 F2d 783, cert den 347 US 1016, 98 L Ed
1138, 74 S Ct 864.
§ 336 Continuances, postponements, and adjournments
View Entire Section

An administrative law judge has the discretion to grant continuances, adjournments, and
postponements. 44 An administrative agency possesses broad discretion in determining
whether to grant a continuance, and a motion for continuance should be granted
whenever justice so requires. 45 However, continuances should not extend beyond a
reasonable period of time. 46 Notice of a rescheduled hearing following a continuance is
not necessary except where it may be required to prevent hardship or unfair surprise. 47
 Recommendation: It is preferable to obtain a written order stating the continued date

of a hearing, although verbal communication of the new hearing date may be sufficient.
48
Good cause must be shown before an adjournment will be granted, and adjournments
may be denied if–
–major portions of the agency's case have been conceded and the respondent does not
indicate that it has any additional testimony. 49
–counsel is engaged in other proceedings relating to the matter in controversy, if the

agency grants the respondent's request that it incorporate into the record the evidence
adduced in the other proceedings. 50
–the request for an adjournment is for time to obtain the presence of a witness, unless the
party requesting the continuance identifies the witnesses, their places of residence, when
or where they would be available, and what particular testimony they would give. 51
An administrative action may be stayed pending the resolution of a criminal proceeding,

but such a stay should be granted only if it is necessary to assure that both proceedings
will be fair. 52 However, stays will not be granted in administrative proceedings
pending resolution of Freedom of Information actions. 53
Footnotes
Footnote 44. Freight Consolidators Co-operative, Inc. v United States (SD NY) 230 F
Supp 692; Superior Oil Co. v Foote, 214 Miss 857, 59 So 2d 85, 1 OGR 735, 37 ALR2d
415, sugg of error overr 214 Miss 890, 59 So 2d 844, 1 OGR 1239, 37 ALR2d 433.
Footnote 45. FCC v WJR, Goodwill Station, Inc., 337 US 265, 93 L Ed 1353, 69 S Ct
1097; Savoy Club v Board of Supervisors (2nd Dist) 12 Cal App 3d 1034, 91 Cal Rptr
198; American Ins. Asso. v Department of Ins. (Fla App D1) 518 So 2d 1342, 13 FLW
21, review den (Fla) 528 So 2d 1181; Six-Brothers King Drive Supermarket, Inc. v
Department of Revenue (1st Dist) 192 Ill App 3d 976, 139 Ill Dec 860, 549 NE2d 586,
app den 132 Ill 2d 554, 144 Ill Dec 266, 555 NE2d 385; Sheet Metal Contractors v
Commissioner of Ins. (Iowa) 427 NW2d 859; Baker v St. Louis Smelting & Refining
Co., 145 Kan 273, 65 P2d 284, 109 ALR 591; Coats v Limbach, 47 Ohio St 3d 114, 548
NE2d 917, 106 OGR 416; State Board of Medical Education & Licensure v Williams,
172 Pa Super 448, 94 A2d 61; First Nat. Bank v Financial Institutions Board (Wyo) 616
P2d 787.
Where a hearing is much broader in scope than specified in the notice, a party will, upon
application, be entitled to a continuance of sufficient length to enable the party to prepare
a defense. Brahy v Federal Radio Com., 61 App DC 204, 59 F2d 879.
Footnote 46. Edwards v Illinois Racing Bd. (1st Dist) 187 Ill App 3d 287, 134 Ill Dec
889, 543 NE2d 172; Ohio State Racing Com. v Kash (Cuyahoga Co) 61 Ohio App 3d
256, 572 NE2d 734.
Footnote 47. Pele Defense Fund v Puna Geothermal Venture, 8 Hawaii App 203, 797 P2d
69, later proceeding 9 Hawaii App 143, 827 P2d 1149.
Footnote 48. Re Castro-Nuno (1976) Bd Imm App File A20 980 484, Los Angeles, 40
AdL2d 339.
Footnote 49. Re A- N- (1973) Bd Imm App, File A19 356 812, Buffalo, 33 AdL2d 530.
Footnote 50. NLRB v National Maritime Union (CA2) 175 F2d 686, 24 BNA LRRM
2268, 16 CCH LC ¶ 65231, cert den 338 US 954, 94 L Ed 589, 70 S Ct 492, 25 BNA
LRRM 2395, reh den 339 US 926, 94 L Ed 1348, 70 S Ct 620.
Footnote 51. Burnham Trucking Co. v United States (DC Mass) 216 F Supp 561; Freight
Consolidators Co-operative, Inc. v United States (SD NY) 230 F Supp 692; Freight

Consolidators Co-operative, Inc. v United States (SD NY) 230 F Supp 692.
Footnote 52. Brown v Idaho State Bd. of Pharmacy (App) 113 Idaho 547, 746 P2d 1006;
Amrep Corp. (1976, FTC) 39 AdL2d 991.
§ 337 Consolidation
View Entire Section

An administrative law judge has the discretion to consolidate proceedings 54 and is

not strictly bound by the rules applicable in civil and criminal judicial proceedings, but
can consolidate cases of different respondents if the judge deems such consolidation
necessary to promote administrative efficiency. 55 A discretionary order of
consolidation by an administrative agency is presumed to be valid; a challenger carries a
heavy burden of overcoming this presumption by showing unfairness in the procedure
used. 56 However, consolidation may be mandatory under certain circumstances; under
the Ashbacker doctrine, 57 competing applications requiring a comparative hearing
should be consolidated, 58 and mutually exclusive applications must be consolidated for
hearing. 59 However, an agency does have the discretion to hold separate hearings on
each application, in order to promote administrative efficiency, so long as no separate
hearing results in a final determination of comparative rights. 60
Footnotes
Footnote 54. American Trucking Asso., Inc. v United States, 326 US 77, 89 L Ed 2065,
65 S Ct 1499; National Airlines, Inc. v Civil Aeronautics Board, 129 US App DC 180,
392 F2d 504.
Forms: Stipulation and request–For consolidation of hearings. 1A Federal Procedural

Footnote 55. Re Taerghodsi (1977) Bd Imm App, File A22 369 456, Houston, 42 AdL2d
116.
Footnote 56. State ex rel. Churchill Truck Lines, Inc. v Public Service Com. (Mo App)
734 SW2d 586.
Footnote 57. Ashbacker Radio Corp. v FCC, 326 US 327, 90 L Ed 108, 66 S Ct 148.
Footnote 58. Olson v Omaha, 232 Neb 428, 441 NW2d 149 (holding that a personnel
board did not err in consolidating one police officer's appeal from a discharge decision
with a second officer's appeal despite the first officer's contention that it was known that
the second officer would place the entire blame for any wrongdoing on him and that the
results of the second officer's polygraph test was prejudicial to the first officer).
Footnote 59. Railway Express Agency, Inc. v United States (US) 7 L Ed 2d 432, 82 S Ct
466 (holding that mutually exclusive applications to the Interstate Commerce
Commission for authority to conduct motor common carrier operations must be
consolidated for hearing before the Commission).
Footnote 60. National Airlines, Inc. v Civil Aeronautics Board, 129 US App DC 180, 392
F2d 504.
9. Evidence and Witnesses [338-359]
a. Subpoenaing Evidence and Witnesses [338-341]
§ 338 Generally
View Entire Section

Go to Supplement
An administrative agency has no inherent authority to issue subpoenas but it may be

given the statutory authority to do so. 61 This statutory subpoena power is subject to
rules of the agency and the limitations on the powers of an agency. 62
There are many instances where a subpoena cannot be issued because the pertinent
regulatory statute does not give an agency subpoena power. 63 In such cases, a party
who wishes to obtain the presence of a witness must first make a good faith effort to
produce the witness. 64 If this attempt is unsuccessful, or if the party was justified in
failing to make such an attempt, the party may then make a proper demand on the agency
to produce the witness, 65 and the agency should produce the witness, if the witness is
under its control. 66
In order to protect its process, an agency may order a respondent to preserve its records
until such time as it can be determined whether the records are relevant and should be
produced at the hearing. 67
Practice Aids: Stipulation–For taking deposition of witness absent during

administrative hearing. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 143.
Petition or application–By administrative agency–Seeking order to show cause why

documentary evidence should not be produced–Failure of respondent to obey subpoena.
1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 149.
Case authorities:
In administrative action in which power company sought permit to build hydroelectric
power plant on stream, administrative board's consultation of outside source after
contested case hearing had concluded was improper but violation was cured by
subsequent rehearing proceeding, where company was given opportunity to cross-
examine outside source and to present rebuttal evidence. Mauna Kea Power Co. v Board
of Land & Natural Resources (1994) 76 Hawaii 259, 874 P2d 1084.
Footnotes
Footnote 61. Tron v Prince George's County, 69 Md App 256, 517 A2d 113; Division of
Employment Secur. v Ferger (Mo App) 781 SW2d 568.
5 USCS §§ 555(d), 556(c)(2) provide that agency subpoenas "authorized by law" may
be issued.
Model State Administrative Procedure Act (1981) § 4-210 provides that the presiding
officer at an administrative proceeding may issue subpoenas in accordance with the rules
of civil procedure.
A defense contract audit agency had the power to subpoena a defense contractor's time
sheets, expense vouchers, invoices for materials, travel expenses and other objective cost
data in order to verify the general and administrative overhead costs. United States v
Newport News Shipbuilding & Dry Dock Co. (CA4 Va) 837 F2d 162, 34 CCF ¶ 75422,
later proceeding (ASBCA) 90-2 BCA ¶ 22859.
Subpoena power not expressly conferred on an administrative agency or official will not
be implied unless it is essential to the fulfillment of the objectives of a statute. Vance v
Ananich, 145 Mich App 833, 378 NW2d 616.
Huntington Human Relations Comm'n ex rel. James v Realco, Inc., 175 W Va 24, 330
SE2d 682, 47 BNA FEP Cas 937.
When the First Amendment is implicated, deference to an administrative action in issuing

a subpoena is not appropriate and protection of constitutional liberties of the target of the
subpoena calls for a more exacting scrutiny of justification offered by the agency.
Federal Election Com. v La Rouche Campaign (CA2 NY) 817 F2d 233.
Footnote 63. Polcover v Secretary of Treasury, 155 US App DC 338, 477 F2d 1223, cert
den 414 US 1001, 38 L Ed 2d 237, 94 S Ct 356; Peters v United States, 187 Ct Cl 63,
408 F2d 719.
Footnote 64. Williams v Zuckert, 372 US 765, 10 L Ed 2d 136, 83 S Ct 1102 (per

curiam order construing applicable regulations); Polcover v Secretary of Treasury, 155
US App DC 338, 477 F2d 1223, cert den 414 US 1001, 38 L Ed 2d 237, 94 S Ct 356;
Peters v United States, 187 Ct Cl 63, 408 F2d 719.
Footnote 65. Williams v Zuckert, 372 US 765, 10 L Ed 2d 136, 83 S Ct 1102.

Footnote 66. Williams v Zuckert, 371 US 531, 9 L Ed 2d 486, 83 S Ct 403, vacated on
other grounds 372 US 765, 10 L Ed 2d 136, 83 S Ct 1102.
§ 339 Issuance
View Entire Section

The Administrative Procedure Act provides that agency subpoenas authorized by law
shall be issued to a party on request, and that agency rules may further require that the
applicant submit a statement or general showing that the evidence sought is generally
relevant and of reasonable scope. 68 In essence, an applicant for a subpoena may be
required to show a need for the evidence 69 and an agency may refuse a request to
subpoena evidence which is cumulative or immaterial to the issues presented. 70
A court may refuse to entertain a suit to compel an agency to issue a subpoena where the
party requesting the subpoena has failed to exhaust available administrative remedies. 71
Where a party has a right to subpoena witnesses by requesting an agency representative
to issue the subpoenas, and does not make such a request, he or she cannot later complain
of the fact that he or she has been denied the right of confrontation of the adverse
witnesses and the right of cross-examination. 72
Footnotes
Forms: Petition or application–By administrative agency–Rule to show cause why

documentary evidence should not be produced–Failure to obey subpoena. 1A Am Jur
Motion–For protective order. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law,

Form 97.
Request–For subpoena for attendance of witness at deposition or hearing. 1A Am Jur

Request–For issuance of subpoena for attendance of witness at deposition or hearing.

Footnote 69. Great Lakes Airlines, Inc. v Civil Aeronautics Board (CA9) 291 F2d 354,
cert den 368 US 890, 7 L Ed 2d 89, 82 S Ct 143, reh den 368 US 936, 7 L Ed 2d 198,
82 S Ct 359 (holding that a rule requiring a showing of need complies with the provision
of 5 USCS § 555(d) permitting an agency to require by rule of procedure a statement or
showing of general relevance and reasonable scope).
Footnote 70. Fried v United States (SD NY) 212 F Supp 886; San Francisco Mining
Exchange v SEC (CA9) 378 F2d 162.
Even though a party may subpoena the opponent's expert under some circumstances, such
a subpoena may be denied where substantial evidence on the issue is already in the
record and the expert's testimony would not likely affect the agency's decision. Greene
County Planning Bd. v Federal Power Com. (CA2) 559 F2d 1227, 9 Envt Rep Cas 1611,
7 ELR 20101, later proceeding (CA2) 11 Envt Rep Cas 1258, 7 ELR 20552, cert den
434 US 1086, 55 L Ed 2d 791, 98 S Ct 1280, 11 Envt Rep Cas 1263.
Footnote 71. Bristol–Myers Co. v FTC (CA2 NY) 469 F2d 1116, 1972 CCH Trade Cases
¶ 74259.
Footnote 72. Brooks v Klevenhagen (Tex App Houston (14th Dist)) 807 SW2d 777.
§ 340 Witness fees
View Entire Section

Under the Administrative Procedure Act, a witness is entitled to collect witness fees and
allowances when the witness is subpoenaed to, and appears at, a hearing before an
agency authorized by law to hold hearings and subpoena witnesses to attend the hearings.
73 Witnesses who are subpoenaed to appear at administrative proceedings are entitled
to the same fees and allowances paid to witnesses appearing in federal courts. 74
An administrative law judge has the discretion to decline to issue a subpoena if there is
no agreement on the compensation to be paid to the witness. 75 While in some
circumstances it may be sufficient to have only an agreement at the time the subpoena is
issued, deferring payment until the witness actually appears, an administrative law judge
has the discretion to direct payment in advance. 76
Witness fees, including the reasonable expenses of expert witnesses and the reasonable
costs of studies, analysis, engineering reports, and tests, may be recovered by a prevailing
party against an agency under the Equal Access to Justice Act. 77
Witness fees may also be controlled by specific agency statutes. 78
Footnotes
Annotation: Authority of federal agency to spend public funds to reimburse expenses

of qualified participants in its proceedings, 62 ALR Fed 849.

As to witness fees, generally, see 81 Am Jur 2d, Witnesses § 9.
Footnote 75. Virginia Petroleum Jobbers Asso. v Federal Power Com., 110 US App DC
339, 293 F2d 527, 15 OGR 396, cert den 368 US 940, 7 L Ed 2d 339, 82 S Ct 377, 15
OGR 594, reh den 368 US 979, 7 L Ed 2d 441, 82 S Ct 477.
Footnote 76. Ash Grove Cement Co. (1970) FTC Docket No. 8785, 27 AdL2d 1038.
Footnote 77. 5 USCS § 504(b)(1)(A).
As to procedures under the Equal Access to Justice Act, generally, see §§ 354 et seq.
Footnote 78. Carpenter v Miller, 174 W Va 333, 325 SE2d 123 (holding that payment of
witness fees in proceedings before the Department of Mines is controlled by the statute
concerning the powers of the Director of the Department to call or subpoena witnesses
and not by the Administrative Procedure Act).
§ 341 Enforcement
View Entire Section

An agency has no power to enforce its subpoena through contempt proceedings–an

independent action must be commenced in court. 79 However, some regulatory statutes
provide that only the agency may bring an action to enforce a subpoena, and if the
General Counsel of the agency refuses to commence such an action, private parties
before the agency have no standing to do so. 80 In some cases, an agency may not wish
to commence an enforcement action because such an action can be costly, time
consuming, and delay the proceeding before the agency. 81 In such cases, in order to
protect the interests of the party who requested the subpoena, an agency should enforce
the "adverse inference rule," which penalizes the party who refused to comply with the
subpoena by assuming that the reason for such noncompliance is that the recalcitrant
party is unwilling to produce evidence harmful to its case. 82
A court should enforce a subpoena if it meets the basic Fourth Amendment requirements
that the underlying statute giving the agency subpoena power is constitutional, the
contemplated agency proceedings are included within the statutory authority, the demand
is not unreasonable, burdensome, or broad, and the information sought is relevant to the
subject of the inquiry. 83 The court should not inquire into the underlying merits of the
agency's complaint, because this issue is entrusted to the primary jurisdiction of the
agency. 84
Footnotes

Footnote 80. Ex-Cell-O Corp. v Little (SD Ind) 268 F Supp 755, 64 BNA LRRM 2078,
54 CCH LC ¶ 11649; Biazevich v Becker (DC Cal) 161 F Supp 261, 41 BNA LRRM
2782, 34 CCH LC ¶ 71466; International Union, United Auto., etc. v NLRB, 148 US App
DC 305, 459 F2d 1329, 79 BNA LRRM 2332, 67 CCH LC ¶ 12374, 32 ALR Fed 807.
Footnote 81. International Union, United Auto., etc. v NLRB, 148 US App DC 305, 459
F2d 1329, 79 BNA LRRM 2332, 67 CCH LC ¶ 12374, 32 ALR Fed 807.
Footnote 82. International Union, United Auto., etc. v NLRB, 148 US App DC 305, 459
F2d 1329, 79 BNA LRRM 2332, 67 CCH LC ¶ 12374, 32 ALR Fed 807.
Footnote 83. United States v Comley (CA1 Mass) 890 F2d 539, related proceeding (CA1
Mass) 974 F2d 1329, reported in full (CA1 Mass) 1992 US App LEXIS 31586; United
States v Newport News Shipbuilding & Dry Dock Co. (CA4 Va) 837 F2d 162, 34 CCF ¶
75422, later proceeding (ASBCA) 90-2 BCA ¶ 22859; People ex rel. Fahner v Halzel (1st
Dist) 114 Ill App 3d 560, 70 Ill Dec 402, 449 NE2d 531; Iowa Power & Light Co. v Iowa
State Utilities Bd. (Iowa) 448 NW2d 468; Abrams v Thruway Food Market & Shopping
Center, Inc. (2d Dept) 147 App Div 2d 143, 541 NYS2d 1026, companion case (2d
Absent a formal decision to prosecute, an agency subpoena for which there is a

demonstrable civil purpose is enforceable. United States v Aero-Mayflower Transit Co.
(DC Dist Col) 646 F Supp 1467, 1986-2 CCH Trade Cases ¶ 67341, affd 265 US App
DC 383, 831 F2d 1142, 1987-2 CCH Trade Cases ¶ 67740.
When a prima facie case has been made out challenging the legitimacy of the purpose
behind an administrative subpoena, the court has the duty to resolve that issue prior to the
enforcement of the subpoena. People ex rel. Bernardi v Lawrence & Ahlman, Inc. (1st
Footnote 84. EEOC v University of Pennsylvania (CA3 Pa) 850 F2d 969, 47 BNA FEP
Cas 189, 46 CCH EPD ¶ 38061, 12 FR Serv 3d 495, cert gr, in part 488 US 992, 102 L
Ed 2d 581, 109 S Ct 554, 48 CCH EPD ¶ 38523, amd 490 US 1015, 104 L Ed 2d 173,
109 S Ct 1660, 50 CCH EPD ¶ 38964, motion gr 493 US 951, 107 L Ed 2d 347, 110 S
Ct 360 and affd 493 US 182, 107 L Ed 2d 571, 110 S Ct 577, 51 BNA FEP Cas 1118,
52 CCH EPD ¶ 39539, 28 Fed Rules Evid Serv 1169, 15 FR Serv 3d 369; Adams v FTC
(CA8 Mo) 296 F2d 861, cert den 369 US 864, 8 L Ed 2d 83, 82 S Ct 1029.
As to primary jurisdiction, see § 513.
b. Presentation of Case [342-344]
§ 342 Order of presentation
View Entire Section


An administrative law judge has the power to regulate the course of a hearing, 85 and
has broad discretion in conducting the hearings. 86 An administrative agency's
failure to present evidence as a part of its case is not prejudicial if the evidence was made
available to responding parties. 87 However, it is an abuse of discretion for an
administrative law judge to preclude a party from presenting highly important and
relevant proof, by stating that a particular session will be devoted to hearing the
testimony of specified witnesses, and then ending the proceedings at the close of that
session without affording an opportunity to rebut. 88
Footnotes
Footnote 86. Wabash R. Co. v Commercial Transport, Inc., 361 US 1, 4 L Ed 2d 49, 80

S Ct 50; Reilly v Pinkus, 338 US 269, 94 L Ed 63, 70 S Ct 110; Foley v Metropolitan
Sanitary Dist. (1st Dist) 213 Ill App 3d 344, 157 Ill Dec 514, 572 NE2d 978, app den 141
Ill 2d 539, 162 Ill Dec 486, 580 NE2d 112; Board of County Com'rs v Buch, 190 Md
394, 58 A2d 672, 5 ALR2d 569; State ex rel. Gregersen v Board of Review, 5 Wis 2d
28, 92 NW2d 236.
Determination whether the testimony of witnesses should be presented at a hearing is

within the sound discretion of the administrative judge. Davis v Office of Personnel
Management (CA FC) 918 F2d 944.
Although the complainant's case generally should be presented first and the respondent's
case should be presented thereafter, there is nothing which restricts the presiding officer's
discretion to vary this order of presentation, such as where witnesses are not immediately
available. California Lumbermen's Council v Federal Trade Com. (CA9) 115 F2d 178,
cert den 312 US 709, 85 L Ed 1141, 61 S Ct 827.
An agency has discretion to limit in a practical way the scope of an administrative

proceeding in a contested case, and, when appropriate, to reserve for further proceedings
certain issues whose resolution may depend upon the outcome of those to be adjudicated
initially. New Haven v New Haven Police Union Local 530, 210 Conn 597, 557 A2d
506.
As to a presiding officer's power to schedule hearings, see §§ 335 et seq.
Footnote 87. Long Island R. Co. v United States (ED NY) 318 F Supp 490 (disapproved
on other grounds by United States v Florida E. C. R. Co., 410 US 224, 35 L Ed 2d 223,
93 S Ct 810).
Parole Bd., 157 Vt 72, 596 A2d 1277.

§ 343 Sequestration of witnesses
View Entire Section

An administrative law judge or presiding officer has the authority to sequester witnesses,
89 but is not bound to follow all the rules relating to sequestration of witnesses in court
proceedings. 90 Sequestration may be proper if several complainants are testifying about
the same incidents, 91 but a failure to sequester witnesses may be harmless if there is no
real question over the witnesses' credibility. 92 Sequestration of witnesses may also
not be necessary if their testimony has been prefiled. 93
Footnotes
Footnote 89. NLRB v Stark (CA2) 525 F2d 422, 90 BNA LRRM 3076, 77 CCH LC ¶
11144, 2 Fed Rules Evid Serv 524, cert den 424 US 967, 47 L Ed 2d 734, 96 S Ct 1463,
91 BNA LRRM 2749, 78 CCH LC ¶ 11316; Sheehan v Board of Fire & Police Comrs.
(1st Dist) 158 Ill App 3d 275, 108 Ill Dec 771, 509 NE2d 467.
Whether to sequester witnesses in an administrative proceeding is a matter resting in the

sound discretion of presiding officers. Jacocks v Montgomery County, 58 Md App 95,
472 A2d 485.
Footnote 90. Consumers Power Co. (1977) ALAB-379 42 AdL2d 110.
Footnote 91. Unga Painting Corp., 237 NLRB 1306, 99 BNA LRRM 1141, 1978 CCH
NLRB ¶ 19592, 3 Fed Rules Evid Serv 1045.
Footnote 92. NLRB v Stark (CA2) 525 F2d 422, 90 BNA LRRM 3076, 77 CCH LC ¶
11144, 2 Fed Rules Evid Serv 524, cert den 424 US 967, 47 L Ed 2d 734, 96 S Ct 1463,
91 BNA LRRM 2749, 78 CCH LC ¶ 11316.
A liquor licensee was not denied a fair hearing by the state liquor board's refusal to
exclude witnesses from the hearing room in the absence of demonstrated prejudice.
Plowman v Arizona State Liquor Bd. (App) 152 Ariz 331, 732 P2d 222.
Footnote 93. Consumers Power Co. (1977) ALAB-379, 42 AdL2d 110.
§ 344 Swearing of witnesses
View Entire Section

An officer is required to place witnesses under oath in an administrative proceeding only

when a statute expressly directs so; if there is no such statutory provision, the
administration of oaths and affirmations is in the officer's discretion. 94 The omission of
administration of the oath of a witness in a trial or administrative hearing is waiveable
error. 95
Requiring the testimony of witnesses to be given under oath may be unnecessary in

particular types of proceedings. 96
The federal Administrative Procedure Act provides only that an officer presiding at an
administrative hearing "may" administer oaths and affirmations, 97 and does not require
that testimony received be sworn under oath. 98 Thus, a hearing officer's warning to all
witnesses that any representations made in the proceedings would be subject to statutory
penalties for false statements, in lieu of the administration of oaths and affirmations, is
sufficient to notify witnesses of the gravity of the hearings and the need for complete
truth. 99
In contrast, the 1981 Model State Administrative Procedure Act requires that all
testimony of parties and witnesses must be made under oath or affirmation. 1
Footnotes
Footnote 94. Broadhead v Arizona Bd. of Pardons & Paroles (App) 151 Ariz 37, 725 P2d
744 (disapproved on other grounds by Kelley v Arizona Dept. of Corrections, 154 Ariz
476, 744 P2d 3); Bowling Club v Toronto, 17 Utah 2d 5, 403 P2d 651.
The trial court properly issued a writ of mandate requiring the human services agency to
hold another hearing as to whether petitioner violated a rule of the methadone
maintenance program requiring his dismissal, where, despite petitioner's objection, the
witnesses at the hearing had not testified under oath; the agency violated the procedural
requirements mandated by state law in allowing the witnesses to testify without taking
the oath. Marlow v Orange County Human Services Agency (4th Dist) 110 Cal App 3d
290, 167 Cal Rptr 776 (criticized on other grounds by Broussard v Regents of University
of California (1st Dist) 131 Cal App 3d 636, 184 Cal Rptr 460).
Footnote 95. Stores Realty Co. v Cleveland, Bd. of Bldg. Standards & Bldg. Appeals, 41
Ohio St 2d 41, 70 Ohio Ops 2d 123, 322 NE2d 629.
Footnote 96. State ex rel. York v Board of Com'rs, 28 Wash 2d 891, 184 P2d 577, 172
ALR 1001 (application for franchise to place poles and wires on highway).
Annotation: Right of student to hearing on charges before suspension or expulsion

from educational institution, 58 ALR2d 903, § 2 (suspension or expulsion of student).
Footnote 98. Leitman v McAusland (CA4 Va) 934 F2d 46, 37 CCF ¶ 76107.
Footnote 99. Leitman v McAusland (CA4 Va) 934 F2d 46, 37 CCF ¶ 76107.

c. Rules of Evidence [345-354]
§ 345 Generally; applicability of judicial rules of evidence
View Entire Section

Go to Supplement
The technical rules of evidence applicable to judicial proceedings generally do not

govern agency proceedings, 2 and need not be observed so long as the
evidentiary rules which are applied are not applied in an arbitrary or oppressive manner
that deprives a party of his or her right to a fair hearing. 3 The more liberal an
agency's policy is in admitting evidence, the more essential it is that the agency grant the
parties the right to cross-examine and rebut evidence considered by the agency. 4 An
agency should receive all evidence which is competent, relevant, and material, regardless
of its weight, 5 and a refusal to hear such evidence can constitute a denial of due
process. 6
The hearing officer has the power to rule on offers of proof and receive relevant
evidence, 7 and the hearing officer's rulings should conform to the policy of the agency.
8
Under the federal Administrative Procedure Act, any oral or documentary evidence may
be received at an administrative hearing, but the agency, as a matter of policy, must
provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. 9
The 1961 Model State Administrative Procedure Act departs slightly from the federal
Administrative Procedure Act by providing that the rules of evidence as applied in
nonjury civil cases in the trial courts of the state are to be followed, subject to an "escape
clause" in cases of hardship. 10
In contrast, the 1981 Model State Administrative Procedure Act adopts the language of
the federal Act in providing that, upon proper objection, the presiding officer of the
adjudicative proceeding must exclude evidence that is irrelevant, immaterial, unduly
repetitious, or excludable on constitutional or statutory grounds or on the basis of
evidentiary privilege recognized in trial courts of the state. 11
§ 345 ----Generally; applicability of judicial rules of evidence [SUPPLEMENT]
Practice Aids: Petition or application–Allegation–Admission of improper evidence at

hearing. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 310.
Case authorities:
Where National Transportation Safety Board affirmed FAA's revocation of pilot's

certificate based on circumstantial evidence but did not mention nor explain how it
evaluated testimony corroborating pilot's versions of critical fact, case will be remanded
to Board to explain basis for its finding. Robinson v National Transp. Safety Bd. (1994,
App DC) 28 F3d 210.
Where petitioner, who was information aide at city airport, was accused of stealing
money from wallet turned into him as lost property, hearing officer in disciplinary
proceeding did not err in receiving results of polygraph examination to which petitioner
voluntarily submitted since record contained substantial evidence of reliability of
machine and qualifications of administrator. Motell v Napolitano (1992, 4th Dept) 186
AD2d 989, 588 NYS2d 452.
Footnotes
334 US 839, 92 L Ed 1764, 68 S Ct 1492; Klinestiver v Drug Enforcement
Administration, 196 US App DC 221, 606 F2d 1128 (holding that the Federal Rules of
Evidence do not apply to administrative hearings); Colorado Dept. of Revenue, Motor
Vehicle Div. v Kirke (Colo) 743 P2d 16; Dragan v Connecticut Medical Examining Bd.,
24 Conn App 662, 591 A2d 150, app gr 220 Conn 901, 593 A2d 967, affd 223 Conn 618,
613 A2d 739; Jadallah v District of Columbia Dept. of Employment Services (Dist Col
App) 476 A2d 671; Oriental Health Spa v Fort Wayne (Ind App) 526 NE2d 1019;
Perkins v Stewart (Ky App) 799 SW2d 48; Bolduc v Androscoggin County Comrs. (Me)
485 A2d 655; Tron v Prince George's County, 69 Md App 256, 517 A2d 113; Kramer v
Mason (Mo App) 806 SW2d 131; Rojas v Sobol (3d Dept) 167 App Div 2d 707, 563
NYS2d 284, app den 77 NY2d 806, 568 NYS2d 914, 571 NE2d 84; Commonwealth,
Dept. of Health v Brownsville Golden Age Nursing Home, Inc., 103 Pa Cmwlth 449, 520
A2d 926.
Generally, the due process clause of the Fifth Amendment is not violated by an
administrative agency which receives evidence which might not be admissible in court
trials. Crowell v Benson, 285 US 22, 76 L Ed 598, 52 S Ct 285 (ovrld on other grounds
by Director, Office of Workers' Compensation Programs, etc. v Perini North River
Assoc., 459 US 297, 74 L Ed 2d 465, 103 S Ct 634).
Footnote 3. Commission on Medical Discipline v Stillman, 291 Md 390, 435 A2d 747;
State ex rel. Battershell v Albuquerque (App) 108 NM 658, 777 P2d 386; Fairchild v
Vermont State Colleges, 141 Vt 362, 449 A2d 932, 113 BNA LRRM 2848.
In some cases, such as deportation cases, in which human rights of great importance are
at stake, an agency must at least follow essential rules of evidence to assure that these
rights are not unconstitutionally abridged. Bridges v Wixon, 326 US 135, 89 L Ed 2103,
65 S Ct 1443.
While compliance with strict evidentiary standards is not required in administrative

hearings, it is clearly improper for an administrative agency to base a decision of an
adjudicatory nature, where there is a right to a hearing, upon evidence or information
outside the record. Avery v Rechter (3d Dept) 56 App Div 2d 963, 392 NYS2d 714,
appeal after remand (3d Dept) 71 App Div 2d 500, 423 NYS2d 514.

An administrative body has the duty to base its conclusion upon competent evidence.
State ex rel. Chrysler Plastic Products Corp. v Industrial Com. of Ohio (Franklin Co) 39
Ohio App 3d 15, 528 NE2d 1279, app dismd.
What is critical in administrative proceedings is that evidence be relevant, not strictly

whether the evidence would be admissible in a court proceeding. Grant Associates, Inc.
v United States, 11 Cl Ct 816.

431, 33 S Ct 185.
As to cross-examination and rebuttal generally, see § 355.
CCH LC ¶ 60754.
As to irrelevant, immaterial, and cumulative evidence, see § 350.
As to the weight and sufficiency of evidence, see § 363.
Footnote 6. Russell-Newman Mfg. Co. v NLRB (CA5) 370 F2d 980, 64 BNA LRRM
2092, 64 BNA LRRM 2268, 54 CCH LC ¶ 11630, 54 CCH LC ¶ 11684, appeal after
remand (CA5) 407 F2d 247, 70 BNA LRRM 2502, 59 CCH LC ¶ 13231.
An administrative board cannot properly delegate to a hearing officer the responsibility

for taking evidence and then rely on an oral recitation of what that evidence consisted of
in making its own factual determinations as to a food stamp claimant's appeal from the
agency's determination; due process requires either that the hearing officer be given the
responsibility and power to evaluate the evidence for the purpose of making the decision,
or that the members of the board independently review the evidence. Stoffel v Arizona
Dept. of Economic Secur. (App) 162 Ariz 449, 784 P2d 275, 43 Ariz Adv Rep 12, later
proceeding (Ariz App) 1990 Ariz App LEXIS 15.
Footnote 8. Re Corona Livestock Auction, Inc. (1977) 36 Ag Dec 1166, 41 AdL2d 1001.
Spratt v Department of Social Services, 169 Mich App 693, 426 NW2d 780.
Evidence is generally admissible before an administrative agency if it is the kind of

evidence upon which reasonable persons are accustomed to rely in the conduct of serious
affairs. Abrahamson v Secretary of State (Me) 584 A2d 668; Spartin v District of
Columbia Dept. of Employment Services (Dist Col App) 584 A2d 564.

Law Reviews: Graham, Application of the Rules of Evidence in Administrative
Agency Formal Adversarial Adjudications: A New Approach, 1991 U Ill L Rev 353
(1991).
§ 346 Deposition testimony
View Entire Section

Following the rule applied in judicial proceedings, 12 testimony by way of deposition

is admissible in an administrative proceeding, subject to agency rules. 13 However,
when written testimony is used, the presiding officer does not have an opportunity to
observe the witness, note the witness's demeanor, and make direct credibility
assessments, 14 and the parties do not have the opportunity to directly confront each
other. 15
Footnotes
Footnote 12. See FRCP 32, discussed in 23 Am Jur 2d, Depositions and Discovery §§
174 et seq.; 10 Federal Procedure, L Ed, Discovery and Depositions §§ 26:267 et seq.
Footnote 13. American Fruit Purveyors, Inc. (1971) 30 Ag Dec 1542, 30 AdL2d 584.
Forms: Stipulation–For taking deposition of witness absent during administrative

hearing. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 91.
Footnote 15. As to cross-examination in proceedings decided on written evidence, see §

357.
§ 347 Expert and opinion testimony
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The strict limitations on the traditional opinion rule are not applicable in administrative
proceedings. 16 So long as an agency's action is not arbitrary, the agency has the
discretion to determine whether a witness is qualified to testify as an expert, 17
whether the witness may testify on the ultimate issue in a case, 18 and whether the
witness's opinion testimony should be admitted. 19 However, it is an abuse of
discretion if the hearing officer elicits an opinion on the facts of a particular case without

disclosing all relevant evidence to the expert. 20 If expert testimony has no
relationship to the issues in the case, 21 or where it bears upon matters falling within
the sensory experience of any person, it may be rejected. 22 However, an administrative
agency must not disregard the only expert evidence available on an issue when agency
members lack their own expertise or knowledge. 23
Agencies are not required to accept expert testimony over lay testimony, but some
indication of the reasons for rejecting such testimony may be required. 24
Agencies are not bound by expert opinions presented to them; when conflicts in expert
testimony arise in an administrative hearing, it is the agency's, rather than the court's,
prerogative to resolve them. 25 An administrative law judge may not substitute its
own opinion for that of an expert. 26 However, an administrative agency may use its
own judgment in evaluating evidence as to a matter within its expertise, and it is not
bound by even uncontradicted testimony of experts which amount to mere opinions. 27
A lay person may give opinion testimony on matters of reputation. 28
§ 347 ----Expert and opinion testimony [SUPPLEMENT]
Case authorities:
Refusal of Special Master to receive testimony from plaintiff's medical expert and lay
witness was not arbitrary and capricious where Special Master had accepted witnesses'
affidavits and considered them, where petitioner did not proffer that testimony of lay
witness would be different than what was contained in affidavits, or that testimony of
physician would contribute additional information to factors considered by Special
Master. Skinner v Secretary of the Dep't of Health & Human Servs. (1994) 30 Fed Cl
Footnotes
Footnote 16. Brockton Taunton Gas Co. v SEC (CA1) 396 F2d 717, CCH Fed Secur L
Rep ¶ 92225.
For discussion of expert opinion evidence, see 31A Am Jur 2d, Expert and Opinion
Evidence.

466; People ex rel. Woodard v Brown (Colo App) 770 P2d 1373, cert den (Colo) 783 P2d
1223; Georgia Power Co. v Georgia Public Service Com., 196 Ga App 572, 396 SE2d
562, cert den (Ga) 1990 Ga LEXIS 483.
Footnote 18. Re Corona Livestock Auction, Inc. (1977) 36 Ag Dec 1166, 41 AdL2d
1001.
Footnote 19. Alabama Asso. of Ins. Agents v Board of Governors of Federal Reserve
System (CA5) 533 F2d 224, vacated, in part (CA5) 558 F2d 729, cert den 435 US 904,
55 L Ed 2d 494, 98 S Ct 1448; Pagel, Inc. v SEC (CA8) 803 F2d 942, CCH Fed Secur L

Rep ¶ 92963.
Footnote 20. Lloyd Sabaudo Societa Anonima Per Azioni v Elting, 287 US 329, 77 L
Ed 341, 53 S Ct 167.
Footnote 21. American Trucking Assos. v Federal Communications Com., 126 US App
Footnote 22. Romero v Waterproofing Systems of Miami (Fla App D1) 491 So 2d 600,
11 FLW 1576.
Footnote 23. Tanner v Conservation Com. of Norwalk, 15 Conn App 336, 544 A2d 258.
Footnote 24. Bakers Local Union v District of Columbia Bd. of Zoning Adjustment (Dist
Col App) 437 A2d 176.
Footnote 25. Phelps v Industrial Com. of Arizona, 155 Ariz 501, 747 P2d 1200; Baton
Rouge Water Works Co. v Louisiana Public Service Com. (La) 342 So 2d 609, cert den
434 US 827, 54 L Ed 2d 86, 98 S Ct 105; Wayne County v Tennessee Solid Water
Disposal Control Bd. (Tenn App) 756 SW2d 274.
Footnote 26. Torres v Bowen (SD NY) 700 F Supp 1306, CCH Unemployment Ins Rep ¶
14478A (holding that an administrative law judge could not arbitrarily substitute her own
inferential judgment for a competent medical opinion in a disability proceeding,
particularly where the administrative law judge's judgment assumes some degree of
medical expertise and would amount to rendering an expert medical opinion); West v
Sullivan (ND Tex) 751 F Supp 647, CCH Unemployment Ins Rep ¶ 15998A.
Footnote 27. Louisiana Power & Light Co. v Louisiana Public Service Com. (La) 523 So
2d 850 (holding that a public service commission is not required to accept without
deviation an expert's opinion of a proper rate of return on equity for a utility at least
where the factual data on which the opinion is based is reasonably susceptible to different
interpretation by the commission).
But see Pundy v Department of Professional Regulation (1st Dist) 211 Ill App 3d 475,
155 Ill Dec 945, 570 NE2d 458, holding that members of an administrative tribunal may
not rely on their own expertise in making factual determinations; rather, a decision must
be based on evidence presented at the hearing.
Footnote 28. O'Kon v Roland (SD NY) 247 F Supp 743.
As to testimony on reputation, generally, see 29 Am Jur 2d, Evidence § 503.
§ 348 Hearsay
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Hearsay evidence is generally admissible in administrative proceedings if it is

sufficiently reliable and probative. 29
However, the mere fact that hearsay evidence may be admissible because it has some
probative value does not indicate the weight which should be placed on such evidence.
30 In some cases, the consideration of hearsay may be so damaging to fundamental
personal rights that such evidence should be excluded. 31
Although the administrative procedure acts relax the rules of evidence to some degree in
administrative proceedings, the proceedings do not become so open as to allow double
hearsay. 32
The use of hearsay limits a party's opportunity to cross-examine the declarant, but a party
still has the opportunity to locate the declarant and either subpoena the declarant or
persuade the declarant to appear. 33
§ 348 ----Hearsay [SUPPLEMENT]
Case authorities:
Petitioner was properly convicted by USDA of violating Horse Protection Act (15 USCS
§ 1824), where hearsay evidence relied upon was probative, substantial, and clearly sort
of evidence upon which responsible persons are accustomed to rely, in accordance with
USDA's regulations, which were promulgated pursuant to 5 USCS § 556. Gray v United
States Dep't of Agric. (1994, CA6) 39 F3d 670, 1994 FED App 383P.
Hearsay testimony of employee's sexual harassment accusers could not be used in

administrative hearing on employee's unemployment compensation claim, where
employer failed to call as witnesses the accusers, though they were apparently readily
available, thus hearsay testimony was not shown to be necessary to ascertain facts "not
reasonably susceptible to proof." McGahee v Yamaha Motor Mfg. Corp. of Am. (1994)
214 Ga App 473, 448 SE2d 249, 94 Fulton County D R 2892.
Footnotes
Footnote 29. Richardson v Perales, 402 US 389, 28 L Ed 2d 842, 91 S Ct 1420;

Bustos-Torres v INS (CA5) 898 F2d 1053; Keller v Sullivan (CA7 Wis) 928 F2d 227,
CCH Unemployment Ins Rep ¶ 15966A; Martin–Mendoza v Immigration &
Naturalization Service (CA9) 499 F2d 918, cert den 419 US 1113, 42 L Ed 2d 810, 95
S Ct 789, reh den 420 US 984, 43 L Ed 2d 667, 95 S Ct 1417; Evans v Arkansas
Racing Com., 270 Ark 788, 606 SW2d 578, cert den 451 US 910, 68 L Ed 2d 299, 101
S Ct 1980; Griffin v Muzio, 10 Conn App 90, 521 A2d 607, certif den 203 Conn 805, 525
A2d 520; Cassella v Civil Service Com., 4 Conn App 359, 494 A2d 909, certif gr 197
Conn 803, 496 A2d 199 and affd 202 Conn 28, 519 A2d 67; Bowen v District of
Columbia Dept. of Employment Services (Dist Col App) 486 A2d 694; Jadallah v
District of Columbia Dept. of Employment Services (Dist Col App) 476 A2d 671;

Nieman v Iowa DOT, Motor Vehicle Div. (Iowa App) 452 NW2d 203; Sanders v
Administrator of Office of Employment Secur. (La App 3d Cir) 520 So 2d 1091; Gray v
Adduci, 73 NY2d 741, 536 NYS2d 40, 532 NE2d 1268; Nisqually Delta Asso. v Du
Pont, 103 Wash 2d 720, 696 P2d 1222.
Evidence may not be excluded solely because it is hearsay. Model State Administrative
Procedure Act (1981) § 4-212(a).
Hearsay evidence is admissible in administrative proceedings if it is commonly relied on

by reasonably prudent persons in the conduct of their affairs. Reguero v Teacher
Standards & Practices Com., 101 Or App 27, 789 P2d 11, review gr 310 Or 205, 795 P2d
554 and revd on other grounds 312 Or 402, 822 P2d 1171; Spratt v Department of Social
Services, 169 Mich App 693, 426 NW2d 780.
Administrative tribunals may make use of hearsay evidence only within a limited context
and in circumstances where it is necessary to ascertain facts not reasonably susceptible of
proof under normal rules of evidence. Wood v Ford (RI) 525 A2d 901.
 Caution: In Illinois, hearsay evidence is generally inadmissible in administrative

hearings unless it satisfies the requirements of an exception to the rule excluding
hearsay. Daniels v Retirement Bd. of Policeman's Annuity & Ben. Fund (1st Dist) 106
Ill App 3d 412, 62 Ill Dec 304, 435 NE2d 1276; Fagiano v Police Bd. of Chicago (1st
Dist) 123 Ill App 3d 963, 79 Ill Dec 291, 463 NE2d 845; Riching Corp. v Daley (1st
Annotation: Comment Note.–Hearsay evidence in proceedings before federal

administrative agencies, 6 ALR Fed 76.
Footnote 30. Boyle's Famous Corned Beef Co. v NLRB (CA8) 400 F2d 154, 69 BNA
LRRM 2218, 58 CCH LC ¶ 12921.
As to the weight to be accorded hearsay evidence in administrative adjudications, see §

364.
Footnote 31. Bridges v Wixon, 326 US 135, 89 L Ed 2103, 65 S Ct 1443.
Footnote 32. Screws v Ballard (Ala App) 574 So 2d 827, reh overr (Ala App) 1990 Ala
Civ App LEXIS 496.
§ 349 Illegally obtained evidence
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The exclusionary rule, which provides that evidence seized in violation of a party's
Fourth Amendment rights may not be admitted, generally applies to administrative
proceedings where such proceedings are of a criminal or quasi-criminal nature. 34
Thus, evidence acquired in violation of the Fourth Amendment is admissible in
administrative hearings that are not of a criminal or quasi-criminal nature. 35
The wiretapping statutes prohibit the use of the contents of any intercepted
communication at any hearing or other proceeding before any department, officer,
agency, regulatory body, or other authority of the United States. 36 An agency must
follow the procedures prescribed by federal law 37 for adjudicating a claim that
evidence being presented at an administrative proceeding is a fruit of an illegal wiretap.
38
§ 349 ----Illegally obtained evidence [SUPPLEMENT]
Practice Aids: Admissibility, in motor vehicle license suspension proceedings, of

evidence obtained by unlawful search and seizure, 23 ALR5th 108.
Petition or application–Allegation–Violation by federal agency of right to freedom from

unreasonable search and seizure. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law,
Form .
Case authorities:
Evidence of marihuana possession seized by city police officers from vehicle occupied
by state trooper was properly admitted against trooper in state police administrative
disciplinary proceeding, even though evidence was product of illegal search and required
suppression in prior criminal prosecution, where city police could not have foreseen that
trooper would be subject to disciplinary proceeding when they made seizure, they did not
know of trooper's occupation prior to seizure, they did not act as agents of state police,
and thus only negligible deterrence would result from exclusion of evidence; on other
hand, suppression of such evidence would have significant adverse impact on
truth-finding process in administrative proceedings concerning police officers involved in
drug-related incidents. Boyd v Constantine (1993) 81 NY2d 189, 597 NYS2d 605, 613
NE2d 511.
Footnotes
Footnote 34. People ex rel. Coldwell v New York State Div. of Parole (2d Dept) 123
App Div 2d 458, 506 NYS2d 761 (parole revocation proceedings); Gooiran Holdings,
Inc. v Miller, 140 Misc 2d 142, 531 NYS2d 441.
Evidence that was obtained by a search warrant and was found to be invalid and was
suppressed in a criminal action was also properly excluded from a related civil
administrative proceeding. Turner v Lawton (Okla) 733 P2d 375, cert den 483 US 1007,
97 L Ed 2d 738, 107 S Ct 3232.
Footnote 35. Sheetz v Baltimore, 315 Md 208, 553 A2d 1281, 4 BNA IER Cas 294
(exclusionary rule does not generally apply to administrative discharge proceedings).

The search and seizure clause does not require the application of the exclusionary rule in
disciplinary proceedings or other employment related decision-making processes. Burka
v New York City Transit Authority (SD NY) 747 F Supp 214, 5 BNA IER Cas 1281.
The exclusionary rule did not apply to a liquor control license suspension proceeding to
remedy an alleged violation of a bar owner's right to be free of unreasonable searches and
seizures. Diehl v Iowa Beer & Liquor Control Dept. Hearing Bd. (Iowa) 422 NW2d 480.
Evidence seized in a warrantless search of a race track barn was admissible in an

administrative disciplinary hearing, whether or not the search was properly authorized by
the state racing commission or the evidence was illegally seized. Pullin v Louisiana State
Racing Com. (La) 477 So 2d 683, on reh (La) 484 So 2d 105.
For a discussion of the exclusionary rule, see 12A Federal Procedure, L Ed, Evidence §§
33:602 et seq.
Footnote 38. Re Lennon (1974) Bd Imm App File A17 595 321, NY, 35 AdL2d 250.
Procedures under 18 USCS § 3504 are described in 12A Federal Procedure, L Ed,
Evidence §§ 33:690 et seq.
§ 350 Irrelevant, immaterial, and cumulative evidence
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The only restriction on the admissibility of evidence prescribed by the Administrative

Procedure Acts is that an agency must exclude evidence that is irrelevant, immaterial, or
unduly repetitious. 39 While administrative hearings are not governed by strict rules of
evidence, and hearsay can be received if it is relevant, 40 irrelevant evidence is never
admissible. 41
The admission of irrelevant evidence does not mandate the reversal of an agency order, if
there is substantial other evidence which supports the order. 42 However, a
decision cannot stand if such a large mass of incompetent and irrelevant evidence is
admitted that there is no reasonable, substantial, and probative evidence supporting the
order, 43 and it appears that the order can only rest upon conjecture, guess, or chance. 44
The rule limiting the admissibility of cumulative evidence relieves an administrative law
judge of the duty to hear the same testimony from numerous witnesses. 45 Agencies
generally provide administrative law judges with a battery of tools which may be used to
limit the number of witnesses who may give cumulative testimony. 46

§ 350 ----Irrelevant, immaterial, and cumulative evidence [SUPPLEMENT]
Case authorities:
Agencies are not bound by strict rules of evidence governing jury trials; rather, APA
renders admissible any evidence except that which is irrelevant, immaterial, or unduly
repetitious, and thus hearsay is not inadmissible per se. Bennett v National Transp. Safety
Bd. (1995, CA10) 55 F3d 495.
Footnotes
Footnote 41. Pope v Weinberger (ED Pa) 397 F Supp 856.
An agency properly declined to hear evidence outside the perimeter of issues it was
empowered to consider. Siegel v Atomic Energy Com., 130 US App DC 307, 400 F2d
778.
Footnote 42. Yiannopoulos v Robinson (CA7 Ill) 247 F2d 655; Independent Stave Co. v
NLRB (CA8) 352 F2d 553, 60 BNA LRRM 2406, 52 CCH LC ¶ 16729, cert den 384 US
962, 16 L Ed 2d 674, 86 S Ct 1588, 62 BNA LRRM 2231, 53 CCH LC ¶ 11254;
Willapoint Oysters, Inc. v Ewing (CA9) 174 F2d 676, cert den 338 US 860, 94 L Ed
527, 70 S Ct 101, reh den 339 US 945, 94 L Ed 1360, 70 S Ct 793; Sisto v Civil
Aeronautics Board, 86 US App DC 31, 179 F2d 47.
Footnote 43. Yiannopoulos v Robinson (CA7 Ill) 247 F2d 655.
CCH LC ¶ 60754.
CCH LC ¶ 60754.
§ 351 Official notice
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An administrative agency has the power to take "official" notice of facts, in the same
manner as a court may take judicial notice. 47 A basic prerequisite for the use of
official evidence is that the information noticed must be appropriate for official notice. 48
An agency may take official notice of established general facts within its area of
expertise, 49 facts of common knowledge and experience, 50 or general and universal
propositions. 51 An agency has especially broad power to take notice of legislative facts
of the type used to formulate general rules or policies. 52 An agency may also take
judicial notice of existing statutes, 53 and of matters of record in another administrative
order, determination or judgment. 54
All parties must be fully apprised of the evidence being considered by the agency and be
given an opportunity to refute it by contrary evidence. 55 The taking of official notice
without granting an opportunity to rebut is generally prejudicial 56 unless the
administrative order is otherwise amply justified by other evidence, 57 or where
agency regulations cover the matter at issue. 58 An opportunity to rebut may be
waived if a party does not timely object to the use of officially noticed facts. 59
§ 351 ----Official notice [SUPPLEMENT]
Practice Aids: Notice–Request for administrative agency to take official notice. 1A

Footnotes
Footnote 47. United States v Abilene & S. R. Co., 265 US 274, 68 L Ed 1016, 44 S Ct
565; McLeod v Immigration & Naturalization Service (CA3) 802 F2d 89 (criticized on
other grounds by Kaczmarczyk v INS (CA7) 933 F2d 588) and (criticized on other
grounds by Gebremichael v INS (CA1) 1993 US App LEXIS 30169); West Hartford v
Freedom of Information Com., 218 Conn 256, 588 A2d 1368; Oriental Health Spa v Fort
Wayne (Ind App) 526 NE2d 1019.
Procedure Act (1981) § 4-212(f).
As to judicial notice, generally, see 29 Am Jur 2d, Evidence §§ 14 et seq.
Annotation: Comment Note.–Administrative official notice–federal cases, 3 L Ed 2d

1628.
Forms: Notice–Request for administrative agency to take official notice. 1A Am Jur Pl

–Of taking deposition on oral examination. 1A Am Jur Pl & Pr Forms (Rev), Form
93.
Footnote 48. Union Electric Co. v FERC, 281 US App DC 388, 890 F2d 1193, on

remand 51 FERC ¶ 61321, 1990 FERC LEXIS 1426, clarified 52 FERC ¶ 61201, 1990
FERC LEXIS 1976, later proceeding 57 FERC ¶ 61326, 1991 FERC LEXIS 2879, later
proceeding 58 FERC ¶ 61247, 1992 FERC LEXIS 313, later proceeding 60 FERC ¶
61065, 1992 FERC LEXIS 1781 and reh den 64 FERC ¶ 61355, 1993 FERC LEXIS
1966, later proceeding 65 FERC ¶ 61113; Carson v Department of Employment Secur.,
135 Vt 312, 376 A2d 355.
An agency may take official notice of facts which are obvious and notorious to an expert
in the agency's field and those facts contained in reports and records in the agency's files,
in addition to those facts which are obvious and notorious to the average person. Falasco
v Commonwealth, Pennsylvania Bd. of Probation & Parole, 104 Pa Cmwlth 321, 521
A2d 991.
Footnote 49. McLeod v Immigration & Naturalization Service (CA3) 802 F2d 89
(criticized by Kaczmarczyk v INS (CA7) 933 F2d 588) and (criticized by Gebremichael v
INS (CA1) 1993 US App LEXIS 30169); Brite Mfg. Co. v Federal Trade Com., 120 US
App DC 383, 347 F2d 477, 1965 CCH Trade Cases ¶ 71439.
Footnote 50. United States v Strauss Bros. & Co. (CA2 NY) 136 F 185.
Footnote 51. United States ex rel. Dong Wing Ott v Shaughnessy (DC NY) 116 F Supp
745.
Footnote 52. UNA Chapter, Flight Engineers' International Asso. v National Mediation
Bd., 111 US App DC 121, 294 F2d 905, 48 BNA LRRM 2620, 43 CCH LC ¶ 17076, cert
den 368 US 956, 7 L Ed 2d 388, 82 S Ct 394, 49 BNA LRRM 2359, 44 CCH LC ¶
17353.
Footnote 53. Cooke v Board of Claims (Ky App) 743 SW2d 32.
Footnote 54. All Purpose Nursing Service v Human Rights Com. (1st Dist) 205 Ill App
3d 816, 150 Ill Dec 717, 563 NE2d 844; Board of Assessors v Ogden Suffolk Downs,
Inc., 398 Mass 604, 499 NE2d 1200; Re Application of Campbell County (Wyo) 731 P2d
1174.
Oriental Health Spa v Fort Wayne (Ind App) 526 NE2d 1019; Allen v Public Utilities
Com., 40 Ohio St 3d 184, 532 NE2d 1307; Louisiana Land & Exploration Co. v
Wyoming Oil & Gas Conservation Com. (Wyo) 809 P2d 775, 114 OGR 183; Carey v
District Unemployment Compensation Board (Dist Col App) 304 A2d 18; Caterpillar
Tractor Co. v Illinois Pollution Control Bd. (3d Dist) 48 Ill App 3d 655, 6 Ill Dec 737,
363 NE2d 419.
Forms: Notice–By administrative agency–Investigation and taking of testimony on

petition for determination of rights of claimants in particular matter. 1A Am Jur Pl &
Pr Forms (Rev), Administrative Law, Form 94.
–Evidence submitted on petition for determination of rights of claimants in particular

matter available for inspection. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law,
Form 95.

Request–For opportunity to show fact contrary to fact officially noticed. 1A Federal
River Assoc., 459 US 297, 74 L Ed 2d 465, 103 S Ct 634).
Footnote 57. Erie R. Co. v United States (DC Ohio) 64 F Supp 162; Wisconsin v Federal
Power Com., 91 US App DC 307, 201 F2d 183, cert den 345 US 934, 97 L Ed 1362, 73
S Ct 795.
Footnote 58. Heckler v Campbell, 461 US 458, 76 L Ed 2d 66, 103 S Ct 1952.
Footnote 59. Bangor & A. R. Co. v Interstate Commerce Com. (CA1) 574 F2d 1096, reh
den (CA1) 578 F2d 444 and cert den 439 US 837, 58 L Ed 2d 133, 99 S Ct 121 and
(criticized on other grounds by Illinois v United States (CA7) 666 F2d 1066) and
(criticized on other grounds by SEC v Wall Street Pub. Institute, Inc., 271 US App DC
110, 851 F2d 365, CCH Fed Secur L Rep ¶ 93799); Safeway Stores, Inc. v Federal Trade
Com. (CA9) 366 F2d 795, 1966 CCH Trade Cases ¶ 71891, cert den 386 US 932, 17 L
Ed 2d 805, 87 S Ct 954; Midwest Television, Inc. v Federal Communications Com., 138
US App DC 228, 426 F2d 1222.
§ 352 Privileged matters
View Entire Section

Go to Supplement
The administrative procedure acts provide that privileges relating to evidence apply
equally to agencies and persons. 60 A party may assert privileges such as the
attorney-client privilege 61 or the privilege against self-incrimination 62 in
administrative proceedings, so long as the privilege is available under the facts of the
case. 63
§ 352 ----Privileged matters [SUPPLEMENT]
Practice Aids: Yes Virginia, there is a federal agency attorney-client privilege, 41 Fed
Bar News J 51 (1994).
Footnotes
Footnote 61. Re C-A- (1971) Bd Imm App File A13 864 002, NY, 30 AdL2d 263.
Footnote 62. Kastigar v United States, 406 US 441, 32 L Ed 2d 212, 92 S Ct 1653, reh
den 408 US 931, 33 L Ed 2d 345, 92 S Ct 2478 and (not followed on other grounds by
D'Elia v Pennsylvania Crime Com., 521 Pa 225, 555 A2d 864) (noting that this privilege
may be asserted in any proceeding, including administrative or judicial, investigatory or
adjudicatory).
Footnote 63. Re C-A- (1971) Bd Imm App File A13 864 002, NY, 30 AdL2d 263
(attorney-client privilege not available where communications were in furtherance of
scheme to defraud).
For a discussion of the applicability of privileges, see 81 Am Jur 2d, Witnesses §§ 285 et
seq.
§ 353 Records and documentary evidence
View Entire Section

An administrative law judge has the basic duty to receive into evidence any documents
which are relevant and material to the matters in controversy. 64 An agency need not
follow all the rules governing the admissibility of documents in court proceedings, such
as the foundation rule, if the records are reliable and no reasonable question as to their
authenticity exists. 65 If an agency is bound to follow the federal rules of evidence so
far as practicable, the business records exception 66 or the public records exception to
the hearsay rule may apply. 67
Summaries and tables may be admitted into evidence, but the underlying documents
should also be made available for the purpose of rebuttal and cross-examination. 68
The Model State Administrative Procedure Acts provide that documentary evidence may
be received in an adjudicative hearing in the form of copies or excerpts, if the original is
not readily available. 69
Footnotes
Footnote 64. Florida Steel Corp., 235 NLRB 1010, 98 BNA LRRM 1089, 1978 CCH
NLRB ¶ 19217, later proceeding 244 NLRB 395, 102 BNA LRRM 1181, 1979-80 CCH
NLRB ¶ 16152; Bentley v Director (1978) 7 BRBS 757; Owens v Westmoreland Coal
Co. (1979) 10 BRBS 460.
Footnote 65. McGuire v Califano (DC Neb) 440 F Supp 1031.
Forms: Request–For admissions of fact and of genuineness of documents. 1A Federal

Footnote 66. NLRB v Sharples Chemicals, Inc. (CA6) 209 F2d 645, 33 BNA LRRM
2438, 24 CCH LC ¶ 68103.
Laboratory results of a urinalysis test were admissible hearsay under the business records
exception in an administrative hearing for the dismissal of a city fire fighter. Lumsden v
New York City Fire Dept. (2d Dept) 134 App Div 2d 595, 522 NYS2d 4.
As to the FRE 803(6) business records exception to the hearsay rule for, see 12 Federal
Procedure, L Ed, Evidence §§ 33:416 et seq.
Footnote 67. Eastman v Department of Public Aid (2d Dist) 178 Ill App 3d 993, 128 Ill
Dec 276, 534 NE2d 458 (computer records of food stamp disbursements admissible in
administrative proceeding to determine whether public aid recipient had received
overpayment of food stamps).
An arresting officer's implied-consent form, prepared by the state, was admissible in an

administrative driver's license suspension hearing, as a public record and official
document excepted from the hearsay rule. State, Dept. of Revenue & Taxation v Hull
(Wyo) 751 P2d 351.
Footnote 68. Wirtz v Baldor Electric Co., 119 US App DC 122, 337 F2d 518.
Footnote 69. Model State Administrative Procedure Act (1961) § 10(2) [optional
provision]; Model State Administrative Procedure Act (1981) § 4-212(e).
§ 354 Texts and treatises
View Entire Section

Authoritative scientific texts and treatises can be used freely in administrative

proceedings. 70 However, there is a distinction between submitting a treatise into
evidence, 71 and having the agency take official notice of the contents of a treatise,
which may not always be proper under the circumstances. 72
Footnotes
Footnote 70. Dolcin Corp. v FTC, 94 US App DC 247, 219 F2d 742, cert den 348 US
981, 99 L Ed 763, 75 S Ct 571.
Footnote 71. As to the use of treatises under FRE 803(18), see 12 Federal Procedure, L
Ed, Evidence § 33:450.

d. Cross-examination and Rebuttal Testimony [355-359]
§ 355 Generally
View Entire Section

Go to Supplement
The right to cross-examine witnesses is an essential right in quasi-judicial proceedings 73

in which critical adjudicative facts are in dispute. 74 This right exists, even though an
agency is not bound by common law or statutory rules of evidence. 75 The right to
cross-examination attaches when the administrative body receives any testimony or
documentary evidence. 76
The administrative procedure acts provide that a party is entitled to submit rebuttal
evidence and to conduct cross-examination to the extent necessary for a full and true
disclosure of the facts. 77 Thus, under the acts, cross-examination is not an automatic
right; rather, its necessity must be established under specific circumstances by the party
seeking it, 78 and a party has no absolute right to cross-examine if he or she fails to
demonstrate that cross-examination will aid disclosure of the facts. 79 In addition, an
opportunity for cross-examination need not be provided if an adjudicatory hearing was
not contemplated by the applicable regulatory statute. 80
A party may, by inaction, waive its right to cross-examine witnesses under certain
circumstances. 81
 Practice guide: Where a substantial number of witnesses is involved, due process

requirements may be satisfied by a hybrid procedure allowing oral testimony and
cross-examination of a certain percentage of the witnesses and the receipt of testimony
in written verified statement form without an opportunity for cross-examination from
the remainder. 82
Case authorities:
Terminated school custodian was not entitled to face-to-face confrontation with witness
in grievance proceeding, where the witness was allowed to testify from another room by
way of closed circuit television since she feared reprisal from the custodian, and she was
subject to direct and cross- examination, because although the custodian was entitled to
procedural due process at the post-termination proceeding, due process did not require a
face- to-face confrontation with the witness. Ohio Ass'n of Pub. Sch. Employees,
AFSCME v Lakewood City Sch. Dist. Bd. of Educ., 68 OS3d 175, 624 NE2d 1043, 145
BNA LRRM 2549.

Footnotes
431, 33 S Ct 185.
Footnote 74. Glendenning v Ribicoff (WD Mo) 213 F Supp 301.
The exclusion of a teacher from hearing room was erroneous where the teacher had
tenure rights subject to being lost, and where the credibility of the witnesses, whose
testimony conflicted with prior statements, was central to the case. Re Wolf, 231 NJ
Super 365, 555 A2d 722, certif den 117 NJ 138, 564 A2d 862 and (disapproved on other
grounds by New Jersey Div. of Youth & Family Services v J.B., 120 NJ 112, 576 A2d
261, 17 Media L R 2183).
Footnote 75. Texas-Capital Contractors, Inc. v Abdnor (CA5 Tex) 933 F2d 261, 37 CCF
¶ 76113; Southern Stevedoring Co. v Voris (CA5 Tex) 190 F2d 275; Caterpillar Tractor
Co. v Illinois Pollution Control Bd. (3d Dist) 48 Ill App 3d 655, 6 Ill Dec 737, 363 NE2d
419; American Radio-Telephone Service, Inc. v Public Service Com., 33 Md App 423,
365 A2d 314; Dolphino Corp. v Alcoholic Beverages Control Com., 29 Mass App 954,
559 NE2d 1261; Re Wolf, 231 NJ Super 365, 555 A2d 722, certif den 117 NJ 138, 564
A2d 862 and (disapproved on other grounds by New Jersey Div. of Youth & Family
Services v J.B., 120 NJ 112, 576 A2d 261, 17 Media L R 2183).
The right to cross-examine adverse witnesses in administrative proceedings is

constitutionally protected. Hart v J. J. Newberry Co., 179 Mont 160, 587 P2d 11.
Footnote 76. Obersteiner v Industrial Com. of Arizona (App) 161 Ariz 547, 779 P2d
1286, 42 Ariz Adv Rep 21 (holding that an employee had the right to cross-examine
physicians who offered an examination report that was accepted into evidence in a
proceeding before the industrial commission).
The board of medicine, as an administrative tribunal, has the power to ask questions to
clarify matters and to elicit relevant information not presented by counsel. Shah v State
Bd. of Medicine, 139 Pa Cmwlth 94, 589 A2d 783, reh den (Pa Cmwlth) 1991 Pa
Commw LEXIS 320 and app den 528 Pa 646, 600 A2d 197.
Model State Administration Procedure Act (1961) § 10(3); Model State Administrative
Procedure Act (1981) § 4-211(2).
Tron v Prince George's County, 69 Md App 256, 517 A2d 113.
Footnote 78. Cellular Mobile Systems, Inc. v FCC, 251 US App DC 100, 782 F2d 182.
20320 and (criticized on other grounds by Chemical Waste Management, Inc. v U.S.
1561, 19 ELR 20868); American Public Gas Asso. v Federal Power Com., 162 US App

DC 176, 498 F2d 718, 48 OGR 389.
615, 4 Envt Rep Cas 2041, 3 ELR 20133.
As to the unavailability of the right to cross-examine in investigatory proceedings, see §

140.
Footnote 81. Vanderpool v Celebrezze (DC Or) 240 F Supp 801 (a party's refusal to
specify the matters in which it desired an inquiry resulted in waiver of the right to
cross-examine); State, Div. of Finance v Industrial Com. of Arizona (App) 159 Ariz 553,
769 P2d 461.
Several parties joined during the course of an agency proceeding waived the right to
cross-examine, even though they claimed that their late joinder prevented them from
cross-examining witnesses who had testified prior to the date when they were brought
into the case, where attorneys representing their interests were present at the inception of
the hearing but were recalcitrant in disclosing the joined parties' interests and the parties
declined an opportunity to recall the witnesses. Freight Consolidators Co-operative, Inc.
v United States (SD NY) 230 F Supp 692.
Footnote 82. Central Freight Lines, Inc. v United States (CA5) 669 F2d 1063 (due
process not violated by permitting oral testimony and cross-examination of 127
representative witnesses, and receipt of written verified statements from 1,600 additional
witnesses).
§ 356 Cross-examination when hearsay evidence is presented
View Entire Section

The admission of hearsay in an administrative proceeding, while permissible, 83 does

affect a party's right to cross-examine the declarant. 84 Similarly, the consideration of
ex parte statements also deprives the parties of the right to confront the witness. 85
However, a party cannot successfully claim to be prejudiced by the admission of hearsay
evidence if it does not take advantage of the opportunity to subpoena the declarant. 86
Problems may arise when an agency does not have subpoena power, but even in such
cases, a party must make an attempt to persuade the declarant to appear at the hearing. 87
It may also be proper for a hearing officer to admit hearsay evidence subject to the
understanding that it should be evaluated in light of the fact that the declarant could not
be present for cross-examination and that therefore the declarant's credibility could not be
determined. 88
Footnotes

Footnote 84. Brown v Macy (ED La) 222 F Supp 639, affd (CA5 La) 340 F2d 115.

Footnote 85. Southern Stevedoring Co. v Voris (CA5 Tex) 190 F2d 275.
Footnote 86. Richardson v Perales, 402 US 389, 28 L Ed 2d 842, 91 S Ct 1420 (not

followed on other grounds by Whitney v Schweiker (CA7 Ill) 695 F2d 784) as stated in
Garrison v Heckler (CA7 Ill) 765 F2d 710 (criticized on other grounds by Sorenson v
Bowen (CA10 Utah) 888 F2d 706, CCH Unemployment Ins Rep ¶ 15013A).
A transcript of testimony taken before another tribunal may be properly admitted in

evidence and given substantial evidentiary weight in an administrative proceeding, so
long as the testimony bears a reasonable indicia of reliability; the right of
cross-examination in such instances is preserved by the party's ability to compel both the
appearance of the witness and his or her testimony before the agency. Dolphino Corp. v
Alcoholic Beverages Control Com., 29 Mass App 954, 559 NE2d 1261.
Footnote 88. Martin–Mendoza v Immigration & Naturalization Service (CA9) 499 F2d
Ed 2d 667, 95 S Ct 1417.
§ 357 Rebuttal in cases determined on documentary evidence
View Entire Section

Written submissions 89 and deposition transcripts 90 may be submitted in lieu of oral

evidence in some circumstances, and in such circumstances a party does not have the
opportunity to directly confront and verbally cross-examine a witness; instead, in order to
challenge facts submitted in written form, a party should utilize discovery procedures 91
and propound cross-interrogatories. 92 If there is no dispute on critical facts and the
only matter in dispute is the weight of undisputed facts, an agency may merely allow the
submission of written arguments and need not afford an opportunity to cross-examine. 93
Footnotes
Footnote 91. Ashworth Transfer, Inc. v United States (DC Utah) 315 F Supp 199.

As to discovery in administrative adjudications, generally, see §§ 327-332.
Footnote 93. National Trailer Convoy, Inc. v United States (ND Okla) 293 F Supp 634.
§ 358 Permissible scope of cross-examination
View Entire Section

The scope and extent of cross-examination is ordinarily within the control and sound
discretion of the hearing officer. 94 A hearing officer may preclude
cross-examination into areas which are irrelevant or immaterial. 95 Cross-examination
may also be limited if it is repetitious, 96 or if it is only used to challenge the testimony
of a witness which the agency is disregarding anyway, because the witness's testimony
was cumulative. 97 A hearing officer may also limit cross-examination which has the
effect of impeaching information in the cross-examining party's own exhibits. 98
Cross-examination of an expert witness regarding contrary statements in a reputable

treatise is permissible. 99 However, one cannot call an author of a treatise to the stand
to be cross-examined, if the treatise is only being used for general information. 1
Footnotes
Footnote 94. Delaware River Port Authority v Tiemann (DC NJ) 403 F Supp 1117, 6
ELR 20402, vacated on other grounds (CA3 NJ) 531 F2d 699, on remand (DC NJ) 421 F
Supp 142; Loesch v Federal Trade Com. (CA4) 257 F2d 882, cert den 358 US 883, 3 L
Ed 2d 112, 79 S Ct 125; NLRB v Miami Coca-Cola Bottling Co. (CA5) 360 F2d 569, 62
BNA LRRM 2155, 53 CCH LC ¶ 11233; Commission on Medical Discipline v Stillman,
291 Md 390, 435 A2d 747; Mueller v Ruddy (Mo App) 617 SW2d 466, cert den 454 US
1055, 70 L Ed 2d 591, 102 S Ct 600.
A requirement limiting cross-examination and rebuttal at a hearing on an application for

siting approval for a waste control facility to documentary evidence already in the record
did not violate due process. Waste Management of Illinois, Inc. v Pollution Control Bd.
(2d Dist) 175 Ill App 3d 1023, 125 Ill Dec 524, 530 NE2d 682.
Footnote 95. Schere v Christenberry (DC NY) 179 F Supp 900; Siegel v Atomic Energy
Com., 130 US App DC 307, 400 F2d 778; Fee Plan, Inc. v Department of Environmental
Conservation (2d Dept) 118 App Div 2d 855, 500 NYS2d 344.
Footnote 96. Siegel v Atomic Energy Com., 130 US App DC 307, 400 F2d 778; Fee
Plan, Inc. v Department of Environmental Conservation (2d Dept) 118 App Div 2d 855,
500 NYS2d 344.
In a hearing on charges against a police officer, a police hearing board did not deny the
officer his due process rights by limiting the officer's cross-examination of the police
department's witnesses; the information sought on cross-examination was later
introduced through other evidence and testimony. Di Rienz v Constantine (3d Dept) 151
App Div 2d 953, 543 NYS2d 232.
Footnote 97. Fried v United States (SD NY) 212 F Supp 886.
Footnote 98. Delaware River Port Authority v Tiemann (DC NJ) 403 F Supp 1117, 6
ELR 20402, vacated on other grounds (CA3 NJ) 531 F2d 699, on remand (DC NJ) 421 F
Supp 142.
Footnote 99. Reilly v Pinkus, 338 US 269, 94 L Ed 63, 70 S Ct 110.
Footnote 1. United States ex rel. Dong Wing Ott v Shaughnessy (DC NY) 116 F Supp
745.
§ 359 Effect of denial of right to cross-examine
View Entire Section

Although a party has a right to cross-examine witnesses, an abridgement of this right may
constitute harmless error, if the party is not prejudiced as a result. 2 If a party fails to
point to any specific weakness in the proof which might have been explored or developed
more fully by cross-examination than by procedures adopted by the agency, or fails
specifically to suggest what questions were necessary to explore the general issues to be
examined, or fails to explain why written submissions, including rebuttal material, were
ineffectual, no prejudice has been established. 3 In other words, if a party fails to show
any instance where the opportunity to cross-examine might have helped its case, the
administrative determination need not be overturned. 4
Administrative determinations have also been upheld where parties were offered the
opportunity to recall and cross-examine witnesses, 5 although there is authority for the
view that an opportunity to recall witnesses is insufficient where the agency has violated
its pretrial order and agency rules providing for prior notification of the names of
witnesses, thereby interfering with the respondent's right to prepare cross-examination
questions. 6 Similarly, an opportunity to object to post-hearing medical reports by way
of affidavit is insufficient where an administrative law judge substantially relies upon the
reports, and that consequently it is an abuse of discretion and a violation of the claimant's
right to procedural due process under such circumstances to deny the claimant the
opportunity to subpoena and cross-examine the authors of such reports. 7 Prejudice may
also arise if an agency seizes an apparently minor exhibit in a large record and makes it
an important basis for its decision without granting an opportunity for full
cross-examination, rebuttal, or argument. 8
Footnotes

Footnote 2. Texas-Capital Contractors, Inc. v Abdnor (CA5 Tex) 933 F2d 261, 37 CCF ¶
76113; Wasson v SEC (CA8) 558 F2d 879, CCH Fed Secur L Rep ¶ 96092; Liss v Trans
Auto Systems, Inc., 68 NY2d 15, 505 NYS2d 831, 496 NE2d 851, later proceeding 136
Misc 2d 197, 518 NYS2d 315.
Footnote 3. Cellular Mobile Systems, Inc. v FCC, 251 US App DC 100, 782 F2d 182.
Footnote 4. Wasson v SEC (CA8) 558 F2d 879, CCH Fed Secur L Rep ¶ 96092; Majority
of Working Interest Owners in Buck Draw Field Area v Wyoming Oil & Gas
Conservation Com. (Wyo) 721 P2d 1070, 94 OGR 636.
Footnote 5. Freight Consolidators Co-operative, Inc. v United States (SD NY) 230 F
Supp 692; Giant Food, Inc. v FTC, 116 US App DC 227, 322 F2d 977, cert dismd 376
US 967, 12 L Ed 2d 82, 84 S Ct 1121.
Footnote 6. Pacific Molasses Co. v Federal Trade Com. (CA5) 356 F2d 386, 1966 CCH
Footnote 7. Demenech v Secretary of HHS (CA11 Fla) 913 F2d 882, CCH
Unemployment Ins Rep ¶ 15709A.
Footnote 8. ABC Air Freight Co. v Civil Aeronautics Board (CA2) 391 F2d 295.
10. Burden of Proof [360-364]
§ 360 Generally
View Entire Section

Go to Supplement
The allocation of the burden of proof determines which side cannot prevail due to its
failure to submit sufficient proof. 9 Generally, the burden of proof is on the party
asserting the affirmative issue in an adjudicatory administrative proceeding. 10 The
proponent of the request and the person who is under the burden to establish its eligibility
is generally a party making a claim 11 or seeking a permit, 12 a pension, 13 or a special
order. 14 The government is the proponent of an order seeking sanctions
against a private party. 15 However, the fact that a party requests an administrative
hearing does not, ipso facto, make it the proponent of the issue. 16
Case authorities:
ALJ's use of "true doubt" rule to decide medical evidence in equipoise in favor of
claimant was erroneous since, by definition, equipoise means that claimant had not
carried his burden of proof by preponderance of evidence. Greenwich Collieries v
Director, Office of Workers' Compensation Programs, United States Dep't of Labor
(1993, CA3) 990 F2d 730 (disagreed with by Skukan v Consolidation Coal Co. (CA6)
1993 US App LEXIS 11350).
Endangered Species Act (16 USCS §§ 1531 et seq.) and National Oceanic Atmospheric
Administration (NOAA) regulations do not shift burden of proof for establishing failure
to use turtle excluder device while shrimping, in violation of Act, and burden remains on
government; thus, district court erred in granting summary judgment against shrimpers
where only evidence before ALJ was NOAA's Notice of Violation and Assessment,
which is unsworn document containing only factual allegation of charged crime. United
States v Menendez (1995, CA5 La) 48 F3d 1401, 40 Envt Rep Cas 1629, 25 ELR 20938.
Footnotes
Footnote 9. Overnite Transp. Co. v United States (ED Va) 266 F Supp 88; English v
Northfield (1st Dist) 172 Ill App 3d 344, 122 Ill Dec 329, 526 NE2d 588, app den 123 Ill
2d 557, 128 Ill Dec 889, 535 NE2d 400.
Footnote 10. Columbia Realty Venture v District of Columbia Rental Housing Com.
(Dist Col App) 590 A2d 1043; English v Northfield (1st Dist) 172 Ill App 3d 344, 122 Ill
Dec 329, 526 NE2d 588, app den 123 Ill 2d 557, 128 Ill Dec 889, 535 NE2d 400;
Norland v Iowa Dept. of Job Service (Iowa) 412 NW2d 904.
The federal Administrative Procedure Act provides that, except as otherwise provided by
statute, the proponent of a rule or order has the burden of proof. 5 USCS § 556(d).
Footnote 11. Ryan v Flemming (DC Mont) 187 F Supp 655.
Footnote 12. United States Steel Corp. v Train (CA7 Ill) 556 F2d 822, 10 Envt Rep Cas
1001, 7 ELR 20419 (criticized on other grounds by Taylor v District Engineer, U. S.
Army Corps of Engineers (CA5 Fla) 567 F2d 1332, 11 Envt Rep Cas 1219, 8 ELR
20194) and (criticized on other grounds by West Chicago v United States Nuclear
Regulatory Com. (CA7 Ill) 701 F2d 632, 19 Envt Rep Cas 1006, 13 ELR 20648).
Footnote 13. Kerner v Flemming (CA2 NY) 283 F2d 916.
Footnote 14. State Corp. Com. v Federal Power Com. (CA8) 206 F2d 690, cert den 346
US 922, 98 L Ed 416, 74 S Ct 307, reh den 347 US 1022, 98 L Ed 1142, 74 S Ct 862
and cert den 346 US 922, 98 L Ed 416, 74 S Ct 307, reh den 347 US 1022, 98 L Ed
1142, 74 S Ct 862 and cert den 346 US 922, 98 L Ed 416, 74 S Ct 312.
Footnote 15. Zeigler Coal Co. (1975) 82 ID 111, 37 AdL2d 624.
In a disciplinary proceeding involving a state merit employee, the appointing authority

has the burden before the personnel board of proving the grounds for the dismissal and
the validity of the basis of any separation. Commonwealth Transp. Cabinet Dept. of
Vehicle Regulation v Cornell (Ky App) 796 SW2d 591.
Footnote 16. Newport News Shipbuilding & Dry Dock Co. v Loxley (CA4) 934 F2d 511,

cert den (US) 118 L Ed 2d 547, 112 S Ct 1941 (physician seeking order compelling full
payment of his charges under Longshore and Harbor Workers Act, 33 USCS § 907, has
burden of proof at administrative hearing, despite fact that employer requested such
hearing).
§ 361 Burden to go forward; burden of persuasion
View Entire Section

Go to Supplement
The concept of burden of proof includes the concepts of the burden to go forward with
evidence and the burden of ultimate persuasion. 17 Usually these concepts will
coincide, 18 but in some cases, they may not. 19 Under the federal Administrative
Procedure Act, which provides that the proponent of the rule or order has the burden of
proof, 20 "burden of proof" is the burden of coming forward with proof, and not the
ultimate burden of persuasion. 21
In some cases, one party may have the burden of going forward, but other parties may
also be under a burden to present evidence. 22 For example, while an agency may be
compelled to first present a prima facie case, 23 other parties may have the duty to
go forward with proof of an affirmative defense 24 or may have the ultimate burden to
show the validity of a claim. 25
§ 361 ----Burden to go forward; burden of persuasion [SUPPLEMENT]
Case authorities:
The United States Supreme Court decision in NLRB v Transportation Management Corp.
(1983) 462 US 393, 76 L Ed 2d 667, 103 S Ct 2469, 113 BNA LRRM 2857, 97 CCH
LC ¶10164, 13 Fed Rules Evid Serv 380, has been overruled by the recent decision in
Director, Office of Workers' Compensation Programs, Dept Of Labor v Greenwich
Collieries (1994, US) 129 L Ed 2d 221, 114 S Ct 2251, 94 CDOS 4571, 94 Daily
Journal DAR 8477, 16 BNA OSHC 1825, 1994 AMC 2855, 8 FLW Fed S 269, which
holds that for purposes of § 7(c) of the Administrative Procedure Act (5 USCS § 556(d)),
the term "burden of proof" means not the burden of production–that is, the obligation to
come forward with evidence to support a claim–but rather the burden of persuasion.
Footnotes
Footnote 17. Environmental Defense Fund, Inc. v EPA, 179 US App DC 43, 548 F2d
998, 9 Envt Rep Cas 1433, 7 ELR 20012, 7 ELR 20114, reh den, supp op (App DC) 9
Rep Cas 1176; McCoy v Board of Retirement (2nd Dist) 183 Cal App 3d 1044, 228 Cal
Rptr 567.

Footnote 18. Re Application for Permits to Drain Related to Stone Creek Channel
Improv. etc. (ND) 424 NW2d 894 (holding that the placement of the burden of proof on
the moving party in an administrative proceeding gives that party, in absence of an
operative presumption, the burden of going forward with proof as well as the burden of
persuasion).
Rep Cas 1176.
Footnote 21. NLRB v Transportation Management Corp., 462 US 393, 76 L Ed 2d 667,

103 S Ct 2469, 113 BNA LRRM 2857, 97 CCH LC ¶ 10164, 13 Fed Rules Evid Serv
380, later proceeding 277 NLRB 474, 120 BNA LRRM 1281, 1985-86 CCH NLRB ¶
17698; Hazardous Waste Treatment Council v U.S. EPA, 280 US App DC 338, 886 F2d
355, 30 Envt Rep Cas 1233, 19 ELR 21398, review dismd (App DC) 1989 US App
LEXIS 16495 and cert den 498 US 849, 112 L Ed 2d 106, 111 S Ct 139, 31 Envt Rep
Cas 2120; Environmental Defense Fund, Inc. v EPA, 179 US App DC 43, 548 F2d 998, 9
Envt Rep Cas 1433, 7 ELR 20012, 7 ELR 20114, reh den, supp op (App DC) 9 Envt Rep
Cas 1575 and cert den 431 US 925, 53 L Ed 2d 239, 97 S Ct 2199, 10 Envt Rep Cas
1176.
The strict definition of burden of proof is that the burden of proof is synonymous with the
burden of ultimate persuasion, and the burden of going forward is a separate concept; see
29 Am Jur 2d, Evidence § 124.
Rep Cas 1176.
Footnote 23. Hazardous Waste Treatment Council v U.S. EPA, 280 US App DC 338, 886
F2d 355, 30 Envt Rep Cas 1233, 19 ELR 21398, review dismd (App DC) 1989 US App
LEXIS 16495 and cert den 498 US 849, 112 L Ed 2d 106, 111 S Ct 139, 31 Envt Rep
Cas 2120 (holding that the initial burden of going forward with the prima facie case of
unlawful conduct rests on the agency charging the statutory violation, unless a regulatory
statute provides otherwise).
In an administrative proceeding on a suspension of a commercial pilot's license, the

administrator has the initial burden to present prima facie case showing that the charged
pilot violated FAA regulation, and if the administrator does so, the burden of production
shifts to the pilot, who must present evidence to rebut the prima facie case; however, the
burden of proof always remains with the administrator. Roach v National Transp. Safety
Bd. (CA10) 804 F2d 1147, cert den 486 US 1006, 100 L Ed 2d 195, 108 S Ct 1732.
Footnote 24. NLRB v Mastro Plastics Corp. (CA2) 354 F2d 170, 60 BNA LRRM 2578,
52 CCH LC ¶ 16787, cert den 384 US 972, 16 L Ed 2d 682, 86 S Ct 1862, 62 BNA
LRRM 2292, 53 CCH LC ¶ 11270 and (not followed on other grounds by Woonsocket
Health Centre, 263 NLRB 1367, 111 BNA LRRM 1516, 1982-83 CCH NLRB ¶ 15225)
as stated in Fugazy Continental Corp., 276 NLRB 1334, 120 BNA LRRM 1264, 1985-86
CCH NLRB ¶ 17535, enforced (CA2) 817 F2d 979, 125 BNA LRRM 2287, 106 CCH
LC ¶ 12389.
Footnote 25. Stewart v Penny (DC Nev) 238 F Supp 821, 9 FR Serv 2d 19a.1, Case 11.
§ 362 Presumptions
View Entire Section

An agency under an obligation to present a prima facie case 26 may be aided by

presumptions. 27 However, an agency only has the power to utilize rebuttable
presumptions, which only define the order in which proof may be presented, 28 and
not conclusive presumptions, which entirely dispense with the need to present proof to
resolve a factual dispute. 29
Footnotes
Footnote 27. Luria v United States, 231 US 9, 58 L Ed 101, 34 S Ct 10.
Agencies are permitted to adopt and apply presumptions if the proven facts and the
inferred facts are rationally connected. Massachusetts v United States (CA1) 856 F2d
378, 19 ELR 20168.
Where an administrative agency sends a notice through the regular course of mail, the
presumption arises that the notice is received. Carter v Review Bd. of Indiana Dept. of
Employment & Training Services (Ind App) 526 NE2d 717.
Footnote 28. Luria v United States, 231 US 9, 58 L Ed 101, 34 S Ct 10.
Footnote 29. Miller v United States, 294 US 435, 79 L Ed 977, 55 S Ct 440, reh den
294 US 734, 79 L Ed 1262, 55 S Ct 635.
§ 363 Standard of proof
View Entire Section

Go to Supplement
Absent an allegation of fraud or a statute or a court rule requiring a higher standard, the
standard of proof in administrative hearings is generally a preponderance of the evidence.

30
Utilization of a higher level of proof is ordinarily reserved for situations where

particularly important individual interests or rights are at stake, such as the potential
deprivation of individual liberty, citizenship, or parental rights. 31 Accordingly, courts
have required that agencies utilize a higher level of proof, such as "clear and convincing
evidence" in cases where serious sanctions may be imposed, such as deportation
proceedings. 32
The "beyond a reasonable doubt" standard applicable to criminal proceedings is not used
in administrative proceedings. 33 Thus, even though a person is acquitted of a crime,
administrative sanctions, such as dismissal from the civil service, may still be imposed.
34
It is the agency's responsibility to determine the weight and credibility of testimony, and
to appraise conflicting and circumstantial evidence. 35 Where the evidence is equal
on both sides of an issue, an agency may not give the benefit of the doubt to the injured
claimant, who bears the burden of proof by a preponderance of the evidence. 36
Determinations and credibility must be made by the presiding officer at the hearing. 37
An agency's resolution of controverted scientific and technical matters must be granted
great deference. 38
§ 363 ----Standard of proof [SUPPLEMENT]
Practice Aids: Petition or application–Allegation–Determinations of federal agency

not supported by evidence required under statutes. 1A Am Jur Pl & Pr Forms (Rev),
Administrative Law, Form .
Footnotes
Footnote 30. Re D'Angelo, 105 NM 391, 733 P2d 360, cert den 479 US 1065, 93 L Ed
2d 1001, 107 S Ct 952; Samuel J. Lansberry, Inc. v Pennsylvania Public Utility Com.,
134 Pa Cmwlth 218, 578 A2d 600, reh den (Pa Cmwlth) 1990 Pa Commw LEXIS 517
and app den 529 Pa 654, 602 A2d 863; Walker v Board of Pardons (Utah) 803 P2d 1241,
150 Utah Adv Rep 10.
The standard of proof prescribed in the legislative history of § 556(d) of the federal
Administrative Procedure Act is a preponderance of the evidence. Steadman v SEC, 450
US 91, 67 L Ed 2d 69, 101 S Ct 999, CCH Fed Secur L Rep ¶ 97878, reh den 451 US
933, 68 L Ed 2d 318, 101 S Ct 2008.
Footnote 31. Bender v Clark (CA10 NM) 744 F2d 1424, 84 OGR 131.
Footnote 32. Woodby v Immigration & Naturalization Service, 385 US 276, 17 L Ed 2d

362, 87 S Ct 483.
Footnote 33. Grantham v Gunter (Fla App D5) 498 So 2d 1328, 11 FLW 2594; Cittadino
v Department of Police (La App 4th Cir) 558 So 2d 1311; Duran v Gunn (2d Dept) 135
App Div 2d 628, 522 NYS2d 207.

Footnote 34. Alsbury v United States Postal Service (CA9 Cal) 530 F2d 852, cert den
429 US 828, 50 L Ed 2d 91, 97 S Ct 85 and (superseded by statute on other grounds as
stated in Yokum v United States Postal Service (CA4 Va) 877 F2d 276, 4 BNA IER Cas
1661, 131 BNA LRRM 2795); Polcover v Secretary of Treasury, 155 US App DC 338,
Footnote 35. NLRB v Link-Belt Co., 311 US 584, 85 L Ed 368, 61 S Ct 358, 7 BNA
LRRM 297, 3 CCH LC ¶ 51106; D'Amico v Cox Creek Refining Co. (DC Md) 719 F
Supp 403, 132 BNA LRRM 2956; Arkansas Health Planning & Dev. Agency v Hot
Spring County Memorial Hospital, 291 Ark 186, 723 SW2d 363; Ornelas v Department
of Inst., Div. of Youth Services (Colo App) 804 P2d 235; Huck v Inland Wetlands &
Watercourses Agency, 203 Conn 525, 525 A2d 940; Faucher v R.C.F. Developers (Fla
App D1) 569 So 2d 794, 15 FLW D 2543; Finik v Department of Employment Secur.
(1st Dist) 171 Ill App 3d 125, 121 Ill Dec 100, 524 NE2d 1148; Carron v Ste. Genevieve
School Dist. (Mo App) 800 SW2d 64; Olson v Omaha, 232 Neb 428, 441 NW2d 149;
Cashmark v Workmen's Compensation Appeal Bd. (Great A & P Tea Co.), 135 Pa
Cmwlth 464, 580 A2d 1189; Texas State Bd. of Dental Examiners v Silagi (Tex App El
Paso) 766 SW2d 280, writ den (Sep 13, 1989) and reh overr (Oct 25, 1989); Johnson v
Department of Employment Secur. (Utah App) 782 P2d 965, 121 Utah Adv Rep 26.
An agency has great discretion in deciding which evidence to accept and how much
weight should be accorded a particular document or testimonial statement, and its
determination in that respect is subject only to the requirement that the administrative
finding be rationally based or, where appropriate, supported by substantial evidence.
Kogan v Popolizio (1st Dept) 141 App Div 2d 339, 529 NYS2d 755.
Footnote 36. Maher Terminals, Inc. v Director, Office of Workers Compensation

Programs (CA3) 992 F2d 1277.
Footnote 37. NLRB v Walton Mfg. Co., 369 US 404, 7 L Ed 2d 829, 82 S Ct 853, 49
BNA LRRM 2962, on remand (CA5) 322 F2d 187, 54 BNA LRRM 2118, 48 CCH LC ¶
18456.
Footnote 38. Federal Power Com. v Florida Power & Light Co., 404 US 453, 30 L Ed
§ 364 Sufficiency and weight of hearsay evidence
View Entire Section

Hearsay is admissible in administrative proceedings, 39 and may be given such

probative force as is warranted. 40 Hearsay evidence that meets the standard of the
administrative procedure acts by being relevant, material, and unrepetitious 41 can be
weighed in an agency proceeding according to its truthfulness, reasonableness, and
credibility. 42 Factors which may be considered in determining the weight to be
accorded hearsay include whether: (1) the statement was written or signed; (2) the
statement was sworn to by the declarant; (3) the declarant was a disinterested witness or
had a potential bias; (4) the hearsay statement is denied or contradicted by other
evidence; (5) the declarant is credible; (6) there is corroboration for hearsay statement;
(7) the case turns on the credibility of witnesses; (8) the party relying on the hearsay
offers an adequate explanation for the failure to call the declarant to testify; and (9) the
party against whom the hearsay is used had access to the statements prior to the hearing
or an opportunity to subpoena the declarant. 43 Hearsay may even constitute
substantial evidence which can support an order, standing alone, 44 although there is
competent opposing testimony, 45 so long as it carries special indicia of probativeness
and trustworthiness. 46 Hearsay lacking sufficient assurance of truthfulness cannot
constitute substantial evidence which will overcome direct testimony. 47
Footnotes
Footnote 40. NLRB v Service Wood Heel Co. (CA1) 124 F2d 470, 9 BNA LRRM 422, 5
CCH LC ¶ 60831; Rocker v Celebrezze (CA2 NY) 358 F2d 119; Heath v Gardner (ND
Fla) 287 F Supp 721; Jacobowitz v United States, 191 Ct Cl 444, 424 F2d 555, 6 ALR
Fed 61, later proceeding 194 Ct Cl 1041.
Footnote 42. Veg-Mix, Inc. v U.S. Dept. of Agriculture, 266 US App DC 1, 832 F2d 601.

followed on other grounds by Whitney v Schweiker (CA7 Ill) 695 F2d 784) as stated in
Garrison v Heckler (CA7 Ill) 765 F2d 710 (criticized on other grounds by Sorenson v
Bowen (CA10 Utah) 888 F2d 706, CCH Unemployment Ins Rep ¶ 15013A); Jackson v
United States, 192 Ct Cl 765, 428 F2d 844; Peters v United States, 187 Ct Cl 63, 408 F2d
719; Industrial Claims Appeals Office v Flower Stop Marketing Corp. (Colo) 782 P2d
13.

Footnote 44. School Bd. v Department of Health, Education & Welfare, United States
Office of Education (CA5 Fla) 525 F2d 900.

followed by Whitney v Schweiker (CA7 Ill) 695 F2d 784) as stated in Garrison v Heckler
(CA7 Ill) 765 F2d 710 (criticized by Sorenson v Bowen (CA10 Utah) 888 F2d 706, CCH
Unemployment Ins Rep ¶ 15013A).
Footnote 46. McClees v Sullivan (CA8 Iowa) 879 F2d 451, CCH Unemployment Ins Rep
¶ 14809A, appeal after remand (CA8 Iowa) 2 F3d 301, 42 Soc Sec Rep Serv 37, CCH
Unemployment Ins Rep ¶ 17464A; Gelco Builders, Inc. v Holtzman (1st Dept) 168 App
Div 2d 232, 562 NYS2d 120, 30 BNA WH Cas 166, app den 77 NY2d 810, 571 NYS2d
913, 575 NE2d 399.

There is no need to have a residuum of competent evidence to support a decision, so long
as the evidence used is probative and trustworthy. School Bd. v Department of Health,
Education & Welfare, United States Office of Education (CA5 Fla) 525 F2d 900.
Hearsay of evidence such as telephone surveys, mail surveys, census surveys, and
consultation with other health care providers constituted substantial evidence in an
administrative hearing to determine whether to grant a certificate of need, where the
applicant of the certificate had the opportunity to question any resource data, but did not
do so. Arkansas Health Planning & Dev. Agency v Hot Spring County Memorial
Hospital, 291 Ark 186, 723 SW2d 363.
If hearsay evidence is of a sufficient probative force, it may serve as the sole basis for an
administrative body's decision as long as a procedural means to permit cross-examination
is available. Tron v Prince George's County, 69 Md App 256, 517 A2d 113.
A party may prove a case in an administrative hearing by hearsay evidence, even if the
other party presents direct evidence. Tri-Met v Employment Div., 88 Or App 122, 744
P2d 296.
Footnote 47. McKee v United States, 205 Ct Cl 303, 500 F2d 525, 20 CCF ¶ 83195.
F. Initial or Recommended Decision [365-368]
Research References
5 USCS § 557(b), (c)
ALR Digest: Administrative Law §§ 117, 118
1A Federal Procedural Forms, L Ed, Administrative Procedure §§ 2:151, 2:182
§ 365 Generally
View Entire Section

Go to Supplement
When a hearing is held before an officer or an employee, and not before the
commissioners of an agency, the presiding examiner should prepare a report for
consideration by the commissioners. 48 The Federal Administrative Procedure Act
provides for the preparation of initial or recommended decisions when the agency head
does not preside at the reception of evidence. 49 The 1961 Model State Administrative
Procedure Act provides that where a majority of the officials of an agency which is to
render a final decision has not heard the case or read the record, and the agency's decision
will be adverse to a party other than the agency itself, the agency must serve upon the
parties a proposal for decision. 50 Parties may waive compliance with the proposal for
decision requirement by written stipulation. 51
The 1981 Model State Administrative Procedure Act, which tracks the language of the
federal Act with regard to initial orders, eliminates the proposal for decision of the 1961
Act. 52
Under the Federal Act, an initial decision is used when the presiding employee's decision
can become the decision of the agency without further proceedings, unless there is an
appeal to, or review by, the agency. 53 Such an initial decision should adequately
inform the parties of the presiding officer's recommendations so that the parties have the
opportunity to prepare an appeal to the agency. 54 However, a party's right to prepare
an appeal is not abridged if the members of the agency staff review the record and make
recommendations after the initial decision is submitted, even though their
recommendations are apparently at variance with the initial decision and were not served
on the litigants. 55
A recommended decision is used when the agency makes the final decision itself, without
the need for an appeal to the agency, but does not preside over the taking of evidence. 56
An initial or recommended decision should be prepared by the officer who presided over
the taking of evidence, but if the officer becomes unavailable, an agency can direct that
another hearing officer review the record and prepare a report. 57
Practice Aids: Petition or application–Allegation–Failure to furnish requested

tentative findings and recommendations subject to oral argument. 1A Am Jur Pl & Pr
Case authorities:
In making deposit insurance determination, FDIC is justified in relying on bank account

records and need not consider deposit and accounts that are subject of ongoing litigation.
Raine v Reed (1994, CA5 Tex) 14 F3d 280.
Footnotes
Footnote 48. Morgan v United States, 304 US 1, 82 L Ed 1129, 58 S Ct 773, 58 S Ct

999, 1 CCH LC ¶ 17033, 1 CCH LC ¶ 17037.
Wallace v District Unemployment Compensation Board (Dist Col App) 289 A2d 885,
appeal after remand (Dist Col App) 294 A2d 177.
A hearing examiner has no power to bind an agency with a proposal for decision. Ross v
Texas Catastrophe Property Ins. Asso. (Tex App Austin) 770 SW2d 641.

Footnote 52. Model State Administrative Procedure Act (1981) § 4-215(b) and Comment.
Footnote 54. Kroblin Refrigerated Xpress, Inc. v United States (ND Iowa) 197 F Supp
39; Western Union Div., etc. v United States (DC Dist Col) 87 F Supp 324, affd 338 US
864, 94 L Ed 530, 70 S Ct 148.
As to review by the agency, generally, see § 369.
Footnote 55. T. S. C. Motor Freight Lines, Inc. v United States (SD Tex) 186 F Supp
777, affd 366 US 419, 6 L Ed 2d 387, 81 S Ct 1356.
1095; Consolidated Carriers Corp. v United States (SD NY) 321 F Supp 1098, affd 402
US 901, 28 L Ed 2d 642, 91 S Ct 1375, reh den 402 US 1013, 29 L Ed 2d 436, 91 S Ct
2187; NLRB v Stocker Mfg. Co. (CA3) 185 F2d 451, 27 BNA LRRM 2105, 19 CCH LC
¶ 66060; NLRB v Dixie Shirt Co. (CA4) 176 F2d 969, 24 BNA LRRM 2561, 17 CCH
LC ¶ 65360; Gamble-Skogmo, Inc. v Federal Trade Com. (CA8) 211 F2d 106 (criticized
on other grounds by Millar v Federal Communications Com., 228 US App DC 125, 707
F2d 1530).
As to substitution of hearing officers, generally, see § 312.
employee at agency adjudication under Administrative Procedure Act (5 USCS §
§ 366 Dispensing with initial or recommended decision
View Entire Section

The Federal Administrative Procedure Act provides that an initial decision is not
necessary when the agency presides over the hearing, or when the agency requires, either
in specific cases or by general rule, that the entire record be certified to it for decision. 58
The Act further provides that a recommended decision is not required in rulemaking or
determinations for initial licenses where the agency itself issues a tentative decision or
one of its responsible employees recommends a decision, 59 or where the agency finds
on the record that due and timely execution of its functions imperatively and unavoidably
requires a decision without a recommended decision. 60 If an agency relies on the
exception to the recommended decision requirement when it finds on the record that due
and timely execution of its functions imperatively and unavoidably requires a decision
without a recommended decision, the agency must include an explanation of the
imperative circumstances and must offer greater justification than rote repetition of the
foregoing statutory enabling language. 61
Footnotes
This exception includes all "forms of permission." Brotherhood of Locomotive

Engineers v United States (ND Ohio) 217 F Supp 98, 53 BNA LRRM 2180.
Footnote 61. Central & Southern Motor Freight Tariff Asso. v United States (DC Del)
273 F Supp 823, appeal after remand (DC Del) 345 F Supp 1389.
§ 367 Proposed findings and conclusions
View Entire Section

Go to Supplement
The parties to a trial-type formal hearing are entitled to a reasonable opportunity to

submit proposed findings and conclusions for the consideration of the deciding officer.
62 The 1981 Model State Administrative Procedure Act (1981) provides that parties
must be allowed a designated amount of time for the submission of proposed findings. 63
Supporting reasons may also be filed with the findings and conclusions. 64 However,
if, under the Federal Act, one of the provisions permitting the omission of the initial or
recommended decision is applicable, such as in an emergency situation, there is no need
to grant the parties an opportunity to file the findings and conclusions along with a
supporting brief. 65 Even when an exception is not utilized, the agency may require
that briefs be submitted by a specified date shortly after the close of the hearing. 66
The record must show a ruling on each finding and conclusion which is presented. 67
§ 367 ----Proposed findings and conclusions [SUPPLEMENT]
Case authorities:
Failure to provide statement of reasons for selecting winning bid over plaintiff's lower
bid in award of government construction contract, other than stating that winning bid had
received majority of votes of panel members, did not violate predicate acts where
plaintiff received no votes, where plaintiff's design was criticized as disjointed and
confusing with unusable open space and awkward and unconvincing architecture, and
where staff noted that bidder had limited or no experience developing similar projects.
Saratoga Dev. Corp. v United States (1994, App DC) 21 F3d 445.
Footnotes
Model State Administrative Procedure Act (1961) § 11.
Forms: Presentation of proposed findings and conclusions. 1A Federal Procedural

Findings of fact and conclusions. 1A Federal Procedural Forms, L Ed, Administrative

Procedure § 2:182.
Footnote 65. Atchison, T. & S. F. R. Co. v Interstate Commerce Com. (ED Pa) 403 F
Supp 1327, affd 426 US 943, 49 L Ed 2d 1180, 96 S Ct 3160.
Footnote 66. Florida Economic Advisory Council v Federal Power Com., 102 US App
§ 368 Contents of decision; findings and conclusions
View Entire Section

The initial, recommended, or tentative decision must include findings and conclusions,
and the reasons or basis therefor, on all material issues of fact, law, or discretion
presented on the record and the appropriate rule, order, sanction, relief, or denial which
should issue, should the initial or recommended decision stand. 68 The initial or
recommended decision should contain specific findings of fact and reasons in support of
the proposed order to permit intelligent agency review of the decision. 69 If the
administrative law judge's findings, conclusions, and proposed order are sufficient and in
the proper form, they may be adopted by the agency without change. 70
Footnotes
Procedure Act (1981) § 4-215(c).
Footnote 69. Rasel v Bethlehem Mines Corp. (1978) 9 BRBS 252.
As to agency review of the initial decision, see §§ 369 et seq.
G. Review by Agency [369-375]
Research References
5 USCS § 557(b), (c)
ALR Digest: Administrative Law §§ 148-150
1A Federal Procedural Forms, L Ed, Administrative Procedure §§ 2:161-2:168,
2:201-2:207
1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Forms 148, 181-186
1. Right to Review [369-371]
§ 369 Generally; notice of appeal
View Entire Section

Go to Supplement
After an administrative law judge or other subordinate official makes an initial decision,
the parties may appeal to the agency, or the agency may review the initial decision on its
own motion. 71 Under the Federal Administrative Procedure Act, such an appeal or
review must be commenced within the time specified by agency rule; otherwise the initial
decision becomes the final decision of the agency. 72 The 1981 Model State
Administrative Procedure Act sets a suggested statutory deadline of 10 days for
appealing, subject to tolling upon the filing of a petition for reconsideration. 73 Thus, a
party desiring review of an initial decision should file a timely and sufficient notice of
appeal, 74 although certain defects may be waived. 75 However, the time to
file an administrative appeal is not tolled by an attempt to first appeal to the courts. 76
A notice of appeal is only required from an initial decision; if the entire record is certified
to the agency, and a subordinate employee can only make a recommended decision, 77
no notice of appeal is needed before the agency can make a final determination. 78
Some agencies have intermediate appellate boards, and an appeal must first be taken to
such a board, and the board's decision may then be appealed to the agency as a whole. 79
There is no constitutional right to be heard or to present evidence in an agency review

proceeding. 80
§ 369 ----Generally; notice of appeal [SUPPLEMENT]
Practice Aids: Notice–Of appeal–From rejection of application. 1A Am Jur Pl & Pr

Forms (Rev), Administrative Law, Form .
Case authorities:
Court is satisfied with limited procedure available to associations in appointment and

replacement of conservators under Financial Institutions Reform Recovery and
Enforcement Act (FIRREA); redress for FIRREA's denial of judicial review is available
though APA. Franklin Sav. Ass'n v Office of Thrift Supervision (1994, CA10 Kan) 35
F3d 1466.
Footnotes
Footnote 74. Pettit v United States, 203 Ct Cl 207, 488 F2d 1026, 6 BNA FEP Cas 1166,
6 CCH EPD ¶ 9036 (disapproved on other grounds by United States v Testan, 424 US
392, 47 L Ed 2d 114, 96 S Ct 948, 11 CCH EPD ¶ 10729).
An agency seeking to establish a waiver of administrative proceedings based on the

passage of time following the agency action must show that the affected person received
notice sufficient to commence the running of the time period within which review must
be sought. Symons v State, Dept. of Banking & Finance (Fla App D1) 490 So 2d 1322,
11 FLW 1436.
Forms: Notice–Of appeal. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law,

Form 181.
–From rejection of application. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law,

Form 182.
–From denial of request for records under Freedom of Information Act. 1A Am Jur Pl
& Pr Forms (Rev), Administrative Law, Form 183; 1A Federal Procedural Forms, L
–From decision of lower eschelon of administrative agency. 1A Federal Procedural

–To contract appeal board. 1A Federal Procedural Forms, L Ed, Administrative

Procedure § 2:202.
–Of hearing for review–Appeal from rejection of application. 1A Am Jur Pl & Pr

Forms (Rev), Administrative Law, Forms 184, 185.
–Of decision on review–Appeal from rejection of application. 1A Am Jur Pl & Pr

Footnote 75. Pettit v United States, 203 Ct Cl 207, 488 F2d 1026, 6 BNA FEP Cas 1166,
6 CCH EPD ¶ 9036 (disapproved on other grounds by United States v Testan, 424 US
392, 47 L Ed 2d 114, 96 S Ct 948, 11 CCH EPD ¶ 10729) (holding that an appeal was
timely where the last day to appeal was a Saturday, the agency office was closed, and the
appellant telephoned the agency on the following Monday, stated his intention to appeal,
and followed the telephone call with a letter).
An appeal was considered timely where the appellant pressed his appeal through the
agency instead of through the Civil Service system. Piccone v United States, 186 Ct Cl
752, 407 F2d 866, later proceeding 189 Ct Cl 576.
Footnote 76. Heart of Black Hills Stations (1976, FCC) 40 AdL2d 426.
Footnote 78. Sokoloff v Saxbe (CA2) 501 F2d 571.
Footnote 79. Trailways of New England, Inc. v United States (DC Dist Col) 235 F Supp
509.
Footnote 80. Davis v State Bd. of Psychologist Examiners (Colo App) 791 P2d 1198, cert
den (Colo) 1990 Colo LEXIS 410.
§ 370 Interlocutory review
View Entire Section

Ordinarily, a party may appeal from an administrative law judge to the agency only after
an initial decision is made, and an agency will not step in to review matters committed to
the presiding officer's discretion, 81 such as rulings on the admissibility of evidence,
during the course of an administrative hearing. 82 The limitation of interlocutory
appeals avoids piecemeal review of the administrative law judge's actions, but, on
occasion, interlocutory orders may have sufficient finality or may raise significant
enough issues that the agency may assume appellate jurisdiction, such as by certification.
83
Footnotes

Footnote 81. Mellon National Corp. (1975, Board of Governors of Federal Reserve
System) 38 AdL2d 50.
Footnote 82. Toledo-Edison Co. (1976) ALAB-314, 38 AdL2d 763.
Footnote 83. Re Hok Hing Ku (1976) Bd Imm App, File No. A15 857 820, Philadelphia,
40 AdL2d 12; Kansas Gas & Electric Co. (1976) ALAB-327, 39 AdL2d 11 (immediate
review was justified when a protective order was denied).
As to interlocutory appeals under 28 USCS § 1292(b), see 2 Federal Procedure, L Ed,

Appeal, Certiorari, and Review §§ 3:352-3:366.
§ 371 Filing exceptions to initial decision
View Entire Section

Go to Supplement
Before an agency reviews a decision of a subordinate employee, the parties are entitled to
a reasonable opportunity to submit exceptions to the initial or recommended decision and
supporting reasons for the exceptions. 84 The filing of exceptions preserves a party's
objections on the record 85 and assures that they may be reached on judicial review. 86
An agency may properly promulgate a rule requiring that points and arguments be
presented to the hearing officer before they may be considered by the agency on review
of an initial decision. 87 For instance, an objection to the admissibility of evidence may
be waived if no contemporaneous objection was made. 88 However, if an objection to
the admission of evidence is made at the hearing, additional reasons in support of the
objection may be argued before the agency. 89 An agency may also, on its own
motion, review any question presented on the record. 90
 Recommendation: When filing exceptions, a party should set forth with specificity
the portions of the decision with which it disagrees, and support these contentions with
citations from the record or an appropriate legal brief. 91
§ 371 ----Filing exceptions to initial decision [SUPPLEMENT]
Practice Aids: Exceptions–To proposed or initial decision of agency. 1A Am Jur Pl &

Pr Forms (Rev), Administrative Law, Form .
Footnotes
Footnote 84. 5 USCS § 557(c)(2)-(3).

A district unemployment compensation board is authorized to provide by a procedural
rule that an appeals examiner's decision constitutes the proposed findings and the
decision of the board and in so doing the board should, at the same time the appeals
examiner's decision is issued, provide a time limit in which to file with the board
objections to the appeals examiner's decision with a date for oral argument before the
board or any such objections set at that time or at a later date. Carey v District
Unemployment Compensation Board (Dist Col App) 304 A2d 18.
If an agency simply accepts or affirms the recommendations of an administrative law

judge without its own review, in a case where exceptions taken by the contestant
obviously implicate an issue requiring review of pertinent transcripts, such action would
constitute an abdication of responsibility by the deciding entity. Re Morrison, 216 NJ
Super 143, 523 A2d 238.
Forms: Exceptions–To proposed or initial decision of agency. 1A Am Jur Pl & Pr

Exceptions and supporting briefs. 1A Federal Procedural Forms, L Ed, Administrative

Procedure §§ 2:161-2:168.
Footnote 85. Borek Motor Sales, Inc. v NLRB (CA7) 425 F2d 677, 73 BNA LRRM
2951, 62 CCH LC ¶ 10785, 1970 CCH Trade Cases ¶ 73132, cert den 400 US 823, 27 L
Footnote 86. NLRB v Ochoa Fertilizer Corp., 368 US 318, 7 L Ed 2d 312, 82 S Ct 344,
49 BNA LRRM 2236, 43 CCH LC ¶ 17321.
Failure of an employment discrimination defendant to file objections to an administrative

law judge's recommended order with the Human Rights Commission precluded any
judicial review of the Judge's recommendation. Glassworks, Inc. v Human Rights Com.
(1st Dist) 164 Ill App 3d 842, 115 Ill Dec 818, 518 NE2d 343, app den 119 Ill 2d 556,
119 Ill Dec 385, 522 NE2d 1244.
Footnote 87. Youngblood Truck Lines, Inc. v United States (WD NC) 221 F Supp 809.

466.
Footnote 89. Bridges v Wixon, 326 US 135, 89 L Ed 2103, 65 S Ct 1443.
Footnote 90. Herd v Folsom (CA7 Ill) 231 F2d 276; Wilson v United States (DC Mo)
114 F Supp 814.
Footnote 91. Aitoo Painting Corp., 238 NLRB 366, 99 BNA LRRM 1255, 1978-79 CCH
NLRB ¶ 15093.
2. Scope of Review [372-375]

§ 372 Generally
View Entire Section

Go to Supplement
When an agency reviews an initial decision, it has all the powers it would have had if it
had made the initial decision, except as it may limit the issues on notice or by rule. 92
While a presiding officer's findings are entitled to weight, 93 an agency does not have to
accept the officer's findings and conclusions, but can reach its own conclusions based on
the evidence. 94 Agencies are not bound to the role of reviewing courts 95 who
sustain fact findings of courts of the first instance unless such findings are clearly
erroneous, 96 or contrary to the very substantial preponderance of the evidence. 97
Instead, an agency may reverse a hearing officer whenever the preponderance of the
evidence before it indicates that the examiner's decision is incorrect, 98 and where the
record contains substantial evidence supporting each result, the agency's final decision
governs. 99
Even though a presiding officer's conclusions relating to credibility and demeanor are
entitled to great weight, an agency may still disagree with the officer's resolution of
conflicting evidence, 1 such as where it appears that the hearing officer arbitrarily
dismissed the testimony of a witness, 2 or based credibility determinations on factors
other than demeanor. 3 An agency should clearly express and elaborate its rejection of
original credibility findings made by an ALJ, although a reviewing court's function is not
frustrated if the agency's implicit rejection and explanation are sufficiently clear to permit
review. 4
The general rule that an agency has the same power to make a decision on appeal as does
a hearing officer when the officer makes an initial decision does not apply if the
governing regulatory statute establishes a special review board which does not have the
power to try a case de novo, but can only review the initial decision on the record in
accordance with the principles of appellate review followed by the appellate courts. 5
Case authorities:
Benefits Review Board was not warranted in affirming Administrative Law Judge's
denial of petition for benefits under Longshore and Harbor Workers' Compensation Act
where, after remand by Board, ALJ effectively abdicated his nondelegable task of
credibility determination, completely departed from his previous finding without
explanation, and repeatedly failed to comply with statutory duty of explanation. See v
Washington Metro. Area Transit Auth. (1994, CA4) 36 F3d 375.
Footnotes

Model State Administrative Procedure Act (1981) § 4-216(d).
Footnote 93. Caravelle Express, Inc. v United States (DC Neb) 287 F Supp 585.
Footnote 94. Oldham v Secretary of Health & Human Services (CA1 RI) 718 F2d 507
(criticized on other grounds by Newsome v Secretary of Health & Human Services (CA6
Ky) 753 F2d 44) as stated in Townsend v Secretary of Health & Human Services (CA6)
762 F2d 40; U. S. A. C. Transport, Inc. v United States (DC Del) 235 F Supp 689, affd
380 US 450, 14 L Ed 2d 151, 85 S Ct 1103; Continental Southern Lines, Inc. v United
States (WD La) 265 F Supp 218; Frozen Food Express, Inc. v United States (ND Tex)
301 F Supp 1322; McCann v Califano (CA6 Ohio) 621 F2d 829; Mattes v United States
(CA7) 721 F2d 1125; Davis v State Bd. of Psychologist Examiners (Colo App) 791 P2d
1198, cert den (Colo) 1990 Colo LEXIS 410; Hicks v Vennerbeck & Clase Co. (RI) 525
A2d 37.
Forms: Petition or request–For review of adverse determination of hearing examiner.

Request–For review of refusal to correct individual records under Privacy Act of 1974.
1 Federal Procedural Forms, L Ed, Administrative Procedure § 2:207.
Footnote 95. NLRB v A. P. W. Products Co. (CA2) 316 F2d 899, 53 BNA LRRM 2055,
47 CCH LC ¶ 18221; Hamlin Testing Laboratories, Inc. v United States Atomic Energy
Com. (CA6) 357 F2d 632; Caravelle Express, Inc. v United States (DC Neb) 287 F Supp
585; Containerfreight Transp. Co. v Interstate Commerce Com. (CA9) 651 F2d 668;
Lorain Journal Co. v Federal Communications Com., 122 US App DC 127, 351 F2d 824,
cert den 383 US 967, 16 L Ed 2d 308, 86 S Ct 1272, reh den 384 US 947, 16 L Ed 2d
545, 86 S Ct 1455.
Footnote 96. Hamlin Testing Laboratories, Inc. v United States Atomic Energy Com.
(CA6) 357 F2d 632; Lorain Journal Co. v Federal Communications Com., 122 US App
DC 127, 351 F2d 824, cert den 383 US 967, 16 L Ed 2d 308, 86 S Ct 1272, reh den
384 US 947, 16 L Ed 2d 545, 86 S Ct 1455.

855.

855; All Purpose Nursing Service v Human Rights Com. (1st Dist) 205 Ill App 3d 816,
150 Ill Dec 717, 563 NE2d 844.
Even though an appellate workers' compensation commission may conduct a de novo

review, it must find, before rejecting the findings based on the credibility determination,
that the trial commissioner was clearly wrong either because the commissioner obviously
erred in judging the credibility of the witnesses or overlooked or misconceived material
evidence in arriving at a credibility determination. Hicks v Vennerbeck & Clase Co. (RI)
525 A2d 37.
Footnote 99. Greater Boston Television Corp. v FCC, 143 US App DC 383, 444 F2d 841,
1 Media L R 2003, cert den 403 US 923, 29 L Ed 2d 701, 91 S Ct 2233 and petition to

recall mandate den 149 US App DC 322, 463 F2d 268, 31 ALR Fed 765, cert den 406
US 950, 32 L Ed 2d 338, 92 S Ct 2042.
Footnote 1. Zirkle v Weinberger (ND W Va) 401 F Supp 945.
Footnote 2. Certified Bldg. Products, Inc. (1973) FTC Docket No. 8875, 34 AdL2d 541.
Footnote 3. Canteen Corp., 202 NLRB 767, 82 BNA LRRM 1748, 1973 CCH NLRB ¶
25196.
Footnote 4. Marshall Durbin Food Corp. v ICC (CA11) 959 F2d 915, 6 FLW Fed C 506;
Bostwick v Atlas Iron Masters, Inc. (Okla App) 780 P2d 1184.
Footnote 5. United States ex rel. Brzovich v Holton (CA7 Ill) 222 F2d 840; Maurice P.
Foley Co. v Balderson, 186 US App DC 301, 569 F2d 132, cert den 439 US 818, 58 L
Ed 2d 109, 99 S Ct 80.
§ 373 Power to adopt initial decision
View Entire Section

If an administrative law judge's initial decision complies with the requirements of the
administrative procedure acts, a review board or the agency may simply affirm it. 6
Reviewing courts generally accord great deference to an agency's expertise and discretion
if the agency adopts the initial decision. 7
Footnotes
Footnote 6. Younger Bros., Inc. v United States (SD Tex) 238 F Supp 859; General
Motors Corp. v United States (ED Mich) 359 F Supp 1168, affd without op (CA6 Mich)
492 F2d 1243; North American Van Lines, Inc. v United States (ND Ind) 217 F Supp
837; Union of Concerned Scientists v Atomic Energy Com., 163 US App DC 64, 499
Footnote 7. Citizens State Bank v Federal Deposit Ins. Corp. (CA8) 718 F2d 1440,
appeal after remand (CA8) 751 F2d 209.
§ 374 Power to reject or modify initial decision
View Entire Section


Go to Supplement
Since an initial decision is only advisory, 8 an administrative agency is free to reverse, 9

reject, 10 or alter the findings of the administrative law judge and make its own
decision. 11 An agency may correct errors of law 12 and irregularities 13 in the initial
decision, and may decide issues not reached by the administrative law judge. 14 An
agency 15 or review board 16 also has the power to basically accept a hearing officer's
findings of fact, but come to different conclusions regarding those facts, and when an
intermediate review board has rejected the hearing officer's conclusions, the agency then
has the power to adopt the review board's report as its own. 17
An agency may determine a penalty de novo, and may modify or vacate sanctions
recommended in the initial decision, or may direct that other appropriate relief may be
ordered. 18 If circumstances warrant, an agency may even increase a penalty beyond
that suggested by the hearing officer. 19
An agency must fully and particularly set out the facts and reasons for its departure from
an initial decision. 20 However, an agency need not engage in a point by point
refutation of the administrative law judge's findings and conclusions and the reasons
stated. 21
§ 374 ----Power to reject or modify initial decision [SUPPLEMENT]
Practice Aids: Disability in disarray: SSA problems go beyond judge-agency

conflicts, 32 Judges J F:36 (1993).
Case authorities:
In action by state public intervenor seeking to block Department of Natural Resources

(DNR) grant of water quality certification for confined disposal facility in bay of Green
Bay where decision was reviewed by hearing examiner for Department of Administration
and DNR secretary and affirmed by each, supreme court found that public intervenor was
not aggrieved by agency decision because while DNR secretary amended hearing
examiner's conclusions of law those amendments did not in any significant way alter
initial findings of hearing examiner (Stats §§ 227.01(9), 227.53(1)). Public Intervenor v
Wisconsin Dep't of Natural Resources (1994) 184 Wis 2d 407, 515 NW2d 897.
Footnotes
762 F2d 40; Osborne v Hammit (DC Nev) 377 F Supp 977.
762 F2d 40; Mattes v United States (CA7) 721 F2d 1125; Osborne v Hammit (DC Nev)

377 F Supp 977.
Footnote 10. Union Mechling Corp. v United States (WD Pa) 390 F Supp 411; Braswell
Motor Freight Lines, Inc. v United States (WD Tex) 275 F Supp 98, affd 389 US 569,
19 L Ed 2d 779, 88 S Ct 692, reh den 390 US 975, 19 L Ed 2d 1194, 88 S Ct 1025;
Alcoa S.S. Co. v Federal Maritime Com., 116 US App DC 143, 321 F2d 756.
Footnote 11. Tenneco Oil Co. (1978) FERC Op No. 10-A, 45 AdL2d 37.
Footnote 12. Herd v Folsom (CA7 Ill) 231 F2d 276; Henrikson v Udall (ND Cal) 229 F
Supp 510, affd (CA9 Cal) 350 F2d 949, cert den 384 US 940, 16 L Ed 2d 538, 86 S Ct
1457.
Footnote 13. Aero Mayflower Transit Co. v United States (DC Neb) 95 F Supp 258.
Footnote 14. Herd v Folsom (CA7 Ill) 231 F2d 276.
Footnote 15. Union Mechling Corp. v United States (WD Pa) 390 F Supp 411.
509.
509.
Footnote 18. California Stevedore & Ballast Co. v Occupational Safety & Health Review
Com. (CA9) 517 F2d 986.
Footnote 19. Fink v SEC (CA2) 417 F2d 1058, CCH Fed Secur L Rep ¶ 92498; River
Forest Pharmacy, Inc. v Drug Enforcement Admin. (CA7) 501 F2d 1202; Blackfoot
Livestock Com., Co. v Department of Agriculture, Packers & Stockyards Admin. (CA9)
810 F2d 916.
An agency should not reject a hearing officer's recommended penalty without properly
rejecting, amending, or substituting at least one recommended finding of fact or
conclusion of law; mere disagreement with a hearing officer is not ground to increase the
penalty. Bradley v Criminal Justice Standards & Training Com. (Fla App D1) 577 So 2d
638, 16 FLW D 853, quashed (Fla) 596 So 2d 661, 17 FLW S 193.
appeal after remand (CA8) 751 F2d 209; Bajrangi v Department of Business Regulation,
Div. of Alcoholic Beverages & Tobacco (Fla App D5) 561 So 2d 410, 15 FLW D 1304
(disapproved on other grounds by Criminal Justice Standards & Training Com. v Bradley
(Fla) 596 So 2d 661, 17 FLW S 193); Medcenter One, Inc. v Job Service North Dakota
(ND) 410 NW2d 521.
Footnote 21. Webb v North Carolina Dept. of Environment, Health & Natural Resources,
etc., 102 NC App 767, 404 SE2d 29.
§ 375 Power to remand case or take additional evidence

View Entire Section
An agency has the power to remand a case to a hearing officer to obtain additional
evidence on specified issues, 22 for an explanation of the reasons underlying the
decision, 23 or for further proceedings. 24 Such a remand may be for a limited purpose,
without the need to completely reopen the hearing. 25
On the other hand, because an agency has all the powers it would have had in making the
initial decision, 26 an agency has the power to itself receive additional 27 or
supplemental 28 evidence, and may receive testimony which was rejected by the
administrative law judge who made the initial decision. 29 Such reception of evidence
after the initial decision is permissible, so long as the parties obtain a full hearing before
the issuance of the final order. 30 However, some agencies have limitations on the
submission of newly discovered evidence, which require a showing that the party
presenting the evidence exercised due diligence in obtaining the evidence. 31
Footnotes
Footnote 22. Johnson v Weinberger (CA5 La) 486 F2d 559.
Footnote 23. Gerhardt v Sahara Coal Co. (1978) 7 BRBS 512; Whittington v National
Bank of Washington (1978) 8 BRBS 235.
Footnote 24. Model State Administrative Act (1981) § 4-216(g).
Footnote 25. Johnson v Weinberger (CA5 La) 486 F2d 559.
Footnote 27. Zirkle v Weinberger (ND W Va) 401 F Supp 945.
Footnote 28. Chrysler Corp. v Federal Trade Com., 182 US App DC 359, 561 F2d 357,
Footnote 29. Zirkle v Weinberger (ND W Va) 401 F Supp 945 (holding that an agency
may order a medical examination to resolve conflicting medical testimony); Reckitt &
Colman, Ltd. v Administrator, Drug Enforcement Admin., 252 US App DC 120, 788 F2d
22.
Footnote 30. Sisto v Civil Aeronautics Board, 86 US App DC 31, 179 F2d 47.
Footnote 31. Sassaquin Convalescent Center, 223 NLRB 267, 92 BNA LRRM 1107,
1975-76 CCH NLRB ¶ 17180.
H. Decision and Order [376-384]

Research References
5 USCS §§ 551, 554(e), 555(b), 557(c), 558, 706(1)
Model State Administrative Procedure Act (1981) §§ 2-103, 4-215(g)
Model State Administrative Procedure Act (1961) §§ 8, 12
1A Federal Procedural Forms, L Ed, Administrative Procedure §§ 2:82, 2:153, 2:154
1. In General [376-379]
§ 376 Generally
View Entire Section

Go to Supplement
At the end of an administrative proceeding, the agency must make a decision containing
an appropriate order granting or denying relief or the imposition of a sanction. 32 The
order may be affirmative, negative, injunctive, or declaratory in form. 33 In deciding a
case upon recommendations by a hearing officer, an administrative officer need not
actually hear witnesses testify or hear oral argument, but must consider and appraise the
evidence before rendering the decision. 34
An agency has wide discretion in its choice of remedy, 35 and should utilize its
expertise in determining what remedy would be most effective. 36 However, an
agency's decision must be made in accordance with statutory authority, 37 and its orders
must effectuate the policies of its statute. 38 No order may issue and no sanction may
be imposed except within the jurisdiction delegated to the agency and as authorized by
law. 39
Administrative agencies have discretion to set effective dates for agency decisions and
orders. 40
 Reminder: Upon obtaining a final order, an eligible private litigant who has
substantially prevailed before an agency should file an application under the Equal
Access to Justice Act to obtain reimbursement for costs and fees. 41
Practice Aids: Motion–For summary decision. 1A Am Jur Pl & Pr Forms (Rev),

Exceptions–To proposed or initial decision of agency. 1A Am Jur Pl & Pr Forms (Rev),


Petition or application–Allegation–Rendition of decision by official not presiding at
hearing initially. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 306.
Case authorities:
In calculating damage award, ALJ should deduct from total award those amounts
received by claimant from settling respondents. Kirk v Long, et al. (1995, CFTC) CCH
Comm Fut L Rep ¶ 26,327.
Footnotes
Footnote 32. 5 USCS § 557(c)(B).
Model State Administrative Procedure Act (1981) § 4-215(a); Model State

Administrative Procedure Act (1961) § 12.
The agency head has the power to make a critical decision of whether to refer a
disciplinary matter to an administrative law judge, as well as the power to make a final
decision on the merits. Re Carberry, 114 NJ 574, 556 A2d 314.
Forms: Order–By administrative agency–Various forms. 1A Am Jur Pl & Pr Forms

Order–General Form. 1A Federal Procedural Forms, L Ed, Administrative Procedure §

2:153.
As to declaratory orders, see § 377.
Forms: Order–To cease and desist, directing affirmative conduct, and requiring
compensation to injured party. 1A Federal Procedural Forms, L Ed, Administrative
Procedure § 2:154.
Footnote 34. Redwood Village Partnership, Ltd. v North Dakota Dept. of Human
Services (ND) 420 NW2d 333.
A member of an agency who participates in a decision is not required to participate in the

hearing; he or she may act officially on the basis of the written record alone. Medley v
Missouri State Highway Patrol (Mo App) 776 SW2d 405.
Footnote 35. Atlantic Refining Co. v FTC, 381 US 357, 14 L Ed 2d 443, 85 S Ct 1498,
1965 CCH Trade Cases ¶ 71459, reh den 382 US 873, 15 L Ed 2d 114, 86 S Ct 18;
FTC v Ruberoid Co., 343 US 470, 96 L Ed 1081, 72 S Ct 800.
Agencies possess equitable authority to award interest as a means of preventing unjust

enrichment. Clark Oil Producing Co. v Hodel (ED La) 667 F Supp 281, 97 OGR 291.
The prerogative to fashion or order particular relief appropriate to the circumstances

belongs exclusively to the administrative agency, not the reviewing court. Hudnut v

Hargis (Ind App) 561 NE2d 820, vacated on other grounds (Ind) 588 NE2d 496.
Footnote 36. Moog Industries, Inc. v FTC, 355 US 411, 2 L Ed 2d 370, 78 S Ct 377,
Christian Care Home, Inc. v State Certificate of Need Review Bd. (Franklin Co) 48 Ohio
App 3d 158, 548 NE2d 981, appeal after remand (Franklin Co) 64 Ohio App 3d 461, 581
NE2d 1157, appeal after remand (Franklin Co) 74 Ohio App 3d 453, 599 NE2d 342.
Damages are not authorized by the administrative procedure act. Williams v Casey (SD
NY) 657 F Supp 921, 43 BNA FEP Cas 805, later proceeding (SD NY) 691 F Supp 760,
47 BNA FEP Cas 1349, 47 CCH EPD ¶ 38320.
A referee in a workers' compensation proceeding is empowered to grant only such relief

as the employer actually requests. Boehm v Workmen's Compensation Appeal Bd.
(United Parcel Services), 133 Pa Cmwlth 455, 576 A2d 1163.
Footnote 38. Southern S.S. Co. v NLRB, 316 US 31, 86 L Ed 1246, 62 S Ct 886, 10
BNA LRRM 544, 5 CCH LC ¶ 51139.
Footnote 39. Arizona Bd. of Regents on behalf of University of Arizona v State (App)
160 Ariz 150, 771 P2d 880, 30 Ariz Adv Rep 19 (holding that administrative decisions
that go beyond the agency's statutory power are vulnerable for lack of jurisdiction and
may be questioned in a collateral proceeding).
As to collateral attack of administrative decisions, see § 380.
Footnote 40. Young Trucking, Inc. v Railroad Com. of Texas (Tex App Austin) 781
SW2d 719, reh overr.
§ 377 Declaratory orders
View Entire Section

Go to Supplement
Under the administrative procedure acts, administrative agencies may, in their sound
discretion, issue declaratory orders. 42
The entry of a declaratory order is proper if the parties and subject matter are within the
jurisdiction of the agency and a controversy exists between the agency and the parties. 43
However, an agency is not required to issue such an order any time a regulated party
requests one. 44 An agency may refuse to issue a declaratory order if there is no
justiciable issue to be decided or uncertainty to be dispelled, or if the regulatory statute
provides other procedures for resolving the complaint. 45 A declaratory ruling or a
refusal to issue such a ruling constitutes judicially reviewable agency action. 46
An agency has the discretion to announce general policies while deciding particular
cases, rather than proceeding by notice and comment rulemaking; 47 thus, an agency
may change its interpretation of a statute by means of a declaratory order, instead of first
complying with the rulemaking requirements of the Federal APA. 48
A declaratory order has the same effect as any other order. 49 This means that informal
letters between an applicant and members of an agency's staff which do not bind an
agency are not the equivalent of a declaratory order, 50 nor are prosecutorial decisions,
which do not finally determine a party's rights or guilt. 51
Declaratory orders which determine rights may be reviewed like any other agency order.
52
§ 377 ----Declaratory orders [SUPPLEMENT]
Practice Aids: Petition–For issuance of declaratory order–To terminate controversy or

remove uncertainty. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 109.
Footnotes
Footnote 42. Board of Education v Secretary of Personnel, 317 Md 34, 562 A2d 700.
5 USCS § 554(e).

Procedure Act (1981) § 2-103.
Forms: Petition–For issuance of declaratory order–To terminate controversy or

remove uncertainty. 1 Federal Procedural Forms, L Ed, Administrative Procedure §
2:82.
Footnote 43. Boston & M. R. Co. v United States (DC Mass) 162 F Supp 289, app dismd
358 US 68, 3 L Ed 2d 34, 79 S Ct 107.
A higher education personnel board's declaratory ruling could be reversed if it was in

excess of the board's statutory authority or jurisdiction. Western Washington University v
Washington Federation of State Employees, 58 Wash App 433, 793 P2d 989.
Footnote 44. Yale Broadcasting Co. v Federal Communications Com., 155 US App DC
390, 478 F2d 594, cert den 414 US 914, 38 L Ed 2d 152, 94 S Ct 211; Wisconsin
Fertilizer Ass'n. v Karns, 39 Wis 2d 95, 158 NW2d 294.
Footnote 45. Television & Radio Artists (William F. Buckley, Jr.), 222 NLRB 197, 91
BNA LRRM 1094, 1975-76 CCH NLRB ¶ 16498.
Footnote 46. Yakima Valley Cablevision, Inc. v FCC, 254 US App DC 28, 794 F2d 737;

Teleconnect Co. v Iowa State Commerce Com. (Iowa) 366 NW2d 515; Pletz v Secretary
of State, 125 Mich App 335, 336 NW2d 789; High Rock Lake Asso. v North Carolina
Environmental Management Com., 51 NC App 275, 276 SE2d 472.
Footnote 48. Chisholm v FCC, 176 US App DC 1, 538 F2d 349, 1 Media L R 2207, cert
den 429 US 890, 50 L Ed 2d 173, 97 S Ct 247.
But see Florida Optometric Assn. v Department of Professional Regulation, Bd. of

Opticianry (Fla App D1) 567 So 2d 928, 15 FLW D 2250 (holding that declaratory
statements are not to be used as a vehicle for adoption of broad agency policy, nor should
they be used to provide interpretations of statutes, rules or orders which are applicable to
an entire class of persons).
Footnote 50. Southern R. Co. v United States (ND Ala) 186 F Supp 29.
Footnote 51. United States v X-Otag Plus Tablets (DC Colo) 441 F Supp 105, remanded
(CA10 Colo) 602 F2d 1387.
Footnote 52. Red Lion Broadcasting Co. v FCC, 395 US 367, 23 L Ed 2d 371, 89 S Ct
1794, 1 Media L R 2053 (not followed by International Union, United Auto., etc. v
Brock, 259 US App DC 457, 816 F2d 761, 106 CCH LC ¶ 12400).
§ 378 Obligation to decide case promptly
View Entire Section

A party to an administrative adjudication is entitled to the expeditious rendering of a final

decision, so that it may know where to appeal next. 53
The determination whether an agency action has been unreasonably delayed is made on a
case-by-case basis, 54 and in so doing a court must ascertain the length of time that has
elapsed since the agency came under a duty to act, assess the reasonableness of the delay
in the context of the statute which authorizes the agency's action, and examine the
consequences of the agency's delay. 55 The court should also consider any plea of
administrative error, administrative convenience, or practical difficulty in carrying out a
legislative mandate, or of a need to prioritize in the face of limited resources. 56
Statutory provisions setting forth time limits for making administrative determinations
are directory, rather than mandatory, 57 and under such provisions the passage of time
alone is rarely enough to justify a court's intervention in the administrative process, 58
absent a showing of prejudice. 59

Delay may be unreasonable where there are unexplained delays which can only be
attributed to "red tape," inertia, or an unwillingness to come to grips with an issue. 60
No violation occurs if the case is procedurally complex 61 and is proceeding at a rate
comparable to cases of its kind. 62
Economic harm is clearly an important consideration and will, in some cases, justify
court intervention. 63 However, delays that might be reasonable in the sphere of an
economic regulation are less tolerable when human health and welfare are at stake. 64
Footnotes
Footnote 53. Brandt v Hickel (CA9 Cal) 427 F2d 53, 36 OGR 407 (disapproved on other
grounds by Califano v Sanders, 430 US 99, 51 L Ed 2d 192, 97 S Ct 980, 42 Cal Comp
Cas 1112); Environmental Defense Fund, Inc. v Hardin, 138 US App DC 391, 428 F2d
1093, 1 Envt Rep Cas 1347, 1 ELR 20050.
The Federal Administrative Procedure Act requires an agency to conclude any matter
presented to it within a reasonable time, taking into account the convenience and
necessity of the parties or their representatives. 5 USCS § 555(b).
The 1981 Model State Administrative Procedure Act provides that a final order must be
rendered in writing within 90 days after the conclusion of the hearing. Model State
Administrative Procedure Act (1981) § 4-215(g).
As to remedies under the Federal Administrative Procedure Act for agency action
unreasonably delayed, see § 379.
Footnote 54. Air Line Pilots Asso., International v Civil Aeronautics Bd., 242 US App
DC 233, 750 F2d 81.
Footnote 55. Re International Chemical Workers Union, 294 US App DC 286, 958 F2d
1144, 15 BNA OSHC 1529, 1992 CCH OSHD ¶ 29620, 22 ELR 21036; Cutler v Hayes,
260 US App DC 230, 818 F2d 879.
Footnote 56. Re International Chemical Workers Union, 294 US App DC 286, 958 F2d
1144, 15 BNA OSHC 1529, 1992 CCH OSHD ¶ 29620, 22 ELR 21036; Cutler v Hayes,
260 US App DC 230, 818 F2d 879.
Footnote 57. Shaball v State Compensation Ins. Authority (Colo App) 799 P2d 399;
Moon Lake Convalescent Center v Margolis (1st Dist) 180 Ill App 3d 245, 129 Ill Dec
191, 535 NE2d 956, app den (Ill) 136 Ill Dec 590, 545 NE2d 114; Garrett v State, Dept.
of Safety (Tenn) 717 SW2d 290.
A 30-day limit set forth in the administrative procedure act is a procedural requirement,
directory in nature, intended to secure order, system, and forthwith dispatch of public
business. Expert Environmental Control, Inc. v Walker, 13 Kan App 2d 56, 761 P2d 320.
Footnote 58. Singh v Ilchert (ND Cal) 784 F Supp 759, 92 Daily Journal DAR 2073;
Johnson v State Dep't of Motor Vehicles, 173 W Va 565, 318 SE2d 616.

The fact that a hearing officer did not render his decision within 30 days from the date of
the closing of a discharge hearing involving a public school teacher, in accordance with
the rules of the state board of education, did not nullify the proceedings, where the
hearing officer did not receive his copy of the transcript until after the 30-day period had
expired, the transcript was over 1,500 pages long, and there was no dilatory conduct by
either party. Combs v Board of Education (2d Dist) 147 Ill App 3d 1092, 101 Ill Dec
482, 498 NE2d 806, app den (Ill) 106 Ill Dec 45, 505 NE2d 351.
Footnote 59. G & B of Jacksonville, Inc. v State, Dept. of Business Regulation, Div. of
Beverage (Fla App D1) 362 So 2d 951, app dismd without op (Fla) 372 So 2d 468 and
(criticized on other grounds by Hyman v State, Dept. of Business Regulation, etc. (Fla
App D3) 399 So 2d 1098); Re Smith (Wyo) 762 P2d 1193.
A board's failure to issue its order suspending a license within 90 days after the date the
hearing was completed did not require setting aside the suspension order where the
licensee was not prejudiced as a result of the board's failure, and the failure did not
impair the fairness of the proceeding or the correctness of the action taken. Vann v
District of Columbia Bd. of Funeral Directors & Embalmers (Dist Col App) 441 A2d
246.
Footnote 60. Silverman v NLRB (CA2) 543 F2d 428, 92 BNA LRRM 2919, 78 CCH LC
¶ 11472; Deering Milliken, Inc. v Johnston (CA4 NC) 295 F2d 856, 48 BNA LRRM
3162, 43 CCH LC ¶ 17244, conformed to (MD NC) 201 F Supp 185 and (disapproved on
other grounds by Califano v Sanders, 430 US 99, 51 L Ed 2d 192, 97 S Ct 980, 42 Cal
Comp Cas 1112); EEOC v Bell Helicopter Co. (ND Tex) 426 F Supp 785, 14 BNA FEP
Cas 658; Nader v FCC, 172 US App DC 1, 520 F2d 182.
Footnote 61. Bakersfield City School Dist. v Boyer (CA9 Cal) 610 F2d 621.
Footnote 62. Federal Trade Com. v J. Weingarten, Inc. (CA5 Tex) 336 F2d 687, cert den
380 US 908, 13 L Ed 2d 796, 85 S Ct 890.
Footnote 63. Cutler v Hayes, 260 US App DC 230, 818 F2d 879.
DC 233, 750 F2d 81 (a 5-year delay by a board in adjudicating claims for unemployment
assistance to former employees was unreasonable).
A 3-year period between the filing of a complaint and the issuance of the State Division
of Human Rights' determination would not divest the Division of jurisdiction over the
complaint alleging racial discrimination in employment. Cosmos Forms, Ltd. v State
Div. of Human Rights (2d Dept) 150 App Div 2d 442, 541 NYS2d 50.
§ 379 --Remedy for agency action unreasonably delayed
View Entire Section


Claims of unreasonable delay fall within the narrow class of interlocutory appeals from
agency action over which courts appropriately should exercise their jurisdiction. 65 By
definition, a claim of unreasonable delay cannot await final agency action before judicial
review, as the very lack of agency action is what gives rise to the complaint. 66 Parties
may be protected from unreasonable delay on the part of agencies in reaching final
decisions by statutes, such as the Federal Administrative Procedure Act 67 and state
counterparts allowing a party adversely affected by such delay to seek a court order
compelling action by the agency. 68 Even though agency action may be subject to no
explicit time limit, a court may compel an agency to act within a reasonable time. 69
Although the Federal Administrative Procedure Act does not provide express authority
for doing so, the Act has been interpreted as also permitting courts to dismiss as well as
compel unreasonably delayed agency action. 70 However, before an agency action
may be set aside for lack of punctuality, the aggrieved party must show that it was
prejudiced by the delay. 71 Furthermore, administrative delay does not justify the
dismissal of an action where the interests of third parties may be at stake, and remedies
such as backpay may be enforced during the period when administrative proceedings are
pending, 72 or where the petitioner has benefited from the delay. 73
Footnotes
DC 233, 750 F2d 81.
Footnote 68. Curry v St. Louis County (Mo App) 773 SW2d 499; Re Application of
Alamance Sav. & Loan Asso., 53 NC App 326, 280 SE2d 748, petition den 304 NC 588,
291 SE2d 148.
Footnote 69. Houseton v Nimmo (CA9 Cal) 670 F2d 1375, 28 BNA FEP Cas 666, 28
CCH EPD ¶ 32551.
Footnote 70. Panhandle Cooperative Asso. v Environmental Protection Agency (CA8)

771 F2d 1149, 15 ELR 20935; Houseton v Nimmo (CA9 Cal) 670 F2d 1375, 28 BNA
FEP Cas 666, 28 CCH EPD ¶ 32551.
But see United States v Popovich (CA5 Tex) 820 F2d 134, 3 USPQ2d 1370, cert den
484 US 976, 98 L Ed 2d 485, 108 S Ct 487 (holding that the Federal APA may grant
authority to the courts only to compel agency action unreasonably delayed, and not to
dismiss actions brought by agencies, even where the aggrieved party was prejudiced by
the delay).

771 F2d 1149, 15 ELR 20935.
Footnote 72. NLRB v J. H. Rutter-Rex Mfg. Co., 396 US 258, 24 L Ed 2d 405, 90 S Ct

417, 72 BNA LRRM 2881, 61 CCH LC ¶ 10518, reh den 397 US 929, 25 L Ed 2d 109,

90 S Ct 895.

771 F2d 1149, 15 ELR 20935; NLRB v Hanna Boys Center (CA9) 940 F2d 1295, 91
CDOS 6261, 91 Daily Journal DAR 9604, 138 BNA LRRM 2024, 119 CCH LC ¶ 10870,
amd (CA9) 121 CCH LC ¶ 10110 and amd, reh, en banc, den (CA9 Cal) 91 CDOS 8656,
91 Daily Journal DAR 13332, 138 BNA LRRM 2733 and cert den (US) 119 L Ed 2d
586, 112 S Ct 2965, 140 BNA LRRM 2536.
2. Force and Effect [380-384]
§ 380 Generally; collateral attack
View Entire Section

In the absence of evidence to the contrary, an administrative decision or order is

presumptively valid and correct, 74 and a party seeking review of the decision bears the
burden of demonstrating the error, which includes providing a record sufficient to show
that the agency's decision is erroneous. 75 An agency is bound by its own decision
or order. 76
However, an order entered by an administrative agency which lacks the inherent power to
make or enter it is void and is open to direct or collateral attack. 77 Generally
speaking, an administrative order cannot be collaterally attacked unless the agency acted
in excess of its jurisdiction 78 or unless there was such fraud or mistake as would
justify the reopening of a judgment. 79 Where an agency order is merely voidable and
not void, it is not subject to collateral attack. 80
Footnotes
Footnote 74. Gillespie v Alabama Alcoholic Beverage Control Bd. (Ala App) 572 So 2d
493; Van Sickle v Boyes (Colo) 797 P2d 1267; Montalbano v Louisiana State Bd. of
Medical Examiners (La App 4th Cir) 560 So 2d 1009; Ross v State, Dept. of Human
Services (Minn App) 469 NW2d 739; Thornton v Commissioner of Dept. of Labor &
Industry, 190 Mont 442, 621 P2d 1062, 24 BNA WH Cas 1487, 93 CCH LC ¶ 55328;
Van Dalen v Washington Township, 120 NJ 234, 576 A2d 819, later proceeding 247 NJ
Super 186, 588 A2d 1248, certif den 127 NJ 557, 606 A2d 369 and revd on other
grounds,, remanded 132 NJ 1, 622 A2d 1257; Brody v Barasch, 155 Vt 103, 582 A2d
132; Brammer v West Virginia Human Rights Comm'n, 183 W Va 108, 394 SE2d 340.
If agency action is constitutionally authorized by statute, the action is presumed valid on

review unless it is not supported by substantial competent evidence and is so wide of its
mark as to be outside the realm of fair debate or is otherwise unreasonable, arbitrary, or
capricious and results in prejudice to the parties. Kaufman v State Dept. of Social &
Rehabilitation Services, 248 Kan 951, 811 P2d 876.
Footnote 75. Cooper v District of Columbia Dept. of Employment Services (Dist Col
App) 588 A2d 1172; Kaufman v State Dept. of Social & Rehabilitation Services, 248
Kan 951, 811 P2d 876.
Forms: Objections–To administrative order–General form. 1A Am Jur Pl & Pr Forms

–Contrary to evidence and previous findings of fact. 1A Am Jur Pl & Pr Forms (Rev),
–Allegation–Conflict of state agency's order with federal regulations. 1A Am Jur Pl &

–No finding or evidence that provisions favored by requisite percentage of individuals

or organizations in geographic area. 1A Am Jur Pl & Pr Forms (Rev), Administrative
Law, Form 144.
–No finding or evidence of need of geographic areas for provisions to effectuate

statutory purposes. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 145.
–Prior order found to be insufficient. 1A Am Jur Pl & Pr Forms (Rev), Administrative

Law, Form 146.
–Irreparable injury to public interest. 1A Am Jur Pl & Pr Forms (Rev), Administrative

Law, Form 147.
Footnote 76. Board of Education v Illinois Educational Labor Relations Bd. (4th Dist)
Footnote 77. Newkirk v Bigard, 109 Ill 2d 28, 92 Ill Dec 510, 485 NE2d 321, 87 OGR
Ed 2d 576, 106 S Ct 3287; Board of Education v Illinois Educational Labor Relations
Bd. (4th Dist) 179 Ill App 3d 696, 128 Ill Dec 577, 534 NE2d 1022.
A supreme court's duty of deference to agency decision has no material force where the
agency action is contrary to statutory language. Gill v Mississippi Dept. of Wildlife
Conservation (Miss) 574 So 2d 586, reh den (Miss) 1991 Miss LEXIS 7.
Footnote 78. Noble v Union River Logging R. Co., 147 US 165, 37 L Ed 123, 13 S Ct
271; Miller v Board of Medical Quality Assurance (3rd Dist) 193 Cal App 3d 1371, 238
Cal Rptr 915; Convalescent Center of Bloomfield, Inc. v Department of Income
Maintenance, 208 Conn 187, 544 A2d 604; Robinson v Baton Rouge (La App 1st Cir)
566 So 2d 415; Commissioner of Labor v Hinman (3d Dept) 103 App Div 2d 886, 478
NYS2d 116; Johnson v Kolman, Div. of Athey Products Corp. (SD) 412 NW2d 109.
Footnote 79. Ross v Day, 232 US 110, 58 L Ed 528, 34 S Ct 233; Peterson v

Department of Ecology, 92 Wash 2d 306, 596 P2d 285, 13 Envt Rep Cas 1785.
As to the reopening of judgments for fraud or mistake, generally, see 46, 47 Am Jur 2d,
Judgments; 21 Federal Procedure, L Ed, Judgments and Orders §§ 51:107 et seq.

Footnote 80. Weissinger v Edgar (2d Dist) 180 Ill App 3d 806, 129 Ill Dec 553, 536
NE2d 237.
§ 381 Res judicata and collateral estoppel
View Entire Section

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The common-law doctrines of collateral estoppel, also known as issue preclusion, and res
judicata, also known as claim preclusion, may, under the proper circumstances, apply to
those adjudicatory determinations of administrative bodies that have attained finality. 81
Thus, once an administrative order becomes final, the administrative decision of an
adjudicatory character binds the parties to the proceeding and is res judicata, thereby
precluding a subsequent judicial proceeding between the same parties regarding the
matters litigated in the administrative action. 82
Res judicata bars relitigation not only of matters determined in a previous adjudication
but also matters that a party could have raised. 83 However, when res judicata is
applied in the context of administrative proceedings, in which claimants are often without
the assistance of counsel, the courts will take more a flexible approach to the doctrine's
application than the rigid finality that characterizes its application in purely judicial
proceedings. 84 Collateral estoppel may generally prevent the relitigation in a court
action of issues of fact previously decided in an administrative proceeding if (1) there is
identity of the parties and of the issues; (2) the parties had an adequate opportunity to
litigate the issues in the administrative proceeding; (3) the issues to be estopped were
actually litigated and determined in the administrative proceeding; and (4) findings on the
issues to be estopped were necessary to the administrative decision. 85 However,
despite the fact that administrative estoppel is favored as a matter of general policy, its
suitability may vary according to the specific context of the rights at stake, the power of
the agency, and the relative adequacy of agency procedures. 86
An order entered upon stipulation or by consent has the same binding force as any
administrative order. 87
 Caution: Res judicata must be pleaded as an affirmative defense, 88 and the failure
to so plead constitutes a waiver. 89
§ 381 ----Res judicata and collateral estoppel [SUPPLEMENT]
Case authorities:
An agency's interpretation of a statute or regulation that conflicts with a prior

interpretation is entitled to considerably less deference than a consistently held agency
view. Thomas Jefferson Univ. v Shalala (US) 129 L Ed 2d 405, 114 S Ct 2381.

Suit by bank holding company against United States for illegal taking in placing bank in
receivership was not barred by res judicata in sense of claims preclusion by plaintiff's
prior suit under APA seeking review of comptroller's action. Golden Pac. Bancorp v
United States (1994, CA FC) 15 F3d 1066, 94 Daily Journal DAR 3975, reh, en banc,
den (CA FC) 1994 US App LEXIS 9347.
The trial court did not err in denying petitioners' petition for remand to the Division of
Environmental Management for the taking of additional evidence pursuant to G.S. §
150B-49, since there was competent evidence in the record to support findings that the
proposed new evidence was cumulative and not materially different from that considered
by the administrative agency when the decisions were made. Save Our Rivers v Town of
Highlands (1994) 113 NC App 716, 440 SE2d 334, stay gr (NC) 1994 NC LEXIS 283.
Where plaintiff, who brought sex discrimination claim against agency, chose not to have
commission's determination of no discrimination judicially reviewed, despite that option
being available, but rather brought original action in circuit court against supervisors,
commission's findings precluded plaintiff from relitigating issue of sex discrimination in
subsequent action, where record indicated that commission's proceedings provided
plaintiff with full and fair opportunity to litigate allegations, and she was barred from
relitigating that issue in circuit court. Lindas v Cady (1994) 183 Wis 2d 547, 515 NW2d
458.
Footnotes
Footnote 81. Astoria Fed. Sav. & Loan Ass'n v Solimino (US) 115 L Ed 2d 96, 111 S Ct
2166, 91 CDOS 4330, 91 Daily Journal DAR 6686, 55 BNA FEP Cas 1503, 56 CCH
EPD ¶ 40809; Casillas v Arizona Dept. of Economic Secur. (App) 153 Ariz 579, 739 P2d
800; Whelden v Board of County Comrs. (Colo App) 782 P2d 853; Rhema Christian
Center v District of Columbia Bd. of Zoning Adjustment (Dist Col App) 515 A2d 189,
later proceeding (Dist Col App) 578 A2d 1128; J & J Contractors/O.T. Davis Constr.,
A.J.V v State, 118 Idaho 535, 797 P2d 1383; Butler v Illinois State Bd. of Elections (1st
Dist) 167 Ill App 3d 35, 117 Ill Dec 700, 520 NE2d 1051, appeal after remand (1st Dist)
188 Ill App 3d 1098, 136 Ill Dec 641, 545 NE2d 165, app den (Ill) 139 Ill Dec 510, 548
NE2d 1066; Polk County Secondary Rds. v Iowa Civil Rights Comm'n (Iowa) 468 NW2d
811, 62 BNA FEP Cas 238; Crosby v Belgrade (Me) 562 A2d 1228; Lopes v Board of
Appeals, 27 Mass App 754, 543 NE2d 421, review den 406 Mass 1103, 548 NE2d 887;
Weiler v New Century Bank, 168 Mich App 354, 423 NW2d 664, 3 BNA IER Cas 849,
vacated on other grounds 431 Mich 900, 432 NW2d 172; Miller v Pool & Canfield, Inc.
(Mo App) 800 SW2d 120; Taylor v Engelhard Industries, 230 NJ Super 245, 553 A2d
361; Faillace v Port Authority of New York & New Jersey (1st Dept) 130 App Div 2d
34, 517 NYS2d 941, app den 70 NY2d 613, 524 NYS2d 432, 519 NE2d 343; Vanover v
Kansas City Life Ins. Co. (ND) 438 NW2d 524; Drews v EBI Cos., 310 Or 134, 795 P2d
531.
As to what constitutes finality with regard to an administrative decision, see § 382.
As to the application of the concepts of res judicata and collateral estoppel to judicial
proceedings, see 46 Am Jur 2d, Judgments §§ 394 et seq.
Footnote 82. International Union of Mine, Mill & Smelter Workers v Eagle-Picher

Mining & Smelting Co., 325 US 335, 89 L Ed 1649, 65 S Ct 1166, 16 BNA LRRM
689, 9 CCH LC ¶ 51202; Hunter v State, 191 Ga App 769, 382 SE2d 679; Carr v Bell
Sav. & Loan Assn. (Tex App Texarkana) 786 SW2d 761, reh overr (Tex App Texarkana)
1990 Tex App LEXIS 463 and writ den (Oct 10, 1990).
Footnote 83. Natural Resources Defense Council, Inc. v Thomas, 267 US App DC 274,
838 F2d 1224, 27 Envt Rep Cas 1041, 18 ELR 20519, cert den 488 US 888, 102 L Ed
2d 210, 109 S Ct 219, 28 Envt Rep Cas 1840 and cert den 488 US 901, 102 L Ed 2d
238, 109 S Ct 250, 28 Envt Rep Cas 1840.
Footnote 84. Purter v Heckler (CA3 Pa) 771 F2d 682, summary judgment gr, remanded
(WD Pa) CCH Unemployment Ins Rep ¶ 16140A; Chavez v Bowen (CA9 Ariz) 844 F2d
691, CCH Unemployment Ins Rep ¶ 17974.9; George Arakelian Farms, Inc. v
Agricultural Labor Relations Bd., 49 Cal 3d 1279, 265 Cal Rptr 162, 783 P2d 749;
Jacobs v Teledyne, Inc., 39 Ohio St 3d 168, 529 NE2d 1255; Re Application of Carrier,
155 Vt 152, 582 A2d 110.
The doctrine of res judicata is not applicable when substantial changes in facts or
circumstances occur subsequent to the earlier hearing, and when an administrative
tribunal's decision is based on consideration of public need and advantage. Whelden v
Board of County Comrs. (Colo App) 782 P2d 853.
Footnote 85. United States v Peppertree Apartments (CA11 Ala) 942 F2d 1555 (not
followed on other grounds by King v Shelby Medical Center (ND Ala) 779 F Supp 157,
58 BNA FEP Cas 435, 58 CCH EPD ¶ 41317) and (not followed on other grounds by
Ihedioha v Emro Marketing Co. (ND Ga) 58 BNA FEP Cas 106, 58 CCH EPD ¶ 41452)
and vacated on other grounds (US) 118 L Ed 2d 419, 112 S Ct 1755, on remand,
remanded (CA11 Ala) 961 F2d 1538, 6 FLW Fed C 648 and motion den (US) 119 L Ed
2d 561, 112 S Ct 2935; Pantex Towing Corp. v Glidewell (CA11 Ala) 763 F2d 1241,
119 BNA LRRM 3137, 103 CCH LC ¶ 11546; Carmel Valley Fire Protection Dist. v
State (2nd Dist) 190 Cal App 3d 521, 234 Cal Rptr 795; Industrial Com. of State v
Moffat County School Dist. (Colo) 732 P2d 616; State, Dept. of Transp. v Gary (Fla App
D1) 513 So 2d 1338, 12 FLW 2376; People ex rel. Hartigan v Kerr-McGee Chemical
Corp. (2d Dist) 210 Ill App 3d 115, 154 Ill Dec 700, 568 NE2d 921; McClanahan v
Remington Freight Lines, Inc. (Ind) 517 NE2d 390, 2 BNA IER Cas 1888; Surf & Sand,
Inc. v Gardebring (Minn App) 457 NW2d 782; Choi v State (3d Dept) 144 App Div 2d
126, 534 NYS2d 713, app gr 74 NY2d 605, 543 NYS2d 398, 541 NE2d 427 and affd 74
NY2d 933, 550 NYS2d 267, 549 NE2d 469; Bostwick v Atlas Iron Masters, Inc. (Okla
App) 780 P2d 1184; Frederick v American Hardware Supply Co., 384 Pa Super 72, 557
A2d 779, 4 BNA IER Cas 483, app den 523 Pa 636, 565 A2d 445; Liller v West Virginia
Human Rights Comm'n, 180 W Va 433, 376 SE2d 639, 51 CCH EPD ¶ 39386.
Footnote 86. Astoria Fed. Sav. & Loan Ass'n v Solimino (US) 115 L Ed 2d 96, 111 S Ct
2166, 91 CDOS 4330, 91 Daily Journal DAR 6686, 55 BNA FEP Cas 1503, 56 CCH
EPD ¶ 40809 (holding that the test for the applicability of the presumption in favor of
administrative estoppel is whether administrative preclusion would be inconsistent with
Congress' intent in enacting the particular statute).
The initial decision of an administrative law judge is not afforded collateral estoppel
effect in a criminal prosecution arising out of the same factual nexus as the prior
administrative proceedings. United States v Alexander (CA7 Ill) 743 F2d 472, CCH
Bankr L Rptr ¶ 70011.
The state commerce commission's orders are not res judicata. Peoples Gas, Light &
Coke Co. v Illinois Commerce Com. (1st Dist) 175 Ill App 3d 39, 124 Ill Dec 690, 529
NE2d 671.
Annotation: Doctrine of res judicata or collateral estoppel as barring relitigation in

state criminal proceedings of issues previously decided in administrative proceedings,
30 ALR4th 856.
Footnote 87. Pittsburgh Plate Glass Co. v NLRB, 313 US 146, 85 L Ed 1251, 61 S Ct
908, 8 BNA LRRM 425, 4 CCH LC ¶ 51122, reh den 313 US 599, 85 L Ed 1551, 61 S
Ct 1093.
Footnote 88. FRCP 8(c).
Footnote 89. Cobb v Aytch (ED Pa) 472 F Supp 908, affd in part and remanded in part
(CA3) 643 F2d 946; Crowder v Lash (CA7 Ind) 687 F2d 996, 34 FR Serv 2d 1223;
Sartin v Commissioner of Public Safety (CA8 Minn) 535 F2d 430; Poulin v Bowen, 260
US App DC 142, 817 F2d 865.
§ 382 --What constitutes final decision
View Entire Section

Not every administrative order which determines rights and liabilities, or from which
legal consequences flow, is final and thus subject to judicial review; generally, to be
final, an administrative order must leave nothing further for the agency to do. 90
"Finality" for the purposes of administrative collateral estoppel is a two-step process

requiring the decision to be final with respect to action by the administrative agency and
the decision have conclusive effect; thus, a decision of an administrative agency will not
be given collateral estoppel effect if an appeal to a court for review has been taken or if
the time for such appeal has not lapsed. 91 If a rule of an agency permits petition for
rehearing, the agency's decision will not be final until rehearing is completed or the
petition denied. 92 However, discretionary power to rehear or reopen matters, which
exists in nearly all administrative agencies, is not sufficient to render an otherwise final
administrative order not final. 93
As long as an agency intends to render a final decision and the person taking the appeal is
aggrieved by the decision rendered, the fact that the other related issues are reserved for
later adjudication does not necessarily detract from its finality. 94
Footnotes
Footnote 90. Holiday Spas v Montgomery County Human Relations Com., 315 Md 390,
554 A2d 1197.
An order of the Commission on Human Rights and Opportunities which determined that
an employee had sustained compensable injury and that the employer was liable but
which did not determine the exact amount of damage to be determined after the receipt of
additional documentary evidence was not a final appealable order. Connecticut Bank &
Trust Co. v Commission on Human Rights & Opportunities, 202 Conn 150, 520 A2d
186.
Footnote 91. Long Beach Unified Sch. Dist. v State of California (2nd Dist) 225 Cal App
3d 155, 275 Cal Rptr 449, review den (Cal) 1991 Cal LEXIS 832; Convalescent Center
of Bloomfield, Inc. v Department of Income Maintenance, 208 Conn 187, 544 A2d 604;
Robinson v Baton Rouge (La App 1st Cir) 566 So 2d 415; Drews v EBI Cos., 310 Or
134, 795 P2d 531.
Footnote 92. Lincoln v Soukup, 215 Neb 732, 340 NW2d 420.
Footnote 93. Seidner v Colonie, Bd. of Zoning Appeals (3d Dept) 79 App Div 2d 751,
434 NYS2d 800, affd 55 NY2d 613, 446 NYS2d 249, 430 NE2d 1302.
Footnote 94. New Haven v New Haven Police Union Local 530, 210 Conn 597, 557 A2d
506.
§ 383 Stare decisis
View Entire Section

Go to Supplement
A presumption exists that, in deciding particular cases, an agency will continue to apply
stable rules which will carry out the policies committed to it by Congress. 95 However,
an administrative agency is not necessarily bound by stare decisis, but may correct,
overrule, or modify prior incorrect decisions, 96 so long as it does not arbitrarily
disregard precedent. 97
An agency also has the power to narrow the application of a rule or find that even though
a rule in general serves useful purposes, peculiarities of the case before it suggest that the
rule not be applied. 98
Before an agency may depart from or distinguish a precedent, it must clearly state the
reasons for its decision, so that a reviewing court may understand the basis of the
agency's action, see what policies are being enforced by the agency, and determine
whether those policies conform to statutory mandates. 99 A settled course of
behavior by a regulatory agency embodies the agency's informed judgment that by
pursuing that course it will carry out the policies committed to it by Congress; thus, there
is at least a presumption that those policies will be carried out best if the settled rule is
adhered to and, accordingly, an agency changing its course by rescinding a rule is obliged
to supply a reasoned analysis for the change beyond that which may be required when an
agency does not act in the first instance. 1 An agency also has an obligation to
explain why its decision varies from the standards announced in its legislative rules. 2
An administrative decision has no precedential value for an appellate court, particularly

where it is in direct conflict with prior judicial decisions. 3
§ 383 ----Stare decisis [SUPPLEMENT]
Case authorities:
Administrative agency is generally not bound by principle of stare decisis, but it cannot
act arbitrarily in failing to follow established precedent; thus state coastal council did not
act arbitrarily in approving building permit for restaurant planned as part of aquarium and
tour boat facility to be built partially on critical zone of riverbank, which failed to follow
prior decision denying permit for another building that shaded area of river mudflats on
grounds of environmental impact, where there were distinguishing factors between cases,
most notably that prior case did not involve public benefits. 330 Concord Street
Neighborhood Assn. v Campsen (1992, SC App) 424 SE2d 538.
Footnotes
Footnote 95. Atchison, T. & S. F. R. Co. v Wichita Board of Trade, 412 US 800, 37 L
Ed 2d 350, 93 S Ct 2367.
468 US 1227, 82 L Ed 2d 921, 105 S Ct 28, 105 S Ct 29 and (criticized on other
grounds by INS v Cardoza-Fonseca, 480 US 421, 94 L Ed 2d 434, 107 S Ct 1207) as
stated in International Union, United Auto., etc. v Brock, 259 US App DC 457, 816 F2d
761, 106 CCH LC ¶ 12400 (not followed by Noland v Sullivan (DC Dist Col) 785 F
Supp 179, 36 Soc Sec Rep Serv 738) and (not followed on other grounds by Klaus v
Duquesne Light Co. (WD Pa) 58 BNA FEP Cas 951, 58 CCH EPD ¶ 41512); NLRB v A.
P. W. Products Co. (CA2) 316 F2d 899, 53 BNA LRRM 2055, 47 CCH LC ¶ 18221;
Marine Space Enclosures, Inc. v Federal Maritime Com., 137 US App DC 9, 420 F2d
577 (criticized on other grounds by Bell Tel. Co. v FCC (CA3) 503 F2d 1250); Duke v
Workers' Comp. Appeals Bd. (1st Dist) 204 Cal App 3d 455, 251 Cal Rptr 185, 53 Cal
Comp Cas 385; Cittadino v Bellacosa, 136 Misc 2d 999, 519 NYS2d 484; D. H.
Overmyer Telecasting Co. v American Home Assur. Co. (Cuyahoga Co) 29 Ohio App 3d
31, 29 Ohio BR 32, 502 NE2d 694, motion overr; Williams v Public Service Com. (Utah)
754 P2d 41, 77 Utah Adv Rep 11.
An administrative agency is bound by prior determinations only where the existence of

sufficient factual similarity between two cases requires it. 590 West End Assoc. v State
Div. of Housing & Community Renewal (1st Dept) 166 App Div 2d 184, 564 NYS2d
Footnote 97. Modine Mfg. Co. v Pollution Control Bd. (2d Dist) 192 Ill App 3d 511, 139
Ill Dec 589, 548 NE2d 1145; Re Application of Peoples Natural Gas Co., Div. of
UtiliCorp. United, Inc. (Minn App) 413 NW2d 607; Courtesy Motors, Inc. v Ford Motor
Co., 9 Va App 102, 384 SE2d 118.

An agency which fails to explain why it refuses to follow a recent precedent or rule is
properly subject to a charge that its action is arbitrary. FTC v Crowther, 139 US App DC
137, 430 F2d 510, 1970 CCH Trade Cases ¶ 73238.
Ed 2d 350, 93 S Ct 2367.
Ed 2d 350, 93 S Ct 2367; Secretary of Agriculture v United States, 347 US 645, 98 L
Ed 1015, 74 S Ct 826.
Footnote 1. Motor Vehicle Mfrs. Asso. v State Farm Mut. Auto. Ins. Co., 463 US 29, 77
L Ed 2d 443, 103 S Ct 2856, 13 ELR 20672.
As to judicial review of changes in agency rules, see § 415.
Footnote 2. Marco Sales Co. v FTC (CA2) 453 F2d 1, 1971 CCH Trade Cases ¶ 73781.
Footnote 3. State ex rel. 401 North Lindbergh Assoc. v Ciarleglio (Mo App) 807 SW2d
100.
§ 384 Effect of change of law
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The law in effect at the time of an administrative determination is controlling, even if it

has been amended during the pendency of the proceeding. 4 A change of law
pending an administrative determination must be followed and the new law applied, at
least in relation to permits for the doing of future acts, 5 unless the statute contains a
saving clause. 6 A determination may not anticipate a statutory change and be based on
such a change prior to the effective date of the statute. 7
§ 384 ----Effect of change of law [SUPPLEMENT]
Case authorities:
Once the United States Supreme Court has determined a statute's meaning, the Supreme
Court (1) adheres to its ruling under the doctrine of stare decisis, and (2) assesses an
agency's later interpretation of the statute against that settled law. Neal v United States
(1996, US) 133 L Ed 2d 709, 116 S Ct 763, 96 CDOS 414, 96 Daily Journal DAR 666,
9 FLW Fed S 375.
Footnotes
Footnote 4. Ziffrin, Inc. v United States, 318 US 73, 87 L Ed 621, 63 S Ct 465, reh den
318 US 800, 87 L Ed 1163, 63 S Ct 757 and (not followed on other grounds by Smith v
Petra Cablevision Corp. (ED NY) 793 F Supp 417, 60 BNA FEP Cas 112, 59 CCH EPD
¶ 41540) (where the order was a denial of a permit effective for the future); Peterson v
Livestock Com., 120 Mont 140, 181 P2d 152; Sadore Lane Management Corp. v State
Div. of Housing & Community Renewal (2d Dept) 151 App Div 2d 681, 542 NYS2d
When an agency acts pursuant to a statute that is later declared unconstitutional, the prior
final proceeding based on such a statute is entitled to res judicata effect and is immune
from collateral attack. Miller v Board of Medical Quality Assurance (3rd Dist) 193 Cal
App 3d 1371, 238 Cal Rptr 915.
As to loss of jurisdiction by repeal of statute, see § 549.
Footnote 5. Ziffrin, Inc. v United States, 318 US 73, 87 L Ed 621, 63 S Ct 465, reh den
318 US 800, 87 L Ed 1163, 63 S Ct 757 and (not followed by Smith v Petra Cablevision
Corp. (ED NY) 793 F Supp 417, 60 BNA FEP Cas 112, 59 CCH EPD ¶ 41540)
(otherwise the agency issues orders contrary to existing legislation); Oliphant v Carthage
Bank, 224 Miss 386, 80 So 2d 63; Socony-Vacuum Oil Co. v Mt. Holly Tp., 135 NJL
112, 51 A2d 19, 169 ALR 579.
Footnote 6. State ex rel. Rouveyrol v Donnelly, 365 Mo 686, 285 SW2d 669 (superseded
on other grounds by statute as stated in Bank of Belton v State Banking Board (Mo App)
554 SW2d 451) and (superseded on other grounds by statute as stated in St. Joseph's Hill
Infirmary, Inc. v Mandl (Mo App) 682 SW2d 821).
Proceedings properly instituted under existing statutes are "pending proceedings" within
a general saving statute and are not affected by a repeal of such statutes, where the
repealing statute does not provide therefor, but may be completed thereunder as though
they had not been repealed. State ex rel. Speeth v Carney, 163 Ohio St 159, 56 Ohio Ops
194, 126 NE2d 449.
I. Record and Findings [385-391]
Research References
5 USCS §§ 555(e), 557(c)
Model State Administrative Procedure Act (1981) §§ 4-215(c), 4-221
Model State Administrative Procedure Act (1961) §§ 9(e), 12
§ 385 Generally

View Entire Section
Go to Supplement
In formal adjudicatory proceedings, a record must be developed which illuminates the

basis for the agency's decision. 8 Such a record is not developed in informal
proceedings, but an agency is still under the obligation to give prompt notice of the
grounds for the denial of an application. 9 The record or statement of reasons must be
sufficient to support the agency's order upon review, 10 indicate that the agency's
decision is proper, 11 and demonstrate to the reviewing court that the agency has given
the case proper consideration. 12
Practice Aids: Petition or application–Allegation–Failure to consider transcript of

evidence before issuing order. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, §
308.
Case authorities:
Secretary of Department of Health and Human Services violated requirements of APA

and 42 USCS § 1315 by waiving 42 USCS § 1396a without adequate findings, thereby
allowing state to cut AFDC benefits as part of plan to implement experimental work
incentive project. Beno v Shalala (1994, CA9 Cal) 30 F3d 1057, 94 CDOS 5346, 94
Daily Journal DAR 9843, reh den (Aug 31, 1994).
Administrative judge did not abuse her discretion in reopening record after it was initially
closed and accepting subsequently filed submissions since parties were continuing to file
arguments and evidence, there was no serious dispute that appellant was entitled to
attorney's fees or that agency was not prejudiced by any delay, and Board favors
adjudication on merits. Williams v Department of the Air Force (1994, MSPB) 64 MSPR
37.
Footnotes
Model State Administrative Procedure Act (1981) § 4-221; Model State Administrative
Procedure Act (1961) § 9(e).
As to the requirement of notice of denial, see § 391.
Footnote 10. Garvey v Freeman (CA10 Colo) 397 F2d 600.
Footnote 11. NLRB v Tex-Tan, Inc. (CA5) 318 F2d 472, 53 BNA LRRM 2298, 47 CCH
LC ¶ 18284.
Footnote 12. Collette Travel Service, Inc. v United States (DC RI) 263 F Supp 302.
§ 386 Contents of record
View Entire Section

The record of an administrative proceeding must include the entire evidentiary basis of
the decision. 13 When an agency seeks to validate its action based upon a policy that
is not recorded in rules or discoverable precedents, that policy must be established by
expert testimony, documentary opinions, or other evidence appropriate to the nature of
the issues involved, and the agency must expose and elucidate its reasons for its
discretionary actions with competent, substantial evidence on record. 14 When an
agency or board relies on its expertise, it must put in the record the basis for that
expertise. 15 All pertinent evidence, including the hearing officer's conclusions on
demeanor, 16 and all documents upon which the officer relied in arriving at a decision,
should be included in the record. 17 The use of extra-record evidence constitutes fatal
error and a denial of due process 18 if the agency's journey outside the record works a
substantial prejudice on a party, 19 such as where undisclosed information influenced
the agency's decision and such information could not properly be administratively
noticed. 20 However, the mere fact that an administrative agency has looked beyond the
record does not invalidate its action unless substantial prejudice is shown to result. 21
The record must also include all decisions, 22 including the initial or recommended
decision of the hearing officer. 23 The decisions must include a statement of the
findings and conclusions, and the reasons or basis therefor, on all material issues of fact,
law, or discretion presented on the record, and the order issued. 24 In addition, the
record must reflect the ruling on each finding, conclusion, or exception presented to the
agency by a party. 25 An agency must articulate a rational connection between the
facts that it finds and the legal conclusions that it draws from them. 26
An agency may provide support for its determination by incorporating by reference the
rationale employed in the previous decision. 27 However, where an administrative
agency does not follow its own precedents in deciding a case that involves essentially the
same facts, the agency must set forth the reasons for the departure, or else the decision
will be deemed arbitrary and capricious as a matter of law. 28
While there is no explicit statutory requirement that all testimony be transcribed, 29 such
transcription is usually necessary in order to make an evidentiary record which is
sufficient to withstand review. 30
Footnotes
Footnote 13. Watson Bros. Transp. Co. v United States (DC Neb) 180 F Supp 732; Lewis
v Hayes (3d Dist) 152 Ill App 3d 1020, 106 Ill Dec 102, 505 NE2d 408; State
Administrative Bd. of Election Laws v Billhimer, 72 Md App 578, 531 A2d 1298, cert gr
311 Md 698, 537 A2d 262 and revd on other grounds 314 Md 46, 548 A2d 819, cert den
490 US 1007, 104 L Ed 2d 159, 109 S Ct 1644; Kendrick v Chattanooga Firemen's &
Policemen's Ins. & Pension Fund Bd. (Tenn App) 799 SW2d 668, app den (Tenn) 1990
Tenn LEXIS 461; First Nat. Bank v County Bd. of Equalization (Utah) 799 P2d 1163,
145 Utah Adv Rep 8.
Model State Administrative Procedure Act (1981) § 4-221; Model State Administrative
Procedure Act (1961) § 9(e).
Where there are no contested material issues of fact, an agency is not required to repeat
or even summarize evidential data to provide an explanation of the basis of its decision.
Re Petition of Warren, 247 NJ Super 146, 588 A2d 1227, certif den 127 NJ 557, 606 A2d
369 and revd on other grounds,, remanded 132 NJ 1, 622 A2d 1257.
As to the requirement that an agency develop a record of formal adjudicatory

proceedings, generally, see § 385.
Footnote 14. Health Care & Retirement Corp. v Department of Health & Rehabilitative
Services (Fla App D1) 559 So 2d 665, 15 FLW D 822.
Footnote 15. D'Amour v Board of Registration in Dentistry, 409 Mass 572, 567 NE2d
1226.
Footnote 16. First Federal Sav. & Loan Assn. v Federal Home Loan Bank Board (WD
Ark) 426 F Supp 454, 10 Envt Rep Cas 1274, affd (CA8 Ark) 570 F2d 693.
Footnote 17. High Horizons Dev. Co. v State, DOT, 120 NJ 40, 575 A2d 1360.
Footnote 18. Lechich v Rinaldi (DC NJ) 246 F Supp 675 (noting a possible exception if
suppression is based on national security or executive privilege); Philpot v Miami (Fla
App D1) 541 So 2d 680, 14 FLW 714.
Footnote 19. Marathon Oil Co. v EPA (CA9) 564 F2d 1253, 12 Envt Rep Cas 1098
(criticized on other grounds by Weyerhaeuser Co. v Costle (DC Dist Col) 11 Envt Rep
Cas 2149) and (criticized on other grounds by Corn Refiners Asso. v Costle (CA8) 594
F2d 1223, 12 Envt Rep Cas 2054, 9 ELR 20233) and (criticized on other grounds by
Chemical Waste Management, Inc. v U.S. Environmental Protection Agency, 277 US
App DC 220, 873 F2d 1477, 29 Envt Rep Cas 1561, 19 ELR 20868).
Footnote 20. Marmon v Califano (1978, DC Mont) 459 F Supp 369.
Footnote 21. United States v Pierce Auto Freight Lines, Inc., 327 US 515, 90 L Ed 821,
66 S Ct 687; NLRB v Johnson (CA6) 310 F2d 550, 51 BNA LRRM 2653, 46 CCH LC ¶
17954; Whaley v Gardner (CA8 Mo) 374 F2d 9.
Footnote 22. Watson Bros. Transp. Co. v United States (DC Neb) 180 F Supp 732;
Kendrick v Chattanooga Firemen's & Policemen's Ins. & Pension Fund Bd. (Tenn App)
799 SW2d 668, app den (Tenn) 1990 Tenn LEXIS 461.
LRRM 2274, 20 CCH LC ¶ 66439.
As to findings and conclusions, see § 388.
Staff recommendations which do not constitute decisions need not be included in the
record. T. S. C. Motor Freight Lines, Inc. v United States (SD Tex) 186 F Supp 777, affd
366 US 419, 6 L Ed 2d 387, 81 S Ct 1356.
As to rulings on exceptions, see § 387.
Footnote 26. Mt. Hood Community College v Employment Div., 101 Or App 314, 790
P2d 1164.
Footnote 27. Connecticut Light & Power Co. v Department of Public Utility Control, 219
Conn 51, 591 A2d 1231.
Footnote 28. Community Care Centers, Inc. v Indiana Dept. of Public Welfare (Ind App)
523 NE2d 448; Dental Soc. of New York v New York State Tax Com. (3d Dept) 148
App Div 2d 791, 538 NYS2d 374.
Footnote 29. Tomlin v Department of Social Services, 154 Mich App 675, 398 NW2d
490.
Footnote 30. Donastorg v Government Employees' Service Com. (DC VI) 285 F Supp
111.
The burden of providing and paying for a transcript of a hearing before an administrative
law judge falls on the party asserting any exceptions which reasonably require the agency
reference to and review of relevant parts of the record before approving or rejecting the
judge's findings. Re Morrison, 216 NJ Super 143, 523 A2d 238.
§ 387 Rulings on exceptions
View Entire Section

The Administrative Procedure Acts require that the record show the ruling on each
exception presented to an agency, 31 or objections to offers of evidence and the rulings
on the objections. 32 The requirements of the federal Act are met, even though there is
no specific, separate ruling on each exception, so long as the agency informs the party
submitting the exception of its rulings, 33 such as by saying that it has considered the
exceptions in the record, and that the exceptions raise no new material matters of fact not
adequately considered and properly determined by the administrative law judge. 34
However, the statutory requirements may not be satisfied where the agency simply
mentions that the party submitted exceptions to the recommended decision but does not
indicate that it has considered the exceptions. 35
An agency must use care when it states in its decision that all exceptions not granted are
denied; generally, a statement indicating that all exceptions not specifically discussed in
an agency's report nor reflected in its findings or conclusions have been considered and
found unjustified satisfies the requirement of the Federal Administrative Procedure Act
that a ruling on each exception be stated on the record. 36 However, while such a
statement may be proper if it unmistakably informs the respondent of the agency's rulings
on the respondent's exceptions, a statement that, for one reason or another, all exceptions
not granted are overruled may be insufficient if there were several alternatives open to
the agency and a reviewing court cannot determine what alternative the agency had in
mind when it made its decision. 37
Footnotes
1095; American President Lines, Ltd. v NLRB (CA9) 340 F2d 490, 58 BNA LRRM
2278, 51 CCH LC ¶ 19464; NLRB v State Center Warehouse & Cold Storage Co. (CA9)
193 F2d 156, 29 BNA LRRM 2209, 20 CCH LC ¶ 66674; NLRB v Wichita Television
Corp. (CA10) 277 F2d 579, 45 BNA LRRM 3096, 39 CCH LC ¶ 66413, cert den 364
US 871, 5 L Ed 2d 93, 81 S Ct 113, 46 BNA LRRM 3156.
Footnote 34. North American Van Lines, Inc. v United States (ND Ind) 217 F Supp 837.
Footnote 36. Seaboard Airline Railroad v United States (ED Va) 268 F Supp 500.
Footnote 37. Radio Station KFH Co. v FCC, 101 US App DC 164, 247 F2d 570.
§ 388 Findings and conclusions
View Entire Section

Go to Supplement
An agency's decision, which must be included in the record, must include a statement of
the findings of fact and conclusions of the agency, and the reasons or basis for such
findings and conclusions. 38 Administrative findings are required in order to ensure
reasoned decisionmaking by the agency, 39 to inform the accused of the exact nature of
the findings against him or her, 40 and to facilitate judicial review. 41

Findings must be made in any formal adjudicatory proceeding, including cases decided
on summary judgment. 42 However, findings are only required when hearings are
required by statute to be made on the record after an opportunity for a hearing; 43 they
are not necessary if an agency's action is not an adjudication or rulemaking as defined
under the administrative procedure acts, 44 if the agency is exempt from the
provisions of the acts, or if the agency's decision is subject to de novo review. 45
Where findings are required by statute, an administrative order generally cannot stand
when there are no findings in support of it. 46 However, there is authority for the view
that the absence of specific findings of fact is not necessarily fatal to an administrative
proceeding. 47 Findings by implication cannot be substituted for specific administrative
findings when they are required by law. 48
§ 388 ----Findings and conclusions [SUPPLEMENT]
Case authorities:
Army Board for Correction of Military Records was not bound by Social Security
Administration's finding that former serviceman had been disabled since his discharge,
and did not act arbitrarily and capriciously in denying request to change discharge from
"general" to "medical"; Board was concerned with fitness for service at time of discharge
while Administration was concerned with fitness for employment after discharge.
Kidwell v Department of the Army (1995, App DC) 56 F3d 279.
Footnotes
Footnote 38. 5 USCS § 557(c)(A).
Model State Administrative Procedure Act (1981) § 4-215(c); Model State

Administrative Procedure Act (1961) § 12.
Re Appeal of Horizon Tele-Communications, Inc., 241 Kan 193, 734 P2d 1168, later
proceeding (Kan) 761 P2d 1253; State ex rel. Commissioner of Ins. v North Carolina
Rate Bureau, 95 NC App 157, 381 SE2d 801, app dismd 102 NC App 809, 403 SE2d 597
and appeal after remand, remanded 104 NC App 211, 408 SE2d 868; Goeke v Houston
Lighting & Power Co. (Tex) 797 SW2d 12, rehg of cause overr (Nov 14, 1990); Re
Petition of Burlington Electric Light Dept., 149 Vt 300, 542 A2d 294; Mannan v District
of Columbia Bd. of Medicine (Dist Col App) 558 A2d 329; Harrington v Kennebunk
(Me) 459 A2d 557, appeal after remand (Me) 496 A2d 309; Melrose Park Nat. Bank v
Zoning Bd. of Appeals (1st Dist) 79 Ill App 3d 56, 34 Ill Dec 577, 398 NE2d 252;
Greenbriar Convalescent Center, Inc. v Department of Public Health, 108 Mich App 553,
310 NW2d 812; State ex rel. Harris v Annuity & Pension Board, Employees' Retirement
System, 87 Wis 2d 646, 275 NW2d 668; Shermack v Board of Regents (3d Dept) 64
App Div 2d 798, 407 NYS2d 926; Nelson v Labor & Industrial Relations Com. (Mo
App) 594 SW2d 356; Re Robros Recycling Corp., 226 NJ Super 343, 544 A2d 411, certif
den 113 NJ 638, 552 A2d 164.
Forms: Findings of fact and conclusions. 1A Federal Procedural Forms, L Ed,


Findings–Complaint charging violation of rights. 1A Am Jur Pl & Pr Forms (Rev),
Footnote 39. International Asso. of Bridge, etc., Local No. 111 v NLRB, 253 US App DC
173, 792 F2d 241, 122 BNA LRRM 2611, 104 CCH LC ¶ 11877, on remand 298 NLRB
930, 134 BNA LRRM 1185, 1989-90 CCH NLRB ¶ 16118, review den, enforcement gr
(CA7 Ill) 946 F2d 1264, 138 BNA LRRM 2703, 120 CCH LC ¶ 10992; Re Application
of Hawaii Electric Light Co., 60 Hawaii 625, 594 P2d 612.
(CA7 Ill) 946 F2d 1264, 138 BNA LRRM 2703, 120 CCH LC ¶ 10992; Spilotro v State,
99 Nev 187, 661 P2d 467; Andrew v King County, 21 Wash App 566, 586 P2d 509,
review den 91 Wash 2d 1023.
(CA7 Ill) 946 F2d 1264, 138 BNA LRRM 2703, 120 CCH LC ¶ 10992; Tourkow v Ft.
Wayne (Ind App) 563 NE2d 151; Pettit v Indiana Alcoholic Beverage Com. (Ind App)
511 NE2d 312; Consumers Power Co. v Michigan Public Service Com., 78 Mich App
581, 261 NW2d 10; Phil Crowley Steel Corp. v King (Mo App) 778 SW2d 800; Boyle v
Trump (Mo App) 584 SW2d 119; Richardson v Omaha, 214 Neb 97, 333 NW2d 656;
Spilotro v State, 99 Nev 187, 661 P2d 467; Appeal of Psychiatric Institutes of America,
132 NH 177, 564 A2d 818; Colburn v Personnel Com., 118 NH 60, 382 A2d 907;
Andrew v King County, 21 Wash App 566, 586 P2d 509, review den 91 Wash 2d 1023;
Goranson v Department of Industry, Labor & Human Relations, 94 Wis 2d 537, 289
NW2d 270.
Footnote 42. NLRB v Clement-Blythe Cos. (CA4) 415 F2d 78, 72 BNA LRRM 2138, 60
CCH LC ¶ 10334.
Ct 307.
As to the right to an administrative hearing, generally, see § 294.
Footnote 44. Citizens to Preserve Overton Park, Inc. v Volpe, 401 US 402, 28 L Ed 2d
136, 91 S Ct 814, 2 Envt Rep Cas 1250, 1 ELR 20110, on remand (WD Tenn) 335 F
Supp 873, 3 Envt Rep Cas 1510, 2 ELR 20061, supp op (WD Tenn) 357 F Supp 846, 5
Envt Rep Cas 1241, 3 ELR 20423, revd on other grounds (CA6 Tenn) 494 F2d 1212, 6
Envt Rep Cas 1573, 4 ELR 20327, cert den 421 US 991, 44 L Ed 2d 481, 95 S Ct 1997
and (ovrld on other grounds by Califano v Sanders, 430 US 99, 51 L Ed 2d 192, 97 S
Ct 980, 42 Cal Comp Cas 1112) as stated in Nanayakkara v Secretary, United States
Dep't of Hous. & Urban Dev. (ED Pa) 1993 US Dist LEXIS 12022, summary judgment
gr (ED Pa) 1993 US Dist LEXIS 16014; Alegria v Texas Alcoholic Beverage Com. (Tex
App Houston (14th Dist)) 731 SW2d 723; Maranatha Mining, Inc. v Pierce County, 59
Wash App 795, 801 P2d 985.
Footnote 45. Renegotiation Bd. v Grumman Aircraft Engineering Corp., 421 US 168, 44
L Ed 2d 57, 95 S Ct 1491, 1 Media L R 2487, 20 CCF ¶ 83865, later proceeding (NASA
BCA) 76-1 BCA ¶ 11763, appeal after remand 217 Ct Cl 285, 579 F2d 586, 25 CCF ¶
82460 (superseded by statute on other grounds as stated in Blue Cross Asso. & Blue
Shield Asso. (ASBCA) 89-2 BCA ¶ 21840).
As to exemptions from the requirements of 5 USCS § 554, see § 264.
Footnote 46. Bell Lines, Inc. v United States (SD W Va) 263 F Supp 40; Anglo-Canadian
Shipping Co. v Federal Maritime Com. (CA9) 310 F2d 606; Gonzalez v Freeman, 118
US App DC 180, 334 F2d 570 (criticized on other grounds by California by State Lands
Com. v Simon (Em Ct App) 504 F2d 430) and (criticized on other grounds by Santa
Clara v Andrus (CA9 Cal) 572 F2d 660); Evansville State Hospital v Perry (Ind App)
549 NE2d 44; Engleson & Van Liere, Inc. v Sodus Point (4th Dept) 135 App Div 2d
1141, 523 NYS2d 269; Baumgardner v State (Okla) 789 P2d 235; Ruiz v Employment
Div., 83 Or App 609, 733 P2d 51; Sakonnet Rogers, Inc. v Coastal Resources
Management Council (RI) 536 A2d 893; Jackson v State (Wyo) 786 P2d 874.
Footnote 47. Gerber v Commonwealth, Dept. of Public Welfare, 133 Pa Cmwlth 639, 577
A2d 948 (holding that the fact that a hearing officer made no specific findings was not
fatal to the administrative proceeding where the record was otherwise replete with
evidence to support the hearing officers findings and conclusion); Drennan v
Philadelphia, Bd. of Pensions & Retirement, 106 Pa Cmwlth 262, 525 A2d 1265.
Footnote 48. Atchison, T. & S. F. R. Co. v United States, 295 US 193, 79 L Ed 1382,
55 S Ct 748; Southern Pacific Transportation Co. v State Bd. of Equalization (3rd Dist)
191 Cal App 3d 938, 237 Cal Rptr 191.
§ 389 --Adopting or rejecting the findings of the administrative law judge
View Entire Section

An administrative body is not bound by the findings made by its hearing officer. 49 An
administrative agency need not review the entire transcript of contested proceedings
conducted before an administrative law judge in all cases, but is only required to consider
the judge's recommendation as part of the record and address the key items of evidence
which were crucial to the agency's decision. 50 An agency has the power to accept
findings of fact contained in the recommended order of the hearing officer in its final
order, and may affirm and incorporate by reference findings of fact filed by an
administrative law judge if they are found to be correct and if they conform to the
requirements of applicable administrative procedure statutes. 51
The findings and conclusions of an administrative agency regarding questions of fact are
to be considered prima facie true and correct. 52 Thus, an agency may not reject or
modify a hearing officer's findings of fact unless the hearing officer's findings of fact are
not supported by competent and substantial evidence. 53 If an agency rejects the initial
decision, it must set forth specific findings and rational conclusions supporting its order,
54 and must state its own findings and conclusions with sufficient particularity to inform
the court and the parties of the basis of its decision. 55
Footnotes
Footnote 49. Drexel Burnham Lambert, Inc. v Commodity Futures Trading Com., 271
US App DC 49, 850 F2d 742, 97 ALR Fed 521; Caracci v Edgar (1st Dist) 160 Ill App
3d 892, 112 Ill Dec 323, 513 NE2d 932; Webb v Board of Police Comrs. (Mo App) 736
SW2d 451.
Footnote 50. Florida Dept. of Corrections v Bradley (Fla App D1) 510 So 2d 1122, 12
FLW 1899; B.C. on behalf of C.C. v Board of Education, 220 NJ Super 214, 531 A2d
1059; Re Morrison, 216 NJ Super 143, 523 A2d 238.
Footnote 51. Kenworth Trucks of Philadelphia, Inc. v NLRB (CA3) 580 F2d 55, 98 BNA
LRRM 2263, 99 BNA LRRM 2157, 83 CCH LC ¶ 10548, 84 CCH LC ¶ 10766 (not
followed on other grounds by Chandler Motors, Inc., 236 NLRB 1565, 98 BNA LRRM
1528, 1978 CCH NLRB ¶ 19444); General Motors Corp. v United States (ED Mich) 359
F Supp 1168, affd without op (CA6 Mich) 492 F2d 1243; North American Van Lines,
Inc. v United States (ND Ind) 217 F Supp 837.
Footnote 52. Letourneau v Department of Registration & Educ. (1st Dist) 212 Ill App 3d
717, 156 Ill Dec 803, 571 NE2d 783; Peck v University Residence Committee, 248 Kan
450, 807 P2d 652; Hamm v American Tel. & Tel. Co., 302 SC 210, 394 SE2d 842; Re
Determination of Ordinary High Water Mark & Outlet Elevation for Beaver Lake (SD)
466 NW2d 163.
An administrative official may overrule a hearing officer's findings, but the officer's
findings are entitled to considerable weight. Miller v Axelrod (4th Dept) 147 App Div
2d 969, 537 NYS2d 711.
Footnote 53. Florida Dept. of Corrections v Bradley (Fla App D1) 510 So 2d 1122, 12
FLW 1899; Kinney v Department of State, Div. of Licensing (Fla App D5) 501 So 2d
129, 12 FLW 307; Tuveson v Florida Governor's Council on Indian Affairs, Inc. (Fla
App D1) 495 So 2d 790, 11 FLW 2004, review den (Fla) 504 So 2d 767, appeal after
remand (Fla App D1) 543 So 2d 245, 14 FLW 773; Advance Die Casting Co. v Labor &
Industry Review Com. (App) 154 Wis 2d 239, 453 NW2d 487.
If an agency's factual findings are supported by evidence, those findings are conclusive
and the reviewing court's jurisdiction is confined to questions of law. State, Dep't of
Motor Vehicles & Pub. Safety v Long, 107 Nev 77, 806 P2d 1043.
Footnote 54. National Freight, Inc. v United States (DC NJ) 359 F Supp 1153; McCarter
v Pomeroy (ND) 466 NW2d 562.
Footnote 55. Union Mechling Corp. v United States (WD Pa) 390 F Supp 411; Caravelle
Express, Inc. v United States (DC Neb) 287 F Supp 585; Re Sentry Ins. Payback Program
Filing (Minn App) 447 NW2d 454.

§ 390 --Sufficiency
View Entire Section

An administrative agency's findings of fact should be sufficient in content to apprise the

parties and the reviewing court of the factual basis of the action so that the parties and the
reviewing tribunal may determine whether the decision has support in evidence and law.
56 A reviewing court will uphold an agency's decision of less than ideal clarity if the
agency's path may reasonably be discerned 57 or if failure to explain every
step in the reasoning process could have made no difference in the outcome. 58 The
findings need not be presented in a particular format, 59 and need not discuss in detail
each matter raised during the proceedings, 60 so long as the basic facts are found.
61 However, the basic facts must be stated on each issue; an agency cannot ignore some
issues, 62 or make conclusory findings. 63 Furthermore, mere recapitulations of
evidence, 64 or reiteration of statutory language, are not sufficient. 65
Any findings of basic facts which are made by an agency must be supported by the
evidentiary facts in the record. 66
Footnotes
Footnote 56. Benmar Transport & Leasing Corp. v Interstate Commerce Com. (CA2) 623
F2d 740; Lodi Truck Service, Inc. v United States (CA9) 706 F2d 898; Dunkley
Refrigerated Transport, Inc. v United States (DC Utah) 416 F Supp 814; Sclavenitis v
Cherry Hills Village Bd. of Adjustment & Appeals (Colo App) 751 P2d 661; Evans v
Backes (ND) 437 NW2d 848; Baumgardner v State (Okla) 789 P2d 235.
Footnote 57. Bowman Transp., Inc. v Arkansas-Best Freight System, Inc., 419 US 281,
42 L Ed 2d 447, 95 S Ct 438, reh den 420 US 956, 43 L Ed 2d 433, 95 S Ct 1340 and
reh den 420 US 956, 43 L Ed 2d 433, 95 S Ct 1341 and reh den 420 US 956, 43 L Ed
2d 433, 95 S Ct 1341 and reh den 420 US 956, 43 L Ed 2d 433, 95 S Ct 1341 and reh
den 420 US 956, 43 L Ed 2d 433, 95 S Ct 1341 and on remand (WD Ark) 399 F Supp
157, affd 425 US 901, 47 L Ed 2d 750, 96 S Ct 1488.
Footnote 58. Peabody Coal Co. v Hale (CA7) 771 F2d 246.
Footnote 59. Eureka Teachers Assn. v Board of Education (1st Dist) 199 Cal App 3d 353,
244 Cal Rptr 240; Hamm v American Tel. & Tel. Co., 302 SC 210, 394 SE2d 842; Cloyd
v Mabry (App) 295 SC 86, 367 SE2d 171.
An agency need not comply with the requirement of FRCP 52 that its findings be stated
in separately numbered paragraphs. Baltimore & O. R. Co. v United States (CA3) 201
F2d 795; Beard-Laney, Inc. v United States (DC SC) 83 F Supp 27, affd 338 US 803, 94
L Ed 486, 70 S Ct 64; Watson Bros. Transp. Co. v United States (DC Neb) 59 F Supp
762.
Footnote 60. Minneapolis & S. L. R. Co. v United States, 361 US 173, 4 L Ed 2d 223,
80 S Ct 229, reh den 361 US 945, 4 L Ed 2d 365, 80 S Ct 405; Southern R. Co. v
United States (DC Va) 180 F Supp 189; Coyle Lines, Inc. v United States (DC La) 115 F
Supp 272; Capital Transit Co. v United States (DC Dist Col) 97 F Supp 614; Dedman v
Board of Land & Natural Resources, 69 Hawaii 255, 740 P2d 28, cert den 485 US 1020,
99 L Ed 2d 888, 108 S Ct 1573; Glaser v Indiana State Dept. of Public Welfare (Ind
App) 512 NE2d 1128; Roth v Workmen's Compensation Appeal Bd. (Armstrong World
Industries), 128 Pa Cmwlth 1, 562 A2d 950; St. Mary's Hospital v State Health Planning
& Dev. Agency (W Va) 364 SE2d 805.
Footnote 61. Stauffer Laboratories, Inc. v Federal Trade Com. (CA9) 343 F2d 75, 1965
Footnote 62. Freight Forwarders Institute v United States (SD NY) 263 F Supp 460.
Footnote 63. Re United Corp. (CA3 Del) 249 F2d 168; Atlanta & S. A. B. R. Co. v
United States (DC Ala) 104 F Supp 193; International Union, United Auto., etc. v NLRB,
147 US App DC 289, 455 F2d 1357, 79 BNA LRRM 2031, 67 CCH LC ¶ 12284; 2101
Wisconsin Assoc. v District of Columbia Dept. of Employment Services (Dist Col App)
586 A2d 1221.
Footnote 64. Kilauea Neighborhood Assn. v Land Use Com., 7 Hawaii App 227, 751 P2d
1031.
Footnote 65. Anglo-Canadian Shipping Co. v Federal Maritime Com. (CA9) 310 F2d
606; Rodriguez v Prince George's County, 79 Md App 537, 558 A2d 742, cert den 317
Md 641, 566 A2d 101,; St. Mary's Hospital v State Health Planning & Dev. Agency (W
Va) 364 SE2d 805.
431, 33 S Ct 185; Chicago & E. I. R. Co. v United States (DC Ind) 107 F Supp 118, affd
344 US 917, 97 L Ed 707, 73 S Ct 346; Atchison, T. & S. F. Railway v United States
(DC Minn) 334 F Supp 651.
§ 391 Notice of decision
View Entire Section

Go to Supplement
A statute entitling parties to notice of a decision or order entered by an agency requires

the agency to promptly notify the parties of orders or decisions. 67
The time periods for filing a motion for a rehearing of an agency order or decision 68
and for an appeal do not commence until the agency complies with its statutory duty to
notify the parties of the order or decision; an agency is obliged to give notice reasonably
calculated to apprise the aggrieved party of the decision and to give him or her the
opportunity to contest that decision through administrative appeal. 69 However, an
agency's failure to provide notice of the denial of an application to the aggrieved party
suspends running of the period for appeal until such notice is provided. 70
Under some statutes, the notice must state the grounds of the decision with enough detail
to allow the reviewing tribunal to appraise the agency's determination under the
appropriate standards of review, 71 and to inform those who are subject to it what
conduct on their part failed to meet the required standard. 72 A notice of denial need not
be accompanied by a brief statement of reasons if the denial is self-explanatory or the
agency is affirming a prior denial. 73
Proper notice of an administrative decision is generally considered to be notice in

writing. 74 Notice may be by publication, as well as by personal service. 75
§ 391 ----Notice of decision [SUPPLEMENT]
Practice Aids: Notice–Of rejection of application. 1A Am Jur Pl & Pr Forms (Rev),

Footnotes
Footnote 67. McBride v Americana Mobile Home Park, Inc., 173 Mich App 275, 433
NW2d 336; Commercial Life Ins. Co. v Texas State Bd. of Ins. (Tex) 774 SW2d 650,
rehg of cause overr (Sep 13, 1989) and appeal after remand (Tex App Austin) 808 SW2d
552, writ den (Sep 18, 1991) and rehg of writ of error overr (Oct 16, 1991).
The 1961 Model State Administrative Procedure Act requires administrative agencies to
notify parties to adjudicatory proceedings either personally or by mail of any decision or
order. Model State Administrative Procedure Act (1961) § 12.
The Federal Administrative Procedure Act provides that an agency give prompt notice of
the denial in whole or in part of a written application, along with a brief statement of the
grounds for the denial. 5 USCS § 555(e).
The notice requirements of an administrative statute require no more than service of a

report and the recommendation of the hearing examiner upon a party or his or her counsel
within 5 days of filing. Berezoski v Ohio State Medical Bd. (Greene Co) 48 Ohio App
3d 231, 549 NE2d 183, dismd, motion overr 38 Ohio St 3d 723, 533 NE2d 1060, reh den
39 Ohio St 3d 717, 534 NE2d 93.
Forms: Notice–Order revoking license to practice. 1A Am Jur Pl & Pr Forms (Rev),

Footnote 68. Commercial Life Ins. Co. v Texas State Bd. of Ins. (Tex) 774 SW2d 650,
rehg of cause overr (Sep 13, 1989) and appeal after remand (Tex App Austin) 808 SW2d
552, writ den (Sep 18, 1991) and rehg of writ of error overr (Oct 16, 1991).
Footnote 69. Selk v District of Columbia Dept. of Employment Services (Dist Col App)
497 A2d 1056; Symons v State, Dept. of Banking & Finance (Fla App D1) 490 So 2d

1322, 11 FLW 1436; Guirdanella v New York State Div. of Housing & Community
Renewal (1st Dept) 165 App Div 2d 667, 564 NYS2d 13; Seattle v Public Employment
Relations Com., 116 Wash 2d 923, 809 P2d 1377.
Footnote 70. Turner v Watt (DC Utah) 566 F Supp 87, 77 OGR 601; Fox v Board of
County Comrs. (App) 114 Idaho 940, 763 P2d 313, review den (Idaho) 1988 Ida LEXIS
179, later proceeding (Idaho App) 1991 Ida App LEXIS 20, reh den, op withdrawn (App)
121 Idaho 686, 827 P2d 699 and substituted op (Idaho App) 1991 Ida App LEXIS 77, reh
den (Idaho App) 1991 Ida App LEXIS 109 and affd in part and vacated in part on other
grounds 121 Idaho 684, 827 P2d 697.
Footnote 71. Gillette v Federal Energy Regulatory Com. (CA10) 737 F2d 883.
Annotation: Right to statement of reasons, under Administrative Procedure Act (5

USCS § 555(e)), for denial of written application, petition, or other request of
interested person made in connection with agency proceeding, 57 ALR Fed 765.
Footnote 72. Connelly v State, 181 Ga App 261, 351 SE2d 702.
Prior to denying or terminating benefits, state social services authorities were required to
issue to the claimant notice providing detail of an individualized explanation of its
reasons in terms comprehensible to the claimant, a statement of why the claimant's
actions failed to meet the required standard, and any calculations of income or resources
used by the agency. Ortiz v Eichler (CA3 Del) 794 F2d 889.
Footnote 74. State, Dept. of Commerce v Hyt, 96 Nev 494, 611 P2d 1096.
A phone call, whose content is many times subject to disparate interprestation, is not
notice reasonably expected to apprise the applicant of the administrative body's decision.
301-52 Townhouse Corp. v Click, 113 Misc 2d 1050, 450 NYS2d 716.
Footnote 75. Department of Defense v Hawaiian Tel. Co. (1975) FCC 75-119, 36 AdL2d
204.
Where a statute makes public notice the operative event for purposes of the running of
the statutory period for filing appeals, a party may not rely on failure of the agency to
provide personal notice of its decision to excuse the failure to appeal within the statutory
period. National Black Media Coalition v FCC, 245 US App DC 273, 760 F2d 1297.
J. Rehearing or Reconsideration [392-394]
Research References
1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Forms 161-172

§ 392 Power to revise administrative orders
View Entire Section

Go to Supplement
So long as an agency retains jurisdiction over a controversy, it may revise its orders. 76
While the power to reconsider is inherent in the power to decide, 77 most agencies rely
on express or implied statutory grants of this power. 78 Such statutes may limit an
agency's jurisdiction to reconsider a matter, and may either permit or prohibit the
reconsideration of an order after it has been appealed to the courts. 79 However, such
statutes only restrict agency actions which may be inconsistent with the jurisdiction of
the reviewing court, and do not, for instance, prevent an agency from granting a
rehearing in a multiparty case to a party who has not filed a petition for judicial review.
80 An agency also has the power to correct inadvertent errors in its decision at any
time, but such power cannot be used as a guise for changing the substance of a decision,
in violation of statutes which limit an agency's power to rehear a case. 81
§ 392 ----Power to revise administrative orders [SUPPLEMENT]
Practice Aids: Petition or application–For rehearing. 1A Am Jur Pl & Pr Forms (Rev),

Petition or application–To reopen hearing–Newly discovered evidence. 1A Am Jur Pl &

Pr Forms (Rev), Administrative Law, § 228.
Case authorities:
Although Commission's reparation rules do not expressly provide for petitions for
reconsideration, Commission may grant such relief, but only in extraordinary
circumstances. Welzant v Merrill Lynch Futures, Inc., et al. (1994, CFTC) CCH Comm
Fut L Rep ¶ 25,980.
Footnotes
Footnote 76. West v Standard Oil Co., 278 US 200, 73 L Ed 265, 49 S Ct 138; Union
State Bank v Galecki (App) 142 Wis 2d 118, 417 NW2d 60.
Footnote 77. Albertson v Federal Communications Com., 87 US App DC 39, 182 F2d
397; Murray v Scully (3d Dept) 170 App Div 2d 829, 565 NYS2d 631, app den 78
NY2d 856, 574 NYS2d 937, 580 NE2d 409; Preston v Coughlin (3d Dept) 164 App Div
2d 101, 562 NYS2d 867; Boieru v State Employment Relations Bd. (Cuyahoga Co) 54
Ohio App 3d 23, 560 NE2d 801.
31 ALR Fed 765, cert den 406 US 950, 32 L Ed 2d 338, 92 S Ct 2042; Armijo v Save
'N Gain (NM App) 771 P2d 989.
If there is an agency rule or statute which provides for rehearing, then an agency decision
is not appealable until the aggrieved party requests a rehearing and his or her petition is
denied. Castaneda v Human Rights Com. (1st Dist) 175 Ill App 3d 1085, 125 Ill Dec
596, 530 NE2d 1005, affd 132 Ill 2d 304, 138 Ill Dec 270, 547 NE2d 437, 55 CCH EPD
¶ 40600 (not followed on other grounds by Land & Lakes Co. v Pollution Control Bd.
(3d Dist) 245 Ill App 3d 631, 616 NE2d 349).
Whether an administrative agency has the power to reopen an administrative proceeding

with a view toward reconsidering its earlier adjudicative order is determined by the
interpretation of the statute which vests the agency with administrative power. Sexton v
Mt. Olivet Cemetery Asso. (Tex App Austin) 720 SW2d 129, writ ref n r e (Jan 28,
1987).
Annotation: Comment Note.–Power of administrative agency to reopen and

reconsider final decision as affected by lack of specific statutory authority, 73 ALR2d
939.
Sua sponte reopening by Social Security Appeals Council of prior final administrative
determination by Secretary of Health and Human Services, 92 ALR Fed 118.
Footnote 79. International Union of Mine, Mill & Smelter Workers v Eagle-Picher
Mining & Smelting Co., 325 US 335, 89 L Ed 1649, 65 S Ct 1166, 16 BNA LRRM
689, 9 CCH LC ¶ 51202; Hal Artz Lincoln-Mercury, Inc. v Ford Motor Co.,
Lincoln-Mercury Div., 28 Ohio St 3d 20, 28 Ohio BR 83, 502 NE2d 590.
Footnote 80. American Farm Lines v Black Ball Freight Service, 397 US 532, 25 L Ed
2d 547, 90 S Ct 1288.
Footnote 81. American Trucking Assos. v Frisco Transp. Co., 358 US 133, 3 L Ed 2d
172, 79 S Ct 170.
Justice may require reconsideration of an earlier administrative decision, where newly

discovered evidence would probably change the outcome if a new proceeding is ordered.
Saldana v Essex County Div. of Welfare, 224 NJ Super 1, 539 A2d 733.
§ 393 Petition for rehearing
View Entire Section

The granting of a rehearing by an administrative agency is a discretionary matter. 82

Generally, the rules of a particular agency specify that a petition for rehearing must be
filed. 83
The petition for rehearing must be sufficiently definite to apprise the agency of the
claimed error so as to allow the agency the opportunity to cure the error or to prepare to
defend the order. 84 The petition must also contain any new facts or legal information,
and should explain why such new information could not have been presented earlier. 85
The allegations in a petition for rehearing must be based upon the findings contained in
the document which agency is being asked to review, and cannot be based on informal
recommendations made by the staff to the agency which are not incorporated in its final
report. 86
 Caution: A petitioner for rehearing must comply with any statutory time limit for
filing the petition. 87 Even if there is no statutory time limit for filing a petition for
rehearing, the courts may still honor an administrative practice that a petition must be
filed within a limited time. 88
A rehearing petition may not be used as a vehicle for testing the merits of an unappealed
decision, 89 or to reargue issues determined by the challenged opinion. 90
Footnotes
Footnote 82. United States v Interstate Commerce Com., 396 US 491, 24 L Ed 2d 700,
90 S Ct 708, 1970 CCH Trade Cases ¶ 73058; Ramsey v Commonwealth, Pennsylvania
Milk Marketing Bd., 132 Pa Cmwlth 74, 572 A2d 21, app den 526 Pa 643, 584 A2d 324;
Texas State Bd. of Pharmacy v Seely (Tex App Austin) 764 SW2d 806, writ den (Jun 21,
1989) and rehg of writ of error overr (Sep 13, 1989); San Antonio v Texas Dept. of
Health (Tex App Austin) 738 SW2d 52, writ den (Mar 2, 1988) and rehg of writ of error
overr (Apr 20, 1988) and writ of error filed (May 19, 1993).
Where the evidence sought to be introduced at a requested rehearing was readily

available at the time of the original hearing, a denial of hearing was not an abuse of
discretion. Dominijinni v Workmen's Compensation Appeal Bd. (DeCarlo), 135 Pa
Cmwlth 204, 581 A2d 245, reh den (Pa Cmwlth) 1990 Pa Commw LEXIS 697.
Footnote 83. Texas Assn. of Long Distance Tel. Cos. v Public Utility Com. (Tex App
Austin) 798 SW2d 875, writ of error filed (Jan 3, 1991) and writ den (Mar 20, 1991)
(holding that except in the case of emergency orders issued by an agency, a motion for
rehearing is a prerequisite to an appeal, and that this rule cannot be waived by actions of
the parties).
Forms: Petitions or applications–For rehearing. 1A Am Jur Pl & Pr Forms (Rev),

Administrative Law, Forms 161, 162; 1A Federal Procedural Forms, L Ed,
Administrative Procedure §§ 2:181-2:184.
Footnote 84. Atchison, T. & S. F. R. Co. v United States, 284 US 248, 76 L Ed 273, 52
S Ct 146; Snead v Texas State Bd. of Medical Examiners (Tex App Austin) 753 SW2d
809.
Footnote 85. Instruments for Industry, Inc. (1970) DCAB Docket No. NBS-16, 26 AdL2d
646.
Such new points must be presented in a petition for rehearing, and must be considered by
the agency, before they can be raised on judicial review. Green v Federal
Communications Com., 144 US App DC 353, 447 F2d 323.

As to judicial review of an agency's refusal to reopen or reconsider, see § 536.
Forms: Petition or application–To reopen proceedings to establish new rates, prices,

wages, and the like. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 163.
–To reopen hearing–Newly discovered evidence. 1A Am Jur Pl & Pr Forms (Rev),

Administrative Law, Form 164; 1A Federal Procedural Forms, L Ed, Administrative
Procedure § 2:183.
–For adoption of new and repeal of existing regulation. 1A Am Jur Pl & Pr Forms
–To reopen–Change of circumstances since decision. 1A Am Jur Pl & Pr Forms (Rev),

Administrative Law, Form 166; 1A Federal Procedure Forms, Administrative
Procedure § 2:185.
Footnote 86. Musical Heights, Inc. (1977) FCC 77-608, 41 AdL2d 724.
Footnote 87. Bay City Education Asso. v Bay City Public Schools, 154 Mich App 68,
397 NW2d 219, 125 BNA LRRM 2609, app gr, in part 428 Mich 873, 402 NW2d 468
and revd on other grounds 430 Mich 370, 422 NW2d 504; Ross v Texas Catastrophe
Property Ins. Asso. (Tex App Austin) 770 SW2d 641 (holding that a motion for
rehearing, filed 15 days after the date of the filing of the final order by the agency, but
more than 15 days after rendition of the final decision or order, was not timely);
Appalachian Power Co. (1974) FPC Op No. 698-A, 35 AdL2d 574.
Footnote 88. Louisville & N. R. Co. v Sloss-Sheffield Steel & Iron Co., 269 US 217, 70
L Ed 242, 46 S Ct 73 (petition must be filed within one year after entry of order); Re
Hill, 241 NJ Super 367, 575 A2d 42 (motion for reconsideration must be made within the
period provided for the taking of an appeal).
Footnote 89. Dominijinni v Workmen's Compensation Appeal Bd. (DeCarlo), 135 Pa

Cmwlth 204, 581 A2d 245, reh den (Pa Cmwlth) 1990 Pa Commw LEXIS 697.
Footnote 90. Paskon v Salem Memorial Hosp. Dist. (Mo App) 806 SW2d 417, reh den,
transfer den (Mo App) 1991 Mo App LEXIS 344 and cert den (US) 116 L Ed 2d 245,
112 S Ct 302.
§ 394 Procedure on rehearing
View Entire Section

Where administrative rules and regulations provide for rehearings, normal rules which
apply in the courts for new trial should also apply. 91 An agency must provide notice
and an opportunity to be heard before rights granted in an administrative order may be
affected. 92 However, if rights are not to be affected by the agency's action, such as
where the facts have been amply established at prior hearings, no new oral hearing need
be granted, 93 and an agency may determine the petition for rehearing on the written
documents submitted with the petition. 94
An agency need not give reasons for its decision to reconsider a prior order, but it must
provide new findings and conclusions which do support the order entered on rehearing.
95
A statute may require that a decision to grant or deny a motion for reconsideration of an
order be made within a specified time period. 96 Absent a specific provision in a statute
or rule, reconsidered administrative decisions are timely as long as the administrative
action is conducted within a short and reasonable time period. 97
Footnotes
Footnote 91. Louisiana Land & Exploration Co. v Wyoming Oil & Gas Conservation
Com. (Wyo) 809 P2d 775, 114 OGR 183.
Footnote 92. Garfield v United States, 211 US 249, 53 L Ed 168, 29 S Ct 62.
Forms: Orders–On petitions or applications for rehearing. 1A Am Jur Pl & Pr Forms

(Rev), Administrative Law, Forms 167-172; 1A Federal Procedural Forms, L Ed,
Administrative Procedure §§ 2:187, 2:188.
Footnote 93. Georgia Public Service Com. v United States, 283 US 765, 75 L Ed 1397,
51 S Ct 619.
Footnote 94. Alaska S.S. Co. v Federal Maritime Com. (CA9) 356 F2d 59.
Footnote 95. Chicago & N. W. R. Co. v United States (ND Ill) 311 F Supp 860.
Forms: Motion–To reconsider opinion and order. 1A Federal Procedural Forms, L Ed,
Footnote 96. Sewickley Valley Hospital v Commonwealth, Dept. of Public Welfare, 121
Pa Cmwlth 337, 550 A2d 1351, app den 524 Pa 614, 569 A2d 1372 (holding that where a
motion for reconsideration of an order is not expressly granted within 30 days of the
entry of the order appealed from, the order granting reconsideration of that order outside
that 30-day period is generally a nullity).
Footnote 97. Hal Artz Lincoln-Mercury, Inc. v Ford Motor Co., Lincoln-Mercury Div.,
28 Ohio St 3d 20, 28 Ohio BR 83, 502 NE2d 590.
K. Alternative Means of Dispute Resolution [395-403]
Research References
5 USCS §§ 571 et seq.

§ 395 When alternative dispute resolution proceedings may be used
View Entire Section

Go to Supplement
The federal Administrative Dispute Resolution Act explicitly authorizes the use of
alternative means of dispute resolution by agencies. 98 "Alternative means of dispute
resolution" is defined by the Act as any procedure that is used, in lieu of an adjudication
as defined in 5 USCS § 551(7), to resolve issues in controversy, including, but not
limited to, settlement negotiations, conciliation, facilitation, mediation, factfinding,
minitrials, and arbitration, or any combination thereof. 99 Alternative means of dispute
resolution are voluntary procedures which supplement rather than limit other available
agency dispute resolution techniques. 1
An agency may use a dispute resolution proceeding for the resolution of an issue in
controversy that relates to an administrative program, if the parties consent to such
proceeding. 2 However, the Act provides that an agency may not use a dispute
resolution proceeding if: (1) a definitive or authoritative resolution of the matter is
required for precedential value; (2) the matter involves or may bear upon significant
questions of government policy that require additional procedures before a final
resolution may be made; (3) maintaining established policies is of special importance, so
that variations among individual decisions are not increased; (4) the matter significantly
affects persons or organizations who are not parties to the proceeding; (5) a full public
record of the proceeding is important; or (6) the agency must maintain continuing
jurisdiction over the matter with authority to alter the disposition of the matter in the light
of changed circumstances. 3
§ 395 ----When alternative dispute resolution proceedings may be used

[SUPPLEMENT]
Practice Aids: ADR with the RTC and the FDIC, 9 Prac RE Law May:27 (1993).
Case authorities:
Breach of contract claims of landlord who participated in Section 8 housing program for
low- income families, relating to failure by HUD to adjust rents for certain years, were
not tolled by landlord's repeated administrative challenges to HUD's policies, since no
clause in contract authorized any particular form of relief for such failure, claim was thus
"pure breach" and not one "arising under contract," and landlord was not required to
satisfy any administrative dispute resolution procedure before bringing claim in court.
Brighton Village Assocs. v United States (1995, CA FC) 52 F3d 1056.
Footnotes

The authority of agencies to use dispute resolution proceedings under the Administrative
Dispute Resolution Act is presently scheduled to terminate on October 1, 1995, except
that such authority will continue in effect with respect to then pending proceedings
which, in the judgment of the agencies that are parties to the dispute resolution
proceedings, require such continuation, until such proceedings terminate. P. L. 101-552
§ 11, 104 Stat 2747 (Nov. 15, 1990).
Practice References Roth, Wulff, and Cooper, The Alternative Dispute Resolution
Practice Guide.
§ 396 Use of neutrals
View Entire Section

A neutral is defined by the Administrative Dispute Resolution Act as an individual who,

with respect to an issue in controversy, functions specifically to aid the parties in
resolving the controversy. 4
A neutral may be a permanent or temporary officer or employee of the federal

government or any other individual who is acceptable to the parties to a dispute
resolution proceeding, 5 must have no official, financial, or personal conflict of interest
with respect to the issues in controversy, unless such interest is fully disclosed in writing
to all parties and all parties agree that the neutral may serve. 6
A neutral who serves as a conciliator, facilitator, or mediator serves at the will of the
parties to the dispute resolution proceeding, 7 and the parties are to agree on
compensation for the neutral that is fair and reasonable to the government. 8
In consultation with appropriate federal agencies and professional organizations

experienced in matters concerning dispute resolution, the Administrative Conference of
the United States will establish standards for neutrals, maintain a roster of individuals
who meet such standards and are otherwise qualified to act as neutrals, enter into
contracts for the services of neutrals that may be used by agencies on an elective basis in
dispute resolution proceedings, and develop procedures that permit agencies to obtain the
services of neutrals on an expedited basis. 9
Footnotes
§ 397 Confidentiality of communications
View Entire Section

Subject to specifically enumerated exceptions, a neutral in a dispute resolution

proceeding may not voluntarily disclose or be required to disclose, through discovery or
compulsory process, any information concerning any dispute resolution communication
or any communication provided in confidence to the neutral, unless: (1) all parties to the
proceeding and the neutral consent in writing, and, if the communication was provided by
a nonparty participant, that participant also consents in writing; (2) the communication
has already been made public or is required by statute to be made public; or (3) a court
determines that disclosure is necessary. 10 However, the parties may agree to
alternative confidential procedures for disclosures by a neutral. 11 Upon such an
agreement, the parties must inform the neutral before the commencement of the dispute
resolution proceeding of any modifications to the provisions of 5 USCS § 574(a), and if
the parties fail to so inform the neutral, the provisions of § 574(a) will apply. 12
If a demand for disclosure, by way of discovery or other legal process, is made upon a
neutral regarding a dispute resolution communication, the neutral must make reasonable
efforts to notify the parties and any affected nonparty participants of the demand. 13
Any party who receives such notice and within 15 days does not offer to defend a refusal
of the neutral to disclose the requested information will be deemed to have waived any
objection to such disclosure. 14
In addition, the Act provides that a party to a dispute resolution proceeding may not
voluntarily disclose or be required to disclose, through discovery or compulsory process,
any information concerning any dispute resolution communication, unless: (1) the
communication was prepared by the party seeking disclosure; (2) all parties to the dispute
resolution proceeding consent in writing; (3) the communication has already been made
public; (4) the communication is required by statute to be made public; (5) a court
determines that disclosure is necessary; (6) the communication is relevant to determining
the existence or meaning of an agreement or award that resulted from the dispute
resolution proceeding or to the enforcement of such an agreement or award; or (7) the
communication was provided to or was available to all parties to the dispute resolution
proceeding. 15
Any dispute resolution communication disclosed in violation of 5 USCS § 574(a) or (b)

will not be admissible in any proceeding relating to the issues in controversy with respect
to which the communication was made. 16
Footnotes
§ 398 Arbitration
View Entire Section

The Administrative Dispute Resolution Act provides that arbitration may be used as an
alternative means of dispute resolution whenever all parties consent. 17 Consent may
be obtained either before or after an issue in controversy has arisen, 18 but an agency
may not require any person to consent to arbitration as a condition of entering into a
contract or obtaining a benefit. 19 A party may agree to submit only certain issues to
arbitration or may agree to arbitration on the condition that the award must be within a
range of possible outcomes. 20 The Act requires any arbitration agreement that sets
forth the subject matter submitted to the arbitrator to be in writing. 21
An agency officer or employee may offer to use arbitration for the resolution of issues in
controversy, if the officer or employee has authority to enter into a settlement concerning
the matter or is otherwise specifically authorized by the agency to consent to the use of
arbitration. 22
The parties to an arbitration proceeding will be entitled to participate in the selection of

an arbitrator, who will be a neutral who meets the criteria of 5 USCS § 573. 23 An
arbitrator to whom a dispute is referred under the Act may regulate the course and
conduct of arbitral hearings, administer oaths and affirmations, compel the attendance of
witnesses and production of evidence at the hearing pursuant to the provisions of 9 USCS
§ 7 only to the extent the agency involved is otherwise authorized by law to do so, and
make awards. 24
Footnotes
Footnote 20. 5 USCS § 575(a)(1)(A)-(B).
§ 399 --Enforcement of arbitration agreements
View Entire Section

Any arbitration agreement to which the Act applies is enforceable pursuant to 9 USCS §
4, and no action brought to enforce an arbitration agreement will be dismissed nor will
relief be denied on the grounds that it is against the United States or that the United
States is an indispensible party. 25
Footnotes
For a discussion of the enforcement of arbitration agreements, see 3 Federal Procedure, L

Ed, Arbitration §§ 4:31 et seq.
§ 400 --Proceedings; prohibition of ex parte communications
View Entire Section


The arbitrator will set a time and place for the hearing on the dispute and will notify the
parties not less than 5 days prior to the hearing. 26 Parties to the arbitration are entitled
to be heard, to present material evidence, and to cross-examine witness appearing at the
hearing. 27 With the consent of the parties, the arbitrator may conduct all or part of the
hearing by telephone, television, computer, or other electronic means, so long as each
party has an opportunity to participate. 28 In addition, the arbitrator may receive any
oral or documentary evidence, except that irrelevant, immaterial, unduly repetitious, or
privileged evidence may be excluded by the arbitrator. 29
The Act prohibits certain ex parte communications in arbitration proceedings; it

specifically provides that no interested person may make or knowingly cause to be made
to the arbitrator an unauthorized ex parte communication relevant to the merits of the
proceeding, unless the parties agree otherwise. 30 If an improper ex parte
communication is made, the arbitrator will ensure that a memorandum of the
communication is prepared and made part of the record, and that an opportunity for
rebuttal is allowed. 31 Furthermore, upon receipt of an improper ex parte
communication, the arbitrator may, to the extent consistent with the interests of justice
and the policies underlying the Act, require the offending party to show cause why its
claim should not be resolved against it as a result of the party's improper conduct. 32
Footnotes
§ 401 --Awards; vacation of award by agency
View Entire Section

The Administrative Dispute Resolution Act requires an arbitrator to make an award

within 30 days after the close of the hearing, or the date of the filing of any briefs
authorized by the arbitrator, whichever date is later, unless either the parties agree to or
the agency's rules provide for some other time limit. 33 Unless the agency provides
otherwise by rule, the award in an arbitration proceeding must include a brief, informal
discussion of the factual and legal basis for the award, but formal findings of fact and
conclusions of law are not required. 34 The award will become final 30 days after it is
served on all parties. 35 However, any agency that is a party to the proceeding may
extend the 30-day period by serving a notice of the extension on all other parties prior to
the end of the first 30-day period. 36
The head of any agency that is a party to an arbitration proceeding conducted under the
Administrative Dispute Resolution Act is authorized to terminate the arbitration
proceeding or vacate any award issued pursuant to the proceeding before the award
becomes final by serving on all other parties a written notice to that effect, thereby
rendering the award null and void. 37 Notice of any request by a party, nonparty
participant, or other person that the agency head terminate the arbitration proceeding or
vacate the award must be provided to all parties to the arbitration proceeding. 38 An
arbitral award that is vacated is not admissible in any subsequent proceeding relating to
the issues in controversy with respect to which the award was made. 39
If an agency head vacates an award, a party to the arbitration, other than the United
States, may within 30 days of the vacation petition the agency head for an award of
attorneys' fees and other expenses under the Equal Access to Justice Act, 5 USCS § 504.
40 The agency head must award the petitioning party those fees and expenses that
would not have been incurred in the absence of the arbitration proceeding, unless the
agency head finds that special circumstances shall make such an award unjust. 41
Footnotes
Footnote 40. 5 USCS § 580(g).
As to awards of attorneys' fees under the Equal Access to Justice Act, 5 USCS § 504, see
§§ 405 et seq.
Footnote 41. 5 USCS § 580(g).
§ 402 --Enforcement of awards
View Entire Section

Once an arbitration award becomes final, it is binding on the parties to the arbitration
proceeding, and may be enforced pursuant to the Arbitration Act, 9 USCS §§ 9-13. 42
An action brought to enforce a final award may not be dismissed, nor may relief be
denied, on the grounds that it is against the United States of that the United States is an
indispensable party. 43
Footnotes
For a discussion of the enforcement of arbitration awards, see 3 Federal Procedure, L Ed,
Arbitration §§ 4:88 et seq.
§ 403 --Judicial review
View Entire Section

Notwithstanding any other provision of law, any person adversely affected or aggrieved
by an award made in an arbitration proceeding conducted under the Administrative
Dispute Resolution Act may bring an action for review of the award only pursuant to the
Arbitration Act, 9 USCS §§ 9-13. 44 However, an agency's decision to use or not to
use a dispute resolution proceeding under the Act is committed to the discretion of the
agency and is not subject to judicial review, except that arbitration is subject to judicial
review under 9 USCS § 10(b). 45 Similarly, a decision by an agency head to terminate
an arbitration proceeding or vacate an arbitral award is committed to agency discretion
and is not subject to judicial review. 46
Upon the application of any person, other than the party to the arbitration, who is
adversely affected or aggrieved by the award, an arbitration award may be reviewed by
the United States District Court for the district where the arbitration award was made,
and the court may vacate the award if the use of arbitration or the award is clearly
inconsistent with the factors set forth in 5 USCS § 572. 47
Footnotes

L. Attorney's Fees [404-414]
Research References
5 USCS § 504; 28 USCS § 2412(d)
§ 404 Generally
View Entire Section

Go to Supplement
Reasonable litigation fees and expenses incurred in an adjudicatory proceeding will not
be awarded to the prevailing party if the adjudicative officer finds that the agency was
substantially justified in actions leading to the proceedings and in the proceeding itself.
48 When a claimant loses at an administrative level, but prevails upon appeal to the
district court, and the district court finds that the state agency acted without reasonable
basis in law or fact, attorney fees may be awarded for proceedings at the administrative
agency level. 49 However, there is authority to the contrary. 50
Statutes may also allow an award of attorney fees for services rendered in administrative
proceedings where such proceedings were useful and necessary to public interest
litigation. 51
Case authorities:
Social security benefits recipient is not entitled to increased attorney's fees under 28
USCS § 2412(d), even though recipient requested that $75 hourly fee, enacted in 1981,
be adjusted for inflation to $115.39 per hour in line with cost of living and prevailing
market rates, because district judges have unanimously agreed by general order that fee
awards of $75 per hour satisfy dual purposes of statute. Adams v Chater (1995, ED La)
914 F Supp 1365, CCH Unemployment Ins Rep ¶ 15227B.
Federal law, rather than state law, controls in cases involving rights of FDIC, including
issue of attorney's fees. Notrica v FDIC (1993, CA9 Cal) 2 F3d 961, 93 CDOS 6152, 93
Defendant in action by Securities and Exchange Commission (SEC) is not entitled to fees
and costs under 28 USCS § 2412, where court found that defendant violated § 17(a)(2)
of Securities Act on two occasions by sending materially misleading letters to
shareholders, but that injunctive relief sought by SEC would be excessive under facts,
and where defendant must disclose violations for next five years, because finding of
violation materially altered relationship between defendant and SEC, and defendant is
therefore not prevailing party. SEC v Littler (1994, DC Utah) 874 F Supp 345.
Wisconsin Personnel Commission did not have authority to order Wisconsin Department
of Transportation to pay costs and attorney's fees related to discovery motion filed by
complainant under Wisconsin Fair Employment Act since there was no express statutory
authorization which was required in order for commission to tax costs and attorney's fees
against Department of Transportation. Wisconsin Dep't of Transp. v Wisconsin Personnel
Comm'n (1993, App) 176 Wis 2d 731, 500 NW2d 664.
Footnotes
Footnote 48. Taft v Pare (RI) 536 A2d 888.
Footnote 49. Stewart v Department of Health & Welfare, 115 Idaho 820, 771 P2d 41.
A sheriff's suspension of a deputy sheriff, upon a finding by the civil service commission
that the deputy sheriff had acted incompetently, precluded a finding that the county or its
officers were arbitrary and capricious in suspending the deputies peace officer powers
and precluded an award of attorneys fees for the deputy challenging the suspension.
Doster v County of San Diego (4th Dist) 203 Cal App 3d 257, 251 Cal Rptr 507.
Footnote 50. World Cup Ski Shop, Inc. v Ketchum (App) 118 Idaho 294, 796 P2d 171
(holding that attorneys fees cannot be awarded pursuant to a statute authorizing an award
in a civil action brought or defended frivolously if the case is initiated before an
administrative agency and is later appealed to the district court for review).
Footnote 51. Best v California Apprenticeship Council (4th Dist) 193 Cal App 3d 1448,
240 Cal Rptr 1 (holding that an individual acting as a private attorney general in seeking
an exemption based on religious beliefs form an apprenticeship assignment to a nuclear
power plant was entitled to an award of public interest attorney fees for services provided
during an administrative proceeding).
§ 405 Under Equal Access to Justice Act
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Unless otherwise specifically provided by statute, under the Equal Access to Justice Act
(EAJA), 52 an agency conducting an adversary adjudication representing the interests of
the United States (except relating to ratemaking or issuing a license) 53 must award to
the prevailing party, who is not the United States and whose net worth does not exceed
specified dollar limits, 54 fees and other expenses incurred by that party in connection
with the proceeding, unless the adjudicative officer finds that the position of the agency
was substantially justified or that special circumstances make an award unjust. 55 Thus,
an agency that conducts an adversary adjudication 56 does not have discretion to deny
attorneys' fees under the EAJA; the award is mandatory unless an exception applies or
unless a party fails to qualify. 57
The EAJA, in rendering the United States liable for attorneys' fees for which the United
States would not otherwise be liable, amounts to a partial waiver of sovereign immunity,
and any such waiver must be strictly construed in favor of the United States. 58 Since
the Equal Access to Justice Act also provides for awards of attorneys' fees to prevailing
parties in civil actions brought against the United States, 59 both the agency and the
appellate court have jurisdiction to consider an application for attorney fees under the
Equal Access to Justice Act if the appellate court has reviewed the agency decision; the
agency retains authority to make the fee award in a case which has been appealed. 60
The clearly stated objective of the Equal Access to Justice Act is to eliminate financial
disincentives for those who would defend against unjustified governmental action and
thereby to deter the unreasonable exercise of government authority. 61
 Observation: The Administrative Conference of the United States has propounded

model rules for the implementation of the Equal Access to Justice Act in agency
proceedings. 62
§ 405 ----Under Equal Access to Justice Act [SUPPLEMENT]
Practice Aids: Fee shifting and public policy: the Equal Access to Justice Act, 77
Judicature 13 (1993).
Making the government pay: The application of the Equal Access to Justice Act, 72 NC
LR 6:1575 (1994).
Statutes:
5 USCS § 504(a)(4), added in 1996, provides that if, in an adversary adjudication arising
from an agency action to enforce a party's compliance with a statutory or regulatory
requirement, the demand by the agency is substantially in excess of the decision of the
adjudicative officer and is unreasonable when compared with such decision, under the
facts and circumstances of the case, the adjudicative officer will award to the party the
fees and other expenses related to defending against the excessive demand, unless the
party has committed a willful violation of law or otherwise acted in bad faith, or special
circumstances make an award unjust. Fees and expenses awarded under this paragraph
will be paid only as a consequence of appropriations provided in advance. 5 USCS §
504(b)(1)(F), also added in 1996, defines "demand" as the express demand of the agency
which led to the adversary adjudication, but does not include a recitation by the agency of
the maximum statutory penalty in an administrative complaint or elsewhere when
accompanied by an express demand for a lesser amount.
28 USCS § 2412(d)(1)(F), added in 1996, provides that if, in a civil action brought by
the United States or a proceeding for judicial review of an adversary adjudication
described in § 504(a)(4) of title 5, the demand by the United States is substantially in
excess of the judgment finally obtained by the United States and is unreasonable when

compared with such judgment, under the facts and circumstances of the case, the court
will award to the party the fees and other expenses related to defending against the
excessive demand, unless the party has committed a willful violation of law or otherwise
acted in bad faith, or special circumstances make an award unjust. Fees and expenses
awarded under this paragraph will be paid only as a consequence of appropriations
provided in advance. 28 USCS § 2412(d)(2)(I) was added to define "demand" as the
express demand of the United States which led to the adversary adjudication, but will not
include a recitation of the maximum statutory penalty in the complaint or elsewhere when
Case authorities:
Although 29 USCS § 633a of Age Discrimination in Employment Act (ADEA) does not
authorize attorney fee award to federal employee who prevails against United States in
age discrimination in employment action, EAJA (28 USCS § 2412(b)) empowers district
courts, in their reasonable discretion, to award prevailing ADEA claimants attorney's fees
and expenses against United States. Nowd v Rubin (1996, CA1 Mass) 76 F3d 25, 69
BNA FEP Cas 1587.
Under Equal Access to Justice Act, Congress has clearly intended that defendants be
eligible for fees against government in any civil action unless some other statute
specifically says otherwise; thus, where Age Discrimination in Employment Act has no
express provision for award of attorney fees, but incorporates certain remedial and
procedural provisions of Fair Labor Standards Act, and EEOC shows no other statute to
prevent court from turning to EAJA, court will award fees. EEOC v Clay Printing Co.
(1994, CA4 NC) 13 F3d 813, 63 BNA FEP Cas 1101, 63 CCH EPD ¶ 42760.
Magistrate judge lacked statutory authority to rule on petitioner's application for

attorneys' fees under Equal Access to Justice Act since application was neither
misdemeanor matter nor matter with respect to which parties had agreed to final decision
by magistrate judge, nor could it be characterized as dispositive, and "additional duties"
clause does not permit magistrate judge to enter final decision appealable to court of
appeals. Rajaratnam v Moyer (1995, CA7 Ill) 47 F3d 922.
Social security claimant seeking attorney's fees under EAJA has met burden of producing
satisfactory evidence of prevailing market rate for kind and quality of legal services
rendered, where four attorneys have submitted affidavits attesting that market rate is
$150/hr. for comparable cases, since this qualifies as sufficient evidence for purposes of
inexact determination necessary here. Wonders v Shalala (1993, ED Wis) 822 F Supp
1345, 41 Soc Sec Rep Serv 353.
Although Age Discrimination in Employment Act (29 USCS §§ 621 et seq.) does not
provide for payment of attorney's fees to prevailing defendant in action brought by
EEOC, such defendant may recover fees under EAJA (28 USCS § 2412(b)) upon
showing that EEOC litigated action in bad faith, vexatiously, wantonly, or for oppressive
reasons. EEOC v Hendrix College (1995, CA8 Ark) 53 F3d 209.
Plaintiff chemical corporation is not prevailing party for purposes of award of attorney's
fees under EAJA (28 USCS § 2412) with respect to action it brought against EPA to
enjoin enforcement of compliance order issued under 42 USCS § 6928(c), since only
relief plaintiff obtained was change in wording in penalty portion of compliance order

(from mandatory to discretionary assessment of fine) and such change only clarified
intent that was same in both orders. Washington Chemical, Inc. v EPA (1992, ED Wash)
23 ELR 20225.
Under Equal Access to Justice Act, party who receives any partial judgment is
"prevailing party" and may recover pro rata apportionment of its fees; thus, where
contractor refuted government's allegations of accord and satisfaction, and contractor's
attorneys devoted 30 percent of their time to that issue, contractor is entitled to 30
percent of its total attorney fees. Community Heating & Plumbing Co. v Garrett (1993,
CA FC) 2 F3d 1143, 39 CCF ¶ 76558.
Employer's petition in Occupational Safety and Health Administration proceeding for

attorney's fees pursuant to EAJA was denied, because president of employer company
represented employer throughout administrative proceedings on pro se basis, and pro se
litigants are not entitled to EAJA fees. Secretary of Labor v Megawest Fin. (1995,
OSHRC ALJ) 17 BNA OSHC 1598.
Footnotes
Originally enacted in 1980, the EAJA expired in 1984 but was reauthorized by Congress
in 1985 (P. L. 99-80, 99 Stat 183) with some modification.
Footnote 53. 5 USCS § 504(b)(1)(C).
Footnote 54. 5 USCS § 504(b)(1)(B).
Footnote 56. Oliveira v United States, 11 Cl Ct 101, affd in part and revd in part on other
grounds (CA FC) 827 F2d 735 (holding that administrative proceedings conducted before
Federal Employee Appeals Authority on the plaintiff's involuntary separation from
government service was not an "adversary adjudication" within meaning of § 504; thus,
the plaintiff was disqualified from seeking an award of attorneys fees and other
expenses).
Annotation: What constitutes "adversary adjudication" by administrative agency

entitling prevailing party to award of attorneys' fees under Equal Access to Justice Act
(5 USCS § 504), 96 ALR Fed 336.
Footnote 57. Grason Electric Co. v NLRB (CA9) 951 F2d 1100, 91 Daily Journal DAR
15571, 139 BNA LRRM 2215, 120 CCH LC ¶ 11041.
Footnote 58. Ardestani v INS (US) 116 L Ed 2d 496, 112 S Ct 515, 91 Daily Journal
DAR 15063 (among conflicting authorities on other grounds noted in National Rifle
Ass'n v Bentsen (CA4 SC) 999 F2d 772).

Footnote 60. Dole v Phoenix Roofing, Inc. (CA5) 922 F2d 1202, 14 BNA OSHC 2025,
on remand (OSHRC ALJ) 1992 CCH OSHD ¶ 29727 and digest op at (OSHRC) 15 BNA
OSHC 1797.
§ 406 --Adversary adjudication defined
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In order for an administrative proceeding to be one in which a fee award is available

under the EAJA, the proceeding must constitute an "adversary adjudication" as defined in
the Act, 63 which defines an "adversary adjudication" as "an adjudication under § 554
of the Administrative Procedure Act in which the position of the United States is
represented by counsel or otherwise." 64 In order for proceedings to fall "under § 554,"
such proceedings must be subject to or governed by 5 USCS § 554 and therefore must be
governed by the procedures mandated by the APA, not just defined by the APA. Thus,
fees are not available under the EAJA in adjudications that Congress did not subject to §
554. 65 Accordingly, where a proceeding is not subject to the requirements of § 554, an
agency's decision to add protections matching those of § 554 is irrelevant. 66 Similarly,
it is irrelevant that a proceeding may be the functional equivalent of a § 554 hearing. 67
Adjudications not subject to § 554, and thus not constituting "adversary adjudications"
for purposes of the EAJA, include administrative deportation proceedings, 68 labor
certification proceedings, 69 EEOC proceedings, insofar as they involve the selection or
tenure of employees, 70 Federal Employees Compensation Act proceedings, 71 land
patent proceedings, 72 appeals to the National Transportation Safety Board of FAA
licensing rulings, 73 Merit System Protection Board proceedings, 74 Social Security
hearings in which the government does not take a position or is not represented by
counsel or otherwise, Securities and Exchange Commission proceedings, 75 and
administrative phases of tax proceedings. 76
If the government was not "represented by counsel or otherwise" in the administrative

proceedings, those proceedings do not qualify for EAJA fees as adversary adjudications.
77 The word "otherwise" refers to an individual who represents the position of the
United States in a manner similar to that of counsel. 78 The crucial distinction between
the role of counsel and that of an adjudicator is that the former advocates a particular
position while the latter independently assesses the evidence before it to reach a result
that is dictated by its understanding of the law. 79
The United States Supreme Court has construed the civil action Equal Access to Justice
Act provision 80 to permit fee awards for administrative proceedings carried out on
remand after the plaintiff prevailed in court even though such proceedings are not
adversarial proceedings. 81 The Court has held that administrative proceedings on
remand may be so intimately connected with judicial proceedings as to be considered
part of the "civil action" for purposes of a fee award under the EAJA, so that a prevailing
party may obtain attorneys' fees for time spent in administrative proceedings on remand
from the district court. 82
§ 406 --Adversary adjudication defined [SUPPLEMENT]
Statutes:
will be paid only as a consequence of appropriations provided in advance.
Footnotes
Footnote 63. Pollgreen v Morris (CA11 Fla) 911 F2d 527 (criticized on other grounds by
Full Gospel Portland Church v Thornburgh, 288 US App DC 356, 927 F2d 628).
Annotation: What constitutes "adversary adjudication" by administrative agency

entitling prevailing party to award of attorneys' fees under Equal Access to Justice Act
(5 USCS § 504), 96 ALR Fed 336.
Footnote 64. 5 USCS § 504(b)(1)(C)(i).
Footnote 66. Friends of Earth v Reilly (App DC) 296 US App DC 170, 966 F2d 690, 35
Envt Rep Cas 1171, 22 ELR 21185 (EPA's use of § 554 procedures in withdrawal
proceeding did not render such proceeding an adversary adjudication under EAJA).
Ass'n v Bentsen (CA4 SC) 999 F2d 772) (rejecting argument that "a functional
interpretation of the EAJA is necessary in order to further the legislative goals underlying
the statute"); Friends of Earth v Reilly (App DC) 296 US App DC 170, 966 F2d 690, 35
Envt Rep Cas 1171, 22 ELR 21185.

Footnote 69. Smedberg Machine & Tool, Inc. v Donovan (CA7 Ill) 730 F2d 1089.
Footnote 70. D'Angelo v Department of Navy (ED Pa) 593 F Supp 1307, 35 BNA FEP
Cas 1658, 36 CCH EPD ¶ 35195.
Footnote 71. Owens v Brock (CA6 Tenn) 860 F2d 1363, 96 ALR Fed 323.
Footnote 72. Cavin v United States, 19 Cl Ct 198, affd in part and vacated in part on
other grounds (CA FC) 950 F2d 731, reported in full (CA FC) 1991 US App LEXIS
28017, reh den (CA FC) 1991 US App LEXIS 29883 and reh, en banc, den (CA FC)
Footnote 73. Bullwinkel v United States Dept. of Transp., Federal Aviation Admin.
(CA7) 787 F2d 254.
Footnote 74. Zeizel v Pierce, 251 US App DC 306, 784 F2d 405; Gavette v Office of
Personnel Management (CA FC) 808 F2d 1456 (among conflicting authorities on other
grounds noted in Edwards v McMahon (CA9 Cal) 834 F2d 796) and (disapproved on
other grounds by Pierce v Underwood, 487 US 552, 101 L Ed 2d 490, 108 S Ct 2541,
CCH Unemployment Ins Rep ¶ 14030A) as stated in Chiu v United States (CA FC) 948
F2d 711 and (among conflicting authorities on other grounds noted in EEOC v
Consolidated Serv. Sys. (CA7 Ill) 989 F2d 233, 61 BNA FEP Cas 327, 61 CCH EPD ¶
42086).
Footnote 75. Family Television, Inc. v SEC (DC Dist Col) 608 F Supp 882, CCH Fed
Secur L Rep ¶ 91987.
Footnote 76. White v United States (CA11 Ala) 740 F2d 836, 84-2 USTC ¶ 9762, 54
AFTR 2d 84-5863 (superseded on other grounds by statute as stated in Haitian Refugee
Center v Meese (CA11 Fla) 791 F2d 1489).
Footnote 77. Re Perry (CA1) 882 F2d 534, 14 BNA OSHC 1113, 1989 CCH OSHD ¶
28625; Pollgreen v Morris (CA11 Fla) 911 F2d 527 (criticized by on other grounds Full
Gospel Portland Church v Thornburgh, 288 US App DC 356, 927 F2d 628).
Footnote 80. 28 USCS § 2412(d)(1)(A).
Footnote 81. Sullivan v Hudson, 490 US 877, 104 L Ed 2d 941, 109 S Ct 2248, CCH
Unemployment Ins Rep ¶ 14672A (not followed on other grounds by Richard v Sullivan
(CA5 La) 926 F2d 399, CCH Unemployment Ins Rep ¶ 15953A) and (not followed on
other grounds by Frizzell v Sullivan (CA5 Tex) 937 F2d 254, CCH Unemployment Ins
Rep ¶ 16268A) and (ovrld on other grounds by Melkonyan v Sullivan (US) 115 L Ed 2d
78, 111 S Ct 2157, 91 CDOS 4337, 91 Daily Journal DAR 6689, CCH Unemployment
Ins Rep ¶ 16030A) as stated in Lopez v Sullivan (ND Ill) 780 F Supp 496, 36 Soc Sec
Rep Serv 156, CCH Unemployment Ins Rep ¶ 16559A.
Unemployment Ins Rep ¶ 14672A (not followed on other grounds by Richard v Sullivan
(CA5 La) 926 F2d 399, CCH Unemployment Ins Rep ¶ 15953A) and (not followed on
other grounds by Frizzell v Sullivan (CA5 Tex) 937 F2d 254, CCH Unemployment Ins
Rep ¶ 16268A) and (ovrld on other grounds by Melkonyan v Sullivan (US) 115 L Ed 2d
78, 111 S Ct 2157, 91 CDOS 4337, 91 Daily Journal DAR 6689, CCH Unemployment
Ins Rep ¶ 16030A) as stated in Lopez v Sullivan (ND Ill) 780 F Supp 496, 36 Soc Sec
Rep Serv 156, CCH Unemployment Ins Rep ¶ 16559A.
§ 407 Application for fees–time and place for filing
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Among other requirements, the prevailing party in an adversary adjudication who is

seeking an award of attorneys' fees under the EAJA must submit its application for fees
and expenses to the agency within 30 days of a final disposition in the adversary
adjudication. 83 Failure to comply with the 30-day requirement for filing an
application for fees and expenses is a jurisdictional bar to the recovery of fees, depriving
the court of subject matter jurisdiction. 84
Although the EAJA requires only that a party seeking attorneys' fees "submit to the
agency" an application within 30 days, 85 Congress, in enacting the EAJA, permitted
each agency to establish procedures for the submission and consideration of applications
for an award of fees and expenses. 86 Thus, an agency requirement that applications be
filed in the agency's central office rather than in its regional offices does not violate due
process where the requirement is consistent with the agency's existing procedures and
does not generally prejudice parties. 87 Similarly, an agency regulation requiring
receipt, rather than merely mailing, of an application for fees and expenses within the
30-day period is consistent with due process. 88
§ 407 ----Application for fees–time and place for filing [SUPPLEMENT]
Case authorities:
Order dismissing Supplemental Security Income (SSI) claimant's application for

attorney's fees under 28 USCS § 2412 is vacated, where application was dismissed
because under law at time it was filed, claimant was not prevailing party since appellate
court remanded without awarding SSI benefits, but where United States Supreme Court
then held that prevailing party includes individuals who seek sentence-four remand under
42 USCS § 405(g) and that such party may seek attorney's fees regardless of status of
SSI benefits, because change in law created exceptional circumstance that prejudiced
claimant in manner not anticipated by court. Allen v Shalala (1993, ND Ill) 835 F Supp
462, 42 Soc Sec Rep Serv 608.
Because district court order ultimately triggers time to file EAJA fee application in social
security case, and because such applications typically require resolution of disputed facts,
EAJA fee applications in social security cases must be filed in first instance in district
court. Goatcher v Chater (1995, CA10 Okla) 57 F3d 980, 48 Soc Sec Rep Serv 208, CCH
Unemployment Ins Rep ¶ 14647B.
Application for EAJA attorney's fees filed by SSI claimant was timely, where district
court had entered final judgment remanding case to HHS Secretary but entry was not in
accordance with FRCP 58; therefore, time period for filing application for fees had not
run. Newsome v Shalala (1993, CA11 Ga) 8 F3d 775, 7 FLW Fed C 1045.
Application for EAJA attorney's fees must be filed no later than 30 days after National
Transportation Safety Board's (NTSB) final disposition (defined as date on which
unappealed initial decision becomes administratively final) of proceeding; thus, ALJ
properly determined that application filed on 12/28/92 was untimely, despite claimant's
argument that 30-day period did not begin to run until expiration of 20-day period that
NTSB had to take review on its own motion pursuant to 49 CFR § 821.43, since ALJ
had issued decision dismissing FAA Administrator's emergency order of revocation on
11/16/92, and 20 days provided by NTSB rule did not apply to emergency proceedings.
Mason v Hinson (1994) NTSB EA- 4183.
EAJA's 30-day time limit for filing application for attorney's fees is jurisdictional and
may not be waived; thus, application that was due on January 29, but was filed on
January 30, was untimely. Holloway v Hinson (1994) NTSB EA- 4155.
Footnotes
Forms: Application–by prevailing party in adversary adjudication–For attorney's fees

and expenses. 1A Federal Procedural Forms, L Ed, Administrative Procedure § 2:221.
Answer to application–By agency official–Objecting to award of fees. 1 Federal

Reply–To answer contesting award of fees and expense–Combined with request for
further proceedings. 1 Federal Procedural Forms, L Ed, Administrative Procedure §
2:223.
Footnote 84. Long Island Radio Co. v NLRB (CA2) 841 F2d 474, 127 BNA LRRM
2987, 108 CCH LC ¶ 10371; Monark Boat Co. v NLRB (CA8) 708 F2d 1322, 113 BNA
LRRM 2896, 97 CCH LC ¶ 10196 (among conflicting authorities on other grounds noted
in Dunn v United States (CA3 Pa) 775 F2d 99, 23 Envt Rep Cas 1692, 16 ELR 20462);
Lord Jim's v NLRB (CA9) 772 F2d 1446, 120 BNA LRRM 2708, 103 CCH LC ¶ 11580;
Columbia Mfg. Corp. v NLRB (CA9) 715 F2d 1409, 114 BNA LRRM 2626, 98 CCH LC
¶ 10443 (among conflicting authorities on other grounds noted in Dunn v United States
(CA3 Pa) 775 F2d 99, 23 Envt Rep Cas 1692, 16 ELR 20462); J.M.T. Machine Co. (CA
FC) 826 F2d 1042, 34 CCF ¶ 75326.

Footnote 87. Lord Jim's v NLRB (CA9) 772 F2d 1446, 120 BNA LRRM 2708, 103 CCH
LC ¶ 11580.
Footnote 88. Lord Jim's v NLRB (CA9) 772 F2d 1446, 120 BNA LRRM 2708, 103 CCH
LC ¶ 11580.
§ 408 --Final disposition defined
View Entire Section

Under the EAJA, an applicant for attorneys' fees and expenses must submit its
application within 30 days of a "final disposition" in the agency adjudication. 89 For
purposes of the EAJA, there is no "final disposition" of an agency adjudication until the
entire decision is final and unappealable. 90 Where a party appeals only part of an
agency's decision, the entire decision is on review; the failure to appeal one part of the
agency decision does not make the agency's disposition of that part a "final disposition"
for purposes of the 30-day period within which an EAJA application must be filed. 91
When the United States appeals the underlying merits of an adversary adjudication, no
decision on an application for attorneys' fees and expenses incurred in connection with
that adversary adjudication may be made until a final and unreviewable decision is
rendered by the court on the appeal or until the underlying merits of the case have been
finally determined pursuant to the appeal. 92
Footnotes
OSHC 1797.
OSHC 1797.
§ 409 --Contents
View Entire Section
To obtain an award of attorneys' fees and other expenses under the EAJA, an applicant
must show that it is a prevailing party and that it is eligible to receive an award. 93
Applicants must also indicate in their applications the amount sought, and must include
an itemized statement from any attorney, agent, or expert witness, representing or
appearing in behalf of the party, stating the actual time expended and the rate at which
fees and expenses are computed. 94 The party must also allege that the position of the
agency was not substantially justified. 95 Thus, a trial brief request for attorneys' fees
under § 504 is not a proper request for such fees, where it is merely a prayer in a pleading
and not a formal application, and does not contain an itemized statement of hours
worked, charges made, or other allegations that will support such an award. 96
Footnotes
Forms: Application–By prevailing party in adversary adjudication–For attorney's fees

and expenses. 1A Federal Procedural Forms, L Ed, Administrative Procedure § 2:221.
Answer to application–By agency official–Objecting to award of fees. 1A Federal

Reply–To answer contesting award of fees and expense–Combined with request for
further proceedings. 1A Federal Procedural Forms, L Ed, Administrative Procedure §
2:223.
Footnote 96. J.M.T. Machine Co. (CA FC) 826 F2d 1042, 34 CCF ¶ 75326 (request was
also premature inasmuch as a final judgment had not been entered in the case).
§ 410 Who may recover fees; net worth limitations
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For purposes of attorneys' fees awards under the EAJA, "party" is defined as (1) an
individual whose net worth did not exceed $2,000,000 at the time the adversary
adjudication was initiated, or (2) any owner of an unincorporated business, or any

partnership, corporation, association, unit of local government, or organization, the net
worth of which did not exceed $7,000,000 at the time the adversary adjudication was
initiated, and which had not more than 500 employees at the time the adversary
adjudication was initiated, except that a tax-exempt organization or a cooperative
association, 97 may be a party regardless of the net worth of such organization or
cooperative association. 98
In determining net worth, Congress intended that generally accepted accounting

principles apply. Thus, where a party fails to prove that contingent liabilities are
probable, an administrative law judge may properly disallow such liabilities in
determining whether the party's net worth exceeded EAJA limits. 99
The definition of a "party" includes a "person" named or admitted as a party, or properly

seeking and entitled as of right to be admitted as a party, in an agency proceeding, and a
person admitted by an agency as a party for limited purposes. 1
§ 410 ----Who may recover fees; net worth limitations [SUPPLEMENT]
Case authorities:
Social security disability claimant's attorney is awarded $7,965.89 in fees and costs under
28 USCS § 2412(d)(1)(A), where attorney brought suit which overturned ALJ's denial of
benefits, because, although ALJ may rely upon physicians' reports to resolve conflicting
medical evidence, it was not reasonable for ALJ to justify his conclusions by selecting
isolated observations by doctors who, in same reports, noted significant examples of
symptomatology and never questioned their genuineness. Hanrahan v Shalala (1993, ED
Wis) 831 F Supp 1440, 42 Soc Sec Rep Serv 375.
Federal employee may seek attorney's fees in employment discrimination action under
Age Discrimination in Employment Act (ADEA), because Congress, by enacting 28
USCS § 2412(b) to place United States on equal footing with private litigants when
defending civil rights claims, expressly waived governmental immunity for attorney's
fees under ADEA. Craig v O'Leary (1994, DC Colo) 870 F Supp 1007.
In action arising out of administrative proceeding regarding issuance of liquor license,

trial court did not abuse its discretion by awarding attorney's fees to nonadministrative
party, where applicable statute provided for award of attorney's fees to nonadministrative
party if that party prevailed and if agency acted without "substantial justification" and in
instant case, nonadministrative party prevailed and trial court's finding on issue of
substantial justification was not arbitrary, capricious, or unreasonable. Lamplighter
Lounge v State ex rel. Heitkamp (1994, ND) 523 NW2d 73.
Footnotes
Footnote 97. As defined in 12 USCS § 1141j(a).
Footnote 98. 5 USCS § 504(b)(1)(B).
Annotation: Who is "party" entitled to recover attorneys' fees under Equal Access to

Justice Act (28 USCS § 2412(d)), 107 ALR Fed 827.
Footnote 99. Kuhns v Board of Governors of Federal Reserve System, 289 US App DC
154, 930 F2d 39.
Footnote 1. 5 USCS § 504(b)(1)(B), which expressly incorporates the definition of

"party" in 5 USCS § 551(3).
§ 411 Substantial justification
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The Equal Access to Justice Act (EAJA) entitles a prevailing party to receive reasonable
fees and other expenses incurred in an adversary adjudication, unless the position of the
agency was substantially justified. 2 The agency bears the burden of showing that its
position was substantially justified. 3 The "position of the agency" refers not only
to the position taken by the agency in the adversary adjudication, but also the action or
failure to act by the agency upon which the adverse adjudication is based. 4 Thus, to
avoid imposition of an award of attorneys' fees, an agency must prove that both its
underlying position and its adjudicatory position were substantially justified. 5
The phrase "substantially justified" does not mean justified to a high degree, but rather
justified to a degree that could satisfy a reasonable person. 6 To establish substantial
justification, an agency must show: (1) a reasonable basis in truth for the facts alleged;
(2) a reasonable basis in law for the theory propounded; and (3) a reasonable connection
between the facts alleged and the theory propounded. 7
To be substantially justified means more than merely undeserving of sanctions for

frivolousness. 8 A position may be justified even though it is not correct, and it may
be substantially justified if a reasonable person could think it correct, that is, if it has a
reasonable basis in law and fact. 9
Whether or not the position of the agency was substantially justified is determined on the
basis of the administrative record, as a whole, which is made in the adversary
adjudication for which fees and other expenses are sought. 10 When a matter is brought
to a close by a voluntary dismissal or settlement before the making of an administrative
record, the agency may permit the parties to supplement the record by filing affidavits or
other documents and the agency may consider such additional material in determining
whether the position of the agency was substantially justified. 11
Although objective indicia, such as the terms of a settlement agreement, the stage at
which the merits were decided, and the views of other courts on the merits, can be
relevant to establishing substantial justification, 12 an agency's position cannot be
viewed as unjustified simply on the grounds that proceedings were voluntarily terminated
on grounds unfavorable to it or by focusing exclusively on the agency's filing of a motion
to dismiss. 13 Furthermore, if substantial justification cannot be determined the "position
of the agency" is to be measured as a whole, not by reference to separate parts of the
litigation, such as discovery requests, fees or appeals. 14
The EAJA contemplates partial awards, and therefore if some but not all of the
government's defenses are substantially justified, the prevailing party should be
compensated for combatting those that are not. 15
§ 411 ----Substantial justification [SUPPLEMENT]
Practice Aids: The essentials of the Equal Access to Justice Act: Court awards of
attorney's fees for unreasonable government conduct, 55 Louisiana LR 2:217 (1994).
Statutes:
Case authorities:
Attorney's fees will not be awarded Chinese student who ultimately achieved lawful
permanent resident status even though he "prevailed," where INS had found him
statutorily ineligible due to illegal entry into U.S., because actions of INS and Attorney
General in this case were reasonable and position of U.S. was substantially justified
under 28 USCS § 2412(d)(1)(A). Yeung v Reno (1994, SD NY) 868 F Supp 53, affd
without op (1995, CA2 NY) 1995 US App LEXIS 15415.
HIV-testing lab is denied award of attorney's fees and expenses under 28 USCS §
2412(d), where FDA seized and destroyed lab's specimen containers, but Tenth Circuit
subsequently ruled that containers were not class III devices requiring premarket
approval under Federal Food, Drug, and Cosmetic Act (21 USCS §§ 301 et seq.),
because, even though lab ultimately prevailed, both of FDA's arguments supporting
seizure action were substantially justified by statutory language, accompanying
regulations, and case law. United States v An Undetermined No. of Defendants (1994,
DC Kan) 869 F Supp 906.
Disability benefits claimant is awarded $3,113.18 for attorney's fees and $145 for costs,
where claimant lost initially and on administrative appeals, filed suit, and then HHS
Secretary, after examining issues, record, and law, moved to remand for supplemental
hearing and new decision regarding disability, because court finds ALJ's analysis of
claimant's ability to perform sedentary work inadequate and his conclusions based upon
that analysis unreasonable, and finds Secretary's initial support of that position not
substantially justified. Rother v Shalala (1994, DC Kan) 869 F Supp 899, 46 Soc Sec Rep
Serv 256.

EPA's position was not "substantially justified" so as to preclude attorney's fee award to
security guard services contractor under 28 USCS § 2412(d), where contractor alleges
that, even though its services were satisfactory as incumbent contractor, EPA engaged
GSA to issue 3-month emergency services procurement contract, and then tried to argue
that urgent and compelling circumstances existed, in attempt to oust plaintiff, because
there is no explanation as to why plaintiff's services were not satisfactory and there is
merely conclusory assertion that situation presented urgent and compelling
circumstances. Taylor Group v Johnson (1995, MD Ala) 915 F Supp 295.
Substantial justification may be demonstrated even where charges have been withdrawn
or action has been dismissed. Caruso v Hinson (1994) NTSB EA- 4165.
Footnotes
Footnote 3. Derickson Co. v NLRB (CA8) 774 F2d 229, 120 BNA LRRM 2571, 103
CCH LC ¶ 11568; Iowa Express Distribution, Inc. v NLRB (CA8) 739 F2d 1305, 116
BNA LRRM 3224, 101 CCH LC ¶ 11173, cert den 469 US 1088, 83 L Ed 2d 704, 105
S Ct 595, 117 BNA LRRM 3232, 102 CCH LC ¶ 11268, reh den 470 US 1024, 84 L Ed
2d 404, 105 S Ct 1385 and (criticized on other grounds by Russell v National Mediation
Bd. (CA5 Tex) 764 F2d 341, 119 BNA LRRM 3217) and (criticized on other grounds by
Trident Marine Constr., Inc. v District Engineer, United States Army Corps of Engineers,
Detroit Dist. (CA6 Mich) 766 F2d 974, 32 CCF ¶ 73685) and (criticized on other grounds
by NLRB v Allcoast Transfer, Inc. (CA6) 780 F2d 576, 121 BNA LRRM 2393, 104
CCH LC ¶ 11774) and (among conflicting on other grounds authorities noted in NLRB v
Fullerton Transfer & Storage, Ltd. (CA6) 910 F2d 331, 135 BNA LRRM 2304, 116 CCH
LC ¶ 10262); Charter Management, Inc. v NLRB (CA11) 768 F2d 1299, 120 BNA
LRRM 2361, 103 CCH LC ¶ 11559; Kuhns v Board of Governors of Federal Reserve
System, 289 US App DC 154, 930 F2d 39.
Annotation: What constitutes substantial justification of government's position so as

to prohibit awards of attorneys' fees against government under Equal Access to Justice
Act (28 USCS § 2412(d)(1)(A)), 69 ALR Fed 130.
Footnote 4. 5 USCS § 504(b)(1)(E).
Footnote 5. Iowa Express Distribution, Inc. v NLRB (CA8) 739 F2d 1305, 116 BNA
595, 117 BNA LRRM 3232, 102 CCH LC ¶ 11268, reh den 470 US 1024, 84 L Ed 2d
404, 105 S Ct 1385 and (criticized on other grounds by Russell v National Mediation Bd.
(CA5 Tex) 764 F2d 341, 119 BNA LRRM 3217) and (criticized on other grounds by
CCH LC ¶ 11774) and (among conflicting on other grounds authorities noted in NLRB v
LC ¶ 10262).

Footnote 6. Pierce v Underwood, 487 US 552, 101 L Ed 2d 490, 108 S Ct 2541, CCH
Footnote 7. Iowa Express Distribution, Inc. v NLRB (CA8) 739 F2d 1305, 116 BNA
595, 117 BNA LRRM 3232, 102 CCH LC ¶ 11268, reh den 470 US 1024, 84 L Ed 2d
404, 105 S Ct 1385 and (criticized on other grounds by Russell v National Mediation Bd.
(CA5 Tex) 764 F2d 341, 119 BNA LRRM 3217) and (criticized on other grounds by
CCH LC ¶ 11774) and (among conflicting authorities on other grounds noted in NLRB v
LC ¶ 10262).
In determining whether the position of an agency was substantially justified, an

adjudicative officer must examine the administrative record, as a whole. Alphin v
National Transp. Safety Bd., 268 US App DC 138, 839 F2d 817, ALR Fed 4106.
154, 930 F2d 39.
154, 930 F2d 39.
154, 930 F2d 39.
Footnote 15. Alphin v National Transp. Safety Bd., 268 US App DC 138, 839 F2d 817,
ALR Fed 4106 (holding that in determining whether a partial award of attorneys fees is
appropriate, the EAJA demands that each allegation made by the agency be evaluated at
each step of the proceedings when new or additional evidence indicated that its original
allegations lack substance or were in error).
§ 412 Special circumstances
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Even if the position of the agency was not substantially justified, a fee award under the
EAJA is inappropriate if special circumstances make an award unjust. 16 It has been
held that the "special circumstances" exception was intended to refer only to substantive
issues and not to financial eligibility for an award of attorneys' fees. 17
 Observation: The legislative history of the "special circumstances" exception

indicates that this provision was designed to provide a "safety valve" to insure that the
government is not deterred from advancing in good faith credible, though novel,
interpretations of the law that often underlie vigorous enforcement efforts, and to
permit courts to rely on equitable considerations in denying a fee award. 18
§ 412 ----Special circumstances [SUPPLEMENT]
Statutes:
28 USCS § 2412(d)(1)(D), added in 1996, provides that if, in a civil action brought by
the United States or a proceeding for judicial review of an adversary adjudication
described in § 504(a)(4) of title 5, the demand by the United States is substantially in
excess of the judgment finally obtained by the United States and is unreasonable when
compared with such judgment, under the facts and circumstances of the case, the court
will award to the party the fees and other expenses related to defending against the
excessive demand, unless the party has committed a willful violation of law or otherwise
acted in bad faith, or special circumstances make an award unjust. Fees and expenses
awarded under this paragraph will be paid only as a consequence of appropriations
provided in advance. 28 USCS § 2412(d)(2)(I) was added to define "demand" as the
express demand of the United States which led to the adversary adjudication, but will not
include a recitation of the maximum statutory penalty in the complaint or elsewhere when
Case authorities:
Delay of 13 years suffered by individual while awaiting final decision by Commodity

Futures Trading Commission does not justify award of attorney's fees under EAJA, even
though individual prevailed on merits. In re Buckwalter (1994, CFTC) CCH Comm Fut L
Rep ¶ 26,096.

Footnotes
Annotation: What constitutes "special circumstances" precluding award of attorneys'

fees under Equal Access to Justice Act (28 USCS § 2412(d)), 106 ALR Fed 191.
Footnote 17. Grason Electric Co. v NLRB (CA9) 951 F2d 1100, 91 Daily Journal DAR
15571, 139 BNA LRRM 2215, 120 CCH LC ¶ 11041 (fact that multiemployer
association set up litigation insurance policy, in which individual association members
shared costs of litigation involving any one member or group thereof, did not constitute
special circumstance which would make award under EAJA unjust).
Footnote 18. House Judiciary Committee Report No. 96-1418 (1980, 96th Cong., 2nd
Sess.) p. 11.
§ 413 Award of fees and expenses
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For purposes of the EAJA, "fees and other expenses" includes the reasonable expenses of
expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or
project which is found by the agency to be necessary for the preparation of the party's
case, and reasonable attorney or agent fees. 19 The amount of fees awarded under the
EAJA will be based upon prevailing market rates for the kind and quality of the services
furnished, except that no expert witness will be compensated at a rate in excess of the
highest rate of compensation for expert witnesses paid by the agency involved, and
attorney or agent fees will not be awarded in excess of $75 per hour unless the agency
determines by regulation that an increase in the cost of living or a special factor, such as
the limited availability of qualified attorneys or agents for the proceedings involved,
justifies a higher fee. 20
The adjudicative officer of the agency may reduce the amount to be awarded, or may
deny an award, to the extent that the party during the course of the proceedings engaged
in conduct which unduly and unreasonably protracted the final resolution of the matter.
21
§ 413 ----Award of fees and expenses [SUPPLEMENT]
Statutes:
Case authorities:
EAJA's $75.00 cap can be exceeded only if court determines that higher fee is justified
by inflation or special factor, such as limited availability of attorneys, and once cap is
adjusted for inflation, it cannot be exceeded absent finding of other special factors not
specifically delineated in 28 USCS § 2412; however, court, in its discretion, may
determine that fee below established ceiling is reasonable attorney's fee award based on
facts of particular case. Hall v Shalala (1995, CA5 La) 50 F3d 367, CCH Unemployment
Ins Rep ¶ 14560B.
Applicant for Social Security disability benefits is awarded attorney's fees under 28
USCS § 2412(d)(1)(A), because based upon hypotheticals posed by ALJ and clear
testimony of vocational expert regarding residual functional capacity for sedentary work,
ALJ lacked reasonable basis for his conclusion that applicant could perform significant
number of jobs and that he was not disabled. Richards v Secretary of Health & Human
Servs. (1995, ND Ohio) 884 F Supp 256, 47 Soc Sec Rep Serv 728, CCH Unemployment
Ins Rep ¶ 14723B.
District court's failure to make factual findings, and its failure to state legal basis for its
attorney's fee award, ordinarily necessitates remand unless appellate court can affirm
award where there is reasonable view of record to support it. EEOC v Hendrix College
(1995, CA8 Ark) 53 F3d 209.
Defendants who were successful in state agency's suit seeking response costs under
CERCLA were not entitled to attorney's fees for agency's refusal to admit that it had not
complied with portions of National Contingency Plan (NCP), since agency could
reasonably have believed that it had complied because it lacked expertise on
environmental matters and consulted with both state environmental agency and private
consultant and its actions on general level followed pattern set forth in NCP. Washington
State Dep't of Transp. v Washington Natural Gas Co. (1995, CA9 Wash) 51 F3d 1489, 95
CDOS 2720, 95 Daily Journal DAR 4708, 31 FR Serv 3d 719, 25 ELR 20879, amd
(1995, CA9 Wash) 95 CDOS 5436, 95 Daily Journal DAR 9272.
Footnotes
Forms: Petition–For rulemaking–To amend maximum rate for attorneys' fees. 1A


§ 414 Judicial review of agency's fee determination
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If a party other than the United States is dissatisfied with a determination of attorneys'
fees and other expenses, that party may, within 30 days after the determination is made,
appeal the fee determination to the court of the United States having jurisdiction to
review the merits of the underlying decision of the agency adversary adjudication. 22
The court's determination on any appeal must be based solely on the factual record made
before the agency, and the court may modify the determination of fees and expenses only
if the court finds that the failure to make an award or the calculation of the amount of the
award was unsupported by substantial evidence. 23
The EAJA's 30-day time limit within which to appeal an agency's fee determination 24
is jurisdictional, and therefore neither the parties nor the courts may waive it. 25 The
30-day time limit for court appeals applies to appeals from all final fee determinations by
agencies conducting adversary adjudications, whether the determination is that a certain
amount be awarded, or that no amount be awarded. 26 The 30-day period runs from the
date of issuance of the determination or decision. 27 Furthermore, the notice of petition
is effective when received, not when sent, and thus a notice of petition for review is
untimely where, although mailed within the 30-day deadline, the notice is not received
within the deadline period. 28
In reviewing an agency's order, the court must determine whether the failure to make an
award of fees and other expenses, or the calculation of the amount of the award, was
supported by substantial evidence, and the court may modify a fee determination only if
the court finds that the determination was unsupported by substantial evidence. 29
Substantial evidence is "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." 30 Appellate review of an administrative fee
determination under the EAJA is to be conducted in accordance with a deferential
abuse-of-discretion standard of review. 31
 Caution: If a court reviews the underlying decision of the adversary adjudication, an

award for fees and other expenses may be made only pursuant to the statute 32 which
authorizes a court to award to a prevailing party other than the United States fees
incurred by the party in a civil action for judicial review of an adversary adjudication
brought against the United States. 33
§ 414 ----Judicial review of agency's fee determination [SUPPLEMENT]
Case authorities:
Appellate court must vacate award of EAJA attorney's fees if district court did not have
subject matter jurisdiction over litigation. Friends of the Boundary Waters Wilderness v
Thomas (1995, CA8 Minn) 53 F3d 881.
gave the superior court jurisdiction under GS § 136-13 1 to determine the whole case,
interpret GS § 6- 1 1 pertaining to the taxing of costs, and it was error for another
FAA Administrator's position can be substantially justified, for purpose of awarding

EAJA fees, even though underlying complaint was dismissed as stale, because it would
be inconsistent with purpose of EAJA to assume, without evaluating case in its entirety,
that because complaint was dismissed as stale, Administrator must have commenced
action without substantial justification; there is no provision in EAJA for automatic
award of fees and costs in each case that is dismissed on procedural grounds. Pine and
Ter Keurst (1992) NTSB EA-3724.
Footnotes
Footnote 25. Howitt v United States Dept. of Commerce (CA1 Mass) 897 F2d 583, cert
den 498 US 895, 112 L Ed 2d 203, 111 S Ct 244; Western Newspaper Pub. Co. v
NLRB (CA7) 821 F2d 459, 125 BNA LRRM 2906, 106 CCH LC ¶ 12433; Sonicraft, Inc.
v NLRB (CA7) 814 F2d 385, 125 BNA LRRM 2679, 106 CCH LC ¶ 12281; MacDonald
Miller Co. v NLRB (CA9) 856 F2d 1423, 129 BNA LRRM 2375, 109 CCH LC ¶ 10735;
J-I-J Constr. Co. v United States (CA FC) 829 F2d 26, 34 CCF ¶ 75359.
Footnote 26. J-I-J Constr. Co. v United States (CA FC) 829 F2d 26, 34 CCF ¶ 75359.
Footnote 27. Western Newspaper Pub. Co. v NLRB (CA7) 821 F2d 459, 125 BNA
LRRM 2906, 106 CCH LC ¶ 12433; Sonicraft, Inc. v NLRB (CA7) 814 F2d 385, 125
BNA LRRM 2679, 106 CCH LC ¶ 12281; Adam Sommerrock Holzbau, GmbH v United
States (CA FC) 866 F2d 427, 35 CCF ¶ 75614.
Footnote 28. Sonicraft, Inc. v NLRB (CA7) 814 F2d 385, 125 BNA LRRM 2679, 106
CCH LC ¶ 12281.
Parole Bd., 157 Vt 72, 596 A2d 1277.

Footnote 32. 28 USCS § 2412(d)(3).
VIII. JUDICIAL REVIEW [415-647]
Research References
20 CFR 404.923
5 USCS §§ 701-706; 7 USCS §§ 3804, 3805; 28 USCS §§ 610, 1331, 1332(a)(1),
1361, 1391(e), 1406(a), 1406(b), 1631, 2341-2343; 39 USCS § 3628; 42 USCS §§
7604, 7607
Model State Administrative Procedure Act (1981) §§ 5-101(1)-(3), 5-104
Model State Administrative Procedure Act (1961) § 15(a)
ALR Index: Administrative Law; Venue
1 Federal Procedural Forms, L Ed, Actions in District Court §§ 1:91, 1:392, 1:872,
1:873; 1A Federal Procedural Forms, L Ed, Actions in District Court §§ 1:2191, 1:2192,
1:2194, 1:2252, 1:2255, 1:2257; 1A Federal Procedural Forms, L Ed, Administrative
Procedure § 2:241
Modjeska, Administrative Law Practice and Procedure § 6.2
1. Overview [415-419]
§ 415 What judicial review embraces
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In connection with the actions of administrative agencies, the term judicial review is used
generally to embrace any matter which arises when an agency action is brought into
question before a court. 34 The term judicial review in this connection is
comprehensive, 35 embracing several different subjects and many elements. 36
Judicial review preliminarily involves the relative roles of the administrative and judicial
processes, 37 and addresses questions of the power of the court, 38 which turn, among
other considerations, upon the constitution, 39 statutes, 40 the general right to invoke
the power of the court; 41 and the extent to which the court will examine the action of
the administrative agency after it is found to be subject to review. 42

§ 415 ----What judicial review embraces [SUPPLEMENT]
Case authorities:
Comments made in internal FTC documents are not official agency action and are
therefore not legally relevant to court's review under APA. United States v McGregor
(1993, CA2 Vt) 11 F3d 1133.
Stay of order that agency suspend appellant for 30 days for violation of Hatch Act,
pending judicial review, would not be granted given court's probable treatment of Board's
decision. Special Counsel v Campbell (1993, MSPB) 58 MSPR 455.
One superior court judge had jurisdiction to decide whether to impose sanctions against
the State pursuant to GS § 1A-1, Rule 11, and he could not be overruled by another
superior court judge. Able Outdoor v Harrelson (1995) 341 NC 167, 459 SE2d 626.
gave the superior court jurisdiction under GS § 136-13 (1) to determine the whole case,
interpret GS § 6- 1 (1) pertaining to the taxing of costs, and it was error for another
Footnotes
Footnote 34. Shields v Utah I. C. R. Co., 305 US 177, 83 L Ed 111, 59 S Ct 160, 3

BNA LRRM 669, 1 CCH LC ¶ 17039.
As to particular proceedings regarded as proceedings for review, see §§ 559 et seq.
As to what constitutes agency action, see § 468.
Footnote 35. United States v Ruzicka, 329 US 287, 91 L Ed 290, 67 S Ct 207.
Footnote 36. Wolf v Young (Tex Civ App San Antonio) 277 SW2d 744, writ ref n r e,
stating, on the issue of refusal to call an election, that the court must first determine the
nature of the election procedure, whether it is administrative or judicial in nature, and
then determine the powers of the judiciary to review the orders when no statutory review
is provided.

§ 416 Basic concepts of judicial review
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Judicial review of administrative agency action presents vital questions as to the relative
roles of administrative agencies and the courts 43 which must be resolved
with extreme care. 44 The role of the courts in regard to administrative action is the
accommodation of the administrative process to the traditional judicial system and to
reconcile democratic safeguards and standards of fair play with the effective conduct of
government. 45 Accordingly, one basic approach to judicial review is that questions of
law or validity are for the court, 46 while questions of fact, policy, or discretion are for
the administrative agency. 47
The total concept of judicial review is, and necessarily must be, a matter which is highly
fluid. Judicial review of administrative action has developed gradually, from case to
case, in response to the pressures of particular situations, the teachings of experience, the
guidance of ideals and general principles, and the influence of legislation. It is a complex
of old and new, of historical survivals and purposive innovations. 48
§ 416 ----Basic concepts of judicial review [SUPPLEMENT]
Practice Aids: Justice Frankfurter, Universal Camera and a jurisprudence of judicial

review of administrative action, 25 U Toledo LR 1 (1994).
Case authorities:
Benefits Review Board was not warranted in affirming Administrative Law Judge's
denial of petition for benefits under Longshore and Harbor Workers' Compensation Act
where, after remand by Board, ALJ effectively abdicated his nondelegable task of
credibility determination, completely departed from his previous finding without
explanation, and repeatedly failed to comply with statutory duty of explanation. See v
Washington Metro. Area Transit Auth. (1994, CA4) 36 F3d 375.
Footnotes
LRRM 2274, 20 CCH LC ¶ 66439; Stark v Wickard, 321 US 288, 88 L Ed 733, 64 S Ct
559; United States v Morgan, 313 US 409, 85 L Ed 1429, 61 S Ct 999, reh den 314 US
704, 86 L Ed 565, 62 S Ct 52; United States v Morgan, 307 US 183, 83 L Ed 1211, 59
S Ct 795.
Judicial review is provided to protect against mistaken or arbitrary orders; its function is
dispassionate and disinterested adjudication, unmixed with any concern as to the success
of either prosecution or defense. United States v Morton Salt Co., 338 US 632, 94 L Ed
401, 70 S Ct 357.
Footnote 44. Bustos-Ovalle v Landon (CA9 Cal) 225 F2d 878.
Footnote 47. §§ 528 et seq.; §§ §§ 478 et seq.
Footnote 48. East Jeffersontown Improv. Asso. v Louisville & Jefferson County Planning
& Zoning Com. (Ky) 285 SW2d 507.
§ 417 Role of courts, generally
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The role of the courts in relation to the administrative process, and the problem with
which they are faced, is to accommodate the administrative process to the traditional
judicial system, 49 and to reconcile in the field of administrative action, democratic
safeguards and standards of fair play with the effective conduct of government. 50
However, the relationship between an administrative tribunal and a court generally is not
the same as that between lower and upper courts, 51 nor is it the function of the courts
to act as a supercommission 52 or adviser of federal administrative agencies. 53
The function of judicial review of agency action is to determine the authority of the
agency, compliance by the agency with appropriate procedural requirements, and to
review any claim that agency action is arbitrary, capricious or an abuse of discretion. 54
Thus, judicial review insures that an essentially fair process was employed by the agency,
eliminating not those decisions with which the court might disagree, but invalidating
those where governmental regularity has lapsed into mere will. 55 It further insures
compliance by administrative agencies with congressional policy as expressed by the
language of the agency's enabling statute and its legislative history. 56 Although agency
review is substantial, its only purpose is to determine whether the agency considered
relevant factors and articulated a satisfactory explanation for its decision. 57
Certain issues, such as challenges to the constitutionality of the acts of the legislature 58
or the ultimate decision on questions of law 59 are for the courts alone to determine.
The availability and extent of judicial review of or relief from administrative action are to
a considerable degree molded by the courts themselves, whether or not statutes attempt to
define the role of the judiciary in relation to the administrative. 60 Courts which
recognize the growth of administrative tribunals as a necessary concomitant of the
growing complexities of modern life tend to impose greater self-limitations upon their
control over administrative agencies 61 than do courts which view the
administrative agencies with hostility and as an encroachment upon functions which
properly belong to the judiciary. 62 Even where the standards that the courts profess
to apply are couched in identical language, the results flowing from the application of
those standards will be different according to the court's fundamental attitude toward the
position of administrative agencies in modern government.
Courts often speak of judicial review, and especially the scope of judicial review, in
terms of administrative agencies generally; 63 often apply the same
rules to different types of administrative agencies; 64 and sometimes hold expressly that
the extent of review in regard to a particular agency is the same as that in regard to
another specific agency. 65 Thus, whether arising from identity or similarity of statutes
or from judicial attitudes there is a certain uniformity in regard to judicial review of
administrative action generally and this uniformity is heightened by the specific review
provisions of administrative procedure acts. 66 However, the continuing growth of
administrative law, the different fields in which administrative agencies operate, the
variety of their functions and purposes, and the variety in the manner in which the
legislature in different statutes has distributed the responsibilities of law enforcement as
between the courts and administrative agencies limit excessive generalizations regarding
judicial review of administrative action, 67 and preclude reading too much into any
one decision. 68
§ 417 ----Role of courts, generally [SUPPLEMENT]
Practice Aids: Petition or application–To restrain administrative agency from hearing

charges against petitioner–Lack of jurisdiction. 1A Am Jur Pl & Pr Forms (Rev),
Administrative Law, Form .
Case authorities:
In Texas court action to enjoin enforcement of subpoenas for medical records issued to
Texas hospitals by administrative judge on behalf of Merit Systems Protection Board,
federal law, rather than state law, governs every aspect of administrative proceeding and
provides federal court with original jurisdiction. Gilbreath v Guadalupe Hosp. Found.
(1993, CA5 Tex) 5 F3d 785.
The trial court erred in reversing the decision of the county health department director to
dismiss petitioner who was a sanitation inspector where the petition for judicial review
alleged no objection to any particular finding of fact in the Final Decision, and each of
those findings was therefore binding on the superior court; the trial court's outright
rejection of respondent's director's findings and conclusions, followed by adoption
instead of the findings of the administrative law judge and the State Personnel
Commission, therefore reflected improper application of the "whole record test" and
erroneous substitution of the court's judgment for that of the agency as contained in the
Final Decision; and proper application of the whole record test supported the conclusion
that "just cause" existed to discharge petitioner from employment on grounds of
unacceptable personal conduct in making romantic overtures and inappropriate sexually
suggestive comments to regulated parties. Gray v Orange County Health Dep't (1995)
119 NC App 62, 457 SE2d 892.
Footnotes
Footnote 49. Rochester Tel. Corp. v United States, 307 US 125, 83 L Ed 1147, 59 S Ct
754.
Footnote 50. Joint Anti-Fascist Refugee Committee v McGrath, 341 US 123, 95 L Ed

817, 71 S Ct 624; United States v Morton Salt Co., 338 US 632, 94 L Ed 401, 70 S Ct
357; Stark v Wickard, 321 US 288, 88 L Ed 733, 64 S Ct 559.
Footnote 51. Federal Power Com. v Colorado Interstate Gas Co., 348 US 492, 99 L Ed
583, 75 S Ct 467, 4 OGR 897.
Ct 307.
19 BNA LRRM 2317, 12 CCH LC ¶ 51238.
Footnote 54. Acadian Gas Pipeline System v Federal Energy Regulatory Com. (CA5)
878 F2d 865; Davidson v United States Dept. of Energy (CA6 Tenn) 838 F2d 850, 45
BNA FEP Cas 1716, 46 CCH EPD ¶ 37911 (purpose of review under Administrative
Procedure Act), cert den 487 US 1207, 101 L Ed 2d 886, 108 S Ct 2849, 47 BNA FEP
Cas 176, 48 CCH EPD ¶ 38452 and (criticized on other grounds by Cousins v Secretary
of United States DOT (CA1 Me) 880 F2d 603, 1 AD Cas 1502, 50 BNA FEP Cas 1684)
and (criticized on other grounds by Clark v Skinner (CA4 NC) 937 F2d 123, 1 AD Cas
1806, 56 BNA FEP Cas 205, 57 CCH EPD ¶ 40987).
As to the arbitrary, capricious or an abuse of discretion standard, see §§ 529 et seq.
Footnote 55. Phillips v Merit Systems Protection Bd. (ED Tex) 666 F Supp 109.
Footnote 56. United States v Nesline (DC Md) 590 F Supp 884, 84-2 USTC ¶ 9821, 54
AFTR 2d 84-5702.
Judicial review of determination of city planning board adopting a negative declaration of

environmental impact of a proposed subdivision is to insure that the lead agency took the
requisite hard look at the areas of environmental concern and made a reasoned
elaboration of the basis for its determination that they posed no significant environmental
effects. Carpenter v Ithaca Planning Bd. (3d Dept) 190 App Div 2d 934, 593 NYS2d
582.
Footnote 57. Alma v United States (SD Ga) 744 F Supp 1546, 21 ELR 20226.
Footnote 58. Adams Packing Asso. v Florida Dept. of Citrus (Fla App D2) 352 So 2d 569
(criticized on other grounds by Cagan v Board of Real Estate (Fla App D5) 409 So 2d
48); Hoh Corp. v Motor Vehicle Industry Licensing Bd., Dept. of Commerce &
Consumer Affairs, 69 Hawaii 135, 736 P2d 1271; Prisk v Poulsbo, 46 Wash App 793,
732 P2d 1013, review den 108 Wash 2d 1020.

When a party raises a proper constitutional question, such as the question of federal
pre-emption, the circuit court should proceed with the determination of that issue and
stay the administrative proceeding. Dyna Span Corp. v Pollock (Fla App D4) 510 So 2d
307, 11 FLW 2332.
Footnote 60. Chicago & Southern Air Lines, Inc. v Waterman S.S. Corp., 333 US 103,
92 L Ed 568, 68 S Ct 431 (denying review although statute provided therefor); Stark v
Wickard, 321 US 288, 88 L Ed 733, 64 S Ct 559 (upholding the right to review by
injunction where the statute did not provide for review of the particular order but did
provide for review of certain other orders); Bandy v Mickelson, 73 SD 485, 44 NW2d
341, 22 ALR2d 1129; Amarillo v Hancock, 150 Tex 231, 239 SW2d 788.
314 US 704, 86 L Ed 565, 62 S Ct 52; Phelps Dodge Corp. v NLRB, 313 US 177, 85 L
Ed 1271, 61 S Ct 845, 8 BNA LRRM 439, 4 CCH LC ¶ 51120, 133 ALR 1217; FCC v
Pottsville Broadcasting Co., 309 US 134, 84 L Ed 656, 60 S Ct 437, 2 CCH LC ¶
17058.

114 CCH LC ¶ 56172).
Footnote 63. Harmon v Brucker, 355 US 579, 2 L Ed 2d 503, 78 S Ct 433; NLRB v

Highland Park Mfg. Co., 341 US 322, 95 L Ed 969, 71 S Ct 758, 28 BNA LRRM 2033,
19 CCH LC ¶ 66327; United States v Interstate Commerce Com., 337 US 426, 93 L Ed
1451, 69 S Ct 1410 (speaking of contention for administrative finality out of harmony
with the general legislative pattern of administrative and judicial relationships); Cox v
United States, 332 US 442, 92 L Ed 59, 68 S Ct 115, reh den 333 US 830, 92 L Ed
1115, 68 S Ct 449 and reh den 333 US 830, 92 L Ed 1115, 68 S Ct 450 (customary
scope of judicial review of administrative action); State ex rel. Williams v Whitman, 116
Fla 198, 156 So 705, 95 ALR 1416; Mohler v Department of Labor, 409 Ill 79, 97 NE2d
762, 24 ALR2d 1393; Reter v Davenport, R. I. & N. W. R. Co., 243 Iowa 1112, 54
NW2d 863, 35 ALR2d 1306; State ex rel. Dybdal v State Secur. Com., 145 Minn 221,
176 NW 759 (this principle of review applies on mandamus or statutory appeal and to
various functions committed to different commissions); Holland v Edwards, 307 NY 38,
119 NE2d 581, 1 BNA FEP Cas 9, 34 BNA LRRM 2018, 1 CCH EPD ¶ 9634, 25 CCH
LC ¶ 68388, 44 ALR2d 1130; Milwaukie Co. of Jehovah's Witnesses v Mullen, 214 Or
281, 330 P2d 5, 74 ALR2d 347, cert den and app dismd 359 US 436, 3 L Ed 2d 932,
79 S Ct 940; Kaufman Const. Co. v Holcomb, 357 Pa 514, 55 A2d 534, 174 ALR 189;
Vermont Acci. Ins. Co. v Burns, 114 Vt 143, 40 A2d 707.
Footnote 64. Jaffe v State Dept. of Health, 135 Conn 339, 64 A2d 330, 6 ALR2d 664,
applying principles established in regard to a zoning board of appeals and the railroad
commission to review of a medical board's determination.
Footnote 65. Retail Clerks' Union, etc. v Wisconsin Employment Relations Board, 242
Wis 21, 6 NW2d 698, 11 BNA LRRM 704, 6 CCH LC ¶ 61363, 149 ALR 452.
The state water commission, like the public service commission, is an administrative
board or tribunal and the holdings in the cases with respect to findings of fact and the
force and effect of the orders of the Public Service Commission are applicable in regard
to the state water commission. Huntington v State Water Com., 137 W Va 786, 73 SE2d
833.
Footnote 66. See Universal Camera Corp. v NLRB, 340 US 474, 95 L Ed 456, 71 S Ct
456, 27 BNA LRRM 2373, 19 CCH LC ¶ 66191, on remand (CA2) 190 F2d 429, 28
BNA LRRM 2274, 20 CCH LC ¶ 66439.
Footnote 67. United States v Ruzicka, 329 US 287, 91 L Ed 290, 67 S Ct 207;

Switchmen's Union of North America v National Mediation Bd., 320 US 297, 88 L Ed
61, 64 S Ct 95, 13 BNA LRRM 616, 7 CCH LC ¶ 51164 (stating that generalization as
to when judicial review of administrative action may or may not be obtained is of course
hazardous).
See also dissenting opinion of Frankfurter, J., in Stark v Wickard, 321 US 288, 88 L Ed
733, 64 S Ct 559, stating that there is no such thing as a common law of judicial review
in the federal courts.
Footnote 68. Floyd v Department of Labor & Industries, 44 Wash 2d 560, 269 P2d 563,
stating that it would be impossible for this court to set a precedent to be applied to all
administrative agencies in a case dealing with an appeal from a decision of only one
administrative body; stare decisis means no more than that the rule laid down in any
particular case is applicable only to the facts in that particular case or to another case
involving identical or substantially similar facts.
§ 418 --Specific elements of the judicial role
View Entire Section

The major elements in the judicial role in relation to administrative law are, within the
constitutional and statutory limitations of the judicial power:
(1) to uphold the Constitution by seeing that powers are not unlawfully vested in
administrative agencies and to maintain the constitutional, statutory, and common-law
rights of persons by seeing that powers lawfully vested in administrative agencies are
lawfully exercised 69 without undue extension by the administrative agency of its
own powers 70 or invasion of the powers of the judiciary 71 or another
administrative agency; 72
(2) to make administrative agencies, wherever possible, effective instruments of law

enforcement; 73
(3) to pass on claims of administrators to the powers necessary to carry out their assigned
tasks; 74
(4) not to abdicate the judicial responsibility of the court, 75 but to give due 76
deference 77 to the role of the administrative agencies, and not to usurp 78 or
unwarrantedly limit the powers and functions lawfully vested in them, or interfere with
the proper exercise of their valid powers; 79
(5) to lend the powers of the court to the proper attainment of the valid objectives of the
administrative agency; 80 and
(6) to leave to the legislature or the people the remedy for administrative action which
may be unwise or undesirable but is within the lawful powers of the agency. 81
Footnotes
Footnote 69. East Texas Motor Freight Lines, Inc. v Frozen Food Express, 351 US 49,
100 L Ed 917, 76 S Ct 574; Public Service Com. v Chicago, I. & L. R. Co., 235 Ind 394,
132 NE2d 698, reh den 235 Ind 403, 134 NE2d 53; Bankers Life & Cas. Co. v
Alexander, 242 Iowa 364, 45 NW2d 258; Kendall v Beiling, 295 Ky 782, 175 SW2d 489.
The responsibility of determining the limits of statutory grants of authority in such

instances is a judicial function entrusted to the courts by Congress, by the statutes
establishing courts and marking their jurisdiction. Stark v Wickard, 321 US 288, 88 L
Ed 733, 64 S Ct 559.
Footnote 70. Jacob Siegel Co. v FTC, 327 US 608, 90 L Ed 888, 66 S Ct 758, 69 USPQ
1.
Footnote 72. Levinson v Spector Motor Service, 330 US 649, 91 L Ed 1158, 67 S Ct

931, 12 CCH LC ¶ 51243.
Footnote 73. Ward v Scott, 11 NJ 117, 93 A2d 385; Pennsylvania State Athletic Com. v
Bratton, 177 Pa Super 598, 112 A2d 422.
67 S Ct 1129.
78 S Ct 851; Walling v Benson (CA8 Mo) 137 F2d 501, 7 CCH LC ¶ 61741, 149 ALR
19 BNA LRRM 2317, 12 CCH LC ¶ 51238; Re Engineers Public Service Co. (CA3 Del)
221 F2d 708.
LRRM 2274, 20 CCH LC ¶ 66439.
Ct 307; People ex rel. Woll v Graber, 394 Ill 362, 68 NE2d 750; Public Service Com. v
Chicago, I. & L. R. Co., 235 Ind 394, 132 NE2d 698, reh den 235 Ind 403, 134 NE2d 53;

Peterson v Livestock Com., 120 Mont 140, 181 P2d 152; Williams Electric Cooperative,
Inc. v Montana-Dakota Utilities Co. (ND) 79 NW2d 508; Burkitt v School Dist., 195 Or
471, 246 P2d 566.
Matters of policy are for the administrative agency and not for the courts. Minneapolis &
S. L. R. Co. v United States, 361 US 173, 4 L Ed 2d 223, 80 S Ct 229, reh den 361 US
945, 4 L Ed 2d 365, 80 S Ct 405.
As to deference to agency expertise, see § 537.
Footnote 79. Walling v Benson (CA8 Mo) 137 F2d 501, 7 CCH LC ¶ 61741, 149 ALR
186, cert den 320 US 791, 88 L Ed 476, 64 S Ct 206; Szcyenpniak v License Appeal
Com. (1st Dist) 11 Ill App 2d 193, 136 NE2d 562, 59 ALR2d 1437.
A court, even in aid of its own jurisdiction of an action pending before it, must not
interfere with a commission exercising its jurisdiction and performing its statutory duties
in carrying out a legislative function delegated to it as the agent of the legislature. Public
Service Com. v Norton, 304 NY 522, 109 NE2d 705.
Footnote 80. SEC v Central-Illinois Secur. Corp., 338 US 96, 93 L Ed 1836, 69 S Ct

1377.
Footnote 81. Stark v Wickard, 321 US 288, 88 L Ed 733, 64 S Ct 559; Burkitt v School
Dist., 195 Or 471, 246 P2d 566; Wolf v Young (Tex Civ App San Antonio) 277 SW2d
744, writ ref n r e.
§ 419 --Supervisory power of courts
View Entire Section

The power of supervisory control over inferior tribunals, which superior courts possess
either inherently or by constitutional or statutory grant 82 distinct from 83 their
appellate jurisdiction, 84 does not extend to executive or administrative officers and
boards. The courts operate under the philosophy of the separation of powers, and the
courts are not vested with the authority to act as supervisory agencies to control and
direct the actions of executive and administrative agencies or officials. 85 Some
authority to the contrary exists. 86
Footnotes
Footnote 82. 20 Am Jur 2d, Courts §§ 111 et seq.
Footnote 83. Hoover Motor Express Co. v Railroad & Public Utilities Com. 195 Tenn
593, 261 SW2d 233.
1002, 71 S Ct 762; Avery Freight Lines, Inc. v White, 245 Ala 618, 18 So 2d 394, 154
ALR 732.
381, 269 SE2d 547.
Footnote 86. Ex parte Alabama Textile Products Corp., 242 Ala 609, 7 So 2d 303, 141
ALR 87.
2. Right to Judicial Review [420-425]
§ 420 Presumption of reviewability of agency actions; federal agencies
View Entire Section

Go to Supplement
There is a strong presumption in favor of judicial review of federal administrative

actions, and prohibitions against judicial review are to be narrowly construed. 87
Only upon a showing of clear and convincing evidence of a contrary legislative intent
should the courts restrict access to judicial review. Where substantial doubt about the
congressional intent exists, the general presumption favoring judicial review of
administrative action is controlling. 88 In rebutting the presumption a party may point
to specific language or legislative history that is a reliable indicator of congressional
intent. The congressional intent necessary to overcome the presumption may also be
inferred from contemporaneous judicial construction barring review and the
congressional acquiescence in it or from the collective import of legislative and judicial
history behind a particular statute. The presumption favoring judicial review of
administrative action may be overcome by inference of intent drawn from the statutory
scheme as a whole. 89
The Administrative Procedure Act 90 embodies this presumption in its comprehensive

provisions for judicial review of agency actions. 91 Under the APA, a person
suffering legal wrong because of agency action, or adversely affected or aggrieved by
agency action within the meaning of a relevant statute, is entitled to judicial review of
agency action 92 as long as the action is a final agency action for which there is no
other adequate remedy in a court. 93
Even though this strong presumption of reviewability was a firmly rooted principle of
administrative law prior to the enactment of the APA, 94 this does not mean, however,
that courts should continue to indulge a presumption of reviewability under the old
administrative law principles when Congress has explicitly exempted an agency from the
APA's coverage. 95
§ 420 ----Presumption of reviewability of agency actions; federal agencies

[SUPPLEMENT]
Practice Aids: Petition or application–Allegation–For review of finding and order
revoking or suspending certificate. 1A Am Jur Pl & Pr Forms (Rev), Administrative
Law, § 282.
Case authorities:
APA provides right of review of agency decisions precisely where plaintiff's claim is not
covered by citizen suit provision of substantive act; thus, absent "clear and convincing
evidence of legislative intention to preclude review" in citizen suit provision of Clean Air
Act, 42 USCS § 7602, providing requirement that projects conform with state plan,
jurisdiction is available under 5 USCS § 702. Conservation Law Found. v Busey (1996,
CA1 NH) 79 F3d 1250, 42 Envt Rep Cas 1385, 26 ELR 20959.
Contractor granted permanent injunction to prevent EPA from releasing information

under FOIA pertaining to contract it had with EPA, where information was submitted
voluntarily in response to EPA's request for bids, since information is clearly of type
contractor would not share with competitors or general public and which therefore falls
within Exemption 4. Environmental Technology, Inc. v United States EPA (1993, ED
Va) 822 F Supp 1226, 23 ELR 21427, amd (ED Va) 1993 US Dist LEXIS 7535.
Military Claims Act, 10 USCS § 2735, precludes judicial review under APA of
disallowance of claim by parents of child against USAF for medical malpractice.
Schneider v United States (1994, CA8 Minn) 27 F3d 1327.
Class members challenging Treasury Department's policy of withholding wife's share of

joint tax refund to satisfy husband's past-due child support owed to former wife need not
meet procedural requirements of 26 USCS §§ 6532 and 7422 to permit jurisdiction over
their claims for declaratory and injunctive relief. Oatman v Department of Treasury-IRS
(1994, CA9 Idaho) 34 F3d 787, 94 CDOS 6598, 94 Daily Journal DAR 12154, 94-2
USTC ¶ 50449, 74 AFTR 2d 94- 6126, 94 TNT 178- 20.
Preliminary injunction blocking Kansas's increase of Medicaid recipient copayment for

institutional services from $25 to $325 is denied, even though Health Care Financing
Administration (HCFA) formally disapproved increase, where state has submitted request
for reconsideration, because court will await HCFA "final decision" under 5 USCS § 704
upon reconsideration before entertaining motion for preliminary injunction. Kansas
Hosp. Ass'n v Whiteman (1994, DC Kan) 865 F Supp 730, 46 Soc Sec Rep Serv 114.
5 USCS § 555(b), under which interested persons "may appear" before agency for
presentation of controversy, does not provide shareholders with right to seek judicial
review of SEC decision not to initiate investigation. Block v SEC (1995, App DC) 50
F3d 1078, CCH Fed Secur L Rep ¶ 98648.
Footnotes
Footnote 87. Bowen v Michigan Academy of Family Physicians, 476 US 667, 90 L Ed

2d 623, 106 S Ct 2133; Federal Deposit Ins. Corp. v Bank of Coushatta (CA5 La) 930
F2d 1122, cert den (US) 116 L Ed 2d 134, 112 S Ct 170; Marble Mountain Audubon
Soc'y v Rice (CA9 Cal) 914 F2d 179, 32 Envt Rep Cas 1249, 21 ELR 20023; Oregon

Natural Resources Council v Mohla (CA9 Or) 895 F2d 627, 20 ELR 20474, cert den 496
US 926, 110 L Ed 2d 642, 110 S Ct 2621, later proceeding (CA9 Or) 944 F2d 531, 91
CDOS 7323, 91 Daily Journal DAR 11103, 37 CCF ¶ 76170.
As to the presumption of judicial review of state agency action, see § 421.
As to what constitutes agency action, see § 468.

2d 623, 106 S Ct 2133.
As to preclusion of judicial review, see §§ 472 et seq.
Footnote 89. Block v Community Nutrition Institute, 467 US 340, 81 L Ed 2d 270, 104
S Ct 2450, on remand 239 US App DC 319, 742 F2d 1472.
Footnote 90. 5 USCS §§ 701-706.
Footnote 91. Nevada v Watkins (CA9) 914 F2d 1545, 31 Envt Rep Cas 2097, 20 ELR
21360, later proceeding 498 US 1118, 112 L Ed 2d 1176, 111 S Ct 1070 and cert den
499 US 906, 113 L Ed 2d 215, 111 S Ct 1105, 33 Envt Rep Cas 1324, reh den (US) 115
L Ed 2d 1012, 111 S Ct 2844.
As to the APA's effect on jurisdiction, see § 424.
As to persons suffering legal wrong, see § 442.
As to persons adversely affected or aggrieved, see §§ 443 et seq.
20335.
As to the requirement of final agency action, see §§ 487 et seq.
Footnote 94. Carlin v McKean, 262 US App DC 212, 823 F2d 620, cert den 484 US
1046, 98 L Ed 2d 870, 108 S Ct 784.
Footnote 95. Carlin v McKean, 262 US App DC 212, 823 F2d 620, cert den 484 US
1046, 98 L Ed 2d 870, 108 S Ct 784.
§ 421 --State agencies
View Entire Section

Go to Supplement

At the state level, many courts maintain that there is no inherent right to appeal from a
judgment rendered in an administrative adjudication, 96 and that the right of judicial
review must be expressly conferred by statute or the Constitution. 97 The primary
source from which the power and right of judicial review may arise is the enabling statute
which defines the scope of the particular agency's power. 98 Whether, and to what
extent, a relevant statute precludes judicial review is determined by its express language,
the structure of the statutory scheme, its objectives, its legislative history, and the nature
of the administrative action involved. 99 Thus, while courts have no inherent appellate
jurisdiction over official acts of administrative agencies, where the legislature has made a
statutory provision for judicial review that procedure is controlling, 1 and, a statutory
right to appeal may be taken advantage of only by strict compliance with the provisions
by which it is created. 2 Similarly, where the statutes involved require an appeal to be
filed in a certain court, that court alone has jurisdiction to entertain the appeal, and the
subject matter jurisdiction may not be waived or agreed upon. 3 A court, consequently,
is without jurisdiction to review an agency's decision where a statute grants exclusive
jurisdiction to review the agency's decisions to a legislatively created panel. 4 But, even
in the absence of a statutory provision for appellate review of an administrative decision
relief from illegal, fraudulent, or oppressive acts of public officials and boards can be
obtained by using such equitable remedies as quo warranto, mandamus, or injunction. 5
§ 421 --State agencies [SUPPLEMENT]
Case authorities:
Order remanding plaintiff's action to state court is not altered, where plaintiffs sought
detachment from one school district and annexation to another, because objectors to
detachment did not show that they could not enforce right to equal protection in state
court, particularly since state law provided for review of township's decision and
permitted those seeking review of agency decisions to raise constitutional issues before
state court. Committee of Ten v Board of Educ. (1995, ND Ill) 878 F Supp 111.
A litigant seeking judicial review of a decision by an administrative agency has three

potential avenues of relief: the review prescribed in the statute applicable to the particular
agency, an appeal pursuant to the statute establishing jurisdiction for such review in the
circuit court, or the method of review provided by the Administrative Procedures Act
(MCL 24.201 et seq., 600.631; MSA 3.560[101] et seq., 27A.631). Living Alternatives
for the Developmentally Disabled v Department of Mental Health (1994) 207 Mich App
482, 525 NW2d 466.
Court of Common Pleas lacks subject matter jurisdiction to hear appeal by state agency
claiming that State Personnel Board of Review had no authority to review disability
separation that agency gave to its employee, because there is no inherent right to appeal
from a judgment rendered in an administrative adjudication unless expressly conferred by
statute or the Constitution, and RC § 2506.01 is inapplicable as it provides for appeal
from orders of any agency of a political subdivision, and here the agencies are of the
state, reliance on RC § 124.34 is misplaced because the disability separation was not
imposed for disciplinary reasons, and under RC Ch 119, neither the state nor a state
agency is a "party" within the meaning of RC § 119.01(G) granting a right to appeal to
"parties" adversely affected by the order of an agency. Collyer v Broadview
Developmental Center (1991, Franklin Co) 74 Ohio App 3d 99, 598 NE2d 75, appeal
after remand, remanded (Franklin Co) 81 Ohio App 3d 445, 611 NE2d 390.
Campaign committee was not entitled to compel Elections Commission to send by
certified mail a copy of the Commission's refusal to order attorney fees requested by the
committee; the Commission's order refusing the request for certified mailing was not
appealable under RC § 119.12 since the Commission is not specifically named under RC
§ 119.01(A), thus its original decision was not appealable. State ex rel. Citizens for Van
Meter v Ohio Elections Com. (1992, Franklin Co) 78 Ohio App 3d 289, 604 NE2d 775.
Footnotes
Footnote 96. Lewis v Connecticut Gaming Policy Bd., 224 Conn 693, 620 A2d 780; Re
Appeal of General Tire, Inc., 102 NC App 38, 401 SE2d 391; Hamilton County Bd. of
Mental Retardation etc. v Professionals Guild of Ohio, 46 Ohio St 3d 147, 545 NE2d
1260, 132 BNA LRRM 2897; Collyer v Broadview Developmental Center (Franklin Co)
74 Ohio App 3d 99, 598 NE2d 75, appeal after remand, remanded (Franklin Co) 81 Ohio
App 3d 445, 611 NE2d 390; Sells v Roose (Tex App Austin) 769 SW2d 641; Chapman v
Labor & Industry Review Com. (App) 156 Wis 2d 286, 456 NW2d 637.
Footnote 97. Island Bay Utilities, Inc. v Alabama Dept. of Environmental Management
(Ala App) 587 So 2d 1210 (the right to appeal an administrative agency's decision is
purely statutory, and an appeal taken without statutory authority must be dismissed for
want of jurisdiction); Vernon Village, Inc. v Carothers, 217 Conn 130, 585 A2d 76;
Parlato v State Com. on Human Relations, 76 Md App 695, 548 A2d 144, cert den 314
Md 497, 551 A2d 867 (judicial review of administrative action is generally a creature of
legislative will as opposed to constitutional or common law right); Collyer v Broadview
Developmental Center (Franklin Co) 74 Ohio App 3d 99, 598 NE2d 75, appeal after
remand, remanded (Franklin Co) 81 Ohio App 3d 445, 611 NE2d 390; Brandt v Labor &
Industry Review Com. (App) 160 Wis 2d 353, 466 NW2d 673, affd 166 Wis 2d 623,
480 NW2d 494; Chapman v Labor & Industry Review Com. (App) 156 Wis 2d 286, 456
NW2d 637 (administrative orders are not reviewable unless made so by statute); Sellers v
Employment Secur. Com. (Wyo) 760 P2d 394.
(Ala App) 587 So 2d 1210 (the right to appeal an administrative agency's decision is
purely statutory, and an appeal taken without statutory authority must be dismissed for
want of jurisdiction); Parlato v State Com. on Human Relations, 76 Md App 695, 548
A2d 144, cert den 314 Md 497, 551 A2d 867; Chapman v Labor & Industry Review
Com. (App) 156 Wis 2d 286, 456 NW2d 637 (administrative orders are not reviewable
unless made so by statute).
S Ct 2450, on remand 239 US App DC 319, 742 F2d 1472; Daley v Zebra Zone Lounge,
Inc. (1st Dist) 236 Ill App 3d 511, 177 Ill Dec 715, 603 NE2d 785 (a court has the power
to review an administrative action as provided by law).
But see, Brock v Schwegmann Giant Supermarkets, Inc. (La) 520 So 2d 711 (in
Louisiana the right of judicial review of administrative proceedings is presumed to exist
through by Article 1 § 22 of the Louisiana Constitution of 1974 which provides that
Louisiana courts must be open to every person for adequate remedy by due process of
law); Indiana Dept. of Highways v Dixon (Ind) 541 NE2d 877 (in Indiana there exists a

constitutional right to judicial review of administrative actions); Greer v Illinois Hous.
Dev. Auth., 122 Ill 2d 462, 120 Ill Dec 531, 524 NE2d 561 (most agency actions are
presumed reviewable in the absence of some express statutory prohibition of review, or at
least in the absence of language which commits the decision to unreviewable agency
discretion).
Law Reviews: Anderson. Judicial review of state administrative action-designing the

statutory framework. 44 Admin LR 523 (Summer, l992).
Footnote 1. Raines v Freedom of Information Com., 221 Conn 482, 604 A2d 819;
Brinson v School Dist., 223 Kan 465, 576 P2d 602 (criticized on other grounds by
Umbehr v Board of Wabaunsee County Comm'rs, 252 Kan 30, 843 P2d 176); Crane v
Continental Tel. Co., 105 Nev 399, 775 P2d 705, cert den 493 US 1046, 107 L Ed 2d
838, 110 S Ct 844; Re Appeal of General Tire, Inc., 102 NC App 38, 401 SE2d 391;
Kuechmann v School Dist. of La Crosse (App) 170 Wis 2d 218, 487 NW2d 639.
It is a well settled principle that where Congress establishes a special statutory review
procedure for administrative action, that procedure is generally the exclusive means of
review for those actions. Greater Detroit Resource Recovery Authority v United States
EPA (CA6 Mich) 916 F2d 317, 21 ELR 20506.
Circuit courts are empowered by statute to conduct judicial review of unemployment

compensation orders or awards. Brandt v Labor & Industry Review Com. (App) 160
Wis 2d 353, 466 NW2d 673, affd 166 Wis 2d 623, 480 NW2d 494.
Footnote 2. Vernon Village, Inc. v Carothers, 217 Conn 130, 585 A2d 76; Mitchell v
Industrial Com. (3d Dist) 148 Ill App 3d 690, 102 Ill Dec 219, 499 NE2d 999.
When a statute sets out a procedure by which a party may seek administrative review of
an agency's determination, judicial review is available only if that procedure has been
followed. Denham v State Bd. of Parole, 106 Or App 234, 806 P2d 1167.
Footnote 3. Lawrence v District of Columbia Bd. of Elections & Ethics (Dist Col App)
611 A2d 529; Pool v Director of Revenue (Mo App) 824 SW2d 515.
Footnote 4. Morean-Usher v Town of Whitingham, 158 Vt 378, 610 A2d 1108.
Footnote 5. Umbehr v Board of Wabaunsee County Comm'rs, 252 Kan 30, 843 P2d 176.
As to mandamus, see § 555.
As to injunctions, see § 552.
§ 422 Statutory and non-statutory bases of jurisdiction
View Entire Section


Go to Supplement
The authority for judicial review of administrative action may rest upon statutory or
non-statutory bases. Generally, review of federal agency action is specifically authorized
by the agency's enabling statute. Such statutory review may provide for appellate-type
review, original enforcement or review in district court action, or review in specialized
courts. 6 The state legislative practice has also been to provide judicial review for
administrative adjudications, whether required by constitutional commands or not. 7
Statutory review generally precludes, expressly or impliedly, non-statutory review. 8
So-called non-statutory bases for review, predicated on statutory, common law or

constitutional grants of general jurisdiction, may also be available. Common
non-statutory forms of action potentially available for review of administrative action
include injunction and declaratory judgment, mandamus, habeas corpus, and damage
actions. 9
Reference to the specific grant of subject matter jurisdiction included in the organic
statute governing the agency whose actions are being challenged is usually sufficient to
determine the propriety of a forum for judicial review. 10 A special review statute
which vests jurisdiction to review agency orders in a specific court precludes the exercise
of original jurisdiction by other courts in all cases covered by the special review statute.
11 Furthermore, the stated forum in a given statute is exclusive notwithstanding
Congress' failure to use the word "exclusive" in the designating statute. 12 Similarly,
if a state statute relating to an administrative agency provides a direct method of judicial
review of agency action, that method of review is generally regarded as exclusive. 13
Where a review procedure is not provided for in an agency's organic statute, a general
comprehensive review statute, such as the Hobbs Act, 14 or the Administrative
Procedure Act 15 may be applicable. In some instances certain agency actions will be
reviewable by virtue of a general statute, while other actions of the same agency will be
reviewable under that agency's organic statute. 16
If two or more statutes appear to vest jurisdiction in more than one court, the proper
forum is determined by analysis of statutory language and legislative history. 17 On
occasion, however, a statute will provide for concurrent jurisdiction. 18
 Comment: The Model State Administrative Procedure Act (1981) establishes an

exclusive means, with specifically enumerated exceptions, 19 of obtaining judicial
review of agency action. 20 The l961 Act, however, does not limit utilization of or the
scope of review available under other means of review, redress, relief, or trial de novo
provided by law. 21
§ 422 ----Statutory and non-statutory bases of jurisdiction [SUPPLEMENT]
Case authorities:
Clean Water Act (CWA) provides for judicial review only when agency is seeking
judicial enforcement of compliance order or when agency is seeking administrative
penalties; suit seeking to restrain government from asserting jurisdiction under CWA

over property plaintiff was developing does not satisfy review requirement of CWA or
APA. Rueth v United States EPA (1993, CA7 Ind) 13 F3d 227, 24 ELR 20214.
Consortium of Arizona Indian tribes was not entitled to judicial review under APA of
Secretary of Interior's exchange of federally owned property in Arizona for privately
owned land in Florida; express language of Arizona- Florida Land Exchange Act clearly
establishes congressional intent to preclude judicial review of Secretary's actions under
Act. Inter Tribal Council v Babbitt (1995, CA9 Ariz) 51 F3d 199, 95 CDOS 2256, 95
For purpose of Title VII civil rights suit alleging discrimination in employment,
Executive Residence (White House) is not "executive agency" within meaning of 5
USCS § 105, nor is it "independent establishment" within meaning of § 104. Haddon v
Walters (1995, App DC) 43 F3d 1488.
Court has jurisdiction to hear dispute arising from award of Department of Defense
(DOD) contract, where DOD awarded contract to small business under preference
program for disadvantaged businesses, competitor challenged business's status as
disadvantaged, DOD made untimely determination that business was not disadvantaged,
and announced its intention of ceasing to place orders with business under contract, and
of awarding new contract to competitor, because action deals with interpretation of
regulation, not with contract law; DOD did not breach contract because business was not
guaranteed orders under contract. SRS Technologies v United States (1994, DC Dist Col)
843 F Supp 740.
Footnotes
Footnote 6. Modjeska, Administrative Law Practice and Procedure § 6.2.
Footnote 7. § 421.
Footnote 8. Compensation Dept. of Dist. Five, United Mine Workers of America v

Marshall (CA3 Pa) 667 F2d 336 (exclusivity of Black Lung Benefits Act statutory review
scheme); Nevada Airlines, Inc. v Bond (CA9 Nev) 622 F2d 1017.
Where there is a special statute governing review of the decisions of particular agencies
that statute controls to the exclusion of the general statute for judicial review of
administrative decisions. Bidnick v Department of Social Services, Div. of Family
Services (Mo App) 723 SW2d 453.
Footnote 9. Modjeska, Administrative Law Practice and Procedure § 6.2.
As to injunction, declaratory judgment, mandamus, and habeas corpus, see §§ 548 et seq.
Footnote 10. Whitney Nat. Bank v Bank of New Orleans & Trust Co., 379 US 411, 13 L
Ed 2d 386, 85 S Ct 551; Intertype Co., Div. of Harris-Intertype Corp. v Penello (WD Va)
269 F Supp 573, 64 BNA LRRM 2590, 55 CCH LC ¶ 11770; Pinkney v Ohio EPA (ND
Ohio) 375 F Supp 305, 6 Envt Rep Cas 1625, 4 ELR 20460; Nassar & Co. v SEC, 185
US App DC 125, 566 F2d 790; Jefferson Loan Co. v Arundell, 106 US App DC 370, 273
F2d 105, 60-1 USTC ¶ 9101, 4 AFTR 2d 5963.

Footnote 11. United States by Donovan v Howard Electric Co. (CA10 Colo) 798 F2d
392.
Footnote 12. Getty Oil Co. (Eastern Operations), Inc. v Ruckelshaus (CA3 Del) 467 F2d
349, 4 Envt Rep Cas 1567, 2 ELR 20683, cert den 409 US 1125, 35 L Ed 2d 256, 93 S
Ct 937, 4 Envt Rep Cas 2040 and (disapproved on other grounds by Union Electric Co. v
EPA, 427 US 246, 49 L Ed 2d 474, 96 S Ct 2518, 8 Envt Rep Cas 2143, 6 ELR 20570).
Footnote 14. 28 USCS §§ 2341-2351.
Footnote 15. 5 USCS §§ 701-706.
Footnote 16. Municipal Intervenors Group v Federal Power Com., 153 US App DC 373,
473 F2d 84.
47 USCS § 402(a), for example, provides that appeals from orders of the Federal
Communications Commission are generally to be taken pursuant to the Hobbs Act, while
47 USCS § 402(b) requires certain appeals to be taken in the Court of Appeals for the
District of Columbia.
Footnote 17. Municipal Intervenors Group v Federal Power Com., 153 US App DC 373,
473 F2d 84.
Footnote 18. S. J. Groves & Sons Co. v United States (DC Colo) 495 F Supp 201, 28
CCF ¶ 80878.
28 USCS § 1346(a), for example, vests the Federal District Courts and the United States
Court of Federal Claims with concurrent original jurisdiction over certain matters, but
places exclusive jurisdiction in the United States Court of Federal Claims over other
matters.
Footnote 19. Model State Administrative Procedure Act (l981) § 5-101(1)-(3).
Footnote 21. Model State Administrative Procedure Act (l961) § 15(a).
§ 423 Constitutional right to review
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Go to Supplement
Judicial review of administrative action–that is, judicial review of certain elements of

such action–becomes a matter of constitutional necessity in some situations. 22
There is an inherent right of appeal from orders of administrative agencies where
constitutional rights are involved; 23 and in such situations a court will provide relief or
review though no statute specifically provides therefor, 24 and even though a statute
attempts to preclude review. 25 For example, personnel decisions involving promotions
are not exempt from judicial review particularly where allegation is that the agency failed
to afford the complainant due process. 26 And, due process requires that where a
determination made in an administrative proceeding is to play a critical role in the
subsequent imposition of a criminal sanction, there must be some meaningful review of
the administrative proceeding. This means at the very least that where the defects in an
administrative proceeding foreclose judicial review of that proceeding, an alternative
means of obtaining judicial review must be made available before the administrative
order may be used to establish conclusively an element of a criminal offense. 27
A statute conferring power upon an administrative agency is not unconstitutional as

violating due process of law merely because it does not expressly provide for judicial
review of an administrative determination. This rule rests, at least in part, upon the
principle that the right of judicial review with respect to certain kinds of issues is always
implied, 28 the court sometimes expressly stating that this right of review is
guaranteed by a constitutional command. 29
§ 423 ----Constitutional right to review [SUPPLEMENT]
Case authorities:
Where complaint alleges constitutional violation, court has authority to review challenge
notwithstanding fact that judicial review may otherwise be barred by 5 USCS § 701.
Argabright v United States (1994, CA9 Cal) 35 F3d 472, 94 CDOS 7083, 94 Daily
Journal DAR 12988, 94-2 USTC ¶ 50476, 74 AFTR 2d 94-6350, 94 TNT 188- 6.
Lack of an appeal process from a decision of the Department of Transportation (DOT)

did not constitute a violation of due process, where DOT filed a journal entry which
stated that motel-owned obstructions located on a right of way belonging to DOT and
thereafter ordered motel to remove a swimming pool, parking lot, landscaping, flag pole,
motel sign, and light pole from the right of way, and when it was determined that DOT's
determination was not an adjudication and that no appeal was provided by law, motel
owner contended that this lack of administrative rights or remedies violated due process
of law, because in the absence of constitutional or statutory authority there is no inherent
right to appeal from an administrative order, and absent a right to appeal there is no
interest that can be violated by due process and, thus, no constitutional violation. Taylor
v State (Fla) 83 So 2d 879.
Footnotes
Footnote 22. Estep v United States, 327 US 114, 90 L Ed 567, 66 S Ct 423; Ng Fung
Ho v White, 259 US 276, 66 L Ed 938, 42 S Ct 492; Almon v Morgan County, 245 Ala
241, 16 So 2d 511; Laisne v California State Board of Optometry, 19 Cal 2d 831, 123
P2d 457; State ex rel. Watson v Lee, 157 Fla 62, 24 So 2d 798, 163 ALR 862; State v
Finch, 79 Idaho 275, 315 P2d 529; Vissering Mercantile Co. v Annunzio, 1 Ill 2d 108,
115 NE2d 306, 24 CCH LC ¶ 67848, 39 ALR2d 728, app dismd 347 US 949, 98 L Ed

1096, 74 S Ct 680, 25 CCH LC ¶ 68350; Kendall v Beiling, 295 Ky 782, 175 SW2d 489;
State v Lange, 168 La 958, 123 So 639, 67 ALR 1447; Rock v Carney, 216 Mich 280,
185 NW 798, 22 ALR 1178; Martin v Wolfson, 218 Minn 557, 16 NW2d 884, 9 CCH
LC ¶ 62451; Staten Island Edison Corp. v Maltbie, 296 NY 374, 73 NE2d 705, 8 ALR2d
825, reh den 297 NY 614, 75 NE2d 628, 8 ALR2d 838; State ex rel. Dushek v Watland,
51 ND 710, 201 NW 680, 39 ALR 1169; Wilson v Hix, 136 W Va 59, 65 SE2d 717.
Footnote 23. American Beauty Homes Corp. v Louisville & Jefferson County Planning &
Zoning Com. (Ky) 379 SW2d 450.
Footnote 26. McCartin v Norton (CA9 Cal) 674 F2d 1317 (criticized on other grounds by
Hubbard v EPA, 292 US App DC 278, 949 F2d 453).
Footnote 27. United States v Mendoza-Lopez, 481 US 828, 95 L Ed 2d 772, 107 S Ct

2148.
Footnote 28. Dayton-Goose C. R. Co. v United States, 263 US 456, 68 L Ed 388, 44 S

Ct 169, 33 ALR 472; Louisville & N. R. Co. v Garrett, 231 US 298, 58 L Ed 229, 34 S
Ct 48; Reetz v Michigan, 188 US 505, 47 L Ed 563, 23 S Ct 390; State ex rel. Williams
v Whitman, 116 Fla 196, 150 So 136, supp op 116 Fla 198, 156 So 705, 95 ALR 1416;
Ashland Transfer Co. v State Tax Com., 247 Ky 144, 56 SW2d 691, 87 ALR 534.
If there is any arbitrary exercise of powers by an administrative board, its determination

is subject to judicial review, implied, if not express, in the statute creating the tribunal, at
least insofar as pertains to any violation of rights guaranteed by the Fourteenth
Amendment. Plymouth Coal Co. v Pennsylvania, 232 US 531, 58 L Ed 713, 34 S Ct
359.
Footnote 29. State ex rel. Watson v Lee, 157 Fla 62, 24 So 2d 798, 163 ALR 862; Parker
v Board of Barber Examiners (La App 1st Cir) 84 So 2d 80.
A statute which does not provide judicial review of administrative determination does not
for that reason violate the due process clause, since review of fundamental questions
affecting the rights guaranteed by that clause inhere in the proceedings. Plymouth Coal
Co. v Pennsylvania, 232 US 531, 58 L Ed 713, 34 S Ct 359.
§ 424 Administrative Procedure Act is not a jurisdictional grant
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The Administrative Procedure Act 30 does not afford an implied grant of subject matter
jurisdiction permitting federal judicial review of agency action. 31 While the Act
creates a presumption that judicial review of agency action will be available 32 in a
court "specified by statute" or "of competent jurisdiction," 33 those clauses also make it
clear that the jurisdictional authority for such review is to be found outside the Act. 34
Neither does the APA provide additional judicial remedies for the review of federal
agency actions in situations where Congress has provided special and adequate
administrative review procedures. 35 It should also be noted that a "court of
competent jurisdiction" for purposes of 5 USCS § 703 refers to the Federal District
Courts rather than the Courts of Appeals. 36
The main source of jurisdictional authority for reviewing agency action is the general
federal question jurisdiction of the Federal District Courts. 37
§ 424 ----Administrative Procedure Act is not a jurisdictional grant

[SUPPLEMENT]
Case authorities:
As used in 5 USCS § 702, the phrase "within the meaning of a relevant statute" permits
federal court review of administrative agency actions only in cases brought by a person
whose putative injuries are within the zone of interests sought to be protected by the
statutory provision whose violation forms the legal basis for the person's complaint. [Per
O'Connor, J., as Circuit Justice.] INS v Legalization Assistance Project of the L.A.
County Fed'n of Labor (US) 126 L Ed 2d 410, 114 S Ct 422.
Aliens' action challenging standard used by Board of Immigration Appeals to evaluate

asylum applications based on coercive family planning practices is dismissed, where
action was brought under Administrative Procedure Act, because aliens had adequate
remedy through filing petition for habeas relief. Wang v Reno (1994, ED NY) 862 F
Supp 801.
No provision of Energy Act precludes availability of judicial review pursuant to APA;

Department of Energy's alleged failure to abide by terms of Energy Act can be reviewed
under APA framework. Local 3-689, Oil, Chem. & Atomic Int'l Union v Martin Marietta
Energy Sys. (1996, CA6 Ohio) 77 F3d 131, 151 BNA LRRM 2574, 131 CCH LC ¶
11509, reh, en banc, den (1996, CA6) 1996 US App LEXIS 10871.
APA does not confer jurisdiction in case seeking review of Office of Thrift Supervision
enforcement order; Federal Deposit Insurance Act provision (12 USCS § 1818)
specifically precludes judicial review. Henry v Office of Thrift Supervision (1994, CA10
Kan) 43 F3d 507.
Although case brought by homosexual Naval Academy midshipman challenging

constitutionality of regulations under which he was discharged normally would arise as
appeal from military adjudication under APA, court will not raise waiver and exhaustion
defenses sua sponte where neither is before court. Steffan v Perry (1994, App DC) 41
F3d 677.
Judicial review under APA is available to challenge presidential executive order barring
federal government from contracting with manufacturers who hire permanent
replacements during lawful strike; APA's waiver of sovereign immunity applies to any
suit whether under APA or not. Chamber of Commerce of the United States v Reich
(1996, App DC) 74 F3d 1322, 151 BNA LRRM 2353, 40 CCF ¶ 76878, 131 CCH LC ¶
11496, reh, en banc, den (1996, App DC) 1996 US App LEXIS 10893 and reh den (1996,
App DC) 1996 US App LEXIS 10894.
Footnotes
Footnote 30. 5 USCS §§ 701-706.
Footnote 31. Andrus v Charlestone Stone Products Co., 436 US 604, 56 L Ed 2d 570,
98 S Ct 2002, 11 Envt Rep Cas 2059; Califano v Sanders, 430 US 99, 51 L Ed 2d 192,
97 S Ct 980, 42 Cal Comp Cas 1112; Loveladies Property Owners Assn. v Raab (DC NJ)
10 Envt Rep Cas 1247; Martinez v Marshall (CA9 Cal) 573 F2d 555; Lonsdale v United
States (CA10 NM) 919 F2d 1440, 90-2 USTC ¶ 50581, 67 AFTR 2d 91-1049.
Provisions of 5 USCS §§ 702-706 do not themselves constitute independent ground of

subject matter jurisdiction to federal district courts, but may serve to confer standing on
party suffering legal wrong because of agency action, or adversely affected or aggrieved
by agency action. Acosta v Gaffney (CA3 NJ) 558 F2d 1153, 42 ALR Fed 915.
Footnote 32. Califano v Sanders, 430 US 99, 51 L Ed 2d 192, 97 S Ct 980, 42 Cal

Comp Cas 1112.
Footnote 34. Califano v Sanders, 430 US 99, 51 L Ed 2d 192, 97 S Ct 980, 42 Cal

Comp Cas 1112.
Footnote 35. Bowen v Massachusetts, 487 US 879, 101 L Ed 2d 749, 108 S Ct 2722.
Footnote 36. Associated of Nat. Advertisers, Inc. v Federal Trade Com. (CA2 NY) 565
F2d 237, 1977-2 CCH Trade Cases ¶ 61715; Rettinger v FTC (CA2) 392 F2d 454, 1968
CCH Trade Cases ¶ 72414; Dillard v United States Dept. of Housing & Urban Dev.
(CA4) 548 F2d 1142; Elmo Div. of Drive-X Co. v Dixon, 121 US App DC 113, 348 F2d
342, 1965 CCH Trade Cases ¶ 71370.
Forms: Complaint–Against federal agency–General form [5 USCS § 703]. 1A

Federal Procedural Forms, L Ed, Administrative Law § 2:241.
§ 425 Multiparty cases
View Entire Section

In multiparty proceedings one party may seek judicial review of an agency decision
while another party seeks administrative reconsideration, resulting in both tribunals
having jurisdiction. 38 The pendency of a reconsideration request filed by one party
does not render a decision nonfinal as to other parties who exclusively seek appellate
review. 39 Thus, an agency decision may be final for one purpose yet nonfinal for
another purpose. However, the same party may not simultaneously seek both judicial and
administrative review. 40
Footnotes
Footnote 38. Winter v Interstate Commerce Com. (CA8) 851 F2d 1056, 128 BNA LRRM
Footnote 39. ICG Concerned Workers Assn. v United States, 281 US App DC 258, 888
F2d 1455, 132 BNA LRRM 2967.
As to final agency as a prerequisite to review, see §§ 487 et seq.
3. Selecting the Proper Court; Jurisdiction and Venue [426-437]
a. Jurisdiction; Generally [426-428]
§ 426 Jurisdiction as matter of consent or discretion; raising question as to

jurisdiction
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Go to Supplement
A court or agency is said to have subject matter jurisdiction of an action if the case is one
of the type of cases that the court or agency has been empowered to entertain by the
sovereign from with the court or agency derives its authority. 41 A court on review can
therefore only act within the jurisdiction conferred by law, and this cannot be enlarged by
waiver, 42 consent, 43 or acquiescence of the parties. 44 Moreover, a court's
jurisdiction to review agency action under a statute is limited to categories of agency
action identified in the statute. 45
An objection to the jurisdiction of a court is not too late even when first raised after entry
of judgment. 46 Furthermore, a court has the right and duty to raise the question of
its jurisdiction, of its own motion. 47
§ 426 ----Jurisdiction as matter of consent or discretion; raising question as to

jurisdiction [SUPPLEMENT]
Case authorities:
Court had jurisdiction of challenge by unsuccessful applicant for pioneer's preference to

FCC's grant of pioneer's preference and license to intervenor since challenge could be
viewed as attack on order not appealable under 47 USCS § 402(b) and thus within
court's jurisdiction under § 2342. Mobile Communs. Corp. of Am. v FCC (1996, App
DC) 77 F3d 1399.
Footnotes
Footnote 41. McClain v Texaco, Inc., 29 Ark App 218, 780 SW2d 34, stating that in
Arkansas the legislature has given the Workers' Compensation Commission the authority
to determine claims which arise out of employment.
ALR 87.
An agency cannot enlarge a court's jurisdiction to review its orders. Sonicraft, Inc. v
NLRB (CA7) 814 F2d 385, 125 BNA LRRM 2679, 106 CCH LC ¶ 12281.
ALR 87; State Dept. of Highway Safety & Motor Vehicles v Scott (Fla App D2) 583 So
2d 785, 16 FLW D 2114.
Footnote 44. State Dept. of Highway Safety & Motor Vehicles v Scott (Fla App D2) 583
So 2d 785, 16 FLW D 2114.
Lack of jurisdiction may not be cured by consent of the parties. Industrial Addition Asso.
v Commissioner, 323 US 310, 89 L Ed 260, 65 S Ct 289, 45-1 USTC ¶ 9127, 33 AFTR
10.
Footnote 45. Westvaco Corp. v United States EPA (CA4) 899 F2d 1383, 20 ELR 20816.
Footnote 46. Panhandle Eastern Pipe Line Co. v Federal Power Com., 324 US 635, 89 L
Ed 1241, 65 S Ct 821, reh den 325 US 892, 89 L Ed 2004, 65 S Ct 821.
S Ct 763, 1 Media L R 1983; Atlantic Greyhound Corp. v Public Service Com., 132 W
Va 650, 54 SE2d 169.
§ 427 Court's retention of jurisdiction
View Entire Section

Once a court acquires jurisdiction to review an administrative agency's decision, that

court retains jurisdiction of the action until final disposition. Therefore, a court retains
jurisdiction of an action after remanding to an agency for a rehearing and a petitioner is
not required to follow the statutory procedure required when initiating an administrative
review when petitioner seeks to review the rehearing order. 48
Footnotes
Footnote 48. Kelly v Board of Trustees of University of Illinois (1st Dist) 201 Ill App 3d
692, 147 Ill Dec 196, 559 NE2d 196, app den 135 Ill 2d 557, 151 Ill Dec 383, 564 NE2d
838.
§ 428 Venue distinguished from jurisdiction
View Entire Section

Venue must be distinguished from jurisdiction. Venue has to do with the place of a
proceeding, not with the power of the court to act. 49 In other words, venue
pertains to being accountable to a court in a particular location. 50 A court may acquire
jurisdiction even though it is not the court of proper venue, 51 but a court is not bound
to exercise its jurisdiction where the proper venue is in another court 52 When not
objected to, however, venue is appropriate in a court having jurisdiction. 53 Therefore,
unlike a lack of subject matter jurisdiction, a party may waive improper venue by failing
to object to it, 54 and an objection to venue made after judgment has been rendered
comes too late. 55 In addition, venue may be consented or acquiesced to. For
example, a nonresident of a state may voluntarily submit herself to a particular court in
the nonresident state and the opposing party may acquiesce to venue in that court. 56
A court will apply a specific venue statute over a general venue statute for purposes of
conducting judicial review of an administrative agency's action. 57
Footnotes
Ed 1241, 65 S Ct 821, reh den 325 US 892, 89 L Ed 2004, 65 S Ct 821; Industrial
Addition Asso. v Commissioner, 323 US 310, 89 L Ed 260, 65 S Ct 289, 45-1 USTC ¶
9127, 33 AFTR 10; Pool v Director of Revenue (Mo App) 824 SW2d 515.
The concept of venue gives rise to a distinction between local actions, which will be
heard only in a particular place, such as the place of residence or place where an act
occurred, and transitory actions, which may be heard wherever the defendant may be
found. Eck v State Tax Com., 204 Md 245, 103 A2d 850, 48 ALR2d 415.
For a general discussion of the distinction between venue and jurisdiction, see 77 Am Jur
2d, Venue § 1.

So 2d 785, 16 FLW D 2114.
An action seeking judicial review of an administrative decision brought under the

authority of an Administrative Procedure Act must be brought in the District Court of the
district in which the agency is located. Allen v Louisiana State Bd. of Dentistry (La App
1st Cir) 595 So 2d 320, cert den (La) 597 So 2d 1026.
For a discussion of proper venue in Federal District Courts with respect to judicial review
of administrative action, see § 431.
Footnote 52. Industrial Addition Asso. v Commissioner, 323 US 310, 89 L Ed 260, 65

S Ct 289, 45-1 USTC ¶ 9127, 33 AFTR 10; Nash-Breyer Motor Co. v Burnet, 283 US
483, 75 L Ed 1180, 51 S Ct 549, 2 USTC ¶ 737, 9 AFTR 1452.
So 2d 785, 16 FLW D 2114.
Footnote 54. Pool v Director of Revenue (Mo App) 824 SW2d 515, stating that if the
party does not object to improper venue or if she consents to the improper venue, the
court where the case is pending is not without the power to act in the case.
Annotation: Venue of actions or proceedings against public officers, 48 ALR2d 423 §

55.
Ed 1241, 65 S Ct 821, reh den 325 US 892, 89 L Ed 2004, 65 S Ct 821.
So 2d 785, 16 FLW D 2114.
Footnote 57. Cochise County v Borowiec (App) 162 Ariz 192, 781 P2d 1379, 46 Ariz
Adv Rep 41.
b. Federal District Courts [429-431]
§ 429 Federal question jurisdiction
View Entire Section

Go to Supplement
Absent a specific statute authorizing judicial review in a particular court, "nonstatutory"

review is available in Federal District Court under the general federal question
jurisdictional statute. 58 In administrative cases where the organic statute is silent on
the subject of judicial review the presumption that review is available, coupled with the
absence of any indication in the statute that the decision is committed wholly to the
discretion of the agency or that review is otherwise precluded, leads to the conclusion
that, under the federal question jurisdiction statute, 59 a District Court would have
jurisdiction. 60 A few special review statutes authorize review by Federal
District Court of administrative actions. For example, the provisions for expedited
appeals of decisions under the Social Security Act permit a claimant to file for review in
a Federal District Court. 61 And, some "hybrid" statutes, such as the Clean Air Act, 62
authorize review of some administrative actions by District Court and others by the Court
of Appeals. 63
Where jurisdiction to review administrative action is by statute vested in the Court of

Appeals, the Federal District Courts are powerless to act. 64 But where the agency
action took place before the effective date of legislation conferring exclusive jurisdiction
on the Court of Appeals, the District Court retains jurisdiction to review the agency
action at issue. 65
 Comment: The District Courts' diversity jurisdiction over civil actions between
citizens of different states 66 does not enable the court to hear an appeal from a state
administrative agency: such an appeal is not a "civil action" for purposes of the statute.
67 However, where the diversity of citizenship and amount in controversy
requirements of the statute 68 are met, relief from the actions of state administrative
bodies may be had by instituting certain original proceedings in the Federal District
Courts, such as suits for injunctive relief. 69 A Federal District Court, however, does
not sit to review on appeal actions taken administratively or judicially in a state
proceeding. 70
Federal jurisdiction of an action to set aside a state workmen's compensation award

cannot be denied on the grounds that the suit is nothing more than an appeal from a state
administrative order and that a Federal District Court has no appellate jurisdiction where,
under the interpretation given the compensation act by the highest court of the state, a
suit to set aside such an award is in fact a suit, not an appeal. 71
§ 429 ----Federal question jurisdiction [SUPPLEMENT]
Case authorities:
Jurisdictional requirements concerning illegal aliens' claims seeking relief from adverse
effects allegedly resulting from invalid INS regulations construing Reform Act
concerning legalization program are not lacking, despite INS's argument that Reform Act
bars district court jurisdiction, since 28 USCS § 1331 confers jurisdiction on federal
courts to review administrative agency actions. Reno v Catholic Social Servs., Inc. (1993,
US) 125 L Ed 2d 38, 113 S Ct 2485, 93 CDOS 4504, 93 Daily Journal DAR 7703, 7
FLW Fed S 442, on remand, remanded (CA9) 996 F2d 221, 93 CDOS 5192, 93 Daily
Journal DAR 8707 and on remand, remanded (CA9) 999 F2d 1362, 93 CDOS 5192, 93
Court had jurisdiction of direct appeal from administrative subpoena enforcement order,
prior to finding someone in contempt of order; general rule that subpoena enforcement
orders are not appealable final orders before contempt order is issued does not apply to

subpoena enforcement orders in administrative proceedings, which are regarded by
courts at least as self- contained proceedings. United States v Construction Prods.
Research (1996, CA2 Conn) 73 F3d 464, 33 FR Serv 3d 828.
Indian lands exception to Quiet Title Act (28 USCS § 2409a) precludes state from
invoking jurisdiction of district court to review final administrative agency decision,
pursuant to 5 USCS § 702. Alaska v Babbitt (1994, CA9 Alaska) 38 F3d 1068, 94
District Court erred in concluding that its power to grant relief sought by environmental
groups challenging federal agency's transfer of real property was limited by state statutes
regarding rights and duties under conservation easements, where, pursuant to 5 USCS §
706, groups sought order rescinding agency's conveyance of property, restoring title to
agency, and forbidding agency from disposing of property without imposing wetland
conservation easements pursuant to 7 USCS § 1985(g). National Wildlife Fed'n v Espy
(1995, CA9 Idaho) 45 F3d 1337, 95 CDOS 508, 95 Daily Journal DAR 929, 40 Envt Rep
Cas 1129, 25 ELR 20864.
Forfeiture claimant in default is not entitled to federal District Court review under
Administrative Procedure Act (APA) (5 USCS §§ 701 et seq.), where seizing agency
provided adequate notice of forfeiture proceedings, albeit claimant alleges he never
received registered mail notice sent to his home address, because federal forfeiture
statutes and regulations implementing them provide ample basis for litigating propriety
of particular seizure, precluding judicial review under APA. Coggins v United States
(1994, MD Ga) 860 F Supp 845.
Hospital's appeal from HHS Secretary's adverse liability decision and request for refund
of alleged overpayment under Hill-Burton Act for financial assistance in construction of
hospital facility was within exclusive jurisdiction of district court, not Claims Court,
since Act requires resolution of amount of Hill-Burton liability in district where facility
involved is located; hence, case would be transferred back to district court
notwithstanding its having transferred case to Claims Court. National Medical Enters.,
Inc. v United States (1993, Ct Fed Cl) 28 Fed Cl 540, 1993 US Claims LEXIS 65.
Footnotes
Footnote 58. 28 USCS § 1331, cited in Memphis Trust Co. v Board of Governors of
Federal Reserve System (CA6 Tenn) 584 F2d 921.
As to whether a proceeding for review of an administrative determination in a state court

is removable to a federal court, see 32B Am Jur 2d, Federal Practice and Procedure §§
2406-2459.
Footnote 60. Maryland Dept. of Human Resources v Department of Health & Human
Services, 246 US App DC 180, 763 F2d 1441.
The l980 amendment to 28 USCS § 1331 eliminated the requirement of a specified

amount in controversy as a prerequisite to the maintenance of any federal question case.

House Judiciary Committee Report No. 94-1656 (1976, 94th Cong., 2nd Sess.) p. 15.
Jurisdiction is conferred on Federal District Courts to review agency action, subject only
to preclusion of review statutes created or retained by Congress. Califano v Sanders,
430 US 99, 51 L Ed 2d 192, 97 S Ct 980, 42 Cal Comp Cas 1112.
Forms: Allegation–Jurisdiction conferred by particular statute [28 USCS §§

1333-1362; FRCP Rule 8(a)(1)]. 1 Federal Procedural Forms, L Ed, Actions in District
Court § 1:91.
Defense–Lack of jurisdiction over subject matter–No federal question raised by

complaint [28 USCS § 1331; FRCP Rule 12(b)(1)]. 1 Federal Procedural Forms, L
Ed, Actions in District Court § 1:392.
Motion and notice–To dismiss–Lack of jurisdiction over subject matter, generally [28
USCS § 1331(a); FRCP Rule 12(b)(1)]. 1A Federal Procedural Forms, L Ed, Actions
in District Court Proc Forms § 1:2191.
Motion to dismiss–Absence of federal question [28 USCS § 1331; FRCP Rule

12(b)(1)]. 1A Federal Procedural Forms, L Ed, Actions in District Court § 1:2192.
Affidavit–In opposition to motion to dismiss for absence of jurisdiction over subject

matter [28 USCS § 1331; FRCP Rule 12(b)(1)]. 1A Federal Procedural Forms, L Ed,
Actions in District Court § 1:2194.
Petition or application–To restrain administrative agency from hearing charges against

petitioner–Lack of jurisdiction. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law,
Form 332.
Petition or application–For writ of prohibition–To prevent court from exercising

jurisdiction vested in administrative agency. 1A Am Jur Pl & Pr Forms (Rev),
Footnote 61. 20 CFR § 404.923.
As to expedited appeals under the Social Security Act, see 70A Am Jur 2d, Social
Security and Medicare §§ 1294 et seq.
Footnote 62. 42 USCS §§ 7604, 7607.
Footnote 63. As to Court of Appeals jurisdiction for review of administrative decisions,

Footnote 64. Port of Boston Marine Terminal Asso. v Rederiaktiebolaget Transatlantic,

400 US 62, 27 L Ed 2d 203, 91 S Ct 203; ITT World Communications, Inc. v New York
Tel. Co. (SD NY) 381 F Supp 113; Isothermics, Inc. v U. S. Energy Research &
Development Agency (DC NJ) 434 F Supp 1155; Clark v Busey (CA9 Ariz) 959 F2d
808, 92 CDOS 2542, 92 Daily Journal DAR 4054; Nader v Ray (DC Dist Col) 363 F
Supp 946, 5 Envt Rep Cas 1677, 3 ELR 20801.
Where Congress has provided in the Court of Appeals an exclusive forum for the

correction of administrative errors, a plaintiff may not bypass that forum by suing in
District Court for damages. Green v Brantley (CA11 Ga) 981 F2d 514, 6 FLW Fed C
1519, reh, en banc, den (CA11 Ga) 992 F2d 330.
Forms: Allegation–Jurisdiction conferred by particular statute [28 USCS §§

1331-1362; FRCP Rule 8(a)(1)]. 1 Federal Procedural Forms, L Ed, Actions in District
Court § 1:91.
Footnote 65. Wilder v Prokop (CA10 Colo) 846 F2d 613.
Footnote 67. Chicago, R. I. & P. R. Co. v Stude, 346 US 574, 98 L Ed 317, 74 S Ct

290, reh den 347 US 924, 98 L Ed 1078, 74 S Ct 512; Trapp v Goetz (CA10 Kan) 373
F2d 380.
Annotation: State agencies, or officers thereof, as citizens for purpose of federal

diversity jurisdiction under 28 USCS § 1332, 6 ALR Fed 615.
Footnote 68. 28 USCS § 1332(a)(1).
As to the determination of jurisdictional amount in a suit to enjoin governmental conduct,

see 42 Am Jur 2d, Injunctions § 305.
Footnote 69. As to the issuance of injunctions by the Federal District Courts, see 42 Am
Jur 2d, Injunctions § 8.
Footnote 70. Chicago, R. I. & P. R. Co. v Stude, 346 US 574, 98 L Ed 317, 74 S Ct

290, reh den 347 US 924, 98 L Ed 1078, 74 S Ct 512.
Footnote 71. Horton v Liberty Mut. Ins. Co., 367 US 348, 6 L Ed 2d 890, 81 S Ct 1570,
4 FR Serv 2d 179, reh den 368 US 870, 7 L Ed 2d 70, 82 S Ct 24, holding also that the
amount in controversy was within the jurisdiction of the federal court.
Annotation: State workmen's compensation proceedings as within removal statute, 60

ALR2d 1262 § 4[b].
§ 430 Mandamus jurisdiction
View Entire Section

Federal District Courts have original jurisdiction of any action in the nature of mandamus
to compel an agency of the United States to perform a duty owed to the plaintiff. 72
However, this nonstatutory review is available only in the absence of a specific statute
authorizing review in a particular court. 73 A Federal District Court lacks jurisdiction to
grant mandamus relief against administrative action if administrative remedies have not
been exhausted 74 or where the organic statute vests jurisdiction in the Court of
Appeals. 75
Mandamus jurisdiction is also limited by the type of relief available by mandate to a

federal agency. There is no mandamus jurisdiction to direct how administrative
discretion should be exercised. 76 But in a proper case there is mandamus jurisdiction to
require an agency to conduct proceedings with reasonable speed, 77 to comply with a
court order, 78 to issue a certificate, 79 and to comply with statute and its own
regulations. 80
Footnotes
Footnote 73. Honicker v Hendrie (MD Tenn) 465 F Supp 414, 12 Envt Rep Cas 1700, 9
ELR 20114.
Footnote 74. Honicker v Hendrie (MD Tenn) 465 F Supp 414, 12 Envt Rep Cas 1700, 9
ELR 20114; Holmes v United States Bd. of Parole (CA7 Ill) 541 F2d 1243; Loomis v
McLucas (CA10 Kan) 598 F2d 1200.
As to exhaustion of administrative remedies, see §§ 505 et seq.
222, 750 F2d 70 (not followed by Turner Broadcasting System, Inc. v FCC (DC Dist
Col) 810 F Supp 1308).
Footnote 76. Save the Dunes Council v Alexander (CA7 Ind) 584 F2d 158, 12 Envt Rep
Cas 1026, 8 ELR 20683; Loomis v McLucas (CA10 Kan) 598 F2d 1200.
Footnote 77. White v Mathews (CA2 Conn) 559 F2d 852, 24 FR Serv 2d 345, 47 ALR
Fed 915, cert den 435 US 908, 55 L Ed 2d 500, 98 S Ct 1458.
Footnote 78. Robinson v Vollert (SD Tex) 411 F Supp 461, revd on other grounds (CA5
Tex) 602 F2d 87, reh den (CA5 Tex) 609 F2d 1177.
Footnote 79. North American Van Lines, Inc. v Interstate Commerce Com. (ND Ind) 386
F Supp 665.
Footnote 80. McMahon v Califano (DC Mass) 476 F Supp 978; Andujar v Weinberger
(SD NY) 69 FRD 690.
§ 431 Venue
View Entire Section

Venue in the Federal District Courts is regulated by statute. 81 Civil actions in which a
defendant is an officer or employee of the United States or any agency thereof acting in a
legal capacity or under color of legal authority, or an agency of the United States, may,
except as otherwise provided by law, be brought in any judicial district in which: (1) a
defendant in the action resides; (2) a substantial part of the events or omissions giving
rise to the claim occurred or substantial part of the property that is the subject of the
action is situated; or (3) the plaintiff resides if no real property is involved in the action.
82 These provisions are inapplicable where specific statutes providing for judicial
review of agency action contain their own venue provisions. 83
The District Court of a district in which is filed a case laying venue in the wrong division
or district may dismiss that case, 84 or, if it is in the interests of justice, the court may
transfer the case to any division or district in which it could have been brought. 85
Such transfer may also be made in some instances where the venue is merely doubtful
rather than clearly improper. 86 Failure to make a timely and sufficient objection to
venue waives the defect. 87
Footnotes
Footnote 81. 28 USCS §§ 1391-1412.
Annotation: Construction and application of 28 USCS § 1391(e) providing for venue

and process in civil actions against federal officers, employees, or agencies, 9 ALR
Fed 719.
Footnote 83. Paley v Wolk (ND Ill) 262 F Supp 640, 151 USPQ 688, affd (CA7) 151
USPQ 669, cert den 386 US 963, 18 L Ed 2d 112, 87 S Ct 1031, 152 USPQ 844.
As to venue in Federal District Courts generally, see 1 Federal Procedure, L Ed, Access
to District Courts §§ 1:624-1:714.
As to venue transfers between Federal District Courts generally, see 32B Am Jur 2d,
Federal Practice and Procedure §§ 2254 et seq.
Forms: Motion to dismiss–Improper venue–Action not founded solely on diversity.

1A Federal Procedural Forms, L Ed, Actions in District Court § 1:2252.
Answer–Alleging improper venue–Nondiversity case. 1 Federal Procedural Forms, L

Ed, Actions in District Court § 1:872.
Order–Transferring action to another District Court–Improper venue. 1 Federal

Procedural Forms, L Ed, Actions in District Court § 1:873.
Motion–To dismiss or, alternatively, to transfer action–Improper venue. 1A Federal


Order–Dismissing action without prejudice–On objection to venue. 1A Federal
Footnote 86. Clayton v Swift & Co. (DC Va) 132 F Supp 154, 106 USPQ 35.
Annotation: Power of Federal Courts of Appeals to transfer cases between circuits, 22

ALR3d 563.
Construction and application of federal statute (28 USCS § 1406) providing for
dismissal or transfer of cases for improper venue, 3 ALR Fed 467.
c. United States Courts of Appeals [432-434]
§ 432 Jurisdiction, generally
View Entire Section

Go to Supplement
The jurisdiction of the United States Courts of Appeals to review orders rendered by
administrative agencies is wholly dependent upon statute; 88 where a statute provides
for such jurisdiction, that jurisdiction is exclusive. 89 Where a statute submits final
agency action to review by the Court of Appeals, that court has exclusive jurisdiction to
hear suits seeking relief that might affect its future statutory power of review, including
actions for a writ of mandamus. 90
Review in the Courts of Appeals is frequently provided for in the organic statutes of
specific agencies, or by general statutes such as the Hobbs Act. 91
§ 432 ----Jurisdiction, generally [SUPPLEMENT]
Case authorities:
Court had jurisdiction to grant injunctive relief from administrative action to

Commonwealth despite absence of final order by federal Education Department since
claim that DOE withheld more than $50 million in funding under Individuals with
Disabilities Education Act without notice and hearing because of its disapproval of state's
rule governing discipline of disabled children raised likelihood of irreparable harm in
absence of immediate action; acceding to DOE would deprive state of right to test
lawfulness of its policy, and not acceding would force schools to lay off teachers and
discontinue education services. Virginia Dep't of Educ. v Riley (1994, CA4 Va) 23 F3d
80, 5 ADD 667.

FRAP 15 does not by itself confer jurisdiction; it merely prescribes procedure for review
of agency action by court of appeals otherwise authorized by statute to make review.
Office of Governor v Department of Health & Human Servs., Admin. on Dev. Disability
(1993, CA9) 997 F2d 1290, 93 CDOS 4772, 93 Daily Journal DAR 8113.
Court of Appeals has exclusive jurisdiction to review Nuclear Power Regulatory

Commission decisions regarding its jurisdiction, and District Court was therefore without
jurisdiction to entertain suit, brought by parent of corporate holder of NRC-issued Source
Materials License, challenging NRC's jurisdiction over parent in holding parent jointly
liable for license holder's cleanup costs. General Atomics v United States Nuclear
Regulatory Comm'n (1996, CA9 Cal) 75 F3d 536, 96 CDOS 629, 96 Daily Journal DAR
977.
Court of Appeals for Federal Circuit had exclusive jurisdiction of GAO employee's
appeal from GAO's Personnel Appeals Board decision denying employee's claim for
attorney's fees in connection with complaint of retaliation for filing employment
discrimination complaints, and case would be transferred there in interests of justice
since employee wound up in wrong court because instructions attached to Board opinions
wrongfully advise employees they may appeal to district court. Ramey v Bowsher (1993,
App DC) 9 F3d 133, 63 BNA FEP Cas 381, 63 CCH EPD ¶ 42687.
Court lacked jurisdiction of petitions to review determinations of RTC as to amounts

federally insured but petitioners made understandable mistake when they sought review
in court of appeals rather than filing de novo suit in district court since they were abiding
by only two circuits to address issue, hence case would be transferred to district court in
interests of justice. Callejo v Resolution Trust Corp. (1994, App DC) 17 F3d 1497.
Upon review of Benefits Review Board's final decision, Court of Appeals has jurisdiction
to review Board's earlier decisions remanding case to Administrative Law Judge for
further findings. Burns v Director, Office of Workers' Compensation Programs (1994,
App DC) 41 F3d 1555.
Footnotes
Footnote 88. Noland v United States Civil Service Com. (CA8) 544 F2d 333; A.L.
Laboratories, Inc. v Environmental Protection Agency, 264 US App DC 107, 826 F2d
1123, 17 ELR 21093.
Col) 810 F Supp 1308) (28 USCS § 1651(a)).
Footnote 91. 28 USCS §§ 2341-2351.
As to judicial review of administrative actions under the Hobbs Act, see § 433.

§ 433 --Review under Hobbs Act
View Entire Section

Go to Supplement
Under the Hobbs Act, 92 the Courts of Appeals (other than the United States Court of
Appeals for the Federal Circuit) have exclusive jurisdiction to enjoin, set aside, suspend
(in whole or in part), or to determine the validity of final orders, rules, or regulations
(under certain circumstances) made by or under the following agencies, individuals, or
acts:
• Federal Communications Commission 93
• Federal Maritime Commission 94
• Atomic Energy Commission 95
• Interstate Commerce Commission 96
• Secretary of Agriculture 97
• Secretary of Transportation 98
• Fair Housing Act 99
• Federal Railroad Safety Act of 1970 1
Moreover, some agency statutes cross-refer to the Hobbs Act for the procedure to be
followed when the Court of Appeals undertakes judicial review. 2
Furthermore, the fact that all the parties contend that a case is properly before the Court
of Appeals does not relieve a Court of Appeals from its obligation to make an
independent determination of jurisdiction. 3
§ 433 --Review under Hobbs Act [SUPPLEMENT]
Statutes:
All sections then remaining in 49 USCS Appendix were repealed in 1994. Judicial review
of National Transportation Safety Board orders is now covered in 49 USCS § 1153.
Judicial review of actions of the Secretary of Transportation is covered in 49 USCS §
351.
Case authorities:
Court had exclusive jurisdiction of interstate truck driver's challenge to FHWA safety
regulation requiring certain visual acuity in each eye, despite driver's claim that he was
entitled under § 504 of Rehabilitation Act to private right of action for damages in district
court since regulation disqualified him from interstate driving because of his monocular
vision; even though court of appeals may not award damages under Hobbs Act, Act's
grant of jurisdiction for review of FHWA regulations to court of appeals is exclusive.
Carpenter v Department of Transp. (1994, CA9 Cal) 13 F3d 313, 3 ADD 768, 94 CDOS
38, 94 Daily Journal DAR 105, 2 AD Cas 1587, 63 CCH EPD ¶ 42808.
Hobbs Act is to be read broadly to encompass all final NCR decisions that are
preliminary or incidental to licensing, including whether parent company of licensee can
be held responsible for cleanup costs. General Atomics v United States Nuclear
Regulatory Comm'n (1996, CA9 Cal) 75 F3d 536, 96 CDOS 629, 96 Daily Journal DAR
977.
Carrier's motion to enjoin state Public Service Commission from ticketing carrier's trucks
is denied, where carrier obtained ICC permission to transfer certificate authorizing carrier
to operate in Alabama, Eleventh Circuit overruled ICC decision, and required
determination of effect of transfer on interstate commerce, ICC is reconsidering issue,
Eleventh Circuit's stay, directing Alabama to permit carrier to operate in Alabama,
dissolved, and Alabama began to ticket carrier's trucks, because under 28 USCS § 2342,
Eleventh Circuit has exclusive jurisdiction to review ICC rulings, and district court does
not have jurisdiction to issue stay. Averitt Express v Sullivan (1993, MD Ala) 837 F
Supp 378.
District court had subject matter jurisdiction of action challenging FERC order
concerning access to oil pipeline system on Outer Continental Shelf, despite claim that
exclusive jurisdiction lay with court of appeals under Hobbs Act, since Outer Continental
Shelf Lands Act under which order was issued conferred original jurisdiction on district
court (43 USCS § 1349); however, court of appeals would retain jurisdiction of case
transferred to it because of its close relationship with pending petition challenging
different ruling in same order over which it had exclusive jurisdiction. Shell Oil Co. v
FERC (1995, App DC) 47 F3d 1186.
Footnotes
Footnote 92. 28 USCS §§ 2341-2351.
Footnote 93. 28 USCS § 2342(1).
As to review of orders of the Federal Communications Commissions, see 74 Am Jur 2d,

Telecommunications §§ 174-179.
Footnote 94. 28 USCS § 2342(3)(B).
Footnote 95. 28 USCS § 2342(4).
As to review of orders of the Atomic Energy Commission, see 6 Am Jur 2d, Atomic
Energy §§ 17, 30, 43.
Footnote 96. 28 USCS § 2342(5).

As to review of orders of the Interstate Commerce Commission, see 13 Am Jur 2d,
Carriers §§ 67, 72.
Footnote 97. 28 USCS § 2342(2).
Footnote 98. 28 USCS § 2342(3)(A).
Also note that any order, affirmative or negative, issued by the Board or Administrator
[Secretary of Transportation] under the Federal Aviation Act (49 USCS Appx § 1486),
except for any order in respect to foreign air carrier which is subject to the approval of
the President of the United States under 49 USCS Appx § 1461, is subject to review by
the U.S. Courts of Appeals or the U.S. Court of Appeals for the District of Columbia. 49
USCS Appx § 1486.
Footnote 99. 28 USCS § 2342(6).
Footnote 2. 7 USCS §§ 3804, 3805 (review of Agriculture Secretary's decisions under

Swine Health Protection Act); 8 USCS § 1105a(a) (review of INS deportation orders);
39 USCS § 3628 (review of Postal Service action taken on recommendations of Postal
Rate Commission).
Footnote 3. Citizens for a Safe Environment v Atomic Energy Com. (CA3) 489 F2d
1018, 6 Envt Rep Cas 1158, 4 ELR 20091.
§ 434 Venue
View Entire Section

If the organic statute governing an agency specifies a forum for review, that forum will
be exclusive. 4
For actions brought in the Court of Appeals under the Hobbs Act, 5 venue is proper in
the judicial circuit in which the petitioner resides or has its principal office, or in the
United States Court of Appeals for the District of Columbia Circuit. 6 The petitioner
has the option of laying venue in any of the circuits made permissible by the statute. 7
Even though the Courts of Appeals are not given express statutory authority, comparable
to that of the District Courts under 28 USCS § 1406(a), 8 to transfer cases where venue
is improper to a Court of Appeals having proper venue, such a transfer is permissible if it
is in the interests of justice and in accord with sound principles of judicial administration.
9
Footnotes
Footnote 4. § 422.
As to venue, in general, see 77 Am Jur 2d, Venue §§ 1 et seq.
Footnote 5. 28 USCS §§ 2341-2351.
As to the effect of multiple petitions for review filed in different courts, see § 597.
Footnote 7. Consolo v Federal Maritime Com., 383 US 607, 16 L Ed 2d 131, 86 S Ct

1018, on remand 126 US App DC 14, 373 F2d 674.
Footnote 8. § 431.
Footnote 9. Clark & Reid Co. v United States (CA1) 804 F2d 3, later proceeding 271 US
App DC 241, 851 F2d 1468, 1988-2 CCH Trade Cases ¶ 68139; ITT World
Communications, Inc. v FCC (CA2) 621 F2d 1201 (criticized on other grounds by Liquor
Salesmen's Union v NLRB, 214 US App DC 188, 664 F2d 1200, 106 BNA LRRM 2953,
91 CCH LC ¶ 12688); Dr. John T. MacDonald Foundation, Inc. v Califano (CA5 Fla)
571 F2d 328, cert den 439 US 893, 58 L Ed 2d 238, 99 S Ct 250; Panhandle Eastern
Pipe Line Co. v Federal Power Com. (CA8) 343 F2d 905, 22 OGR 651, 22 ALR3d 556
(superseded by statute on other grounds as stated in New Mexico ex rel. Energy &
Minerals Dept., Mining & Minerals Div. v U.S. Dept. of Interior, 261 US App DC 33,
820 F2d 441, 26 Envt Rep Cas 1061, 8 FR Serv 3d 235); Panhandle Eastern Pipe Line
Co. v Federal Power Com. (CA10) 337 F2d 249, 21 OGR 439.
d. Transfer to Cure Want of Jurisdiction [435]
§ 435 Generally
View Entire Section

Whenever a petition for review of administrative action is filed in a court as defined by

statute, 10 and the court finds that there is a want of jurisdiction, the court must, if it is
in the interest of justice, transfer the petition to any other court in which the petition
could have been brought at the time it was filed. The action on the petition will then
proceed as if it had been filed in the court to which it is transferred on the date upon
which it was actually filed in or noticed for the court from which it was transferred. 11
It would be proper for a Federal District Court that lacks subject matter jurisdiction over
an action to transfer the case because exclusive jurisdiction is vested in the Court of
Appeals. 12 Courts of Appeals, for example, have exclusive jurisdiction to hear
petitions for review of final agency orders and regulations issued by the Federal Highway
Administration, and to remand a case so that the District Court might enter a
predetermined ruling on jurisdiction and then transfer the case back to the appellate court
so that it might enter preordained ruling on merits would be an exercise in futility and
waste of judicial resources. 13
This provision for transfer is not a jurisdictional grant, but merely permits transfer of an
action to a court in which the action could have been brought at the time it was filed. 14
Also, a court may only make a single decision upon concluding that it lacks
jurisdiction–whether to dismiss the case or, in the interest of justice, to transfer it to a
Court of Appeals that has jurisdiction. It is well settled that a court may not in any case,
even in the interest of justice, extend its jurisdiction where none exists. 15 In
addition, the failure by a party to exhaust its administrative remedies will prevent the
transfer of a claim because the transfer is not in the interest of justice and the claim is
premature. 16
 Practice guide: A motion to transfer is unnecessary under 28 USCS § 1631 because

of the inherent mandatory nature of the statute. 17
Footnotes
Where jurisdiction to review Interior Secretary's denial of request to revise or suspend oil
and gas exploration plan is vested in District Court, petition would be transferred to that
court. Trustees for Alaska v United States Dept. of Interior (CA9) 919 F2d 119, 90
CDOS 8523, 112 OGR 581.
Footnote 12. Jamison v FTC (DC Dist Col) 628 F Supp 1548, 1986-1 CCH Trade Cases ¶
66976.
Footnote 13. International Brotherhood of Teamsters, etc. v DOT (CA9) 932 F2d 1292.
Annotation: Construction and application of provisions of 28 USCS § 2112(a) for

transfer, from one United States Court of Appeals to another, of proceedings to review
or enforce orders of administrative agencies, 19 ALR Fed 520.
Footnote 14. Orona v United States, 4 Cl Ct 81.
Footnote 15. Christianson v Colt Industries Operating Corp., 486 US 800, 100 L Ed 2d
811, 108 S Ct 2166, 7 USPQ2d 1109, 1988-1 CCH Trade Cases ¶ 68081, 11 FR Serv 3d
452, on remand (CA7 Ill) 870 F2d 1292, 10 USPQ2d 1352, 1989-1 CCH Trade Cases ¶
68527, cert den 493 US 822, 107 L Ed 2d 47, 110 S Ct 81, later proceeding (CD Ill)
766 F Supp 670, 1991-1 CCH Trade Cases ¶ 69415.
Note that one circuit may not review another circuit's decision not to transfer a case for
want of jurisdiction. Howitt v United States Dept. of Commerce (CA1 Mass) 897 F2d
Footnote 16. Alvarez v United States, 9 Cl Ct 311.

Footnote 17. Re McCauley (CA9 Nev) 814 F2d 1350, 16 BCD 172, CCH Bankr L Rptr ¶
71751.
e. State Courts [436, 437]
§ 436 Jurisdiction
View Entire Section

Go to Supplement
The Model State Administrative Procedure Act (l981) includes alternative provisions as
to which court may be designated to review actions of administrative agencies. One
alternative provides that the trial court of general jurisdiction will conduct judicial
review; 18 the other, the appellate court. 19
§ 436 ----Jurisdiction [SUPPLEMENT]
Case authorities:
Footnotes
Footnote 18. Model State Administrative Procedure Act (1981) § 5-104(a)[Alternative

A].
Footnote 19. Model State Administrative Procedure Act (1981) § 5-104(a)[Alternative

B].
The trial court lacked subject matter jurisdiction to review the decision of the Personnel
Appeal Board because there is no statute or court ruling authorizing any form of direct
appeal to circuit court from the decision of municipal administrative agencies such as the
PAB; Michigan laws do not provide for appeals from decisions of a civil service
commission and sheriffs' departments to circuit court. O'Connor v Oakland County
Sheriff's Dept., 169 Mich App 790, 426 NW2d 816.
The court of appeals, not the district court, hears appeals under the Minnesota
Administrative Procedure Act. Counties of Blue Earth v Minnesota Dept. of Labor &
Industry (Minn App) 489 NW2d 265, 1 BNA WH Cas 2d 422.
§ 437 Venue
View Entire Section

Under the Model State Administrative Procedure Act (1981), venue is either in the
district: (1) that includes the state capital; or (2) where the petitioner resides or maintains
a principal place of business, unless otherwise provided by law. 20
Footnotes
B. Parties [438-466]
Research References
US Const, Art III § 2, cl 1
5 USCS § 702; 8 USCS § 1182(a)(14); 28 USCS § 2344
Model State Administrative Procedure Act (l961) § 15(a)
Model State Administrative Procedure Act (l981) § 5-106
ALR Index: Administrative Law; Parties
1A Federal Procedural Forms, L Ed, Administrative Law § 2:245; 2 Federal Procedural
Forms, L Ed, Appeal, Certiorari, and Review § 3:474; 8 Federal Procedural Forms, L Ed,
Declaratory Judgments § 21:22; 9 Federal Procedural Forms, L Ed, Environmental
Protection §§ 29:31-29:47
1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 342
1. Standing of Party to Obtain Review [438-465]
§ 438 Constitutional requirement of case or controversy
View Entire Section


The question of a party's standing to obtain judicial review in the federal courts is to be
considered in light of Article III 21 which restricts the exercise of judicial power to
"cases" and "controversies." 22 In terms of Article III limitations on federal court
jurisdiction, the question of standing is related to whether the dispute sought to be
adjudicated will be presented in an adversary context and in a form historically viewed as
capable of judicial resolution. 23 Without such concrete adverseness no case or
controversy is present. 24
Bulletins and releases issued by a governmental agency do not in themselves give rise to
such a justiciable controversy. 25 Nor does the mere existence of a statute or regulation
necessarily raise a justiciable controversy, 26 although pre-enforcement review 27 of
self-executing administrative regulations of industry-wide applicability may, under the
combined operation of the Declaratory Judgment Act 28 and the Administrative
Procedure Act, 29 be had. 30
Footnotes
Footnote 21. US Const, Art III § 2.
Footnote 22. Association of Data Processing Serv. Orgs., Inc. v Camp, 397 US 150, 25
L Ed 2d 184, 90 S Ct 827.
 Definition: Standing has been defined as a presently existing, substantial interest in

the subject matter of the suit which will be affected by the relief granted. The presence
of some violation of the law is not sufficient if the party challenging an action lacks
standing to challenge the violation. Pacific Wire Works, Inc. v Department of Labor &
Industries, 49 Wash App 229, 742 P2d 168.
As to case or controversy, in general, see 20 Am Jur 2d, Courts § 80.
As to standing, generally, see 59 Am Jur 2d, Parties §§ 30-33.
Annotation: Supreme Court's view as to what is a "case or controversy" within the

meaning of Article III of the Federal Constitution or an "actual controversy" within the
meaning of the Declaratory Judgment Act (28 USCS § 2201), 40 L Ed 2d 783.
Footnote 23. Flast v Cohen, 392 US 83, 20 L Ed 2d 947, 88 S Ct 1942.
Footnote 24. Baker v Carr, 369 US 186, 7 L Ed 2d 663, 82 S Ct 691, on remand (MD
Tenn) 206 F Supp 341; Coalition for Environment v Volpe (CA8 Mo) 504 F2d 156, 6
Envt Rep Cas 1872, 4 ELR 20717; McDowell v Schlesinger (WD Mo) 404 F Supp 221, 6
ELR 20224 (disapproved on other grounds by Breckinridge v Rumsfeld (CA6) 537 F2d
864, 9 Envt Rep Cas 1059, 6 ELR 20597) and (disapproved on other grounds by Image
of Greater San Antonio v Brown (CA5 Tex) 570 F2d 517, 11 Envt Rep Cas 1529, 17
BNA FEP Cas 87, 16 CCH EPD ¶ 8277, 8 ELR 20324).
Proceeding brought to test the validity of an administrative agency's demand for a special
annual report, when daily penalties may be assessed for failure to comply with any valid
request, amounted to an actual controversy within the jurisdiction of the United States
District Courts. United States v St. Regis Paper Co. (CA2 NY) 285 F2d 607, affd 368

US 208, 7 L Ed 2d 240, 82 S Ct 289, reh den 368 US 972, 7 L Ed 2d 401, 82 S Ct 437
and motion den 369 US 809, 7 L Ed 2d 611, 82 S Ct 686.
Forms: Allegation in complaint–Existence of actual controversy [28 USCS § 2201;

FRCP 8(a), 57]. 8 Federal Procedural Forms, L Ed, Declaratory Judgments § 21:22.
Footnote 25. Babbitt Auto Parts Co. v Fleming (DC Dist Col) 51 F Supp 360, 4 CCH LC
¶ 60631.
Footnote 26. Smith v Boyer (WD NY) 442 F Supp 62; Diebold v Civil Service Com.
(CA8 Mo) 611 F2d 697; Western Mining Council v Watt (CA9 Cal) 643 F2d 618, 11
ELR 20440, cert den 454 US 1031, 70 L Ed 2d 474, 102 S Ct 567.
Footnote 29. 5 USCS §§ 701-706.
Footnote 30. Breitmeyer v Califano (ED Mich) 463 F Supp 810.
§ 439 Burden of proof as to standing
View Entire Section

A party seeking judicial review of an agency action bears the burden of establishing the
elements of standing in federal court. Because the elements are not mere pleading
requirements but rather an indispensable part of the plaintiff's case, each element must be
supported in the same way as any other matter in which the plaintiff bears the burden of
proof, that is, with the manner and degree of evidence required at the successive stages of
the litigation. 31 Thus, at the pleading stage, general factual allegations of injury
resulting from the defendant's conduct may suffice. 32 When the petitioner's standing is
challenged on a motion to dismiss, both the trial and reviewing courts must accept as true
all material allegations of the complaint, and must construe the complaint in favor of the
petitioner, and the trial court may require the petitioner to supply by amendment or by
affidavits particularized allegations of fact deemed supportive of the petitioner's standing.
33
Footnotes
Footnote 31. Lujan v Defenders of Wildlife (US) 119 L Ed 2d 351, 112 S Ct 2130, 92
CDOS 4985, 92 Daily Journal DAR 7876, 92 Daily Journal DAR 8967, 34 Envt Rep Cas
1785, 22 ELR 20913, 6 FLW Fed S 374.
Footnote 32. Defenders of Wildlife v Administrator, Environmental Protection Agency

(DC Minn) 688 F Supp 1334, 18 ELR 20960, later proceeding (DC Minn) 700 F Supp
1028, 19 ELR 20611 and affd in part and revd in part on other grounds (CA8 Minn) 882
F2d 1294, 30 Envt Rep Cas 1460, 19 ELR 21440, stating that when standing is
challenged based on allegations in the pleadings, the court accepts as true all material
allegations of the complaint, and construes the complaint in favor of the complaining
party.
Footnote 33. Warth v Seldin, 422 US 490, 45 L Ed 2d 343, 95 S Ct 2197.
§ 440 Standing under federal Administrative Procedure Act
View Entire Section

Go to Supplement
The Administrative Procedure Act (APA) 34 embodies the basic presumption that one
who suffers a legal wrong 35 because of agency action, 36 or who is adversely affected
or aggrieved 37 by that action, within the meaning of a relevant statute, 38 is entitled
to judicial review of that action in cases where (1) no statute precludes such relief, and
(2) the action in question is not one committed by law to agency discretion. 39
In other words, the APA confers a general cause of action upon persons adversely
affected or aggrieved by agency action within the meaning of a relevant statute, but
withdraws that cause of action to the extent the relevant statute precludes judicial review.
40 Further, for a party to prove that it is adversely affected or aggrieved by
the agency action requires a showing that the injury complained of falls within the zone
of interests sought to be protected by the relevant statutes. 41
In instances where a complainant seeks review of multiple claims, the complainant must
satisfy the requirements of standing as to each claim in order to avoid dismissal of that
claim. 42
 Observation: The test for standing in actions not involving the APA is for practical
purposes the same as the test applicable to actions falling under the APA. The
constitutional requirement of case or controversy 43 applies in both contexts. 44
§ 440 ----Standing under federal Administrative Procedure Act [SUPPLEMENT]
Case authorities:
A federal administrative agency's entitlement to the status of party respondent to an

appeal to a court does not necessarily imply the agency's standing to appeal. Director,
Office of Workers' Compensation Programs, Dep't of Labor v Newport News
Shipbuilding & Dry Dock Co. (1995, US) 131 L Ed 2d 160, 115 S Ct 1278, 95 CDOS
2108, 95 Daily Journal DAR 3491, 1995 AMC 1167, 8 FLW Fed S 643.
Competing banks have standing to challenge National Credit Union Administration's

decision to allow federal credit union to expand service area. Community First Bank v
National Credit Union Admin. (1994, CA6 Mich) 41 F3d 1050, 1994 FED App 399P.
Community council of public tenants had standing to challenge HUD's determination that
state's eviction procedures, allowing eviction of tenants accused of criminal activity
without informal grievance hearing, were valid under Housing Act. Yesler Terrace
Community Council v Cisneros (1994, CA9 Wash) 37 F3d 442, 94 CDOS 7006, 94 Daily
Journal DAR 12852.
Association of automobile dealers lacks standing to challenge EPA's use of notice and
comment rulemaking to issue final rule on vehicle inspection and maintenance programs
and that rule's preference for centralized vehicle emission testing; Congress's imposition
of binding performance standard upon states made any rules setting forth mandatory
parameters of states' obligations under Act legislative in character. Natural Resources
Defense Council v EPA (1994, App DC) 22 F3d 1125, 38 Envt Rep Cas 1481, 24 ELR
20836.
Animal welfare organizations do not have standing under APA to sue Secretary of
Agriculture for refusing to initiate rulemaking to correct regulation alleged to be in
violation of animal Welfare Act. Animal Legal Defense Fund v Espy (1994, App DC) 23
F3d 496.
Footnotes
Footnote 39. Re Penn Cent. Transp. Co. (ED Pa) 440 F Supp 569; Standard Oil Co. v
Federal Energy Administration (ND Ohio) 440 F Supp 328; Schalk v Reilly (CA7 Ind)
900 F2d 1091, 31 Envt Rep Cas 1281, 20 ELR 20669, reh den, en banc (CA7) 1990 US
App LEXIS 8998 and cert den 498 US 981, 112 L Ed 2d 521, 111 S Ct 509, 32 Envt
Rep Cas 1976, reh den 498 US 1074, 112 L Ed 2d 863, 111 S Ct 802; Hartigan v
Federal Home Loan Bank Bd. (CA7) 746 F2d 1300; Montana Chapter of Asso. of
Civilian Technicians, Inc. v Young (CA9 Mont) 514 F2d 1165, 89 BNA LRRM 2212;
Rochester v Bond, 195 US App DC 345, 603 F2d 927; United States Lines, Inc. v
Federal Maritime Com., 189 US App DC 361, 584 F2d 519, 1978-2 CCH Trade Cases ¶
62158 (criticized on other grounds by Boston Shipping Asso. v Federal Maritime Com.
(CA1) 706 F2d 1231, 97 CCH LC ¶ 10098, 1984 AMC 1351).
As to preclusion of judicial review under 5 USCS § 701 and action committed to agency
discretion, see §§ 472 et seq.
As to standing, in general, see 59 Am Jur 2d, Parties §§ 30-33.
Annotation: Standing of private citizen, association, or organization to maintain action

in federal court for injunctive relief against commercial development or activities, or
construction of highways, or other governmental projects, alleged to be harmful to
environment in public parks, other similar recreational areas, or wildlife refuges, 11
ALR Fed 556, § 3.
Forms: Complaint–Against federal agency–Allegation–Standing of plaintiff to bring

action [5 USCS § 702]. 1A Federal Procedural Forms, L Ed, Administrative Law §
2:245.
Motion to dismiss–Ground–Lack of standing of petitioner to obtain review [5 USCS §

702]. 2 Federal Procedural Forms, L Ed, Appeal, Certiorari, and Review § 3:474.
Footnote 40. Air Courier Conference v American Postal Workers Union, 498 US 517,
112 L Ed 2d 1125, 111 S Ct 913, 91 CDOS 1463, 91 Daily Journal DAR 2362, 136
BNA LRRM 2545; Block v Community Nutrition Institute, 467 US 340, 81 L Ed 2d
270, 104 S Ct 2450, on remand 239 US App DC 319, 742 F2d 1472; Association of Data
Processing Serv. Orgs., Inc. v Camp, 397 US 150, 25 L Ed 2d 184, 90 S Ct 827; Florida
v Weinberger (CA5 Fla) 492 F2d 488, appeal after remand (CA5 Fla) 526 F2d 319 and
(criticized on other grounds by Control Data Corp. v Baldrige, 210 US App DC 170, 655
F2d 283, 28 CCF ¶ 81233); San Francisco v United States (ND Cal) 443 F Supp 1116, 11
Envt Rep Cas 1065, 8 ELR 20386, affd (CA9 Cal) 615 F2d 498, 14 Envt Rep Cas 1347,
27 CCF ¶ 80272, 10 ELR 20346; Safir v Kreps, 179 US App DC 261, 551 F2d 447, cert
den 434 US 820, 54 L Ed 2d 76, 98 S Ct 60, 98 S Ct 61.

2:245.

Footnote 41. Lujan v National Wildlife Federation, 497 US 871, 111 L Ed 2d 695, 110
S Ct 3177, 31 Envt Rep Cas 1553, 20 ELR 20962.
As to the zone of interests test, see § 450.
Footnote 42. Guerrero v Garza (WD Wis) 418 F Supp 182.
Footnote 44. Dan Caputo Co. v Russian River County Sanitation Dist. (CA9 Cal) 749
F2d 571, 22 Envt Rep Cas 1572.
§ 441 Standing under Model State Administrative Procedure Act
View Entire Section


The 1981 Model State Administrative Procedure Act provides that the following persons
have standing to obtain judicial review of final or non-final agency action:
(1) a person to whom the agency action is specifically directed;
(2) a person who was a party to the agency proceeding that led to the agency action;
(3) if the challenged agency action is a rule, a person subject to that rule;
(4) a person eligible for standing under another provision of law; or
(5) a person otherwise aggrieved or adversely affected by the agency action. 45 Also, a
standing committee of the legislature which is required to exercise general and
continuing oversight over administrative agencies and procedures may petition for
judicial review of any rule or intervene in any litigation arising from agency action. 46
The 1961 Model Act provides that a person who has exhausted all administrative
remedies available within the agency and who is aggrieved by a final decision in a
contested case is entitled to judicial review. 47
Footnotes
In order to have standing to seek judicial review of a final agency action in Florida, a
person must show: (1) the action is final; (2) the agency is subject to the provisions of
the Administrative Procedure Act; (3) he was a party to the action which he seeks to
appeal; and (4) he was adversely affected by the action. The mere fact that an individual
may have the requisite standing to appear as a party before an agency at a de novo
hearing does not necessarily mean that the party automatically has standing to appeal.
Furthermore, an individual who participates in such a hearing by authorization of a
statute or rule, or by permission of an agency, may not necessarily possess any interests
which are adversely, or even substantially, affected by the proposed action. Fox v Smith
(Fla App D3) 508 So 2d 1280, 12 FLW 1423.
As to persons adversely affected or aggrieved, see §§ 443 et seq.
Footnote 47. Model State Administrative Procedure Act (l961) § 15(a).
b. Persons Suffering Legal Wrong [442]
§ 442 Generally

View Entire Section
Under the Administrative Procedure Act, a person suffering legal wrong because of
agency action is entitled to judicial review of that action. 48 "Legal wrong" means
invasion of a legally protected right, 49 or such wrong as particular statutes and courts
have recognized as constituting grounds for judicial review. 50 Stated differently, a
petitioning party must have a legally cognizable interest that is or will be affected by an
administrative determination, although a showing of special damage or actual injury is
not always necessary to establish a party's standing. In some instances the party's
particular relationship to the subject of the action may give rise to a presumption of
standing. 51
An allegation of economic injury, however serious, is insufficient as an allegation of

legal wrong for purposes of standing under the APA: a person's private legal rights must
also be violated. 52 Mere economic competition made possible by governmental
action is, similarly, not a legal wrong sufficient to confer standing, 53 unless the
provisions of the relevant statute were intended to promote the competitive interest of the
complainant. 54
An agency's continuing delay in taking final action, in violation of the requirement that
every agency proceed with reasonable speed, constitutes a legal wrong that gives
standing to those adversely affected by the delay. 55
 Comment: The "legal wrong" analysis employed by the courts to determine standing
in the context of the first clause of the Administrative Procedure Act 56 appears, for
all practical purposes, to be identical to the "zone of interests" test 57 employed to
determine the question of standing under the Act's second clause. 58
Footnotes

2:245.

Footnote 49. Braude v Wirtz (CA9 Cal) 350 F2d 702, 52 CCH LC ¶ 16644; Los Angeles
Customs & Freight Brokers Asso. v Johnson (CD Cal) 277 F Supp 525; Pennsylvania R.
Co. v Dillon, 118 US App DC 257, 335 F2d 292, cert den 379 US 945, 13 L Ed 2d 543,
85 S Ct 437.
A prospective director of a medical training program who was denied her program grant
because of her exercise of First Amendment rights and her participation in feminist
associations suffered a legal wrong sufficient to give her standing to challenge the grant

denial. Apter v Richardson (CA7 Ill) 510 F2d 351.
Footnote 50. Kansas City Power & Light Co. v McKay, 96 US App DC 273, 225 F2d
Footnote 51. Har Enterprises v Brookhaven, 74 NY2d 524, 549 NYS2d 638, 548 NE2d
1289, holding that where the subject of a proposed zone change is petitioner's property,
petitioner is presumptively adversely affected by violation of SEQRA requirements so
that petitioner need not allege specific environmental harm to challenge the sufficiency of
an agency's efforts to comply with SEQRA.
Footnote 52. Gregory Electric Co. v United States Dept. of Labor (DC SC) 268 F Supp
987, 65 BNA LRRM 2436; Harrison-Halsted Community Group, Inc. v Housing &
Home Finance Agency (CA7 Ill) 310 F2d 99, cert den 373 US 914, 10 L Ed 2d 414, 83
S Ct 1297; Los Angeles Customs & Freight Brokers Asso. v Johnson (CD Cal) 277 F
Supp 525.
Footnote 53. Rural Electrification Administration v Central Louisiana Electric Co. (CA5
La) 354 F2d 859, cert den 385 US 815, 17 L Ed 2d 54, 87 S Ct 34, reh den 385 US
964, 17 L Ed 2d 309, 87 S Ct 388; Braude v Wirtz (CA9 Cal) 350 F2d 702, 52 CCH LC
¶ 16644; Pennsylvania R. Co. v Dillon, 118 US App DC 257, 335 F2d 292, cert den 379
US 945, 13 L Ed 2d 543, 85 S Ct 437.
Footnote 54. American Trucking Assos. v United States, 364 US 1, 4 L Ed 2d 1527, 80

S Ct 1570; Safir v Gibson (CA2 NY) 417 F2d 972, cert den 400 US 850, 27 L Ed 2d 88,
91 S Ct 57.
Footnote 55. Poirrier v St. James Parish Police Jury (ED La) 372 F Supp 1021, affd (CA5
La) 531 F2d 316, reh den (CA5 La) 537 F2d 840, stating in a suit by nearby residents
seeking opening of hospital funded by federal grant under Hill-Burton Act, which
required HEW Secretary to seek a refund of the grant if the hospital never opened, that
administrative discretion is not license for lethargy.
Footnote 56. 5 USCS § 702 ("A person suffering legal wrong because of agency action .
. . is entitled to judicial review thereof.").
Footnote 58. 5 USCS § 702 ("A person . . . adversely affected or aggrieved by agency
action within the meaning of a relevant statute, is entitled to judicial review thereof.").
c. Persons Adversely Affected or Aggrieved [443-450]
(1). In General [443]
§ 443 Generally

View Entire Section
Go to Supplement
Under the Administrative Procedure Act, a person who is adversely affected or aggrieved
by agency action within the meaning of a relevant statute is entitled to judicial review of
that action. 59 An individual who has a mere interest in an issue is not adversely
affected or aggrieved within the meaning of the APA. 60 The complainant must also
allege injury in fact, 61 actual or threatened, caused by the challenged action. 62 And
the alleged injury must be to an interest arguably within the zone of interests to be
protected or regulated by the statutes or constitutional guaranties claimed to have been
violated. 63 For example, where an agency fails to comply with a statutory provision
requiring on the record hearings, the company that has the contract to record and
transcribe the agency's proceedings would not be adversely affected within the meaning
of the statute because the provision was obviously enacted to protect the interests of the
parties to the proceedings, and not those of the reporters. 64
Judicial review under the adversely affected or aggrieved standard is not limited to
situations where Congress explicitly referred to persons adversely affected or aggrieved
by agency actions, since that would not be a hospitable interpretation of the generous
review provisions of the APA. 65
 Comment: The l981 Model State Administrative Procedure Act provides that no
person has standing as one otherwise aggrieved or adversely affected unless: (1) the
agency action has prejudiced or is likely to prejudice that person; (2) that person's
asserted interests are among those that the agency was required to consider when it
engaged in the agency action challenged; and (3) a judgment in favor of that person
would substantially eliminate or redress the prejudice to that person caused or likely to
be caused by the agency action. 66
Case authorities:
A union representing employees of private group-home providers of services for the

Department of Mental Health and the employees of those providers have standing to
bring an action against the Department of Mental Health challenging a guideline adopted
by the department that incorporates the standard- form contract used by the department to
contract for group-home services. American Fed'n of State, County & Mun. Employees v
Department of Mental Health (1994) 206 Mich App 382, 522 NW2d 657, app gr 448
Mich 931, 535 NW2d 788.
Petitioner is a "person aggrieved" as defined by the NCAPA within the meaning of the
Air Pollution Control Act where he alleged (1) that DEHNR issued an air quality permit
to respondent power company for sixteen combustion turbine electric generating units in
violation of its statutory and regulatory duties to act on all permit applications so as to
effectuate a legislative policy of reducing existing air pollution and preventing increased
air pollution, to reduce levels of ozone pollution in the Mecklenburg County area, to
assess fully the impact of emissions of air pollutants from the generating units on levels
of ozone pollution in Mecklenburg County, to assess fully the impact of sulfur dioxide
emissions from the units, to require air pollution control technology adequate to control
the emission of harmful pollutants from the units, to require the power company to cause
air quality offsets, and to address comments filed by petitioner and other members of the
public, and (2) that, as the owner of property immediately adjacent to and downwind of
the site of the proposed generating units, he will suffer from the adverse environmental
consequences of pollutants from the generating units. Empire Power Co. v North
The North Carolina Administrative Procedures Act (NCAPA) confers upon any "person
aggrieved" the right to commence an administrative hearing to resolve a dispute with an
agency involving the person's rights, duties, or privileges. To the extent that language in
Batten v N.C. Dept. of Correction, 326 N.C. 338 (1990), reiterated in Harding v Dept. of
Correction, 334 N.C. 414 (1993), suggests otherwise, it is disapproved. To the extent that
Citizens for Clean Industry v Lofton, 109 N.C. App. 229 (1993) may be viewed as
inconsistent herewith, it is also disapproved. Empire Power Co. v North Carolina Dep't of
Env't, Health & Natural Resources, Div. of Envtl. Management (1994) 337 NC 569, 447
SE2d 768, reh den (1994, NC) 1994 NC LEXIS 694.
To determine whether party has been aggrieved by agency decision in contested case,
petitioner must first establish that it sustained alleged injury due to agency decision and
secondly, petitioner must demonstrate that injury is to interest which law recognizes or
seeks to regulate or protect, and while magnitude of injury is not determinative, fact of
injury is. Public Intervenor v Wisconsin Dep't of Natural Resources (1994) 184 Wis 2d
407, 515 NW2d 897.
Footnotes
Annotation: Who is "aggrieved" party entitled to judicial review of order under §

19(b) of Natural Gas Act (15 USCS § 717r(b)), 106 ALR Fed 863.
Who is "party aggrieved," so as to be entitled to petition Court of Appeals for review of

final order of administrative agency, under 28 USCS § 2344, 88 ALR Fed 341.
Footnote 60. Stow v United States (WD NY) 696 F Supp 857, 19 ELR 20481.
Footnote 62. Hartigan v Federal Home Loan Bank Bd. (CA7) 746 F2d 1300.
As to threatened injury in fact, see § 445.

By the alleged failure of an agency to follow the prescribed administrative steps in
adjusting the rentals of living quarters owned and operated by the federal government,
persons living in such quarters were clearly persons aggrieved by agency action.
Yosemite Tenants Asso. v Clark (ED Cal) 582 F Supp 1342.
Plaintiffs were aggrieved by an agency's action to keep people out of the country whom
the plaintiffs had invited to engage in open discourse with them within the United States.
Abourezk v Reagan, 251 US App DC 355, 785 F2d 1043, cert gr 479 US 1016, 93 L Ed
2d 718, 107 S Ct 666 and affd 484 US 1, 98 L Ed 2d 1, 108 S Ct 252, later proceeding
278 US App DC 405, 878 F2d 507, reh den 281 US App DC 121, 888 F2d 134 and on
remand (DC Dist Col) 1988 US Dist LEXIS 5203.
Annotation: 106 ALR Fed 863.
88 ALR Fed 341.
Footnote 65. Norwalk CORE v Norwalk Redevelopment Agency (CA2 Conn) 395 F2d
920, 12 FR Serv 2d 368, 8 ALR Fed 388 (disapproved on other grounds by Washington
v Davis, 426 US 229, 48 L Ed 2d 597, 96 S Ct 2040, 12 BNA FEP Cas 1415, 11 CCH
EPD ¶ 10958); Scanwell Laboratories, Inc. v Shaffer, 137 US App DC 371, 424 F2d 859.
Footnote 66. Model State Administrative Procedure Act (1981) § 5-106(a)(5).
A person who is injuriously or adversely affected by a judgment when it operates on his

rights of property or bears directly upon his personal interest, is aggrieved for purposes of
an appeal. Mankato Aglime & Rock Co. v Mankato (Minn App) 434 NW2d 490.
(2). Injury in Fact Test [444-449]
§ 444 Generally
View Entire Section

A person is not adversely affected or aggrieved by agency action unless that action has
caused that person injury in fact, 67 economic 68 or otherwise. 69 The injury in
fact test requires more than that a party have a cognizable interest in the subject matter
affected by agency action or a benevolent motivation in challenging that action: a party
seeking review must be among the injured. 70
The mere fact that a qualified plaintiff has not appeared is not sufficient to endow an
uninjured person with standing to litigate a particular issue. 71 Similarly, the
assumption that if the persons seeking review have no standing no one would have
standing is not a reason to find standing. 72 On the other hand, standing is not to be
denied simply because many people suffer the same injury. 73
A person meets the aggrieved party standing requirement when he or she affirmatively
establishes that a judgment or order causes him or her an injury. 74 Standing is not
limited to those who have been "significantly" affected by agency action, 75 allowing
a court to consider only whether an injury exists and not the weight or significance of the
alleged injury. 76 The injury in fact test thus serves to distinguish those persons with a
direct stake in the outcome of the litigation, even though small, from those with a mere
interest in the problem: an "identifiable trifle" will suffice. 77 A court should find
standing where injury in fact is alleged even though the line of causation from agency
action to injury is attenuated, and regardless of whether plaintiff will ultimately be able to
prove that the plaintiff in fact suffered the alleged injury. 78
Footnotes
Footnote 67. Concerned Residents of Buck Hill Falls v Grant (CA3 Pa) 537 F2d 29, 6
ELR 20527; Stanton v Ash (SD Ind) 384 F Supp 625, 19 FR Serv 2d 1291; Starbuck v
San Francisco (CA9 Cal) 556 F2d 450.
Annotation: Who is "aggrieved" party entitled to judicial review of order under §

19(b) of Natural Gas Act (15 USCS § 717r(b)), 106 ALR Fed 863.
Who is "party aggrieved," so as to be entitled to petition Court of Appeals for review of

final order of administrative agency, under 28 USCS § 2344, 88 ALR Fed 341.
Footnote 70. United States v Students Challenging Regulatory Agency Procedures

(SCRAP), 412 US 669, 37 L Ed 2d 254, 93 S Ct 2405, 5 Envt Rep Cas 1449, 3 ELR
20536.
Footnote 71. Evans v Lynn (CA2 NY) 537 F2d 571, cert den 429 US 1066, 50 L Ed 2d
784, 97 S Ct 797; Stanton v Ash (SD Ind) 384 F Supp 625, 19 FR Serv 2d 1291.
Footnote 72. Schlesinger v Reservists Committee to Stop the War, 418 US 208, 41 L Ed
2d 706, 94 S Ct 2925; United States v Richardson, 418 US 166, 41 L Ed 2d 678, 94 S
Ct 2940.

20536.
Footnote 74. Akroyd v Rhode Island Dept. of Employment Secur. (RI) 585 A2d 637.

20536.
Footnote 76. Coalition for Environment v Volpe (CA8 Mo) 504 F2d 156, 6 Envt Rep Cas
1872, 4 ELR 20717.

20536; National Automatic Laundry & Cleaning Council v Shultz, 143 US App DC 274,
443 F2d 689.
In order to be considered an aggrieved party with standing to appeal, a party must be able
to show a direct and substantial interest in the litigation; it is not sufficient for the person
claiming to be aggrieved to assert the common interest of all citizens in procuring
obedience to the law. Philadelphia v Board of License & Inspection Review, 139 Pa
Cmwlth 240, 590 A2d 79, app den 529 Pa 625, 600 A2d 540 and related proceeding
(CA3 Pa) 5 F3d 685, reh, en banc, den (CA3 Pa) 1993 US App LEXIS 33087.
Footnote 78. American Horse Protection Asso. v Frizzell (DC Nev) 403 F Supp 1206, 6
ELR 20249.

2:245.

§ 445 Threatened injury in fact
View Entire Section

The mere threat of an injury might at first glance appear not to render a party aggrieved
by agency action, and it may seem noncognizable in a judicial system given jurisdiction
over only cases or controversies. 79 However, allegations of threatened injury suffice
primarily in two scenarios, in which standing is assessed on the basis of the likelihood of
the occurrence of the injury. In the first, the plaintiff alleges that governmental action
will be taken directly against the plaintiff; the court then assesses the likelihood that a
clash between the government and the plaintiff will in fact occur. In the second, the
government acts directly against a third party whose expected response in turn will injure
the plaintiff; the standing question frequently turns on causation issues, that is, whether
the third party's decision is sufficiently dependent upon the governmental action so that
the plaintiff's injury is fairly traceable to that action and is likely to be redressed by an
order binding the government. 80
Footnotes
Footnote 79. Wilderness Soc. v Griles, 262 US App DC 277, 824 F2d 4.
As to cases or controversies, see § 438.
Footnote 80. Wilderness Soc. v Griles, 262 US App DC 277, 824 F2d 4.
Where an agency threatened to disclose a corporation's reports to the agency, the
corporation was adversely affected or aggrieved by the action. Chrysler Corp. v Brown,
441 US 281, 60 L Ed 2d 208, 99 S Ct 1705, 19 BNA FEP Cas 475, 4 Media L R 2441,
26 CCF ¶ 83181, 19 CCH EPD ¶ 9121, on remand (CA3 Del) 611 F2d 439, 20 BNA FEP
Cas 1335, 21 CCH EPD ¶ 30331; Coastal States Gas Corp. v Department of Energy (SD
Tex) 480 F Supp 813, motion den (CA5 Tex) 609 F2d 736.
§ 446 Economic injury
View Entire Section

Go to Supplement
Palpable economic injuries, even if the economic injury alleged is minuscule, 81 are
sufficient to lay the basis for standing, with or without a specific statutory provision for
judicial review. 82 Standing based on economic injury is present, for example,
where plaintiff–
–alleges a loss of future profits. 83
–alien has been denied labor certification, 84 as such is an injury in fact, economic or
otherwise. 85
–alleges economic loss due to unlawful competition. 86
–shows that a challenged agency action authorizes allegedly illegal transactions that have
the clear and immediate potential to compete with the plaintiff's own sales. 87
–demonstrates an interest in ensuring a competitive market. 88
–alleges that compliance with new regulations will be costly. 89
–has already incurred fines under a statute being challenged. 90
The threat of financial loss due to lawful competition does not confer standing upon a
prospective litigant. 91 However, in appropriate circumstances competitive injury due
to government regulation does constitute injury in fact. 92 For example, absent a statute
limiting or precluding review, a plaintiff has standing to challenge the provision of
federal funds to finance a for-profit business which is in direct competition with the
plaintiff. 93 Standing will also exist where plaintiff alleges improper or illegal agency
action resulting in economic loss to the plaintiff or an advantage to plaintiff's
competitors. 94 And, a person has suffered a sufficient injury and has standing when
the challenged agency conduct allegedly renders a person unable to fairly compete for
some benefit. 95 Thus, the loss of a statutorily conferred opportunity to compete for a
contract is an injury in fact. 96

§ 446 ----Economic injury [SUPPLEMENT]
Case authorities:
Organization whose members were interested in filing applications for licenses to

provide cellular service in unserved areas had associational standing to challenge FCC's
cellular radio telephone regulatory scheme, since individual members' inability to file
applications to compete for often larger and thus more profitable areas considered
"unserved" under old rules constituted actual economic injury sufficient to establish
injury in fact. and agency compliance with statutory licensing procedures in
Communications Act clearly fell within zone of interests. Committee for Effective
Cellular Rules v FCC (1995, App DC) 53 F3d 1309.
Footnotes
Footnote 81. National Automatic Laundry & Cleaning Council v Shultz, 143 US App DC
274, 443 F2d 689.

20536; Sierra Club v Morton, 405 US 727, 31 L Ed 2d 636, 92 S Ct 1361, 3 Envt Rep
Cas 2039, 2 ELR 20192, later proceeding (ND Cal) 2 ELR 20469 and on remand (ND
Cal) 348 F Supp 219, 4 Envt Rep Cas 1561, 2 ELR 20576, later proceeding (ND Cal) 3
ELR 20173 and (superseded by statute as stated in FAIC Secur., Inc. v United States, 247
US App DC 235, 768 F2d 352) and (superseded by statute as stated in Fairview
Township v United States Environmental Protection Agency (CA3 Pa) 773 F2d 517, 23
Envt Rep Cas 1460, 15 ELR 20951) and (among conflicting authorities noted in Dellums
v U.S. Nuclear Regulatory Com., 274 US App DC 279, 863 F2d 968); McDowell v
Schlesinger (WD Mo) 404 F Supp 221, 6 ELR 20224 (disapproved on other grounds by
Breckinridge v Rumsfeld (CA6) 537 F2d 864, 9 Envt Rep Cas 1059, 6 ELR 20597) and
(disapproved on other grounds by Image of Greater San Antonio v Brown (CA5 Tex) 570
F2d 517, 11 Envt Rep Cas 1529, 17 BNA FEP Cas 87, 16 CCH EPD ¶ 8277, 8 ELR
20324).
Footnote 83. W. B. Fishburn Cleaners, Inc. v Army & Air Force Exchange Service (ND
Tex) 374 F Supp 162.
Footnote 84. 8 USCS § 1182(a)(14).
Footnote 85. Gladysz v Donovan (ND Ill) 595 F Supp 50.
Footnote 86. Northern States Power Co. v Rural Electrification Administration (DC
Minn) 248 F Supp 616.
Footnote 87. Associated Gas Distributors v FERC, 283 US App DC 265, 899 F2d 1250
(plaintiffs need not wait for specific, allegedly illegal transactions to hurt them
competitively).
Footnote 88. Motor Coach Industries, Inc. v Dole (CA4 Va) 725 F2d 958, 31 CCF ¶

72052.
Footnote 89. Community Nutrition Institute v Bergland (DC Dist Col) 493 F Supp 488.
Footnote 90. McKay v Heyison (CA3 Pa) 614 F2d 899, 28 FR Serv 2d 1158.
Footnote 91. South Suburban Safeway Lines, Inc. v Chicago (CA7 Ill) 416 F2d 535;
Rodeway Inns of America, Inc. v Frank (CA8 Mo) 541 F2d 759, cert den 430 US 945,
51 L Ed 2d 792, 97 S Ct 1580; Northern States Power Co. v Rural Electrification
Administration (DC Minn) 248 F Supp 616.
Footnote 92. Research Consulting Associates v Electric Power Research Institute, Inc.
(DC Mass) 626 F Supp 1310, 86-1 USTC ¶ 9262, 57 AFTR 2d 86-965.
Footnote 93. Corrugated Container Corp. v Community Services Administration (WD

Va) 429 F Supp 142.
Footnote 94. Association of Data Processing Serv. Orgs., Inc. v Camp, 397 US 150, 25
L Ed 2d 184, 90 S Ct 827.
Footnote 95. Preston v Heckler (CA9 Alaska) 734 F2d 1359, 34 CCH EPD ¶ 34433, later
proceeding (DC Alaska) 596 F Supp 1158; CC Distributors, Inc. v United States, 280 US
App DC 74, 883 F2d 146, 36 CCF ¶ 75769.
Footnote 96. CC Distributors, Inc. v United States, 280 US App DC 74, 883 F2d 146, 36
CCF ¶ 75769.
§ 447 Noneconomic injury
View Entire Section

Various noneconomic injuries may be sufficient to confer standing on a plaintiff to

challenge agency actions. Harm to aesthetic or environmental well-being, for example,
will often confer standing on a plaintiff. 97 More specifically, the desire to use or
observe an animal species, even for purely aesthetic purposes, is a cognizable interest for
purposes of a party's standing to sue. 98 Thus, an argument that an Environmental
Protection Agency policy will cause mortality to protected species, resulting in
predictable and avoidable deaths, possibly even contributing to extinction, and that the
agency's conduct directly impairs the organization's purposes of study, enjoyment, and
advancement of protected species is sufficient to meet the constitutional prerequisites to
standing. 99
Parties' allegations of noneconomic injury were sufficient to confer standing in the

following situations:
• Property owners who reside below a proposed dam site who allege their water supply
could be adversely affected by the construction of the dam, that they are at risk in the
event the dam fails, that they would be subjected to noise and air pollution, and that the
aesthetics of the surrounding area would be adversely affected by the construction of the
dam and the relocation of a road have satisfied the injury in fact requirement. 1
• Large lumber companies have standing to attack a federal program which they claim
will undermine the vitality of business within the industry. 2
• Consumers of regulated products and services have standing to protect the public
interest in proper administration of a regulatory system enacted for their benefit. 3
• A citizen child of an alien subject to deportation has standing to challenge the action. 4
• A city Board of Trade may seek judicial review of an agency's decision to reduce a
penalty imposed by the Board on one of its members because the remittal of the fine and
the reinstatement of the member are injuries. The Board is required by law to discipline
and supervise its membership; the agency's decision effectively reduces the Board's
ability to self regulate and impairs not only its integrity but potentially the public's
perception of that integrity as well. 5
• Where a Humane Society is specifically authorized under state law to prosecute

violations of animal cruelty laws, the society has standing to challenge a federal agency's
administratively prescribed method for branding cattle. Dairy farmers required to
participate in such branding have standing as well, as they are forced to both comply with
the agency policy and expose themselves to the risk of prosecution for animal cruelty. 6
Although plaintiffs are often able to establish standing to challenge agency action based
on noneconomic injury, not all noneconomic injuries will confer standing, as illustrated
by the following cases:
• A person forced into exile by a foreign government does not have standing to challenge
an agency's decision to import a substance from that country. The party's inability to
return home without facing arrest and prosecution satisfies the injury in fact requirement,
but the requirements of demonstrating causation between the agency action and the
injury, as well the likelihood of redressability of such injury if the requested relief were
granted persist. 7
• Parents of minority school children claiming that a federal agency's policy forbidding
the grant of tax exemptions to racially discriminatory schools is being violated do not
have standing to challenge such actions on the basis of a claimed injury from the mere
fact of the challenged government conduct and injury to their children's opportunity to
receive a desegregated education. The claim of an abstract stigmatic injury caused by
racial discrimination accords a basis for standing only to those persons who are
personally denied equal treatment by the challenged discriminatory conduct, otherwise
standing would extend nationwide to all members of a particular racial group against
which the government was alleged to be discriminating by its grant of its tax exemption
to a racially discriminatory school, regardless of the location of that school. Children's
diminished ability to receive an education in a racially integrated school is judicially
cognizable, but the injury must be fairly traceable to the government conduct challenged
as unlawful. The line of causation between an agency's grant of tax exemptions to some
racially discriminatory schools and desegregation of schools is attenuated at best. 8

Footnotes

20536; Association of Data Processing Serv. Orgs., Inc. v Camp, 397 US 150, 25 L Ed
2d 184, 90 S Ct 827.
Annotation: Standing of private citizen, association, or organization to maintain action

in federal court for injunctive relief against commercial development of activities, or
construction of highways, or other governmental projects, alleged to be harmful to
environment in public parks, other similar recreational areas, or wildlife refuges, 11
ALR Fed 556.
1785, 22 ELR 20913, 6 FLW Fed S 374.
Footnote 99. Defenders of Wildlife v Administrator, Environmental Protection Agency

(DC Minn) 688 F Supp 1334, 18 ELR 20960, later proceeding (DC Minn) 700 F Supp
1028, 19 ELR 20611 and affd in part and revd in part on other grounds (CA8 Minn) 882
Footnote 1. Stow v United States (WD NY) 696 F Supp 857, 19 ELR 20481.
Footnote 2. Duke City Lumber Co. v Butz (DC Dist Col) 382 F Supp 362, 7 Envt Rep
Cas 1104, 20 CCF ¶ 83673, 5 ELR 20080, affd, in part 176 US App DC 218, 539 F2d
220, 6 ELR 20629, cert den 429 US 1039, 50 L Ed 2d 751, 97 S Ct 737.
Footnote 3. Environmental Defense Fund, Inc. v Hardin, 138 US App DC 391, 428 F2d
1093, 1 Envt Rep Cas 1347, 1 ELR 20050.
Footnote 4. As to standing in deportation cases, see 18A Federal Procedure, L Ed,

Immigration, Naturalization, and Nationality §§ 45:1037 seq.
Footnote 5. Board of Trade v Commodity Futures Trading Com. (ND Ill) 724 F Supp
548.
Footnote 6. Humane Soc. of Rochester & Monroe County for Prevention of Cruelty to
Animals, Inc. v Lyng (WD NY) 633 F Supp 480.
Footnote 7. Dellums v U.S. Nuclear Regulatory Com., 274 US App DC 279, 863 F2d
968.
Footnote 8. Allen v Wright, 468 US 737, 82 L Ed 2d 556, 104 S Ct 3315, 84-2 USTC ¶
9611, 54 AFTR 2d 84-5361, reh den 468 US 1250, 82 L Ed 2d 942, 105 S Ct 51, 105 S
Ct 52.
§ 448 Injury to First Amendment rights

View Entire Section
A litigant who wishes to challenge agency action as a violation of the First Amendment
must demonstrate a claim of specific present objective harm or a threat of specific future
harm; the injury must be distinct and palpable. A mere showing of personal injury is not
sufficient to establish standing; the plaintiff must also show that the injury was fairly
traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the
requested relief. 9
For example, the plaintiff had standing to challenge the Foreign Agents Registration Act
of 1938 use of the term political propaganda as applied to foreign motion picture films he
wished to exhibit as a violation of the First Amendment since: (1) his complaint alleged
a cognizable injury; (2) the risk of injury could be traced to defendant's conduct; and (3)
enjoining the application of the words political propaganda to the films would at least
partially redress the threatened injury. Even assuming that the plaintiff could have
minimized the risk of injury to his reputation and political career by providing viewers of
the films with statements concerning the quality of the films and his reasons for
exhibiting them, the need to take such affirmative steps to avoid the risk of harm to his
reputation was a cognizable injury in the course of his communication with the public. 10
Footnotes
Footnote 9. Meese v Keene, 481 US 465, 95 L Ed 2d 415, 107 S Ct 1862, 14 Media L

R 1385.
Footnote 10. Meese v Keene, 481 US 465, 95 L Ed 2d 415, 107 S Ct 1862, 14 Media L
R 1385.
Petitioner had standing to challenge a statute requiring the Postmaster General to hold all
communist political propaganda originating abroad and not release it to the addressee
unless that individual made a written request to the Post Office for delivery of the
material; although the statute was directed to the Postmaster General, it affected the
petitioner. Lamont v Postmaster General, 381 US 301, 14 L Ed 2d 398, 85 S Ct 1493.
§ 449 Procedural injury based on statutory right
View Entire Section

The injury required for purposes of a party's standing to sue may exist solely by virtue of
statutes creating legal rights, the invasion of which creates standing. One who has been
accorded a procedural right to protect the person's concrete interests can assert that right
without meeting all the normal standards for redressability and immediacy. An
individual can enforce procedural rights so long as the procedures in question are

designed to protect some threatened concrete interest of the person's that is the ultimate
basis of the person's standing. However, the government's violation of a procedural duty
does not satisfy the concrete injury requirement by itself, without any showing that the
procedural violation endangers a concrete interest of the plaintiff, apart from the
plaintiff's interest in having the procedure observed. 11
Therefore, the mere fact that a defendant has a duty does not necessarily mean that any
given plaintiff may sue to enforce compliance with that duty. A plaintiff who merely
claims that an agency violated its statutory duty does not necessarily satisfy the
requirement of an injury. Instead, the crucial inquiry in such a situation is whether a
statute that imposes statutory duties creates correlative procedural rights in a given
plaintiff, the invasion of which is sufficient to satisfy the requirement of injury in fact. In
determining whether a given statutory duty creates a correlative procedural right, the
court looks to the statutory language, the statutory purpose and the legislative history.
Thus, the fact that an agency must perform certain procedural duties under a statute does
not by itself establish a plaintiff's right to seek compliance with those duties. 12
 Comment: Statutory broadening of the categories of injury that may be alleged in

support of standing is a different matter from abandoning the requirement that the party
seeking judicial review of federal administrative action must have suffered an injury.
The public interest in proper administration of the laws–specifically, an agency's
observance of a particular, statutorily prescribed procedure–cannot be converted into
an individual right by a statute that denominates it as such, and that permits all citizens,
or a subclass of citizens who suffer no distinctive concrete harm, to sue, since to permit
Congress to convert the undifferentiated public interest in executive officers'
compliance with the law into an individual right would enable the courts, with the
permission of Congress, to assume a position of authority over the governmental acts
of another coequal department and to become virtually continuing monitors of the
wisdom and soundness of executive action. 13
Footnotes
1785, 22 ELR 20913, 6 FLW Fed S 374 (one living adjacent to the site for proposed
construction of a federally licensed dam has standing to bring an action challenging the
licensing agency's failure to prepare an environmental impact statement, even though that
person cannot establish with any certainty that the statement will cause the license to be
withheld or altered, and even though the dam will not be completed for many years).
Footnote 12. Benally v Hodel (CA9 Ariz) 940 F2d 1194, 91 Daily Journal DAR 9286
(criticized on other grounds by Colle v Brazos County (CA5 Tex) 981 F2d 237, 24 FR
Serv 3d 655).
1785, 22 ELR 20913, 6 FLW Fed S 374.
Law Reviews: Nichol, Justice Scalia, Standing, and Public Law Litigation. 42 Duke
LJ 1141 (April, 1993).

(3). Zone of Interests Test [450]
§ 450 Generally
View Entire Section

Go to Supplement
The test of whether a party is adversely affected or aggrieved so as to have standing to

challenge an agency action is whether that action has caused the party injury in fact 14
and whether that injury was to an interest arguably within the zone of interests to be
protected or regulated by the statute or constitutional guaranty which the agency is
claimed to have violated. 15 Simply stated, a party must show that the in fact
injury of which it complains, its aggrievement, or the adverse affect upon it, falls within
the zone of interests, or concerns, sought to be promoted or protected by the statutory
provision under which the agency has acted. At the federal level the zone of interests
limitation may be traced to the injury in fact requirement 16 of the Administrative
Procedure Act. 17
The judicial gloss on that requirement–that the injury suffered be within the zone of
interests sought to be protected by the statute–serves to filter out cases in which a
person's interests are so marginally related to or inconsistent with the purposes implicit in
the statute that it cannot reasonably be assumed that the drafters intended to permit the
suit. In state law as well, the requirement that a petitioner's injury fall within the
concerns which the legislature sought to protect by the statute assures that groups whose
interests are only marginally related to, or even inconsistent with, the purposes of the
statute cannot use the courts to further their own purposes at the expense of the statutory
purposes. 18 The test, however, is not meant to be especially demanding. In
particular, there need be no indication of congressional purpose to benefit the
would-to-be plaintiff. 19
Where breach of such a statutory duty is alleged, a court must examine the entire statute
in question, not merely the particular provision purportedly violated, in order to
determine standing under the zone of interests test. 20 If no duty is found, there is no
standing. 21 The test also requires making a separate analysis of standing for each claim
raised. 22
The zone of interests test is relevant only where the action under attack is that of a
government agency. 23 However, where a government agency regulates contractual
relationships between a regulated party and an unregulated party, the latter as well as the
former may have interests within the regulated zone for purposes of standing: 24 the test
is not whether a party is in fact regulated by a statute, but whether that party asserts
interests which arguably fall within the zone of interests so regulated. 25 For example,
unions representing postal workers lacked standing to bring suit under the Administrative
Procedure Act to challenge the Postal Service's suspension of the application of statutes
regarding international remailing by private courier services despite the unions' allegation
that such a suspension would result in adverse effects on the employment opportunities of
postal workers. Such employees are not within the zone of interests sought to be
protected by the statutes, given that the language and legislative history of the statutes
indicate that Congress' intent in enacting them was not to protect jobs with the postal
service, but rather to insure the receipt of necessary revenues for the postal service. 26
And, where agency funds are reallocated from an initial contractor to a second contractor
hired to cure and correct noncomplying specifications in the work of the former, a
complaint by the initial contractor alleging that it has a right to the funds, and that once
the reallocated funds are spent, it will be unable to collect the funds from the state
agency, satisfies the Article III standing requirement. However, the zone of interests test
is not met where no provision of the appropriate act protects a contractor against such
reallocation. Although courts have expanded the zone of interests test by applying it to
regulations as well as to statutes and constitutional provisions, 27 a regulation that
addresses only irregularities in the procurement process is not intended to provide a
forum for resolving funding disputes. 28
Case authorities:
Plaintiff purchasers of electric power had standing to challenge Federal Energy

Regulatory Commission's approval of rate for sale of electricity from generator to
contractor, where agreement between contractor and plaintiff provided that plaintiff
would pay same price charged to contractor by generator, since that rate is within zone of
interests protected by regulations, and any rate higher than necessary directly injures
plaintiffs who pay same rate as contractor, and injury can be remedied by court order
directing that rate be brought into compliance with regulations. Overton Power Dist. No.
5 v Watkins (1993, DC Nev) 829 F Supp 1523.
Footnotes
BNA LRRM 2545; Clarke v Securities Indus. Ass'n, 479 US 388, 93 L Ed 2d 757, 107
S Ct 750, CCH Fed Secur L Rep ¶ 93057 (discussing the gloss on 5 USCS § 702 and
further stating that the inquiry into reviewability does not end with the zone of interests
test; Simon v Eastern Kentucky Welfare Rights Organization, 426 US 26, 48 L Ed 2d
450, 96 S Ct 1917, 76-1 USTC ¶ 9439, 38 AFTR 2d 76-5027; United States v Students
Challenging Regulatory Agency Procedures (SCRAP), 412 US 669, 37 L Ed 2d 254, 93
A person has standing if they can show an interest arguably among those intended to be
protected by the applicable statute. Mankato Aglime & Rock Co. v Mankato (Minn App)
434 NW2d 490.
To have standing, the petitioner must demonstrate both that it sustained the alleged injury
due to the agency decision, and that the injury is to an interest which the law recognizes

or seeks to regulate or protect. Waste Management of Wisconsin, Inc. v Department of
Natural Resources, 144 Wis 2d 499, 424 NW2d 685.

2:245.

Footnote 17. Society of Plastics Industry, Inc. v County of Suffolk, 77 NY2d 761, 570
NYS2d 778, 573 NE2d 1034, 21 ELR 21413.
Footnote 18. Society of Plastics Industry, Inc. v County of Suffolk, 77 NY2d 761, 570
NYS2d 778, 573 NE2d 1034, 21 ELR 21413.
See also Clarke v Securities Indus. Ass'n, 479 US 388, 93 L Ed 2d 757, 107 S Ct 750,
CCH Fed Secur L Rep ¶ 93057, later proceeding (DC Dist Col) CCH Fed Secur L Rep ¶
93211.
Footnote 19. Clarke v Securities Indus. Ass'n, 479 US 388, 93 L Ed 2d 757, 107 S Ct
750, CCH Fed Secur L Rep ¶ 93057, later proceeding (DC Dist Col) CCH Fed Secur L
Rep ¶ 93211.
But see, Greer v Illinois Hous. Dev. Auth., 122 Ill 2d 462, 120 Ill Dec 531, 524 NE2d
561, stating that adoption of the zone of interests test would unnecessarily confuse and
complicate the law.
Law Reviews: Blumenfeld, Administrative Law–Clarke v. Securities Industry

Association [ 107 S Ct 750]: Standing and the Zone of Interest Inquiry under the
Administrative Procedure Act. 18 Memphis St U L Rev 310 (Winter, 1988).
Footnote 20. Concerned Residents of Buck Hill Falls v Grant (CA3 Pa) 537 F2d 29, 6
ELR 20527; Davis v Romney (CA3 Pa) 490 F2d 1360, 18 FR Serv 2d 70.
Footnote 21. Boston Public Housing Tenants' Policy Council, Inc. v Lynn (DC Mass) 388
F Supp 493; Molokai Homesteaders Cooperative Asso. v Morton (DC Hawaii) 356 F
Supp 148.
Footnote 22. Hartigan v Federal Home Loan Bank Bd. (CA7) 746 F2d 1300.
Footnote 23. American Postal Workers Union v Independent Postal System, Inc. (CA6
Mich) 481 F2d 90, cert gr 414 US 1110, 38 L Ed 2d 737, 94 S Ct 839, cert dismd 415
US 901, 39 L Ed 2d 459, 94 S Ct 936.
Footnote 24. Cotovsky–Kaplan Physical Therapy Assoc. v United States (CA7 Ill) 507
F2d 1363.
Footnote 25. Apter v Richardson (CA7 Ill) 510 F2d 351.

BNA LRRM 2545.
Footnote 27. Stratman v Watt (CA9 Alaska) 656 F2d 1321, cert dismd 456 US 901, 72
L Ed 2d 170, 102 S Ct 1744; Gull Airborne Instruments, Inc. v Weinberger, 224 US App
DC 272, 694 F2d 838, 30 CCF ¶ 70538.
Footnote 28. Dan Caputo Co. v Russian River County Sanitation Dist. (CA9 Cal) 749
d. Rights of Particular Persons to Assert Standing [451-457]
§ 451 Asserting rights of third persons
View Entire Section

Go to Supplement
In the ordinary case, a party has no right to assert the rights of third persons. 29 This
rule of judicial self-government is subject to exceptions, the most prominent of which is
that Congress may remove it by statute. 30 The Supreme Court has on occasion
allowed standing to litigate the rights of third parties when enforcement of the challenged
restriction against the litigant would result indirectly in the violation of the rights of those
third parties. 31 For example, third-party standing is possible where enforcement of
the challenged restriction against the litigant prevents a third party from entering into a
contractual relationship with the litigant, to which relationship the third party has a legal
entitlement. 32 Furthermore, once review has been properly invoked by a person who
has standing, that person may argue the public interest in support of his claim that an
agency has failed to comply with its statutory mandate. 33
§ 451 ----Asserting rights of third persons [SUPPLEMENT]
Case authorities:
The administrative hearing provisions of the NCAPA apply to respondent DEHNR and to
the pollution control permit proceeding where neither the agency nor the proceeding is
expressly exempted from the NCAPA. Thus, under the NCAPA, G.S. § 150B-23, the
third party petitioner is entitled to an administrative hearing to resolve a dispute
involving his rights, duties, or privileges unless (1) he is not a "person aggrieved" by the
permitting decision of the DEHNR, or (2) the organic statute, specifically G.S. §
143-215.108(e), amends, repeals or makes an exception to the NCAPA so as to exclude
him from those expressly entitled to appeal thereunder. Empire Power Co. v North
The air pollution control administrative review provisions set forth in G.S. § 143-
215.108(e) do not by implication amend, repeal, or make an exception to the NCAPA so
as to exclude the third party petitioner from those entitled to an administrative hearing
thereunder, and petitioner is entitled to commence an administrative hearing in the OAH
to determine his right under the Air Pollution Control Act to have DEHNR issue or deny
air quality permits to respondent power company in accordance therewith. While §
143-215.108(e) makes no express provision for an administrative appeal by aggrieved
parties other then the permittee or permit applicant, it does not expressly prohibit such an
appeal, and the intent of the language of the statute is that any permittee or permit
applicant who fails to timely appeal from the decision of the Environmental Management
Commission has waived any right to administrative and judicial review of that decision.
Empire Power Co. v North Carolina Dep't of Env't, Health & Natural Resources, Div. of
Envtl. Management (1994) 337 NC 569, 447 SE2d 768, reh den (1994, NC) 1994 NC
LEXIS 694.
Footnotes
Footnote 29. Arlington Heights v Metropolitan Housing Dev. Corp., 429 US 252, 50 L
Ed 2d 450, 97 S Ct 555.
Annotation: Comment Note–Supreme Court's views as to party's standing to assert

rights of third persons (jus tertii) in challenging constitutionality of legislation, 50 L
Ed 2d 902.
Footnote 32. United States Dept. of Labor v Triplett, 494 US 715, 108 L Ed 2d 701,
110 S Ct 1428, 14 BNA OSHC 1505 (challenging administrative implementation of
restriction on fees a lawyer may charge that deprives prospective client of due process
right to obtain legal representation in Black Lung cases).
Footnote 33. Sierra Club v Morton, 405 US 727, 31 L Ed 2d 636, 92 S Ct 1361, 3 Envt
Rep Cas 2039, 2 ELR 20192, later proceeding (ND Cal) 2 ELR 20469 and on remand
(ND Cal) 348 F Supp 219, 4 Envt Rep Cas 1561, 2 ELR 20576, later proceeding (ND
Cal) 3 ELR 20173 and (superseded by statute on other grounds as stated in FAIC Secur.,
Inc. v United States, 247 US App DC 235, 768 F2d 352) and (superseded by statute on
other grounds as stated in Fairview Township v United States Environmental Protection
Agency (CA3 Pa) 773 F2d 517, 23 Envt Rep Cas 1460, 15 ELR 20951).
§ 452 Class actions
View Entire Section


Go to Supplement
In some instances persons may have standing to bring class actions challenging
administrative action, 34 on the basis that the party opposing the class (the agency
administrator) has acted or refused to act on grounds generally applicable to the class,
thereby making appropriate final injunctive relief or corresponding declaratory relief with
respect to the class as a whole. 35 For example, two deaf individuals could sue a
federal agency for its alleged failure to enforce regulations requiring public television
stations to caption their programs for deaf and hearing-impaired viewers for the full
range of the station's broadcasting activities; the plaintiffs' claim that their rights and
those of the class they represented are affected because they cannot enjoy the benefits of
programs broadcast by stations which received funding from the department was
sufficient to state an injury. An attorney who has acted as a representative for
handicapped plaintiffs, but who is not handicapped himself, also had standing to
challenge the actions of the agency, as does a nonprofit corporation devoted to furthering
the interests of deaf and hearing-impaired persons which alleged that it has a direct stake
in the effective enforcement of the provision in question because it and its members
receive benefits when the statute and regulations are enforced and is deprived of those
benefits when they are not enforced. 36
§ 452 ----Class actions [SUPPLEMENT]
Case authorities:
Parole Commission does not violate 5 USCS § 552(a)(4)(A)(v) by letter informing

prisoner that his request for parole file information was being processed but that
documents would not be shipped until payment of $33.55 was received, even though that
section provides that "advance payment" cannot be required "unless requester has
previously failed to pay fees in timely fashion, or agency has determined that fee will
exceed $250," because regulatory definition makes it clear that what prisoner was
required to pay was "accrued processing fees" and not "advance payment." Strout v
United States Parole Comm'n (1994, ED Mich 842 F Supp 948.
Footnotes
Footnote 34. Ziviak v United States (DC Mass) 411 F Supp 416, affd 429 US 801, 50 L
Ed 2d 64, 97 S Ct 36, reh den 429 US 951, 50 L Ed 2d 319, 97 S Ct 371; Office of
Economic Opportunity Employees Union v Phillips (ND Ill) 360 F Supp 1092; Planned
Parenthood Federation, Inc. v Schweiker (DC Dist Col) 559 F Supp 658, affd 229 US
App DC 336, 712 F2d 650, 71 ALR Fed 933, later proceeding (DC Dist Col) 101 FRD
342.
Footnote 35. FRCP 23(b)(2), discussed in 32A Am Jur 2d, Federal Practice and
Procedure §§ 1850 et seq.
City voters had standing as a class to seek review of the Attorney General's response to a
submission by the city attorney regarding the constitutionality of a proposed referendum
which would change the type of city government. Robinson v Pottinger (MD Ala) 376 F

Supp 615.
Forms: Complaint, petition, or declaration–Class action on behalf of persons seeking

information from administrative agency–To overturn administrative procedures
denying access to records. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law,
Form 342.
Footnote 36. Greater Los Angeles Council on Deafness, Inc. v Baldrige (CA9 Cal) 827
F2d 1353.
§ 453 Taxpayer
View Entire Section

Go to Supplement
An individual's status as a taxpayer, taken alone, is insufficient to confer standing to

challenge the action of an administrative agency in federal court. 37 Rather, to
establish standing as a taxpayer, an individual must demonstrate that the challenged
agency action is based on the government's taxing and spending power, and that the
action is contrary to a specific constitutional limitation on the exercise of that power. 38
Thus, a group of federal taxpayers had standing to raise a claim that a statute which
provides for the involvement of religious organizations in federally funded services and
research programs is unconstitutional as applied on the ground that the statute has been
administered by a federal agency so as to advance religion directly, in violation of the
Establishment Clause of the First Amendment. Such a taxpayer claim is a challenge to
an exercise of Congress' taxing and spending authority under the Constitution (Art I § 8),
not a challenge to executive action, because the statute is at heart a program of
disbursement of funds pursuant to Congress' taxing and spending powers, and the claim
called into question how the funds authorized by Congress are being disbursed pursuant
to the act's statutory mandate. Therefore, there was a sufficient nexus between the
taxpayers' standing as taxpayers and the congressional exercise of the taxing and
spending power, notwithstanding the role that the agency plays in administering the
statute. 39
§ 453 ----Taxpayer [SUPPLEMENT]
Case authorities:
Aliens convicted of deportable offense have no right of action under 8 USCS § 1252,
and standing to seek mandamus is governed by "zone of interests" test applicable in cases
brought under APA, which aliens do not meet; § 1252 was enacted for benefit of
taxpayers, not incarcerated aliens, its objective being to save money by deporting
criminal aliens as soon as their sentences end. Hernandez- Avalos v INS (1995, CA10
Colo) 50 F3d 842.

Footnotes
Footnote 37. Gosnell v Federal Deposit Ins. Corp. (CA2 NY) 938 F2d 372; Tax Analysts
& Advocates v Simon (DC Dist Col) 390 F Supp 927, 75-1 USTC ¶ 9217, 35 AFTR 2d
75-846, affd 184 US App DC 238, 566 F2d 130, 77-2 USTC ¶ 9478, 40 AFTR 2d
77-5232 (criticized on other grounds by American Soc. of Travel Agents, Inc. v
Blumenthal, 184 US App DC 253, 566 F2d 145, 77-2 USTC ¶ 9649, 40 AFTR 2d
77-5782) and cert den 434 US 1086, 55 L Ed 2d 791, 98 S Ct 1280.
Annotation: Taxpayer's standing to raise constitutional question in federal court, 20 L

Ed 2d 1671.
Footnote 38. Gosnell v Federal Deposit Ins. Corp. (CA2 NY) 938 F2d 372.
Footnote 39. Bowen v Kendrick, 487 US 589, 101 L Ed 2d 520, 108 S Ct 2562, later
proceeding (DC Dist Col) 1989 US Dist LEXIS 390 and on remand (DC Dist Col) 703 F
Supp 1 and on remand (DC Dist Col) 125 FRD 1, summary judgment den (DC Dist Col)
766 F Supp 1180, later proceeding (DC Dist Col) 1992 US Dist LEXIS 6715, later
proceeding (DC Dist Col) 1992 US Dist LEXIS 8043.
§ 454 Groups or organizations, generally
View Entire Section

No group of individuals has standing to appeal when the alleged injury caused by an
administrative agency's action affects the public in general, particularly when the affected
public interest is represented by an authorized official or agent of the state. 40 An
organization may seek relief, however, not only for institutional injuries which it suffers
as a result of agency action, but also, even where there is no injury to the organization
itself, as a representative of its members in more particularized situations. 41 For an
association to assert representational standing, it must establish that: (1) its members
would otherwise have standing to sue in their own right; (2) the interests it seeks to
protect are germane to the organization's purpose; and (3) neither the claim asserted nor
the relief requested requires the participation of individual members in the lawsuit. 42
The injury in question must be certain, not merely conjectural or speculative. 43

Thus, neither a mere interest in a problem 44 nor a mere interest coupled with
unfavorable government action is sufficient to meet the injury in fact requirement. 45
For standing to obtain, the injury must also be likely to be redressed by a favorable court
decision. 46
 Observation: Theoretical conflicts between members of an association will not

necessarily deprive it of representational standing, such as where the adverse effects to
certain members of the relief being sought are both speculative and indirect. Once an
organization has alleged actual injury to its members, or any one of them, it may then
argue on behalf of the public interest. Virtually any relief involving the expenditure of

money that benefits some but not all of an organization's members potentially means
that money will be unavailable to or in part exacted from the remainder of the
membership. By joining an organization dedicated to a particular goal in the public
interest, members indicate a willingness to make certain sacrifices productive of that
goal. Carried to its logical extreme, evaluation of representational standing in terms of
the adverseness of remote interests of discreet members would seriously undermine the
ability of individuals through organizations to achieve public interest objectives
through the legal system. 47
Footnotes
Footnote 40. Appeal of Richards, 134 NH 148, 590 A2d 586, cert den (US) 116 L Ed 2d
227, 112 S Ct 275.
Footnote 41. Warth v Seldin, 422 US 490, 45 L Ed 2d 343, 95 S Ct 2197; Sierra Club v
Morton, 405 US 727, 31 L Ed 2d 636, 92 S Ct 1361, 3 Envt Rep Cas 2039, 2 ELR
20192, later proceeding (ND Cal) 2 ELR 20469 and on remand (ND Cal) 348 F Supp
219, 4 Envt Rep Cas 1561, 2 ELR 20576, later proceeding (ND Cal) 3 ELR 20173 and
(superseded by statute as stated in FAIC Secur., Inc. v United States, 247 US App DC
235, 768 F2d 352) and (superseded by statute on other grounds as stated in Fairview
Township v United States Environmental Protection Agency (CA3 Pa) 773 F2d 517, 23
Envt Rep Cas 1460, 15 ELR 20951); Society of Plastics Industry, Inc. v County of
Suffolk, 77 NY2d 761, 570 NYS2d 778, 573 NE2d 1034, 21 ELR 21413.
Footnote 42. Gillis v United States Dept. of Health & Human Services (CA6 Mich) 759
F2d 565; Dellums v U.S. Nuclear Regulatory Com., 274 US App DC 279, 863 F2d 968.
Footnote 43. M & M Transp. Co. v U. S. Industries, Inc. (SD NY) 416 F Supp 865, 76-1
USTC ¶ 9455, 38 AFTR 2d 76-5285; Florida v Weinberger (CA5 Fla) 492 F2d 488,
appeal after remand (CA5 Fla) 526 F2d 319 and (criticized on other grounds by Control
Data Corp. v Baldrige, 210 US App DC 170, 655 F2d 283, 28 CCF ¶ 81233); American
Civil Liberties Union v Federal Communications Com. (CA9) 523 F2d 1344.
A trade association representing securities brokers, underwriters, and investment bankers

had standing to challenge an agency's approval of the application of two banks to
establish or purchase discount brokerage subsidiaries which would offer discount
brokerage services at their branch offices and at other locations in and outside of their
home states, where association members competed with the applicant banks. Clarke v
Securities Indus. Ass'n, 479 US 388, 93 L Ed 2d 757, 107 S Ct 750, CCH Fed Secur L
Rep ¶ 93057, later proceeding (DC Dist Col) CCH Fed Secur L Rep ¶ 93211 and (not
followed on other grounds by Greer v Illinois Hous. Dev. Auth., 122 Ill 2d 462, 120 Ill
Dec 531, 524 NE2d 561).
Forms: Particular allegations supporting standing. 9 Federal Procedural Forms, L Ed,

Environmental Protection §§ 29:31-29:47.
Footnote 44. United States v Richardson, 418 US 166, 41 L Ed 2d 678, 94 S Ct 2940;

Sierra Club v Morton, 405 US 727, 31 L Ed 2d 636, 92 S Ct 1361, 3 Envt Rep Cas
2039, 2 ELR 20192.

Footnote 45. Dellums v U.S. Nuclear Regulatory Com., 274 US App DC 279, 863 F2d
968.
As to injury in fact, see §§ 444 et seq.
Footnote 46. Sierra Club v Froehlke (CA7 Wis) 486 F2d 946, 5 Envt Rep Cas 1920, 3
ELR 20823; Boating Indus. Ass'ns v Marshall (CA9 Cal) 601 F2d 1376; National Asso.
of Neighborhood Health Centers, Inc. v Mathews, 179 US App DC 135, 551 F2d 321.
A labor union had standing to challenge the validity of federal agency guidelines
interpreting statutes governing the eligibility of workers laid off because of competition
from imports to receive trade readjustment allowance benefits, where the guidelines
require state agencies which make such eligibility determinations to disregard certain
kinds of paid leave in determining whether workers have had a sufficient period of
qualifying employment. This action satisfied the general requirements for associational
standing, because: (1) individual union members who had not received benefits because
of the guidelines, and had not obtained a final state determination on their eligibility,
would have standing to challenge the guidelines in federal court; (2) the interests which
the action sought to protect are germane to the union's proper organizational purpose in
insuring that its members receive all available benefits; and (3) a challenge to the
guidelines did not require the courts to consider the individual circumstances of
aggrieved union members and thus did not require their individual participation.
International Union, United Auto., etc. v Brock, 477 US 274, 91 L Ed 2d 228, 106 S Ct
2523, 122 BNA LRRM 2657, 4 FR Serv 3d 1067, on remand 259 US App DC 457, 816
F2d 761, 106 CCH LC ¶ 12400 (not followed on other grounds by Noland v Sullivan
(DC Dist Col) 785 F Supp 179, 36 Soc Sec Rep Serv 738).
Footnote 47. Gillis v United States Dept. of Health & Human Services (CA6 Mich) 759
F2d 565.
§ 455 --Impairment of organization's ability to provide services
View Entire Section

The principle that where a defendant's practices have perceptibly impaired an

organizational plaintiff's ability to provide the services it was formed to provide, the
organization has suffered an injury in fact, 48 applies in the administrative realm. 49
For example, organizations established to assist mostly non-English speaking refugees in
their efforts to obtain asylum and avoid deportation alleged a sufficient frustration of
their goals by claiming that an agency's policy of not requiring full translations of all
exclusion or deportation proceedings required the organizations to expend resources for
such services they otherwise would spend in other ways. 50
Note, however, that actual interference with the implementation of the organization's
programs must be claimed before sufficient injury is present for standing. Thus, an
organizational plaintiff's allegation that the armed services' policy of issuing less than
honorable discharges to homosexuals was a drain on its resources was insufficient to
confer standing on the organization where it did not also allege that it had been hindered
in affecting its organizational goals. 51
Footnotes
Footnote 48. Havens Realty Corp. v Coleman, 455 US 363, 71 L Ed 2d 214, 102 S Ct
1114.
Footnote 49. El Rescate Legal Services, Inc. v Executive Office of Immigration Review
(CA9 Cal) 959 F2d 742, 92 CDOS 2038, 92 Daily Journal DAR 3186.
Footnote 50. El Rescate Legal Services, Inc. v Executive Office of Immigration Review
(CA9 Cal) 959 F2d 742, 92 CDOS 2038, 92 Daily Journal DAR 3186.
Footnote 51. Bittner v Secretary of Defense (DC Dist Col) 625 F Supp 1022.
§ 456 Environmental groups or organizations
View Entire Section

An environmental group or organization satisfies the injury in fact requirement 52

necessary to establish standing by alleging significant particularized harm to its members'
aesthetic, recreational, and economic interests as a result of agency actions. Plaintiffs
need only demonstrate the threat or potential of injury, and the injury itself need be
nothing more than a trifle. 53 But threatened environmental injury may be sufficiently
personal to satisfy standing requirements only if presented by plaintiffs with a
particularized injury–plaintiffs must identify a specific natural resource which they use
and enjoy, and which will be injured, or has been injured, by agency action. Unless
plaintiffs establish a sufficient likelihood of appearance of a threatened injury, the threat
of injury would be too amorphous or uncertain; it would be no greater for the plaintiff
than for any person simply opposed to the governmental action in question. 54 Mere
allegations of administrative irregularity, without allegations of substantive injury to the
organizational plaintiff or its members, also will not support a claim. 55
A generalized fear of the loss of a natural environment currently found in a particular

area is a generalized grievance, shared in substantially equal measure by all members of
the public, and is insufficient to give plaintiffs standing to challenge agency
determinations. 56 An injury must be imminent in order to support a party's standing to
sue. The concept of imminence, although somewhat elastic, cannot be stretched beyond
its purpose, which is to insure that the alleged injury is not too speculative for purposes
of Article III–that is, that the injury is certainly impending. Where there is no actual
harm, the imminence of harm, though not its precise extent, must be established. 57
The Supreme Court has rejected several nexus theories upon which environmental groups
based their standing to challenge agency action. An ecosystem nexus theory, under
which any person who uses any part of a contiguous ecosystem adversely affected by a
funded activity would have standing to challenge that activity even if the activity was
located a great distance away, is inconsistent with the requirement that a plaintiff
claiming injury from environmental damage must use the area affected by the challenged
activity and not an area roughly in the vicinity of the activity. Similarly, not every person
who has an interest in studying or seeing endangered animals anywhere on the globe has
standing, under an animal nexus approach to bring an action challenging the federal
administrative decision that threatens such animals. Not every person with a professional
interest in such animals has standing to sue pursuant to a vocational nexus approach.
There was no showing that one or more of the members of the organizations would be
directly affected by damage to the species, apart from the members' special interest in the
subject. An organization must adduce facts on the basis of which it could reasonably be
found that concrete injury to the organization's members in the United States is certainly
impending. 58
Footnotes
Footnote 53. National Wildlife Federation v Burford (CA9 Mont) 871 F2d 849, 19 ELR
20656, 107 OGR 488.
Annotation: Environmental and conservation groups' standing to challenge omission

or adequacy of environmental impact statement required by § 102(2)(C) of National
Environmental Policy Act of 1969 (42 USCS § 4332(2)(C)), 63 ALR Fed 446.
Footnote 54. Foundation on Economic Trends v Lyng (DC Dist Col) 680 F Supp 10, 18
ELR 21266.
Standing was not established where an organizational plaintiff's members have visited
and will visit federal lands throughout Alaska for recreational and study purposes, but the
plaintiffs were unable to name any specific lands that they intend to visit that either have
been or will be shifted from federal to state or native ownership. Wilderness Soc. v
Griles, 262 US App DC 277, 824 F2d 4.
Footnote 55. Cane Creek Conservation Authority v Orange Water & Sewer Authority
(MD NC) 590 F Supp 1123, 21 Envt Rep Cas 1994.
Footnote 56. Cane Creek Conservation Authority v Orange Water & Sewer Authority
(MD NC) 590 F Supp 1123, 21 Envt Rep Cas 1994.
1785, 22 ELR 20913, 6 FLW Fed S 374, in which members of organizations dedicated to
wildlife conservation sought to challenge an administrative regulation interpreting a
statute to mean that federal agencies need not consult with the Secretary of the Interior to
insure that any action authorized, funded, or carried out by the agencies in foreign nations
was not likely to jeopardize the continued existence of any endangered or threatened
species. Affidavits submitted by members of the organizations did not support a finding
of actual or imminent injury so as to establish the organizations' standing to maintain an
action where the affidavits stated that individual members had visited foreign lands to

observe certain species, planned to visit again in the future, and that projects in these
areas would adversely impact those species. The members' profession of an intent to
return, without any description of concrete plans, did not support a finding of imminent
injury, given that the members alleged only an injury at some indefinite future time, and
the acts necessary to make the injury happen were at least partly within the members'
own control.
1785, 22 ELR 20913, 6 FLW Fed S 374.
Law Reviews: Pierce, Lujan v Defenders of Wildlife: Standing as a Judicially

Imposed Limit on Legislative Power. 42 Duke LJ 1170 (April, 1993).
Breger, Defending Defenders: Remarks on Nichol and Pierce. 42 Duke LJ 1202

(April, 1993).
Roberts, Article III limits on statutory standing. 42 Duke LJ 1219 (April, 1993).
Sunstein, What's Standing after Lujan [Lujan v Defenders of Wildlife, Inc., 112 S Ct
2130 (1992)]? Of Citizen Suits, "Injuries," and Article III. 91 Mich L Rev 163
(November, 1992).
Lujan v National Wildlife Federation [ 110 S Ct 3177]: the Supreme Court tightens the
reins on standing for environmental groups. 40 Cath U L Rev 443 (Winter, 1991).
Lujan v National Wildlife Federation [ 110 S Ct 3177]: environmental plaintiffs are

tripped up on standing. 24 Conn L Rev 293 (1991).
Lujan v National Wildlife Federation [ 110 S Ct 3177]: standing and the two million
acre question. 23 Pac LJ 233 (October, 1991).
Lujan v National Wildlife Federation [ 110 S Ct 3177]: standing, the APA, and the
future of environmental litigation. 54 Alb L Rev 863 (1990)
Lujan v National Wildlife Federation [ 110 S Ct 3177]: non-user plaintiffs and the
standing requirement of injury in fact in environmental legislation. 5 J Envlt L & Litig
99 (1990).
§ 457 States and municipalities
View Entire Section

A state has standing to challenge the propriety of actions taken by a government official
where the state has a direct financial stake in the actions and it shows a "fairly traceable"
causal connection between the injury it claims and the conduct it challenges. 59 A
state also has standing to challenge the validity of a federal agency regulation which
conflicts with state law. 60 Similarly, a state agency has standing to challenge a
regulation which would potentially impair its interest in the effective discharge of
obligations imposed upon it by law: such potential impairment is the equivalent of an
injury in fact which would support the standing of a private plaintiff. 61 However,
state statutes cannot confer or control standing to sue in the federal courts. 62
A state does not have standing as parens patriae to bring an action against the federal
government on behalf of its citizens who might otherwise be unable to seek legal redress
for themselves. Although some state parens patriae suits against the federal government
have occasionally been allowed in the past, the most recent and well reasoned discussions
of this type of suit disallow its use against the federal government and reserve it instead
for the state to vindicate the rights of its citizens against private defendants. In addition,
generalized grievances which are shared by each citizen of the state fail to constitute
distinct, palpable injuries to the state. For example, no standing is found where a state
seeks an injunction to compel a federal agency to implement disaster relief programs, by
arguing that without the programs production would suffer, dislocating industries, forcing
unemployment up and state tax revenues down, giving the state increased responsibility
for the welfare and support of its affected citizens while tax revenues declined. The
unavoidable economic repercussions of virtually all federal policies, and the nature of the
federal union as embodying a division of national and state powers, suggests that
impairment of state tax revenues should not, in general, be recognized as sufficient injury
in fact to support state standing. 63
Municipalities may also qualify as aggrieved parties for purposes of standing to sue
under 5 USCS § 702, in proper cases. 64
Footnotes
Footnote 59. Watt v Energy Action Educational Foundation, 454 US 151, 70 L Ed 2d

309, 102 S Ct 205, 12 ELR 20237, 72 OGR 1.
Footnote 60. Florida v Weinberger (CA5 Fla) 492 F2d 488, appeal after remand (CA5
Fla) 526 F2d 319 and (criticized on other grounds by Control Data Corp. v Baldrige, 210
US App DC 170, 655 F2d 283, 28 CCF ¶ 81233).
Footnote 61. Washington Utilities & Transp. Com. v FCC (CA9) 513 F2d 1142, 7 Envt
Rep Cas 1561, cert den 423 US 836, 46 L Ed 2d 54, 96 S Ct 62 and (disapproved on
other grounds by Alfred L. Snapp & Son, Inc. v Puerto Rico, 458 US 592, 73 L Ed 2d
995, 102 S Ct 3260, 29 CCH EPD ¶ 32867) as stated in Nevada v Burford (CA9 Nev)
918 F2d 854, 32 Envt Rep Cas 1225, 21 ELR 20349, cert den (US) 114 L Ed 2d 458,
111 S Ct 2052, 33 Envt Rep Cas 1488.
Annotation: Governmental entity's standing to challenge omission or adequacy of

environmental impact statement required by § 102(2)(C) of National Environmental
Policy Act of 1969 (42 USCS § 4332(2)(C)), 64 ALR Fed 521.
Footnote 62. Arlington Heights v Metropolitan Housing Dev. Corp., 429 US 252, 50 L
Ed 2d 450, 97 S Ct 555.
Footnote 63. Iowa ex rel. Miller v Block (CA8 Iowa) 771 F2d 347, cert den 478 US

1012, 92 L Ed 2d 725, 106 S Ct 3312, 106 S Ct 3313, later proceeding (CA8 Iowa) 857
F2d 1195.
Footnote 64. Scenic Hudson Preservation Conference v Federal Power Com. (CA2) 354
F2d 608, 1 Envt Rep Cas 1084, 1 ELR 20292, cert den 384 US 941, 16 L Ed 2d 540, 86
S Ct 1462, 2 Envt Rep Cas 1909; Aguayo v Richardson (SD NY) 352 F Supp 462, mod
on other grounds (CA2 NY) 473 F2d 1090, cert den 414 US 1146, 39 L Ed 2d 101, 94
S Ct 900; Road Review League v Boyd (SD NY) 270 F Supp 650.
e. Hobbs Act Standing for Seeking Review in Court of Appeals [458-465]
§ 458 "Party" requirement, generally
View Entire Section

The Administrative Orders Review Act, 65 also known popularly as the Hobbs Act,
provides that any party aggrieved by a final agency order may, within 60 days after its
entry, file a petition to review that order in the Court of Appeals. 66 In drafting the
special review provisions of the Hobbs Act, Congress did not adopt the "person
aggrieved" standard used in the general judicial review provision of the Administrative
Procedure Act, 67 but chose instead the term "party aggrieved." To give meaning to
that apparently intentional variation, the court must read "party" as referring to a party
before the agency proceeding in question. 68 Thus, nonparties may not seek judicial
review in the Courts of Appeals under the Hobbs Act. 69 An exception to the rule
requiring party status is allowed for cases where the agency action is attacked as
exceeding the power of the agency. 70
Petitioners who were not parties to the proceeding culminating in a particular order
cannot seek direct appellate review of that order. 71 Thus, a labor union does not attain
party aggrieved status by submitting an affidavit in support of a railway association
which had participated in the agency proceedings that resulted in the order complained
of, where the labor union did not participate in those proceedings. 72 Similarly, a
petitioner who does not participate in the rulemaking proceeding does not qualify as a
party aggrieved. 73
Allowing an organization's member that did not participate actively in the agency
proceedings to bring an appeal would allow a membership organization to search for and
select a forum in which it is most likely to obtain a favorable result, merely selecting as
petitioner a member who has venue in the desired circuit. Congress did not intend to
give disappointed participants in the administrative process such a wide selection of
forums for judicial review. 74
The Hobbs Act makes no distinction between orders which promulgate rules and orders
in adjudicative proceedings. Therefore, the contention that a party need not participate in
agency proceedings that result in rules of general and continuing effect to be a party
aggrieved has been rejected. 75
Footnotes
Footnote 68. Simmons v Interstate Commerce Com., 230 US App DC 236, 716 F2d 40.
Footnote 69. Clark & Reid Co. v United States (CA1) 804 F2d 3, later proceeding 271
US App DC 241, 851 F2d 1468, 1988-2 CCH Trade Cases ¶ 68139; American Civil
Liberties Union v FCC (CA1) 774 F2d 24; American Trucking Assos. v Interstate
Commerce Com. (CA5) 673 F2d 82, cert den 460 US 1022, 75 L Ed 2d 493, 103 S Ct
1272, later proceeding (CA5) 728 F2d 254 and appeal after remand (CA5) 770 F2d 535;
Alabama Power Co. v Interstate Commerce Com., 271 US App DC 394, 852 F2d 1361,
12 FR Serv 3d 102; Simmons v Interstate Commerce Com., 230 US App DC 236, 716
F2d 40.
It is incumbent upon an interested person to act affirmatively to protect himself in

administrative proceedings, and that person should not be entitled to sit back and wait
until all interested persons who do so act have been heard, then complain that he has not
been properly treated. American Trucking Assos. v Interstate Commerce Com. (CA5)
673 F2d 82, cert den 460 US 1022, 75 L Ed 2d 493, 103 S Ct 1272, later proceeding
(CA5) 728 F2d 254 and appeal after remand (CA5) 770 F2d 535.
Footnote 71. Sierra Club v United States Nuclear Regulatory Com. (CA9) 825 F2d 1356,
18 ELR 20020.
Footnote 72. Packard Elevator v Interstate Commerce Com. (CA8) 808 F2d 654, 124
BNA LRRM 2210, 88 ALR Fed 335, cert den 484 US 828, 98 L Ed 2d 59, 108 S Ct
98, 126 BNA LRRM 2496.
Footnote 73. Professional Reactor Operator Soc. v United States Nuclear Regulatory
Com., 291 US App DC 219, 939 F2d 1047.
US App DC 241, 851 F2d 1468, 1988-2 CCH Trade Cases ¶ 68139.
Footnote 75. Gage v United States Atomic Energy Com., 156 US App DC 231, 479 F2d
1214, 5 Envt Rep Cas 1402, 3 ELR 20479.
§ 459 --Effect of denial of intervention
View Entire Section

The degree of participation necessary to achieve party status varies according to the
formality with which the underlying agency proceeding was conducted. When
intervention in agency adjudication or rulemaking is prerequisite to participation therein,
standing to seek judicial review of the outcome will be denied to those who did not
seek–or who sought but were denied–leave to intervene. In less structured administrative
proceedings, however, party status has been found when the petitioner has made a full
presentation of views to the agency. 76
Although a litigant may not be considered a party aggrieved if it did not participate in the
administrative proceeding leading to the order for which judicial review is sought, 77 it
may still be entitled to enter the proceedings if intervention was sought but improperly
denied, such as where an agency abused its discretion in denying an application to
intervene. The agency may be directed to permit the intervention and to reopen the order
for reconsideration. 78
Footnotes
Footnote 76. Water Transport Asso. v Interstate Commerce Com., 260 US App DC 390,
819 F2d 1189.
Footnote 78. S. C. Loveland Co. v United States, 175 US App DC 221, 534 F2d 958.
§ 460 --Effect of lack of notice of agency action
View Entire Section

An exception to the requirement that a petitioner for judicial review of an agency order
have participated in the proceeding that resulted in the order for which review is sought
to be a party aggrieved 79 exists where the order was promulgated without notice or
comment. To bar direct review in such circumstances would create a dangerous
precedent, as it would grant agencies the power to remove regulations from direct review
by simply promulgating them without notice and comment. 80
 Practice guide: Despite the rule that 28 USCS § 2344 limits judicial review of
agency actions to participants in the proceedings which gave rise to the action
complained of, this does not necessarily mean that a nonparty adversely affected by a
decision of an administrative agency has no recourse. For example, if an agency
should purport to invalidate a certificate of public interest, convenience, and necessity
in a footnote to a case involving another party, without notice to the party losing its
interest, the party losing its interest could take either of two approaches: (1) intervene
before the commission as soon as it learned of the action, file the petition for rehearing,
and then seek judicial review; or (2) simply ignore the order and resist during the
enforcement proceedings, under the same principle that allows a party to ignore a
judicial proceeding when the party believes a court lacks jurisdiction, then to resist
enforcement of the court's order. 81
Footnotes
Footnote 80. North American Sav. Asso. v Federal Home Loan Bank Bd. (CA8 Mo) 755
F2d 122; Natural Resources Defense Council v Nuclear Regulatory Com., 215 US App
DC 32, 666 F2d 595, 12 ELR 20897.
Footnote 81. Re Chicago, M., S. P. & P. R. Co. (CA7 Ill) 799 F2d 317, 123 BNA LRRM
2184.
§ 461 --Exception for frontal challenges to agency action
View Entire Section

While as a general rule a person must participate in an agency proceeding to be a party

aggrieved and therefore eligible to seek review of a final order being issued as a result of
such proceeding, 82 a person can appeal an agency action, even if not a party to the
original agency proceeding, if the action is attacked as exceeding the power of the
agency's commission. 83 Similarly, an appeal would be allowed if a person, not a
party to the agency proceeding, challenged the constitutionality of the statute conferring
authority on the agency. 84
Footnotes
Footnote 83. Wales Transp., Inc. v Interstate Commerce Com. (CA5) 728 F2d 774;
American Trucking Assos. v Interstate Commerce Com. (CA5) 673 F2d 82, cert den 460
US 1022, 75 L Ed 2d 493, 103 S Ct 1272, later proceeding (CA5) 728 F2d 254 and
 Caution: This position has been rejected in another circuit. A suggestion that
nonparties may obtain review of orders that exceed the power of the agency is dubious
for several reasons. One is that "exceeding the power" of the agency may be a
synonym for "wrong," so that the statute then would preclude review only when there
is no reason for review anyway. Another is that 28 USCS § 2344 is the source of the
court's jurisdiction, which means power to decide. A court may not decide a case just
because that would be a good idea; power must be granted, not assumed. Re Chicago,

M., S. P. & P. R. Co. (CA7 Ill) 799 F2d 317, 123 BNA LRRM 2184.
Footnote 84. American Trucking Assos. v Interstate Commerce Com. (CA5) 673 F2d 82,
cert den 460 US 1022, 75 L Ed 2d 493, 103 S Ct 1272, later proceeding (CA5) 728 F2d
254 and appeal after remand (CA5) 770 F2d 535.
§ 462 Necessity of "aggrievement"
View Entire Section

Courts called upon to determine whether a party has met the statutory requirement of
aggrievement 85 have engaged in traditional standing doctrine analysis, incorporating
traditional Article III and prudential standing analysis. 86
A party must allege that it has suffered a personal injury fairly traceable to the agency's
order and likely to be redressed by the requested relief. The party must have suffered a
distinct and palpable personal injury–it must allege more than that it suffered a
theoretical or abstract injury from the agency's allegedly having acted contrary to
statutory mandates in taking the action it did. The causation and redressability
requirements tend to overlap, but causation concerns the injury's relationship with the
allegedly unlawful conduct, whereas redressability concerns that with the requested
relief. For example, an allegation of revenue loss and increased cost resulting from
discontinued use of one's property because of an agency approved merger constitutes a
direct relationship between the alleged injury and the claim sought to be adjudicated.
Thus, a party claiming this has sufficiently alleged that it is an aggrieved party with
personal standing to challenge the agency's approval of the merger. 87
An organization which has petitioned an agency for a declaratory ruling is aggrieved by

an agency ruling that does not support the organization's position. 88
Footnotes
Footnote 86. Kansas City Southern Industries, Inc. v ICC (CA5) 902 F2d 423, 134 BNA
LRRM 2447; Water Transport Asso. v Interstate Commerce Com., 260 US App DC 390,
819 F2d 1189.
Footnote 87. Kansas City Southern Industries, Inc. v ICC (CA5) 902 F2d 423, 134 BNA
LRRM 2447.
An organization which seeks to promote access by African Americans to the mass media
was aggrieved by an order which departs from a minority preference policy in awarding
AM foreign clear channels, where the policy affects the ability of the organization
membership to obtain broadcast licenses. National Black Media Coalition v FCC (CA2)
791 F2d 1016.
A party was aggrieved where an agency decision grants an application to broaden the
territories in which a freight express company may operate, creating an overlap of
authority and actual operations with the petitioner such that it would be exposed to the
competing operations of the freight express company in the same territory; the overlap in
actual operations created an exposure to competition which established an injury in fact.
B.J. McAdams, Inc. v Interstate Commerce Com., 225 US App DC 332, 698 F2d 498.
Footnote 88. Council for Employment & Economic Energy Use v FCC (CA1) 575 F2d
311, 3 Media L R 2467, cert den 439 US 911, 58 L Ed 2d 257, 99 S Ct 280, 4 Media L
R 1592.
§ 463 --Associational standing derivative of membership
View Entire Section

An association's status as a party aggrieved under the Hobbs Act 89 may be derived
from its members. 90 Accordingly, an association seeking review of certain agency
orders dealing with licenses for construction of a nuclear power plant has standing to
seek review where some members of the association live near enough to the nuclear site
to be endangered if it became unsafe, and if the safety problems were not resolved before
construction. 91
A labor union is an aggrieved party which may seek judicial review of a decision of an
agency upholding the validity of a regulation which allowed federal agencies to place
seasonal governmental employees in nonduty, nonpay status without affording them
certain statutory protections 92 where the individual employees affected were aggrieved
by this decision. 93
Footnotes
Footnote 90. Rockford League of Women Voters v United States Nuclear Regulatory
Com. (CA7) 679 F2d 1218, 19 Envt Rep Cas 1022, 12 ELR 21018 (criticized on other
grounds by Lorion v United States Nuclear Regulatory Com., 229 US App DC 440, 712
F2d 1472, 19 Envt Rep Cas 1730, 14 ELR 20012); National Treasury Employees Union
v United States Merit Systems Protection Bd., 240 US App DC 51, 743 F2d 895.
Footnote 91. Rockford League of Women Voters v United States Nuclear Regulatory
Com. (CA7) 679 F2d 1218, 19 Envt Rep Cas 1022, 12 ELR 21018 (criticized on other
grounds by Lorion v United States Nuclear Regulatory Com., 229 US App DC 440, 712
F2d 1472, 19 Envt Rep Cas 1730, 14 ELR 20012).

Footnote 93. National Treasury Employees Union v United States Merit Systems
Protection Bd., 240 US App DC 51, 743 F2d 895.
§ 464 --Effect of failure to file comments in agency proceeding
View Entire Section

Failure to file comments to proposed administrative action precludes a finding that

parties who subsequently seek judicial review of the administrative action are parties
aggrieved. 94 For example, a railroad line whose trackage rights are awarded by a
federal commission to another rail carrier is not an aggrieved party where, although the
railroad line had actual notice of the proceedings before the commission, it declined to
file any comments. 95 A person who filed comments in an agency proceeding relating
to annual reporting requirements of certain rail carriers is not a party aggrieved who may
seek judicial review of rules regarding reporting requirements of motor carriers where the
person had filed no comments in the proceedings involving the motor carriers. 96
Footnotes
Footnote 94. American Civil Liberties Union v FCC (CA1) 774 F2d 24.
Footnote 95. Re Chicago, M., S. P. & P. R. Co. (CA7 Ill) 799 F2d 317, 123 BNA LRRM
2184, later proceeding (ND Ill) 1987 US Dist LEXIS 2461, later proceeding (CA7 Ill)
827 F2d 112, 126 BNA LRRM 2348, later proceeding (CA7 Ill) 830 F2d 758, 87-2
USTC ¶ 9659, 60 AFTR 2d 87-5728, later proceeding (CA7 Wis) 840 F2d 546, later
proceeding (ND Ill) 1988 US Dist LEXIS 9089, later proceeding (ND Ill) 1988 US Dist
LEXIS 9477, later proceeding (ND Ill) 1988 US Dist LEXIS 10142, later proceeding
(ND Ill) 1988 US Dist LEXIS 10309, later proceeding (ND Ill) 1988 US Dist LEXIS
14917, later proceeding (CA7 Ill) 882 F2d 1188, 132 BNA LRRM 2260, later proceeding
(CA7 Ill) 891 F2d 159, 19 BCD 1787, 133 BNA LRRM 2126, reh den, en banc (CA7)
1990 US App LEXIS 1540, later proceeding (ND Ill) 1990 US Dist LEXIS 3960, later
proceeding (ND Ill) 1990 US Dist LEXIS 15456, later proceeding (ND Ill) 1991 US Dist
LEXIS 3429, later proceeding (ND Ill) 1991 US Dist LEXIS 5492, later proceeding (ND
Ill) 1991 US Dist LEXIS 10996, later proceeding (ND Ill) 130 BR 521, later proceeding
(ND Ill) 137 BR 271, affd (CA7 Ill) 974 F2d 775, 23 BCD 559, 35 Envt Rep Cas 1377,
CCH Bankr L Rptr ¶ 74794, 23 ELR 20009 and affd (CA7 Ill) 966 F2d 1143, 23 BCD
206, 35 Envt Rep Cas 1001, CCH Bankr L Rptr ¶ 74739, 22 ELR 21313 and affd (CA7
Ill) 961 F2d 1260, CCH Bankr L Rptr ¶ 74551, later proceeding (ND Ill) 1992 US Dist
LEXIS 6174, later proceeding (ND Ill) 1992 US Dist LEXIS 15161, later proceeding
(ND Ill) 1992 US Dist LEXIS 16338, affd in part and revd in part, cause remanded (CA7
Ill) 3 F3d 200, 24 BCD 989, 37 Envt Rep Cas 1561, 23 ELR 21352 and revd, remanded
(CA7 Ill) 6 F3d 1184, CCH Bankr L Rptr ¶ 75481 and cert den 481 US 1068, 95 L Ed
2d 869, 107 S Ct 2460, 126 BNA LRRM 2336 and (criticized by Merchants Fast Motor
Lines v ICC (CA5) 5 F3d 911).
Footnote 96. Simmons v Interstate Commerce Com., 230 US App DC 236, 716 F2d 40.
§ 465 --Federal agency as aggrieved party
View Entire Section

A federal agency may be a party aggrieved under the Hobbs Act 97 and therefore have
standing to seek judicial review of another agency's order. A petitioning agency is
aggrieved in the ordinary sense of the word where the final order is adverse to its
interpretation of law. Nothing in the Act's language or history indicates that Congress
meant to preclude such review, despite an agency's possession of the essential attributes
of a party aggrieved. 98
Footnotes
Footnote 98. United States v Federal Maritime Com., 210 US App DC 134, 655 F2d 247.
2. Permissible or Necessary Parties [466]
§ 466 Waiver of sovereign immunity; United States, federal agency or personnel as

party
View Entire Section

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The general rule is that the United States retains its sovereign immunity from suit unless
it has expressly waived immunity. 99 Sovereign immunity extends to agency officials
named in their official capacities. 1 Thus, even though the plaintiff names the head of a
federal agency as a nominal defendant in the suit, sovereign immunity is determined not
by the party named as the defendant but by the issues presented and the effect of the
judgment. If the relief sought against a federal official in fact operates against the
sovereign, then the action must be deemed as one against the sovereign. 2
The Administrative Procedure Act 3 has the effect of waiving sovereign immunity in
actions for review of agency action involving a federal question 4 in instances where
relief other than money damages is requested. 5 The APA: (1) provides for the
removal of the sovereign immunity defense as a bar to judicial review of federal
administrative action otherwise subject to judicial review, 6 and (2) permits a plaintiff to
name the United States, the agency, or the appropriate officer as a defendant. 7 If no

special statutory review proceeding is applicable, the action for judicial review may be
brought against the United States, the agency by its official title, or the appropriate
officer. 8
Where money damages is requested, however, sovereign immunity remains a bar to the
assertion of federal question jurisdiction. 9
 Caution: Although Congress did not explicitly grant federal courts exclusive
jurisdiction to entertain APA suits, Congress did implicitly confine jurisdiction to the
federal courts when it limited the waiver of sovereign immunity contained in the APA
10 to claims brought "in a court of the United States." If Congress had intended the
state courts to be proper for suits seeking judicial review under the APA, Congress
would have waived sovereign immunity for suits in state courts as well. By refusing to
waive sovereign immunity for APA actions in the state courts, Congress has implicitly
vested exclusive jurisdictions over these actions in the federal courts. It is not proper
to permit a state court to review the decisions of federal agencies under the APA when
in fact the APA provides no independent basis for federal jurisdiction and should
provide no independent cause of action in state court either. 11
§ 466 ----Waiver of sovereign immunity; United States, federal agency or personnel

as party [SUPPLEMENT]
Case authorities:
Claimant of $32,000 in currency confiscated from his apartment at time of his arrest on
state drug charges may challenge administrative forfeiture of currency under 5 USCS §
702, where claimant contends DEA did not give him proper notice of forfeiture
proceeding, because § 702 waives sovereign immunity of U.S. to challenge to
constitutional adequacy of agency's procedures. Montgomery v Scott (1992, WD NY)
802 F Supp 930.
Towns' suit against U.S., seeking to invalidate its purchase of land from Nature
Conservancy on behalf of their tax base, must be dismissed, where relevant federal
statute mandates consent to land acquisition by state legislature but not towns, because
towns do not fall within "zone of interest" necessary to establish waiver of sovereign
immunity pursuant to 5 USCS § 702. Town of Sherburne v Espy (1994, DC Vt) 861 F
Supp 16.
Employee of military base brought claim for improper discharge, seeking reinstatement
and damages, but jurisdiction based on Administrative Procedure Act, which waives
sovereign immunity, provides for nonmonetary remedies only. Helsabeck v United States
(1993, ED NC) 821 F Supp 404.
Court had subject matter jurisdiction, where debtor failed to plead waiver of sovereign
immunity, because it is clear that through 5 USCS § 551 U.S. waived sovereign
immunity for review of agency actions. Blake v Cisneros (1993, SD Tex) 837 F Supp
834.
Waiver of immunity under 5 USCS § 702 does not apply to quiet title action challenging
merits of underlying tax assessment. Huff v United States (1993, CA9 Cal) 10 F3d 1440,

93 CDOS 8724, 93 Daily Journal DAR 14945, 93- 2 USTC ¶ 50633, 72 AFTR 2d
93-6682, 93 TNT 246- 9.
United States was not immune from suit involving dispute over which group of Indians
were beneficial owners of property purchased in trust for tribe; 5 USCS § 702 waives
sovereign immunity in nonmonetary actions. Pit River Home & Agric. Coop. Ass'n v
United States (1994, CA9 Cal) 30 F3d 1088, 94 CDOS 5552, 94 Daily Journal DAR
10178, 29 FR Serv 3d 755.
APA does not waive sovereign immunity for contract claims seeking equitable relief;
moreover, it would make little sense to grant jurisdiction over claim pursuant to 5 USCS
§ 704 on ground that jurisdiction for that same claim was expressly or impliedly
forbidden under § 702. North Star Alaska v United States (1994, CA9 Alaska) 14 F3d 36,
94 CDOS 343, 94 Daily Journal DAR 580, petition for certiorari filed (Apr 15, 1994).
5 USCS § 504 does not waive sovereign immunity as to subcontractor who successfully
sues United States through sponsorship of general contractor. Southwest Marine ex rel.
Universal Painting & Sandblasting Corp. v United States (1994, CA9 Cal) 43 F3d 420,
94 CDOS 9412, 94 Daily Journal DAR 17418, 39 CCF ¶ 76728.
Footnotes
Footnote 99. Newhouse v Probert (WD Mich) 608 F Supp 978; Overton v United States
(CA10 NM) 925 F2d 1282, 91-1 USTC ¶ 50265, 67 AFTR 2d 91-614.
Footnote 1. Sprecher v Graber (CA2 NY) 716 F2d 968, CCH Fed Secur L Rep ¶ 99476,
later proceeding (CA2 NY) 772 F2d 16, CCH Fed Secur L Rep ¶ 92307, later proceeding
(SD NY) 1987 US Dist LEXIS 548.
Footnote 2. New Mexico v Regan (CA10 NM) 745 F2d 1318, cert den 471 US 1065, 85
L Ed 2d 496, 105 S Ct 2138 and (criticized on other grounds by Maryland Dept. of
Human Resources v Department of Health & Human Services, 246 US App DC 180, 763
F2d 1441) and transf to 11 Cl Ct 429, 59 AFTR 2d 87-1283, affd (CA FC) 831 F2d 265,
96 OGR 676.
Footnote 5. Bowen v Massachusetts, 487 US 879, 101 L Ed 2d 749, 108 S Ct 2722;

Burgos v Milton (CA1 Puerto Rico) 709 F2d 1; CETA Workers Organizing Committee v
New York (CA2 NY) 617 F2d 926 (criticized by Black v Broward Employment &
Training Admin. (CA11 Fla) 846 F2d 1311, 60 BNA FEP Cas 1351, 46 CCH EPD ¶
38033); Johnsrud v Carter (CA3 Pa) 620 F2d 29, 10 ELR 20285; Jaffee v United States
(CA3 NJ) 592 F2d 712, on remand (DC NJ) 468 F Supp 632, affd (CA3 NJ) 663 F2d
1226, cert den 456 US 972, 72 L Ed 2d 845, 102 S Ct 2234 and cert den 441 US 961,
60 L Ed 2d 1066, 99 S Ct 2406; Collyard v Washington Capitals (DC Minn) 477 F Supp
1247; Assiniboine & Sioux Tribes of Ft. Peck Indian Reservation v Board of Oil & Gas
Conservation (CA9 Mont) 792 F2d 782 (sovereign immunity waived for action under 28
USCS § 1362, providing that the District Courts have jurisdiction of actions brought by

Indian tribe or band with governing body duly recognized by Secretary of the Interior
wherein matter of controversy rises under Constitution, laws or treaties of the United
States); White v Commissioner (DC Colo) 537 F Supp 679, 83-1 USTC ¶ 9105, 50
AFTR 2d 82-6004; Panola Land Buyers Asso. v Shuman (CA11 Ala) 762 F2d 1550, 2
FR Serv 3d 546; Hubbard v Administrator, EPA (App DC) 299 US App DC 143, 982
F2d 531; Maryland Dept. of Human Resources v Department of Health & Human
Services, 246 US App DC 180, 763 F2d 1441; Association of Nat. Advertisers, Inc. v
FTC, 199 US App DC 29, 617 F2d 611, 1979-2 CCH Trade Cases ¶ 62950.
Waiver of sovereign immunity in 5 USCS § 702 is not dependent on application of the

procedures and review standards of the APA, but is dependent only on the suit against the
government being one for nonmonetary relief. Red Lake Band of Chippewa Indians v
Barlow (CA8 Minn) 846 F2d 474.
Annotation: Doctrine of sovereign immunity as precluding or limiting application of

judicial review provisions of Administrative Procedure Act (5 USCS §§ 701 et seq.),
30 ALR Fed 714.
Footnote 6. B.K. Instrument, Inc. v United States (CA2 NY) 715 F2d 713, 31 CCF ¶
71390.
The legislative history of § 702 demonstrates that Congress did not intend to waive
sovereign immunity where a matter is statutorily committed to agency discretion or
where another statute provides a form of relief which is expressly or impliedly exclusive.
Sprecher v Graber (CA2 NY) 716 F2d 968, CCH Fed Secur L Rep ¶ 99476, later
proceeding (CA2 NY) 772 F2d 16, CCH Fed Secur L Rep ¶ 92307, later proceeding (SD
NY) 1987 US Dist LEXIS 548.
Footnote 7. Alberta Gas Chemicals, Inc. v Blumenthal, 82 Cust Ct 77, 467 F Supp 1245.
Property owners' action challenging procedures used in forfeiture of U.S. currency will
not be dismissed, even though owners named DEA as party defendant because § 703
allows action against agency by its official title. Sarit v Drug Enforcement Admin. (DC
RI) 759 F Supp 63, reconsideration dismd (DC RI) 796 F Supp 55, affd (CA1 RI) 987
F2d 10, cert den (US) 126 L Ed 2d 195, 114 S Ct 241.
Footnote 9. Sterling Nat. Bank & Trust Co. v Teltronics Services, Inc. (SD NY) 471 F
Supp 182, 26 CCF ¶ 83749; Salzman v Stetson (WD Pa) 472 F Supp 848; Parkview
Corp. v Department of Army, Corps of Engineers, etc. (ED Wis) 490 F Supp 1278, 14
Envt Rep Cas 2115; Eric v Secretary of United States Dept. of Housing & Urban
Development (DC Alaska) 464 F Supp 44.
As to the general unavailability of money damages on judicial review of administrative

action, see § 558.
Footnote 11. Federal Nat. Mortg. Asso. v Le Crone (CA6 Ohio) 868 F2d 190, cert den
493 US 938, 107 L Ed 2d 324, 110 S Ct 335; Aminoil U. S. A., Inc. v California State

Water Resources Control Bd. (CA9 Cal) 674 F2d 1227, 17 Envt Rep Cas 1702, 12 ELR
20594 (superseded by statute on other grounds as stated in Beeman v Olson (CA9 Cal)
828 F2d 620) and (superseded by statute on other grounds as stated in Guidry v Durkin
(CA9 Cal) 834 F2d 1465, 1988 AMC 1979).
C. Scope of Review [467-547]
Research References
5 USCS §§ 551, 553, 557, 557,
1 CFR § 305.74-4
Model State Administrative Procedure Act (l961) §§ 1(1), 15; Model State
Administrative Procedure Act (1981) §§ 1-102, 5-102(b), 5-103, 5-107, 5-112 through
5-114, 5-116
ALR Digests: Administrative Law §§ 160-169, 171-211
ALR Index: Administrative Law; Exhaustion of Remedies; Primary Jurisdiction
Doctrine
1A Federal Procedural Forms, L Ed, Administrative Procedure §§ 2:241, 2:246; 2
Federal Procedural Forms, L Ed, Appeal, Certiorari, and Review §§ 3:430, 3:431,
3:438, 3:471, 3:473
1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Forms 201, 203-207, 212-214,
218-220, 224, 226-229, 245, 263, 267, 271-277, 321-323, 351, 372, 381-384
1. Requirement of Agency Action [467-471]
§ 467 Agency defined
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Go to Supplement
The term "agency," for purposes of the judicial review provisions of the Administrative
Procedure Act, 12 subject to specific statutory exclusions, 13 means each authority of
the Government of the United States, whether or not it is within or subject to review by
another agency. 14 The test for determining whether an arm of the government has
sufficient authority to justify classifying it as an agency under the APA is whether that
governmental arm has the authority to act with the sanction of the government behind it.
15
The President of the United States is not an "agency" within the meaning of the APA.
Out of respect for the separation of powers and the unique constitutional position of the
President, the APA's textual silence as to whether the President is excluded or included
from the APA's purview is not enough to subject the President to its provisions. An
express statement by Congress would be required before making the assumption that
Congress intended the President's performance of his statutory duties to be reviewed for
abuse of discretion under 5 USCS § 704. 16

 Comment: Under the l981 Model State Administrative Procedure Act, "agency"
means a board, commission, department, officer, or other administrative unit of the
state, including the agency head, and one or more members of the agency head or
agency employees or other person directly or indirectly purporting to act on behalf or
under the authority of the agency head. The term does not include the legislature, the
courts, the Governor, or the Governor in the exercise of powers derived directly and
exclusively from the constitution of the state. Agency does not include a political
subdivision of the state or any of the administrative units of a political subdivision, but
does include a board, commission, department, officer, or other administrative unit
created or appointed by joint or concerted action of any agency and one or more
political subdivisions of the state or any of their units. 17 The 1961 Model Act defines
agency as each state [board, commission, department, or officer], other than the
legislature or the courts, authorized by law to make rules or to determine contested
cases. 18
§ 467 ----Agency defined [SUPPLEMENT]
Practice Aids: Petition or application–Allegation–Matters of great public interest

involved. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 281.
Footnotes
Footnote 12. 5 USCS §§ 701-706.
Footnote 13. 5 USCS § 701(b)(1)(A)-(H).
For a complete discussion of the definition of agency, see §§ 25, 26.
W. B. Fishburn Cleaners, Inc. v Army & Air Force Exchange Service (ND Tex) 374 F
Supp 162; Ellsworth Bottling Co. v United States (WD Okla) 408 F Supp 280, 22 CCF ¶
80513.
5553, 92 Daily Journal DAR 8897, 6 FLW Fed S 650.
Footnote 17. Model State Administrative Procedure Act (l981) § 1-102(1).
Footnote 18. Model State Administrative Procedure Act (l961) § 1(1).
§ 468 Agency action defined
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Under the judicial review provisions of the Administrative Procedure Act, 19 agency
action made reviewable by statute and final agency action, 20 for which there is no
other adequate remedy in a court, may be reviewed. 21 Agency action, in this context,
includes the whole or part of an agency rule, 22 order, 23 license, 24 sanction, 25
relief, 26 or the equivalent or denial thereof, or failure to act. 27 Clearly, when an
administrative agency promulgates a rule through its usual rulemaking proceedings; 28
issues an order pursuant to an adjudication; 29 grants, renews, denies, revokes,
suspends, annuls, withdraws, limits, amends, modifies, or conditions a license; 30 grants
or denies relief; 31 or imposes a sanction, 32 agency action has occurred. 33
However, the definitions contained in 5 USCS § 551 are not always easily applied to a
given fact situation. 34 An agency's action may not be an order, even though the
agency so denominates it, 35 and vice versa. 36 Likewise, when an agency issues an
interpretation of its organic statute, it has issued a rule, regardless of the terminology
used to describe that action. 37
Although agency inaction, as well as action, may be reviewable in a proper case, 38 a

matter is ordinarily not ripe for judicial intervention while the agency is studying whether
to take action. 39
Congress did not intend every action taken by an employee of a federal agency to be
reviewable. 40 Where a course of action does not constitute agency action as defined
in 5 USCS § 551, it is not subject to judicial review under the provisions of 5 USCS §
702. 41 Nor will review be proper where no particular federal agency is identified as the
one responsible for the alleged improper action. 42
 Comment: Under the l981 Model State Administrative Procedure Act, agency action
is: (1) the whole or a part of a rule or an order; (2) the failure to issue a rule or an
order; or (3) an agency's performance of, or failure to perform, any other duty,
function, or activity, discretionary or otherwise. 43
§ 468 ----Agency action defined [SUPPLEMENT]
Case authorities:
Punk rocker's complaint for injunctive relief under 5 USCS § 702 is dismissed for failure
to state claim upon which relief can be granted, where he alleges that agencies and
officers of U.S. government harmed him by ordering infiltration of organizations to
which he belonged and attempting to distort their actions, because he did not identify any
specific agency action, as defined in 5 USCS § 551 (13), which had a causal connection
to any specific harm to him. Platsky v Studeman (1993, ED NY) 829 F Supp 567.
Importers have standing to bring action against Department of Commerce, International

Trade Commission, and antidumping petitioner for injuries claimed from petitioner's
repeated filing and withdrawal of antidumping petitions, where no final agency action
was taken pursuant to 28 USCS § 2631(i), because administrative inaction has precisely
same impact on rights of parties as denial of relief, and agency inaction may be

tantamount to final agency action. Associacao Dos Industriais de Cordoaria E Redes v
United States (1993, CIT) 828 F Supp 978, 15 BNA Intl Trade Rep 1994.
Footnotes
Footnote 19. 5 USCS §§ 701-706.
Forms: Complaint–Against federal agency–General form [5 USCS § 703]. 1A

Federal Procedural Forms, L Ed, Administrative Law § 2:241.
Petition in federal court for review of administrative order. 1A Am Jur Pl & Pr Forms
Law Reviews: Garrity-Rokous. Preserving review of undeclared programs: a

statutory redefinition of final agency action. 101 Yale Law Journal 643-662
(December, 1991).
Annotation: What constitutes agency "action," "order," "decision," "final order," "final
decision," or the like, within meaning of federal statutes authorizing judicial review of
administrative action–Supreme Court cases, 47 L Ed 2d 843.
den 405 US 1074, 31 L Ed 2d 808, 92 S Ct 1495.

den 405 US 1074, 31 L Ed 2d 808, 92 S Ct 1495.
Footnote 35. National Ornament & Electric Light Christmas Asso. v Consumer Product
Safety Com. (CA2 NY) 526 F2d 1368.
Footnote 36. Crowther v Seaborg (DC Colo) 312 F Supp 1205, 1 Envt Rep Cas 1199.
274, 443 F2d 689.
An agency's conduct in refusing to act, in disregard of its duty to act, is subject to review.
EEOC v Bray Lumber Co. (MD Ga) 478 F Supp 993, 21 BNA FEP Cas 510, 22 CCH
EPD ¶ 30574.
Footnote 39. Committee against Railroad Relocation v Adams (ED Ark) 471 F Supp 142,
9 ELR 20752.
Footnote 40. International Engineering Co., Div. of A-T-O, Inc. v Richardson, 167 US
App DC 396, 512 F2d 573, 21 CCF ¶ 83870, cert den 423 US 1048, 46 L Ed 2d 636, 96
S Ct 774.
Footnote 41. People for Environmental Progress v Leisz (CD Cal) 373 F Supp 589, 6
Footnote 42. Bat Rentals, Inc. v United States (CA9 Nev) 479 F2d 43.
Footnote 43. Model State Administrative Procedure Act (l981) § 1-102(2).
§ 469 Type of agency action as affecting scope of review
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A classification of a particular power or function of an administrative agency as judicial,

quasi-judicial, or adjudicatory or as legislative or executive or administrative may affect
the scope and extent of judicial review as well as the availability and mode of review. 44
The character of a particular function as judicial or otherwise is an essential factor in
determining the scope of the judicial power under the constitution and thus the extent to
which a court may, with or without express authorization, review action of an
administrative agency. 45 In some cases judicial functions have been contrasted with
legislative or executive functions in determining the right to judicial review in the
absence of a statute providing therefor; 46 and a statute providing for appeal from
all decisions of a board may be construed to authorize appeals only from decisions of a
judicial nature and not from decisions of an administrative, legislative, or political nature.
47
Although in many cases the standards of judicial review may be stated in nearly identical
terms, 48 the scope of review in regard to an exercise of delegated legislative or
quasi-legislative power is different and in some respects more limited than where the
action is quasi-judicial, 49 because the reviewing court has no inherent suitability
comparable to that which it has for reviewing judicial decisions. 50 In determining the
scope of review by courts of quasi-legislative acts of an administrative agency
consideration must be given to the fact that the courts must not usurp legislative power
and thereby violate the constitutional provision as to separation of powers of government.
51 A court will not set aside a quasi-legislative or administrative decision of a
nonadjudicatory nature unless it is substantively irrational, unlawful, contrary to
established public policy, or procedurally unfair. 52 Thus, where a statute expressly
grants an agency rulemaking authority, judicial review is limited to determining whether
the agency's rules and regulations are based on a permissible construction of the statute.
53
It is especially appropriate for the courts to allow considerable scope to the discretion and
informed judgment of an administrative agency where the review is of regulations of
general application adopted by the agency under its rulemaking power in carrying out the
policy of a statute the agency is charged to enforce. 54 For example, because the ICC's
revenue adequacy standard is the product of notice and comment rulemaking and the
rulemaking proceedings are unquestionably within ICC statutory jurisdiction, the Court
of Appeals may set aside its action only if it is arbitrary, capricious, an abuse of
discretion, or otherwise not according to law, or if it was adopted without observance of
procedure as required by law. The Court of Appeals may not weigh evidence before the
ICC, or inquire into the wisdom of promulgated regulations and may inquire into the
soundness of ICC's reasoning only to the extent of ascertaining that its conclusions are
rationally supported. 55 Ratemaking is also an essentially legislative function and
while the legislature has provided for judicial review of the orders of the agency, that
review is limited to keeping the agency within the bounds which the legislature has
created. 56 Similarly, when an agency's decision not to promulgate rules reflects
its broad rulemaking discretion, the agency's determination is essentially a legislative one
and the reviewing court should do no more than to assure itself that the agency acted in a
manner calculated to negate the dangers of arbitrariness and irrationality. 57
Acts of an executive nature have been contrasted with acts judicial in nature or
quasi-judicial in that the former are not reviewable except on the sole ground of lack of
jurisdiction. 58
§ 469 ----Type of agency action as affecting scope of review [SUPPLEMENT]
Case authorities:
Merely because IRS may have had authority to promulgate new class lives for calculating
video game cost recovery does not mean that IRS had obligation to do so; thus, inaction
of IRS is not subject to judicial review. Collins Music Co. v United States (1994, CA4
SC) 21 F3d 1330, 94-1 USTC ¶ 50179, 73 AFTR 2d 94-1754, 94 TNT 80- 9.

Footnotes
Footnote 44. Interstate Commerce Com. v Hoboken M. R. Co., 320 US 368, 88 L Ed

107, 64 S Ct 159, reh den 321 US 801, 88 L Ed 1088, 65 S Ct 516; De Groot v
Sheffield (Fla) 95 So 2d 912.
Footnote 45. Federal Radio Com. v Nelson Bros. Bond & Mortg. Co., 289 US 266, 77 L
Ed 1166, 53 S Ct 627, 89 ALR 406; Hoover Motor Exp. Co. v Railroad & Public
Utilities Com., 195 Tenn 593, 261 SW2d 233.
Footnote 46. Keim v United States, 177 US 290, 44 L Ed 774, 20 S Ct 574 (function
more administrative than judicial; determining competency of clerk who was discharged
by Secretary of Interior); Hadden v Merritt, 115 US 25, 29 L Ed 333, 5 S Ct 1169 (duty
of declaring value of foreign coins, cast upon Treasury Department, is performance of
executive function requiring skill and exercise of judgment and discretion which
precludes judicial inquiry into correctness of decision).
Since the power existing in Congress to administer upon and guard tribal property is
political and administrative in its nature, the manner of its exercise is a question within
the province of the legislative branch to determine, and not one for the courts. Cherokee
Nation v Hitchcock, 187 US 294, 47 L Ed 183, 23 S Ct 115.
Footnote 47. Groenewold v Board of County Com'rs, 195 Okla 526, 159 P2d 258.
Footnote 48. Thomson v Iowa State Commerce Com., 235 Iowa 469, 15 NW2d 603, in
determining whether or not to issue a certificate of public convenience and necessity a
commission exercises an administrative or legislative function as distinguished from a
judicial function and on an appeal from such a determination the commission's decision
can be set aside only if it acted without and in excess of its jurisdiction, or if its order is
without support in the record, or is arbitrary and unreasonable.
Footnote 49. Brock v Superior Court of San Francisco, 109 Cal App 2d 594, 241 P2d
283; Albert v Public Service Com., 209 Md 27, 120 A2d 346 (stating the court must find
that the result of the action is beyond the police power and deprives a person of property
without due process of law).
583, 75 S Ct 467, 4 OGR 897.
Footnote 51. Brock v Superior Court of San Francisco, 109 Cal App 2d 594, 241 P2d
283.
Footnote 52. Mateo-Woodburn v Fresno Community Hospital & Medical Center (5th
Dist) 221 Cal App 3d 1169, 270 Cal Rptr 894, review den (Cal) 1990 Cal LEXIS 4368,
further stating that a legislative action is the formulation of a rule to be applied to all
future cases, while an adjudicatory act involves the actual application of such a rule to a
specific set of existing facts.
Footnote 53. Marcus v Sullivan (CA7 Ill) 926 F2d 604, CCH Unemployment Ins Rep ¶
15908A, later proceeding (ND Ill) 1991 US Dist LEXIS 2522, later proceeding (ND Ill)
1991 US Dist LEXIS 2973, appeal after remand (ND Ill) 1992 US Dist LEXIS 523,

costs/fees proceeding (ND Ill) 793 F Supp 812, 38 Soc Sec Rep Serv 176, CCH
Unemployment Ins Rep ¶ 16950A; Valenzuela v Yeutter (CA9 Ariz) 988 F2d 977, 93
In a challenge to a regulation, the court first decides whether the regulation was
promulgated according to applicable rulemaking procedures, then whether the
promulgation was within the jurisdictional authority of the agency and whether the
substance of the regulation neither departs from the legal standard expressed or implied
in the enabling statue nor contravenes any other applicable statute. Gilliam County v
Department of Envtl. Quality, 316 Or 99, 849 P2d 500, 24 ELR 20065, cert gr (US) 125
L Ed 2d 787, 114 S Ct 38, 93 Daily Journal DAR 12366, motion gr (US) 126 L Ed 2d
370, 114 S Ct 436.
Judicial review of agency regulation will be limited to a determination whether the

regulation in question is reasonably consistent with the statute being implemented. St.
Francis Extended Health Care v Department of Social & Health Services, 115 Wash 2d
690, 801 P2d 212.
Footnote 55. Bessemer & L. E. R. Co. v Interstate Commerce Com. (CA3) 691 F2d 1104,
cert den 462 US 1110, 77 L Ed 2d 1340, 103 S Ct 2463, later proceeding 236 US App
DC 377, 735 F2d 1408.
583, 75 S Ct 467, 4 OGR 897; Colorado Interstate Gas Co. v Federal Power Com., 324
US 581, 89 L Ed 1206, 65 S Ct 829, reh den 325 US 891, 89 L Ed 2004, 65 S Ct 1082;
Mississippi Valley Barge Line Co. v United States, 292 US 282, 78 L Ed 1260, 54 S Ct
692 ("rational basis" rule); Salt Lake City v Utah Light & Traction Co., 52 Utah 210, 173
P 556, 3 ALR 715 (court limited to determining whether there is any evidence to sustain
the finding, whether agency has exceeded its authority, and whether any constitutional
rights have been invaded); Floyd v Department of Labor & Industries, 44 Wash 2d 560,
269 P2d 563 (court limited to determining whether agency acted arbitrarily, capriciously,
or contrary to law).
A court may review the manner in which an agency decision has been made to ensure
that environmental consequences have been considered in the manner prescribed by law.
Orange County v North Carolina Dept. of Transp., 46 NC App 350, 265 SE2d 890.
Footnote 57. Bargmann v Helms, 230 US App DC 164, 715 F2d 638.
Footnote 58. De Groot v Sheffield (Fla) 95 So 2d 912.
§ 470 --Internal administration; management
View Entire Section


In the absence of statutory provisions to the contrary, the scope of judicial review of
administrative determinations which primarily concern the internal management of
government and its agencies is more constrained than that indicated by the general
standards. Included in this category are decisions regarding:
• Whom to employ 59
• The discharge or removal of public officers or employees 60
• The fixing of compensation for public officers or employees 61
• Pension claims 62
• Administration of the civil service 63
• Determinations of an examining board with respect to retirements 64
Footnotes
Footnote 59. Seattle High School Chapter A. F. T. v Sharples, 159 Wash 424, 293 P 994,
72 ALR 1215 (court will not consider policy underlying resolution against employment
as teachers of members of a certain association).
Judicial review of adverse personnel actions in federal courts is narrowly constrained and
there is no provision for de novo review; District Courts are limited to assuring that
agency action: (1) was not arbitrary or capricious; (2) was reached in accordance with
relevant statutory and procedural requirements; and (3) was not unconstitutional.
Hadigian v Board of Governors, Federal Reserve System (DC Dist Col) 463 F Supp 437,
affd without op 198 US App DC 91, 612 F2d 586.
Footnote 60. Eberlein v United States, 257 US 82, 66 L Ed 140, 42 S Ct 12; Gillan v
Board of Regents, 88 Wis 7, 58 NW 1042 (discharge of schoolteacher cannot be
reviewed).
A decision by a board of education that a teacher had been discharged without just cause
was final and conclusive and not subject to review except to determine whether it was
based on substantial evidence, or whether it was arbitrary, unlawful, unreasonable, or
capricious. Swisher v Darden, 59 NM 511, 287 P2d 73.
Footnote 61. United States v Bashaw, 152 US 436, 38 L Ed 505, 14 S Ct 638 (pay of
United States District Attorney for investigating violations of internal revenue laws);
United States v Wright, 78 US 648, 11 Wall 648, 20 L Ed 188.
Footnote 62. United States ex rel. Dunlap v Black, 128 US 40, 32 L Ed 354, 9 S Ct 12,
3 AFTR 2511 (court has no right to review decision); Godlove v Topeka, 148 Kan 337,
81 P2d 39, 117 ALR 1402 (in the absence of arbitrary or capricious action, the
determination of a governing body of a city as to pension claims of an employee was not
subject to review by the courts); Benedict v Board of Police Pension Fund Com'rs, 35
Wash 2d 465, 214 P2d 171, 27 ALR2d 992.

Footnote 63. Nelson v Dean, 27 Cal 2d 873, 168 P2d 16, 168 ALR 467, stating that with
particular reference to the administration of civil service, it is the policy of the courts of
this state that courts should let administrative boards and officers work out their problems
with as little judicial interference as possible.
Footnote 64. Reaves v Ainsworth, 219 US 296, 55 L Ed 225, 31 S Ct 230.
§ 471 Illustrations of agency action
View Entire Section

Agency action is present where– 65
–an agency issues an administrative complaint. 66
–an agency issues an approval order. 67
–an agency decides to release data submitted to the agency by a private party. 68
–the Secretary of Interior institutes a statutory and regulatory scheme providing for
periodic adjustment of rentals for living quarters owned and operated by the federal
government. 69
–the planning and execution of a project is carried out by, or under, the direction of
employees of the Atomic Energy Commission. 70
–the Securities and Exchange Commission "significantly involves" itself with the New
York Stock Exchange's decision to prohibit customer-directed "give-ups." 71
Footnotes
Footnote 65. As to when an agency action is final and reviewable, see §§ 487 et seq.
Footnote 66. FTC v Standard Oil Co., 449 US 232, 66 L Ed 2d 416, 101 S Ct 488,
Footnote 67. Langevin v Chenango Court, Inc. (CA2 NY) 447 F2d 296 (criticized on
other grounds by Russell v Landrieu (CA9 Cal) 621 F2d 1037).

remand (CA3 Del) 611 F2d 439, 20 BNA FEP Cas 1335, 21 CCH EPD ¶ 30331; Sears,
Roebuck & Co. v General Services Admin. (DC Dist Col) 384 F Supp 996, 8 BNA FEP
Cas 1155, 20 CCF ¶ 83317, 8 CCH EPD ¶ 9699, affd 166 US App DC 194, 509 F2d 527,
8 BNA FEP Cas 1296, 20 CCF ¶ 83530, 8 CCH EPD ¶ 9827.

Footnote 69. Yosemite Tenants Asso. v Clark (ED Cal) 582 F Supp 1342.
Footnote 70. Crowther v Seaborg (DC Colo) 312 F Supp 1205, 1 Envt Rep Cas 1199.
Footnote 71. Independent Broker-Dealers' Trade Asso. v SEC, 142 US App DC 384, 442
F2d 132, CCH Fed Secur L Rep ¶ 92963, later proceeding (US) CCH Fed Secur L Rep ¶
93145 and cert den 404 US 828, 30 L Ed 2d 57, 92 S Ct 63.
2. Preclusion of Judicial Review [472-484]
a. In General [472, 473]
§ 472 Presumption of judicial review unless precluded
View Entire Section

Go to Supplement
There is a strong presumption 72 in favor of judicial review of administrative

actions, and prohibitions against judicial review are to be narrowly construed. 73 The
presumption of judicial review may be overcome by specific language or specific
legislative history that is a reliable indicator of congressional intent, or a specific
congressional intent to preclude judicial review that is fairly discernible in the detail of a
legislative scheme. 74 Review will not be cut off unless there is persuasive reason to
believe that is the purpose of Congress. 75
§ 472 ----Presumption of judicial review unless precluded [SUPPLEMENT]
Case authorities:
HUD's decision to initiate debarment proceedings against one employee but not other
employees of corporation engaged in lending mortgages coinsured by government and
issuing GNMA-back securities is not reviewable. Kisser v Cisneros (1994, App DC) 14
F3d 615.
The air pollution control administrative review provisions set forth in G.S. § 143-
215.108(e) do not by implication amend, repeal, or make an exception to the NCAPA so
as to exclude the third party petitioner from those entitled to an administrative hearing
thereunder, and petitioner is entitled to commence an administrative hearing in the OAH
to determine his right under the Air Pollution Control Act to have DEHNR issue or deny
air quality permits to respondent power company in accordance therewith. While §
143-215.108(e) makes no express provision for an administrative appeal by aggrieved
parties other then the permittee or permit applicant, it does not expressly prohibit such an
appeal, and the intent of the language of the statute is that any permittee or permit
applicant who fails to timely appeal from the decision of the Environmental Management
Commission has waived any right to administrative and judicial review of that decision.
Empire Power Co. v North Carolina Dep't of Env't, Health & Natural Resources, Div. of
Envtl. Management (1994) 337 NC 569, 447 SE2d 768, reh den (1994, NC) 1994 NC
LEXIS 694.
Footnotes
Footnote 72. Traynor v Turnage, 485 US 535, 99 L Ed 2d 618, 108 S Ct 1372, 1 ADD
469, 2 AD Cas 214, 46 CCH EPD ¶ 37924 (superseded by statute on other grounds as
stated in Larrabee v Derwinski (CA2 Conn) 968 F2d 1497); Bowen v Michigan Academy
of Family Physicians, 476 US 667, 90 L Ed 2d 623, 106 S Ct 2133.
Footnote 73. Virginia ex rel. Virginia Dept. of Medical Assistance Services v Bowen
(WD Va) 680 F Supp 228; Marble Mountain Audubon Soc'y v Rice (CA9 Cal) 914 F2d
179, 32 Envt Rep Cas 1249, 21 ELR 20023.
Footnote 74. NLRB v United Food & Commercial Workers Union, Local 23, 484 US
112, 98 L Ed 2d 429, 108 S Ct 413, 126 BNA LRRM 3281, 107 CCH LC ¶ 10193, on
remand (CA3) 840 F2d 171, 127 BNA LRRM 2888, 108 CCH LC ¶ 10341; Bowen v
Michigan Academy of Family Physicians, 476 US 667, 90 L Ed 2d 623, 106 S Ct 2133.
Footnote 75. Morris v Gressette, 432 US 491, 53 L Ed 2d 506, 97 S Ct 2411; Dunlop v

Bachowski, 421 US 560, 44 L Ed 2d 377, 95 S Ct 1851, 89 BNA LRRM 2435, 77 CCH
LC ¶ 10872, on remand (WD Pa) 405 F Supp 1227, 92 BNA LRRM 2058, 78 CCH LC ¶
11387, supp op (WD Pa) 413 F Supp 147, 92 BNA LRRM 3623, app dismd (CA3 Pa)
545 F2d 363, 93 BNA LRRM 2689, 79 CCH LC ¶ 11729 and (ovrld on other grounds by
Local No. 82, Furniture & Piano Moving, etc. v Crowley, 467 US 526, 81 L Ed 2d 457,
104 S Ct 2557, 116 BNA LRRM 2633, 101 CCH LC ¶ 11034); Abbott Laboratories v
Gardner, 387 US 136, 18 L Ed 2d 681, 87 S Ct 1507.
§ 473 Methods of precluding review
View Entire Section

Congress may formulate the conditions under which judicial review of administrative
action will be available. 76 Therefore, even though agency action within the statutory
definition 77 has occurred, that action is not necessarily reviewable by a court. 78
Where, for example, Congress has enacted statutes which preclude judicial review, 79
or has committed certain actions to agency discretion, 80 the Administrative Procedure
Act 81 is inoperative as a vehicle for facilitating judicial review of agency action. 82
Footnotes
Footnote 76. Davis v Romney (CA3 Pa) 490 F2d 1360, 18 FR Serv 2d 70; Chernock v
Gardner (CA3 Pa) 360 F2d 257; Henderson v Celebrezze (DC SC) 239 F Supp 277;
Hobby v Hodges (CA10 Utah) 215 F2d 754 (criticized on other grounds by Coulter v
Weinberger (CA3 Pa) 527 F2d 224).
Footnote 78. Davis v Romney (CA3 Pa) 490 F2d 1360, 18 FR Serv 2d 70; Chernock v
Gardner (CA3 Pa) 360 F2d 257; Henderson v Celebrezze (DC SC) 239 F Supp 277;
Hobby v Hodges (CA10 Utah) 215 F2d 754 (criticized on other grounds by Coulter v
Weinberger (CA3 Pa) 527 F2d 224).
Footnote 81. 5 USCS §§ 701-706.
b. Statutory Preclusion [474-477]
§ 474 Generally
View Entire Section

Go to Supplement
The judicial review provisions of the Administrative Procedure Act 83 do not apply
where a statute precludes review of agency action. 84 Similarly, a state may
statutorily exclude an agency from the administrative review process. 85 Congress may
also limit the classes entitled to participate in a particular statutory area. 86 Statutory
preclusion of judicial review must be demonstrated clearly and convincingly. 87
This standard is met, and the presumption favoring judicial review overcome whenever
the congressional intent to preclude judicial review is fairly discernible in the statutory
scheme. 88 In the absence of statutory language expressly excluding review, a court
determines whether, and to what extent, the relevant statute precludes judicial review by
examining the structure and history of the statute to determine whether the requisite
congressional or legislative intent to bar judicial review is clearly established, 89
weighing all indicators helpful in discerning that intent. 90 The court will also
examine the statute's express language, its objectives, and the nature of the administrative
action involved. Of particular importance is whether the statute contains standards,
goals, or criteria by which a court may evaluate agency action. 91 Intent may be inferred
from: (1) contemporaneous judicial construction barring review and the congressional
acquiescence in it; (2) the collective import of legislative and judicial history behind a
particular statute; or (3) the statutory scheme as a whole. 92 Where substantial
doubt about the intent exists, the general presumption favoring judicial review of
administrative action is controlling. 93

In the absence of legislative intent to foreclose judicial review, an agency cannot
unilaterally override the review provisions of the APA. 94 Even the presence in a statute
of language which appears to bar judicial review may not necessarily be conclusive of the
matter, 95 and mere statutory silence on the question of judicial review is insufficient
to overcome the basic presumption favoring review. 96 Furthermore, the conclusion that
an administrative action is unreviewable is not compelled merely because the statute in
question is drafted in permissive rather than mandatory terms, 97 or because it contains
no provision for a formal evidentiary hearing. 98
 Comment: In instances where jurisdiction to review the administrative decisions of a

state board is specifically conferred on state courts of general jurisdiction, the existence
of the state forum forecloses the availability of a federal forum for such review. 99
Practice Aids: The scope of judicial review of decisions of California administrative

agencies, 42 UCLA LR 5:1157 (1995).
Footnotes
Footnote 83. 5 USCS §§ 701-706.
Forms: Motion to dismiss–Ground–Action of agency not subject to review under

statute [5 USCS §§ 701(a)(1), 704]. 2 Federal Procedural Forms, L Ed, Appeal,
Certiorari, and Review § 3:473.
Motion or answer–Allegation–Relief precluded by statute. 1A Am Jur Pl & Pr Forms

Footnote 85. Re Application of Hayden Pines Water Co., 111 Idaho 331, 723 P2d 875.
The provisions of Colorado's Administrative Procedure Act apply to judicial review of all
final agency actions unless a specific statutory scheme evinces a legislative intent that all
or part of the APA review provisions should not apply. Maurer v Young Life (Colo) 779
P2d 1317.
Even though the Idaho Public Utilities Commission is an agency within Idaho
administrative act's definition of agency, the Commission is statutorily excluded from
Idaho administrative procedure act's review procedure. Re Application of Hayden Pines
Water Co., 111 Idaho 331, 723 P2d 875.
S Ct 2450, on remand 239 US App DC 319, 742 F2d 1472.
At least, when a statute provides a detailed mechanism for judicial consideration of

particular issues at the behest of particular persons, judicial review of those issues at the
behest of other persons may be found to be impliedly precluded. Block v Community

Nutrition Institute, 467 US 340, 81 L Ed 2d 270, 104 S Ct 2450, on remand 239 US
App DC 319, 742 F2d 1472.
remand (CA3) 840 F2d 171, 127 BNA LRRM 2888, 108 CCH LC ¶ 10341; Dunlop v
Bachowski, 421 US 560, 44 L Ed 2d 377, 95 S Ct 1851, 89 BNA LRRM 2435, 77 CCH
LC ¶ 10872, on remand (WD Pa) 405 F Supp 1227, 92 BNA LRRM 2058, 78 CCH LC ¶
11387, supp op (WD Pa) 413 F Supp 147, 92 BNA LRRM 3623, app dismd (CA3 Pa)
545 F2d 363, 93 BNA LRRM 2689, 79 CCH LC ¶ 11729 and (ovrld on other grounds by
Local No. 82, Furniture & Piano Moving, etc. v Crowley, 467 US 526, 81 L Ed 2d 457,
104 S Ct 2557, 116 BNA LRRM 2633, 101 CCH LC ¶ 11034); Johnson v Robison, 415
US 361, 39 L Ed 2d 389, 94 S Ct 1160; Barlow v Collins, 397 US 159, 25 L Ed 2d
192, 90 S Ct 832 (superseded by statute on other grounds as stated in Lubrizol Corp. v
Train (CA6 Ohio) 547 F2d 310, 9 Envt Rep Cas 1478, 7 ELR 20106); Abbott
Laboratories v Gardner, 387 US 136, 18 L Ed 2d 681, 87 S Ct 1507.
S Ct 2450; Drake v Panama Canal Com. (CA5 La) 907 F2d 532 (stating, however, that
the clear and convincing standard has been diluted).
remand (CA3) 840 F2d 171, 127 BNA LRRM 2888, 108 CCH LC ¶ 10341 (prehearing
dismissal of unfair labor practice complaint by NLRB General Counsel pursuant to
informal settlement not subject to judicial review under APA); Greer v Illinois Hous.
Dev. Auth., 122 Ill 2d 462, 120 Ill Dec 531, 524 NE2d 561.
Footnote 90. Clarke v Securities Indus. Ass'n, 479 US 388, 93 L Ed 2d 757, 107 S Ct
750, CCH Fed Secur L Rep ¶ 93057, later proceeding (DC Dist Col) CCH Fed Secur L
Rep ¶ 93211 and (not followed on other grounds by Greer v Illinois Hous. Dev. Auth.,
122 Ill 2d 462, 120 Ill Dec 531, 524 NE2d 561).
Footnote 91. Greer v Illinois Hous. Dev. Auth., 122 Ill 2d 462, 120 Ill Dec 531, 524
NE2d 561; Pisano v Shillinger (Wyo) 835 P2d 1136.
Footnote 92. Traynor v Turnage, 485 US 535, 99 L Ed 2d 618, 108 S Ct 1372, 1 ADD
469, 2 AD Cas 214, 46 CCH EPD ¶ 37924 (superseded by statute on other grounds as
stated in Larrabee v Derwinski (CA2 Conn) 968 F2d 1497); Bowen v Michigan Academy
of Family Physicians, 476 US 667, 90 L Ed 2d 623, 106 S Ct 2133; Block v
Community Nutrition Institute, 467 US 340, 81 L Ed 2d 270, 104 S Ct 2450, on remand
239 US App DC 319, 742 F2d 1472.

2d 623, 106 S Ct 2133.
Footnote 94. Gladysz v Donovan (ND Ill) 595 F Supp 50.
Footnote 95. Heikkila v Barber, 345 US 229, 97 L Ed 972, 73 S Ct 603, reh den 345
US 946, 97 L Ed 1371, 73 S Ct 828.
Footnote 96. Kingsbrook Jewish Medical Center v Richardson (CA2 NY) 486 F2d 663;
Garvey v Freeman (CA10 Colo) 397 F2d 600; Action on Safety & Health v FTC, 162 US
App DC 215, 498 F2d 757, 1974-1 CCH Trade Cases ¶ 75012; Moore-McCormack
Lines, Inc. v United States, 188 Ct Cl 644, 413 F2d 568.
Footnote 97. Environmental Defense Fund, Inc. v Hardin, 138 US App DC 391, 428 F2d
1093, 1 Envt Rep Cas 1347, 1 ELR 20050.
Footnote 98. Medical Committee for Human Rights v SEC, 139 US App DC 226, 432
F2d 659, CCH Fed Secur L Rep ¶ 92708, later proceeding (App DC) CCH Fed Secur L
Rep ¶ 92743 and later proceeding (US) CCH Fed Secur L Rep ¶ 93133 and vacated on
other grounds 404 US 403, 30 L Ed 2d 560, 92 S Ct 577, CCH Fed Secur L Rep ¶
93325.
Footnote 99. Shell Oil Co. v Train (CA9 Cal) 585 F2d 408, 12 Envt Rep Cas 1547, 9
ELR 20023.
§ 475 --Provision for review in one instance but not in another
View Entire Section

There is a difference of opinion as to whether, where a statute permits judicial review of

some agency acts under the statute, review of other acts is precluded. One position is to
interpret the statute being construed to prohibit judicial review except where expressly
prescribed, 1 or required by the constitution. 2
The opposing view is that the fact that some administrative acts are made reviewable
under a statute should not suffice to support an implication of exclusion of judicial
review as to others, 3 and not all statutes which provide for review in some instances
but not in others are regarded as precluding judicial review in the latter instance. 4
Where a statute specifically provides for direct judicial review of many questions arising
under its administration and thus recognizes the applicability of judicial review in the
particular field, it is not to be lightly assumed that the silence of other provisions of the
statute as regards judicial review bars from the courts an otherwise justiciable issue. 5
Footnotes
Footnote 1. Railway Express Agency, Inc. v Kennedy (CA7 Ill) 189 F2d 801, 40 AFTR
778, cert den 342 US 830, 96 L Ed 628, 72 S Ct 54; East Jeffersontown Improv. Asso.
v Louisville & Jefferson County Planning & Zoning Com. (Ky) 285 SW2d 507;
Wisconsin Tel. Co. v Wisconsin Employment Relations Board, 253 Wis 584, 34 NW2d
844, 23 BNA LRRM 2106, 15 CCH LC ¶ 64827.
Footnote 2. Amarillo v Hancock, 150 Tex 231, 239 SW2d 788, stating that to sustain
review plaintiff must bring himself within the protection of the due process clause.
Footnote 3. Bowen v Michigan Academy of Family Physicians, 476 US 667, 90 L Ed 2d

623, 106 S Ct 2133; Abbott Laboratories v Gardner, 387 US 136, 18 L Ed 2d 681, 87 S
Ct 1507.
Footnote 4. Air Line Dispatchers Ass'n v National Mediation Board, 89 US App DC 24,
189 F2d 685, 28 BNA LRRM 2048, 19 CCH LC ¶ 66340, cert den 342 US 849, 96 L Ed
641, 71 S Ct 77, 28 BNA LRRM 2634, and Jeanpierre v Arbury, 4 NY2d 238, 173
NYS2d 597, 149 NE2d 882, 1 BNA FEP Cas 13, 41 BNA LRRM 2849, 1 CCH EPD ¶
9657, 34 CCH LC ¶ 71441.
The mere omission of a specific provision in the Real Property Tax Law granting relief
from full assessment of local real property taxes to operators of interstate railroads for
judicial review of railroad ceiling determinations is insufficient to show that no such
review was intended. Consolidated Rail Corp. v State Bd. of Equalization & Assessment
(3d Dept) 121 App Div 2d 107, 509 NYS2d 903.
The fact that the conduct of a hearing by a parole board is not subject to review does not
mean that the decision itself is not subject to review. Pisano v Shillinger (Wyo) 835 P2d
1136.
Footnote 5. United States v Interstate Commerce Com., 337 US 426, 93 L Ed 1451, 69

S Ct 1410 (statute providing review for a carrier held not to preclude review for a
shipper); Stark v Wickard, 321 US 288, 88 L Ed 733, 64 S Ct 559.
§ 476 Constitutional claims
View Entire Section

Where Congress intends to preclude judicial review of claims under the constitution, its
intent to do so must be clear. 6 This heightened showing is required in part to avoid a
serious constitutional question that would arise if a federal statute were construed to deny
any judicial forum for a colorable constitutional claim. 7
Footnotes
Footnote 6. Webster v Doe, 486 US 592, 100 L Ed 2d 632, 108 S Ct 2047, 46 BNA
FEP Cas 1671, 3 BNA IER Cas 545, 46 CCH EPD ¶ 38034, on remand (App DC) 859
F2d 241; Indiana Dept. of Highways v Dixon (Ind) 541 NE2d 877.
F2d 241.
§ 477 Waiver of preclusion

View Entire Section
A defense based on an exemption from the review provisions of the Administrative

Procedure Act, 8 which is not a jurisdictional defense, may properly be waived by the
federal government. Thus, in an action challenging a Postal Service regulation, the issue
whether Postal Service actions are exempt from judicial review under the APA may
properly by waived by the parties. 9
Footnotes
Footnote 8. 5 USCS §§ 701-706.
BNA LRRM 2545 (issue of 39 USCS § 410(a) exemption waived by not being raised in
the lower courts).
c. Action Committed to Agency Discretion [478-484]
§ 478 Generally
View Entire Section

Go to Supplement
Deference usually will be accorded an administrative agency's interpretation of matters

entrusted by statute to its discretion or expertise. 10 The requirement of deference,
however, is not absolute in every case. The predicate for such judicial deference is prior
resort to an exhaustion of administrative remedies when they are available and adequate.
It is essential therefore that the administrative remedies be both readily available and
adequate. 11 A court may also entertain charges that the agency lacked jurisdiction;
that the agency's decision was occasioned by impermissible influences, such as fraud or
bribery; that the decision violated constitutional, statutory, or regulatory command; 12
or that the decision was arbitrary and capricious, or an abuse of discretion, or otherwise
not in accordance with the law. 13 Similarly, some agency errors may be so egregious
or devastating that the promised administrative remedy is too little or too late, in which
case the equitable power of a circuit court must intervene. 14 It is also axiomatic that an
administrative agency has no power to declare a statute void or otherwise unenforceable.
A reviewing court is under no obligation to defer to an agency interpretation that results
in a statute being voided by administrative fiat. 15
The judicial review provisions of the Administrative Procedure Act 16 do not apply
where agency action is committed to agency discretion by law, 17 and § 701(a)(2)

requires a similar careful examination of the underlying substantive statute on which a
claim of agency illegality is based. 18
Where agency regulations or internal policies provide sufficient guidance to make

possible federal review under an abuse of discretion standard, agency decisions are not
unreviewable even absent express statutory limits on agency discretion. 19
Case authorities:
FAA did not abuse discretion in revoking helicopter operator's air carrier certificate for
single incident, where appellant was simultaneously carrier's president, director of
operations, and chief pilot, he flew under instrument flight rules without authorization,
and he was involved in crash that killed three people. Echo, Inc. v Hinson (1995, CA1)
48 F3d 8.
Summary judgment is properly denied to HUD in suit by owner of low income housing,
where owner had contracted with HUD for housing assistance payments and owner
contested amount of increase in payments, since disputes clause in contract prevented
application of rule under APA that judicial review is unavailable when agency action is
committed to agency discretion by law. Jackson Square Assocs. v United States Dep't of
Hous. & Urban Dev. (1994, WD NY) 869 F Supp 133.
INS did not exceed scope of authority in promulgating and enforcing regulation denying
adjustment of status under Chinese Student Protection Act, 106 Stat. 1969, to citizens of
People's Republic of China who entered Unites States without inspection. Tang v Reno
(1996, CA9 Cal) 77 F3d 1194, 96 CDOS 1412, 96 Daily Journal DAR 2439.
Footnotes
FLW 592.
Law Reviews: Fernandez and Bryant. McDonald revisited: the development of the
deference doctrine in Florida administrative law. 66 Florida Bar Journal 70
(December, 1992).
Hutchins. Great deference given to a decision of administrative agency. 43 South

Carolina Law Review 6 (Autumn, 1991).
Forms: Motion–To court–For dismissal of proceedings within exclusive jurisdiction of

administrative agency. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form
372.
Answer–Defense–Statutory immunity from liability for exercise of discretion in

rejecting application for certificate or permit. 1A Am Jur Pl & Pr Forms (Rev),

Footnote 11. Lewis Oil Co. v Alachua County (Fla App D1) 496 So 2d 184, 11 FLW
2116, later proceeding (Fla App D1) 516 So 2d 1033, 12 FLW 2811, later proceeding
(Fla App D1) 554 So 2d 1210, 15 FLW D 148.
Footnote 12. Davis Enterprises v United States EPA (CA3 Pa) 877 F2d 1181, 29 Envt
Rep Cas 2072, cert den 493 US 1070, 107 L Ed 2d 1020, 110 S Ct 1113, 30 Envt Rep
Cas 2133.
Forms: Petition to review administrative order–Allegation–Order in excess of

jurisdiction of agency [5 USCS § 706]. 2 Federal Procedural Forms, L Ed, Appeal,
Allegations–Failure to give notice of hearing. 1A Am Jur Pl & Pr Forms (Rev),

Allegations–Majority of members of administrative body absent from hearing. 1A Am

Jur Pl & Pr Forms (Rev), Administrative Law, Form 213.
Allegations–Failure of proper official to conduct hearing and issue order. 1A Am Jur

Allegations–Failure to comply with statutory procedure required when all members of

administrative body cannot consider evidence. 1A Am Jur Pl & Pr Forms (Rev),
Allegations–Bias of administrative officials in conducting investigation. 1A Am Jur Pl

Allegations–Determinations of federal agency not in compliance with statutory

requirements governing notice of hearing. 1A Am Jur Pl & Pr Forms (Rev),
Allegations–Violation of Federal Administrative Procedure Act–Complainant

summoned on pretense that complete hearing contemplated. 1A Am Jur Pl & Pr Forms
Complaint, petition, or declaration–Against members of administrative agency–On

wrongful rejection of application for certificate or permit, pursuant to conspiracy–For
damages, and directive requiring issuance of certificate or permit. 1A Am Jur Pl & Pr
Complaint, petition, or declaration–Allegation–Improper motives and malice of

administrative officers in making determination. 1A Am Jur Pl & Pr Forms (Rev),
Instruction to jury–Immunity of administrative officers–Where no dishonesty, bad

faith, or corrupt motives. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form
384.

Footnote 13. LeFort v Miller's Merry Manor, Inc. (Ind App) 572 NE2d 1330.
Courts may review the discretionary decisions of administrative agencies for a clear or
manifest abuse of discretion. Williams v Burlington Industries, Inc., 318 NC 441, 349
SE2d 842.
An administrative agency's exercise of its discretion cannot be overturned by a reviewing

court in the absence of fraud, bad faith or flagrant abuse of discretion. Burnworth v State
Bd. of Vehicle Mfrs., Dealers & Salespersons, 139 Pa Cmwlth 21, 589 A2d 294.
It is an abuse of discretion for the Division of Corrections to base its decision on a rule
which has not been properly promulgated and adopted. State ex rel. Richards v Traut
(App) 145 Wis 2d 677, 429 NW2d 81, habeas corpus proceeding (App) 175 Wis 2d 446,
499 NW2d 276.
As to determining whether an agency action is arbitrary and capricious, or an abuse of

discretion, or otherwise not in accordance with the law, see §§ 529 et seq.
Footnote 14. Lewis Oil Co. v Alachua County (Fla App D1) 496 So 2d 184, 11 FLW
2116, later proceeding (Fla App D1) 516 So 2d 1033, 12 FLW 2811, later proceeding
(Fla App D1) 554 So 2d 1210, 15 FLW D 148.
FLW 592.
Footnote 16. 5 USCS §§ 701-706.
Forms: Motion–To dismiss action–Agency has exclusive and final jurisdiction [5

USCS § 701(a)(2)]. 1A Federal Procedural Forms, L Ed, Administrative Law §
2:246.
F2d 241.
Cas 2133.
Where the statute in question contains specific criteria by which noncompliance can be
determined, and indicates with precision the measures available for enforcement, the
"committed to agency discretion" exception is inapplicable; it is peculiarly within the
power of the judiciary to interpret the statute which gives an agency power to act, to
determine whether the agency has correctly construed its obligations thereunder. Hein v
Burns (SD Iowa) 402 F Supp 398, revd on other grounds 429 US 288, 50 L Ed 2d 485,
97 S Ct 549; Guerrero v Garza (WD Wis) 418 F Supp 182.
Where there are present readily identifiable objective criteria that are expressly relied
upon by the agency, the District Court has law to apply and so is authorized to review the

agency decision under the standards set forth in the APA. Thomas Brooks Chartered v
Burnett (CA10 Colo) 920 F2d 634.
§ 479 Breadth of discretion; lack of meaningful standard
View Entire Section

Go to Supplement
Upon an initial determination that there is no statute that precludes judicial review, 20
the court must determine whether the action is committed to agency discretion by law. 21
The predicate to nonreviewability is that the agency has broad discretion, not merely
some discretion; 22 that is, not just the limited discretion inherent in every agency
action. 23
The "committed to agency discretion" exception 24 is therefore very narrow, and

judicial review of an administrative agency's decision is not to be had if the statute in
question is drawn in such broad terms that a court would have no meaningful standard
against which to judge the agency's exercise of discretion; 25 that is, the exception is
applicable only in those rare instances where statutes are drawn in such broad terms that
in a given case there is no law to apply. 26 In such a case the statute can be taken to
have committed the decisionmaking to the agency's judgment absolutely. 27 The
fact that there may be law, in the abstract, that could possibly be applied is not
significant. There must be specific law applicable to the particular case; if there is not,
there are no issues susceptible to judicial resolution. 28 Even when Congress has
not affirmatively precluded judicial oversight, review is not available if the statute is
drawn in such a manner that a court would have no meaningful standard against which to
judge the agency's exercise of discretion. 29
 Observation: The Supreme Court has read the provision of the APA precluding
judicial review of agency action committed to agency discretion 30 to preclude
judicial review of certain categories of administrative decisions that courts have
traditionally regarded as committed to agency discretion. 31 Two such decisions are
an agency's decision not to institute enforcement proceedings 32 and the allocation of
funds from a lump-sum appropriation. 33
§ 479 ----Breadth of discretion; lack of meaningful standard [SUPPLEMENT]
Case authorities:
Defense Department's denial of security clearance to employee of contractor is not

reviewable under 5 USCS § 701(a)(2), but claim that process violated employee's
constitutional rights is colorable constitutional claim and can be repleaded, where
Department's decisionmaking authority here is grounded not in statute but in executive
order, because security clearance decisions have been committed to Department's
discretion by law. Chesna v United States Dep't of Defense (1993, DC Conn) 822 F Supp
90.
Federal Energy Regulatory Commission abused its discretion in failing to provide
adequate explanation for its decision approving settlement of enforcement action against
gas pipeline company where its reasons included fact that only one of company's
customers opposed settlement and that settlement was within range of expected recovery.
Laclede Gas Company v FERC (1993, App DC) 302 US App DC 246, 997 F2d 936.
Footnotes
Footnote 21. Thomas Brooks Chartered v Burnett (CA10 Colo) 920 F2d 634.
Footnote 22. Local 2855, AFGE (AFL-CIO) v United States (CA3 NJ) 602 F2d 574, 26
CCF ¶ 83570 (superseded by statute on other grounds as stated in International Graphics,
Div. of Moore Business Forms, Inc. v United States, 4 Cl Ct 186, 31 CCF ¶ 71963).
Cas 2133.
20335.
F2d 241; Citizens to Preserve Overton Park, Inc. v Volpe, 401 US 402, 28 L Ed 2d 136,
91 S Ct 814, 2 Envt Rep Cas 1250, 1 ELR 20110.
Footnote 27. Lincoln v Vigil (US) 124 L Ed 2d 101, 113 S Ct 2024, 93 CDOS 3774, 93
Daily Journal DAR 6460, 7 FLW Fed S 312, remanded (CA10 NM) 2 F3d 1161, reported
in full (CA10) 1993 US App LEXIS 20417; Heckler v Chaney, 470 US 821, 84 L Ed 2d
714, 105 S Ct 1649, 15 ELR 20335.
5 USCS § 701(a)(2) bars judicial review of the agency's refusal to grant reconsideration
of an action because of material error, given the impossibility of devising an adequate
standard of review for such an action. Interstate Commerce Com. v Brotherhood of
Locomotive Engineers, 482 US 270, 96 L Ed 2d 222, 107 S Ct 2360, 125 BNA LRRM
2526, 106 CCH LC ¶ 12341; Lincoln v Vigil (US) 124 L Ed 2d 101, 113 S Ct 2024, 93
CDOS 3774, 93 Daily Journal DAR 6460, 7 FLW Fed S 312, remanded (CA10 NM) 2
F3d 1161, reported in full (CA10) 1993 US App LEXIS 20417.
Footnote 28. Santa Clara v Andrus (CA9 Cal) 572 F2d 660, cert den 439 US 859, 58 L
Ed 2d 167, 99 S Ct 176, 99 S Ct 177, remanded (CA9 Cal) 811 F2d 1507, appeal after
remand (CA9 Cal) 984 F2d 1008, 93 CDOS 643, 93 Daily Journal DAR 1305, cert den
(US) 62 USLW 3451; Arizona Power Authority v Morton (CA9 Ariz) 549 F2d 1231, cert
den 434 US 835, 54 L Ed 2d 97, 98 S Ct 124.

in full (CA10) 1993 US App LEXIS 20417; Heckler v Chaney, 470 US 821, 84 L Ed 2d
714, 105 S Ct 1649, 15 ELR 20335; Citizens to Preserve Overton Park, Inc. v Volpe,
401 US 402, 28 L Ed 2d 136, 91 S Ct 814, 2 Envt Rep Cas 1250, 1 ELR 20110;
Hartigan v Federal Home Loan Bank Bd. (CA7) 746 F2d 1300; Sierra Club v Yeutter
(CA10 Colo) 911 F2d 1405, 21 ELR 20083.
Law Reviews: Levin, Understanding Unreviewability in Administrative Law. 74

Minn L Rev 689, 692, 740 (1990).
in full (CA10) 1993 US App LEXIS 20417.
§ 480 Factors in determining whether action is committed to agency discretion
View Entire Section

Go to Supplement
Administrative agencies must articulate in as much detail as possible standards and

principles that govern their discretionary decisions. 34 In determining whether an action
is committed to agency discretion, the reviewing court should consider the following
factors:
• Language and purpose of the statute under which the administrative action is taken 35
• Nature of the activity regulated 36
• Whether the action was merely ministerial or an exercise of informed discretion 37
• Whether the statute is permissive or mandatory 38
• Whether the statutory standards are expressed in broad general concepts rather than
specific guidelines, so that the very construction of the statute is an exercise of discretion
39
• Whether the determination in question requires the exercise of expert judgment within
the special competence of the agency rather than an essentially legal determination 40

§ 480 ----Factors in determining whether action is committed to agency discretion
[SUPPLEMENT]
Case authorities:
A 100-year delay–between (1) the enactment of a provision of the National Bank Act, 12
USCS § 85, which authorizes a national bank to charge interest to its loan customers at
the rate allowed by the laws of the state in which the bank is located, and (2) the adoption
by the Comptroller of the Currency of a regulation which interprets the statute to include
as interest late-payment fees on credit cards issued by the bank–makes no difference to
the application by the United States Supreme Court of the ordinary rule of deference to
the agency's interpretation, as neither antiquity nor contemporaniety with the statute is a
condition of validity; the court accords deference to agencies because of a presumption
that Congress, when it left ambiguity in a statute meant for implementation by an agency,
(1) understood that the ambiguity would be resolved, first and foremost, by the agency,
and (2) desired the agency, rather than the courts, to possess whatever degree of
discretion the ambiguity allows. Smiley v Citibank (S.D.), N.A. (1996, US) 135 L Ed 2d
25, 96 CDOS 3922, 96 Daily Journal DAR 6399, 9 FLW Fed S 631.
Language, "as the Secretary deems appropriate," and structure of 42 USCS § 1395ww,
suggest broad delegation of discretion to Secretary of Health and Human Services either
to modify regulations governing hospitals' claims for reimbursement under Medicare
Program or to grant exceptions; however, decision to grant exception is not completely
unreviewable. Marshall County Health Care Auth. v Shalala (1993, App DC) 988 F2d
1221, 40 Soc Sec Rep Serv 442, 25 FR Serv 3d 244.
Footnotes
Footnote 34. Re Vey, 124 NJ 534, 591 A2d 1333.
Footnote 35. Sugarman v Forbragd (ND Cal) 267 F Supp 817, affd (CA9 Cal) 405 F2d
Footnote 38. Pullman, Inc. v Volpe (ED Pa) 337 F Supp 432; Save the Bay, Inc. v
Administrator of Environmental Protection Agency (CA5) 556 F2d 1282, 10 Envt Rep
Cas 1437, 7 ELR 20674, reh den (CA5 Miss) 560 F2d 1023; Sierra Club v Hardin (DC
Colo) 325 F Supp 99, 1 ELR 20599.
Footnote 39. Pullman, Inc. v Volpe (ED Pa) 337 F Supp 432.
Cas 2133 (agency action may be the product of political, military, economic, or

managerial choices that are not readily subject to judicial review); Pullman, Inc. v Volpe
(ED Pa) 337 F Supp 432.
§ 481 Agency enforcement action
View Entire Section

In the absence of abuse, 41 those engaged in prosecutorial or enforcement activities

are allowed a wide discretion and considerable latitude regarding when and against
whom to file charges. 42 There is a presumption that agency decisions not to institute
enforcement proceedings are unreviewable under the Administrative Procedure Act. 43
Such a decision has traditionally been committed to agency discretion, and it does not
appear that Congress in enacting the APA intended to alter that tradition. Accordingly,
such a decision is unreviewable unless Congress has indicated an intent to circumscribe
agency enforcement discretion, and has provided meaningful standards for defining the
limits of that discretion. 44 This presumption may be rebutted where the substantive
statute has provided guidelines for the agency to follow in exercising its enforcement
powers. 45
In establishing this presumption in the Administrative Procedure Act, Congress did not
set agencies free to disregard legislative direction in the statutory scheme that the agency
administers. Congress may limit an agency's exercise of enforcement power if it wishes,
either by setting substantive priorities or by otherwise circumscribing an agency's power
to discriminate among issues or cases it will pursue. 46
To determine whether an agency has created a meaningful standard for judicial review of
decisions not to enforce, a court must address two questions: (1) whether formal and
informal agency pronouncements may be sufficient to rebut the presumption of
unreviewability; and (2) whether the agency pronouncements rebut that presumption in
the instant case. Although agency regulations may provide a standard to apply, it is
doubtful that a mere policy statement, as opposed to a properly adopted agency rule, can
ever provide law to apply. 47
Even in the absence of a meaningful standard limiting the discretion of the agency in
enforcement actions, the courts may review agency decisions which undermine their
fundamental statutory responsibility to protect the health and safety of the public. An
agency policy which is so extreme as to amount to an abdication of its statutory
responsibilities may be reviewable because the statute conferring authority on the agency
might indicate that such decisions are not committed to agency discretion. Such behavior
on the part of an agency would subject it to review even if the agency has failed to
promulgate a specific standard to apply in its formal or informal statements. 48
 Comment: A claim challenging the administrative nonenforcement, or a pattern of

nonenforcement, is not justiciable where procedures are established by regulation
under which the desired enforcement can be initiated by any person, but the procedures
have not been utilized by the person seeking judicial review of the alleged
nonenforcement. 49
Footnotes
Footnote 41. Moog Industries, Inc. v FTC, 355 US 411, 2 L Ed 2d 370, 78 S Ct 377,
Footnote 42. Terminal Freight Handling Co. v Solien (CA8 Mo) 444 F2d 699, 77 BNA
1246, 79 BNA LRRM 2803, 67 CCH LC ¶ 12508.
20335.
An agency's decision not to enforce is presumptively unreviewable under 5 USCS §

701(a)(2) because that decision often involves a complicated balancing of a number of
factors which are peculiarly within its expertise.
An FDIC issuance of a capital directive to a bank and its directors is committed to agency
discretion by law. Federal Deposit Ins. Corp. v Bank of Coushatta (CA5 La) 930 F2d
1122, cert den (US) 116 L Ed 2d 134, 112 S Ct 170.
20335.
Position of Bureau of Land Management in not attempting to enjoin or regulate county's

plan to improve road between federally-protected wilderness study areas was reviewable
due to the presence of applicable standards. Sierra Club v Hodel (CA10) 848 F2d 1068.
20335.
Law Reviews: Corwin. Congressional limits on agency discretion: a case study of the
Hazardous and Solid Waste Amendments of l984. 29 Harv J on Legis 516 (Summer,
1992).
Footnote 47. Massachusetts Public Interest Research Group, Inc. v United States Nuclear
Regulatory Com. (CA1) 852 F2d 9, 18 ELR 21437.
Footnote 48. Massachusetts Public Interest Research Group, Inc. v United States Nuclear
Regulatory Com. (CA1) 852 F2d 9, 18 ELR 21437.
F2d 19, 1985 AMC 12.
§ 482 Choice of penalty

View Entire Section
Go to Supplement
Administrative agencies have considerable latitude to shape their penalties within the
scope of their statutory authority, especially where a statute expressly authorizes the
agency to require that such action be taken as will effectuate the purposes of the act being
administered. 50 The relation of penalty to policy is peculiarly one for the
administrative agency and its special competence, 51 at least the agency has the
primary function in this regard. 52 An administrative agency is entitled to
substantial deference in assessing the civil penalty appropriate for a violation of its
regulations, and a court is not to overturn an agency's choice of sanction unless it is
unwarranted in law or without justification in fact. 53 Deference is given to the agency's
judgment unless the penalty is so harsh and unconscionably disproportionate to the
offense that it amounts to an abuse of discretion. The penalty must be reasonable in light
of the sustained charges. 54 Thus, in reviewing the penalty imposed by an
administrative body which is duly constituted to announce and enforce the penalties,
neither a trial court nor an appellate court is free to substitute its own discretion as to the
matter, nor can a reviewing court interfere with the imposition of a penalty by an
administrative tribunal even if, in the court's own evaluation of the circumstances, the
penalty appears to be too harsh. 55 Where there is a sufficient basis for the orders issued
it is no concern of the court that other regulatory devices might be more appropriate, or
that less extensive measures might suffice. Such matters are the province of the
legislature and of the administrative agency. 56 The employment of a sanction
within the authority of an administrative agency is not rendered invalid in a particular
case because it is more severe than sanctions imposed in other cases: it is the agency's
job, not the court's, to fashion a remedy for violations of its rules. 57 Also, the weight
that an agency assigned to evidence offered to mitigate the severity of a penalty is
similarly a matter of its discretion, and the court will not substitute a less sanction where
there has been no abuse of discretion. 58
However, an administrative agency's discretion as to what penalty to impose is not

completely unfettered, 59 and the matter of choice of remedies is open to a limited
review 60 to the extent of providing safeguards against statutory or constitutional
excesses. 61 But such judicial review extends no further than to ascertain whether the
agency exercised an allowable discretion 62 or an allowable judgment in its choice
of the remedy. 63 Therefore, if judicial review of the record demonstrates that the
sanction is in excess of the agency's authority, that the sanction lacks a rational
foundation in the factual findings of the agency, or that the sanction is clearly
disproportionate to the violation, the court must set the sanction aside. 64
§ 482 ----Choice of penalty [SUPPLEMENT]
Case authorities:
In reviewing agency decision that grocery store owner violated regulations pertaining to
food stamps and subsequent imposition of sanctions, trial de novo is limited to
determining whether agency properly applied regulations, and severity of sanction is not
open to review. Goldstein v United States (1993, CA6 Tenn) 9 F3d 521.
Footnotes
Footnote 50. Fibreboard Paper Products Corp. v NLRB, 379 US 203, 13 L Ed 2d 233,
85 S Ct 398, 57 BNA LRRM 2609, 50 CCH LC ¶ 19384, 6 ALR3d 1130; NLRB v
Seven-Up Bottling Co., 344 US 344, 97 L Ed 377, 73 S Ct 287, 31 BNA LRRM 2237,
22 CCH LC ¶ 67329; Holland v Edwards, 307 NY 38, 119 NE2d 581, 1 BNA FEP Cas 9,
34 BNA LRRM 2018, 1 CCH EPD ¶ 9634, 25 CCH LC ¶ 68388, 44 ALR2d 1130.
The Federal Trade Commission has wide discretion in its choice of a remedy deemed
adequate to cope with the unlawful practices disclosed. Atlantic Refining Co. v FTC,
381 US 357, 14 L Ed 2d 443, 85 S Ct 1498, 1965 CCH Trade Cases ¶ 71459, reh den
382 US 873, 15 L Ed 2d 114, 86 S Ct 18.
Footnote 51. General Protective Committee, etc. v SEC, 346 US 521, 98 L Ed 261, 74
S Ct 261, reh den 347 US 911, 98 L Ed 1068, 74 S Ct 474; NLRB v Seven-Up Bottling
Co., 344 US 344, 97 L Ed 377, 73 S Ct 287, 31 BNA LRRM 2237, 22 CCH LC ¶
67329; Nathanson v NLRB, 344 US 25, 97 L Ed 23, 73 S Ct 80, 31 BNA LRRM 2036,
22 CCH LC ¶ 67234; American Power & Light Co. v SEC, 329 US 90, 91 L Ed 103, 67
S Ct 133.
Footnote 52. FTC v National Lead Co., 352 US 419, 1 L Ed 2d 438, 77 S Ct 502; FTC
v Ruberoid Co., 343 US 470, 96 L Ed 1081, 72 S Ct 800.
Footnote 53. Chapman v United States, Dept. of Health & Human Services (CA10) 821
F2d 523; NL Industries, Inc. v DOT, 284 US App DC 35, 901 F2d 141, 20 ELR 21132.
The choice of a penalty by an administrative agency if based on substantial evidence and

not outside its statutory authority is a matter of discretion to be exercised solely by the
agency. Warmouth v Delaware State Bd. of Examiners in Optometry (Del Super) 514
A2d 1119.
Footnote 54. Tilley v Frank (MD La) 728 F Supp 1293, 52 BNA FEP Cas 506; Webster v
Department of Army (CA FC) 911 F2d 679, reh, en banc, den (CA FC) 926 F2d 1149
and cert den (US) 116 L Ed 2d 143, 112 S Ct 181 (further stating that reasonable in this
context means merely that the agency's choice of penalty is not grossly disproportionate
to the offense).
The discipline imposed will not be disturbed unless it is shown to have been a manifest
abuse of discretion. Bailey v City of National City (4th Dist) 226 Cal App 3d 1319, 277
Cal Rptr 427, 91 CDOS 569, 91 Daily Journal DAR 839, review den (Cal) 1991 Cal
LEXIS 1451 and cert den (US) 116 L Ed 2d 139, 112 S Ct 176.
An agency decision assessing a penalty should not be set aside unless it is arbitrary,
capricious or characterized as an abuse of discretion. Re McGowan (La App 1st Cir) 533
So 2d 999, cert den (La) 537 So 2d 1168 and cert den 493 US 822, 107 L Ed 2d 46, 110
S Ct 80.
A sanction will be set aside on appeal only if it is arbitrary, capricious or unreasonable.

Re Scioscia, 216 NJ Super 644, 524 A2d 855, 1987-1 CCH Trade Cases ¶ 67562, certif

den 107 NJ 652, 527 A2d 471.
The propriety of a disciplinary measure meted out by the Civil Service Commission is a
matter of internal administration with which a court should not interfere absent a clear
abuse of authority. Long v Wichita Falls (Tex App Fort Worth) 749 SW2d 268, writ den
(Jan 25, 1989).
Footnote 55. Collins v Board of Medical Examiners (2nd Dist) 29 Cal App 3d 439, 105
Cal Rptr 634; Keigan v Board of Registration in Medicine, 399 Mass 719, 506 NE2d
866.
Footnote 56. Cities Service Gas Co. v Peerless Oil & Gas Co., 340 US 179, 95 L Ed
190, 71 S Ct 215; American Power & Light Co. v SEC, 329 US 90, 91 L Ed 103, 67 S
Ct 133; Webster v Department of Army (CA FC) 911 F2d 679, reh, en banc, den (CA
FC) 926 F2d 1149 and cert den (US) 116 L Ed 2d 143, 112 S Ct 181 (whether the court
would have chosen a different penalty is irrelevant).
A sanction imposed by the Public Utilities Commission is to be deemed just and

reasonable if the sanction is within the PUC's statutory authority, if the sanction has a
rational foundation in the facts as found by the PUC, and if the sanction is fairly
proportionate to the seriousness of the violation in view of all the circumstances of the
case. News & Film Service, Inc. v Public Utilities Com. (Colo) 787 P2d 169.
Footnote 57. Cox v United States Dept. of Agriculture (CA8) 925 F2d 1102, cert den
(US) 116 L Ed 2d 141, 112 S Ct 178 (violation of Animal Welfare Act).
Footnote 58. Burnworth v State Bd. of Vehicle Mfrs., Dealers & Salespersons, 139 Pa
Cmwlth 21, 589 A2d 294.
Footnote 59. Kostika v Cuomo, 41 NY2d 673, 394 NYS2d 862, 363 NE2d 568.
Footnote 60. Nathanson v NLRB, 344 US 25, 97 L Ed 23, 73 S Ct 80, 31 BNA LRRM
2036, 22 CCH LC ¶ 67234; NLRB v Gullett Gin Co., 340 US 361, 95 L Ed 337, 71 S
Ct 337, 27 BNA LRRM 2230, 19 CCH LC ¶ 66123.
133 (the commission's discretion must square with its responsibility).
Footnote 62. FTC v Mandel Bros., Inc., 359 US 385, 3 L Ed 2d 893, 79 S Ct 818; FTC
v National Lead Co., 352 US 419, 1 L Ed 2d 438, 77 S Ct 502 (issue is reasonable
relation between remedy and unlawful practices found); Collins v Board of Medical
Examiners (2nd Dist) 29 Cal App 3d 439, 105 Cal Rptr 634 (interference with the
imposition of a penalty by an administrative tribunal will only be sanctioned when there
is an arbitrary, capricious or patently abusive exercise of discretion).
1.
Footnote 64. News & Film Service, Inc. v Public Utilities Com. (Colo) 787 P2d 169.

§ 483 Funding decisions
View Entire Section

Go to Supplement
The allocation of funds from a lump-sum appropriation is a decision committed to agency

discretion. 65 Funding determinations are notoriously unsuitable for judicial review
because they involve the inherently subjective weighing of a large number of varied
priorities which combine to dictate the wisest dissemination of an agency's limited
budget. 66 Where Congress merely appropriates a lump sum without statutorily
restricting what can be done with those funds, a clear inference arises that it does not
intend to impose legally binding restrictions, and indicia in the legislative history as to
how the funds should be spent do not establish any legally binding requirements on the
agency. 67
§ 483 ----Funding decisions [SUPPLEMENT]
Case authorities:
Secretary of Transportation and Federal Highway Administration did not act arbitrarily in
approving use of federal funds for highway project involving destruction of park land
where there was no feasible alternative. Committee to Preserve Boomer Lake Park v
United States Dep't of Transp. (1993, CA10 Okla) 4 F3d 1543, 24 ELR 20142.
Footnotes
in full (CA10) 1993 US App LEXIS 20417; International Union, United Auto., etc. v
Donovan, 241 US App DC 122, 746 F2d 855, cert den 474 US 825, 88 L Ed 2d 66, 106
S Ct 81 and (criticized on other grounds by National Asso. of Counties v Baker, 268 US
App DC 373, 842 F2d 369).
Footnote 66. Community Action of Laramie County, Inc. v Bowen (CA10 Wyo) 866 F2d
347.
in full (CA10) 1993 US App LEXIS 20417, stating that the very point of a lump-sum
appropriation is to give an agency the capacity to adapt to changing circumstances and
meet its statutory responsibilities in what it sees as the most effective or desirable way.
§ 484 Hobbs Act cases

View Entire Section
The limitation in the Administrative Procedure Act that judicial review of agency action
is unavailable to the extent that agency action is committed to agency discretion by law
68 applies to the general grant in the Hobbs Act, 69 of jurisdiction of the federal
Courts of Appeals to review orders of the Interstate Commerce Commission. 70
Footnotes
Footnote 70. Interstate Commerce Com. v Brotherhood of Locomotive Engineers, 482

US 270, 96 L Ed 2d 222, 107 S Ct 2360, 125 BNA LRRM 2526, 106 CCH LC ¶ 12341.
3. Ripeness of Question for Judicial Review [485-504]
a. In General [485, 486]
§ 485 Generally
View Entire Section

The basic rationale of the doctrine of ripeness is to prevent the courts, through avoidance
of premature adjudication, from entangling themselves in abstract disagreements over
administrative policies, and also to protect the agencies from judicial interference until an
administrative decision has been formalized and its effects felt in a concrete way by
challenging parties. 71
The resolution of issues of ripeness requires a two-part inquiry: (1) determination of

whether the issues tendered are appropriate for judicial resolution; and (2) assessment of
the hardship to the parties if judicial relief is denied at that stage. 72 Resolution of
the latter question requires consideration of a variety of pragmatic factors such as
whether the agency's actions or inactions challenged in the law suit are final, 73 whether
the issues presented for a review are primarily legal 74 as opposed to factual in nature,
75 and whether administrative remedies have been exhausted, 76 at least to the extent
that an adequate factual record has been established. 77 Generally speaking,
administrative action is not reviewable in a court unless and until such action results in
the imposition of an obligation, denial of a right, or fixing of some legal relationship as a
consummation of the administrative process. 78 For example, a suit to restrain the

enforcement of an administrative regulation or policy statement is premature where the
agency has not attempted to enforce that regulation or policy statement against the
plaintiff. 79
A court may find an absence of ripeness even where the agency does not raise the
defense. This is clearly so where the issue is so unripe that the petitioner is in substance
asking for an advisory opinion, in violation of the case-or-controversy requirement of
Article III of the Constitution. 80 Even in the absence of any impingement on Article
III, the fact that ripeness rests in part on concerns of judicial economy suggests a need for
independent judicial scrutiny, as occurs under the doctrine of exhaustion. 81
There are instances, however, where pre-enforcement judicial review is not barred by the
ripeness doctrine. 82
Footnotes
2d 409, 105 S Ct 3325, 22 Envt Rep Cas 2033, 15 ELR 20698; Abbott Laboratories v
Gardner, 387 US 136, 18 L Ed 2d 681, 87 S Ct 1507; Continental Air Lines, Inc. v
Civil Aeronautics Board, 173 US App DC 1, 522 F2d 107.
Footnote 72. Toilet Goods Asso. v Gardner, 387 US 158, 18 L Ed 2d 697, 87 S Ct

1520; Abbott Laboratories v Gardner, 387 US 136, 18 L Ed 2d 681, 87 S Ct 1507;
Seafarers International Union v United States Coast Guard (CA2 NY) 736 F2d 19, 1985
AMC 12; Production Credit Asso. v Farm Credit Admin. (CA6 Ohio) 846 F2d 373, cert
den 488 US 851, 102 L Ed 2d 106, 109 S Ct 134; Continental Air Lines, Inc. v Civil
Aeronautics Board, 173 US App DC 1, 522 F2d 107.
F2d 19, 1985 AMC 12.
Footnote 78. Chicago & Southern Air Lines, Inc. v Waterman S.S. Corp., 333 US 103,
92 L Ed 568, 68 S Ct 431.
Footnote 79. California Bankers Asso. v Shultz, 416 US 21, 39 L Ed 2d 812, 94 S Ct

1494, 74-1 USTC ¶ 9318, 33 AFTR 2d 74-1041.
Footnote 81. Natural Resources Defense Council, Inc. v U.S. EPA (App DC) 859 F2d
156, 28 Envt Rep Cas 1401, 19 ELR 20016.

§ 486 Pre-enforcement judicial review
View Entire Section

Pre-enforcement judicial review 83 is restricted, although a court will review a challenge

to a regulation that has a direct and immediate impact on the parties bringing the
challenge. 84 For example, a rule of conduct which carries sanctions for its violation
may be challenged directly in a separate proceeding. If a rule of conduct with sanctions
attached cannot be challenged in advance of violating it, persons subject to the rule are
placed in a dilemma: comply with the rule that harms them and that they believe to be
invalid or violate the rule at the risk of incurring a heavy penalty if they have guessed
wrong and the rule is upheld in the penalty proceeding. In such a case, the judicial
remedy that comes at the end of the penalty proceeding is inadequate in the familiar
equity sense that permits, for example, the issuance of a preliminary injunction in a
damages case upon a showing of irreparable harm. 85 In addition, a regulation which is
to replace a previous regulation and which, as a practical matter, requires the claimant to
adjust its conduct immediately is ripe for review at once, regardless of whether explicit
statutory review apart from the Administrative Procedure Act 86 is provided. 87
Rulings and interpretations issued by an agency head in response to nonhypothetical

questions after the agency's interpretive action has come to an end are final for the
purpose of pre-enforcement review because the review will not disrupt the orderly
process of agency adjudication where the ruling, intended as a deliberative determination
of the agency's position at the highest level on a question of importance, has issued. 88
Likewise, in the context of a pre-enforcement challenge to an administrative regulation, if
a challenge presents a straightforward legal issue, the consideration of which would not
necessarily be facilitated if raised in the context of a specific attempt to enforce the
regulation, and the regulation is self-executing and has an immediate and substantial
impact on the regulated parties, the issue is ripe for judicial review. 89
However, where a regulation promulgated by an administrative agency does not affect

primary conduct, that is, where the impact of the administrative action is not felt
immediately by those subject to it in conducting their day-to-day affairs and no
irremediable adverse consequences flow from requiring a later challenge to the action,
pre-enforcement judicial review is inappropriate because the issue is not ripe. 90 Even
where the wording of an administrative order is in the imperative and the order directs
immediate compliance with its command, and even though there is an administrative
communication presumably threatening civil and criminal liability upon noncompliance,
pre-enforcement review is not available where in fact the administrative order will have
no operative effect on the respondent because no civil or criminal liabilities or any other
adverse consequences can accrue from violating the order in question, and the only
apparent function of the order is to serve as a vehicle by which the agency can notify the
party that it believes the party is violating the requirements of a statute. 91
 Comment: Absent a specific statutory requirement to the contrary, the following

administrative materials, in the view of the Administrative Conference of the United
States, should be before a court for its use in evaluating, on pre-enforcement judicial
review, the factual basis for rules adopted pursuant to the informal procedures
prescribed in the Administrative Procedure Act: 92 (1) the notice of proposed
rulemaking and any documents referred to therein; (2) comments and other documents
submitted by interested persons; (3) any transcripts of oral presentations made in the
course of the rulemaking; (4) factual information not included in the foregoing that was
considered by the authority responsible for promulgation of the rule or that is proffered
by the agency as pertinent to the rule; (5) reports of any advisory committees; and (6)
the agency's concise general statement or final order and any documents referred to
therein. 93 References to the "record" or "whole record" in statutes pertaining to
judicial review of rules adopted pursuant to 5 USCS § 553 should, according to the
Conference, be construed as references to the foregoing, absent evidence of legislative
intent to the contrary; however, the court should not invariably be confined to the
foregoing in making its evaluation. 94
Footnotes
Footnote 83. A pre-enforcement challenge is one brought by a party whom the agency
has not as yet attempted to coerce into compliance with the particular order, rule, or
regulation in question through enforcement proceedings.
Footnote 84. Production Credit Asso. v Farm Credit Admin. (CA6 Ohio) 846 F2d 373,
Footnote 85. Abbs v Sullivan (CA7 Wis) 963 F2d 918, 23 FR Serv 3d 8.
Footnote 86. 5 USCS §§ 701-706.
274, 443 F2d 689.
Footnote 89. Gardner v Toilet Goods Asso., 387 US 167, 18 L Ed 2d 704, 87 S Ct

1526; Abbott Laboratories v Gardner, 387 US 136, 18 L Ed 2d 681, 87 S Ct 1507.
Footnote 90. Toilet Goods Asso. v Gardner, 387 US 158, 18 L Ed 2d 697, 87 S Ct

1520.
Footnote 91. Solar Turbines, Inc. v Seif (CA3 Pa) 879 F2d 1073, 29 Envt Rep Cas 1839,
19 ELR 21091.
Footnote 93. 1 CFR § 305.74-4 (1980).
Footnote 94. 1 CFR § 305.74-4 (1980).

b. Requirement of Final Agency Action [487-504]
(1). In General [487-489]
§ 487 Generally
View Entire Section

Go to Supplement
Statutes relating to judicial review of actions of an administrative agency commonly

provide for review of "orders," 95 "any order," 96 "final orders," 97
"final agency action," as in the case of the Federal Administrative Procedure Act, 98 or
"final decisions," as in the case of some state administrative procedure acts. 99
Even though a statute does not contain the word "final," qualities of administrative
finality in an order or determination are nevertheless essential to invocation of judicial
review, 1 and it is therefore generally required that an administrative order be
final to be subject to judicial review. The finality requirement reflects reasoned policy
judgments that administrative processes should proceed with a minimum of interruption 2
and that litigants as a group are best served by a system which prohibits piecemeal
appellate consideration of rulings that may fade into insignificance by the time the initial
decisionmaker disassociates itself from the matter. 3 This policy is reflected in the
Administrative Procedure Act which provides that a final agency action for which there
is no other adequate remedy in a court is subject to judicial review. 4
 Comment: The l981 Model State Administrative Procedure Act defines final agency
action as the whole or a part of any agency action other than non-final agency action;
non-final agency action means the whole or a part of an agency determination,
investigation, proceeding, hearing, conference, or other process that the agency intends
or is reasonably believed to intend to be preliminary, preparatory, procedural, or
intermediate with regard to subsequent agency action of that agency or another agency.
5
Case authorities:
District Court properly declined to decide APA issue on appeal where Secretary of
Health and Human Services had not had occasion to issue final decision on plaintiff's
claim that Medicare requirement had been promulgated without notice and hearing.
Pleasant Valley Hosp. v Shalala (1994, CA4 W Va) 32 F3d 67, 45 Soc Sec Rep Serv 333.
Attack on authority of agency to conduct investigation does not obviate final agency
action requirement for judicial review; thus, district court was without jurisdiction to hear
petition by sailors to enjoin Coast Guard's investigation of high-seas collision. Veldhoen
v United States Coast Guard (1994, CA5 La) 35 F3d 222.
Where no agency proceeding has taken place for court to review and plaintiffs bring
common law cause of action, APA is not applicable; thus, APA is not applicable to class
suit seeking compensatory damages against District of Columbia for violations of
Randolph-Shepard Act, 20 USCS §§ 107 et seq. Committee of Blind Vendors v District
of Columbia (1994, App DC) 28 F3d 130.
Where plaintiffs sought declaratory and injunctive relief regarding the selection and
testing of potential sites for a disposal facility for low-level radioactive waste, the trial
court properly dismissed claims based on failure to comply with applicable state law,
flawed process of site selection, and violation of due process, since these actions were
commenced when the selection process had been narrowed to two sites; no final decision
had been made; and in matters of this nature which seek solutions to extremely urgent
problems, where the solutions are essential to protect the public health and safety, the
court should be reluctant to interfere until the administrative decision has been finalized.
Richmond County v North Carolina Low-Level Radioactive Waste Management
Authority (1993) 108 NC App 700, 425 SE2d 468.
The trial court erred by denying defendants' amended motion to dismiss plaintiff's state
constitutional due process claim arising from his dismissal as a state employee for
refusing to submit a urine sample as a part of a drug investigation. Plaintiff cannot
maintain this action against the State, its agencies, or employees in their official capacity
because there exists an adequate state remedy in an administrative review of plaintiff's
termination and judicial review in the superior court. Hawkins v State (1995) 117 NC
App 615, 453 SE2d 233, stay gr sub nom Hawkins v State (NC) 454 SE2d 664 and stay
dissolved, writ granted, review gr sub nom Hawkins v State (NC) 455 SE2d 661.
The superior court is without jurisdiction to conduct a judicial review of an agency

decision sought by an aggrieved party, pursuant to GS § 150B-43, who has not first had
the administrative hearing to which he is entitled. Deep River Citizens Coalition v North
Carolina Dep't of Env't, Health & Natural Resources (1995) 119 NC App 232, 457 SE2d
772.
Footnotes
Footnote 95. SEC v Central-Illinois Secur. Corp., 338 US 96, 93 L Ed 1836, 69 S Ct

1377; Federal Power Com. v Pacific Power & Light Co., 307 US 156, 83 L Ed 1180, 59
S Ct 766; Federal Power Com. v Metropolitan Edison Co., 304 US 375, 82 L Ed 1408,
58 S Ct 963.
Footnote 96. United States v Interstate Commerce Com., 337 US 426, 93 L Ed 1451, 69
S Ct 1410; Chicago & Southern Air Lines, Inc. v Waterman S.S. Corp., 333 US 103, 92
L Ed 568, 68 S Ct 431; El Dorado Oil Works v United States, 328 US 12, 90 L Ed
1053, 66 S Ct 843; Columbia Broadcasting System, Inc. v United States, 316 US 407,
86 L Ed 1563, 62 S Ct 1194; Malone Freight Lines, Inc. v United States (ND Ala) 204 F
Supp 745; Hessey v Capital Transit Co., 193 Md 265, 66 A2d 787, 10 ALR2d 1114;
Houk v Beckley, 161 Neb 143, 72 NW2d 664 (any order upon which there has been a
hearing).

Alabama Public Service Com. v Southern R. Co., 341 US 341, 95 L Ed 1002, 71 S Ct

762; La Crosse Tel. Corp. v Wisconsin Employment Relations Bd., 336 US 18, 93 L Ed
463, 69 S Ct 379, 23 BNA LRRM 2236, 16 CCH LC ¶ 64913; NLRB v International
Brotherhood of Electrical Workers, 308 US 413, 84 L Ed 354, 60 S Ct 306, 5 BNA
LRRM 676, 2 CCH LC ¶ 17052, conformed to (CA6) 110 F2d 661, 2 CCH LC ¶ 18566;
Industrial Acci. Board v Glenn, 144 Tex 378, 190 SW2d 805 (final award).
Footnote 99. State ex rel. Leggett v Jensen (Mo) 318 SW2d 353; Orange County v North
Carolina Dept. of Transp., 46 NC App 350, 265 SE2d 890 (holding that a decision by the
State Board of Transportation to deny plaintiffs a hearing before the Board concerning
the location of an interstate highway was a final decision within the meaning of G.S.
150A-43 because the decision affected a right which plaintiffs had pursuant to the
Board's own administrative regulations).
Footnote 1. Chicago & Southern Air Lines, Inc. v Waterman S.S. Corp., 333 US 103, 92
L Ed 568, 68 S Ct 431; Levers v Anderson, 326 US 219, 90 L Ed 26, 66 S Ct 72;
Federal Power Com. v Metropolitan Edison Co., 304 US 375, 82 L Ed 1408, 58 S Ct
963; State v Pollock, 251 Ala 603, 38 So 2d 870, 7 ALR2d 757; Houk v Beckley, 161
Neb 143, 72 NW2d 664; Chastain v Spartan Mills, 228 SC 61, 88 SE2d 836.
Although 28 USCS § 1336 confers jurisdiction on the federal district courts with respect
to "any order" of the Interstate Commerce Commission, "order" means only final orders
of the Commission and not interlocutory or procedural orders. Malone Freight Lines,
Inc. v United States (ND Ala) 204 F Supp 745.
Footnote 2. Community Broadcasting of Boston, Inc. v FCC, 178 US App DC 256, 546
F2d 1022.
Law Reviews: Garrity-Rokous, Preserving review of undeclared programs: a statutory

redefinition of final agency action. 101 Yale Law Journal 643 (December, 1991).
Annotation: What constitutes agency "action," order," decision," "final order," "final
Footnote 3. Aluminum Co. of America v United States, 252 US App DC 377, 790 F2d
938.
Annotation: What constitutes agency "action," "order," "decision," "final order," "final
Forms: Motion–To dismiss action–Administrative action not final. 1A Federal

Procedural Forms, L Ed, Administrative Law § 2:246.

§ 488 Determining finality
View Entire Section

Go to Supplement
Two considerations bear heavily when analyzing the question of whether an agency
action is final or not for the purposes of judicial review: (1) whether the process of
administrative decisionmaking has reached a stage where judicial review will not disrupt
the orderly process of adjudication; and (2) whether rights or obligations have been
determined or legal consequences will flow from the agency decision. 6 The
court will consider the following factors: (1) whether the decision represents the
agency's definitive position on the issue; (2) whether the decision has the status of law
with the expectation of immediate compliance; (3) whether the decision has immediate
impact on the day-to-day operations of the party seeking review; (4) whether the decision
involves a pure question of law that does not require further factual development; 7 and
(5) whether immediate judicial review would speed enforcement of the relevant act. 8
The fact that the statute requires the agency to hold public hearings at which members of
the public may voice their concerns about the decision as to which review is sought tends
to indicate that the agency decision does not have the direct and immediate impact on the
petitioners which the Supreme Court has required. 9 Moreover, a challenge to
administrative action, whether the action is denominated a rule or a complaint, falls
outside the grant of jurisdiction in the Administrative Procedure Act 10 where the only
harm the challenger seeks to avert is the inconvenience of having to go through the
administrative process before obtaining a definitive declaration of his legal rights. 11
Whether an agency action is final does not depend upon semantic characterizations, but
on a careful evaluation of the separate but coordinate functions of the courts and
administrative agencies and of the impact of the challenged action on the parties. 12
Accordingly, it is not conclusive that an administrative determination is couched in terms
of a "no action" decision rather than in the form of a decree binding a party to perform or
refrain from some particular act, where an administrative failure to act otherwise presents
an appropriate occasion for judicial scrutiny. 13
The claim that a regulation is interpretive rather than legislative does not necessarily
make the regulation unripe for review. 14 Absent a contrary indication, courts will
accept the ruling of a board, commission, or head of an agency interpreting a statute as
presumptively final. 15
Federal agency rulemaking action is not final until the agency has complied with the
statutory provision 16 requiring an agency to incorporate in the rules adopted a concise
general statement of their basis and purpose. 17

§ 488 ----Determining finality [SUPPLEMENT]
Case authorities:
With respect to the requirement of final agency action for judicial review under the
Administrative Procedure Act (5 USCS §§ 701 et seq.), the core questions, for purposes
of determining finality, are whether the agency has completed its decisionmaking
process, and whether the result of that process is one that will directly affect other parties.
Dalton v Specter (1994, US) 128 L Ed 2d 497, 114 S Ct 1719, 94 CDOS 3643, 94 Daily
Journal DAR 6846, 8 FLW Fed S 157, digest op at (US) 17 PLW 323 and reh den (US)
129 L Ed 2d 884, 114 S Ct 2771.
Decision of Secretary of Commerce not to adjust census figures for differential

undercounting was final agency action under APA, where figures were used in intra-state
redistricting and federal fund allocation, since secretary is not required to transmit counts
to President before transmitting them to users. City of New York v United States Dep't of
Commerce (1993, ED NY) 822 F Supp 906.
Tobacco companies may proceed with challenge to EPA report classifying environmental
tobacco smoke as known human carcinogen, where report and classification were result
of research program on all aspects of indoor air quality mandated by Radon Act (42
USCS § 7401 note), were intended to have and have had substantial regulatory impact
on smoking in workplace and in public, and have had direct negative effects on
companies, because report and classification constitute final agency action that is ripe for
judicial review under 5 USCS § 704. Flue-Cured Tobacco Coop. Stabilization Corp. v
United States EPA (1994, MD NC) 857 F Supp 1137.
EPA's decision to object does not constitute final agency action and decision not to object
is within sole discretion of agency; thus, neither action may be subjected to judicial
review. Friends of the Crystal River v United States EPA (1994, CA6 Mich) 35 F3d
1073, 39 Envt Rep Cas 1833, 1994 FED App 332P.
Determination of Provider Reimbursement Review Board that it lacked jurisdiction over

issue of whether hospital was entitled to interest on reimbursements after hospital was
determined to be sole community hospital is subject to district court review because
determination was final agency action. OSF Healthcare Sys. v Sullivan (1993, CD Ill)
820 F Supp 390, 41 Soc Sec Rep Serv 177.
EPA's decision to include river on state's list of navigable waters that, after application of
technology- based controls, are not expected to meet prescribed water quality standards,
as well as to include mine on list of point sources discharging toxic pollutants that are
responsible for impairing achievement of water quality standards for such river, was not
final agency action for purpose of action under APA; EPA listing decisions are merely
preliminary steps in process prescribed by 33 USCS § 1314, and do not constitute final
agency action. Hecla Mining Co. v United States EPA (1993, CA9 Idaho) 12 F3d 164, 93
CDOS 9418, 93 Daily Journal DAR 16194, 24 ELR 20233.
District Court erred in holding that FTC's denial of petition for rule making was
nonjusticiable; there appears to be no legislative intent to preclude such petitions, and
such denials appear to be final orders as matter of law. Weight Watchers Int'l v FTC
(1994, CA9 Wash) 47 F3d 990, 95 CDOS 955, 95 Daily Journal DAR 1742, 1995-1 CCH
Secretary of Interior must comply with documentation requirements of National

Environmental Policy Act when designating critical habitat under Endangered Species
Act, and failure to comply constitutes "final agency action" under APA. Catron County
Bd. of Comm'rs v United States Fish & Wildlife Serv. (1996, CA10 NM) 75 F3d 1429,
41 Envt Rep Cas 2057.
Action by United States citizens who are or wish to be employed as captains or crew on
board tuna fishing vessels documented under foreign flags, seeking declaratory and
injunctive relief to prevent enforcement of dolphin encirclement provision of
International Dolphin Conservation Act of 1992 (16 USCS § 1417(a)(2)), is dismissed,
where plaintiffs' counsel sent written request to counsel of National Oceanic and
Atmospheric Administration (NOAA) asking for agency's interpretation of provision and
whether it applied to United States citizens who worked as captains or crew on foreign
flag tuna vessels, and where in response to plaintiffs' inquiry, NOAA counsel stated her
opinion that United States citizens may not lawfully engage in foreign tuna fishing
operations that would involve intentional encirclement of marine mammals unless they
are engaged in approved scientific research and that agency intended to issue rules to
inform public of this interpretation, because letter from NOAA is not final agency action.
Sabella v United States (1994, DC Dist Col) 863 F Supp 1.
Footnotes

5553, 92 Daily Journal DAR 8897, 6 FLW Fed S 650; Port of Boston Marine Terminal
Asso. v Rederiaktiebolaget Transatlantic, 400 US 62, 27 L Ed 2d 203, 91 S Ct 203;
Seafarers International Union v United States Coast Guard (CA2 NY) 736 F2d 19, 1985
AMC 12; New York Shipping Asso. v Federal Maritime Com., 272 US App DC 129, 854
F2d 1338, 129 BNA LRRM 2001, 109 CCH LC ¶ 10681, 1988 AMC 2409, cert den 488
US 1041, 102 L Ed 2d 990, 109 S Ct 866, 130 BNA LRRM 2584, 110 CCH LC ¶
10894.
A final agency action for which there is no other adequate remedy in a court ordinarily
means a final order imposing some sort of sanction. Abbs v Sullivan (CA7 Wis) 963 F2d
918, 23 FR Serv 3d 8.
Generally, only a decision which finally determines the rights of a party and concludes
the action is appealable; a decision issued by a commission hearing committee, after a
contested case, is final and appealable. Zizak v Despatch Industries, Inc. (Minn App)
427 NW2d 755.
For a challenge to administrative action to be ripe, the administrative action sought to be

reviewed must be final, and the anticipated harm caused by the action must be direct and
immediate. Weingarten v Lewisboro, 77 NY2d 926, 569 NYS2d 599, 572 NE2d 40.
The finality requirement is concerned with whether the initial decisionmaker has arrived
on a definitive position on the issue that inflicts an actual concrete injury. El Paso v
Madero Dev. (Tex App El Paso) 803 SW2d 396, writ den (Jun 19, 1991) and rehg of writ
of error overr (Sep 5, 1991) and cert den (US) 117 L Ed 2d 135, 112 S Ct 970.

The test for finality is whether the order makes a final disposition of the subject matter.
Re Pelham North, Inc., 154 Vt 651, 578 A2d 124.
Forms: Motion–To dismiss action–Administrative action not final. 1A Am Jur Pl &

Footnote 7. § 523.
Footnote 8. CEC Energy Co. v Public Service Com. (CA3 VI) 891 F2d 1107; Solar
Turbines, Inc. v Seif (CA3 Pa) 879 F2d 1073, 29 Envt Rep Cas 1839, 19 ELR 21091.
An agency's refusal to issue a declaratory ruling was subject to judicial review as an

agency final decision or order in a contested case where petitioner was an inmate at a
state prison and was designated by the department of corrections as a prisoner with a
history of predatory homosexual behavior while institutionalized; petitioner was entitled
to file an action for judicial review after his request to the department of corrections for a
declaratory ruling on the designation was denied without explanation. Standifer v
Department of Corrections, 187 Mich App 388, 468 NW2d 241.
Footnote 9. Abbott Laboratories v Gardner, 387 US 136, 18 L Ed 2d 681, 87 S Ct 1507.
Footnote 12. Aquavella v Richardson (1971, CA2 NY) 437 F2d 397.
Footnote 13. Medical Committee for Human Rights v SEC, 139 US App DC 226, 432
F2d 659, CCH Fed Secur L Rep ¶ 92708, later proceeding (App DC) CCH Fed Secur L
Rep ¶ 92743 and later proceeding (US) CCH Fed Secur L Rep ¶ 93133 and vacated on
other grounds 404 US 403, 30 L Ed 2d 560, 92 S Ct 577, CCH Fed Secur L Rep ¶
93325.
Footnote 14. Toilet Goods Asso. v Gardner (CA2 NY) 360 F2d 677, affd 387 US 158,
18 L Ed 2d 697, 87 S Ct 1520 and affd 387 US 167, 18 L Ed 2d 704, 87 S Ct 1526;
North American Van Lines, Inc. v Interstate Commerce Com. (ND Ind) 386 F Supp 665.
274, 443 F2d 689.
Footnote 17. P. A. M. News Corp. v Hardin, 142 US App DC 227, 440 F2d 255, appeal
after remand 168 US App DC 376, 514 F2d 272.
§ 489 Effect of petition for rehearing or reconsideration
View Entire Section

The pendency of a petition for reconsideration on the agency action deprives the agency
decision of finality and the federal courts of jurisdiction to review the decision. 18 A
petition for review, unripe because of the pendency of a request for agency
reconsideration, does not ripen so as to vest the court with jurisdiction once the agency
issues its final decision on reconsideration, and a new petition must then be filed. 19
 Comment: The Administrative Procedure Act 20 provides that an agency action

otherwise final is final for the purposes of § 704 whether or not there has been
presented or determined an application for any form of reconsideration. The legislative
history of this section suggests that Congress enacted the provision only to make clear
that there was no requirement that a party seek administrative rehearing as a
prerequisite to judicial review. 21
Furthermore, there is no justification for allowing a petitioner to apply to both the court
and the agency at the same time because such a system could lead only to a waste of
resources on the part of the agency, the court, or both, without any countervailing benefit.
However, when two parties are adversely affected by an agency action, one can petition
for reconsideration before the agency at the same time that the other seeks judicial
redetermination. 22 This rule simply serves the interest of fairness by allowing the
party seeking judicial review to obtain it rather than making that party dependent upon
the whims of the other, and the reasons for countenancing waste of judicial resources
when there are two parties seeking review, one with the agency and one with the court,
do not apply. 23
Under a party-based approach to finality, the pendency of a reconsideration request filed

by one party to a proceeding does not render a decision nonfinal as to other parties who
exclusively seek judicial review. 24
Footnotes
Footnote 18. West Penn Power Co. v United States Environmental Protection Agency
(CA3) 860 F2d 581, 28 Envt Rep Cas 1489, 19 ELR 20221 (Court of Appeals did not
have jurisdiction over petition for review of EPA denial of request to designate area to
attainment status under Clean Air Act when petition for reconsideration brought by same
party was still pending before EPA); Winter v Interstate Commerce Com. (CA8) 851 F2d
1056, 128 BNA LRRM 3041, cert den 488 US 925, 102 L Ed 2d 327, 109 S Ct 308;
United Transp. Union v Interstate Commerce Com., 276 US App DC 374, 871 F2d 1114,
130 BNA LRRM 3130.
Footnote 19. TeleSTAR, Inc. v FCC, 281 US App DC 119, 888 F2d 132, later proceeding
(App DC) 1990 US App LEXIS 7222.


(CA3) 860 F2d 581, 28 Envt Rep Cas 1489, 19 ELR 20221; Winter v Interstate
Commerce Com. (CA8) 851 F2d 1056, 128 BNA LRRM 3041, cert den 488 US 925,
102 L Ed 2d 327, 109 S Ct 308.
(CA3) 860 F2d 581, 28 Envt Rep Cas 1489, 19 ELR 20221.
Footnote 24. ICG Concerned Workers Assn. v United States, 281 US App DC 258, 888
F2d 1455, 132 BNA LRRM 2967.
(2). Matters Amounting to Final Agency Action [490, 491]
§ 490 Delay in agency action which affects legal rights
View Entire Section

Where delay in agency action will inflict such impairment on a party's rights as to
amount to a violation of a legal right, it may be considered "final action" subject to
judicial review. 25 Delay may occur in initiating proceedings 26 or during the course
of the proceedings, 27 and a court may compel agency action unlawfully withheld or
unreasonably delayed. 28 Thus, a claim of unlawful or unreasonable delay establishes
court jurisdiction even though there has been no final agency order. 29
Footnotes
Footnote 25. Deering Milliken, Inc. v Johnston (CA4 NC) 295 F2d 856, 48 BNA LRRM
3162, 43 CCH LC ¶ 17244, conformed to (MD NC) 201 F Supp 185 and (disapproved on
other grounds by Califano v Sanders, 430 US 99, 51 L Ed 2d 192, 97 S Ct 980, 42 Cal
Comp Cas 1112); Poirrier v St. James Parish Police Jury (ED La) 372 F Supp 1021, affd
(CA5 La) 531 F2d 316, reh den (CA5 La) 537 F2d 840; International Asso. of Machinists
& Aerospace Workers v National Mediation Bd., 138 US App DC 96, 425 F2d 527, 73
BNA LRRM 2278, 62 CCH LC ¶ 10621.
Footnote 26. Caswell v Califano (DC Me) 435 F Supp 127, affd (CA1 Me) 583 F2d 9;
North American Van Lines, Inc. v United States (ND Ind) 412 F Supp 782; EEOC v
Westinghouse Electric Corp. (ED Mo) 450 F Supp 792, 17 BNA FEP Cas 904, 17 CCH
EPD ¶ 8458, affd in part and revd in part on other grounds (CA8 Mo) 592 F2d 484, 19
BNA FEP Cas 42, 18 CCH EPD ¶ 8929; Nader v FCC, 172 US App DC 1, 520 F2d 182.
Footnote 27. Silverman v NLRB (CA2) 543 F2d 428, 92 BNA LRRM 2919, 78 CCH LC
¶ 11472; North American Van Lines, Inc. v United States (ND Ind) 412 F Supp 782.

Forms: Petition or application–Refusal of administrative agency to act on petition. 1A
Petition or application–Refusal of administrative official to issue certificate or permit.

Petition or application–Refusal of administrative official to issue certificate or

permit–Subsequent to order for issuance by administrative board. 1A Am Jur Pl & Pr
Footnote 29. International Asso. of Machinists & Aerospace Workers v National

Mediation Bd., 138 US App DC 96, 425 F2d 527, 73 BNA LRRM 2278, 62 CCH LC ¶
10621.
§ 491 Informal agency action
View Entire Section

Informal agency action may be final agency action under certain circumstances, where
one or more of the following elements is present: (1) direct and immediate impact on
regulated industries as a result of the action; (2) reliance by regulated parties on the
action; (3) agency position expressed in the action which represents the agency's final,
crystallized position on the matter in question; or (4) direct responsibility for the action in
a high level official. 30
Footnotes
Footnote 30. American Maritime Asso. v Blumenthal (DC Dist Col) 458 F Supp 849,
affd 192 US App DC 40, 590 F2d 1156, cert den 441 US 943, 60 L Ed 2d 1045, 99 S Ct
2161.
(3). Matters Not Amounting to Final Agency Action [492-499]
§ 492 Generally
View Entire Section

Go to Supplement
Nonfinal agency action which is not subject to judicial review is present where–

–an agency decides to assert original jurisdiction. 31
–an agency action has the effect of requiring a party to participate in an agency
proceeding. 32
–an agency eliminates the right to enforce a prior decision. 33
–an administrative order determines liability but does not decide damages. 34
–an order is remanded to the administrative law judge for the taking of additional
evidence and does not award compensation or monetary benefits. 35
–an agency decides to propose legislation. 36
–an agency prepares a memorandum expressing an opinion as to the unsatisfactory nature

of a master plan. 37
–an agency publishes a generic product list to aid consumers. 38 Moreover, an agency
cannot, by its drafting of internal agency rules, confer on the petitioner the right to
judicial review of what in the courts' view is not final agency action. 39
Other, more specific, agency actions insufficient to justify judicial review were present
where–
–a member of the Federal Communications Commission expressed his personal views in

a speech. 40
–a local agency functioning in connection with HUD in awarding contracts limited access
to specifications and bid forms to licensed contractors. 41
–an agency gave notice of termination of contracts which contain termination clauses. 42
–the Secretary of State enacted regulations for the preservation of fishing pursuant to a
delegation of power from the President. 43
–an agency responded to a request for "official guidance" and "advice" relating to the
interpretation of a statute, even though, as a result of the agency's response, the plaintiff's
insurer independently decided to increase liability insurance premiums. 44
Case authorities:
The actions of the Secretary of Defense and of an independent Defense Base Closure and
Realignment Commission, in recommending closures and realignments pursuant to the
Defense Base Closure and Realignment Act of 1990, as amended (note following 10
USCS § 2687), cannot be reviewed under the Administrative Procedure Act (APA) (5
USCS §§ 701 et seq.), because the APA provides in 5 USCS § 704 for judicial review of
only "final" agency actions, and such actions of the Secretary and the Commission are
not final agency actions, where (1) under the 1990 Act, the reports submitted by the
Secretary and the Commission concerning their recommendations carry no direct
consequences for base closings, as all the action that will affect military bases is taken by
the President of the United States when the President submits a certification of approval
to Congress; (2) accordingly, the reports of the Secretary and the Commission serve more
like tentative recommendations than final and binding determinations; (3) the 1990 Act
does not by its terms circumscribe the President's discretion to approve or disapprove a
report by the Commission; and (4) it is immaterial for such finality purposes that the
President cannot pick and choose among bases and must accept or reject the entire
package offered by the Commission, for what is crucial is the fact that the President, not
the Commission, takes the final action that affects the military installations. Dalton v
Specter (1994, US) 128 L Ed 2d 497, 114 S Ct 1719, 94 CDOS 3643, 94 Daily Journal
DAR 6846, 8 FLW Fed S 157, digest op at (US) 17 PLW 323 and reh den (US) 129 L
Ed 2d 884, 114 S Ct 2771.
Federal Court of Appeals does not have jurisdiction over claim brought by group of
property owners and residents against federal officials regarding violations of National
Environmental Policy Act (NEPA) (42 USCS §§ 4321 et seq.), where final agency action
has not taken place under 5 USCS § 704, because federal officials had not completed
decisionmaking process and draft EIS had not been issued regarding utility proposal for
construction of high-voltage transmission line which plaintiffs opposed. Muhly v Espy
(1995, WD Va) 877 F Supp 294.
Because methods employed by Army Corps of Engineers to help migrating salmon,

including surface transportation of juvenile salmon and river flow improvement
measures, are not "connected actions", government's exclusion of transportation method
from scope of environmental impact statement was not final agency action subject to
review. Northwest Resource Info. Ctr. v National Marine Fisheries Serv. (1995, CA9 Or)
56 F3d 1060, 95 CDOS 4058, 40 Envt Rep Cas 1996.
Footnotes
938.
938.
938.
Footnote 34. Holiday Spas v Montgomery County Human Relations Com., 315 Md 390,
554 A2d 1197.
Footnote 35. St. Paul Ins. Co. v De Sota, 30 Ark App 45, 782 SW2d 374; Warner v
District of Columbia Dept. of Employment Services (Dist Col App) 587 A2d 1091.
Footnote 36. Atchison, T. & S. F. R. Co. v Callaway (DC Dist Col) 459 F Supp 188, 12
Footnote 37. Friends of Yosemite v Frizzell (ND Cal) 420 F Supp 390, 10 Envt Rep Cas
1159, 7 ELR 20087.

Footnote 38. Pharmaceutical Mfrs. Asso. v Kennedy (DC Md) 471 F Supp 1224.
Footnote 39. Law Offices of Seymour M. Chase, P.C. v FCC, 269 US App DC 24, 843
F2d 517 (no review of FCC order disqualifying attorney from appearing as counsel for
applicant in a licensing proceeding).
Forms: Motion–To dismiss action–Administrative action not final. 1A Am Jur Pl &

Footnote 40. Illinois Citizens Committee for Broadcasting v FCC, 169 US App DC 166,
515 F2d 397.
Footnote 41. Guesnon v McHenry (CA5 La) 539 F2d 1075.
Footnote 42. National Helium Corp. v Morton (CA10 Kan) 486 F2d 995, 6 Envt Rep Cas
1001, 4 ELR 20041, 47 OGR 1, cert den 416 US 993, 40 L Ed 2d 772, 94 S Ct 2405, 6
Envt Rep Cas 1622.
Footnote 43. Jensen v National Marine Fisheries Service (NOAA) (CA9 Wash) 512 F2d
1189.
Footnote 44. Boating Indus. Ass'ns v Marshall (CA9 Cal) 601 F2d 1376.
Landowner's claim that the application of various zoning laws and regulations to its
property amounted to a deprivation of property without due process under the Fourteenth
Amendment was premature where, at the time the landowner brought the court action to
vindicate the claim, the effect of the application of those zoning laws and regulations on
the value of the landowner's property and investment-backed profit expectations could
not be measured because no final administrative decision had been made as to how those
zoning laws and regulations would be applied to the landowner's property. Williamson
County Regional Planning Com. v Hamilton Bank of Johnson City, 473 US 172, 87 L
Ed 2d 126, 105 S Ct 3108, on remand (CA6 Tenn) 779 F2d 50.
§ 493 Agency regulations
View Entire Section

Unless a statutory provision enables the promulgation of an administrative regulation to

serve as an agency action within the meaning of the Administrative Procedure Act 45
–which action, as such, can be the object of direct judicial review even before the
concrete effects normally required for review under the APA are felt–a regulation is not
ordinarily considered the type of agency action that is ripe for judicial review under the
APA until the scope of the controversy has been reduced to more manageable
proportions, and its factual components fleshed out, by some concrete action applying the
regulation to the claimant's situation in a fashion that harms or threatens to harm the
claimant. 46
Footnotes
As to agency action, in general, see § 468.
§ 494 Filing of administrative complaint
View Entire Section

The filing of an administrative complaint is not a final agency action or action otherwise
directly reviewable under the Administrative Procedure Act. 47 Such action is not a
definitive ruling or regulation, and has no legal force or practical effect upon the
respondent's daily business other than the disruptions that accompany any major
litigation, and immediate judicial review would serve neither efficiency nor enforcement
of a statute. 48 The disruptions caused are not enough to make the ordinary judicial
remedy–review of the sanction when and if imposed–inadequate within the meaning of
the statute. 49
Footnotes
§ 495 Complaint that agency has reason to believe respondent has committed
violation
View Entire Section

The issuance by an agency of a complaint stating that the agency has reason to believe
that a respondent is violating a statute does not constitute final agency action or action
otherwise directly reviewable under 5 USCS § 704 because–
–the issuance of the complaint is not a definitive ruling or regulation and has no legal
force or practical effect upon the respondent's daily business other than the disruptions
that accompany any major litigation, and immediate judicial review would serve neither
efficiency nor enforcement of the applicable statute.
–even though the company may have exhausted its administrative remedy as to the
averment of "reason to believe" by requesting the agency to withdraw the complaint and
awaiting the agency's refusal to do so, the agency's refusal to reconsider issuance of the
complaint does not render the complaint a definitive action for which judicial review
might be had.
–the expense and annoyance of litigation does not constitute irreparable harm, and mere
litigation expense, even substantial and unrecoupable cost, does not constitute irreparable
injury.
–issuance of the complaint by the agency is a step forward, and will merge in, the agency
decision on the merits and therefore the claim of illegality in issuance of the complaint is
not a collateral order subject to review. 50
Footnotes
1980-81 CCH Trade Cases ¶ 63665 (FTC issuance of a complaint averring reasons to
believe that company was violating § 5 of Federal Trade Commission Act (15 USCS §
45)).
§ 496 Challenge to entire program
View Entire Section

Go to Supplement
A complaint challenging the entirety of an agency program and not referring to a single
agency order or regulation or even to a completed universe of particular agency orders
and regulations does not identify a final agency action within the meaning of the
Administrative Procedure Act. 51 Alleged flaws in an entire "program" cannot be laid
before the courts for wholesale correction under § 702 simply because one of the actions
that is ripe for review adversely affects one of the plaintiff organization's members. 52
§ 496 ----Challenge to entire program [SUPPLEMENT]
Case authorities:
Merit Systems Protection Board is not authorized to consider FOIA and Privacy Act
claims; proper forum is federal district court after exhaustion of administrative remedies.
Normoyle v Department of the Air Force (1994, MSPB) 65 MSPR 80.
Footnotes
§ 497 Threatened and pending action
View Entire Section

Judicial relief or review is often denied for lack of finality where action of the
administrative agency is only anticipated, even though threatened, 53 or where,
although the agency has actually taken some action, the action is still pending without
final disposition. 54 The courts state various grounds for denying relief or review
under these circumstances, such as–
–that the courts will not render a decree in advance of the agency's action and thereby
render the action nugatory. 55
–that until the administrative agency has acted, the complainant can show no more than
apprehension that it will perform its duty wrongly. 56
–that it is not for a court to stop an administrative officer from performing his statutory
duty for fear he will perform it wrongly, 57 particularly where the statute is not
unconstitutional on its face and there is only an anticipation of improper or invalid action
in administration. 58
–that to interfere with action which is simply "threatened" would render a statute
unworkable and unenforceable and would unduly hamper the discharge by the
administrative agencies of their responsibility. 59
–that as long as the proceedings are in process, the courts will not interfere with the
hearing and disposition of matters before the departments of the federal government. 60
–that prior to final administrative determination the party seeking relief has not suffered a
present injury. 61
Administrative proceedings will not be interfered with by mandamus or injunction where

denial of such relief will involve no more harm to the party seeking it than the possibility
that he will be put to unnecessary expense incident to the proceeding, 62 even where
the agency may be exceeding its jurisdiction. 63 Nor do the serious but unavoidable
damages incident to the filing of a complaint before an administrative agency constitute
such injury as warrants judicial relief, 64 even though the agency action is attacked
on constitutional grounds. 65 However, a determination which has the effect of
immediately exposing a person to the threat of penalties is reviewable, 66 and the
Declaratory Judgment Act may provide a remedy available against threatened or pending
action. 67
Footnotes
Footnote 53. Eccles v Peoples Bank of Lakewood Village, 333 US 426, 92 L Ed 784,
68 S Ct 641, reh den 333 US 877, 92 L Ed 1153, 68 S Ct 909 and (not followed on
other grounds by Dickinson v Indiana State Election Bd. (SD Ind) 740 F Supp 1376);
Thomas v Ramberg, 240 Minn 1, 60 NW2d 18, 24 CCH LC ¶ 67755.
Footnote 54. Industrial Acci. Board v Glenn, 144 Tex 378, 190 SW2d 805.
Where the Interstate Commerce Commission issued a declaratory order that rates for car
hire established by agreement among railroads were just and reasonable, which was
attacked on the ground that such an order was beyond the adjudicatory jurisdiction of the
commission and lay exclusively within its rulemaking powers, and the District Court set
aside the order on the merits and remanded the cause for further investigation which
would result in new findings or the establishment of a new rate under the rulemaking
procedure, the question whether the commission had adjudicatory jurisdiction to
determine a rate was prematurely presented to the Supreme Court. Boston & M. R. Co. v
United States, 358 US 68, 3 L Ed 2d 34, 79 S Ct 107.
As to application of doctrine of exhaustion of administrative remedy, see §§ 505 et seq.
Footnote 55. Marquez v Frisbie, 101 US 473, 11 Otto 473, 25 L Ed 800.
In the absence of a showing of irreparable injury it must be held that in the interest of
orderly and uninterrupted administrative actions an injunction should not issue to
interfere with the commission's administrative proceedings; to hold otherwise would
render administrative agencies subject to harassment and prevent them from performing
their functions through frequent attacks upon their jurisdiction. Thomas v Ramberg, 240
Minn 1, 60 NW2d 18, 24 CCH LC ¶ 67755.
Footnote 56. Pacific Tel. & Tel. Co. v Seattle, 291 US 300, 78 L Ed 810, 54 S Ct 383
(refusing to enjoin the collection of a municipal license tax, where the administrative
officer whose duty it is to interpret the ordinance challenged as unconstitutional by the
taxpayer has not yet acted); Kendall v Beiling, 295 Ky 782, 175 SW2d 489.
Footnote 57. Waite v Macy, 246 US 606, 62 L Ed 892, 38 S Ct 395; First Nat. Bank v
Albright, 208 US 548, 52 L Ed 614, 28 S Ct 349 (refusing to enjoin the reassessment of
a tax on the property of a national bank).
Footnote 58. Continental Baking Co. v Woodring, 286 US 352, 76 L Ed 1155, 52 S Ct

595, 81 ALR 1402; Dalton Adding Machine Co. v State Corp. Com., 236 US 699, 59 L
Ed 797, 35 S Ct 480 (declining to enjoin state officers from enforcing a statute requiring
foreign corporations doing business in the state to obtain a license).
Footnote 59. Scott v Lowe, 223 Miss 312, 78 So 2d 452.

Footnote 60. Degge v Hitchcock, 229 US 162, 57 L Ed 1135, 33 S Ct 639, 4 AFTR
4698; Plested v Abbey, 228 US 42, 57 L Ed 724, 33 S Ct 503; New Orleans v Paine,
147 US 261, 37 L Ed 162, 13 S Ct 303; United States ex rel. Boynton v Blaine, 139 US
306, 35 L Ed 183, 11 S Ct 607.
An army officer's suit to enjoin his removal from the active list of the regular army
pursuant to the recommendation of an army board of review that he be given a general
discharge is premature where the Secretary of the Army has not exercised the
discretionary authority to remove him conferred by 10 USCS § 3794, which provides
that the Secretary of the Army may remove an officer from the active list of the regular
army if his removal is recommended by a board of review. Beard v Stahr, 370 US 41, 8
L Ed 2d 321, 82 S Ct 1105.
Footnote 61. Pacific Tel. & Tel. Co. v Seattle, 291 US 300, 78 L Ed 810, 54 S Ct 383
(denying injunction against collection of tax, where claim that constitutional rights were
violated by tax ordinance depended on reasonableness of administrative regulations not
yet formulated); First Nat. Bank v Albright, 208 US 548, 52 L Ed 614, 28 S Ct 349
(refusing injunction against threatened mode of assessment, where tax assessment was
not yet made); Litchfield v Register & Receiver, 76 US 575, 9 Wall 575, 19 L Ed 681;
Thomas v Ramberg, 240 Minn 1, 60 NW2d 18, 24 CCH LC ¶ 67755.
The Federal Trade Commission's issuance of a complaint averring "reason to believe"

that a company was violating the Federal Trade Commission Act by engaging in unfair
methods of competition or unfair or deceptive acts or practices is not "final agency
action" under the APA so as to be subject to judicial review before the conclusion of an
administrative adjudication by the Commission; the issuance of a complaint is not a
definitive ruling or regulation and has no legal force or practical effect upon the
company's daily business other than the disruptions that accompany any major litigation.
FTC v Standard Oil Co., 449 US 232, 66 L Ed 2d 416, 101 S Ct 488, 1980-81 CCH
An injunction will not lie to restrain the Federal Trade Commission from enforcing its
orders where it has not issued any notice of default on the orders and has not forwarded
the orders to the Attorney General for enforcement. St. Regis Paper Co. v United States,
368 US 208, 7 L Ed 2d 240, 82 S Ct 289, reh den 368 US 972, 7 L Ed 2d 401, 82 S Ct
437 and motion den 369 US 809, 7 L Ed 2d 611, 82 S Ct 686.
Footnote 62. Whitehouse v Illinois C. R. Co., 349 US 366, 99 L Ed 1155, 75 S Ct 845,

36 BNA LRRM 2203, 28 CCH LC ¶ 69246, modif den 350 US 811, 100 L Ed 727, 76
S Ct 37.
Footnote 63. United States v Illinois C. R. Co., 244 US 82, 61 L Ed 1007, 37 S Ct 584;
Thomas v Ramberg, 240 Minn 1, 60 NW2d 18, 24 CCH LC ¶ 67755 (stating that
whether, in extremely exceptional cases, the expenses of continuing the hearing would
constitute irreparable injury need not now be determined); Houk v Beckley, 161 Neb
143, 72 NW2d 664.
25 CCH LC ¶ 68407 (ovrld on other grounds by Warden, Lewisburg Penitentiary v
Marrero, 417 US 653, 41 L Ed 2d 383, 94 S Ct 2532) as stated in United States v Breier
(CA9 Cal) 813 F2d 212, cert den 485 US 960, 99 L Ed 2d 423, 108 S Ct 1222 and
(criticized by Martin v United States (CA8) 989 F2d 271), stating that it is clear that once
the right of the government to hold administrative hearings is established, a litigant
cannot enjoin them merely because they might jeopardize his bank credit or otherwise be
inconvenient or embarrassing; the expense and annoyance of litigation is part of the
social burden of living under government.
Footnote 65. Twentieth Century Airlines v Ryan (US) 98 L Ed 1143, 74 S Ct 8, per

Reed, J. as circuit justice; Thomas v Ramberg, 240 Minn 1, 60 NW2d 18, 24 CCH LC ¶
67755.
Footnote 66. See Frozen Food Express v United States, 351 US 40, 100 L Ed 910, 76 S
Ct 569.
§ 498 Preliminary, procedural, or intermediate action
View Entire Section

Go to Supplement
Under the Administrative Procedure Act, preliminary, procedural, or intermediate actions

or rulings of an agency which are not directly reviewable are subject to review at the time
of the review of the final agency action. 68 Administrative agencies have an inherent
authority to reconsider a prior determination which is not final and should be permitted to
complete deliberation in the case before a right to judicial intervention ripens. 69 An
agency's procedural or evidentiary rulings in the course of its proceedings also do not
constitute final orders justifying judicial review, except in extreme instances where the
action is found to constitute an effective deprivation of an appellant's rights. 70 For
example, orders initiating investigations are interlocutory in nature and not reviewable
until a final order is entered as a result of the investigation. 71 The issuance of a stay
order is also interlocutory and not a final judgment as it does not determine the issues
presented by the parties which would ascertain and fix absolutely and finally the right to
the parties to the lawsuit. 72 Accordingly, a denial of a motion to intervene or a denial
of a motion for summary judgment will not ordinarily be reviewable except upon review
of the final agency action, 73 unless the party has a statutory right to intervene. 74
However, if an agency exercises authority that is clearly beyond its jurisdiction, acts in a
manner contrary to a specific statutory mandate, or violates the constitutional rights of
the parties, judicial review of interlocutory orders may be proper. 75
 Comment: Under the 1981 Model State Administrative Procedure Act, judicial
review of nonfinal agency action is available only if: (1) it appears likely that the
person will qualify for judicial review of the related final agency action; and (2) the
postponement of judicial review would result in an inadequate remedy or irreparable
harm disproportionate to the public benefit derived from postponement. 76 Under the
1961 Model State Administrative Procedure Act, a preliminary, procedural, or
intermediate agency action or ruling is specifically made immediately reviewable if
review of the final agency decision would not provide an adequate remedy. 77
§ 498 ----Preliminary, procedural, or intermediate action [SUPPLEMENT]
Case authorities:
Common pleas court acted without jurisdiction in hearing an appeal of township fire
marshal's report prohibiting day-care center's use of the second floor of the facility for
child care; the fire marshal's determination was not the act of the highest or ultimate
authority of an agency pursuant to RC § 119.12(D), since the fire inspector's report was a
purely executive function, and ultimate determination of whether or not day- care center
should receive its license was reserved for the Director of Human Services. Russell v
Harrison Township Montgomery County (1991, Mont) 75 Ohio App 3d 643, 600 NE2d
374.
Motion to dismiss is granted to FTC in action brought by weight-loss company, where

company sought declaration that agency abused discretion in conducting investigation
into advertising in weight-loss industry and then declining industry request for
rulemaking proceeding, since without final agency action court had no power to review
matter or grant relief. Weight Watchers v FTC (1993, WD Wash 830 F Supp 539, 1993-2
Footnotes
Action to enjoin construction of private park is not ripe under § 704 where complaint
alleges failure of government to enforce restriction on development financed by
conservation funds and government has made only preliminary determination to allow
development. Jersey City v Hodel (DC NJ) 714 F Supp 126.
Agency announcement of intent to preempt inconsistent state regulations in response to

state petition does not constitute reviewable final agency action because announcement
indicates intent of agency to conduct further administrative proceedings to determine
whether given state regulation is inconsistent with national policy and does not purport to
preempt specific state regulation. Alascom, Inc. v FCC, 234 US App DC 113, 727 F2d
1212.
Footnote 69. Murray v Scully (3d Dept) 170 App Div 2d 829, 565 NYS2d 631, app den
78 NY2d 856, 574 NYS2d 937, 580 NE2d 409.
Footnote 70. Thermal Ecology Must Be Preserved v Atomic Energy Com., 139 US App
DC 366, 433 F2d 524, 2 Envt Rep Cas 1379, 1 ELR 20078.
The civil service commission's "findings of fact" at most constituted a conditional or

interim order, but they did not constitute the final order; the findings of fact expressly
provided that the final order was forthcoming. Jackson Police Dept. v Lawrence (Miss)
562 So 2d 84.

Footnote 71. International Waste Controls, Inc. v SEC (SD NY) 362 F Supp 117, CCH
Fed Secur L Rep ¶ 94111, affd (CA2 NY) 485 F2d 1238.
Footnote 72. Gorr v Board of Fire & Police Comrs. (2d Dist) 129 Ill App 3d 327, 84 Ill
Dec 627, 472 NE2d 587.
Footnote 73. American Trucking Assos. v Interstate Commerce Com. (CA5) 673 F2d 82,
cert den 460 US 1022, 75 L Ed 2d 493, 103 S Ct 1272, later proceeding (CA5) 728 F2d
254 and appeal after remand (CA5) 770 F2d 535; Duke v Gardner (CA5 Ga) 387 F2d
336, 11 FR Serv 2d 1265; American General Ins. Co. v FTC (DC Tex) 359 F Supp 887,
1973-1 CCH Trade Cases ¶ 74570, affd (CA5 Tex) 496 F2d 197, 1974-1 CCH Trade
Cases ¶ 75128; International Workers Order, Inc. v McGrath, 86 US App DC 287, 182
F2d 368, revd on other grounds 341 US 123, 95 L Ed 817, 71 S Ct 624.
Footnote 74. Interstate Broadcasting Co. v United States, 109 US App DC 255, 286 F2d
539.
Footnote 75. Pepsico, Inc. v FTC (CA2 NY) 472 F2d 179, 1972 CCH Trade Cases ¶
74260, cert den 414 US 876, 38 L Ed 2d 122, 94 S Ct 44; Coca-Cola Co. v FTC (CA5
Ga) 475 F2d 299, 1973-1 CCH Trade Cases ¶ 74360, cert den 414 US 877, 38 L Ed 2d
122, 94 S Ct 121; Seven-Up Co. v FTC (CA8 Mo) 478 F2d 755, 1973-1 CCH Trade
Cases ¶ 74528, cert den 414 US 1013, 38 L Ed 2d 251, 94 S Ct 379.
§ 499 Tentative action not finalized by agency
View Entire Section

Go to Supplement
While the statutory definition of agency action includes failure to act, 78 a matter is
generally not ripe for judicial intervention if the agency is studying whether or not to take
action. 79 An agency action is not final for purposes of judicial review under the
Administrative Procedure Act 80 if the action is only tentative or the ruling of the
subordinate official. 81
An agency action is not final even though an administrative proceeding has reached the
adjudication stage and the administrative law judge has entered a recommended decision,
where the decision is still pending before the head of the agency. 82 Likewise, there is
no final agency action on a motion for rehearing until that motion has been denied. 83
§ 499 ----Tentative action not finalized by agency [SUPPLEMENT]
Case authorities:
The actions of the Secretary of Defense and of an independent Defense Base Closure and
Realignment Commission, in recommending closures and realignments pursuant to the
Defense Base Closure and Realignment Act of 1990, as amended (note following 10
USCS § 2687), cannot be reviewed under the Administrative Procedure Act (APA) (5
USCS §§ 701 et seq.), because the APA provides in 5 USCS § 704 for judicial review of
only "final" agency actions, and such actions of the Secretary and the Commission are
not final agency actions, where (1) under the 1990 Act, the reports submitted by the
Secretary and the Commission concerning their recommendations carry no direct
consequences for base closings, as all the action that will affect military bases is taken by
the President of the United States when the President submits a certification of approval
to Congress; (2) accordingly, the reports of the Secretary and the Commission serve more
like tentative recommendations than final and binding determinations; (3) the 1990 Act
does not by its terms circumscribe the President's discretion to approve or disapprove a
report by the Commission; and (4) it is immaterial for such finality purposes that the
President cannot pick and choose among bases and must accept or reject the entire
package offered by the Commission, for what is crucial is the fact that the President, not
the Commission, takes the final action that affects the military installations. Dalton v
Specter (1994, US) 128 L Ed 2d 497, 114 S Ct 1719, 94 CDOS 3643, 94 Daily Journal
DAR 6846, 8 FLW Fed S 157, digest op at (US) 17 PLW 323 and reh den (US) 129 L
Ed 2d 884, 114 S Ct 2771.
Ruling by designee of Secretary of HUD, issuing determination affirming ALJ's decision

that HUD had authority to effect offset against funding corporation as result of default
under mortgage-backed securities program by withholding money from judgment HUD
was to pay corporation and directing ALJ to "proceed with the administrative process in
accord with HUD regulations," was not "final agency action" which, under HUD
regulations, becomes final only when deputy assistant secretary makes determination of
indebtedness in written decision. DRG Funding Corp. v Secretary of HUD (1996, App
DC) 76 F3d 1212, reh den (1996, App DC) 1996 US App LEXIS 11545.
Footnotes
Footnote 79. Committee against Railroad Relocation v Adams (ED Ark) 471 F Supp 142,
9 ELR 20752.
Footnote 82. Uniroyal, Inc. v Marshall (CA7 Ind) 579 F2d 1060, 17 BNA FEP Cas 1207,
17 CCH EPD ¶ 8418.
869, 81 S Ct 1611.
Forms: Notice–Appeal to court from administrative order or decision–On rejection of

application for rehearing. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form
245.
Petition or application–For review of administrative order–Denial of administrative

rehearing. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 267.
(4). Exceptions to Finality Requirement [500-504]
§ 500 Jurisdictional defects
View Entire Section

Cases in which there is a clear jurisdictional defect constitute an exception to the final
order requirement. However, where jurisdiction is in dispute the agency should be
allowed to make the initial determination of its jurisdiction. 84
Footnotes
3041, cert den 488 US 925, 102 L Ed 2d 327, 109 S Ct 308 (a rate filing clearly outside
the bounds of an agency's statutory authority is immediately reviewable).
Forms: Petition to review administrative order–Allegation–Order in excess of

jurisdiction of agency [5 USCS § 706]. 2 Federal Procedural Forms, L Ed, Appeal,
§ 501 Irreparable harm caused by agency action
View Entire Section

Under the l981 Model State Administrative Procedure Act, a person is entitled to judicial
review of non-final agency action only if: (1) it appears likely that the person will
qualify under § 5-102 for judicial review of the related final agency action; and (2)
postponement of judicial review would result in an inadequate remedy or irreparable
harm disproportionate to the public benefit derived from postponement. 85
For example, agency action which amounts to a "blacklisting" of the respondent can
inflict the sort of harm that entitles people to maintain suit in a federal court and may
authorize immediate judicial review of the agency action where the harm is such that it
cannot be removed by ultimate vindication years afterward, thereby making the harm

irreparable and the alternative judicial remedy inadequate. 86
Footnotes
Forms: Order–Temporarily staying enforcement of order revoking license–Irreparable

loss and damage. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 351.
§ 502 Hardship of withholding judicial review
View Entire Section

Agency action which is not final may nevertheless be reviewable in instances where
withholding immediate judicial review will work a hardship on the parties. Hardship is
present only when the agency action in question has a direct and immediate effect on, or
causes a change in, the day-to-day behavior of the complaining party. 87 The hardship
involved may be: (1) economic, as where the expense of complying with agency
regulations would be great; 88 (2) exposure to criminal penalties for noncompliance;
89 (3) a loss of the benefits of a government program, such as medical benefits under
Medicare; 90 or (4) damage to the environment. 91
Footnotes
Footnote 87. Abbott Laboratories v Gardner, 387 US 136, 18 L Ed 2d 681, 87 S Ct

1507.

1507.
791, 97 S Ct 811.
Footnote 90. Florida v Weinberger (CA5 Fla) 492 F2d 488, appeal after remand (CA5
Fla) 526 F2d 319.
Footnote 91. Natural Resources Defense Council, Inc. v United States Nuclear
Regulatory Com. (CA2) 539 F2d 824, 8 Envt Rep Cas 2065, 6 ELR 20513, later
proceeding (CA2) 9 Envt Rep Cas 1414, 6 ELR 20723 and vacated on other grounds 434
US 1030, 54 L Ed 2d 777, 98 S Ct 759, 98 S Ct 760, 11 Envt Rep Cas 1098.

§ 503 Institutional concerns justifying review
View Entire Section

Go to Supplement
Institutional concerns may justify early review of agency action despite the absence of
conventional hardship. Early review may be appropriate where: (1) a statutory review
provision requires parties to challenge newly promulgated regulations within a brief time
period and bars those challenges at the enforcement stage; (2) the agency urges the court
not to postpone review, but rather seeks an early and final resolution of legal attacks on
decisions that form the keystone of a complex regulatory program; and (3) there is no
compelling judicial interest in deferring review. Where there are institutional benefits for
the courts or the agency in deferring review, the court must consider the hardship to the
challenging parties from delay and proceed to the merits only when the benefits outweigh
the hardship. 92
For the above conditions to justify early review, the issues raised should be pure issues of
law and the agency's position should be final and fully crystallized. Crystallization of the
agency position means that the agency position is final and that its regulations'
vulnerability to attack is not materially dependent upon further interpretations. 93
§ 503 ----Institutional concerns justifying review [SUPPLEMENT]
Case authorities:
Organization of ranchers who have permits to use forest for livestock grazing lacks
standing to challenge Forest Service's Land and Resource Management Plan under
National Environmental Policy Act and National Forest Management Act because it
alleges no interest within zone of interests to be protected by Acts, pursuant to APA.
Nevada Land Action Ass'n v United States Forest Serv. (1993, CA9 Nev) 8 F3d 713, 93
CDOS 8119, 93 Daily Journal DAR 13872, 24 ELR 20100.
Law firm seeking review of Bureau of Indian Affairs' decision not to review contract for
legal services with Indian Business Council did not have standing under 5 USCS § 702
because it did not fall within zone of interests protected by statute in question, 25 USCS
§ 81. Western Shoshone Business Council v Babbitt (1993, CA10 Utah) 1 F3d 1052.
Footnotes
156, 28 Envt Rep Cas 1401, 19 ELR 20016.
156, 28 Envt Rep Cas 1401, 19 ELR 20016.

§ 504 Collateral order exception
View Entire Section

The collateral order exception to the finality rule ameliorates the harshness of that
requirement by allowing immediate appeals from certain orders that do not fully and
finally terminate the litigations between the parties. 94 There are several prerequisites
to appeal from an interlocutory order: (1) the order must be a final determination of a
claim of right separable from and collateral to the rights asserted in the main action; (2)
the order must present a serious and unsettled question, rendering it too important to be
denied review; and (3) an immediate appeal must be necessary to preserve rights that
would otherwise be lost on review from final judgment. 95 However, the issuance by an
agency of an administrative complaint alleging that the agency has reason to believe that
the respondents have violated the applicable statute does not constitute a collateral order
which is immediately appealable to a federal district court. 96
Footnotes
Footnote 94. Cohen v Beneficial Industrial Loan Corp., 337 US 541, 93 L Ed 1528, 69
S Ct 1221 (appeal allowed from a District Court order denying a corporation's motion to
require plaintiffs in shareholders' derivative action to give security for expenses);
Community Broadcasting of Boston, Inc. v FCC, 178 US App DC 256, 546 F2d 1022
(agency order refusing to disqualify counsel is nonappealable interlocutory order).
 Comment: A few courts have declined to adopt the collateral order doctrine. Allen
v White Drug of Minot, Inc. (ND) 346 NW2d 279; Kerttula v Abood (Alaska) 686 P2d
1197.
Footnote 95. Community Broadcasting of Boston, Inc. v FCC, 178 US App DC 256, 546
F2d 1022.
4. Exhaustion of Administrative Remedies [505-512]
§ 505 Purpose of exhaustion requirement
View Entire Section


Go to Supplement
A corollary to the ripeness doctrine 97 is the requirement that a litigant exhaust any
prescribed administrative remedies available before seeking judicial review. 98
Where relief is available from an administrative agency, the plaintiff is ordinarily
required to pursue that avenue of redress before proceeding to the courts. Until that
recourse is exhausted, suit is premature and must be dismissed. 99 Exhaustion is
generally required as a matter of preventing premature interference with agency
processes, so that the agency may: (1) function efficiently and have an opportunity to
correct its own errors; 1 (2) afford the parties and the courts the benefit of its
experience and expertise 2 without the threat of litigious interruption; 3 and (3)
compile a record which is adequate for judicial review. 4 In addition, an agency has
an interest in discouraging frequent and deliberate flouting of the administrative process.
5
Thus, the exhaustion doctrine does not preclude, but rather defers, judicial review until
after the expert administrative body has built a factual record and rendered a final
decision. By honoring the exhaustion doctrine, courts avoid interfering with the
administrative process, and the initial reviewing court benefits from the specialized
knowledge of the agency. The rule requiring exhaustion also promotes judicial economy
by resolving issues within the agency, eliminating the unnecessary intervention of courts.
Also, were parties allowed to circumvent agency procedures for appeal, the effectiveness
of agency rules might be undermined. 6
In most circumstances, exhaustion by one member of a class is sufficient to meet the

exhaustion requirement in a class action against a federal agency. 7
Both private and public employees must exhaust administrative remedies prior to
obtaining judicial review of the particular administrative determination. 8
 Comment: The 1981 Model State Administrative Procedure Act requires exhaustion
of all administrative remedies available within the agency whose action is being
challenged and within any other agency authorized to exercise administrative review as
a prerequisite to petitioning for judicial review, except that: (1) a petitioner need not
exhaust administrative remedies to the extent that the Act or any other statute states
that exhaustion is not required; or (2) the court may dispense with exhaustion to the
extent that the administrative remedies are inadequate, or requiring their exhaustion
would result in irreparable harm disproportionate to the public benefit derived from
requiring exhaustion. 9 The 1961 Model Act requires that all administrative remedies
available within the agency be exhausted before a person aggrieved by a final decision
in a contested case is entitled to judicial review under the Act. 10
§ 505 ----Purpose of exhaustion requirement [SUPPLEMENT]
Practice Aids: Motion–To dismiss action–Administrative action not final. 1A Am Jur

Pl & Pr Forms (Rev), Administrative Law, § 283.
Case authorities:

Plaintiff's action seeking a declaratory judgment that defendants had no right to construct
a pier across certain submerged lands belonging to plaintiff and that other defendants had
no right to issue a permit pursuant to the Coastal Area Management Act authorizing such
construction was precluded by plaintiff's failure to exhaust the administrative remedies
provided by CAMA to seek review of the permit decision. Leeuwenburg v Waterway
Inv. Ltd. Partnership (1994) 115 NC App 541, 445 SE2d 614.
The district court was without jurisdiction to determine whether the Commissioner of
Education applied the correct standard of review, where an administrator and teachers
from various school districts appealed school district decisions affecting them to the
Commissioner, alleging that the decisions were incorrect, that they had been denied due
process of law, and that the decisions had violated Title 42 of the United States Code, but
before their administrative appeals were heard, school districts filed a declaratory
judgment action in the district court asserting that the Commissioner could determine
only whether the boards' respective decisions were supported by substantial evidence,
because the court had jurisdiction to review agency errors only after exhaustion of
administrative remedies. Texas Educ. Agency v Cypress-Fairbanks I.S.D. (1992, Tex)
830 SW2d 88, rehg of cause overr (Jul 1, 1992).
Footnotes
Footnote 97. §§ 485, 486.
Footnote 98. United States v Utah Constr. & Mining Co., 384 US 394, 16 L Ed 2d 642,
86 S Ct 1545; Myers v Bethlehem Shipbuilding Corp., 303 US 41, 82 L Ed 638, 58 S
Ct 459, 1 A BNA LRRM 575, 1 CCH LC ¶ 17024.
The general rule is that one must exhaust administrative remedies before going into a
court of law or equity to enforce a right created by statute. FMC Corp. v West Virginia
Human Rights Comm'n, 184 W Va 712, 403 SE2d 729.
Law Reviews: Rafeedie v INS [800 F2d 506]: exhaustion of administrative remedies
and the exclusion of permanent resident aliens. 4 Geo Imm LJ 301 (Spring, 1990).
Annotation: Exhaustion of administrative remedies as prerequisite to civil action

under § 3(g) of Privacy Act (5 USCS § 552a(g), 82 ALR Fed 698.
Exhaustion of state administrative remedies under sec. 615 of the Education for All
Handicapped Children Act (20 USCS § 1415), 62 ALR Fed 376.
Forms: Motion to dismiss appeal or review of administrative proceeding–Failure of

petitioner or appellant to exhaust administrative remedies. 2 Federal Procedural
Forms, L Ed, Appeal, Certiorari, and Review § 3:471.
Motion–To dismiss appeal–Failure to exhaust administrative remedies. 1A Am Jur Pl

& Pr Forms (Rev), Administrative Law, Forms 204, 205.
Motion or answer–Allegation–Failure to exhaust administrative remedies as precluding

judicial review. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 206.

Footnote 99. Reiter v Cooper (US) 122 L Ed 2d 604, 113 S Ct 1213, 93 CDOS 1660, 93
Daily Journal DAR 2994, CCH Bankr L Rptr ¶ 75129A, 7 FLW Fed S 51;
Hedden-Empire Ltd. Partnership v Department of Revenue, 243 Mont 206, 793 P2d 828;
State Tax Com. v Iverson (Utah) 782 P2d 519, 120 Utah Adv Rep 19.
It is a settled principle of administrative law that, if an adequate administrative remedy

exists, it must be exhausted before the court will obtain jurisdiction to act in the matter.
Greater Bridgeport Transit Dist. v Local Union 1336, Amalgamated Transit Union, 211
Conn 436, 559 A2d 1113, related proceeding (Conn Super) 1993 Conn Super LEXIS
1993.
Judicial review of agency action will not be available unless the party affected has taken
advantage of all the corrective procedures provided for in the administrative process.
Kona Old Hawaiian Trails Group v Lyman, 69 Hawaii 81, 734 P2d 161, 25 Envt Rep Cas
1840.
Failure to exhaust administrative remedies where required is a jurisdictional defect that

requires dismissal, because at that point primary jurisdiction rests with the administrative
agency and not with the courts. South Dakota Bd. of Regents v Heege (SD) 428 NW2d
535.
When an administrative remedy is established by statute or regulation, relief must not

only be sought in accordings therewith, but must first be exhausted before recourse to the
courts is available. Petition of D.A. Assoc., 150 Vt 18, 547 A2d 1325, reh den, en banc
(Vt) 1988 Vt LEXIS 80.
Footnote 1. McCarthy v Madigan (US) 117 L Ed 2d 291, 112 S Ct 1081, 92 CDOS

1863, 92 Daily Journal DAR 2913, 6 FLW Fed S 43 (not followed by Schoor v
Thornburgh (CA6) 1992 US App LEXIS 33620); Bowen v Michigan Academy of Family
Physicians, 476 US 667, 90 L Ed 2d 623, 106 S Ct 2133; Ex parte Graddick (Ala) 495
So 2d 1367.
The exhaustion rule serves a legitimate state interest in requiring parties to exhaust
administrative remedies before proceeding to court as it prevents having an overworked
court consider issues and remedies available through administrative channels. Jimmy
Swaggart Ministries v Board of Equalization, 493 US 378, 107 L Ed 2d 796, 110 S Ct
688.

623, 106 S Ct 2133.
Footnote 3. McKart v United States, 395 US 185, 23 L Ed 2d 194, 89 S Ct 1657.

623, 106 S Ct 2133; McKart v United States, 395 US 185, 23 L Ed 2d 194, 89 S Ct
1657.
The doctrine of exhaustion affords the agency an opportunity to prepare record reflected
by its expertise and judgment in advance of possible judicial review. Young v GSL
Enterprises, Inc. (1st Dept) 170 App Div 2d 401, 566 NYS2d 618.

1863, 92 Daily Journal DAR 2913, 6 FLW Fed S 43; McKart v United States, 395 US
185, 23 L Ed 2d 194, 89 S Ct 1657.
The exhaustion requirement serves the important policy interests embodied in the act of
resolving disputes and eliminating unlawful employment practices by conciliation, as
well as the salutatory goals of easing the burden on the court system, maximizing the use
of administrative agency expertise and capability to order and monitor corrective
measures, and providing a more economical and less formal means of resolving the
dispute. Rojo v Kliger, 52 Cal 3d 65, 276 Cal Rptr 130, 801 P2d 373, 90 CDOS 9240, 90
Daily Journal DAR 14460, 54 BNA FEP Cas 1146, 6 BNA IER Cas 530, 55 CCH EPD ¶
40480.
The exhaustion doctrine enables the agency to develop a factual record, to apply its
expertise to the problem, to exercise its discretion, and to correct its own mistakes, and is
credited with promoting accuracy, efficiency, agency autonomy, and judicial economy.
Power v Providence (RI) 582 A2d 895, 56 BNA FEP Cas 1869.
As to exhaustion as prerequisite to relief in the nature of mandamus, see § 555.
Footnote 6. Dano Resource Recovery, Inc. v District of Columbia (Dist Col App) 566
A2d 483.
Courts should not intervene in the administrative process, because to do so would

necessarily disrupt normal procedure and burden the courts with decisions beyond their
expertise, and, administrative agencies provide high expertise within their specialized
fields generally unavailable in the courts. Tamas v Atlanta, 193 Ga App 644, 388 SE2d
721.
Footnote 7. Phillips v Klassen, 163 US App DC 360, 502 F2d 362, 18 FR Serv 2d 1021,
Exhaustion of administrative remedies in class actions is discussed in 6A Federal

Procedure, L Ed, Class Actions §§ 12:30.
Footnote 8. Diedrich v Ketchikan (Alaska) 805 P2d 362 (requiring public employees to
bring a timely administrative appeal as a prerequisite to invoking the appellate
jurisdiction of the Superior Court does not create a denial of equal protection).
As to irreparable harm as an exception to the finality of agency action requirement, see §

501.
§ 506 Exhaustion requirement depends on language of statute or agency rule
View Entire Section

Go to Supplement
The doctrine of exhaustion of administrative remedies is one among related doctrines that
govern the timing of federal court decisionmaking. Of paramount importance to any
exhaustion inquiry is congressional intent: where Congress specifically mandates,
exhaustion is required; where Congress has not clearly required exhaustion, sound
judicial discretion governs. 11 Therefore, where a statute requires exhaustion of
administrative remedies a court has no jurisdiction to review an interlocutory order, 12
and the exhaustion requirement is not a matter for the court's discretion. 13 Conversely,
a litigant seeking judicial review of a final agency action under the Administrative
Procedure Act 14 need not exhaust available administrative remedies unless exhaustion
is expressly required by statute or agency rule. Federal courts are not free to require
further exhaustion as a matter of judicial discretion. 15
Where the statutory direction is not explicit, the courts are guided by congressional intent
in determining whether the application of the exhaustion requirement would be consistent
with the statutory scheme, so that any exhaustion requirement is tailored to fit the role
which Congress has assigned the agency. 16 For instance, the fact that the
administrative remedy under the Financial Institutions Reform, Recovery and
Enforcement Act is exclusive is apparent from the Act and its legislative history. The
House Banking, Finance, and Urban Affairs Committee reported that a judicial de novo
review will be available only after exhaustion of streamlined administrative procedures,
and the House Judiciary Committee reported that FIRREA provides for a judicial
involvement in the resolution of claims only as the Act itself provides. Further, the
federal decisions under FIRREA have uniformly held that Congress intended to vest the
Resolution Trust Company with primary jurisdiction to determine a claim against a failed
institution before judicial intervention. Once the Resolution Trust Company has been
appointed receiver, a claimant must comply with FIRREA's statutory procedures as a
prerequisite to federal jurisdiction. 17
§ 506 ----Exhaustion requirement depends on language of statute or agency rule

[SUPPLEMENT]
Case authorities:
Federal courts do not have the authority to require that a plaintiff exhaust available
administrative remedies before seeking judicial review of an administrative action, by an
agency such as the United States Department of Housing and Urban Development, under
the Administrative Procedure Act (APA) (5 USCS §§ 701 et seq.), where exhaustion as a
prerequisite to judicial review is not specifically mandated by statute or agency rule,
because (1) with respect to actions brought under the APA, Congress effectively codified
the doctrine of exhaustion of administrative remedies in § 10(c) of the APA (5 USCS §
704, which provides that an appeal to "superior agency authority" is a prerequisite to
judicial review only when expressly required by statute or when an agency rule requires
an appeal before review and the administrative action is made inoperative pending such
review, (2) although the legislative history of the APA includes a statement that § 10(c)
was intended to state existing law, nothing in the pre-APA cases concerning judicial
review of federal agency action supports the argument that initial agency decisions that
were final for purposes of judicial review were nonetheless unreviewable unless and until
an administrative appeal was taken, and (3) the elimination of the defense of sovereign
immunity in the 1976 amendments to the APA (5 USCS § 702) did not affect any other
limitation on judicial review that would otherwise apply under the APA; when a party
aggrieved by a federal agency action has exhausted all administrative remedies expressly
prescribed by statute or agency rule, the agency action is "final," and therefore subject to
judicial review, under § 10(c); while the exhaustion doctrine continues to apply as a
matter of judicial discretion in cases not governed by the APA, and while federal courts
are free to apply where appropriate other prudential doctrines of judicial administration to
limit the scope and timing of judicial review, § 10(c) by its terms limits the availability of
the doctrine of exhaustion of administrative remedies in APA cases. Darby v Cisneros
(US) 125 L Ed 2d 113, 93 CDOS 4572, 93 Daily Journal DAR 7787, 7 FLW Fed S 493.
Trial court had no jurisdiction to grant injunctive relief enjoining race track from
disbursing race winnings in suit between owner of horse disqualified from race and race
track because the owner of horse did not exhaust his administrative remedies before the
racing commission as specified by RS arts 6252- 13a, § 19(a), and Admin C § 307.7.
Bandera Downs, Inc. v Alvarez (1992, Tex App San Antonio) 824 SW2d 319.
Footnotes
Footnote 12. Pittston Co. v Board of Mine Operations Appeals (CA4) 460 F2d 1189.
Footnote 13. Heywood v Cruzan Motors, Inc. (CA3 VI) 792 F2d 367; Townsend v U.S.
Dept. of Justice Immigration & Naturalization Service (CA5) 799 F2d 179.
As to discretionary waiver of the exhaustion requirement by the courts see § 510.
Footnote 14. 5 USCS §§ 701-706.
Footnote 15. Darby v Cisneros (US) 125 L Ed 2d 113, 113 S Ct 2539, 93 CDOS 4572,
93 Daily Journal DAR 7787, 7 FLW Fed S 493.
Footnote 16. Coit Independence Joint Venture v Federal Sav. & Loan Ins. Corp., 489 US
561, 103 L Ed 2d 602, 109 S Ct 1361; Patsy v Board of Regents, 457 US 496, 73 L Ed
2d 172, 102 S Ct 2557, 29 BNA FEP Cas 12, 29 CCH EPD ¶ 32821; Meliezer v
Resolution Trust Co. (CA5 La) 952 F2d 879.
Footnote 17. Resolution Trust Corp. v Shoreview Builders, Inc., 252 NJ Super 408, 599
A2d 1291.
§ 507 What constitutes exhaustion of remedies
View Entire Section


Go to Supplement
The doctrine of exhaustion of administrative remedies poses the problem as to the stage
of the proceedings at which the administrative remedies are completely availed of or
exhausted. 18 Litigants may not, by refusing or neglecting to submit issues of fact to
administrative agencies, bypass them, and call upon the courts to determine matters
properly determinable originally by the agencies. 19 For example, the district court
could not properly take jurisdiction over a cause stating that the Social Security
Administration's practice of offering informal advice about eligibility for benefits is
illegal where applicants for benefits had not alleged that they, or any of them, had ever
invoked the administrative processes of Social Security Administration or Secretary
regarding the claim that informal denials are inappropriate or illegal. 20
It seems settled that a complainant has not exhausted an administrative remedy where,
prior to applying for judicial relief from an administrative determination, the complainant
had not applied for a hearing before the agency, 21 although a pertinent statute or rule
by its terms, 22 or as construed by the administrative agency, 23 or even as
construed by the court resorted to, 24 provides for a hearing of the aggrieved party.
However, the complainant does exhaust the administrative remedy where a demand is
made for a hearing under a statute making it the duty of the department upon receipt of
notice to set a date for hearing not more than 30 days after receipt of notice and the
administrative officer fails to comply with this statutory duty. 25
Further, exhaustion does not merely require the plaintiff to initiate the prescribed
administrative procedures, but also to pursue them to their appropriate conclusion and
await their final outcome before seeking judicial intervention. 26 Thus, where the
appellant failed to test the federal agency's procedures for resolving claims through its
grievance process and to consider the agency's affirmative action plan and its compliance
with the requirements of the statute governing employment of the handicapped, the
appellant failed to exhaust administrative remedies and was not entitled to seek judicial
review under the federal question jurisdiction statute. 27
It appears generally that in the absence of a proper rule or applicable statute on the
subject, a party need not file formal exceptions to the report or proposed order of an
examiner in order to comply with the exhaustion requirement before seeking judicial
review of the order finally entered. 28 But where the plaintiff has filed exceptions to the
validity of a commission's order which the commission has not yet acted on, the plaintiff
has not exhausted the administrative remedy. 29
While a person need not carry out the order of an administrative agency in order to
pursue the administrative remedy to the end, 30 the mere fact that an order is being
enforced does not necessarily establish that the administrative process has been
completed so as to permit judicial relief. 31
The classic example of failure to exhaust an administrative remedy is the failure to appeal
from an administrative decision to a higher tribunal within the administrative system. 32
§ 507 ----What constitutes exhaustion of remedies [SUPPLEMENT]
Practice Aids: Exhaustion of remedies requirement under Financial Institutions

Reform, Recovery, and Enforcement Act (FIRREA) (12 USCS sec 1821(d)) with
respect to claims against failed financial institution, Federal Deposit Insurance
Corporation, or Resolution Trust Corporation 122 ALR Fed 519.
Case authorities:
Plaintiff's action seeking a declaratory judgment that defendants had no right to construct
a pier across certain submerged lands belonging to plaintiff and that other defendants had
no right to issue a permit pursuant to the Coastal Area Management Act authorizing such
construction was precluded by plaintiff's failure to exhaust the administrative remedies
provided by CAMA to seek review of the permit decision. Leeuwenburg v Waterway
Inv. Ltd. Partnership (1994) 115 NC App 541, 445 SE2d 614.
Trial court did not err in dismissing an auctioneer's appeal of the suspension of his
auctioneering license for want of jurisdiction where the auctioneer did not file a motion
for rehearing as required by administrative law because, contrary to the auctioneer's
contention, no conflict existed between the Administrative Procedure and Texas Register
Act and the licensing act. Reed v State Dept. of Licensing & Regulation (1991, Tex App
Austin) 820 SW2d 1.
Footnotes
Footnote 18. In Orleans Parish School Board v Bush (CA5 La) 242 F2d 156, cert den
354 US 921, 1 L Ed 2d 1436, 77 S Ct 1380.
Footnote 19. West Publishing Co. v McColgan, 27 Cal 2d 705, 166 P2d 861, affd 328
US 823, 90 L Ed 1603, 66 S Ct 1378, reh den 329 US 822, 91 L Ed 699, 67 S Ct 35.
Where United States marshals did not petition Attorney General to seek waiver of
amendment which would deny promotions and did not exhaust administrative remedies,
failure to promote marshals more rapidly or to award back pay was not final agency
action ripe for review. Boyce v United States (ED NY) 523 F Supp 1012.
Footnote 20. Murillo v Mathews (CA9 Cal) 588 F2d 759.
Footnote 21. United States v Morton Salt Co., 338 US 632, 94 L Ed 401, 70 S Ct 357,
stating that before the courts will hold a Federal Trade Commission order seeking
information reports to be arbitrarily excessive, they may expect the complainant to have
made reasonable efforts before the Commission itself to obtain reasonable conditions.
As to rehearing, reconsideration, or modification, see § 489.
Footnote 22. Hegeman Farms Corp. v Baldwin, 293 US 163, 79 L Ed 259, 55 S Ct 7.
Footnote 23. United States v Illinois C. R. Co., 291 US 457, 78 L Ed 909, 54 S Ct 471.
Footnote 24. Dixie Downs, Inc. v Arkansas Racing Com., 219 Ark 356, 242 SW2d 132.
Footnote 25. Bowen v Department of Social Secur., 14 Wash 2d 148, 127 P2d 682.

Footnote 26. Aircraft & Diesel Equipment Corp. v Hirsch, 331 US 752, 91 L Ed 1796,
67 S Ct 1493; Osmond v Riverdale Manor, Inc. (CA4 Va) 199 F2d 75; McNish v
American Brass Co., 139 Conn 44, 89 A2d 566, 30 BNA LRRM 2254, 21 CCH LC ¶
67037, cert den 344 US 913, 97 L Ed 704, 73 S Ct 336, 31 BNA LRRM 2232;
Industrial Acci. Board v Glenn, 144 Tex 378, 190 SW2d 805; Smith v Highway Board,
117 Vt 343, 91 A2d 805.
Footnote 27. Ryan v Federal Deposit Ins. Corp., 184 US App DC 187, 565 F2d 762, 1
AD Cas 27, 15 BNA FEP Cas 1384, 15 CCH EPD ¶ 7896.
Footnote 28. Ace Delivery Service, Inc. v Boyd (Fla) 100 So 2d 417.
Footnote 29. Warren v Atlantic C. L. R. Co., 223 NC 843, 28 SE2d 505.
Footnote 30. Estep v United States, 327 US 114, 90 L Ed 567, 66 S Ct 423.
Selective service registrants were not required to submit to induction in order to pursue
their administrative remedies to the end; such submission would be satisfaction of the
orders of the local boards, not a further step to obtain relief from them. Gibson v United
States, 329 US 338, 91 L Ed 331, 67 S Ct 301.
67 S Ct 1493 (holding that complainant must await the conclusion of pending
administrative redetermination proceedings although the original order was being
enforced); Osmond v Riverdale Manor, Inc. (CA4 Va) 199 F2d 75.
Footnote 32. Lichter v United States, 334 US 742, 92 L Ed 1694, 68 S Ct 1294, reh den
335 US 836, 93 L Ed 389, 69 S Ct 11; Sweitzer v Industrial Com., 394 Ill 141, 68 NE2d
290 (statute made review of an arbitrator's decision by industrial commission condition
precedent to review by the Circuit Court); Oklahoma Public Welfare Com. v State, 187
Okla 654, 105 P2d 547, 130 ALR 873; Smith v Highway Board, 117 Vt 343, 91 A2d
805.
§ 508 Waiver of exhaustion requirement by the agency
View Entire Section

An agency may expressly waive the exhaustion requirement before the reviewing court.
33 Ordinarily, the responsible official has discretion to decide when to waive the
exhaustion requirement. However, cases may arise where a claimant's interest in having
a particular issue resolved promptly is so great that deference to the agency's judgment is
inappropriate. 34
Even where a statute plainly requires exhaustion, where the agency fails to challenge the
sufficiency of allegations of exhaustion, review will be permitted. 35

Footnotes
Footnote 33. Dugan v Ramsay (CA1 RI) 727 F2d 192.

2d 623, 106 S Ct 2133.

Comp Cas 920; Weinberger v Salfi, 422 US 749, 45 L Ed 2d 522, 95 S Ct 2457.
§ 509 Denial of motion for dismissal of complaint
View Entire Section

A party does not exhaust its administrative remedies so as to entitle it to immediate

judicial review by reason of the fact that an agency has denied its motion in agency
adjudicatory proceedings for dismissal of the complaint. Although the party may have
exhausted its administrative remedy as to the averment of "reason to believe" (that it has
violated a statute) by requesting the agency to withdraw the complaint and by awaiting
the agency's refusal to do so, the refusal to reconsider issuance of the complaint does not
render the complaint a definitive action for which judicial review might be had. 36
Footnotes
1980-81 CCH Trade Cases ¶ 63665 (FTC service of complaint averring that FTC had
reason to believe that defendant companies were violating Federal Trade Commission
Act).
b. Exceptions to Exhaustion Requirement [510-512]
§ 510 Exhaustion excused by the courts
View Entire Section

In cases where exhaustion of administration remedies is not required by statute, 37

exhaustion requirement is discretionary with the courts, 38 rather than an absolute
bar to judicial consideration, and must be applied in each case with an understanding of
its purposes and of the particular administrative scheme involved. 39 Where the
justification for invoking the doctrine of exhaustion of administrative remedies is absent,
application of the doctrine is unwarranted 40 and will be waived. 41 Thus, the mere
possession by some official body of the continuing supervisory or investigatory power
does not itself suffice to afford an administrative remedy unless the statute or regulation
under which the power is exercised establishes clearly and defines machinery for
submission, evaluation and resolution of complaints by aggrieved parties. 42
In determining whether exhaustion is required, federal courts must balance the interest of
the individual in retaining prompt access to a federal judicial forum against
countervailing institutional interests favoring exhaustion. Administrative remedies need
not be pursued if the litigant's interests in immediate judicial review outweigh the
government's interests in the efficiency or administrative autonomy that the exhaustion
doctrine is designed to further. There are at least three broad sets of circumstances in
which the interests of the individual weigh heavily against requiring administrative
exhaustion. First, requiring resort to the administrative remedy may occasion undue
prejudice to subsequent assertion of a court action. 43 Second, an administrative remedy
may be inadequate because of some doubt as to whether the agency was empowered to
grant effective relief. 44 Third, an administrative remedy may be inadequate where the
administrative body is shown to be biased or has otherwise predetermined the issue
before it. 45
Footnotes
Footnote 37. §§ 505, 506.
Footnote 38. NLRB v Industrial Union of Marine & Shipbuilding Workers, 391 US 418,
20 L Ed 2d 706, 88 S Ct 1717, 68 BNA LRRM 2257, 57 CCH LC ¶ 12712; United
States ex rel. Marrero v Warden, Lewisburg Penitentiary (CA3 Pa) 483 F2d 656, revd on
other grounds 417 US 653, 41 L Ed 2d 383, 94 S Ct 2532, reh den 419 US 1014, 42 L
Ed 2d 288, 95 S Ct 334.
Footnote 39. Parisi v Davidson, 405 US 34, 31 L Ed 2d 17, 92 S Ct 815, conformed to

(CA9) 456 F2d 686.
Footnote 40. Downen v Warner (CA9 Cal) 481 F2d 642, 8 BNA FEP Cas 332, 6 CCH
EPD ¶ 8710.
Footnote 41. United States ex rel. Marrero v Warden, Lewisburg Penitentiary (CA3 Pa)
483 F2d 656, revd on other grounds 417 US 653, 41 L Ed 2d 383, 94 S Ct 2532, reh
den 419 US 1014, 42 L Ed 2d 288, 95 S Ct 334.
Law Reviews: Fox, Person aggrieved by existing regulation not required to exhaust
administrative remedy by petitioning for promulgation of new regulation before
pursuing judicial remedy. 43 SC LR 1 (Autumn, 1991).
Footnote 42. Common Cause of California v Board of Supervisors, 49 Cal 3d 432, 261
Cal Rptr 574, 777 P2d 610.
Footnote 43. Such prejudice may result, for example, from an unreasonable or indefinite
time period for administrative action.

Footnote 44. For example, an agency, as a preliminary matter, may be unable to consider
whether to grant relief because it lacks institutional competence to resolve the particular
types of issue presented, such as the constitutionality of a statute. In a similar vein,
exhaustion has not been required where the challenge is to the adequacy of the agency
procedure itself. Alternatively, an agency may be competent to adjudicate the issue
presented, but still lack authority to grant the type of relief requested.
1863, 92 Daily Journal DAR 2913, 6 FLW Fed S 43; Barr v Arkansas Blue Cross & Blue
Shield, Inc., 297 Ark 262, 761 SW2d 174 (exhaustion is not required where no genuine
opportunity for adequate relief exists); Bacon v Brewer, 196 Ga App 130, 395 SE2d 383;
Castaneda v Illinois Human Rights Com., 132 Ill 2d 304, 138 Ill Dec 270, 547 NE2d 437,
55 CCH EPD ¶ 40600; Magan v Medical Mut. Liab. Ins. Soc'y, 81 Md App 301, 567 A2d
503, appeal after remand 331 Md 535, 629 A2d 626.
Under an Iowa statute, prisoners who seek relief in District Court for loss of good time
must exhaust two levels of administrative examination; however, where prisoners failed
to exhaust their administrative remedies because of interference from prison authorities,
the administrative remedy was rendered inadequate and the exhaustion doctrine did not
come into play. Bugely v State (Iowa) 464 NW2d 878.
§ 511 Particular circumstances under which exhaustion may not be required
View Entire Section

Go to Supplement
There are many other circumstances under which exhaustion of administrative remedies
may not be required, such as where–
–the harm imposed by exhaustion would be irreparable. 46
–it appears that there is a likelihood that some oppression or injustice is occurring such
that it would be unconscionable not to review the alleged grievance. 47
–the agency does not have jurisdiction over the subject matter or parties. 48
–multiple administrative remedies exist and at least one is exhausted. 49
–an agency requires a party to follow, in the manner and to the degree that is significant,
an unauthorized procedure. 50
–the agency fails to act. 51
–the purposes of the requirement would not be served by requiring the appellants to
exhaust administrative remedies. 52
–it would be futile. 53

–participation in the agency's administrative process would constitute a vain act. 54
–the government's secretive conduct prevents the claimants from knowing of a violation
of their rights; members of a class of plaintiffs cannot attack a policy which they could
not have been aware existed. 55
–a person, through no fault of his own, does not discover the purported wrong until after
the time for application of administrative relief. 56
–the issue involved is strictly legal, not involving an agency's expertise or any factual
determinations. 57
–the administrative remedy might not exist. 58
–the administrative remedies are inadequate. 59
–the federal question is so plain that exhaustion is excused. 60
–constitutional rights which cannot fully and satisfactorily be protected by requiring

recourse to the administrative process are infringed. 61
Waiver of the exhaustion requirement if not appropriate to reduce monetary losses caused
by litigation expenses or deprivation of earnings as such expenses are insufficient to be
considered irreparable injury. 62 Neither is loss or damage to reputation ordinarily
severe enough to be considered irreparable. 63
 Comment: The l981 Model State Administrative Procedure Act provides that the
court may relieve a petitioner of the requirement to exhaust any or all administrative
remedies, to the extent that the administrative remedies are inadequate, or requiring
their exhaustion would result in irreparable harm disproportionate to the public benefit
derived from requiring exhaustion. 64 The 1961 Model Act provides that a
preliminary, procedural, or intermediate agency action or ruling is immediately
reviewable if review of the final agency decision would not provide an adequate
remedy. 65
§ 511 ----Particular circumstances under which exhaustion may not be required

[SUPPLEMENT]
Case authorities:
As a rule, a party to an administrative proceeding is not entitled to judicial review until

the party has pursued correction through the prescribed administrative process, where
school districts sought a declaratory judgment to establish the standard of review to be
applied by the Commissioner of Education in proceedings regarding school board
decisions concerning school employees; however, an exception to the rule is that a trial
court may intercede before administrative remedies are exhausted where the
administrative agency lacks jurisdiction. Texas Educ. Agency v Cypress-Fairbanks I.S.D.
(1992, Tex) 830 SW2d 88, rehg of cause overr (Jul 1, 1992).

A declaratory judgment suit was not precluded, where agency imposed monetary
penalties on nursing home for alleged violation of state quality standards, and after
nursing home requested an administrative review, it sought a declaratory judgment that
agency did not have statutory authority to assess monetary damages for violation of
quality standards, but agency contended that once nursing home sought an administrative
remedy, it had to await the outcome of that proceeding before seeking a judicial
determination, because an action for declaratory relief was permissible during the
pendency of an administrative proceeding when the issue was whether the agency was
exceeding its statutorily conferred powers; additionally, RS art 6252-13a § 12 permitted
the suit. Texas Dept. of Human Services v ARA Living Centers, Inc. (1992, Tex App
Austin) 833 SW2d 689, 38 Soc Sec Rep Serv 343, writ of error filed (Sep 30, 1992).
Footnotes
Footnote 46. Bowen v New York, 476 US 467, 90 L Ed 2d 462, 106 S Ct 2022; Barr v
Arkansas Blue Cross & Blue Shield, Inc., 297 Ark 262, 761 SW2d 174; State Board of
Cosmetology v District Court of Denver, 187 Colo 175, 530 P2d 1278; State Board of
Cosmetology v District Court of Denver, 187 Colo 175, 530 P2d 1278; Florida Bd. of
Regents v Armesto (Fla App D1) 563 So 2d 1080, 15 FLW D 943, appeal after remand
(Fla App D3) 615 So 2d 707, 18 FLW D 6, cause dismd (Fla) 624 So 2d 264 (an
exception to exhaustion exists where threatened agency action is so egregious or
devastating that administrative remedies are either too little or too late); Bacon v Brewer,
196 Ga App 130, 395 SE2d 383; Castaneda v Illinois Human Rights Com., 132 Ill 2d
304, 138 Ill Dec 270, 547 NE2d 437, 55 CCH EPD ¶ 40600; South Dakota Bd. of
Regents v Heege (SD) 428 NW2d 535 (exhaustion is not required in extraordinary
circumstances where a party faces impending irreparable harm of a protected right).
Irreparable injury may result from the imposition of an exhaustion requirement where, in
a challenge to denial of Social Security disability benefits, the appellants are not only
denied the benefits they are seeking but the ordeal of having to go through the
administrative appeal process may trigger a severe medical setback. Bowen v New York,
476 US 467, 90 L Ed 2d 462, 106 S Ct 2022.
Footnote 47. State Tax Com. v Iverson (Utah) 782 P2d 519, 120 Utah Adv Rep 19.
Footnote 48. State Board of Cosmetology v District Court of Denver, 187 Colo 175, 530
P2d 1278; Riggins v Board of Fire & Police Comrs. (3d Dist) 107 Ill App 3d 126, 62 Ill
Dec 800, 437 NE2d 327; South Dakota Bd. of Regents v Heege (SD) 428 NW2d 535.
Footnote 49. Castaneda v Illinois Human Rights Com., 132 Ill 2d 304, 138 Ill Dec 270,
547 NE2d 437, 55 CCH EPD ¶ 40600 (not followed by Land & Lakes Co. v Pollution
Control Bd. (3d Dist) 245 Ill App 3d 631, 616 NE2d 349).
Footnote 50. Magan v Medical Mut. Liab. Ins. Soc'y, 81 Md App 301, 567 A2d 503,
appeal after remand 331 Md 535, 629 A2d 626.
Footnote 51. Lake Station v State (Ind) 558 NE2d 824; South Dakota Bd. of Regents v
Heege (SD) 428 NW2d 535.
Despite the rule that exhaustion of remedies is required in employment discrimination

claims, the court excused exhaustion in a case where, because of the agency's 21-month
delay in addressing her claim, claimant felt compelled to file her action in court to
preserve the tort claim against the potential defense based upon the expiration of the
2-year statute of limitations. Palmer v State, 106 Nev 151, 787 P2d 803, 52 BNA FEP
Cas 513, 53 CCH EPD ¶ 39810.
Footnote 52. Bowen v New York, 476 US 467, 90 L Ed 2d 462, 106 S Ct 2022.
Footnote 53. Bowen v New York, 476 US 467, 90 L Ed 2d 462, 106 S Ct 2022; NLRB
v Industrial Union of Marine & Shipbuilding Workers, 391 US 418, 20 L Ed 2d 706, 88
S Ct 1717, 68 BNA LRRM 2257, 57 CCH LC ¶ 12712; Stoffel v Arizona Dept. of
Economic Secur. (App) 162 Ariz 449, 784 P2d 275, 43 Ariz Adv Rep 12, later
proceeding (Ariz App) 1990 Ariz App LEXIS 15; Barr v Arkansas Blue Cross & Blue
Shield, Inc., 297 Ark 262, 761 SW2d 174; Minster v Gray (Me) 584 A2d 646; Ellingson
& Associates, Inc. v Keefe (Minn App) 410 NW2d 857 (parties are not required to utilize
administrative remedies if the administrative bodies have unequivocally committed
themselves to a position and exhaustion of remedies would be futile); Lone Star
Helicopters, Inc. v State (Okla) 800 P2d 235; Citizens for Clean Air v Spokane, 114
Wash 2d 20, 785 P2d 447 (the policies underlying exhaustion impose a substantial
burden on the litigant attemption to show futility); Fayette County Bd. of Educ. v Lilly,
184 W Va 688, 403 SE2d 431.
To establish a claim of futility, there must be a proof that the agency was powerless to
effect a remedy, or that the remedy was impossible or fruitless and of no value under the
circumstances Shlens v Egnatz (Ind App) 508 NE2d 44.
The futility exception to the doctrine of exhaustion of administrative remedies may apply
not only in cases where administrative remedies are legally inadequate, but also where
those remedies are factually inadequate. Futility addresses more than a direct showing of
bias or prejudice on the part of the discretionary decisionmakers. While rare, futility can
be demonstrated by the factual circumstances of the particular case. For example, in
Orion Corp. v State, 103 Wash 2d 441, 693 P2d 1369, 22 Envt Rep Cas 1057, appeal
after remand, en banc 109 Wash 2d 621, 747 P2d 1062, 18 ELR 20697, cert den 486 US
1022, 100 L Ed 2d 227, 108 S Ct 1996, the court found that it would be futile for the
Orion corporation to seek a development permit from the county because the creation of
an estuarine sanctuary next to Orion's property and de facto inclusion of Orion's property
would require denial of any permit under the extensive applicable regulatory scheme.
Estate of Friedman v Pierce County, 112 Wash 2d 68, 768 P2d 462.
Footnote 54. Nemazee v Mt. Sinai Medical Center, 56 Ohio St 3d 109, 564 NE2d 477 (a
vain act is defined in the context of lack of authority to grant administrative relief and not
in the context of lack of probability that the application for administrative relief will be
granted); Nacelle Land & Management Corp. v Ohio Dep't of Natural Resources
(Franklin Co) 65 Ohio App 3d 481, 584 NE2d 790, 116 OGR 543.
Footnote 55. Bowen v New York, 476 US 467, 90 L Ed 2d 462, 106 S Ct 2022.
Footnote 56. South Dakota Bd. of Regents v Heege (SD) 428 NW2d 535.
Footnote 57. Ft. Sumter Tours, Inc. v Andrus (DC SC) 440 F Supp 914, affd (CA4 SC)
564 F2d 1119, 24 CCF ¶ 81817; Borden, Inc. v FTC (CA7 Ill) 495 F2d 785, 1974-1 CCH
Trade Cases ¶ 75036; Castaneda v Illinois Human Rights Com., 132 Ill 2d 304, 138 Ill
Dec 270, 547 NE2d 437, 55 CCH EPD ¶ 40600.
A party may have direct judicial relief without exhaustion of administrative remedies
when there are no disputed factual questions to be resolved and the issue is confined to
the validity or application of a statute or ordinance, or administrative regulation properly
adopted which has the full effect of law and required to be enforced. Franklin v Natural
Resources & Environmental Protection Cabinet (Ky) 799 SW2d 1.
Exhaustion is not required when the object of, as well as the issues presented by, a
judicial proceeding only tangentially or incidentally concern matters which the
administrative agency was legislatively created to solve, and do not, in any meaningful
way, call for or involve application of its expertise. Magan v Medical Mut. Liab. Ins.
Soc'y, 81 Md App 301, 567 A2d 503, appeal after remand 331 Md 535, 629 A2d 626.
Daily Journal DAR 2994, CCH Bankr L Rptr ¶ 75129A, 7 FLW Fed S 51; Parisi v
Davidson, 405 US 34, 31 L Ed 2d 17, 92 S Ct 815, conformed to (CA9) 456 F2d 686.
Footnote 59. NLRB v Industrial Union of Marine & Shipbuilding Workers, 391 US 418,
20 L Ed 2d 706, 88 S Ct 1717, 68 BNA LRRM 2257, 57 CCH LC ¶ 12712.
An administrative remedy is not inadequate so as to authorize judicial intervention before

exhaustion of the remedy simply because it may create some hardship or does not give
one everything he or she wants. Magan v Medical Mut. Liab. Ins. Soc'y, 81 Md App
301, 567 A2d 503, appeal after remand 331 Md 535, 629 A2d 626.
Footnote 60. Martinez v Richardson (CA10 NM) 472 F2d 1121.

94 S Ct 1028 (mere litigation expense, even if substantial and unrecoupable, does not
constitute irreparable injury); Davis v Parkins (Iowa) 456 NW2d 681.
Footnote 63. Davis v Parkins (Iowa) 456 NW2d 681.
§ 512 Constitutional claims
View Entire Section

Administrative agencies have neither the power nor the competence to pass on the
constitutionality of statutes. However, the exhaustion requirement is not rendered
inoperable solely by the fact that a party applying for judicial relief urges a violation of
constitutional rights. If relief may be granted on nonconstitutional grounds, the necessity
of deciding constitutional issues may be avoided and, exhaustion may be required. 66
However, if recourse to the administrative process will be insufficient to fully and
satisfactorily protect the constitutional rights in question, exhaustion will not be required.
67 In the latter instance a strong showing both of inadequacy of the
prescribed administrative procedure and of impending harm are necessary to justify the
short-circuiting of the administrative process. 68
An administrative agency cannot pass on the constitutionality of the legislation under

which it acts, so that a party seeking a review of the constitutionality of an agency's
enabling legislation need not exhaust its administrative remedies. 69 Exhaustion of
administrative remedies also may not be required where an agency ordinance or rule is
attacked as unconstitutional on its face. 70
Footnotes
Footnote 66. Public Utilities Com. v United States, 355 US 534, 2 L Ed 2d 470, 78 S Ct
446, reh den 356 US 925, 2 L Ed 2d 760, 78 S Ct 713 and (not followed by Union P. R.
Co. v Interstate Commerce Com., 276 US App DC 30, 867 F2d 646); Montana Chapter
of Asso. of Civilian Technicians, Inc. v Young (CA9 Mont) 514 F2d 1165, 89 BNA
LRRM 2212.
Footnote 67. Public Utilities Com. v United States, 355 US 534, 2 L Ed 2d 470, 78 S Ct
446, reh den 356 US 925, 2 L Ed 2d 760, 78 S Ct 713 and (not followed by Union P. R.
Co. v Interstate Commerce Com., 276 US App DC 30, 867 F2d 646); Heikkila v Barber,
345 US 229, 97 L Ed 972, 73 S Ct 603, reh den 345 US 946, 97 L Ed 1371, 73 S Ct
828; Wong Yang Sung v McGrath, 339 US 33, 94 L Ed 616, 70 S Ct 445, mod on other
grounds 339 US 908, 94 L Ed 1336, 70 S Ct 564.
Annotation: Exhaustion of remedies under Title VII (Equal Employment Opportunity)

of Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.) as prerequisite to maintenance
of action under 42 USCS § 1981 for employment discrimination, 23 ALR Fed 895.
Forms: Petition or application–For review of administrative order–On rejection of

petitioner's application–Violation of constitutional rights. 1A Am Jur Pl & Pr Forms
67 S Ct 1493.
Footnote 69. Fred Schmid Appliance & Television Co. v Denver (Colo) 811 P2d 31, reh
den (Colo) 1991 Colo LEXIS 344.
Although the mere allegation of a constitutional violation will not necessarily excuse the
plaintiff's failure to exhaust available administrative remedies, the Supreme Court of
Connecticut has permitted, under special circumstances, a collateral constitutional
challenge to the action of an administrative agency even in the absence of a direct appeal.
Payne v Fairfield Hills Hosp., 215 Conn 675, 578 A2d 1025.
Because agencies cannot decide issues of statutory validity, administrative remedies are

inadequate within the meaning of the Iowa Administrative Procedure Act. Tindal v
Norman (Iowa) 427 NW2d 871.
Footnote 70. Castaneda v Illinois Human Rights Com., 132 Ill 2d 304, 138 Ill Dec 270,
547 NE2d 437, 55 CCH EPD ¶ 40600; Magan v Medical Mut. Liab. Ins. Soc'y, 81 Md
App 301, 567 A2d 503, appeal after remand 331 Md 535, 629 A2d 626 (exhaustion is not
required when there is a direct constitutional attack on the power of the authority of the
legislative body to pass the legislation from which relief is sought).
5. Primary Jurisdiction Doctrine [513-516]
§ 513 Purpose of doctrine
View Entire Section

Go to Supplement
The doctrine of primary jurisdiction is concerned with promoting proper relationships

between the courts and administrative agencies charged with particular regulatory duties.
71 It applies to claims which are properly cognizable in court but which contain some
issue within the special competence of an administrative agency. 72 Thus, under
the primary jurisdiction doctrine, courts will not decide a controversy involving a
question within the jurisdiction of an administrative tribunal until after that tribunal has
rendered its decision. 73 Further, where the remedy for some cause of action is
legislatively located in an administrative agency, that agency has exclusive primary
jurisdiction which precludes the parties from directly seeking adjudication in a court. 74
The doctrine requires the court to allow for a "referral" to the agency by staying further
judicial proceedings so as to give the parties reasonable opportunity to seek an
administrative ruling. Referral of the issue to the administrative agency does not deprive
the court of jurisdiction; it has discretion either to retain jurisdiction or, if the parties
would not be unfairly disadvantaged, to dismiss the case without prejudice. 75
 Comment: "Referral" is sometimes loosely described as a process whereby a court

refers an issue to an agency. However, most federal statutes contain no mechanism
whereby a court can on its own authority demand or request a determination from the
agency; this is left to the adversary system, the court merely staying its proceedings
while the party files an administrative complaint. 76
In general, then, the doctrine of primary jurisdiction holds that where an agency has been
established to handle a particular class of claims, the court should refrain from exercising
its jurisdiction until the agency has made its determination. Hence, the doctrine applies
where the administrative agency cannot provide a means of complete redress to the
complaining party and yet the dispute involves issues that are clearly better resolved in
the first instance by the administrative agency charged with regulating the subject matter
of the dispute. 77

Even when common-law rights and remedies have survived the enactment of the
statutory scheme the agency administers, and the agency in question lacks power to
confer immunity from common-law liability, it may be appropriate to apply the primary
jurisdiction doctrine and refer specific issues to the agency for initial determination, if the
foregoing purposes would be served thereby. 78
The court may raise the issue of primary jurisdiction sua sponte, and its invocation
cannot be waived by the failure of the parties to argue it, as the doctrine exists for the
proper distribution of power between judicial and administrative bodies and not for the
convenience of the parties. 79
§ 513 ----Purpose of doctrine [SUPPLEMENT]
Practice Aids: Reiter v. Cooper [ 122 LEd2d 604 (1993).]: on the road to the Interstate
Commerce Commission, 60 Transp Practitioners J 411 (1993).
Footnotes
Footnote 71. Nader v Allegheny Airlines, Inc., 426 US 290, 48 L Ed 2d 643, 96 S Ct

1978 (superseded by statute on other grounds as stated in Trans World Airlines, Inc. v
Mattox (CA5 Tex) 897 F2d 773, 1990-1 CCH Trade Cases ¶ 68983, 16 FR Serv 3d 122).
Annotation: The doctrine of primary administrative jurisdiction as defined and applied

by the Supreme Court, 38 L Ed 2d 796.
Daily Journal DAR 2994, CCH Bankr L Rptr ¶ 75129A, 7 FLW Fed S 51; Port of Boston
Marine Terminal Asso. v Rederiaktiebolaget Transatlantic, 400 US 62, 27 L Ed 2d 203,
91 S Ct 203; United States v Western P. R. Co., 352 US 59, 1 L Ed 2d 126, 77 S Ct
161; Shlens v Egnatz (Ind App) 508 NE2d 44 (when any part of the claim is within the
agency's exclusive jurisdiction, the whole claim must first be heard by the agency).
Footnote 73. Killian v J & J Installers, Inc. (Mo) 802 SW2d 158.
Footnote 74. Claggett v Department of Revenue (SD) 464 NW2d 212, further stating that
when the legislature provides for appeal to circuit court from an administrative agency,
the circuit court's appellate jurisdiction depends on compliance with that condition
precedent.
Daily Journal DAR 2994, CCH Bankr L Rptr ¶ 75129A, 7 FLW Fed S 51; Port of Boston
Marine Terminal Asso. v Rederiaktiebolaget Transatlantic, 400 US 62, 27 L Ed 2d 203,
91 S Ct 203; United States v Western P. R. Co., 352 US 59, 1 L Ed 2d 126, 77 S Ct 161
(not followed by Duffy v BMC Industries, Inc. (CA2 NY) 938 F2d 353) as stated in
Federal Deposit Ins. Corp. v Schoenberger (ED La) 781 F Supp 1155.
The proper procedure is to stay the District Court action pending administrative exercise
of its primary jurisdiction, and not to dismiss the action outright. Wagner & Brown v
ANR Pipeline Co. (CA5 Tex) 837 F2d 199, 102 OGR 97.

When a court and an agency have concurrent original jurisdiction to decide issues which
have been placed within the special competence of an administrative agency, the judicial
process is suspended pending referral of those issues to the administrative body for its
views. Hawaii Blind Vendors Assn. v Department of Human Services, 71 Hawaii 367,
791 P2d 1261; Kona Old Hawaiian Trails Group v Lyman, 69 Hawaii 81, 734 P2d 161,
25 Envt Rep Cas 1840.
Primary jurisdiction is a judicially created doctrine whereby a court may dismiss or stay
an action, pending a resolution of some portion of the case by an administrative agency.
Shell Pipeline Corp. v Coastal States Trading, Inc. (Tex App Houston (1st Dist)) 788
SW2d 837, writ den (Jan 9, 1991).
Daily Journal DAR 2994, CCH Bankr L Rptr ¶ 75129A, 7 FLW Fed S 51.
Footnote 77. Ostrov v I.F.T., Inc., 402 Pa Super 87, 586 A2d 409 (in a case where the
issues raised merit referral to an agency, but the agency cannot provide complete relief,
the proper procedure is bifurcation of the action; the trial court must stay the action
pending before it and refer to the administrative agency those issues over which the
agency has primary jurisdiction and the action then proceeds in the trial court where
remaining issues within the purview of the court are decided and appropriate relief is
granted); Shell Pipeline Corp. v Coastal States Trading, Inc. (Tex App Houston (1st
Dist)) 788 SW2d 837, writ den (Jan 9, 1991).

Mattox (CA5 Tex) 897 F2d 773, 1990-1 CCH Trade Cases ¶ 68983, 16 FR Serv 3d 122).
Footnote 79. Distrigas of Massachusetts Corp. v Boston Gas Co. (CA1 Mass) 693 F2d
1113, later proceeding (CA1) 737 F2d 1208, later proceeding (CA1) 751 F2d 20; Red
Lake Band of Chippewa Indians v Barlow (CA8 Minn) 846 F2d 474.
§ 514 Application of doctrine
View Entire Section

Go to Supplement
There is no fixed formula for applying the primary jurisdiction doctrine: whether the
reasons underlying the doctrine are present and whether the purposes of the doctrine will
be served by its application must be determined under the circumstances of each
particular case. 80 Important concerns underlying the doctrine include:
• The promotion of uniformity and consistency in the regulation of business entrusted to

an administrative agency 81
• The desirability of employing agency expertise in cases raising issues of fact not within
the conventional experience of judges 82
• The power of particular agencies to immunize certain regulated conduct from liability
in the courts 83
• The promotion of efficiency 84
• The utilization of more flexible procedures available to the agencies 85
• Deferring judicial exploration of an issue which is the subject of ongoing rulemaking

proceedings until the rule is finalized 86
Negative factors, such as the added expense and delay caused the litigants by referral of
questions to an administrative agency, should also be weighed when deciding whether or
not to invoke the primary jurisdiction doctrine. 87
§ 514 ----Application of doctrine [SUPPLEMENT]
Case authorities:
The primary jurisdiction doctrine (1) is specifically applicable to claims properly

cognizable in court that contain some issue within the special competence of an
administrative agency, and (2) permits courts to make a referral to the agency, staying
further proceedings so as to give the parties reasonable opportunity to seek an
administrative ruling. Northwest Airlines v County of Kent (1994, US) 127 L Ed 2d 183,
1994 US LEXIS 1140, 114 S Ct 855, 62 USLW 4103, 94 CDOS 475, 94 Daily Journal
DAR 822, 94 TNT 16-2, 7 FLW Fed S 741.
The United States Supreme Court–in reviewing on certiorari a Federal Court of Appeals'
judgment in favor of an airport in an action by airlines contending that the airport's fee
schedule was unreasonable and thus violative of the Anti-Head Tax Act (AHTA) (49
USCS Appx § 1513)–will not invoke the primary jurisdiction doctrine, so as to refer the
matter to the United States Department of Transportation, where the parties have not
briefed or argued the question of such a referral. Northwest Airlines v County of Kent
(1994, US) 127 L Ed 2d 183, 1994 US LEXIS 1140, 114 S Ct 855, 62 USLW 4103, 94
CDOS 475, 94 Daily Journal DAR 822, 94 TNT 16-2, 7 FLW Fed S 741.
Footnotes
Footnote 80. United States v Western P. R. Co., 352 US 59, 1 L Ed 2d 126, 77 S Ct 161
(not followed by Duffy v BMC Industries, Inc. (CA2 NY) 938 F2d 353) as stated in
Federal Deposit Ins. Corp. v Schoenberger (ED La) 781 F Supp 1155.
Footnote 81. Weinberger v Bentex Pharmaceuticals, Inc., 412 US 645, 37 L Ed 2d 235,

93 S Ct 2488; Far East Conference v United States, 342 US 570, 96 L Ed 576, 72 S Ct
492.


Mattox (CA5 Tex) 897 F2d 773, 1990-1 CCH Trade Cases ¶ 68983, 16 FR Serv 3d 122);
Weinberger v Bentex Pharmaceuticals, Inc., 412 US 645, 37 L Ed 2d 235, 93 S Ct
2488; McKart v United States, 395 US 185, 23 L Ed 2d 194, 89 S Ct 1657; Far East
Conference v United States, 342 US 570, 96 L Ed 576, 72 S Ct 492.

Carnation Co. v Pacific Westbound Conference, 383 US 213, 15 L Ed 2d 709, 86 S Ct
781, 1966 CCH Trade Cases ¶ 71696, amd (US) 383 US 932.
Footnote 84. Christian v New York State Dept. of Labor, Div. of Employment, 414 US
614, 39 L Ed 2d 38, 94 S Ct 747.

Far East Conference v United States, 342 US 570, 96 L Ed 576, 72 S Ct 492.
Footnote 86. Environmental Defense Fund v Environmental Protection Agency, 271 US

App DC 349, 852 F2d 1316, 28 Envt Rep Cas 1089, 18 ELR 21169, cert den 489 US
1011, 103 L Ed 2d 183, 109 S Ct 1120, later proceeding 293 US App DC 117, 952 F2d
473, 34 Envt Rep Cas 1537, 22 ELR 20376.
Footnote 87. Mississippi Power & Light Co. v United Gas Pipe Line Co. (CA5 Miss) 532
F2d 412, reh den (CA5 Miss) 540 F2d 1085 and cert den 429 US 1094, 51 L Ed 2d 541,
97 S Ct 1109.
§ 515 --Questions of law
View Entire Section

The primary jurisdiction doctrine has no application where only a question of law is
involved. 88 That is, the doctrine does not apply in relation to a question which, while
properly determinable by an administrative tribunal, does not involve a question of fact,
but one of pure law, is determinable apart from the exercise of administrative discretion,
and the requisite uniformity of determination is attainable otherwise than by confining
determination of the question to the administrative tribunal. 89 For example, the
court, rather than the Public Utilities Commission, had primary jurisdiction over a
territorial dispute between three utility systems, where resolution of the dispute rested on
inherently judicial determinations: construction of an agreement which had been adopted
by the Commission and interpretation of a provision of the Public Utilities Regulatory
Act requiring a retail public utility to obtain a certificate of public convenience and
where the Commission had not explicitly been given exclusive jurisdiction. 90
Footnotes
Footnote 88. Kovarsky v Brooklyn Union Gas Co., 279 NY 304, 18 NE2d 287; Leitner v
New York Tel. Co., 277 NY 180, 13 NE2d 763, reh den 278 NY 598, 16 NE2d 118.
Because uniformity may be secured through review by a single Supreme Court, questions
of "law" may appropriately be determined in the first instance by courts. Pan American
Petroleum Corp. v Superior Court of Delaware, 366 US 656, 6 L Ed 2d 584, 81 S Ct
1303, 15 OGR 360; Kavanaugh v Underwriters Life Ins. Co. (Tex Civ App) 231 SW2d
753, writ ref.
Footnote 89. W. P. Brown & Sons Lumber Co. v Louisville & N. R. Co., 299 US 393,
81 L Ed 301, 57 S Ct 265.
Annotation: The doctrine of primary administrative jurisdiction as defined and applied

by the Supreme Court, 38 L Ed 2d 796.
Footnote 90. Public Utilities Bd. v Central Power & Light Co. (Tex Civ App Corpus
Christi) 587 SW2d 782, writ ref n r e (Jun 18, 1980) and rehg of writ of error overr (Sep
12, 1980).
§ 516 --Matters not within agency jurisdiction
View Entire Section

The primary jurisdiction doctrine does not apply to require prior resort to an
administrative agency where the relief sought is not within the jurisdiction of the agency,
91 or the question is one which the agency has no power to decide, even though it may
consider the question in reaching a determination which is within its jurisdiction. 92
However, the doctrine may preclude action by the court in an area not within the
jurisdiction of the administrative agency which would disturb what the agency has done
within its jurisdiction. 93
Footnotes
Footnote 91. Illinois C. R. Co. v M. T. Reed Const. Co. (Miss) 51 So 2d 573; Menut &
Parks Co. v Cray, 114 Vt 41, 39 A2d 342, 156 ALR 404.
Footnote 92. United States v Radio Corp. of America, 358 US 334, 3 L Ed 2d 354, 79 S
Ct 457.
The fact that the Interstate Commerce Commission has primary jurisdiction in routing
practices does not necessarily deprive courts of the power to award damages on a claim
for overcharges resulting from misrouting by a motor common carrier where the
Commission may not award reparations. Hewitt-Robins, Inc. v Eastern Freight-Ways,
Inc., 371 US 84, 9 L Ed 2d 142, 83 S Ct 157.

Footnote 93. In Seatrain Lines, Inc. v Pennsylvania R. Co. (CA3 NJ) 207 F2d 255.
6. Judicial Review of the Merits [517-547]
§ 517 Presumption of correctness of agency action
View Entire Section

Go to Supplement
A rebuttable presumption of validity or correctness attaches to all actions of an

administrative agency, 94 and the burden of demonstrating error is upon the petitioner.
95 Thus, if the agency action is constitutionally authorized by statute, it is presumed
valid on review unless it is not supported by substantial evidence and is so wide of its
mark as to be outside the realm of fair debate, or is otherwise unreasonable, arbitrary or
capricious and prejudices the parties. 96
§ 517 ----Presumption of correctness of agency action [SUPPLEMENT]
Case authorities:
Notwithstanding the deference normally given administrative agencies, an agency's

conclusions are not immune from judicial review. Department of Health & Rehabilitative
Servs. v A.S. (1995, Fla) 648 So 2d 128, 20 FLW S 23.
Footnotes
Footnote 94. Screws v Ballard (Ala App) 574 So 2d 827, reh overr (Ala App) 1990 Ala
Civ App LEXIS 496; Cooper v District of Columbia Dept. of Employment Services (Dist
Col App) 588 A2d 1172; Kaufman v State Dept. of Social & Rehabilitation Services, 248
Kan 951, 811 P2d 876; Hanson v Industrial Comm'n (ND) 466 NW2d 587, 116 OGR
294.
Footnote 95. Cooper v District of Columbia Dept. of Employment Services (Dist Col
App) 588 A2d 1172; Teleconnect Co. v Iowa State Commerce Com. (Iowa) 404 NW2d
158; Kaufman v State Dept. of Social & Rehabilitation Services, 248 Kan 951, 811 P2d
876.
811 P2d 876.
The findings and conclusions of the agency and questions of fact are considered prima
facie true and correct. Decatur Federation of Teachers, IFT-AFT, AFL-CIO v State
Educational Labor Relations Bd. (4th Dist) 199 Ill App 3d 190, 145 Ill Dec 162, 556
NE2d 780; Alabama Medicaid Agency v Primo (Ala App) 579 So 2d 1355, cert den,
without op (Ala) 1991 Ala LEXIS 522.
There is a strong presumption of reasonableness that an appellate court must accord an

administrative agency's exercise of statutorily delegated responsibility. Re Application
by Pennsauken Solid Waste Management Authority, 238 NJ Super 233, 569 A2d 826.
As to the arbitrary and capricious standard of review of agency actions, see §§ 529 et
seq.
As to the substantial evidence standard of review of agency actions, see §§ 537 et seq.
§ 518 Issues not raised before agency
View Entire Section

The focal point for judicial review of an administrative action should be the
administrative record already in existence, not some new record made initially in the
reviewing court. 97 The task of the reviewing court is to apply the appropriate
standard of review to the agency decision based on the record the agency presents to the
reviewing court and the reviewing court is not generally empowered to conduct a de novo
inquiry into the matter being reviewed and to reach its own conclusions based on such
inquiry. 98 The agency's action must be reviewed on the evidence and proceedings
before the agency at the time it acted. 99 Thus, if the record before the agency does not
support the agency action, if the agency has not considered all relevant factors, or if the
reviewing court simply cannot evaluate the challenged agency action on the basis of the
record before it, the proper course is to remand to the agency for additional investigation
or explanation. 1
However, this is not an inflexible rule, and review may be proper in exceptional cases or
under extraordinary circumstances where injustice might otherwise result. 2 Thus,
the reviewing court may decide an issue not raised in an agency action if the agency lacks
either the power or the jurisdiction to decide it. For example, the challenge to the
constitutionality of a statute or a regulation need not be raised before the agency. 3 But
even constitutional claims may be required to be determined on the administrative record
when the administrative procedure is fair and adequate for the presentation of material
facts. 4 Moreover, a petitioner cannot obtain review of procedural errors in the
administrative process that were not raised before the agency merely by alleging that
every error violates due process. 5
 Comment: Under the l981 Model State Administrative Procedure Act, a person may
obtain judicial review of an issue that was not raised before the agency, only to the
extent that: (1) the agency did not have jurisdiction to grant an adequate remedy based
on a determination of the issue; (2) the person did not know and was under no duty to
discover, or did not know and was under a duty to discover but could not reasonably
have discovered, facts giving rise to the issue; (3) the agency action subject to judicial
review is a rule and the person has not been a party in adjudicative proceedings which
provided an adequate opportunity to raise the issue; (4) the agency action subject to
judicial review is an order and the person was not notified of the adjudicative
proceeding in substantial compliance with the Act; or (5) the interests of justice would
be served by judicial resolution of an issue arising from a change in controlling law
occurring after the agency action or agency action occurring after the person exhausted
the last feasible opportunity for seeking relief from the agency. 6
Footnotes
Footnote 97. Florida Power & Light Co. v Lorion, 470 US 729, 84 L Ed 2d 643, 105 S
Ct 1598, 22 Envt Rep Cas 1433, 15 ELR 20321, motion den 472 US 1005, 86 L Ed 2d
715, 105 S Ct 2698 and on remand 251 US App DC 350, 785 F2d 1038, 16 ELR 20788;
New Mexico Environmental Improv. Div. v Thomas (CA10) 789 F2d 825, 24 Envt Rep
Cas 1427, 16 ELR 20647; Harold D. Smith & Sons, Inc. v Finance Authority of Maine
(Me) 543 A2d 814; Harris v Bauer, 230 Mont 207, 749 P2d 1068; Pacific Wire Works,
Inc. v Department of Labor & Industries, 49 Wash App 229, 742 P2d 168.
715, 105 S Ct 2698 and on remand 251 US App DC 350, 785 F2d 1038, 16 ELR 20788.
The function of the reviewing court is not to substitute its judgment for that of the agency
on matters where the agency has not had an opportunity to make a factual record or apply
its expertise, but to review agency action based on the record before the agency unless
exceptional circumstances justify use of extra-record materials. New Mexico
Environmental Improv. Div. v Thomas (CA10) 789 F2d 825, 24 Envt Rep Cas 1427, 16
ELR 20647.
As to de novo review, see §§ 545, 546.
Law Reviews: Bradley, Administrative justice and judicial review: taking tribunals
seriously? 1992 Pub L 185 (Summer, 1992).
Footnote 99. New Mexico Environmental Improv. Div. v Thomas (CA10) 789 F2d 825,
24 Envt Rep Cas 1427, 16 ELR 20647; Seely v Oklahoma Horse Racing Com. (Okla
App) 743 P2d 685.
In reviewing a decision of the Board of Alcoholic Control revoking permits issued to

petitioner, the court properly struck from the petition for judicial review allegations
relating to the Board's decisions in other similar cases because the allegations related to
matters not in evidence at petitioner's hearing and the court could not consider evidence
not offered at that hearing. Pie in The Sky, Ltd. v North Carolina Bd. of Alcoholic
Control, 55 NC App 655, 286 SE2d 649, app dismd, petition den 305 NC 760, 292 SE2d
575.
In reviewing an order of the board of managers of a hospital which suspended a

physician's privileges at the hospital, the district court's limiting of judicial review to the
record of the proceedings before the board did not deprive the physician of due process.

Holston v Sloan (Tex Civ App El Paso) 620 SW2d 255.
A transcript of a prior proceeding not on the record before the board in the instant case
cannot be considered by the reviewing court on appeal. Grievance of Gorruso, 150 Vt
139, 549 A2d 631.
715, 105 S Ct 2698 and on remand 251 US App DC 350, 785 F2d 1038, 16 ELR 20788.
Footnote 2. International Ladies' Garment Workers' Union, etc. v Quality Mfg. Co., 420
US 276, 43 L Ed 2d 189, 95 S Ct 972, 88 BNA LRRM 2698, 76 CCH LC ¶ 10663;
NLRB v United Mine Workers, 355 US 453, 2 L Ed 2d 401, 78 S Ct 386, 41 BNA
LRRM 2449, 34 CCH LC ¶ 71257; Hormel v Helvering, 312 US 552, 85 L Ed 1037, 61
S Ct 719, 41-1 USTC ¶ 9322, 25 AFTR 1198.
Footnote 3. Reid v Engen (CA9) 765 F2d 1457.
As to matters not within agency action and the primary jurisdiction doctrine, see § 516.
Footnote 4. St. Regis Paper Co. v Marshall (CA10 Colo) 591 F2d 612, 18 BNA FEP Cas
1635, 18 CCH EPD ¶ 8888, cert den 444 US 828, 62 L Ed 2d 36, 100 S Ct 55, 20 BNA
FEP Cas 1473, 20 CCH EPD ¶ 30266, reh den 444 US 974, 62 L Ed 2d 390, 100 S Ct
470, 21 CCH EPD ¶ 30343a; Quaker Action Group v Morton, 148 US App DC 346, 460
F2d 854.
§ 519 Moot questions; generally
View Entire Section

The term "moot questions" has at least two implications. The term is used to indicate that
the situation presented to the court does not constitute a justiciable controversy, although
no change in facts or circumstances has supervened since the institution of the
proceeding. 7 It is also used to indicate that after the rendition of the
administrative determination from which relief is sought in a court, an event has occurred
which renders moot what, except for the event, might be a controversy upon which
judicial power could act. 8 The intervening events which may render a case moot are of
varied character, such as subsequent legislation; 9 other events independent of the
will of the parties; 10 conduct of the parties, 11 such as payment of a tax the
validity of which was in issue; 12 obtaining the modification of an order; 13 or
receipt from the administrative agency of the ultimate relief demanded in court. 14 A
subsequent event renders a controversy moot where it precludes a court from granting
effective relief, if any, to the aggrieved party. 15
Footnotes
Footnote 7. Aetna Life Ins. Co. v Haworth, 300 US 227, 81 L Ed 617, 57 S Ct 461, 108
ALR 1000, reh den 300 US 687, 81 L Ed 889, 57 S Ct 667; Hicklin v Coney, 290 US
169, 78 L Ed 247, 54 S Ct 142; Tregea v Modesto Irrig. Dist., 164 US 179, 41 L Ed
395, 17 S Ct 52.
Footnote 8. Mehta v New York City Dept. of Consumer Affairs (1st Dept) 162 App Div
2d 236, 556 NYS2d 601.
Law Reviews: Hernicz, Mootness: the unwritten rule for rejecting equal employment
opportunity complaints. 1992 Army Law 11 (March, 1992).
Footnote 9. Isbrandtsen-Moller Co. v United States, 300 US 139, 81 L Ed 562, 57 S Ct

407; Gibbes v Zimmerman, 290 US 326, 78 L Ed 342, 54 S Ct 140.
Footnote 10. United States ex rel. Norwegian Nitrogen Products Co. v United States
Tariff Com., 274 US 106, 71 L Ed 949, 47 S Ct 499; Richardson v McChesney, 218
US 487, 54 L Ed 1121, 31 S Ct 43 (an election to be affected by the court's decree had
been held by the time the case reached the Supreme Court).
Footnote 11. Alexander Sprunt & Son, Inc. v United States, 281 US 249, 74 L Ed 832,
50 S Ct 315, holding that the shipper has no legal standing to sue where a carrier's
acquiescence in an order of the Interstate Commerce Commission ordering the carrier to
desist from favoring a shipper with a discriminatory rate was held to have rendered moot
the shipper's suit to enjoin enforcement of the order.
Footnote 12. Little v Bowers, 134 US 547, 33 L Ed 1016, 10 S Ct 620.
Payment of a tax after a decree dismissing a suit to enjoin the collection of the tax
renders moot the question of the validity of the tax, so that the court has neither the right
nor the inclination to express an opinion upon this question. Singer Mfg. Co. v Wright,
141 US 696, 35 L Ed 906, 12 S Ct 103.
Footnote 13. Hunter v Hussey (La App 1st Cir) 90 So 2d 429, 6 OGR 1172.
Footnote 14. Taylor v McElroy, 360 US 709, 3 L Ed 2d 1528, 79 S Ct 1428.
Footnote 15. United States ex rel. Norwegian Nitrogen Products Co. v United States
Tariff Com., 274 US 106, 71 L Ed 949, 47 S Ct 499.
§ 520 --Capable of repetition, yet evading review exception
View Entire Section


Go to Supplement
In general, where a subsequent action taken during the pendency of a proceeding to

review an agency determination resolves the issues in dispute, the proceeding should be
dismissed as moot. 16 However, under the "capable of repetition, yet evading review"
exception to the requirements of standing or justiciability, even where parties no longer
have a legally cognizable interest in the outcome of the litigation, a court may proceed to
adjudicate the controversy. Where the validity and enforceability of permanent agency
regulations have been challenged in the courts, if the agency by enacting an emergency
regulation renders moot the question of the validity of the permanent regulation, every
challenged regulation which the agency has deemed it necessary to keep in force by
emergency measures would be placed beyond review. Thus, the validity of all such
regulations as they may apply to a particular claimant and to others similarly situated is
likely to arise again unless the questions raised are addressed and resolved. 17
The "capable of repetition, yet evading review" doctrine is limited to the situation where
two elements combine: (1) the challenged action is in duration too short to be fully
litigated prior to its cessation or expiration; and (2) there is reasonable expectation that
the same complaining party would be subjected to the same action again. In determining
whether to rely on this mitigating principle the court should consider a number of
relevant factors including: (1) the public importance of the question presented; (2) the
potential effect of the ruling on an ongoing program of the state's penal or civil system;
and (3) the possibility of a similar effect on the plaintiff himself in the future. The
"capable of repetition, yet evading review principle" is not, in and of itself, a justification
for reviewing an admittedly moot case but is merely one factor to be considered when
faced with the potential matter. 18
§ 520 --Capable of repetition, yet evading review exception [SUPPLEMENT]
Practice Aids: Administrative adjudications and the various bases for court review in
copyright registration, 35 Idea 2:129-147 (1995).
Footnotes
Footnote 17. Commonwealth ex rel. State Water Control Bd. v Appalachian Power Co.,
12 Va App 73, 402 SE2d 703.
Annotation: Federal administrative orders as subject to judicial review where such

orders are "capable of repetition, yet evading review", 66 ALR Fed 285.
Footnote 18. Board of Education v Connecticut Bd. of Labor Relations, 205 Conn 116,
530 A2d 588.
Where an agency's decision involves a matter of great public importance and the exercise
of that authority may occur on other occasions, review of the matter should not be
dismissed as moot. Forbes v Poudre School Dist. R-1 (Colo) 791 P2d 675.

Forms: Petition or application–Allegation–Matters of great public interest involved.
b. Standards of Review of Agency Actions [521, 522]
§ 521 Standards of review under Administrative Procedure Act
View Entire Section

Go to Supplement
The Administrative Procedure Act 19 sets out the standards of judicial review of agency
action, 20 which standards must be deemed unaltered unless Congress' intent to make a
substantive change is clear on the face of a statute. 21 Under the APA, the reviewing
court decides all relevant questions of law, interpreting constitutional and statutory
provisions and determining the meaning or applicability of the terms of an agency action.
22
The reviewing court must hold unlawful and set aside agency action, findings, and
conclusions found to be:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
23
(2) contrary to constitutional right, power, privilege, or immunity; 24
(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

25
(4) without observance of procedure required by law; 26
(5) unsupported by substantial evidence in a case subject to 5 USCS §§ 556 and 557 or
otherwise reviewed on the record of an agency hearing provided by statute; 27 or
(6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the
reviewing court. 28
§ 521 ----Standards of review under Administrative Procedure Act

[SUPPLEMENT]
Case authorities:
Board of Immigration Appeals's "no reopening" exception to its "reopening" rule is abuse
of discretion where it has not properly explained why it will consider motions to reopen
in most cases but not in others. Goncalves v INS (1993, CA1) 6 F3d 830, summary op at
(CA1) 22 M.L.W. 126, 14 R.I.L.W. 509.
Intercommunity Relations Council is denied preliminary injunction preventing

termination of its funding under Head Start program, where Congress authorized Health
and Human Services Department to designate public or private nonprofit agencies to
assist in carrying out objectives of program under 42 USCS §§ 9833 and 9836, but laid
down no requirements with respect to how such agencies should be selected or retained,
because 5 USCS § 706(2)(B) vouchsafes availability of judicial review of action
contrary to constitutional right, but there is no constitutional right to discretionary federal
contract or grant. Intercommunity Relations Council v United States Dep't of Health &
Human Servs. (1994, SD NY) 859 F Supp 81.
Cross motions for summary judgment are denied, where mortgage holder sought
acceptance into Housing and Urban Development Mortgage Assistance Program, HUD
denied her application, and mortgagee appealed, because HUD improperly considered
mortgagee's live-in boyfriend's firing from his job as result of involvement with stolen
car, although mortgagee was sole holder of mortgage, and only mortgagee's conduct was
relevant to determination of her eligibility to participate in relief program. Rodriguez v
Panasiuk (1994, ED Pa) 844 F Supp 1033.
Finding by administrator of Agricultural Marketing Service that petitioner who owned

more than 10 percent of stock of corporation was "responsibly connected" to corporation
during time when corporation committed "repeated and flagrant" violations of 7 USCS §
499a was supported by law and Congressional mandate. Hawkins v Agricultural Mktg.
Serv., U.S.A. (1993, CA5) 10 F3d 1125, 1993-2 CCH Trade Cases ¶ 70448.
Standard for reviewing ICC's determination that petitioner's assignor transported

shipments under contract carriage rather than common carriage is deferential standard;
decision will not be set aside unless it is arbitrary, capricious, abuse of discretion, or
otherwise not supported by law; findings of fact made by agency will be accepted if
supported by substantial evidence. Trans- Allied Audit Co. v ICC (1994, CA8) 33 F3d
1024.
Having rejected new studies on ground that record was insufficient to make permanent
judgment about productivity, FCC reasonably decided to continue present system of
telephone exchange price regulation during interim period of regulatory change; although
Commission could have done otherwise, in light of interim nature of decision and
methodological problems with price data, Commission's decision to stick with original
methodology on interim basis scarcely amounts to clear error in judgment. Bell Atl. Tel.
Cos. v FCC (1996, App DC) 79 F3d 1195.
As general rule, agency's determination is entitled to great weight if agency's experience,

technical competence and specialized knowledge aid agency in its determination. Marten
Transp., Ltd. v Department of Indus., Labor & Human Relations (1993) 176 Wis 2d
1012, 501 NW2d 391, 62 CCH EPD ¶ 42484.
In its review, district court is not free to draw its own independent inferences and
conclusions from administrative record; only legality of Secretary's choice of alternatives
is in issue. Gore, Inc., d/b/a Pure Milk Co. v Espy (1994, DC Tex) 53 Ag Dec 1004.

Footnotes
Footnote 19. 5 USCS §§ 701-706.
Footnote 21. Consumers Union of U.S., Inc. v FTC, 255 US App DC 203, 801 F2d 417,
As to review of legal questions, see §§ 523 et seq.
Forms: Allegations–Order arbitrary and capricious because of procedural

irregularities. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 226.
Footnote 24. 5 USCS § 706(2)(B).
Footnote 25. 5 USCS § 706(2)(C).
Footnote 26. 5 USCS § 706(2)(D).
When an agency fails to comply with the notice provision of the APA, its action must be
set aside because it is made without observance of the procedure required by law by 5
USCS § 706(2)(D). National Black Media Coalition v FCC (CA2) 791 F2d 1016.
As to procedural matters in general, see §§ 559 et seq.
Forms: Allegations–Order based on insufficient evidence. 1A Am Jur Pl & Pr Forms

Allegations–Determinations of federal agency not supported by evidence required

under statutes. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 227.
Footnote 28. §§ 545, 546.
§ 522 Standards of review in state courts
View Entire Section

Go to Supplement
Among state courts, there is no one statement of the standards for judicial review of
agency actions, although many follow closely those established by the Administrative
Procedure Act. 29
 Comment: Both the 1961 30 and l981 31 Model State Administrative Procedure
Acts contain provisions similar to those of the APA regarding the standards for review
of administrative agency actions.
Beyond the threshold enquiry into jurisdiction, a court must determine initially whether
the holding involves a finding of fact or conclusion of law. This distinction must be
made to determine the proper standard of review. 32 As to legal questions, the courts
are in agreement that the proper standard of review is the substitution of judgment test.
33 As to fact questions, the overwhelming majority of courts appear to utilize the
arbitrary and capricious 34 and substantial evidence standards. 35 Many courts,
however, articulate variations on or additions to these standards, such as where–
–the circuit court must determine whether the agency has: (1) accorded procedure and
due process; and (2) observed the essential requirements of law. 36
–review of the agency's decisions is limited to: (1) whether the agency has regularly
pursued its authority; (2) whether its decisions are just and reasonable; and (3) whether
its conclusions are in accordance with the evidence. 37
–the reviewing court is limited to deciding whether: (1) the agency acted fraudulently,
arbitrarily or capriciously; (2) the administrative order is substantially supported by
evidence; and (3) the agency's action was within the scope of its authority. 38
–the reviewing court has the power to reverse or modify the decisions of an agency if
substantial rights are prejudiced because the agency's findings or decisions were: (1) in
violation of constitutional or statutory provisions; (2) in excess of its statutory authority;
(3) made upon unlawful procedures; (4) affected by other error of law; (5) arbitrary or
capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion; or (6) manifestly erroneous in view of the reliable, probative, and substantial
evidence on the whole record. 39
–the standard of review is that the court reviews the record to determine whether the
agency acted within its jurisdiction and whether there is relevant evidence to support the
decision. 40
–the scope of judicial review is limited to the issues of law and whether the evidence is
sufficient to support the administrative determination. 41
–the decision of the agency will be upheld unless the findings of fact are not supported by
the preponderance of the evidence, the conclusions of law are not supported by the
findings of law, the final decision is not supported by the conclusions of law, or the
decision is not in accordance with the law. 42
–review of administrative agency decisions involves a 3-step process: (1) are the
findings of fact supported by a preponderance of the evidence; (2) are the conclusions of
law sustained by the findings of fact; and (3) is the agency decision supported by the
conclusions of law. 43
–the standard of appellate review in an administrative agency ruling is to ascertain only if

the agency's action is supported by reliable, probative and substantial evidence, and is not
contrary to law. 44
–the reviewing court may render such decision as should have been rendered if it appears
that the decisions of the tribunal, body or officer exercising judicial functions are
contrary to law or contrary to the clear weight of the evidence. 45
–the proper review of the agency's action is whether its order was made in accordance
with law (that is, whether it was made in bad faith, and whether it was fraudulent or
capricious). 46
–the decision of the administrative agency must be upheld unless this decision is clearly
erroneous or unless the court is left with a definite and firm conviction that a mistake has
been made. 47
–findings of fact, should not be reversed unless clearly wrong. 48
–the agency order or decisions are clearly wrong in view of the reliable, probative or
substantial evidence on the whole record. 49
–the reviewing court must examine whether the decision made by an administrative
agency has been reached on relevant factors and was rational. 50
§ 522 ----Standards of review in state courts [SUPPLEMENT]
Case authorities:
If a petitioner argues that an agency's decision was based on an error of law, "de novo"
review is required, but a reviewing court must apply the "whole record" test if the
petitioner questions whether the agency's decision was supported by the evidence or
whether the decision was arbitrary or capricious. Friends of Hatteras Island Nat'l Historic
Maritime Forest Land Trust for Preservation v Coastal Resources Comm'n (1995) 117
NC App 556, 452 SE2d 337.
Decisions of agency which deal with scope of agency's own power are not binding on
Wisconsin Supreme Court. GTE N., Inc. v Public Serv. Comm'n (1993, App) 176 Wis
2d 559, 500 NW2d 284, digest op at (Wis) 145 PUR4th 110.
Footnotes
Footnote 30. Model State Administrative Procedure Act (l961) § 15(g).
Footnote 31. Model State Administrative Procedure Act (l981) § 5-116(c).
Footnote 32. Re Determination of Ordinary High Water Mark & Outlet Elevation for
Beaver Lake (SD) 466 NW2d 163.




Footnote 36. Education Dev. Center v West Palm Beach Zoning Bd. of Appeals (Fla) 541
So 2d 106, 14 FLW 125.
Footnote 37. Atchison, T. & S. F. R. Co. v Public Utilities Com. (Colo) 763 P2d 1037.
Footnote 38. Brinson v School Dist., 223 Kan 465, 576 P2d 602.
Footnote 39. Amoco Production Co. v Thompson (La App 1st Cir) 566 So 2d 138, 112
OGR 65.
Footnote 40. Geringer v Omaha, 237 Neb 928, 468 NW2d 372, later proceeding (CA8
Neb) 1993 US App LEXIS 941.
Footnote 41. Libra v University of New York (3d Dept) 124 App Div 2d 939, 508
NYS2d 696, app dismd 69 NY2d 933, 516 NYS2d 655, 509 NE2d 350 and app den 70
NY2d 603, 518 NYS2d 1026, 512 NE2d 552.
Footnote 42. Ehrmantraut v North Dakota Workers Compensation Bureau (ND) 469
NW2d 557.
Footnote 43. Hanson v Industrial Comm'n (ND) 466 NW2d 587, 116 OGR 294; Schmalz
v North Dakota Workers Compensation Bureau (ND) 449 NW2d 817.
Footnote 44. Richard T. Kiko Agency, Inc. v Ohio Dept. of Commerce, Div. of Real
Estate, 48 Ohio St 3d 74, 549 NE2d 509, 7 ALR5th 1121, reh gr, in part 49 Ohio St 3d
709, 551 NE2d 1305.
Footnote 45. Anderson v Lawton (Okla App) 748 P2d 53.
Footnote 46. Slawek v Commonwealth, State Bd. of Medical Educ. & Licensure, 526 Pa
316, 586 A2d 362.
Footnote 48. Hyre v Upshur County Bd. of Educ., 186 W Va 267, 412 SE2d 265.

Footnote 49. FMC Corp. v West Virginia Human Rights Comm'n, 184 W Va 712, 403
SE2d 729.
Footnote 50. McGuire v State, Dept. of Revenue & Taxation (Wyo) 809 P2d 271.
c. Legal Questions [523-527]
§ 523 Generally
View Entire Section

Go to Supplement
The final word on matters of law belongs to the courts, which may substitute their
judgment for that of the agencies when necessary. 51 Purely legal issues are fit for
review if they will not be clarified by further factual development, 52 and include an
agency's construction of statutes 53 and constitutions 54 and its interpretation of its
own regulations. 55 However, the issues in a case are not purely legal within the
meaning of the factors described in the Supreme Court's Abbott decision 56 by reason
of the fact that the factual record supporting the agency action is complete. The "purely
legal issue" factor expresses the reviewing court's need for a completed and specific
framework within which the agency's decision can properly be evaluated, and this may
require more than the existence of a completed factual record. 57
The courts will, however, generally show great deference to the interpretation given a
statute 58 or regulation 59 by the officers of the agency charged with its
administration, and will likewise give some weight to an agency's characterization of its
own proceeding for purposes of determining the applicability of the Administrative
Procedure Act. 60
The correction of error standard applies to agency rulings on issues of law; 61 the court
merely determines if the administrative agency's interpretation of the law is correct. 62
 Caution: An appellate court may apply the harmless error rule when passing on a
claim that an agency violated the law or its procedures. 63
Case authorities:
Although there may be some suggestion in record that FAA did not follow its own
internal procedures in denying renewal of pilot's examiner designation, pilot's failure to
specifically and distinctly argue matter before agency waived right to raise matter on
appeal. Greenwood v FAA (1994, CA9) 28 F3d 971, 94 CDOS 4907, 94 Daily Journal
DAR 9029.
Federal Energy Regulatory Commission did not exceed its authority under Outer
Continental Shelf Lands Act when it ordered pipeline company to interconnect with oil
company; by its own terms, Act applies to restrict only "expansion of throughput
capacity" and cannot be read to restrict Commission's authority to order pipeline
interconnections. Shell Oil Co. v FERC (1995, App DC) 47 F3d 1186.
Supreme court is not bound by administrative agency's conclusions of law. Wisconsin

Dep't of Transp. v Wisconsin Personnel Comm'n (1993, App) 176 Wis 2d 731, 500
NW2d 664.
Supreme court gives no deference to agency conclusion of law when issue is clearly one
of first impression for agency and agency lacks special expertise or experience in
determining issue presented. Wisconsin Dep't of Transp. v Wisconsin Personnel Comm'n
(1993, App) 176 Wis 2d 731, 500 NW2d 664.
In action by state public intervenor to block Department of Natural Resources' grant of

water quality certification for confined disposal facility in bay of Green Bay where grant
of certification was reviewed by hearing examiner for State Department of
Administration and Secretary of Department of Natural Resources and affirmed by each,
question of whether public intervenor was aggrieved party is question of law which
supreme court decides independently of views of lower courts. Public Intervenor v
Wisconsin Dep't of Natural Resources (1994) 184 Wis 2d 407, 515 NW2d 897.
Footnotes
Footnote 51. North Carolina v Federal Aviation Admin. (CA4 NC) 957 F2d 1125;
Swearingen Aviation Corp. v NLRB (CA5) 568 F2d 458, 97 BNA LRRM 2972, 83 CCH
LC ¶ 10406; Brigham v Federal Communications Com. (CA5) 276 F2d 828; Good
Samaritan Hospital, Corvallis v Mathews (CA9 Or) 609 F2d 949; Boguszewski v
Commissioner of Dept. of Employment & Training, 410 Mass 337, 572 NE2d 554;
Southfield Police Officers Assn. v Southfield, 433 Mich 168, 445 NW2d 98, 137 BNA
LRRM 2891 (the court may review the law regardless of the factual findings of the
commission); Re Westling Mfg., Inc. (Minn App) 442 NW2d 328; Fisher v Employment
Secur. Dept., 63 Wash App 770, 822 P2d 791 (also stating that substantial weight is
accorded the agency's view).
When the question on appeal is one of law and no practical administrative expertise is
involved, the proper standard of review is the substitution of judgment test. Homer
Electric Assn. v Kenai (Alaska) 816 P2d 182.
When an agency's decision is predicated solely on an error of law, no deference is

appropriate and the reviewing court may substitute its judgment for that of the agency.
Caucus Distributors, Inc. v Maryland Secur. Comr., 320 Md 313, 577 A2d 783.
Agency decisions that are clearly an interpretation or application of law as distinguished

from a determination of fact, are not binding upon the reviewing court and fall within its
province of review and correction. West v Posten Constr. Co. (Mo) 804 SW2d 743.
If an administrative agency's decision is based upon its interpretation or application of the

law, then the matter is for the independent judgment of the reviewing court. Thomas v
Missouri Dept. of Social Services, Div. of Family Services (Mo App) 805 SW2d 286.
The circuit court must reverse, vacate or modify the order or decision of the agency if the
substantial rights of the petitioner or petitioners have been prejudiced because the
administrative findings, inferences, conclusions, decisions or order are in violation of
constitutional or statutory provisions; in excess of the statutory authority or jurisdiction
of the agency; made upon unlawful procedures; or affected by other error of law. FMC
Corp. v West Virginia Human Rights Comm'n, 184 W Va 712, 403 SE2d 729.
Forms: Petition to review administrative order–Allegation–Statute erroneously

interpreted and applied by agency. 2 Federal Procedural Forms, L Ed, Appeal,
2d 409, 105 S Ct 3325, 22 Envt Rep Cas 2033, 15 ELR 20698.
Footnote 54. Chester Extended Care Center v Commonwealth, Dept. of Public Welfare,
526 Pa 350, 586 A2d 379; FMC Corp. v West Virginia Human Rights Comm'n, 184 W
Va 712, 403 SE2d 729, stating that the reviewing court may determine whether the
agency's adjudication is in violation of the constitutional rights of the appellant.

1507.
Footnote 57. Texas v United States Dept. of Energy (CA5) 764 F2d 278, 23 Envt Rep
Cas 1141, 15 ELR 20711, reh den, en banc (CA5) 770 F2d 164 and cert den 474 US
1008, 88 L Ed 2d 463, 106 S Ct 531, stating that where Texas challenged actions taken
by the Secretary of Energy regarding designation of two sites in Texas as potentially
acceptable for development as nuclear waste repositories, the issues before the court were
not purely legal because judicial review of the Secretary's site screening process would
be more meaningful if Texas were required to wait until environmental assessments were
prepared.
Law Reviews: Callahan, Must federal courts defer to agency interpretations of

statutes?: a new doctrinal basis for Chevron USA v Natural Resources Defense
Council. 1991 Wis LR 1275 (November-December 1991).
Strauss, When the judge is not the primary official with responsibility to read: agency
interpretation and the problem of legislative history. 66 Chi-Kent LR 321 (1990).
Saunders, Agency interpretation and judicial review: a search for limitations on the
controlling effect given agency statutory constructions. 30 Ariz LR 769 (1988).

Law Reviews: Weaver and Schweitzer, Deference to agency interpretation of
regulations: a post-Chevron assessment. 22 Mem St U LR 412 (Spring, 1992).
Questions of law are reviewed by the court de novo. Re Determination of Ordinary High
Water Mark & Outlet Elevation for Beaver Lake (SD) 466 NW2d 163.
Footnote 61. Hurley v Board of Review (Utah) 767 P2d 524, 98 Utah Adv Rep 20.
Footnote 62. Mack T. Anderson Ins. Agency, Inc. v Belgrade, 246 Mont 112, 803 P2d
648.
Agency determinations of general law are to be reviewed giving no deference to the

agency's decisions, but reviewing for correctness. Savage Industries, Inc. v Utah State
Tax Com. (Utah) 811 P2d 664, 160 Utah Adv Rep 5.
Footnote 63. Committee to Elect Lyndon La Rouche v Federal Election Com., 198 US
App DC 101, 613 F2d 834, cert den 444 US 1074, 62 L Ed 2d 756, 100 S Ct 1019.
As to harmless error in general, see 5 Am Jur 2d, Appeal and Error §§ 776 et seq.
§ 524 Agency's construction of statute, generally
View Entire Section

Go to Supplement
The issue of the validity of a final administrative interpretation of a statute is a legal

question and ripe for review as there is no problem of identifying or refining pertinent
facts and no record to be studied or made beyond the statute and its legislative history. 64
The appellate court is as well suited to decide issues involving statutory interpretation as
the agency. 65
Thus, where the issue on review concerns a construction of the statutes controlling the
actions of the agency, the reviewing court is not bound by the agency's conclusions as to
that construction. 66 However, the courts will generally show great deference to an
agency's interpretation of a statute. 67 A reviewing court should accord
considerable weight to an executive department's construction of the statutory scheme it
is entrusted to administer. 68 The court and will give a heightened degree of
deference to the agency's interpretation when the statute is within the agency's field of
expertise, 69 and less deference to agency construction and interpretation of a statute
which has not previously been subjected to judicial scrutiny or time-tested agency
interpretations. 70

The question of whether findings of fact were in conformity with regulations is also a
reviewable question of law. 71
§ 524 ----Agency's construction of statute, generally [SUPPLEMENT]
Case authorities:
The mere fact that an agency's interpretation of a statute contradicts a prior agency
position is not fatal to a finding that the agency's interpretation is entitled to deference by
the United States Supreme Court; accordingly, neither of two letters–(1) a 1964 letter
from the Comptroller of the Currency to a Presidential committee, to the effect that bank
charges for late payments, among other things, would not be characterized as interest, nor
(2) a 1988 opinion letter from the deputy chief counsel of the Office of the Comptroller
to the effect that the laws of the states where the banks are located determine the fees that
may be charged–is sufficient to establish a binding agency policy which would disentitle
a subsequently adopted Comptroller regulation, interpreting the term "interest" in 12
USCS § 85 to include late-payment charges on credit card accounts, to deference by the
Supreme Court. Smiley v Citibank (S.D.), N.A. (1996, US) 135 L Ed 2d 25, 96 CDOS
Department of Labor's Interpretation No. 302 of Fair Labor Standards Act, 29 CFR
541.302(a), is nonbinding, out of date, and refers only to "long test" that applies only to
employees not at issue, and is therefore to be given little weight. Freeman v NBC (1996,
CA2 NY) 80 F3d 78, 24 Media L R 1653, 3 BNA WH Cas 2d 289, 131 CCH LC ¶
33352.
Bureau of Immigration Appeals's (BIA's) decision to deny Chinese national's application

for asylum is remanded for application of appropriate legal standard, where January 1993
rule, public but unpublished by new administration, would benefit national by expanded
interpretation of standards for refugee status, because BIA failed to apply January rule,
which became effective despite agency's failure to publish it in Federal Register in
accordance with 5 USCS § 552(a)(1). Xin-Chang Zhang v Slattery (1994, SD NY) 859 F
Supp 708.
Plain language of 7 USCS § 608c is not unambiguous and court will defer to Secretary
of Agriculture's reasonable interpretation regarding power to order plant location
adjustments and increased mileage rates for federal milk price benefits. Lansing Dairy v
Espy (1994, CA6 Mich) 39 F3d 1339, 1994 FED App 366P, reh, en banc, den (1995,
CA6 Mich) 1995 US App LEXIS 1404.
Only statutory interpretations by agencies with rule-making powers deserve substantial

deference; Federal Railroad Administration has not been granted rule making authority
by Congress, and court will therefore consider agency's application of statutory
provisions as "interpretive rules" undeserving of substantial deference. Atchison, T. &
S.F. Ry. v Pena (1994, CA7) 44 F3d 437, 2 BNA WH Cas 2d 814.
Forest Service policy of refusing to approve motorized access to claims located in

national forest wilderness lands, unless and until claim validity is established, is
consistent with statutes, agency regulations, and is therefore valid. Clouser v Espy (1994,
CA9 Or) 42 F3d 1522, 94 CDOS 9312, 94 Daily Journal DAR 17268, 25 ELR 20360.

In proceeding challenging Secretary of Education's finding directing state to repay
interest on PELL grant funds, Secretary's interpretation of regulation restricting audit
evidence submitted to administrative law judge to exclude accounting abstract based on
ALJ's previously available records, submitted after 45-day time restriction, was not
arbitrary and capricious where Secretary rejected ALJ's determination that report was
based on previously available records and therefore admissible, and found that abstract
was "institutional audit work paper" and not timely submitted. Trustees of the Cal. State
Univ. v Riley (1996, CA9 Cal) 74 F3d 960, 96 CDOS 1094, 96 Daily Journal DAR 1826.
The administrative construction of a statute by the agency charged with its administration
should not be disregarded or overturned by a reviewing court except for most cogent
reasons and unless clearly erroneous. Department of Health & Rehabilitative Servs. v
A.S. (1995, Fla) 648 So 2d 128, 20 FLW S 23.
When the issue on appeal is whether a state agency erred in interpreting a statutory term,
an appellate court may freely substitute its judgment for that of the agency and employ de
novo review. Brooks v BCF Piping, Inc. (1993) 109 NC App 26, 426 SE2d 282, digest op
at (NC App) 1993 CCH OSHD ¶ 29974.
In proceedings where issue was whether Wisconsin Personnel Commission had authority
to order state agency to pay costs and attorney's fees related to discovery motion,
supreme court reviewed issue which was one of first impression without deference to
commission's legal conclusions, since although commission administered Wisconsin Fair
Employment Act, it did not rely on any precedent and had no expertise in resolving issue
of its own authority to tax costs and attorney's fees against state. Wisconsin Dep't of
Transp. v Wisconsin Personnel Comm'n (1993, App) 176 Wis 2d 731, 500 NW2d 664.
Commission's construction of statute and its application to particular set of facts is

question of law. Cornwell Personnel Assocs., Ltd. v Labor & Indus. Review Comm'n
(1993, App) 175 Wis 2d 537, 499 NW2d 705.
If commission's statutory interpretation reflects practice or position long continued,

substantially uniform and without challenge by governmental authorities and courts,
great weight will be accorded commission's decision. Cornwell Personnel Assocs., Ltd. v
Labor & Indus. Review Comm'n (1993, App) 175 Wis 2d 537, 499 NW2d 705.
Footnotes
CCH LC ¶ 9094; International Brotherhood of Electrical Workers v Interstate Commerce
Com., 274 US App DC 103, 862 F2d 330, 129 BNA LRRM 3017, 110 CCH LC ¶ 10831;
Atlantic Richfield Co. v United States Dept. of Energy, 248 US App DC 82, 769 F2d
771; Association of Nat. Advertisers, Inc. v FTC, 199 US App DC 29, 617 F2d 611,
1979-2 CCH Trade Cases ¶ 62950; National Automatic Laundry & Cleaning Council v
Shultz, 143 US App DC 274, 443 F2d 689; Golden Cheese Co. v Voss (4th Dist) 230 Cal
App 3d 547, 281 Cal Rptr 587, 91 CDOS 4062, 91 Daily Journal DAR 6184; Hamilton
County Dept. of Public Welfare v Smith (Ind App) 567 NE2d 165 (the court is not bound
by the agency interpretation and should reverse if the agency incorrectly interpreted its

own statute).
Footnote 66. Siegel v Arizona State Liquor Bd. (App) 167 Ariz 400, 807 P2d 1136, 82
Ariz Adv Rep 27; Arkansas Dept. of Human Services v Greene Acres Nursing Homes,
Inc., 296 Ark 475, 757 SW2d 563; Freeport v Illinois State Labor Relations Bd., 135 Ill
2d 499, 143 Ill Dec 220, 554 NE2d 155, 135 BNA LRRM 2492.
A reviewing court may interpret the statute in accordance with its own view of the
purposes of the statute. Phillips v Houston Contracting, Inc. (Alaska) 732 P2d 544,
appeal after remand (Alaska) 812 P2d 598.
An interpretation which is inconsistent with the statute must be rejected by the court.
Cooper v District of Columbia Dept. of Employment Services (Dist Col App) 588 A2d
1172.
Footnote 67. Johnson v Robison, 415 US 361, 39 L Ed 2d 389, 94 S Ct 1160; Udall v

Tallman, 380 US 1, 13 L Ed 2d 616, 85 S Ct 792, 22 OGR 715, reh den 380 US 989,
14 L Ed 2d 283, 85 S Ct 1325; Kaufman v State Dept. of Social & Rehabilitation
Services, 248 Kan 951, 811 P2d 876.
Law Reviews: Callahan, Must federal courts defer to agency interpretations of

statutes?: a new doctrinal basis for Chevron USA v Natural Resources Defense
Council. 1991 Wis LR 1275 (November-December 1991).
Strauss, When the judge is not the primary official with responsibility to read: agency
interpretation and the problem of legislative history. 66 Chi-Kent LR 321 (1990).
Saunders, Agency interpretation and judicial review: a search for limitations on the
controlling effect given agency statutory constructions. 30 Ariz LR 769 (1988).
Annotation: Supreme Court's view as to weight and effect to be given, on subsequent

judicial construction, to prior administrative construction of statute, 39 L Ed 2d 942.
Forms: Petition to review administrative order–Allegation–Statute erroneously

interpreted and applied by agency. 2 Federal Procedural Forms, L Ed, Appeal,
468 US 1227, 82 L Ed 2d 921, 105 S Ct 28, 105 S Ct 29.
Footnote 69. Inland Empire Distribution Systems, Inc. v Utilities & Transp. Com., 112
Wash 2d 278, 770 P2d 624, 87 ALR4th 627.
The reviewing court will review with some deference an agency's construction of a
statute when questions at issue implicate special agency expertise or the determination of
fundamental policies within the scope of the agency's statutory functions. Homer
Electric Assn. v Kenai (Alaska) 816 P2d 182.

Footnote 70. Connecticut State Medical Soc. v Connecticut Bd. of Examiners in Podiatry,
208 Conn 709, 546 A2d 830.
The case for judicial deference to administrative construction of a statute is less

compelling with respect to agency positions that are inconsistent with the agency's
previously-held views. Pauley v BethEnergy Mines, Inc. (US) 115 L Ed 2d 604, 111 S
Ct 2524, 91 CDOS 4811, 91 Daily Journal DAR 7442, on remand (CA4) 953 F2d 637,
reported in full (CA4) 1992 US App LEXIS 287.
Footnote 71. Boyd v Secretary of Agriculture (DC SC) 459 F Supp 418.
§ 525 --Construction in accordance with Congressional intent; statute silent or

ambiguous as to question presented
View Entire Section

Go to Supplement
The judiciary must reject administrative constructions which are contrary to clear
congressional intent. 72 The executive branch is not permitted to administer a statute
in a manner that is inconsistent with the administrative structure that Congress has
enacted in law. 73 Thus, where the intent of Congress is clear, the court, as well as the
agency, must give effect to that intent. 74 In ascertaining the plain meaning of the
statute, the court must look to the particular statutory language as well as the language
and design of the statute as a whole. 75 Where the plain language of a statute appears
to settle the question presented, the Supreme Court will look to the statute's legislative
history to determine only whether there is clearly expressed legislative intention contrary
to that language, which would require the court to question the strong presumption that
Congress expresses its intent through the language it chooses. 76
On the other hand, if in reviewing an agency's construction of a statute the court

determines that Congress has not directly addressed the precise question at issue, the
court may not simply impose its own construction on the statute, 77 as would be
necessary in the absence of an administrative interpretation. Rather, if the statute is silent
or ambiguous with respect to the specific issue, the question for the court is whether the
agency's answer is based on a permissible construction of the statute. 78
To uphold an agency's construction of a statute that is silent or ambiguous with respect to

the question at issue, a reviewing court need not conclude that the agency construction
was the only one it permissibly could have adopted, or even the reading the court would
have reached if the question initially had arisen in a judicial proceeding. 79
Legislative regulations by an agency are given controlling weight unless they are
arbitrary, capricious, or manifestly contrary to statute. Even when the legislative
delegation to an agency on a particular question is implicit rather than explicit, a court
may not substitute its own construction of a statutory provision for a reasonable
interpretation made by the administrator of an agency. 80 However, the court is not
obliged to endorse every interpretation of the statute advanced by the agency. Agency
expertise notwithstanding, the courts remain the final authority on issues of statutory
construction and must not stand aside and rubber stamp administrative decisions that they
deem inconsistent with a statutory mandate or that frustrates the Congressional policy
underlying a statute. The courts need not defer to an agency interpretation of a statute
which is not one that Congress would have sanctioned. 81
In reviewing an agency interpretation which is not contrary to clear statutory intent or the
plain language of the statute, a reviewing court will consider, in addition to the factors
discussed above, whether the interpretation is contemporaneous with the legislation's
enactment, and whether the interpretation has been consistently adhered to by the agency
over time. 82
§ 525 --Construction in accordance with Congressional intent; statute silent or

ambiguous as to question presented [SUPPLEMENT]
Case authorities:
Congress may alter or modify the application of congressional enactments in the case of
particular federal administrative agencies. Stone v INS (1995, US) 131 L Ed 2d 465,
115 S Ct 1537, 95 CDOS 2868, 95 Daily Journal DAR 4928, 8 FLW Fed S 699.
Failure of Secretary of Health and Human Services to adjust automobile equity limit of
$1500 for inflation since its adoption in 1982 has thwarted Congress's purpose in
establishing AFDC program and Secretary's own rationale for adopting limit; Secretary's
budgetary decision in refusing to adjust limit does not maintain rational relation to
Congress's stated purposes for means-tested program. Gamboa v Rubin (1996, CA9
Hawaii) 80 F3d 1338, 96 CDOS 2392.
Footnotes
Footnote 73. ETSI Pipeline Project v Missouri, 484 US 495, 98 L Ed 2d 898, 108 S Ct
805.
1811, 6 USPQ2d 1897, 1988-1 CCH Trade Cases ¶ 68018; ETSI Pipeline Project v
Missouri, 484 US 495, 98 L Ed 2d 898, 108 S Ct 805.
If a court, reviewing an agency's construction of the statute which it administers and

employing traditional tools of statutory construction, ascertains that Congress had an
intention on the precise question at issue, that intention is the law and must be given
effect. Chevron United States, Inc. v Natural Resources Defense Council, Inc., 467 US
837, 81 L Ed 2d 694, 104 S Ct 2778, 21 Envt Rep Cas 1049, 14 ELR 20507.

followed by Haitian Centers Council, Inc. v McNary (ED NY) 1992 US Dist LEXIS
8452).
Footnote 78. Rust v Sullivan, 500 US 173, 114 L Ed 2d 233, 111 S Ct 1759, 91 CDOS
3713, 91 Daily Journal DAR 6006; Chevron United States, Inc. v Natural Resources
Defense Council, Inc., 467 US 837, 81 L Ed 2d 694, 104 S Ct 2778, 21 Envt Rep Cas
1049, 14 ELR 20507.
Footnote 79. Rust v Sullivan, 500 US 173, 114 L Ed 2d 233, 111 S Ct 1759, 91 CDOS
3713, 91 Daily Journal DAR 6006; Chevron United States, Inc. v Natural Resources
Defense Council, Inc., 467 US 837, 81 L Ed 2d 694, 104 S Ct 2778, 21 Envt Rep Cas
1049, 14 ELR 20507.
Footnote 81. Shanty Town Assoc. Ltd. Partnership v Environmental Protection Agency
(CA4 Md) 843 F2d 782, 27 Envt Rep Cas 1540, 18 ELR 21227.
Footnote 82. New Mexico Environmental Improv. Div. v Thomas (CA10) 789 F2d 825,
24 Envt Rep Cas 1427, 16 ELR 20647.
§ 526 --Delegation of policymaking authority to agency
View Entire Section

Where Congress, through express delegation or the introduction of an interpretive gap in

a statutory structure, has delegated policymaking authority under a statute to an
administrative agency, the extent of judicial review of the agency's policy determinations
is limited, 83 because (1) judicial deference to an agency's interpretation of
ambiguous provisions of the statutes it is authorized to implement reflects a sensitivity to
the proper roles of the government's political and judicial branches, and (2) the resolution
of ambiguity in a statutory text is often more a question of policy than of law. 84
Footnotes
Footnote 83. Pauley v BethEnergy Mines, Inc. (US) 115 L Ed 2d 604, 111 S Ct 2524,
91 CDOS 4811, 91 Daily Journal DAR 7442, on remand (CA4) 953 F2d 637, reported in
If the regulation is not in conflict with the plain language of the statute, the reviewing
court must give deference to the agency's interpretation of the statute, although the
traditional deference which courts pay to agency interpretation is not to be applied to
alter the clearly expressed intent of Congress. Kmart Corp. v Cartier, Inc., 486 US 281,
100 L Ed 2d 313, 108 S Ct 1811, 6 USPQ2d 1897, 1988-1 CCH Trade Cases ¶ 68018.
Footnote 84. Pauley v BethEnergy Mines, Inc. (US) 115 L Ed 2d 604, 111 S Ct 2524,
91 CDOS 4811, 91 Daily Journal DAR 7442, on remand (CA4) 953 F2d 637, reported in
§ 527 Agency's interpretation of its regulations
View Entire Section

Go to Supplement
Interpretation of an administrative regulation is a question of law which the courts review

de novo. 85 Nonetheless, an agency's construction of its own regulations is entitled to
substantial deference, 86 especially when the relevant language is unclear or
susceptible to different interpretations. If the regulation is ambiguous, agency
interpretation will generally be upheld if it is reasonable. 87 Agency construction of its
own regulations is entitled to greater deference, in fact, than that due the agency's
interpretation of its governing statute. 88
It is presumed that Congress intended to invest interpretive power in the administrative

actor in the best position to develop historical familiarity and policymaking expertise. In
situations in which the meaning of regulatory language is not free from doubt, a
reviewing court should give effect to the agency's interpretation so long as it is
reasonable–that is, so long as the interpretation sensibly conforms to the purpose and
wording of the regulations. Because applying an agency's regulation to complex or
changing circumstances calls upon the agency's unique expertise and policymaking
prerogatives, it is presumed that the agency's power authoritatively to interpret its own
regulations is a component of the agency's delegated lawmaking power. 89
Some courts apply the "arbitrary, capricious, abuse of discretion, or otherwise not in
accordance with law" standard to an agency's application and interpretation of its own
regulations. 90
§ 527 ----Agency's interpretation of its regulations [SUPPLEMENT]
Case authorities:
Secretary of Labor's interpretation of regulation implementing construction industry

safety standards, determining that engineering firm could be held liable for injury to
cement-pouring workers despite fact that firm had no employees at construction site,
would expand meaning of phrase "places of employment" beyond reasonable boundaries.
Reich v Simpson, Gumpertz & Heger, Inc. (1993, CA1) 3 F3d 1, 16 BNA OSHC 1313,
1993 CCH OSHD ¶ 30180, summary op at (CA1) 21 M.L.W. 3361, 14 R.I.L.W. 433.
Hiring freeze and reduction-in-force notices issued to Bureau of Indian Affairs (BIA)
employees are invalid due to BIA's failure to follow its own guidelines and policies,
including affording tribe meaningful prior consultation regarding these staffing decisions,
because writ of mandamus is warranted since tribe has no other plain, speedy, or
adequate remedy. Winnebago Tribe v Babbitt (1996, DC SD) 915 F Supp 157.
Secretary of Health and Human Services's interpretation of regulation implementing 42

USCS § 254o as identifying each and every relevant consideration in reviewing waiver
application was not inconsistent with regulation; while regulation does not absolutely
foreclose relevance of other evidence, this potential for breadth does not invalidate
agency's more limited and reasonable construction of regulation. Rendleman v Shalala
(1994, CA9 Or) 21 F3d 957, 94 CDOS 2599, 94 Daily Journal DAR 4967.
Courts give varying degrees of deference to agency interpretations of law and frequently
refrain from substituting their interpretation for that of agency charged with
administration of law. Marris v Cedarburg (1993) 176 Wis 2d 14, 498 NW2d 842.
Nature and scope of administrative agency's authority is matter of statutory interpretation

or construction. GTE N., Inc. v Public Serv. Comm'n (1993, App) 176 Wis 2d 559, 500
NW2d 284, digest op at (Wis) 145 PUR4th 110.
Interpretation and application of administrative rule to undisputed facts is question of

law, which supreme court reviews without deference to lower courts. Grohmann v
Grohmann (1995) 189 Wis 2d 532, 525 NW2d 261.
Footnotes
Footnote 85. Lara v Secretary of Interior (CA9 Or) 820 F2d 1535.
29257, 102-69 Fulton County D R 16B; Medical Center of Independence v Harris (CA8
Mo) 628 F2d 1113; Lara v Secretary of Interior (CA9 Or) 820 F2d 1535.
Footnote 87. St. Otto's Home v Minnesota Dept. of Human Services (Minn) 437 NW2d
35.
Questions of law are reviewed by this court de novo. Re Determination of Ordinary High
Water Mark & Outlet Elevation for Beaver Lake (SD) 466 NW2d 163.
Footnote 88. St. Louis v DOT (CA8) 936 F2d 1528, reh, en banc, den (CA8) 1991 US
App LEXIS 20048.
As to agency interpretation of its governing statute, see § 525.
29257, 102-69 Fulton County D R 16B.
The standard of reviewing the validity of an administrative agency's interpretation of its

own regulation is that the agency's interpretation is given controlling weight unless it is

plainly erroneous or inconsistent with the regulation. T.R.A.S.H., Ltd. v Commonwealth,
Dept. of Environmental Resources, 132 Pa Cmwlth 652, 574 A2d 721, app den (Pa) 593
A2d 429.
Footnote 90. Citizens for Fair Utility Regulation v United States Nuclear Regulatory
Com. (CA5) 898 F2d 51, cert den 498 US 896, 112 L Ed 2d 205, 111 S Ct 246;
Wolchuck v Bowen (CA9 Cal) 871 F2d 869, CCH Unemployment Ins Rep ¶ 14602A.
As to the arbitrary, capricious, abuse of discretion, or otherwise not in accordance with

law standard of review, see § 529.
d. Fact Questions [528-546]
(1). In General [528]
§ 528 Generally
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Go to Supplement
In general, a reviewing court will defer to an administrative agency when the agency is
performing its function as a factfinder. 91 Under the Administrative Procedure Act, 92
three standards govern judicial review of administrative findings of fact. Courts may
hold unlawful and set aside agency findings and conclusions found to be:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
93
(2) unsupported by substantial evidence (in certain types of cases); 94 or
(3) unwarranted by the facts to the extent that the facts are subject to trial de novo by the
reviewing court. 95
The state courts formulate the standard of review in a variety of ways, such as–
–factual findings will not be set aside unless clearly erroneous. 96
–factual questions will not be disturbed if based on credible evidence. 97
–the court's review of fact questions considers the evidence in the light most favorable to
the findings of the agency. 98
–the court does not make independent findings of fact or substitute its judgment for that
of the agency, but determines only whether a reasoning mind reasonably could have
determined that the factual conclusions reached by the agency were proved by the weight
of the evidence from the entire record. 99
–factual matters are reviewed to determine if the director's action was entirely lacking in
evidentiary support. 1
–the decision of the administrative agency must be upheld unless, in light of the entire
record, the decision is clearly erroneous or unless the court is left with a definite and firm
conviction that a mistake has been made. 2
Regardless of the standard of review employed, a presumption of regularity attaches to

the official acts of public officers within the scope of their legally delegated authority. 3
These principles, however, do not shield administrative action from a "thorough, probing,
in-depth" review. 4 Accordingly, courts should require administrative officers to
articulate in as much detail as possible the standards and principles that govern their
discretionary decisions, and such decisions should often be supported with findings of
fact and reasoned opinions. 5 An administrative determination or rule need not be
overturned merely because the record does not specifically address some particular
relevant factor. 6 In instances where there are no formal findings and it may be that the
only way there can be effective judicial review is by examining the decisionmakers
themselves, a court may require the administrative officials who participated in a
decision to give testimony explaining their action. 7 However, inquiry into the
mental processes of administrative decisionmakers is, in the usual case, to be avoided. 8
Above all, courts are not empowered to substitute their policy judgments for those of
Congress or the administrative agencies. 9
 Observation: It may be provided by statute that an agency's findings of fact, if

supported by substantial evidence, are conclusive. 10
Statutes:
All sections then remaining in 49 USCS Appendix were repealed in 1994.
Case authorities:
Director of Office of Thrift Supervision's order removing chairman of board of savings

and loan and banishing him for life from banking business under 12 USCS § 1818 was
unwarranted in law where it was not shown as required by statute that he received any
actual benefit from his actions. Seidman v Office of Thrift Supervision, Dep't of the
Treasury (In re Seidman) (1994, CA3 NJ) 37 F3d 911.
Postal Service carried its burden, imposed by 5 USCS § 556, of proving falsity of
petitioner mail order training corporation representation to public that initial enrollment
fee would provide comprehensive training, where it showed that petitioner withheld
desirable information and assistance to encourage purchase of supplemental services.
Dynaquest Corp. v United States Postal Serv. (1994, App DC) 12 F3d 1144.
Where plaintiff's assignments of error were sufficient to raise only the issue of whether

an order of the Safety and Health Review Board was supported by the findings of fact,
appellate review of the Review Board's order was de novo. Associated Mechanical
Contractors v Payne (1995) 118 NC App 54, 453 SE2d 545, digest op at (NC App) 1995
CCH OSHD ¶ 30767 and review gr 340 NC 358, 458 SE2d 184, reprinted as mod on
other grounds (NC) 1995 NC LEXIS 321.
Evidence failed to support administrative findings that nursing home had willfully
neglected patient in whose decaying foot maggots were found, where, although situation
was understandably repulsive subjectively, objective medical and other testimony
supported home's position that presence of maggots was not surprising and did not
aggravate patient's situation given substantial amount of dead tissue on patient's foot.
Claiborne & Hughes Convalescent Ctr. v Department of Health (1994, Tenn App) 881
SW2d 671.
Footnotes
Footnote 91. Re Westling Mfg., Inc. (Minn App) 442 NW2d 328.
Footnote 92. 5 USCS §§ 701-706.
Footnote 96. Jacobs v Consolidated Tel. Co., 237 Neb 772, 467 NW2d 864.
Footnote 97. Hercules, Inc. v Gunther, 13 Va App 357, 412 SE2d 185, reh, en banc, den
(Va App) 1992 Va App LEXIS 40.
Footnote 98. West v Posten Constr. Co. (Mo) 804 SW2d 743.
Footnote 99. Marion v Job Service North Dakota (ND) 470 NW2d 609.
Footnote 1. Golden Cheese Co. v Voss (4th Dist) 230 Cal App 3d 547, 281 Cal Rptr 587,
Footnote 3. Pacific States Box & Basket Co. v White, 296 US 176, 80 L Ed 138, 56 S
Ct 159, 101 ALR 853 (not followed by Jacobson v Tahoe Regional Planning Agency
(CA9 Cal) 566 F2d 1353); United States v Chemical Foundation, Inc., 272 US 1, 71 L
Ed 131, 47 S Ct 1.
Questions of fact are considered prima facie true and correct and will not be disturbed on
judicial review unless they are contrary to the manifest weight of the evidence. Scott v
Illinois State Police Merit Bd. (1st Dist) 222 Ill App 3d 496, 165 Ill Dec 20, 584 NE2d
199.

136, 91 S Ct 814, 2 Envt Rep Cas 1250, 1 ELR 20110, ovrld on other grounds by
Califano v Sanders, 430 US 99, 51 L Ed 2d 192, 97 S Ct 980, 42 Cal Comp Cas 1112.
615, 4 Envt Rep Cas 2041, 3 ELR 20133; Environmental Defense Fund, Inc. v
Ruckelshaus, 142 US App DC 74, 439 F2d 584, 2 Envt Rep Cas 1114, 1 ELR 20059.
Law Reviews: Borchers, Making findings of fact and preparing a decision

(requirement of administrative agencies to explain their decisions in writing). 11
Journal of the National Association of Administrative Law Judges 85 (Fall 1991).

Footnote 6. Kollett v Harris (CA1 RI) 619 F2d 134.


Where an agency administrator issued a 50-page decision explaining in detail the

rationale of his final decision, summaries of the evidence on record performed by staff
members for the use of the administrator in formulating this decision and final order were
a part of the internal deliberative process which should be kept confidential and within
the agency; accordingly, such summaries would not be available to disappointed litigants
for the purpose of probing the mental processes of the administrator. Montrose Chemical
Corp. v Train, 160 US App DC 270, 491 F2d 63, 6 Envt Rep Cas 1196, 4 ELR 20160.
Footnote 9. Vermont Yankee Nuclear Power Corp. v Natural Resources Defense Council,
Inc., 435 US 519, 55 L Ed 2d 460, 98 S Ct 1197, 11 Envt Rep Cas 1439, 8 ELR 20288.
Footnote 10. See for example 49 USCS Appx § 1486(e) (findings of fact by Secretary of
Transportation under Federal Aviation Act).
(2). Arbitrary or Capricious Standard [529-536]
§ 529 Generally
View Entire Section


Go to Supplement
When reviewing the decisions of public bodies, the courts will not interfere with the
functions of these bodies in the exercise of the discretion vested in them unless such
bodies abuse this power by acting arbitrarily or capriciously. 11
 Observation: The Administrative Procedure Act states this standard as arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law. 12
Many state courts also employ this, or a variant of this, extended standard. 13
The arbitrary or capricious standard relates to whether a particular action should have
been taken or is justified, such as the reasonableness of an agency's exercise of discretion
in reaching a determination or whether the agency's action is without foundation in fact.
14 The standard is also appropriate to review decisions not to take action. 15 The
standard is even more deferential where a court is reviewing an agency's application and
interpretation of its own regulations, 16 or where the analysis of relevant documents
requires a high level of technical expertise. 17 Thus, where an administrative agency is
empowered to make the rules and regulations necessary to carry out the provisions of the
statutes it is charged with implementing, the rules or regulations will not be found to be
arbitrary or capricious and the validity of the regulation will be sustained, if it is
reasonably related to the purposes of the enabling legislation. 18
The law is also reasonably clear that the arbitrary or capricious standard governs review
of agency action in instances where no hearing or formal findings on a record are
required, and there is no statutory requirement of a different test. 19
Although the courts always have inherent power to review agency action to the extent of
assuring that it is not arbitrary or capricious, a court may in its discretion refuse to
exercise its inherent powers of review if tenable reasons support that refusal. Inherent
review is not only unavailable if tenable reasons support a refusal to review, but it is also
rarely available if review is specifically provided for elsewhere. 20
 Comment: The 1981 Model State Administrative Procedure Act contains an optional
provision which provides that the court is to grant relief if it determines that the person
seeking judicial relief has been substantially prejudiced by agency action that is
otherwise unreasonable, arbitrary, or capricious. 21 The 1961 Act provides that a
court may reverse or modify an agency decision if substantial rights of an appellant
have been prejudiced because the administrative findings, inferences, conclusions, or
decisions are arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion. 22
Case authorities:
Ultra vires rather than arbitrary and capricious standard of review, applies to Secretary's
condemnation-of- land decisions under 16 USCS § 1246. United States v 16.03 Acres of
Land (1994, CA2 Vt) 26 F3d 349.

Court of appeals reviews administrative conclusions of law for arbitrariness,
capriciousness and abuse of discretion. Markowski v SEC (1994, CA2) 34 F3d 99, CCH
Fed Secur L Rep ¶ 98381.
In awarding contract to build pilot training systems to American rather than French firm,
Navy officials involved in procurement process arbitrarily and capriciously increased
American firm's ratings to make it eligible, and improperly awarded contract out of bias
for American firm. Latecoere Int'l v United States Dep't of the Navy (1994, CA11 Fla) 19
F3d 1342, 8 FLW Fed C 172.
Army's decision to debar government contractor is affirmed, where Army denied him
second hearing on ground that he failed to raise genuine issue of material fact in pre-
hearing submission, at first hearing, and in post-hearing submissions, because Army's
decision was not arbitrary, capricious, abuse of discretion, or otherwise contrary to law.
Waterhouse v United States (1994, DC Dist Col) 874 F Supp 5.
United States Customs Service's decision reinstating two employees suspended on basis
of criminal indictment but denying back pay to date of suspension is to be reviewed
under "arbitrary and capricious" standard. Richardson v United States Customs Serv.
(1995, CA FC) 47 F3d 415.
Footnotes
Footnote 11. Thomas Brooks Chartered v Burnett (CA10 Colo) 920 F2d 634; Clay v
Arizona Interscholastic Asso., 161 Ariz 474, 779 P2d 349, 37 Ariz Adv Rep 10; Golden
Cheese Co. v Voss (4th Dist) 230 Cal App 3d 547, 281 Cal Rptr 587, 91 CDOS 4062, 91
Daily Journal DAR 6184; Department of Business Regulation, Div. of Alcoholic
Beverages & Tobacco v Martin County Liquors, Inc. (Fla App D1) 574 So 2d 170, 16
FLW D 208; State Bd. of Tax Comrs. v Jewell Grain Co. (Ind) 556 NE2d 920; Lake
Terrace Property Owners Assn. v New Orleans (La) 567 So 2d 69; Herman Bros., Inc. v
Louisiana Public Service Com. (La) 564 So 2d 294; Jurkovich v Independent School
Dist. No. 708 (Minn App) 478 NW2d 232; Consolidated School Dist. Number 2 v King
(Mo App) 786 SW2d 217; Del Pomo v Board of Trustees, Public Employees Retirement
System, 252 NJ Super 430, 599 A2d 1302; McKoy v North Carolina Dept. of Human
Resources, 101 NC App 356, 399 SE2d 382.

Footnote 12. 5 USCS § 706(2)(A).
Agency action is not in accordance with law, within the meaning of the Administrative
Procedure Act, where it is violative of statute. Chrysler Corp. v Brown, 441 US 281, 60
L Ed 2d 208, 99 S Ct 1705, 19 BNA FEP Cas 475, 4 Media L R 2441, 26 CCF ¶ 83181,
19 CCH EPD ¶ 9121, on remand (CA3 Del) 611 F2d 439, 20 BNA FEP Cas 1335, 21
CCH EPD ¶ 30331.
Footnote 13. Alabama Medicaid Agency v Primo (Ala App) 579 So 2d 1355, cert den,
without op (Ala) 1991 Ala LEXIS 522 (unreasonable, arbitrary or capricious or
characterized by an abuse of discretion or a clearly unwarranted exercise of discretion);

Siegel v Arizona State Liquor Bd. (App) 167 Ariz 400, 807 P2d 1136, 82 Ariz Adv Rep
27 (illegal, arbitrary, capricious, or an abuse of discretion); Arkansas State Bank Comr. v
Bank of Marvell, 304 Ark 602, 804 SW2d 692 (arbitrary, capricious or characterized by
an abuse of discretion); Preston v Department of Environmental Protection, 218 Conn
821, 591 A2d 421, 22 ELR 20251 (illegal, arbitrary or an abuse of discretion); May v
Department of Natural Resources (Ind App) 565 NE2d 367, reh den (Ind App) 571 NE2d
601 and transfer den (Nov 7, 1991); Board of Education v Sullivan, 106 NM 125, 740
P2d 119 (arbitrary, capricious or unreasonable, or otherwise not in accordance with law);
Ista Management v State Div. of Housing & Community Renewal (1st Dept) 161 App
Div 2d 424, 555 NYS2d 724 (arbitrary or capricious or without rational basis or warranty
in the record).
811 P2d 876.
1190, 10 Envt Rep Cas 1026, 14 BNA FEP Cas 1544, 14 CCH EPD ¶ 7647, CCH Fed
Secur L Rep ¶ 96057, 7 ELR 20434, revd on other grounds 196 US App DC 124, 606
F2d 1031, 13 Envt Rep Cas 1321, 19 BNA FEP Cas 724, 19 CCH EPD ¶ 9219, CCH Fed
Secur L Rep ¶ 96832, 9 ELR 20367.
Footnote 16. Citizens for Fair Utility Regulation v United States Nuclear Regulatory
Com. (CA5) 898 F2d 51, cert den 498 US 896, 112 L Ed 2d 205, 111 S Ct 246.
77 L Ed 2d 443, 103 S Ct 2856, 13 ELR 20672; Jones v Illinois C. G. Railroad (CA7)
846 F2d 1099.
Footnote 19. Camp v Pitts, 411 US 138, 36 L Ed 2d 106, 93 S Ct 1241; Thomas Brooks
Chartered v Burnett (CA10 Colo) 920 F2d 634.
The deferential abuse of discretion standard of review is proper in appeals of

discretionary acts not requiring formal procedures because it allows agencies latitude to
act that is commensurate with their discretion. Olson v State, Dept. of Natural Resources
(Alaska) 799 P2d 289.
Footnote 20. Department of Social & Health Services v State Personnel Bd., 61 Wash
App 778, 812 P2d 500.
Footnote 21. Model State Administrative Procedure Act (l981) § 5-116(c)(8)(iv).
Footnote 22. Model State Administrative Procedure Act (l961) § 15(g)(6).
§ 530 What constitutes an arbitrary or capricious act
View Entire Section

Go to Supplement
Ordinarily, an agency action is arbitrary or capricious if the agency has relied on factors
which Congress 23 or a state legislature 24 has not intended it to consider, entirely
failed to consider an important aspect of the problem, 25 or offered an explanation for
its decision that runs counter to the evidence before the agency or is so implausible that it
could not be ascribed to a difference in view or the product of agency expertise. 26
Mere error is insufficient for a finding of arbitrariness or capriciousness. 27
Other agency actions which courts hold to be arbitrary or capricious include those
which–
–disregard evidence or the proper weight thereof. 28
–are not supported by substantial evidence or are contrary to substantial competent

evidence. 29
–are willful and unreasoning in disregard of facts and circumstances. 30
–offer an explanation for its decision which runs contrary to the evidence before the
agency, or that can not be ascribed to the difference in views or the product of agency
expertise. 31
The failure of an agency to abide by its rules is per se arbitrary and capricious. 32 as is
the failure of an administrative body to conform to prior procedure without adequate
explanation for the change. 33
§ 530 ----What constitutes an arbitrary or capricious act [SUPPLEMENT]
Practice Aids: Petition or application–Allegation–Order arbitrary and capricious

because of procedural irregularities. 1A Am Jur Pl & Pr Forms (Rev), Administrative
Law, § 317.
Case authorities:
EPA's issuance to oil refinery of discharge permit incorporating water quality certificate
issued by Puerto Rico Environmental Quality Board, which was still undergoing review
by Board, was not arbitrary and capricious, where EPA stayed its hand for more than 11
months to permit Board to reconsider certification and Board did not act, and where
standard incorporated into certificate essentially comported with policy to which refinery
had been subject ever since it first obtained permit under Clean Water Act. Caribbean
Petroleum Corp. v United States EPA (1994, CA1) 28 F3d 232, 39 Envt Rep Cas 1250.
Secretary of Health and Human Service's regulation limiting to $1500 the equity value of
the automobile a family may own before the automobile's equity value affects the
family's qualification to receive AFDC benefits was not arbitrary and capricious when
adopted in 1982, and Secretary's failure to adjust resource exemption for inflation was
also not violative of law. Brown v Secretary of Health & Human Servs. (1995, CA1 NH)
46 F3d 102.

Challenge by unsuccessful applicants for benefits under Aid to Families with Dependent
Children (AFDC) program is granted summarily, where plaintiffs challenged regulation
(45 CFR § 233.20(a)(3)(i)(B)(2)) providing that, for purposes of eligibility for AFDC
benefits, equity in automobile in excess of $1,500 must be counted in determining
whether applicant exceeds $1,000 limit on assets that one may have and be eligible for
benefits, because equity limit is based on 14-year-old regulation and is arbitrary and
capricious. Brown v Shalala (1993, DC NH) 868 F Supp 405.
Secretary of Health and Human Services did not act arbitrarily and capriciously in
applying Health Care Financing Administration fund policy to computerized welfare
management system in New York City differently than it applied policy to other areas,
where other areas were "enhanced" region-by- region while New York City was
enhanced on city-wide basis. New York Dep't of Social Servs. v Shalala (1994, CA2 NY)
21 F3d 485.
Department of Health and Human Service Appeals Board did not act arbitrarily and
capriciously in affirming disallowance of city Head Start Program's accounts receivable
balance representing federal cash drawn down by city from its grant allowance and
advanced to various agencies in excess of allowable Head Start costs incurred by
delegate agencies; receivables represented debts owed to city by agencies and in turn
owed by city to HHS. City of New York v Shalala (1994, CA2 NY) 34 F3d 1161.
Foreign airline's challenge to Immigration and Naturalization Service's policy holding

carriers responsible for detaining transit without visa (TWOV) aliens pending resolution
of political asylum applications is granted summarily, because it is arbitrary and
capricious to compel private corporations to be jailers for unlimited amounts of time
when Attorney General is reimbursed for detaining excludable aliens, including TWOV
aliens. Linea Area Nacional de Chile S.A. v Sale (1994, ED NY) 865 F Supp 971.
Citizen's petition for review of FDA's denial of her request to label oral contraceptives
with warning that they contain estrogen which caused cancer in laboratory animals and
could cause it in humans is denied summarily, where FDA's letters set forth detailed
reasons addressing each issue raised in petition and reasons for denial, because denial
was not arbitrary or capricious or abuse of discretion. Henley v FDA (1995, ED NY) 873
F Supp 776.
VA's dismissal of nurse was arbitrary and capricious under 5 USCS § 706(2)(A), where
nurse was found to have verbally abused patient, because V.A. has written policy of
penalizing employees in proportion to offense and nurses who had physically abused
patients had not been discharged. Ward v Derwinski (1992, WD NY) 837 F Supp 517,
affd in part and mod in part sub nom Ward v Brown (CA2 NY) 1994 US App LEXIS
9547.
EPA did not act arbitrarily and capriciously in approving dioxin biconcentration factor
figure of 5000 for fish; EPA made rational connection between facts found in
administrative record and its approval. Natural Resources Defense Council v United
States EPA (1993, CA4 Va) 16 F3d 1395, 37 Envt Rep Cas 1953, 24 ELR 20496.
District Court erred in failing to recognize deference due to EPA's determination of

wetlands loss in vetoing permit granted by Corps of Engineers to county to construct dam
and reservoir across creek; where EPA took into account whether replacement wetlands
were of same value and quality as lost wetlands, EPA's action was not arbitrary and
capricious. James City County v EPA (1993, CA4 Va) 12 F3d 1330, 37 Envt Rep Cas
2104, 24 ELR 20182.
Benefit provisions are rules under APA, and District Court therefore correctly subjected
Office of Personnel Management's interpretation of health benefit plan contract made
with private insurer for benefit of federal employees to "arbitrary and capricious"
standard of review, deferring to agency interpretation unless plainly erroneous or
inconsistent with regulation. Caudill v Blue Cross & Blue Shield, Inc. (1993, CA4 NC)
999 F2d 74, 16 EBC 2409, amd (CA4 NC) slip op.
Once court concludes that Federal Energy Regulatory Commission had statutory duty to
fulfil, that is, rendering final decision on application for water pipeline, whether it has
done so correctly can be adequately reviewed pursuant to APA following FERC's final
decision; court of appeals will therefore deny interlocutory petition for mandamus
charging FERC with unnecessarily delaying final decision for arbitrary and capricious
reasons. In re City of Virginia Beach (1994, CA4) 42 F3d 881, 40 Envt Rep Cas 1058.
Decision of Office of Foreign Assets Control to detain four ships of Yugoslavian

government pursuant to executive order and United Nations mandated sanctions was not
arbitrary and capricious where it was reasonable to act quickly under circumstances, and
where it was generally known that government, as commmunist system, had proprietary
interest in all business enterprises. Milena Ship Management Co. v Newcomb (1993,
CA5 La) 995 F2d 620.
Farmers Home Administration's designation of certain areas of farmer's property as

wetland was not arbitrary and capricious where agency biologist examined topographical
maps, aerial photographs, soil surveys and flood plain data, and inspected areas
personally. Harris v United States (1994, CA5 Miss) 19 F3d 1090.
FDIC did not act arbitrarily and capriciously in determining that construction company
owned certificates of deposit and that certificates of deposit should be aggregated for
purpose of $100,000 insurance limitation where company had originally deposited one
CD for $492,000 but later substituted 6 CDs for $82,000, each in name of different
subsidiary of insurance company and construction company. Hartford Casualty Ins. Co. v
FDIC (1994, CA5) 21 F3d 696.
Decision of Resolution Trust Corporation denying federal deposit insurance coverage for
funds deposited in defunct savings and loan was arbitrary and capricious where it treated
two separate certificates of deposits as one, contrary to 12 USCS § 1818. First Am. Bank
v Resolution Trust Corp. (1994, CA5) 30 F3d 644.
National Highway and Traffic Safety Administration did not act arbitrarily and
capriciously in adopting final standards for safe transportation of students in wheelchairs
on school buses based upon static rather than dynamic testing; agency was not required to
consider every conceivable alternative. Simms v National Highway Traffic Safety
Admin. (1995, CA6) 45 F3d 999, 8 ADD 40.
Federal Highway Administration's regulation prohibiting use of radar detectors in

commercial motor vehicles was not arbitrary and capricious where Administration
determined that radar detector users are more likely to speed than nonusers, that severity
of injury increases as crash speed increases, and that commercial drivers are two to three
times more likely to use radar detectors than other vehicle operators. Radio Ass'n on
Defending Airwave Rights v United States Dep't of Transp. (1995, CA6) 47 F3d 794.
Decision of Secretary of Health and Human Services approving amendments to state

Medicaid program but disapproving effective date, and thereby precluding state from
claiming federal financial assistance between Act's listed effective date and day after
publication in state register, was not arbitrary and capricious. Illinois v Shalala (1993,
CA7 Ill) 4 F3d 514, 42 Soc Sec Rep Serv 223.
Secretary of Agriculture's interpretation of Disaster Assistance Act was unreasonable and

arbitrary where it added gross revenue of bean storage warehouse and marketing agent,
of which petitioner bean farmer owned 60 percent, to petitioner's gross revenue as farmer
for purpose of disqualifying him for disaster relief. Doane v Espy (1994, CA7 Wis) 26
F3d 783.
National Forest Management Act and National Environmental Policy Act require Forest
Service to consider diversity in preparing forest management plan, and Service did not
act arbitrarily where it developed number of plan alternatives for each forest emphasizing
different aspects of forest management; Service is entitled to use its own methodology, as
long as it is not irrational, and as long as it does not ignore or abuse limits set by statutory
mandate. Sierra Club v Marita (1995, CA7 Wis) 46 F3d 606, 40 Envt Rep Cas 1065, reh
den (1995, CA7 Wis) 1995 US App LEXIS 7734.
Given extremely small margin by which plaintiff outscored defendant in application

procedure for Head Start Program grant, court cannot say that Department of Health and
Human Services' award of grant to defendant was arbitrary and capricious, where
defendant was endorsed by state governor, and where plaintiff was involved in tension
between it and another agency, plaintiff had pledged two Head Start school buses as
collateral for loan in violation of regulation, and auditors had expressed concern over
plaintiff's fiscal practices. Head Start Family Educ. Program v Cooperative Educ. Serv.
Agency 11 (1995, CA7 Wis) 46 F3d 629.
HUD's rejection of mortgagor's application to accept assignment of her mortgage to

prevent foreclosure was not arbitrary and capricious, where HUD's finding that her loss
of employment was not caused by circumstances beyond her control was supported by
findings that her employer gave her numerous warnings about arriving late for work and
unauthorized overtime, and she received 8 warnings for tardiness and insubordination,
four of which occurred in final 2 months before her discharge. Pozzie v United States
Dep't of Hous. & Urban Dev. (1995, CA7 Ill) 48 F3d 1026.
Arbitrary and capricious standard applies to Department of Interior's decision to destroy

or remove non- native wild horses from national park, and Department was not arbitrary
and capricious where evidence showed that horses grazed and trampled 50 acres of
planted crops on lands rented to permittee farmers, posed threat to native plants and
animals, and caused erosion along their extensive trails. Wilkins v Secretary of Interior
(1993, CA8 Mo) 995 F2d 850, reh den (CA8 Mo) 1993 US App LEXIS 19693.
Neither Corps of Engineers definition of project to reopen old river channel adjacent to
planned housing development as dredging operation for boat access to river rather than
housing development nor its decision that no practicable alternative existed were
arbitrary and capricious where it considered existence of current boat ramp and
concluded that such access area was not functional for applicant's need. National Wildlife
Fed'n, v Whistler (1994, CA8 ND) 27 F3d 1341, 39 Envt Rep Cas 1090.
Board for Correction of Naval Records did not act arbitrarily and capriciously in refusing
to upgrade petitioner's undesirable discharge where Board recognized his claim that he
received inadequate advice of counsel, but credited contrary testimony, and where Board
considered whether undesirable discharge was equitable and appropriate and found that
seriousness of his 2 violent assaults on superiors and absences without leave were
compounded because they occurred in war zone. Henry v United States Dep't of the Navy
(1996, CA8 Ark) 77 F3d 271.
Prior user of land for summer pasture for his cattle operation unsuccessfully disputes
Forest Service's denial of grazing permit following its acquisition of land by way of
exchange, even if there is "substantial evidence" supporting land user's claim for
preference based on immediate prior use, because Forest Service Handbook § 13.11,
when read as whole and in conjunction with related handbook sections, does not provide
user with preference, and Service's informal decision preferring previously reduced
permits passes muster under applicable "arbitrary and capricious" standard of 5 USCS §
706(2)(A). Bogner v United States Forest Serv. (1994, DC SD) 851 F Supp 1437.
Forest Service acted arbitrarily and capriciously in concluding that its plan to set
maximum safe timber harvest of up to 100 million board feet per year would not
jeopardize endangered species where its own studies raised serious questions about
effects on grizzly bears at maximum harvest. Resources Ltd. v Robertson (1993, CA9
Mont) 8 F3d 1394, 93 CDOS 8168, 93 Daily Journal DAR 13912, 24 ELR 20026.
Federal Labor Relations Authority's decision holding that Border Patrol union's proposal
allowing agents to wear bullet proof vests over their uniform shirts was subject to
arbitration was not arbitrary and capricious. United States INS, United States Border
Patrol v Federal Labor Relations Auth. (1993, CA9) 12 F3d 882, 93 CDOS 9520, 93
Daily Journal DAR 16359, 145 BNA LRRM 2109.
Forest Service did not act arbitrarily and capriciously in closing area of national forest to
off-road vehicles where administrative record supported Service's finding that "user
conflict" existed in area and that majority of public comment favored closing area to such
vehicles; statute does not require ongoing monitoring before implementation of
management plan. Northwest Motorcycle Ass'n v United States Dep't of Agric. (1994,
CA9 Wash) 18 F3d 1468, 94 CDOS 1889, 94 Daily Journal DAR 3492.
For purpose of eliminating disparity between rates charged by public and private utilities,
Bonneville Power Administration did not act improperly in excluding from power and
light company's average system cost calculation that portion of company's investment in
nuclear power plant that state utilities commission determined did not represent avoided
costs. Washington Utils. & Transp. Comm'n v FERC (1994, CA9) 26 F3d 935, 94 CDOS
4162, 94 Daily Journal DAR 7740, 29 FR Serv 3d 628.
ICC's order approving employee's agreement in settlement of termination allowance was

not arbitrary and capricious for failing to inform employee of another employee's pending
litigation, eventually successful, charging incorrect computation of termination
allowance. Rilling v Burlington N. R.R. (1994, CA9 Wash) 31 F3d 855, 94 CDOS 5894,
94 Daily Journal DAR 10750, 146 BNA LRRM 3089, 128 CCH LC ¶ 11145.
Forest Service acted arbitrarily and capriciously in concluding that logging plan would
not jeopardize several listed species in area where Service's reliance on Fish and Wildlife
Service's opinion was not justified in light of Forest Service's failure to provide Fish and
Wildlife Service with all data required by regulations. Resources Ltd. v Robertson (1994,
CA9 Mont) 35 F3d 1300.
FCC's balancing of competing interests of competitive equity, customer privacy, and

need for efficiency in development of mass-market enhanced services is not arbitrary and
capricious, where it orders both regional Bell Operating Companies and competing
independent enhanced- service providers to obtain prior customer authorization for
access to Customer Proprietary Network Information (CPNI) of customers with more
than 20 lines, but permits BOCs to have access to CPNI of small customers unless
customers request confidentiality while requiring competing providers to get prior
customer authorization before obtaining CPNI from small customers. California v FCC
FAA did not act arbitrarily and capriciously in suspending petitioner's commercial pilot
certificate where it found numerous violations of logbook endorsement requirements and
unauthorized intrusions into control area; mere fact that particular action or omission
does not have adverse effect on safety of persons or property does not undermine
Administrator's authority to hold that such action should be sanctioned because it could
compromise safety. Reno v National Transp. Safety Bd. (1995, CA9) 45 F3d 1375, 95
In view of staleness of Navajo Nation's list of abandoned homesites, Bureau of Indian

Affair's performance of numerous on-site inspections, and Bureau's adoption of
reasonable factual assumptions pertaining to abandonment, Bureau did not act arbitrarily
or capriciously in awarding Hopi Tribe $ 586,803 for fair market rental value of
homesites occupied by Navajos between 1979 and 1984 in formerly shared lands after
their partition and allocation to Hopi Tribe. Hopi Tribe v Navajo Tribe (1995, CA9 Ariz)
FCC did not act arbitrarily and capricously in ruling that preemption of state Public
Utilities Commission's rule, that emergency service organizations and subscribers with
nonpublished numbers who fail to communicate their choice between per-call blocking
and per-line blocking be served with system that blocks disclosure on all calls, was
necessary to prevent negation of valid FCC regulatory goal, where FCC examined
relevant evidence and adequately explained all aspects of its decision. California v FCC
National Transportation Safety Board did not act arbitrarily and capriciously by
dismissing appeal of suspended pilot to full Board on ground that he filed his reply brief
on Monday following deadline and did not request extension; Board is free to adopt and
enforce strict procedural rules where petitioner showed no good cause for delay and
made no effort to obtain extension. Gilbert v National Transp. Safety Bd. (1996, CA9) 80
F3d 364, 96 CDOS 2259, 96 Daily Journal DAR 3749.
Contractor's motion for summary judgment in review of Defense Department's (DOD)

decision to debar him from receiving government contracts for 3 years is granted, where
debarment was based on contractor's 1991 misdemeanor guilty plea in action based on
error in filing of 1986 DOD form, because debarment was arbitrary and capricious given
that (1) contractor's guilty plea was based on desire to avoid indictment and rebuild
business, not on belief in guilt, (2) DOD failed to consider contractor's reasons for guilty
plea, (3) debarment is discretionary action, and (4) seriousness of underlying conduct
must be considered; DOD continued to do business with contractor under more than 600
contracts until 1991, although it knew of error in 1987. Silverman v United States Dep't
of Defense (1993, SD Cal) 817 F Supp 846, 93 Daily Journal DAR 4655, 39 CCF ¶
76540.
Bureau of Alcohol, Tobacco and Firearms' decision was not arbitrary and capricious,
where gun manufacturer's notice and registration of certain parts of machine guns was
ruled insufficient to register possession of machine guns or combinations of parts
equivalent to machine guns prior to law restricting sale of such guns, since ruling served
regulatory purpose of enabling inspector to identify items being registered. Police
Automatic Weapons Servs. v Benson (1993, DC Or) 837 F Supp 1070.
Secretary of Health and Human Services's disapproval of state amendment seeking to

calculate financial eligibility of Medicaid applicants using state's community property
principles rather than Secretary's "name on the check" rule, under which each spouse is
attributed income received in his or her name, was arbitrary and capricious and not in
accordance with Medicaid statute, 42 USCS § 1396b. New Mexico Dep't of Human
Servs. v Department of Health & Human Servs. Health Care Fin. Admin. (1993, CA10
NM) 4 F3d 882, 42 Soc Sec Rep Serv 235.
Decision of Forest Service not to rebuild structure destroyed by fire didn't violate 16
USCS § 579 and was not arbitrary and capricious. Mount Evans Co. v Madigan (1994,
CA10 Colo) 14 F3d 1444.
FAA did not act arbitrarily and capriciously in reversing approval for construction of
major air cargo hub, and substantial evidence supported determination where FAA
determined there were considerable changed circumstances, including changes in
commitments of major cargo carriers to locate at facility. Board of County Comm'rs v
Isaac (1994, CA10) 18 F3d 1492.
Departmental Appeals Board of Department of Health and Human Services did not act
arbitrarily and capriciously in ruling that state's revised Time Analysis Reporting System
constituted cost allocation plan amendment precluding reimbursement of its claims.
Colorado Dep't of Social Servs. v United States Dep't of Health & Human Servs. (1994,
CA10 Colo) 29 F3d 519.
Administrator of Health Care Financing Administration did not act arbitrarily and
capriciously in disapproving state's inflation adjustment of medical reimbursement rates
where Administrator reasonably found that state's inflation factor, nearly half-again as
large in percentage terms as next highest adjustment among previous four adjustments,
was substantial increase, triggering publication notice requirement. Oklahoma v Shalala
(1994, CA10) 42 F3d 595, 46 Soc Sec Rep Serv 227.
Secretary of Interior acted arbitrarily and capriciously and abused his discretion when he
(1) rejected proposed communization agreement for sole purpose of causing expiration of
valid Indian mineral lease and allowing Indian lessors to enter into new, more lucrative
lease, and then (2) approved essentially identical communization agreement with new
lessee of Indian lands simply substituted for old lessee, and permitted Indian lessors to
collect royalties retroactively to date of first production under original unit plan. Woods
Petroleum Corp. v Department of Interior (1995, CA10 Okla) 47 F3d 1032.
Determination of Interior Board of Land Appeals that 30 USCS § 1713 required

marketer of oil to produce documents relating to its arm's length purchase of oil received
from sister corporation was not arbitrary and capricious. Santa Fe Energy Prods. Co. v
McCutcheon (1996, CA10 Colo) 81 F3d 939, op withdrawn, substituted op, reh den
(1996, CA10 Colo) 1996 US App LEXIS 17718.
Secretary's ruling that merger agreement was not "enforceable agreement" for purpose of
exception to 42 USCS § 1395x was not arbitrary and capricious where merger agreement
contained series of complex corporate transactions and numerous contingencies, some of
which were within control of purchaser. Nursing Ctr. of Buckingham & Hampden, Inc. v
Shalala (1993, App DC) 990 F2d 645.
Insofar as Department of Transportation order involves pure question of statutory

interpretation and definition of admittedly undefined term "major cause" of employee
dislocation, court will uphold interpretation unless it constitutes unreasonable
construction of Airline Deregulation Act; other conclusions will be set aside if they are
arbitrary and capricious, or abuse of discretion and unsubstantiated. Air Line Pilots Ass'n
v FAA (1993, App DC) 3 F3d 449, 144 BNA LRRM 2228.
Department of Education's denial of Puerto Rico Higher Education Assistance

Corporation's application for waiver pursuant to 20 USCS § 1072 of recovery of its
excess cash reserves was arbitrary and capricious under APA where Department failed to
address all factors upon which Corporation based its request. Puerto Rico Higher Educ.
Assistance Corp. v Riley (1993, App DC) 10 F3d 847.
FCC's preference, in choosing applicants seeking to build broadcasting station, for

applicants who promise that station's owners will participate in its management is
arbitrary and capricious. Bechtel v FCC (1993, App DC) 10 F3d 875, 22 Media L R
1097.
Decision by Committee for Purchase from the Blind and Other Severely Handicapped to
add certain paper to list of commodities all federal entitles must purchase from nonprofit
agencies employing blind or other severely disabled persons was arbitrary and capricious
where Committee did not set forth basis for its factual conclusion. McGregor Printing
Corp. v Kemp (1994, App DC) 20 F3d 1188.
FCC's rejection, without hearing and as patently unreasonable, of interexchange

communications carrier's proposed tariff to recover costs of rerouting long- distance calls
to parties charging calls to proprietary calling cards was not arbitrary and capricious
where carrier cited no precedent in which commission knowingly accepted any tariff of
any carrier that attempted to impose charges for services customer had not affirmatively
requested. Capital Network Sys. v FCC (1994, App DC) 28 F3d 201.
Department of Transportation did not act arbitrarily and capriciously in denying airline
certificate to operate new airline service, notwithstanding contention that denial was
inconsistent with past decisions, where Department adequately explained its decision by
listing 6 incidents sufficient to support its decision to deny certificate; fact that
Department previously found "no convincing prima facie case of lack of fitness" was not
binding in light of new findings. ATX, Inc. v United States Dep't of Transp. (1994, App
DC) 41 F3d 1522.
Federal Energy Regulatory Commission's decisions regarding gas pipeline's request for
rate increase was arbitrary and capricious where FERC gave inadequate justification for
its decision by failing to explain why mere existence of allegedly anomalously higher
rate of return must be avoided, where FERC did not adequately account for shift to
straight fixed variable basis for company's rates from modified fixed variable basis, and
where FERC's reasoning appeared inconsistent with earlier arguments. North Carolina
Utils. Comm'n v FERC (1994, App DC) 42 F3d 659.
FCC, in promulgating rule pertaining to cellular radio telephone regions, acted arbitrarily
and capriciously in failing to justify its action treating land- based licenses same as
Gulf-based licenses in view of FCC's longstanding recognition of latter's unique plight.
Petroleum Communications v FCC (1994, App DC) 306 US App DC 82, 22 F3d 1164.
Federal Energy Regulatory Commission did not act arbitrarily and capriciously in not
awarding compensation for "frustrated expectations" to cities pursuing license
applications under Federal Power Act (16 USCS § 808), where cities offered no
evidence of detrimental reliance or specific examples of potentially forgone alternative
investments, Commission did not ignore factors set out in Electric Consumers Protection
Act (100 Stat. 1243), nor consider matters rendered off limits by statute, and Commission
supported its decision with evidence. Northern Cal. Power Agency v FERC (1994, App
DC) 308 US App DC 390, 37 F3d 1517.
Secretary of Health and Human Services did not act arbitrarily and capriciously in
reclassifying Medicare provider's labor costs associated with administration of
intravenous therapy from "ancillary" to "routine" care cost where there was substantial
evidence to support determination that customary practice was not to include IV therapy
labor costs as ancillary. National Medical Enters. v Shalala (1995, App DC) 43 F3d 691,
46 Soc Sec Rep Serv 309.
FCC's grant to television station of waiver of ban on cross-ownership of newspaper in

same market was not arbitrary and capricious, where FCC found that station's alleged
misrepresentations were "bombast" and relied on other evidence suggesting that station
did not actually attempt to mislead FCC on relevant issues. Metropolitan Council of
NAACP Branches v FCC (1995, App DC) 46 F3d 1154.
As Secretary of Commerce's designee under Marine Protection, Research and Sanctuaries

Act (16 USCS §§ 1431 et seq.), National Oceanic and Atmospheric Administration's
(NOAA's) regulation, promulgated under Endangered Species Act (16 USCS §§ 1531 et
seq.), limiting operation of "motorized personal watercraft", but not other vessels, in
Monterey Sanctuary was not arbitrary and capricious, where record amply supported
NOAA's findings that personal craft were operated in high concentrations of kelp forests,
marine mammals, and sea birds, and other vessels tended not to be used in same areas in
same manner. Personal Watercraft Indus. Ass'n v Department of Commerce (1995, App
DC) 48 F3d 540, 40 Envt Rep Cas 1411, 25 ELR 20681.
Maritime Administration did not act arbitrarily and capriciously in granting waiver to
container ship operator allowing it to operate 6 new foreign-built vessels under foreign
flag in its existing international shipping operations where Administration considered
economic crisis now facing industry on brink of collapse, imminent end of subsidy
program, and doubtful continuation of American-flag service, all with view to
minimizing impact on American labor and to retaining some American control over
international shipping. Clifford v Pena (1996, App DC) 77 F3d 1414.
Decision of Secretary of Health and Human Services to treat planning costs for
abandoned hospital expansion as operational costs rather than capital costs for Medicare
reimbursement purposes was not arbitrary and capricious, because abandoned planning is
not related to goals of Medicare program, and Secretary had rational reason for not
reimbursing all reasonable costs; regulations specify what costs are capital-related, and
abandoned planning costs are not included. Mercy Hosp. v Shalala (1993, DC Dist Col)
823 F Supp 1, 41 Soc Sec Rep Serv 358.
Motion for summary judgment is granted to plaintiff union in suit challenging General
Services Administration (GSA) regulation, where requirement that contractors reimburse
GSA for wages and benefits paid which were later determined to be at substantial
variance with local rates was at odds with Secretary of Labor's regulation barring
retroactive application of variance decisions, since GSA's contradictory regulation is
arbitrary and capricious in violation of APA, 5 USCS §§ 701 et seq. Service Employees
Int'l Union v General Servs. Admin. (1993, DC Dist Col) 830 F Supp 5, 1 BNA WH Cas
2d 974.
Operator of cruise ships along Alaskan coast is not entitled to preliminary injunction
enjoining government's implementation of method of allocating permits for ships to enter
Glacier Bay, where plaintiff alleged that government, in implementing new entry permit
allocation method, failed to follow notice and comment requirement in 5 USCS § 553,
and that government acted arbitrarily and capriciously in allocating permits, because (1)
matters relating to public property are exempt from notice and comment requirement, (2)
permits were allocated on basis of cruise ship operators' performance on merit evaluation,
(3) injury to plaintiff from denial of permit would be purely economic, (4) plaintiff was
eligible to use repurchased entry permit, and (5) in light of these factors, plaintiff failed
to satisfy 4-factor test for preliminary injunctive relief. Clipper Cruise Line v United
States (1994, DC Dist Col) 855 F Supp 1.
Department of Justice did not act arbitrarily and capriciously in ruling plaintiff ineligible
for compensation under Civil Liberties Act, 50 USCS Appx §§ 1989 et seq., as citizen of
Japanese ancestry deprived of liberty or property, where it applied regulations in
accordance with policy established by rule subject to notice and comment rule making
procedures and circulated in Federal Register. Ishida v United States (1994) 31 Fed Cl
Health Department's decision in granting a permit for expansion of a solid waste disposal
site was arbitrary and capricious, requiring remand, where during the permit hearing
experts presented conflicting opinions concerning the seasonal high-groundwater table,
but department's finding of fact concerning the table did not reconcile the conflicting
testimony, and adopted a level not supported in the evidence, and department admitted
during appeal of its decision that it had acted arbitrarily and capriciously in that it had
averaged the conflicting data, because averaging was a methodology not supported in the
record. Flores v Texas Dept. of Health (1992, Tex App Austin) 835 SW2d 807, writ of
error filed (Oct 26, 1992).
Footnotes
77 L Ed 2d 443, 103 S Ct 2856, 13 ELR 20672.

NE2d 561.
77 L Ed 2d 443, 103 S Ct 2856, 13 ELR 20672; Alaska Survival v State, Dept. of
Natural Resources (Alaska) 723 P2d 1281; Greer v Illinois Hous. Dev. Auth., 122 Ill 2d
462, 120 Ill Dec 531, 524 NE2d 561.
77 L Ed 2d 443, 103 S Ct 2856, 13 ELR 20672.

Footnote 27. Plaza Bank of West Port v Board of Governors of Federal Reserve System
(CA8) 575 F2d 1248, 11 Envt Rep Cas 2068; Hurley v United States (CA10 Okla) 575
F2d 792, appeal after remand (CA10 Okla) 624 F2d 93.
Footnote 28. Lake Terrace Property Owners Assn. v New Orleans (La) 567 So 2d 69
(defining arbitrary).
Footnote 29. Lake Terrace Property Owners Assn. v New Orleans (La) 567 So 2d 69
(defining capricious); Public Utility Com. v Gulf States Utilities Co. (Tex) 809 SW2d
201, rehg of cause overr (Jun 19, 1991) and concurring op withdrawn, substituted at,
dissenting op withdrawn, substituted at (Tex) 34 Tex Sup Ct Jour 752; Vali Convalescent
& Care Inst. v Division of Health Care Financing (Utah App) 797 P2d 438, 140 Utah
Adv Rep 21.
Administrative action may be regarded as arbitrary or capricious only where it is not

supportable on any rational basis. Arkansas State Bank Comr. v Bank of Marvell, 304
Ark 602, 804 SW2d 692.
A federal agency's discontinuance of financial assistance to a recipient without sufficient

evidence to conclude that federal statutory or regulatory law had been violated, was
arbitrary, capricious, and an abuse of discretion. Community Action of Laramie County,
Inc. v Bowen (CA10 Wyo) 866 F2d 347.
Footnote 30. Washington Waste Systems, Inc. v Clark County, 115 Wash 2d 74, 794 P2d
508, further stating that an error in judgment is not arbitrary or capricious.
An agency's summary dismissal of an appeal for being one day late in filing a statement
of reasons supporting the appeal was arbitrary and capricious. Price v Udall (DC Alaska)
280 F Supp 293, mod on other grounds (CA9 Alaska) 411 F2d 589.
NE2d 561.
Footnote 32. State ex rel. Wyoming Workers' Compensation Div. v Brown (Wyo) 805
P2d 830.
Footnote 33. Girard v Glens Falls (NY App Div 3rd Dept) 577 NYS2d 496.

An agency's failure to conduct a public hearing on the issuance of a permit where the
agency knows that there is serious and significant opposition to the issuance was
arbitrary and capricious. Delaware v Bender (DC Del) 370 F Supp 1193, 18 FR Serv 2d
453.
An award of a contract based on a bid which the agency knows to be deliberately not in
accordance with the invitation to bid was arbitrary and capricious. Pace Co., Div. of
Ambac Industries, Inc. v Department of Army (WD Tenn) 344 F Supp 787.
Forms: Allegations–Failure to comply with statutory procedure required when all

members of administrative body cannot consider evidence. 1A Am Jur Pl & Pr Forms
§ 531 Satisfying and implementing the standard; substitution of court's judgment

for that of agency
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Go to Supplement
An agency action or decision, in order to satisfy the arbitrary or capricious standard of

review, need not be ideal, 34 but the agency must examine the relevant data and
articulate a satisfactory explanation for its action, including a rational connection
between the facts found and the choices made. 35
In making a factual inquiry concerning whether an agency decision was arbitrary or

capricious, the reviewing court must consider whether the decision was based on a
consideration of relevant factors and whether there has been a clear error of judgment. 36
The inquiry must be searching and careful, 37 and should be a substantial inquiry into
the agency decisionmaking process, 38 to enable the court to determine whether the
agency decision, in the context of the record, is too unreasonable, given its statutory and
factual context, for the law to permit it to stand. 39 A reviewing court must also
ascertain whether the agency abused its discretion by basing its decision on legally
irrelevant factors, or by omitting to consider legally relevant factors, those the legislature
intended the agency to consider in reaching its decision in cases like the one in question.
40
However, the ultimate standard of review is a narrow one, and a court is not to substitute
its judgment for that of the agency, 41 but rather must uphold the agency if
there is a rational basis for its decision. 42 A reviewing court should not overrule an
administrative decision merely because it disagrees with its wisdom, and the fact that a
court may not have made the same determination on the same facts does not warrant a
substitution of judicial for administrative discretion. 43
When specialists express conflicting views, an agency must have discretion to rely on the
reasonable opinions of its own qualified experts even if, as an original matter, a court
might find contrary views more persuasive. On the other hand, courts should not defer to
an agency without carefully reviewing the record and satisfy themselves that the agency
has made a recent decision based on its evaluation of new information. 44
A court defers to federal agency expertise when interpreting regulatory terms only when
the agency demonstrates in a concise general statement 45 that it considered the major
policy issues and applied expertise in resolving them. 46
A reviewing court, having determined that an administrative agency did not consider all
relevant factors, should ordinarily remand the matter to the agency 47 rather than
compensating for the agency's oversight by launching a judicial inquiry into the merits.
48
 Comment: Under the 1961 Model State Administrative Procedure Act, the court
may not substitute its judgment for that of the agency as to the weight of the evidence
on questions of fact. 49
§ 531 ----Satisfying and implementing the standard; substitution of court's

judgment for that of agency [SUPPLEMENT]
Case authorities:
Summary judgment is granted to Secretary of Health and Human Services, where

hospital sought review of Secretary's denial of certification as skilled nursing facility,
because Secretary's policy of conducting survey of compliance with program
requirements after hospital was operational rather than prior to opening of hospital was
reasonable and results of surveys indicating that hospital was not in compliance with
program requirements supported denial, and absent evidence that denial was arbitrary and
capricious, court may not substitute its judgment for Secretary's. Central Suffolk Hosp. v
Shalala (1994, ED NY) 841 F Supp 492, 43 Soc Sec Rep Serv 514.
District Court misapplied statutory requirement that Department of Commerce set

summer flounder quota in accord with "best scientific information available" and erred in
invalidating agency-set quota; agency's action was not arbitrary and capricious, and
court's holding that available scientific information dictated only one possible quota
revealed critical misunderstanding of nature of complex information available.
Fishermen's Dock Coop. v Brown (1996, CA4 Va) 75 F3d 164.
Footnotes
Footnote 34. Louisiana ex rel. Guste v Verity (CA5 La) 853 F2d 322, 18 ELR 21351.
77 L Ed 2d 443, 103 S Ct 2856, 13 ELR 20672.
Law Reviews: Borchers, Making findings of fact and preparing a decision

(requirement of administrative agencies to explain their decisions in writing). 11
Journal of the National Association of Administrative Law Judges 85 (Fall 1991).
Footnote 36. Marsh v Oregon Natural Resources Council, 490 US 360, 104 L Ed 2d

377, 109 S Ct 1851, 29 Envt Rep Cas 1508, 19 ELR 20749; Motor Vehicle Mfrs. Asso. v
State Farm Mut. Auto. Ins. Co., 463 US 29, 77 L Ed 2d 443, 103 S Ct 2856, 13 ELR
20672; FCC v National Citizens Committee for Broadcasting, 436 US 775, 56 L Ed 2d
697, 98 S Ct 2096, 3 Media L R 2409; Bowman Transp., Inc. v Arkansas-Best Freight
System, Inc., 419 US 281, 42 L Ed 2d 447, 95 S Ct 438.
Although a court may not substitute its own reasoning for that of the agency, it can affirm
a less than clear administrative opinion when the agency's reasoning is reasonably
discernible. Ft. Mill Tel. Co. v FCC (CA4) 719 F2d 89.
An agency's findings of ultimate fact must be sustained if warranted on the record.

Fredrickson v Denver Public School Dist. No. 1 (Colo App) 819 P2d 1068.
377, 109 S Ct 1851, 29 Envt Rep Cas 1508, 19 ELR 20749; Thomas Brooks Chartered v
Burnett (CA10 Colo) 920 F2d 634.
Footnote 38. Shanty Town Assoc. Ltd. Partnership v Environmental Protection Agency
(CA4 Md) 843 F2d 782, 27 Envt Rep Cas 1540, 18 ELR 21227.
Footnote 39. Sierra Club v Marsh (CA1 Me) 976 F2d 763, 35 Envt Rep Cas 2002, 23
ELR 20321.
Preparing environmental impact statement requires exercise of judgment and a court in

its review may not substitute its judgment, but instead is limited to insuring that the
agency considered the environmental consequences of its action. Adler v Lewis (CA9
Wash) 675 F2d 1085, 18 Envt Rep Cas 1471, 12 ELR 20674.
Footnote 40. Consumers Water, Inc. v Public Utility Com. (Tex App Austin) 774 SW2d
719.
77 L Ed 2d 443, 103 S Ct 2856, 13 ELR 20672; FCC v National Citizens Committee for
Broadcasting, 436 US 775, 56 L Ed 2d 697, 98 S Ct 2096, 3 Media L R 2409; Vermont
Yankee Nuclear Power Corp. v Natural Resources Defense Council, Inc., 435 US 519,
55 L Ed 2d 460, 98 S Ct 1197, 11 Envt Rep Cas 1439, 8 ELR 20288; Batterton v
Francis, 432 US 416, 53 L Ed 2d 448, 97 S Ct 2399; Citizens to Preserve Overton Park,
Inc. v Volpe, 401 US 402, 28 L Ed 2d 136, 91 S Ct 814, 2 Envt Rep Cas 1250, 1 ELR
20110, ovrld on other grounds by Califano v Sanders, 430 US 99, 51 L Ed 2d 192, 97 S
Ct 980, 42 Cal Comp Cas 1112.
The trial court must defer to the substantial evidence in the administrative record, and it
is improper for the trial court to substitute its own judgment for that of the hearing officer
on issues of fact. Miko v Commission on Human Rights & Opportunities, 220 Conn 192,
596 A2d 396.
Footnote 42. Rhode Island Higher Educ. Assistance Authority v Secretary, U. S. Dept. of
Educ. (CA1 RI) 929 F2d 844; Plaza Bank of West Port v Board of Governors of Federal
Reserve System (CA8) 575 F2d 1248, 11 Envt Rep Cas 2068; Thomas Brooks Chartered
v Burnett (CA10 Colo) 920 F2d 634; Hurley v United States (CA10 Okla) 575 F2d 792,
appeal after remand (CA10 Okla) 624 F2d 93.

Court was not empowered to substitute its judgment for that of Army Personnel Office as
to which candidate was best qualified for permanent position, where plaintiff claimed due
process violations by selection of someone less qualified and by failure of office to
follow regulations, where plaintiff presented no evidence that decision to hire eligible
person who possessed minimum qualifications was arbitrary, capricious, or abuse of
discretion, and where personnel officer gave rational reasons for choice of selectee
sufficient for rational connection between evidence and agency's decision. Grier v
Secretary of Army (CA11 Ga) 799 F2d 721, 50 BNA FEP Cas 1378, 41 CCH EPD ¶
36667.
Footnote 43. CBS, Inc. v FCC, 453 US 367, 69 L Ed 2d 706, 101 S Ct 2813, 7 Media L
R 1563.
377, 109 S Ct 1851, 29 Envt Rep Cas 1508, 19 ELR 20749.
The "concise general statement" mandated by § 553(c) and other procedural requirements
are preconditions to the highly deferential "arbitrary and capricious" standard of review.
HLI Lordship Industries, Inc. v Committee for Purchase from Blind etc. (CA4 Va) 791
F2d 1136.

(CA4 Va) 791 F2d 1136.
Educ. (CA1 RI) 929 F2d 844; ALLTEL Corp. v FCC, 267 US App DC 253, 838 F2d
551.
Educ. (CA1 RI) 929 F2d 844.
Footnote 49. Model State Administrative Procedure Act (1961) § 15(g).
§ 532 Review based on existing record and on basis stated by agency
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In applying the arbitrary or capricious standard, the focal point for judicial review should
be the administrative record already in existence, not a new record made initially in the
reviewing court. 50 When reviewing an agency action, a court may not accept an
appellate counsel's post hoc rationalization for agency action; the agency action must be
upheld, if at all, on the basis articulated by the agency itself. 51 If the record is so
insufficient as to frustrate judicial review, an agency action will not be upheld; 52
although factual certainty is not necessary, and an agency may regulate even though the
facts do not illuminate a clear path. 53 While a court reviewing whether an agency
rule is arbitrary or capricious may not supply a reasoned basis for the agency action that
the agency itself has not given, a reviewing court will uphold a decision of less than ideal
clarity if it can reasonably discern the agency's path. 54
 Comment: The l981 Model State Administrative Procedure Act provides that
judicial review of disputed issues of fact must be confined to the agency record for
judicial review as defined in the Act, supplemented by additional evidence taken
pursuant to the Act. 55
§ 532 ----Review based on existing record and on basis stated by agency

[SUPPLEMENT]
Case authorities:
Where EPA's approval of pollutant discharge permit was "so odd" that either decision
was arbitrary and capricious or agency explained itself so poorly as to require further
justification, agency's order of approval will be vacated and remanded. Puerto Rico Sun
Oil Co. v United States EPA (1993, CA1) 8 F3d 73, 37 Envt Rep Cas 1729, summary op
at (CA1) 22 M.L.W. 328, 14 R.I.L.W. 574.
The whole record test is applied when a court on judicial review of an agency decision
considers whether the decision is arbitrary and capricious. Brooks v BCF Piping, Inc.
(1993) 109 NC App 26, 426 SE2d 282, digest op at (NC App) 1993 CCH OSHD ¶
29974.
Footnotes
Footnote 50. Camp v Pitts, 411 US 138, 36 L Ed 2d 106, 93 S Ct 1241.
77 L Ed 2d 443, 103 S Ct 2856, 13 ELR 20672.
394, revd on other grounds (CA2 NY) 557 F2d 325; National Welfare Rights
Organization v Mathews, 174 US App DC 410, 533 F2d 637.

Footnote 53. National Citizens Committee for Broadcasting v FCC, 181 US App DC 1,
555 F2d 938, 2 Media L R 1405, stay gr 181 US App DC 30, 555 F2d 967, 2 Media L R
1763 and affd in part and revd in part on other grounds 436 US 775, 56 L Ed 2d 697, 98

S Ct 2096, 3 Media L R 2409.
77 L Ed 2d 443, 103 S Ct 2856, 13 ELR 20672.
Footnote 55. Model State Administrative Procedure Act (1981) § 5-113, referring to §
5-114.
§ 533 Refusal to adopt rule
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A deferential standard is applied to an agency refusal to adopt a rule not required by law.
Even though an agency may possess the authority to regulate an area, substantial
discretion will be accorded an agency decision not to promulgate regulations. It is only
in the rarest and most compelling of circumstances that a court will act to overturn an
agency judgment not to institute rulemaking. 56
When an agency declines entirely to enter a particular arena of regulation its

discretionary judgment as to where its administrative and enforcement resources should
best be expended is prominently involved. However, this is not the case where the
agency merely fails to include in a final rule a proposed provision that is closely related
to the provisions that are adopted. This situation does not present an issue of agency
refusal to adopt a rule but rather an issue of the rationality of a rule the agency did adopt,
given the alternatives that were suggested and rejected. 57
§ 533 ----Refusal to adopt rule [SUPPLEMENT]
Case authorities:
FDA's decision denying citizen's petition to require labels on oral contraceptives warning
that estrogen "has been shown to cause cancer in animals, which showing justifies the
inference that estrogens may cause cancer in humans" was not arbitrary and captious
where FDA rationally concluded, based on its expertise, that inclusion of warning was
not warranted in light of annual studies performed on humans. Henley v FDA (1996,
CA2 NY) 77 F3d 616.
Footnotes
§ 534 Change in agency rule; retroactive change
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An agency view of what is in the public interest may change, either with or without a
change in circumstances. However, a settled course of behavior by a regulatory agency
embodies the agency's informed judgment that by pursuing that course it will carry out
the policies committed to it by Congress. The agency must therefore rebut the
presumption that policies will be best carried out if the settled rule is adhered to.
Accordingly, an agency changing its course by rescinding a rule is obliged to supply a
reasoned analysis for the change beyond that which may be required when an agency
does not act in the first instance. 58
An agency acts arbitrarily and capriciously where it retroactively changes a longstanding

policy with no basis in the administrative record for such agency action. Reviewing
courts must critically examine retroactive rulemaking to ensure that the agency has
appropriately balanced the competing considerations of the harm caused by retroactive
modification or rescission of a regulation on which the regulated parties have relied
versus the salutary effects, if any, of retroactive rulemaking. Although in many instances
a retroactive change in policy is perfectly appropriate, the law requires that an agency
demonstrate why it has decided to take such an extraordinary step by explaining how it
determined that the balancing of the harms and the benefits favors giving a policy change
retroactive application. Only if an agency explains its rationale for retroactively changing
its prior practice can a reviewing court determine whether that decision is a product of
rational analysis. 59
§ 534 ----Change in agency rule; retroactive change [SUPPLEMENT]
Case authorities:
With respect to a decision interpreting a statutory provision, an administrative agency is

not disqualified form changing its mind and when it does, the courts still sit in review of
the administrative decision and should not approach the statutory construction issue de
novo and without regard to the administrative understanding of the statute. Good
Samaritan Hosp. v Shalala (US) 124 L Ed 2d 368, 113 S Ct 2151, 93 CDOS 4125, 93
Daily Journal DAR 7006, 7 FLW Fed S 354.
Complaint by recipients of Aid to Families with Dependent Children, challenging grant

of waiver by HHS of state AFDC requirements for experimental state family cap plan
that eliminates standard increase for any child born to individual currently receiving
AFDC, is dismissed, where HHS allowed cap to go into effect on all but 9,000 of
143,000 families which comprise state's AFDC population, because waiver was likely to
assist in promoting objectives of AFDC and was not arbitrary and capricious. C.K. v
Shalala (1995, DC NJ) 883 F Supp 991.
FCC's action in eliminating race and gender-based provisions in its "C- block" auction
rules for broadband personal communication services was not arbitrary and capricious in
light of Supreme Court's requiring strict scrutiny in all racially-based government
actions; Commission reasonably believed that justifying old rules under strict scrutiny
would have been difficult and time- consuming. Omnipoint Corp. v FCC (1996, App DC)
78 F3d 620.
Claim of Head Start grantees is denied summarily, where grantees sought to set aside
Department of Health and Human Services (HHS) regulation allowing grantees to use
grant funds to pay attorney's fees in connection with hearings on denials of refund
applications, where regulation changed settled course of behavior, because HHS gave
rational reasons for change and regulation is not arbitrary or capricious. Meriden
Community Action Agency v Shalala (1995, DC Dist Col) 880 F Supp 882.
Footnotes
77 L Ed 2d 443, 103 S Ct 2856, 13 ELR 20672.
Footnote 59. Yakima Valley Cablevision, Inc. v FCC, 254 US App DC 28, 794 F2d 737.
§ 535 Technical issues
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The "arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law"
standard is highly deferential where a court is reviewing an analysis of relevant
documents requiring a high level of technical expertise. 60 Appellate courts have
neither the expertise nor the resources to evaluate complex scientific or technical issues.
When very technical areas of expertise are involved, 61 or when agencies are acting
within their area of specialized knowledge, experience, and expertise, 62 courts
generally defer to agency decisions. 63 To do otherwise would, for practical purposes,
change appellate review into trial de novo and such a result would appear to substitute
the court's general knowledge for the expertise required of the agency. 64
While this does not mean that all agency decisions involving technical expertise are
unimpeachable or that a reviewing court should blindly follow an agency decision, a
reviewing court should begin by acknowledging that the presumption of procedural and
substantive regularity attaches, 65 and that a presumption of validity attaches to the
administrative decision. 66 The presumption is even stronger where Congress has
charged an agency with complex analytical responsibilities and the duty to make
predictive judgments. 67 Similarly, where the agency's specialized knowledge is
involved and Congress has vested the agency with discretion in a technical area, 68 or
where the agency has been delegated discretion to determine the specialized and
technical procedures for its tasks, 69 the court should grant broader deference and
uphold the agency's conclusion if the conclusion is rationally based. 70 Thus, when an
administrative agency interprets and implements a law which is of a complex and
technical nature, the agency's interpretation will be upheld unless it exceeds the bounds
of the authorizing legislation or is arbitrary and unjust. 71
When called upon to review technical determinations on matters to which the agency lays
claim to special expertise, the courts are at their most deferential where Congress is
silent. Common sense suggests that the less important the question of law, the more
interstitial its character, the more closely related it is to the everyday administration of
the statute and to the agency's administrative or substantive expertise, the less likely it is
that Congress wished the courts to remain indifferent to the agency's views. 72
Reliance on testimony of one competing expert to the exclusion of another is insufficient

to overcome the presumption of correctness that the agency enjoys in its particular area.
73 When specialists express conflicting views, an agency must have discretion to rely
on the reasonable opinion of its own qualified experts even if, as an original matter, a
court might find contrary views more persuasive. 74
§ 535 ----Technical issues [SUPPLEMENT]
Case authorities:
EPA was not arbitrary and capricious in using method for measuring levels of oil and
grease in produced water form of waste from offshore oil and gas industry that measures
both dispersed oil and grease, which improved technology can remove, and dissolved oil,
which technology cannot remove, where EPA used empirical data showing that dissolved
oil can be treated and removed by improved gas flotation techniques. BP Exploration &
Oil v United States EPA (1995, CA6) 66 F3d 784, 41 Envt Rep Cas 1225, 26 ELR
20037, reh, en banc, den (1996, CA6) 1996 US App LEXIS 547.
Office of Personnel Management's decision refusing to compel coverage of high- dose

chemotherarpy accompanied by autologous bone marrow transplant under Mail Handlers
Benefit Plan should be reviewed under arbitrary and capricious standard; thus, where
breast cancer was not among diseases listed, Plan's refusal should have been upheld.
Nesseim v Mail Handlers Benefit Plan (1993, CA8 SD) 995 F2d 804, 16 EBC 2465.
FCC did not act arbitrarily and capriciously in granting pioneer's preference to
competitor of petitioner as reward for developing technology that made it possible to
transmit information through airwaves much faster than formerly possible; Commission's
justification for grant was not inadequate for failing to explain why certain technologies,
"MOOK" and "PSFK," might deserve preference where Commission did not base
preference on those techniques but on "MCM" technology, which it detailed. Mobile
Communs. Corp. of Am. v FCC (1996, App DC) 77 F3d 1399.
Footnotes
377, 109 S Ct 1851, 29 Envt Rep Cas 1508, 19 ELR 20749, on remand (CA9) 880 F2d

242 and costs/fees proceeding (CA9 Or) 22 ELR 20897; Libra v University of New York
(3d Dept) 124 App Div 2d 939, 508 NYS2d 696, app dismd 69 NY2d 933, 516 NYS2d
655, 509 NE2d 350 and app den 70 NY2d 603, 518 NYS2d 1026, 512 NE2d 552;
Elsaesser v Hamilton Bd. of Zoning Appeals (Butler Co) 61 Ohio App 3d 641, 573 NE2d
733.
Footnote 61. Wayne County v Tennessee Solid Water Disposal Control Bd. (Tenn App)
756 SW2d 274.
756 SW2d 274.
756 SW2d 274; Wayne County v Tennessee Solid Water Disposal Control Bd. (Tenn
App) 756 SW2d 274 (stating that the narrower scope of review used to review an
agency's factual determinations suggests that, unlike other civil appeals, the court should
be less confident that their judgment is preferable to that of the agency); Puget Sound
Water Quality Defense Fund v Metropolitan Seattle, 59 Wash App 613, 800 P2d 387;
Sheely v Department of Health & Social Services, 150 Wis 2d 320, 442 NW2d 1.
Footnote 64. Decatur Federation of Teachers, IFT-AFT, AFL-CIO v State Educational

Labor Relations Bd. (4th Dist) 199 Ill App 3d 190, 145 Ill Dec 162, 556 NE2d 780
(considerable deference must be given the Illinois Educational Labor Relations Board
because of the Board's expertise in educational labor matters).
Footnote 65. Franklin Sav. Assn. v Director, Office of Thrift Supervision (CA10 Kan)
934 F2d 1127, later proceeding (BC DC Kan) 133 BR 154.
Footnote 66. Western & Southern Life Ins. Co. v Smith (CA6 Ohio) 859 F2d 407, 103
ALR Fed 755.
934 F2d 1127.
Educ. (CA1 RI) 929 F2d 844.
Footnote 69. Re Application by Pennsauken Solid Waste Management Authority, 238 NJ

Super 233, 569 A2d 826 (action of the Department of the Environmental Protection in
issuing permits to solid waste management authority approving various aspects of the
construction of resource recovery facility to be built within the confines of the sanitary
landfill).
Educ. (CA1 RI) 929 F2d 844.
Footnote 71. True v Heitkamp (ND) 470 NW2d 582; Hanson v Industrial Comm'n (ND)
466 NW2d 587, 116 OGR 294.
Educ. (CA1 RI) 929 F2d 844.

934 F2d 1127, later proceeding (BC DC Kan) 133 BR 154.
377, 109 S Ct 1851, 29 Envt Rep Cas 1508, 19 ELR 20749.
§ 536 Refusal to reopen or reconsider
View Entire Section

When an agency refuses to reopen a proceeding, what is subject to judicial review is

merely the lawfulness of the refusal. Absent some provision of law requiring a
reopening, the basis for challenge must be that the refusal to reopen was arbitrary,
capricious, or an abuse of discretion. 75
For purposes of determining whether an agency's denial of a petition for reconsideration

is subject to judicial review, the courts will not undertake an inquiry into whether
reconsideration in fact occurred, where (1) the agency's formal disposition is to deny
reconsideration; and (2) there is no alteration in the underlying order. 76
Footnotes


US 270, 96 L Ed 2d 222, 107 S Ct 2360, 125 BNA LRRM 2526, 106 CCH LC ¶ 12341
(Hobbs Act review).
(3). Substantial Evidence Standard [537-544]
§ 537 Generally; deference to agency expertise
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Go to Supplement
A reviewing court is bound by the findings of fact made by the agency if those findings
are supported by substantial evidence 77 in view of the whole record, 78 and in the
absence of fraud. 79

The reviewing court does not substitute its conclusion for that of the agency, but reviews
the record only to determine whether substantial evidence supports the agency's decision
and whether the agency exercised its discretion reasonably and with due consideration.
80 A further consideration is that where a statute provides that an administrative finding
of facts is conclusive if supported by substantial evidence, a presumption of validity
attaches to the exercise of the agency's expertise, and those who would overturn the
agency's judgment undertake the heavy burden of making a convincing showing that it is
invalid because it is unjust and unreasonable in its consequences. 81 However,
judicial deference to expertise is not boundless, and expertise is not sufficient in itself to
sustain a decision. 82 An agency's action may be supported by substantial evidence
but nonetheless be invalid as arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law. 83
§ 537 ----Generally; deference to agency expertise [SUPPLEMENT]
Case authorities:
Fact that agency's decision reversed administrative law judge's ruling does not alter
deference standard accorded to agency's decision upon review. Mr. Sprout, Inc. v United
States (1993, CA2) 8 F3d 118.
Administrative decisions are to be affirmed on appeal unless they are contrary to law or
unsupported by competent, material, and substantial evidence on the whole record; a
reviewing court must give due deference to the agency's regulatory expertise and may not
invade the province of exclusive administrative fact finding by displacing the agency's
choice between two reasonably differing views (Const 1963, art 6, § 28). Gordon v City
of Bloomfield Hills (1994) 207 Mich App 231, 523 NW2d 806, app den, motion to strike
den 448 Mich 928, 534 NW2d 520.
Although commission's resolution of questions of law does not bind reviewing court,
some deference is appropriate due to commission's expertise. Cornwell Personnel
Assocs., Ltd. v Labor & Indus. Review Comm'n (1993, App) 175 Wis 2d 537, 499
NW2d 705.
Facts of mere conjecture or mere scintilla of evidence are not enough to support
commission's findings. Cornwell Personnel Assocs., Ltd. v Labor & Indus. Review
Comm'n (1993, App) 175 Wis 2d 537, 499 NW2d 705.
Deference will be extended to commission's application of particular statute to particular

set of facts. Cornwell Personnel Assocs., Ltd. v Labor & Indus. Review Comm'n (1993,
App) 175 Wis 2d 537, 499 NW2d 705.
Footnotes
Footnote 77. Re Guajardo, 119 Idaho 639, 809 P2d 500; Hamilton County Dept. of
Public Welfare v Smith (Ind App) 567 NE2d 165; McKeag v Mahaska Bottling Co.
(Iowa) 469 NW2d 674; Louisville by Kuster v Milligan (Ky) 798 SW2d 454; Holmes v
Berg (La App 1st Cir) 560 So 2d 500, cert den (La) 564 So 2d 327; McGuire v State,
Dept. of Revenue & Taxation (Wyo) 809 P2d 271.

Footnote 79. Maxwell v Proctor & Gamble Co., 188 Mich App 260, 468 NW2d 921, app
den 439 Mich 928, 479 NW2d 682; Mississippi Employment Secur. Com. v Pulphus
(Miss) 538 So 2d 770.


Footnote 80. Health Care Authority v State Health Planning Agency (Ala App) 549 So 2d
973; Grainger v Alaska Workers' Compensation Bd. (Alaska) 805 P2d 976; Siegel v
Arizona State Liquor Bd. (App) 167 Ariz 400, 807 P2d 1136, 82 Ariz Adv Rep 27;
Lockhart v Board of Education (Colo App) 735 P2d 913; State Bd. of Tax Comrs. v
Jewell Grain Co. (Ind) 556 NE2d 920; Herman Bros., Inc. v Louisiana Public Service
Com. (La) 564 So 2d 294; Boguszewski v Commissioner of Dept. of Employment &
Training, 410 Mass 337, 572 NE2d 554; Consolidated School Dist. Number 2 v King
(Mo App) 786 SW2d 217; Elsaesser v Hamilton Bd. of Zoning Appeals (Butler Co) 61
Ohio App 3d 641, 573 NE2d 733; Oviedo v Motor Vehicles Div., 102 Or App 110, 792
P2d 1244; Commonwealth v Johnstown Redevelopment Auth. (Pa) 588 A2d 497, 62
CCH EPD ¶ 42400.
The decision of the administrative hearing commission must be upheld if it authorized by

law and supported by competent and substantial evidence upon the record, unless the
result is clearly contrary to the reasonable expectations of the general assembly. May
Dept. Stores Co. v Director of Revenue (Mo) 791 SW2d 388.
Footnote 81. Chrysler Corp. v Department of Transp. (CA6) 472 F2d 659.
A reviewing court should defer to an agency's exercise of expertise, and may not
substitute its judgment for that of the agency. Federal Power Com. v Florida Power &
Light Co., 404 US 453, 30 L Ed 2d 600, 92 S Ct 637, reh den 405 US 948, 30 L Ed 2d
819, 92 S Ct 929.
Footnote 82. Baltimore & O. R. Co. v Aberdeen & R. R. Co., 393 US 87, 21 L Ed 2d
219, 89 S Ct 280, reh den 393 US 1124, 22 L Ed 2d 131, 89 S Ct 987 and conformed
to (ED La) 301 F Supp 889.
42 L Ed 2d 447, 95 S Ct 438.
As to the arbitrary and capricious standard of review, see §§ 529 et seq.
§ 538 Agency rulemaking actions
View Entire Section

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Agency actions taken pursuant to a rulemaking provision of the Administrative

Procedure Act itself, 84 or based upon a public adjudicatory hearing, 85 are subject to
review under the substantial evidence standard. 86 Informal rulemaking, 87
however, is not subject to this standard. 88 In other words, the basic requirement for
substantial evidence review is an administrative procedure designed to produce a record
that is to be the basis of agency action. 89
In the context of the APA, the substantial evidence test and the arbitrary and capricious
test 90 are one and the same insofar as the requisite degree of evidentiary support is
concerned. 91
§ 538 ----Agency rulemaking actions [SUPPLEMENT]
Case authorities:
In action charging that EPA acted unlawfully in publishing test results of plaintiff's
germicides, EPA's motion for order of protection would be denied where discovery is
necessary to supplement agency record to clarify technical terms and subject matter.
United States v De Lorenzo (1945, CA2 NY) 151 F2d 122.
Footnotes
Footnote 85. 5 USCS §§ 556, 557.
Footnote 88. FCC v National Citizens Committee for Broadcasting, 436 US 775, 56 L
Ed 2d 697, 98 S Ct 2096, 3 Media L R 2409; Batterton v Francis, 432 US 416, 53 L Ed
2d 448, 97 S Ct 2399; Western Union Tel. Co. v Federal Communications Com., 214 US
App DC 308, 665 F2d 1126.
"Substantial evidence" has become a term of art to describe the basis on which an
administrative record is to be judged by a reviewing court. Chandler v Roudebush, 425
US 840, 48 L Ed 2d 416, 96 S Ct 1949, 12 BNA FEP Cas 1368, 11 CCH EPD ¶ 10957.

§ 539 What constitutes substantial evidence
View Entire Section

Go to Supplement
The phrase "substantial evidence" as set forth in the APA 92 does not mean a large or a
considerable amount of evidence. 93 Rather, substantial evidence has been described
as–
–such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion 94 and furnish a reasonably sound basis for the action under
consideration. 95
–more than a mere scintilla of evidence. 96
–something less than a preponderance of the evidence but more than a scintilla or
glimmer. 97
–usually more than uncorroborated hearsay, 98 although it is sometimes possible for

hearsay to constitute substantial evidence, as where the party against whom the hearsay
evidence is admitted is given an opportunity to cross-examine the source of the evidence.
99
–enough to justify, if the trial were to a jury, a refusal to direct a verdict when the
conclusion sought to be drawn from it is one of fact for the jury; 1 this is something
less than the weight of the evidence. 2
–existing where reasonable minds could arrive at the same conclusion reached by the
agency. 3
–existing where the administrative record affords a substantial basis in fact from which
the fact in issue can be reasonably inferred. 4
§ 539 ----What constitutes substantial evidence [SUPPLEMENT]
Case authorities:

Environmental Appeals Board's determination that plaintiff who challenged EPA's
issuance of National Pollution Discharge Elimination System permit under Clean Water
Act (33 USCS §§ 1251 et seq.) failed to properly raise his concerns regarding EPA's
compliance with Ocean Discharge Criteria (33 USCS § 1343) during public comment
period was not supported by evidence and lacked rational basis, where plaintiff submitted
statements that included references to public laws that satisfied threshold requirement by
alerting EPA to his concern that EPA had not adequately complied with Ocean Discharge
Criteria mandates. Adams v United States EPA (1994, CA1) 38 F3d 43.
Mechanic's intentionally false logbook entry regarding tachometer of aircraft he sold as

recently inspected was sufficient to justify FAA's revocation of his mechanic certificate.
Olsen v National Transp. Safety Bd. (1994, CA9) 14 F3d 471, 94 CDOS 344, 94 Daily
Journal DAR 575.
In suit by commercial pilot seeking review of National Safety Transportation Board's

suspension of his pilot certificate for landing under visual flight rules while airport was
operating under instrument flight rules, substantial evidence supported Board's finding
that ground visibility at airport was "reported" to be less than 3 miles despite pilot's
contention that condition was not in fact communicated to anyone. Howard v FAA (1994,
CA9) 17 F3d 1213, 94 CDOS 1483, 94 Daily Journal DAR 2676.
Applicant's pro se appeal of denial of social security disability benefits may proceed,
where applicant's complaint stated that she had worsening back pain, that she cannot
bend over and pick things up, that she has hand and leg trouble, and that she would like a
judge to reopen or review her case, because under liberal pleading rules, applicant stated
claim that administrative law judge's finding was not supported by substantial weight of
evidence, and claim is not frivolous under 28 USCS § 1915. Calhoun v Health & Human
Servs. & Social Sec. Admin. (1994, ED Wis) 844 F Supp 1338.
Substantial evidence supported OSHA's finding that steel erection company's violation of
fall-protection device regulation was willful where company's management was told
numerous times by OSHA officials that fall protection was required whenever practical,
company's officials had been cited by OSHA in past for failure to maintain adequate fall
protection, and where fatal injuries resulted from violations. Interstate Erectors v OSHRC
(1996, CA10) 74 F3d 223, 17 BNA OSHC 1522, 1996-1 CCH Trade Cases ¶ 31001.
Substantial evidence did not support Postal Rate Commission's Public Automatic Rate
proposal discounting several types of pre- barcoded first class mail where proposal
included type of mail that was not discussed at hearings and there was absence of
information regarding volume, expenses, and revenues. Mail Order Ass'n v United States
Postal Serv. (1993, App DC) 2 F3d 408, amd, reh den (App DC) 1993 US App LEXIS
24994.
In proceedings to review order of board of dentistry disciplining dentist for

"unprofessional conduct," there was sufficient evidence to support board's finding that he
committed fraud by misrepresenting age of partial denture in claim to insurance carrier,
despite dentist's testimony that patient told him that denture was 10 years old, where
there was evidence that patient and another witness told dentist that denture was two
years old and that patient's chart contained notation that it was two years old. Morgan v
Board of Dentistry (1993) 118 Or App 626, 848 P2d 650, review den 317 Or 162, 856
P2d 318.

Applying the substantial evidence rule under RS art 6252-13a, the supreme court found
that company holding lease to oil tract made a "fair and reasonable offer to pool
voluntarily" when the offer was made to pool the productive portions of its lots with the
productive acreage in the existing unit; since productive acreage hearings were underway
at that time, the pooling proposal suggested that the determination of the productive
portions of the proposed unit be based upon those proceedings or by agreement of the
parties; production from existing wells, drilling, and completing costs were also
addressed; this offer was fair and reasonable from the perspective of the parties being
force pooled even though there were differences of opinion about the allocation of
interests and the outcome of the productive-acreage hearings was not predictable.
Railroad Com. of Texas v Pend Oreille Oil & Gas Co. (1991, Tex) 817 SW2d 36, rehg of
cause overr (Sep 11, 1991).
Applying the substantial evidence rule under RS art 6252-13a, the supreme court found
that company holding lease to oil tract made a "fair and reasonable offer to pool
voluntarily" when the offer was made to pool the productive portions of its lots with the
productive acreage in the existing unit; since productive acreage hearings were underway
at that time, the pooling proposal suggested that the determination of the productive
portions of the proposed unit be based upon those proceedings or by agreement of the
parties; production from existing wells, drilling, and completing costs were also
addressed; this offer was fair and reasonable from the perspective of the parties being
force pooled even though there were differences of opinion about the allocation of
interests and the outcome of the productive-acreage hearings was not predictable.
Railroad Com. of Texas v Pend Oreille Oil & Gas Co. (1991, Tex) 817 SW2d 36, rehg of
cause overr (Sep 11, 1991).
Denial by Railroad Commission of application for exception to statewide oil and gas well
spacing rule was supported by substantial evidence where there was evidence that
existing wells other than well in question were capable of recovering the remaining oil
reserves in the formation and it would be economically feasible to drill a new well at a
regular location since recoverable oil reserves far exceeded the cost of the well;
moreover, such substantial evidence was all that was required to sustain the Railroad
Commission's denial because the court did not substitute its judgment for that of a
government agency but simply inquired into whether the judgment was supported by
substantial evidence. Schlachter v Railroad Com. of Texas (1992, Tex App Austin) 825
SW2d 737, writ den (Apr 15, 1992) and rehg of writ of error overr (Jul 1, 1992).
Denial by Railroad Commission of application for exception to statewide oil and gas well
spacing rule was supported by substantial evidence where there was evidence that
existing wells other than well in question were capable of recovering the remaining oil
reserves in the formation and it would be economically feasible to drill a new well at a
regular location since recoverable oil reserves far exceeded the cost of the well;
moreover, such substantial evidence was all that was required to sustain the Railroad
Commission's denial because the court did not substitute its judgment for that of a
government agency but simply inquired into whether the judgment was supported by
substantial evidence. Schlachter v Railroad Com. of Texas (1992, Tex App Austin) 825
SW2d 737, writ den (Apr 15, 1992) and rehg of writ of error overr (Jul 1, 1992).
Sufficient evidence supported ruling by Employment Commission that notice letter

concerning eligibility for extension of retraining benefits was timely delivered since
postmark on letter indicated so, and reasonable minds could find that neither testimony
by employee stating that he did not receive letter until 9 months after returning to his
residence, nor affidavit by postmaster that procedures for mail put on "hold" may have
created possibility that post office mislaid letter, required a contrary conclusion. Foreman
v Texas Employment Com. (1992, Tex App Austin) 828 SW2d 319.
Sufficient evidence supported ruling by Employment Commission that notice letter

concerning eligibility for extension of retraining benefits was timely delivered since
postmark on letter indicated so, and reasonable minds could find that neither testimony
by employee stating that he did not receive letter until 9 months after returning to his
residence, nor affidavit by postmaster that procedures for mail put on "hold" may have
created possibility that post office mislaid letter, required a contrary conclusion. Foreman
v Texas Employment Com. (1992, Tex App Austin) 828 SW2d 319.
Substantial evidence is evidence that is relevant, credible, probative, and of quantum

upon which reasonable fact finder could base conclusion. Cornwell Personnel Assocs.,
Ltd. v Labor & Indus. Review Comm'n (1993, App) 175 Wis 2d 537, 499 NW2d 705.
Footnotes
Footnote 92. 5 USCS § 706(2)(E).
Unemployment Ins Rep ¶ 14030A; Consolo v Federal Maritime Com., 383 US 607, 16
L Ed 2d 131, 86 S Ct 1018, on remand 126 US App DC 14, 373 F2d 674; Appleyard's
Motor Transp. Co. v Interstate Commerce Com. (CA1) 592 F2d 8; Willapoint Oysters,
Inc. v Ewing (CA9) 174 F2d 676, cert den 338 US 860, 94 L Ed 527, 70 S Ct 101, reh
den 339 US 945, 94 L Ed 1360, 70 S Ct 793; Samedan Oil Corp. v Cotton Petroleum
Corp. (WD Okla) 466 F Supp 521, 64 OGR 519; May Trucking Co. v United States, 193
US App DC 195, 593 F2d 1349; Health Care Authority v State Health Planning Agency
(Ala App) 549 So 2d 973; Wade Oilfield Service Co. v Providence Washington Ins. Co.
(Alaska) 759 P2d 1302; Kaufman v State Dept. of Social & Rehabilitation Services, 248
Kan 951, 811 P2d 876; Caucus Distributors, Inc. v Maryland Secur. Comr., 320 Md 313,
577 A2d 783; Even v Kraft, Inc. (Minn) 445 NW2d 831; Consolidated Edison Co. v New
York State Div. of Human Rights, 77 NY2d 411, 568 NYS2d 569, 570 NE2d 217, 62
CCH EPD ¶ 42501, reconsideration den 78 NY2d 909, 573 NYS2d 470, 577 NE2d
1061; Mormak v Unemployment Compensation Bd. of Review, 135 Pa Cmwlth 232, 579
A2d 1383; Hoxit v Michelin Tire Corp., 304 SC 461, 405 SE2d 407; Wayne County v
Tennessee Solid Water Disposal Control Bd. (Tenn App) 756 SW2d 274.
756 SW2d 274.
Footnote 96. Appleyard's Motor Transp. Co. v Interstate Commerce Com. (CA1) 592 F2d
8; Willapoint Oysters, Inc. v Ewing (CA9) 174 F2d 676, cert den 338 US 860, 94 L Ed
527, 70 S Ct 101, reh den 339 US 945, 94 L Ed 1360, 70 S Ct 793; McHenry v Bond
(CA11) 668 F2d 1185.
Footnote 97. Miller v Frasure, 248 Mont 132, 809 P2d 1257, 16 ALR5th 986 (in order to

rise to the level of substantial evidence it must be greater than trifling or frivolous);
Wayne County v Tennessee Solid Water Disposal Control Bd. (Tenn App) 756 SW2d
274.

Footnote 99. Richardson v Perales, 402 US 389, 28 L Ed 2d 842, 91 S Ct 1420.
Footnote 1. Illinois C. R. Co. v Norfolk & W. R. Co., 385 US 57, 17 L Ed 2d 162, 87 S

Ct 255; Consolo v Federal Maritime Com., 383 US 607, 16 L Ed 2d 131, 86 S Ct 1018,
on remand 126 US App DC 14, 373 F2d 674; Erickson Transport Corp. v Interstate
Commerce Com. (CA8) 728 F2d 1057.

Footnote 3. State ex rel. Richards v Traut (App) 145 Wis 2d 677, 429 NW2d 81, habeas
corpus proceeding (App) 175 Wis 2d 446, 499 NW2d 276.
Footnote 4. Connecticut Bldg. Wrecking Co. v Carothers, 218 Conn 580, 590 A2d 447,
33 Envt Rep Cas 1759, on remand (Conn Super) 1992 Conn Super LEXIS 1061.
§ 540 Whole record review
View Entire Section

Go to Supplement
Traditionally, the courts reviewed administrative action to determine whether it was

supported by substantial evidence. The deference afforded agency action was such that
the court would consider only evidence favorable to the agency and would ignore
evidence to the contrary. This minimal judicial intrusion represented by a substantial
evidence standard of review has been supplanted now by whole record review in the
normal appeal of administrative decisionmaking. 5 Under whole record review, if the
specific evidence cited in support of an administrative officer's ultimate factual finding is
inadequate to support the ultimate factual conclusion, a reviewing court should search the
record of the entire proceedings to determine whether it does in fact contain substantial
evidence from which the ultimate factual finding could reasonably be inferred. 6
If a court is to review agency action fairly, it should have before it neither more nor less
information than agency had at time it made its decision. To review less than the full
administrative record might allow a party to withhold evidence unfavorable to its case; to
review more than the information available to the agency at time of decision risks
requiring administrators to be present or allowing them to take advantage of post hoc
rationalizations. 7 No part of the evidence may be exclusively relied upon if it would be
unreasonable to do so. 8 A reviewing court must engage in a substantial inquiry and a
thorough, probing, in-depth review of the record, 9 taking into account whatever in the
record fairly detracts from the weight of the evidence. 10
When applying whole record review, the reviewing court views the evidence in the light
most favorable to the agency decision, 11 but may not review favorable evidence with
total disregard to contravening evidence. 12 Substantial evidence on the whole record is
such evidence that demonstrates the reasonableness of the administrative decision. To
determine whether a finding of fact is amply supported by the whole record, the court
does not rely solely on one part of the evidence, but must find evidence that is credible in
light of the whole record and that is sufficient for a reasonable mind to accept as adequate
to support the conclusion reached by the agency. 13
 Comment: The 1981 Model State Administrative Procedure Act provides that a
court must grant relief only if it determines that a person seeking judicial relief has
been substantially prejudiced by, inter alia, an agency action based on a determination
of fact, made or implied by the agency, that is not supported by evidence that is
substantial when viewed in light of the whole record before the court, which includes
the agency record for judicial review, supplemented by any additional evidence
received by the court under the Act. 14 The l961 Model Act provides that the court
may reverse or modify the agency decision if substantial rights of the appellant have
been prejudiced because the administrative findings, inferences, conclusion, or
decisions are clearly erroneous in view of the reliable, probative, and substantial
evidence on the whole record. 15
§ 540 ----Whole record review [SUPPLEMENT]
Case authorities:
A review of whether an agency decision is supported by sufficient evidence requires the

court to apply the whole record test. Brooks v BCF Piping, Inc. (1993) 109 NC App 26,
426 SE2d 282, digest op at (NC App) 1993 CCH OSHD ¶ 29974.
If a petitioner argues that an agency's decision was based on an error of law, "de novo"
review is required, but a reviewing court must apply the "whole record" test if the
petitioner questions whether the agency's decision was supported by the evidence or
whether the decision was arbitrary or capricious. Friends of Hatteras Island Nat'l Historic
Maritime Forest Land Trust for Preservation v Coastal Resources Comm'n (1995) 117
NC App 556, 452 SE2d 337.
The trial court erred in reversing the decision of the county health department director to
dismiss petitioner who was a sanitation inspector where the petition for judicial review
alleged no objection to any particular finding of fact in the Final Decision, and each of
those findings was therefore binding on the superior court; the trial court's outright
rejection of respondent's director's findings and conclusions, followed by adoption
instead of the findings of the administrative law judge and the State Personnel
Commission, therefore reflected improper application of the "whole record test" and
erroneous substitution of the court's judgment for that of the agency as contained in the
Final Decision; and proper application of the whole record test supported the conclusion

that "just cause" existed to discharge petitioner from employment on grounds of
unacceptable personal conduct in making romantic overtures and inappropriate sexually
suggestive comments to regulated parties. Gray v Orange County Health Dep't (1995)
119 NC App 62, 457 SE2d 892.
Footnotes
Footnote 5. Erickson Transport Corp. v Interstate Commerce Com. (CA8) 728 F2d 1057;
Cooper v District of Columbia Dept. of Employment Services (Dist Col App) 588 A2d
1172; Re Application of Burlington N. R. Co., 107 NM 582, 761 P2d 855; State ex rel.
Utilities Com. v Carolina Water Service, Inc., 328 NC 299, 401 SE2d 353; Bloss &
Dillard, Inc. v West Virginia Human Rights Comm'n, 183 W Va 702, 398 SE2d 528.
Footnote 6. Connecticut Bldg. Wrecking Co. v Carothers, 218 Conn 580, 590 A2d 447,
33 Envt Rep Cas 1759, on remand (Conn Super) 1992 Conn Super LEXIS 1061.
The superior court judge did not apply the proper scope of review in determining the
propriety of a decision by the Environmental Management Commission where the court's
review described in its judgment did not comport with the whole record test required by
the NC Administrative Procedure Act. Re Environmental Management Com. etc., 53 NC
App 135, 280 SE2d 520, 11 ELR 20988, appeal after remand 80 NC App 1, 341 SE2d
588, review den 317 NC 334, 346 SE2d 139.
Footnote 7. Walter O. Boswell Memorial Hospital v Heckler, 242 US App DC 110, 749
F2d 788, on remand (DC Dist Col) 628 F Supp 1121.
Footnote 8. Re Application of Burlington N. R. Co., 107 NM 582, 761 P2d 855.
Under the "any evidence" rule, the sole issue for resolution is whether there was any
evidence to support the administrative finding that appellee had voluntarily resigned his
employment without good cause. Bulloch Academy v Cornett, 184 Ga App 42, 360
SE2d 615.
Footnote 9. Chrysler Corp. v Department of Transp. (CA6) 472 F2d 659.
42 L Ed 2d 447, 95 S Ct 438; Universal Camera Corp. v NLRB, 340 US 474, 95 L Ed
456, 71 S Ct 456, 27 BNA LRRM 2373, 19 CCH LC ¶ 66191, on remand (CA2) 190
F2d 429, 28 BNA LRRM 2274, 20 CCH LC ¶ 66439; Erickson Transport Corp. v
Interstate Commerce Com. (CA8) 728 F2d 1057.
Footnote 12. Herman v Miners' Hosp., 111 NM 550, 807 P2d 734.
But see, Kaufman v State Dept. of Social & Rehabilitation Services, 248 Kan 951, 811
P2d 876, stating the court is not concerned with evidence contrary to the findings but
must focus solely on evidence in support of the findings.
Footnote 13. Herman v Miners' Hosp., 111 NM 550, 807 P2d 734.

Footnote 14. Model State Administrative Procedure Act (l981) § 5-116(c)(7), referring to
§ 5-114.
Footnote 15. Model State Administrative Procedure Act (1961) § 15(g)(5).
§ 541 Satisfying and implementing the standard
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Go to Supplement
A court must view the evidence and all reasonable inferences which flow from it 16 in
the light most favorable to the administrative agency's decision 17 and may not
substitute its judgment for that of the agency 18 or reweigh the evidence in the process
of determining whether the findings are supported by substantial evidence. 19 The
reviewing court is concerned only with the reasonableness of the administrative order,
not its correctness. 20
The evaluation is conducted pursuant to the administrative body's findings of fact,

regardless of whether the court would have reached a different conclusion on the same
set of facts. 21
An agency decision may therefore be reversed or modified by the reviewing court if the
agency's findings, inferences, conclusions, or decisions are, inter alia, unsupported by
substantial evidence in view of the entire record. 22 The court may reverse the agency's
factual decisions only when it is convinced that fair-minded persons, with the same facts
before them, could not have reached the conclusion arrived at by the agency; the question
is whether substantial evidence supports the findings made by the agency. 23
If, however, the appellate division's review of the record leaves it with the feeling that the
agency's finding is clearly a mistaken one and so plainly in error that the interests of
justice demand intervention and correction, then, and only then, it should appraise the
record as if it were deciding the matter at inception and make its own findings and
conclusions. While this feeling of wrongness is difficult to define, because it involves the
reaction of trained judges in the light of their judicial and human experience, it can be
said that which is to exist in the reviewing mind is a definite conviction that the judge
went so wide of the mark, a mistake must have been made. This sense of wrongness can
rise in numerous ways–from manifest lack of inherently credible evidence to support the
finding, obvious overlooking or underevaluation of crucial evidence, a clearly unjust
result, and many others. 24
§ 541 ----Satisfying and implementing the standard [SUPPLEMENT]
Case authorities:
Secretary of Labor's decision finding trucking company in violation of statute prohibiting

company from discharging employee who files complaint relating to vehicle safety rule
was supported by substantial evidence where company's warning letters to employee
revealed discharge was for taking rest stops, not for failing to report those stops. Yellow
Freight Sys. v Reich (1994, CA6) 27 F3d 1133, 9 BNA IER Cas 1035, 128 CCH LC ¶
11128, 1994 CCH OSHD ¶ 30482, 1994 FED App 227P.
Decision of Acting Director of Office of Thrift Supervision finding unsafe and unsound
practices by directors of savings and loan institution was unsupported by substantial
evidence where he "never even considered" evidence he stated was essential to their
defense and where his theory was "patently devoid of evidentiary support". Johnson v
Office of Thrift Supervision (1996, App DC) 81 F3d 195.
Footnotes
Footnote 16. McClain v Texaco, Inc., 29 Ark App 218, 780 SW2d 34; Mormak v
Unemployment Compensation Bd. of Review, 135 Pa Cmwlth 232, 579 A2d 1383.
Footnote 17. Gencorp Polymer Products v Landers, 36 Ark App 190, 820 SW2d 475;
Atchison, T. & S. F. R. Co. v Public Utilities Com. (Colo) 763 P2d 1037; Consolidated
School Dist. Number 2 v King (Mo App) 786 SW2d 217.
All reasonable doubts must be resolved in favor of the agency findings and decision.
City and County of San Francisco v Fair Employment & Housing Com. (1st Dist) 191
Cal App 3d 976, 236 Cal Rptr 716, 50 BNA FEP Cas 930, review dismd.
811 P2d 876; Caucus Distributors, Inc. v Maryland Secur. Comr., 320 Md 313, 577 A2d
783 (further stating that this deference applies not only to agency fact-finding, but to the
drawing of inferences from the facts as well); Consolidated School Dist. Number 2 v
King (Mo App) 786 SW2d 217; Texas State Bd. of Dental Examiners v Sizemore (Tex)
759 SW2d 114, rehg of cause overr (Nov 23, 1988) and cert den 490 US 1080, 104 L Ed
2d 662, 109 S Ct 2100.
Footnote 19. Hamilton County Dept. of Public Welfare v Smith (Ind App) 567 NE2d
165; Kaufman v State Dept. of Social & Rehabilitation Services, 248 Kan 951, 811 P2d
876.
Footnote 20. Texas State Bd. of Dental Examiners v Sizemore (Tex) 759 SW2d 114, rehg
of cause overr (Nov 23, 1988) and cert den 490 US 1080, 104 L Ed 2d 662, 109 S Ct
2100.
Footnote 21. Bloss & Dillard, Inc. v West Virginia Human Rights Comm'n, 183 W Va
702, 398 SE2d 528.
As to inconsistent conclusions, see § 543.
Footnote 22. McKoy v North Carolina Dept. of Human Resources, 101 NC App 356, 399
SE2d 382.
Administrative findings of fact are not reversed unless it conclusively appears the

evidence upon which the decision was made was devoid of probative value or so
proportionately inadequate that the finding could not rest on a rational basis. May v
Department of Natural Resources (Ind App) 565 NE2d 367, reh den (Ind App) 571 NE2d
601 and transfer den (Nov 7, 1991).
Footnote 23. Gencorp Polymer Products v Landers, 36 Ark App 190, 820 SW2d 475.
Footnote 24. Clowes v Terminix Int'l, Inc., 109 NJ 575, 538 A2d 794, 1 AD Cas 1232, 52
BNA FEP Cas 1608, 47 CCH EPD ¶ 38223, 82 ALR4th 1.
Where the findings of fact are against the manifest weight of the evidence and it is clearly
evident that the board should have reached the opposite conclusion, the reviewing court
may reverse the agency's findings of fact. Freeport v Illinois State Labor Relations Bd.,
135 Ill 2d 499, 143 Ill Dec 220, 554 NE2d 155, 135 BNA LRRM 2492.
§ 542 Assessment of weight and credibility of evidence
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A reviewing court must engage in a substantial inquiry and a thorough, probing, in-depth
review of the record, 25 buy it is for the agency to pass on the weight and credibility of
the evidence. 26 It is not the function of the reviewing court to weigh the evidence, 27
resolve conflicts in the testimony, determine the credibility of witnesses, or to decide
what inferences are to be drawn from the evidence. 28 Rather, it is only to determine
that there is in the record such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. 29 This is true even in cases where the testimony
is generalized, the evidence meager, and reasonable minds might differ as to the correct
result. 30 Further, the agency is not required to believe the testimony of the claimant or
any other witness but may accept in translating to findings of fact only those portions of
the testimony it deems worthy of belief. The question for the appellate court is not
whether the evidence would have supported findings contrary to the ones made by the
commission, but whether the evidence supports the findings made. 31
 Observation: The weight or importance assigned to any given piece of evidence

presented in support of a Certificate of Need application is primarily left to the
discretion of the Certificate of Need Review Board in view of its recognized expertise
in determining which health care services meet the criteria for certificate of need
approval. 32
However, although the question of credibility of witnesses and the weight to be given
their testimony is primarily one for determination by the trier of facts, the rule is not to be
applied mechanically or a reviewing court would be compelled to sustain any finding as
to which testimonial evidence was conflicting. Accordingly, where the record as a whole
justifies disregarding the credibility findings of an administrative agency a court may
sometimes reject them. 33 For example, a court may reject credibility determinations
based on improper or irrational criteria 34 or where the agency has misconstrued the
evidence. 35 However, it should be noted that there is authority for the proposition that
agency decisions based on credibility are judicially reviewable only if contradicted by
uncontrovertible documentary evidence or physical facts. 36
 Comment: Under the 1981 Model State Administrative Procedure Act, the court [(if
alternative B of § 5-104 dealing with jurisdiction and venue is adopted), assisted by a
referee, master, trial court judge as provided in § 5-104(c),] may receive evidence, in
addition to that contained in the agency record for judicial review, only if it relates to
the validity of the agency action at the time it was taken and is needed to decide
disputed issues regarding: (1) improper constitution as a decisionmaking body, or
improper motive or grounds for disqualification, of those taking the agency action; (2)
unlawfulness of procedure or of decisionmaking process; or (3) any material fact that
was not required by any provision of law to be determined exclusively on an agency
record of a type reasonably suitable for judicial review. 37 The court may, under
specific enumerated situations, remand a matter to the agency, before final disposition
of the petition for review, with directions that the agency conduct fact-finding and
other proceedings the court considers necessary and that the agency take such further
action on the basis thereof as the court directs. 38 The l961 Act prohibits a reviewing
court from substituting its judgment for that of the agency as to the weight of the
evidence on questions of fact. 39
§ 542 ----Assessment of weight and credibility of evidence [SUPPLEMENT]
Case authorities:
Interior Secretary's decision to list coastal California gnatcatcher as threatened species is

vacated and remanded, where key evidence in decision was report concerning species'
range by ornithologist who 2 years before had analyzed same data and come to opposite
conclusion, because listing was arbitrary and capricious since Secretary should have
made available underlying data that formed basis of ornithologist's report. Endangered
Species Comm'n of the Bldg. Indus. Ass'n v Babbitt (1994, DC Dist Col) 852 F Supp 32,
24 ELR 20934, amd (1994, DC Dist Col) 1994 US Dist LEXIS 8280.
Decision of Labor and Industry Review Commission finding employee who had been
discriminated against in violation of Wisconsin Fair Employment Act was entitled to
back pay even though employee had voluntarily quit without being actually or
constructively discharged was not entitled to any weight on review because commission
had taken contrary positions on issue presented. Marten Transp., Ltd. v Department of
Indus., Labor & Human Relations (1993) 176 Wis 2d 1012, 501 NW2d 391, 62 CCH
EPD ¶ 42484.
Evidence is to be construed most favorably to commission's findings. Cornwell Personnel

Assocs., Ltd. v Labor & Indus. Review Comm'n (1993, App) 175 Wis 2d 537, 499
NW2d 705.
Footnotes

Footnote 26. United States v First City Nat. Bank, 386 US 361, 18 L Ed 2d 151, 87 S
Ct 1088, 1967 CCH Trade Cases ¶ 72048.
Any determination as to the weight and credibility of the evidence and any inferences
drawn therefrom lie with the agency. Williams v Dothan Personnel Bd. (Ala App) 579
So 2d 1350, reh overr (Ala App) 1991 Ala Civ App LEXIS 40 and cert den (Ala) 1991
Ala LEXIS 546.
Footnote 27. Steadman v SEC, 450 US 91, 67 L Ed 2d 69, 101 S Ct 999, CCH Fed
Secur L Rep ¶ 97878, reh den 451 US 933, 68 L Ed 2d 318, 101 S Ct 2008 (noting that
term "substantial evidence" in 5 USCS § 556(d) does not involve scope of review but
establishes a standard of proof for adjudication); Screws v Ballard (Ala App) 574 So 2d
827, reh overr (Ala App) 1990 Ala Civ App LEXIS 496; Health Care Authority v State
Health Planning Agency (Ala App) 549 So 2d 973; Plowman v Arizona State Liquor Bd.
(App) 152 Ariz 331, 732 P2d 222; Connecticut State Medical Soc. v Connecticut Bd. of
Examiners in Podiatry, 208 Conn 709, 546 A2d 830; H & V Engineering, Inc. v Idaho
State Bd. of Professional Engineers & Land Surveyors, 113 Idaho 646, 747 P2d 55;
Holmes v Berg (La App 1st Cir) 560 So 2d 500, cert den (La) 564 So 2d 327; Robinson v
Workmen's Compensation Appeal Bd. (Lindsey), 139 Pa Cmwlth 82, 589 A2d 778;
Texas State Bd. of Dental Examiners v Sizemore (Tex) 759 SW2d 114, rehg of cause
overr (Nov 23, 1988) and cert den 490 US 1080, 104 L Ed 2d 662, 109 S Ct 2100.
An appellate body is bound by the any evidence standard of review, and is not authorized
to substitute its judgment as to weight and credibility of witnesses. Harper v L & M
Granite Co., 197 Ga App 157, 397 SE2d 739.
Footnote 28. Holmes v Berg (La App 1st Cir) 560 So 2d 500, cert den (La) 564 So 2d
327; Robinson v Workmen's Compensation Appeal Bd. (Lindsey), 139 Pa Cmwlth 82,
589 A2d 778.
Footnote 29. Steadman v SEC, 450 US 91, 67 L Ed 2d 69, 101 S Ct 999, CCH Fed
Secur L Rep ¶ 97878, reh den 451 US 933, 68 L Ed 2d 318, 101 S Ct 2008.
973.
Footnote 31. McClain v Texaco, Inc., 29 Ark App 218, 780 SW2d 34.
973.
Footnote 33. NLRB v Payless Cashway Lumber Store, Inc. (CA8) 508 F2d 24, 88 BNA
LRRM 2067, 75 CCH LC ¶ 10537.
Footnote 34. Breeden v Weinberger (CA4 Va) 493 F2d 1002.
Forms: Petition to review administrative order–Allegation–Order not supported by

substantial evidence [5 USCS § 706]. 2 Federal Procedural Forms, L Ed, Appeal,
––Admission of improper evidence at hearing. 1A Am Jur Pl & Pr Forms (Rev),

––Determinations of federal agency not supported by evidence required under statutes.

Petition in federal court–For review of administrative order–Erroneous findings of

hearing officer. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 272.
Footnote 35. Robinson v Workmen's Compensation Appeal Bd. (Lindsey), 139 Pa

Cmwlth 82, 589 A2d 778.
Footnote 36. Edward J. Mawod & Co. v SEC (CA10) 591 F2d 588, CCH Fed Secur L
Rep ¶ 96753.
Footnote 37. Model State Administrative Procedure Act (l981) § 5-114(a).
§ 543 Inconsistent conclusions
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The possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency's finding from being supported by substantial evidence.
40 The question is not whether the testimony would have supported a contrary
finding, but whether it supports the finding that was made, 41 and the reviewing court
must give due weight to the agency's opportunity to judge the credibility of the witnesses.
42 The findings of fact made by an agency are conclusive when facts are in dispute or
when reasonable minds may differ on the inferences to be drawn from the evidence. 43
And whenever the record contains affirmative proof supporting the view of each side, the
court must defer to the board's expertise and experience, 44 and must sustain an
administrative action supported by substantial evidence even though there is a
preponderance of evidence leading to the opposite conclusion. 45
Courts are not fit to interfere with an agency's findings of fact simply because reasonable
minds might disagree about the evidence or the inferences to be drawn from it. 46 A
reviewing court may only determine whether the board reasonably could have reached
the decision. It may not substitute its judgment of the evidence and may not set aside the
board's decision unless it is not supported by competent and substantial evidence on the
whole record or is contrary to the overwhelming weight of the evidence. In addition, the
evidence must be considered in the light most favorable to the board's decision, together
with all reasonable inferences where supported. If evidence before an administrative
body would warrant either of two opposed findings, the reviewing court is bound by the
administrative determination and it is irrelevant that there is evidence to support a
contrary finding. 47 Therefore, if the appellate division is satisfied after its review that
the evidence and the inferences to be drawn from it support the agency head's decision,
then it must affirm even if the court feels that it would have reached a different result
itself. 48
§ 543 ----Inconsistent conclusions [SUPPLEMENT]
Case authorities:
There was no merit to petitioner's contention that the State Personnel Commission acted
arbitrarily in disregarding the administrative law judge's credibility determinations, since
credibility determinations as well as conflicts in the evidence are for the agency to
determine, and the Commission's findings in this case with regard to credibility of the
witness had considerable support in the record. Oates v North Carolina Dep't of
Correction (1994) 114 NC App 597, 442 SE2d 542.
Footnotes

1018, on remand 126 US App DC 14, 373 F2d 674; J. H. Rose Truck Line, Inc. v
Interstate Commerce Com. (CA5) 683 F2d 943; Erickson Transport Corp. v Interstate
Commerce Com. (CA8) 728 F2d 1057; McHenry v Bond (CA11) 668 F2d 1185; Office
of Consumer Advocate v Iowa Utilities Bd. (Iowa) 454 NW2d 883; Nattress v Land Use
Regulation Com. (Me) 600 A2d 391; Consolidated Edison Co. v New York State Div. of
Human Rights, 77 NY2d 411, 568 NYS2d 569, 570 NE2d 217, 62 CCH EPD ¶ 42501,
reconsideration den 78 NY2d 909, 573 NYS2d 470, 577 NE2d 1061; Hoxit v Michelin
Tire Corp., 304 SC 461, 405 SE2d 407.
Footnote 41. Johnson v Arkansas Bd. of Examiners in Psychology, 305 Ark 451, 808
SW2d 766; Hurley v Board of Review (Utah) 767 P2d 524, 98 Utah Adv Rep 20.
Footnote 42. Even v Kraft, Inc. (Minn) 445 NW2d 831.
Footnote 43. Office of Consumer Advocate v Iowa Utilities Bd. (Iowa) 454 NW2d 883.
Footnote 44. Johnson v Arkansas Bd. of Examiners in Psychology, 305 Ark 451, 808
SW2d 766.

Footnote 46. McKeag v Mahaska Bottling Co. (Iowa) 469 NW2d 674.
Footnote 47. Kramer v Mason (Mo App) 806 SW2d 131.
Footnote 48. Clowes v Terminix Int'l, Inc., 109 NJ 575, 538 A2d 794, 1 AD Cas 1232, 52
BNA FEP Cas 1608, 47 CCH EPD ¶ 38223, 82 ALR4th 1.
Where conflicting interpretations of evidence urged by petitioner and respondent are both

reasonable and plausible under the evidence presented, the Circuit Court may not
transcend the scope of its certiorari review by substituting its judgment for that of the
local administrative agency. West Palm Beach Zoning Bd. of Appeals v Education Dev.
Center, Inc. (Fla App D4) 504 So 2d 1385, 12 FLW 1036, appeal after remand (Fla App
D4) 526 So 2d 775, 13 FLW 1412, quashed (Fla) 541 So 2d 106, 14 FLW 125.
§ 544 Review of administrative law judge decision
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In some cases, the record under review will contain the initial decision of the
administrative law judge. Where the record is susceptible of two interpretations the
reviewing court will not readily overturn the agency in those situations where it differs
from the ALJ, nor will the reviewing court ascribe the distinct error of law to the agency
every time it fails to exhaustively rebut the rationales or findings of the ALJ. Rather, the
court will consider any differences of opinion between the initial and reviewing tribunals
as an integral component of the court's inquiry into whether there is substantial evidence
to support the decision. 49
Although an agency should clearly express and elaborate its rejection of original
credibility findings made by an ALJ, the reviewing court's function is not frustrated if the
agency's implicit rejection and explanation are sufficiently clear to permit review. 50
The reviewing court may reverse or modify the decision of an administrative law judge if
it appears the decision was based on an erroneous legal theory. 51
§ 544 ----Review of administrative law judge decision [SUPPLEMENT]
Case authorities:
Commodities Futures Trading Commission improperly adopted ALJ's findings of

violations where it summarily affirmed opinion as "substantially correct"; result leaves
questions about which specific findings or conclusions by ALJ were incorrect, and does
not permit intelligent review. Armstrong v Commodity Futures Trading Comm'n (1993,
CA3) 12 F3d 401.
Footnotes
Footnote 49. Marshall Durbin Food Corp. v ICC (CA11) 959 F2d 915, 6 FLW Fed C
506.
Footnote 50. Marshall Durbin Food Corp. v ICC (CA11) 959 F2d 915, 6 FLW Fed C
506.

Footnote 51. State by Khalifa v Russell Dieter Enterprises, Inc. (Minn App) 418 NW2d
202.
(4). De Novo Review [545, 546]
§ 545 Generally
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In the absence of specific statutory authorization, 52 a de novo review is generally not

to be presumed, 53 but must be based on the administrative record of the agency
involved rather than on a new record made initially in the reviewing court. 54 If there
is such a failure to explain administrative action as to frustrate effective judicial review,
the remedy is not to hold a de novo hearing but to obtain from the agency, either through
affidavits or testimony, such additional explanation of the reasons for the agency decision
as are necessary. Where there is a contemporaneous explanation of the agency decision
which indicates the determinative reason for the final action taken, the validity of that
action must stand or fall on the propriety of that finding judged by the appropriate
standard of review. If that finding is not sustainable on the administrative record made,
then the decision must be vacated and the matter remanded to the administrative officer
for further consideration. 55
There appears to be some inconsistency among the jurisdictions as to the use of the term
trial de novo, although identical results are achieved. At least two courts maintain that
review of appeals from agency action is de novo, but will not disturb agency findings
unless they are against the preponderance or 56 weight of the evidence, or unless the
agency erroneously declares or applies the law. 57 If the court finds that the evidence is
evenly balanced, the agency's view must prevail on appeal. 58 Another states that the
scope of review by the District Court is by trial de novo on the record; the court hears no
new evidence, but makes an independent adjudication of the facts and law based upon the
record developed before the agency. 59 And yet another holds that the reviewing court
conducts a quasi de novo review and may only reverse the agency if it concludes that the
evidence preponderates against the agency's decision; judicial review is limited to a
review of the transcript of the proceedings below and any other evidence which is
relevant to the issue of arbitrariness. 60
Case authorities:
Court of Appeals will not review de novo ICC's finding, made at request of bankruptcy
court, that shipments carried by bankrupt on behalf of shipper were contract carriage
rather than common carriage, thus resulting in undercharges owed estate of bankrupt
carrier; Court of Appeals is not reviewing bankruptcy court's findings but judgment of
district court affirming bankruptcy court's giving effect to decision of ICC; thus, Court of
Appeals is reviewing decision of administrative agency and will apply arbitrary and
capricious standard. Bankruptcy Estate of United Shipping Co. v General Mills (1994,
CA8 Minn) 34 F3d 1383, 25 BCD 1732.
Where plaintiff's assignments of error were sufficient to raise only the issue of whether
an order of the Safety and Health Review Board was supported by the findings of fact,
appellate review of the Review Board's order was de novo. Associated Mechanical
Contractors v Payne (1995) 118 NC App 54, 453 SE2d 545, digest op at (NC App) 1995
CCH OSHD ¶ 30767 and review gr 340 NC 358, 458 SE2d 184, reprinted as mod on
other grounds (NC) 1995 NC LEXIS 321.
A nursing facility owner was not entitled to a de novo proceeding by an administrative

law judge when it petitioned for a contested case hearing challenging an agency's denial
of its application for a certificate of need for additional nursing and home-for-the-aged
beds in its facility, and the agency's initial decision was properly reviewed by the
administrative law judge. The subject matter of a contested case hearing before an
administrative law judge is the agency decision, and the administrative law judge is to
determine whether the petitioner has met its burden of showing that the agency
substantially prejudiced its rights and that the agency acted outside its authority, acted
erroneously, acted arbitrarily and capriciously, used improper procedure, or failed to act
as required by law. GS §§131E-188, 150B-23(a). Britthaven, Inc. v North Carolina Dep't
of Human Resources, Div. of Facility Servs. (1995) 118 NC App 379, 455 SE2d 455.
Property owner whose shopping center site plan had been denied by city council was
permitted in the administrative appeal leave to present additional evidence before the
common pleas court pursuant to RC § 2506.03(A)(5) where the city failed to file with the
final transcript a set of conclusions of fact; the city's filing of "findings of fact" included
in its answer to owner's appeal notice did not meet the statutory requirement. T.O.P. 1
Partners v Stow (1991, Summit Co) 73 Ohio App 3d 24, 595 NE2d 1044.
Property owner whose shopping center site plan had been denied by city council was
permitted in the administrative appeal leave to present additional evidence before the
common pleas court pursuant to RC § 2506.03(A)(5) where the city failed to file with the
final transcript a set of conclusions of fact; the city's filing of "findings of fact" included
in its answer to owner's appeal notice did not meet the statutory requirement. T.O.P. 1
Partners v Stow (1991, Summit Co) 73 Ohio App 3d 24, 595 NE2d 1044.
Where plaintiff filed complaint alleging that decision not to renew her contract was based
on sex discrimination, question of whether optional internal review proceedings were
sufficient under Title VII to support award of attorney's fees to plaintiff was one of law,
reviewed de novo without deference to decisions of lower courts. Duello v Board of
Regents of Univ. of Wis. Sys. (1993) 176 Wis 2d 961, 501 NW2d 38, 62 BNA FEP Cas
665.
Footnotes
Footnote 52. Norwich Eaton Pharmaceuticals, Inc. v Bowen (CA6 Ohio) 808 F2d 486,

Footnote 53. Chandler v Roudebush, 425 US 840, 48 L Ed 2d 416, 96 S Ct 1949, 12
BNA FEP Cas 1368, 11 CCH EPD ¶ 10957; Virginia Agricultural Growers Asso. v
Donovan (WD Va) 579 F Supp 768, affd (CA4 Va) 756 F2d 1025, 81 ALR Fed 519;
Corning Sav. & Loan Asso. v Federal Home Loan Bank Bd. (CA8 Ark) 736 F2d 479;
National Law Center on Homelessness & Poverty v United States Dept. of Veterans
Affairs (DC Dist Col) 736 F Supp 1148, later proceeding (DC Dist Col) 1991 US Dist
LEXIS 12633, reported in full (DC Dist Col) 765 F Supp 1 and mod on other grounds
(DC Dist Col) 819 F Supp 69.
Footnote 54. Florida Terminals & Trucking Co. v United States (MD Fla) 363 F Supp
1355; Gables by the Sea, Inc. v Lee (SD Fla) 365 F Supp 826, 5 Envt Rep Cas 1974, affd
(CA5 Fla) 498 F2d 1340, cert den 419 US 1105, 42 L Ed 2d 801, 95 S Ct 775; Sierra
Club v Hardin (DC Colo) 325 F Supp 99, 1 ELR 20599.
On review of an agency's action, the District Court may not hear the case de novo, but is
limited to deciding whether: (1) the agency's decision was within the scope of its
authority; (2) if decision was substantially supported by the evidence; and (3) it did not
act fraudulently, arbitrarily or capriciously. Gaylord v Board of Educ., Unified School
Dist. No. 218, 14 Kan App 2d 462, 794 P2d 307.
Footnote 55. Camp v Pitts, 411 US 138, 36 L Ed 2d 106, 93 S Ct 1241.

Footnote 56. Arkansas Transit Homes, Inc. v Stone, 301 Ark 323, 783 SW2d 860 (further
stating that the court does not retry the cases or substitute its judgment for that of the
agency and accords due deference to the agency because of its expertise in passing on the
fact questions involved and because of its advantage of seeing and hearing the testimony
of the witnesses); Martens v Director of Revenue (Mo App) 819 SW2d 778.
Footnote 57. Martens v Director of Revenue (Mo App) 819 SW2d 778.
Footnote 58. Arkansas Transit Homes, Inc. v Stone, 301 Ark 323, 783 SW2d 860.
Footnote 59. Workers Compensation Fund v Silicone Distributing, Inc., 248 Kan 551,
809 P2d 1199.
Footnote 60. Louisville by Kuster v Milligan (Ky) 798 SW2d 454.
§ 546 De novo review under Administrative Procedure Act
View Entire Section

The Administrative Procedure Act 61 authorizes de novo review of agency action to

determine whether it was unwarranted by the facts in two circumstances: (1) when the
action is adjudicatory in nature and the agency factfinding procedures are inadequate, and
(2) when issues that were not before the agency are raised in a proceeding to enforce
nonadjudicatory agency action. 62
A party who claims that the agency utilized inadequate factfinding procedures has the
burden of proof of demonstrating how the procedures were inadequate. 63 In
conducting an inquiry as to whether an agency's factfinding procedures were adequate, a
district court should avoid operating under any hypertechnical and inflexible rule as to
what evidence is relevant to whether the factfinding process was adequate, nor should a
district court focus on the agency's procedure in the abstract. Rather the focus must be on
the implementation of that procedure in a given case. A party may be permitted to
introduce evidence on the preliminary question of the propriety of de novo review under
the APA even though such evidence may not be considered on the substantive question
before the agency if de novo review is denied. 64
An agency hearing officer does not lack impartiality so as to make factfinding procedures
inadequate by reason of the fact that the officer is an employee of the agency because
there is a presumption of honesty and integrity by an agency decisionmaker and the party
claiming otherwise has the burden of proof. 65
Footnotes
Footnote 61. 5 USCS § 706(2)(F).
Footnote 62. Camp v Pitts, 411 US 138, 36 L Ed 2d 106, 93 S Ct 1241; Citizens to

Preserve Overton Park, Inc. v Volpe, 401 US 402, 28 L Ed 2d 136, 91 S Ct 814, 2 Envt
Rep Cas 1250, 1 ELR 20110, ovrld on other grounds by Califano v Sanders, 430 US 99,
51 L Ed 2d 192, 97 S Ct 980, 42 Cal Comp Cas 1112.
Footnote 63. Moore v Madigan (WD Mo) 789 F Supp 1479, affd (CA8 Mo) 990 F2d 375,
reh den (CA8) 1993 US App LEXIS 10330 and cert den (US) 126 L Ed 2d 51, 114 S Ct
83.
Footnote 64. Acumenics Research & Technology v United States Dept. of Justice (CA4
Va) 843 F2d 800, 34 CCF ¶ 75470.
Footnote 65. Moore v Madigan (WD Mo) 789 F Supp 1479, affd (CA8 Mo) 990 F2d 375,
reh den (CA8) 1993 US App LEXIS 10330 and cert den (US) 126 L Ed 2d 51, 114 S Ct
83.
e. Mixed Law and Fact Question [547]
§ 547 Generally
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Courts should give deference to and uphold agency decisions involving mixed questions
of law and fact or of the application of specific factual situations to the legislative
enactment under which the agency operates so long as they fall within the bounds of
reasonableness and rationality. Mixed questions of law and fact, which require
application of specific technical fact situations to the statutes which an agency is
empowered to administer puts an agency in a better position than an appellate court to
evaluate the circumstances of the case in light of the agency mission. 66 Issues of mixed
law and fact are therefore often eliminated by an agency's expertise. 67
Mixed questions of law and fact require the court to engage in both legal 68 and fact 69
question review. The court determines the correct law independent of the agency's
decision and then applies it to the facts as found by the agency. 70
Case authorities:
Legal conclusions drawn by commission from its factual findings are subject to judicial
review. Cornwell Personnel Assocs., Ltd. v Labor & Indus. Review Comm'n (1993, App)
175 Wis 2d 537, 499 NW2d 705.
Footnotes
Footnote 66. Savage Industries, Inc. v Utah State Tax Com. (Utah) 811 P2d 664, 160
Utah Adv Rep 5; Vali Convalescent & Care Inst. v Division of Health Care Financing
(Utah App) 797 P2d 438, 140 Utah Adv Rep 21.
Where both mixed questions of fact and law are presented, deference will be given to the
agency's expertise and experience in the particular field. Dole Hawaii Division-Castle &
Cooke, Inc. v Ramil, 71 Hawaii 419, 794 P2d 1115.
Footnote 70. Henson v Employment Secur. Dept., 113 Wash 2d 374, 779 P2d 715.
Mixed questions of law and fact require the court to interpret the law de novo and apply
the law to the facts as found by the agency and upheld on review by the appellate court.
Puget Sound Water Quality Defense Fund v Metropolitan Seattle, 59 Wash App 613, 800
P2d 387.
D. Remedies [548-558]

Research References
5 USCS §§ 701-706; 28 USCS §§ 1361, 1651, 2201, 2202, 2241 et seq.
Model State Administrative Procedure Act (1981) §§ 5-101, 5-111, 5-117
Model State Administrative Procedure Act (1961) §§ 7, 15(g)
ALR Digests: Administrative Law §§ 223-227; Certiorari §§ 8, 13-16; Declaratory
Judgments §§ 1-11; Habeas Corpus §§ 1-3, 12; Injunction §§ 1-1.7, 8-13, 17-19,;
Prohibition §§ 1-7, 16, 17
ALR Index: Administrative Law; Certiorari; Injunction; Mandamus
2 Federal Procedural Forms, L Ed, Appeal, Certiorari, and Review §§ 3:521, 3:527,
3:1373, 3:1376; 8 Federal Procedural Forms, L Ed, Declaratory Judgments §§ 21:21,
21:22, 21:31, 21:35; 10 Federal Procedural Forms, L Ed, Habeas Corpus §§ 36:131,
36:139
1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Forms 72, 73, 147, 276, 296,
297, 312-316, 321-324, 326, 327, 331-333, 341-341.2, 342.1, 343-347, 351, 361,
362; 2 Am Jur Pl & Pr Forms (Rev), Appeal and Error, Forms 1180, 1241-1249
1. In General [548-553]
§ 548 Generally
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When reviewing final agency action, the reviewing court may reverse, modify or vacate
the action, or remand it to the agency for further proceedings. 71 The court may
reverse or modify the decision if the substantial rights of the petitioners may have been
prejudiced because the administrative finding, inferences, conclusion, or decisions are (1)
affected by other error of law or (2) unsupported by substantial evidence in view of the
entire record submitted. 72
 Comment: Under the l981 Model State Administrative Procedure Act, in granting
relief, the court may, inter alia, set aside or modify agency action, or remand the matter
for further proceedings. 73 If the court sets aside or modifies agency action or
remands the matter to the agency for further proceedings, the court may make any
interlocutory order it finds necessary to preserve the interests of the parties and the
public pending further proceedings or agency action. 74 Under the l961 Act, the court
may affirm the agency decision or remand the case. 75 The court may reverse or
modify the decision if substantial rights of the appellant have been prejudiced because
the administrative findings, inferences, conclusions, or decisions are (1) a violation of
constitutional or statutory provisions; (2) in excess of the statutory authority of the
agency; (3) made upon unlawful procedures; (4) affected by other error of law; (5)
clearly erroneous in view of the reliable, probative and substantial evidence on the
whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or
clearly unwarranted exercise of discretion. 76

Case authorities:
Prior Wisconsin Supreme Court case which held that because Wisconsin Fair
Employment Act was designed both to discourage discriminatory practices in workplace
and to make whole anyone discriminated against, and because legislature specifically
mandated that Act should be liberally construed, agency had power to award attorney's
fees to prevailing complainant did not provide basis for Wisconsin Personnel
Commission to order Department of Transportation to pay costs and attorney's fees
related to discovery motions filed by complainant, since there had been no finding that
complainant in instant case was discriminated against and there was no statute expressly
authorizing imposition of costs and attorney's fees against state related to discovery
motion. Wisconsin Dep't of Transp. v Wisconsin Personnel Comm'n (1993, App) 176
Wis 2d 731, 500 NW2d 664.
Footnotes
If a preponderance of reliable, probative and substantial evidence does not exist, the court
of common pleas may reverse, vacate, modify or remand. Families against Reily/Morgan
Sites v Butler County Bd. of Zoning Appeals (Butler Co) 56 Ohio App 3d 90, 564 NE2d
1113, dismd, motion overr 46 Ohio St 3d 709, 546 NE2d 944.
A judgment rendered, or final order may, by any tribunal, board or officer exercising
judicial functions, and inferior in jurisdiction to the District Court, may be reversed,
vacated or modified by the District Court. Thomas v Lincoln Public Schools, 228 Neb
11, 421 NW2d 8.
In a normal proceeding where unfair hearings have been found, the usual procedure is to
remit for a new hearing. Girard v Glens Falls (3d Dept) 173 App Div 2d 113, 577
NYS2d 496, app den 79 NY2d 757, 583 NYS2d 193, 592 NE2d 801.
Forms: Answer–Petition for review–Requesting affirmation of administrative findings

and decisions. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 296.
–Defense–Praying for dismissal of petition for review and enforcement of

administrative order. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form
297.
Order–Affirming administrative determination. 1A Am Jur Pl & Pr Forms (Rev),

Judgment or decree–Affirming administrative determination–Money judgment. 1A

–Reversing administrative determination–Adjusting accounts between petitioner and

administrative agency–Prohibiting agency from charging account of petitioner in
accord with determination made without notice. 1A Am Jur Pl & Pr Forms (Rev),
–Vacating administrative order–Ordering restoration of certificate or permit. 1A Am

–Clauses–Vacating administrative order–Directing restitution of moneys forfeited. 1A

–Requiring administrative official or agency to issue certificate or permit. 1A Am Jur

§ 549 Remedies under the Administrative Procedure Act
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The Administrative Procedure Act 77 provides that, in the absence or inadequacy of a

specific statutory form of review proceeding, judicial review of federal administrative
agency action may be had by any applicable form of legal action, including actions for
declaratory judgments, 78 writs of prohibitory or mandatory injunction, 79 or habeas
corpus, 80 in a court of competent jurisdiction. 81 Such actions may be brought
against the United States, the agency by its official title, or the appropriate officer. 82
Except to the extent that prior, adequate, and exclusive opportunity for judicial review is
provided by law, agency action is subject to judicial review in civil or criminal
proceedings for judicial enforcement. 83
The All Writs Act 84 may also be the source of remedial aid in a proper instance. 85

§ 549 ----Remedies under the Administrative Procedure Act [SUPPLEMENT]
Practice Aids: Complaint in federal court–For declaratory judgment and injunctive

relief–To review Labor Department's denial of labor certification for live-in domestic
worker. 1C Am Jur Pl & Pr Forms (Rev), Aliens and Citizens, § 13.
Case authorities:
Claim of former officer in Commissioned Corp of United States Public Health Service
under Administrative Procedure Act (APA) against Department of Health and Human
Services, alleging sexual harassment by her supervisor, is dismissed, because (1) claim
incorporates same allegations of Title VII claim and Title VII is exclusive remedy for
claims of discrimination in federal employment, and (2) APA is inapplicable in federal
Title VII cases. Carlson v United States Dep't of Health & Human Servs. (1995, DC Md)
879 F Supp 545, 66 CCH EPD ¶ 43533.
APA specifically provides that it does not establish jurisdiction over claims for money,
and court therefore has no jurisdiction to award hearing to plaintiffs seeking damages for
termination of services provided by Indian Health Services without opportunity to appeal
termination decision, where plaintiffs are not directly challenging their status. Allred v
United States (1995) 33 Fed Cl 349, 1995 US Claims LEXIS 94.
Footnotes
Footnote 77. 5 USCS §§ 701-706.
Footnote 82. As to proper parties on judicial review of administrative agency action, see
§§ 438 et seq.
The judicial branch of the government ordinarily may, through appeal, the writ of
mandamus, by injunction, or otherwise, correct any abuse of discretion by administrative
agencies or review their actions when arbitrary, illegal, capricious or unreasonable.
Annapolis v Annapolis Waterfront Co., 284 Md 383, 396 A2d 1080.
As to the exclusivity of statutorily mandated procedures for review of administrative

action, see § 422.

§ 550 Declaratory judgments
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The Declaratory Judgment Act 86 empowers federal courts, in controversies within

their jurisdiction, to declare the rights and other legal relations of any interested party
seeking such a declaration, whether or not further relief is or could be sought. 87
However, the Act provides that the remedy of a declaratory judgment is unavailable with
respect to federal taxes, other than actions specifically enumerated by the Internal
Revenue Code, 88 certain bankruptcy proceedings, 89 or any civil actions involving
an antidumping or countervailing duty proceeding regarding a class or kind of Canadian
merchandise, as determined by the administering authority. 90
The Act is procedural in nature and neither augments nor diminishes the jurisdiction of
the federal courts. 91 Because the Declaratory Judgment Act is remedial 92 rather
than jurisdictional, jurisdiction can be conferred only through the operation of some other
statute. 93 Consequently, a declaratory judgment court cannot grant further necessary or
proper relief as provided by statute 94 unless it has jurisdiction to do so. 95
Declaratory relief is discretionary. 96 However, the failure of a court to provide

such relief in a proper case is an abuse of discretion. 97 Before a court may properly
exercise its discretion to grant declaratory relief, it must take into account the usual
considerations governing the propriety of judicial review of administrative action,
including:
(1) preclusion of judicial review; 98
(2) primary jurisdiction; 99
(3) ripeness of the issue for review; 1 and
(4) exhaustion of administrative remedies. 2 The existence of an actual controversy

between the parties 3 is also a prerequisite to declaratory judgment. For example, lack
of the necessary controversy will prevent the issuance of a declaratory judgment where
the challenged governmental activity is only the right of a state-administered agency to
hold hearings on matters it believes to be within its jurisdiction. 4
Declaratory relief may be appropriate in cases in which injunctive relief 5 would be

improper. 6 The principal differences between the two are that: (1) a greater degree of
harm must be shown to justify granting an injunction, 7 and (2) declaratory relief is less
drastic in its effect than is injunctive relief. 8
court may grant any appropriate relief, including declaratory relief, and may render a
declaratory judgment. 9 The 1961 Model Act provides that the validity or
applicability of a rule may be determined in an action for declaratory judgment if it is
alleged that the rule, or its threatened application, interferes with or impairs, or
threatens to interfere with or impair, the legal rights or privileges of the plaintiff. 10
§ 550 ----Declaratory judgments [SUPPLEMENT]
Case authorities:
Suit by limited partnership against HUD was suit seeking payments to which it alleged it
was entitled pursuant to federal statute, not money as compensation for loss suffered; suit
was therefore not for money damages but for declaratory and other equitable relief, and
APA waived HUD statute of limitations. Sphere Drake Ins. PLC v Marine Towing (1994,
CA5 La) 16 F3d 666, motion den sub nom Badeaux v Marine Towing (ED La) 1994 US
Dist LEXIS 5154, motion gr sub nom Lawson v Marine Towing Co. (ED La) 1994 US
Dist LEXIS 5453 and reh, en banc, den (CA5 La) 1994 US App LEXIS 10168.
School districts' declaratory judgment suit to prevent the Commissioner of Education

from hearing aggrieved school employees' civil rights claims was inappropriate, where
employees of various school districts appealed school district decisions affecting them to
the Commissioner, alleging denial of due process of law and violations of Title 42 of the
United States Code, because Commissioner's jurisdiction extended to all persons
aggrieved by actions or decisions of any board of trustees, even though Commissioner
could not finally adjudicate all the claims or grant full relief. Texas Educ. Agency v
Cypress- Fairbanks I.S.D. (1992, Tex) 830 SW2d 88, rehg of cause overr (Jul 1, 1992).
Footnotes
Forms: Complaint–For declaratory judgment–General form [28 USCS § 2201; FRCP

8(a), 57]. 8 Federal Procedural Forms, L Ed, Declaratory Judgments § 21:21.
Petition in federal court–For review of administrative order–Before United States

Court of Appeals–On determinations, by secretary of U.S. executive department,
affecting branch of commerce or industry. 1A Am Jur Pl & Pr Forms (Rev),
Petition–For issuance of declaratory order–To terminate controversy or remove

uncertainty [5 USCS § 554(e)]. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law,
Form 72.
Footnote 87. As to the Declaratory Judgment Act and declaratory judgments in general,
see 22A Am Jur 2d, Declaratory Judgments §§ 1 et seq.
As to declaratory judgment actions involving federal taxes, see 22A Am Jur 2d,
Declaratory Judgments §§ 104 et seq.

Footnote 89. 11 USCS §§ 505, 1146.
Footnote 91. United States v Doherty (CA2 NY) 786 F2d 491, habeas corpus proceeding
(CA2 NY) 808 F2d 938.
As to jurisdiction for judicial review of federal administrative agency action, see §§

429-434.
Footnote 92. Skelly Oil Co. v Phillips Petroleum Co., 339 US 667, 94 L Ed 1194, 70 S
Ct 876 (superseded by statute on other grounds as stated in Horace Mann Ins. Co. v
Johnson (CA10 Okla) 953 F2d 575).
Footnote 93. Holmes v United States Bd. of Parole (CA7 Ill) 541 F2d 1243; Montana
Power Co. v Environmental Protection Agency (DC Mont) 429 F Supp 683, 9 Envt Rep
Cas 2096, 7 ELR 20496, later proceeding (CA9 Mont) 608 F2d 334, 13 Envt Rep Cas
1385, 9 ELR 20667.
Annotation: Actions under Declaratory Judgment Act as subject to limitations or

conditions of jurisdiction imposed by other statutes, 149 ALR 1103.
Footnote 95. United States v Doherty (CA2 NY) 786 F2d 491, habeas corpus proceeding
(CA2 NY) 808 F2d 938ec.

1507 (superseded by statute on other grounds as stated in Lubrizol Corp. v Train (CA6
Ohio) 547 F2d 310, 9 Envt Rep Cas 1478, 7 ELR 20106) and (ovrld on other grounds by
Califano v Sanders, 430 US 99, 51 L Ed 2d 192, 97 S Ct 980, 42 Cal Comp Cas 1112).
Footnote 97. Public Affairs Associates, Inc. v Rickover, 369 US 111, 7 L Ed 2d 604, 82
S Ct 580, 132 USPQ 535, on remand (DC Dist Col) 268 F Supp 444, 153 USPQ 598.
Footnote 98. §§ 472-484.
A proceeding for declaratory relief in itself does not operate to suspend the ordinary
requirement that a plaintiff exhaust administrative remedies before seeking judicial relief.
Construction Industries of Massachusetts v Commissioner of Labor & Industries, 406
Mass 162, 546 NE2d 367, 29 BNA WH Cas 1056, 114 CCH LC ¶ 56188.
Footnote 3. § 438.

Footnote 4. Power Authority of New York v Department of Environmental Conservation
(ND NY) 379 F Supp 243, 6 Envt Rep Cas 2001.
Forms: –Motion–To dismiss action for declaratory relief–Failure to present justiciable

controversy [28 USCS § 2201; FRCP 12(b)(6), 57]. 8 Federal Procedural Forms, L
Ed, Declaratory Judgments § 21:31.
Order–Dismissing action for declaratory relief–Failure to state justiciable controversy

[28 USCS § 2201; FRCP 12(b)(6), 57]. 8 Federal Procedural Forms, L Ed,
Declaratory Judgments § 21:35.
–For declaratory and ancillary relief against administrative regulation. 1A Am Jur Pl

–For declaratory and ancillary relief against administrative regulation of statute

affecting particular business–Class action. 1A Am Jur Pl & Pr Forms (Rev),
Footnote 5. § 552.
Footnote 6. Beacon Theatres, Inc. v Westover, 359 US 500, 3 L Ed 2d 988, 79 S Ct

948, 2 FR Serv 2d 650.
Footnote 7. § 552.
Footnote 8. Steffel v Thompson, 415 US 452, 39 L Ed 2d 505, 94 S Ct 1209,

conformed to (CA5 Ga) 494 F2d 691; Perez v Ledesma, 401 US 82, 27 L Ed 2d 701, 91
S Ct 674.
But see, Petition of D.A. Assoc., 150 Vt 18, 547 A2d 1325, reh den, en banc (Vt) 1988
Vt LEXIS 80, stating that the validity of an agency order is not an appropriate subject for
an agency declaratory ruling in that it is the purpose of such rulings to declare the rights
of the parties in the first instance, not where the rights already acted upon at the agency
level have been properly determined.
§ 551 Temporary remedies; stay
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Under the 1981 Model State Administrative Procedure Act, unless precluded by law, the
agency may grant a stay on appropriate terms or other temporary remedies during the
pendency of judicial review. 11 A party may file a motion in the reviewing court, during
the pendency of judicial review, seeking interlocutory review of the agency's action on an
application for stay or other temporary remedies. 12
If the agency has found that its action for application on stay or other temporary remedies
is justified to protect against a substantial threat to the public health, safety, or welfare,
the court may not grant relief unless it finds that: (1) the applicant is likely to prevail
when the court finally disposes of the matter; (2) without relief the applicant will suffer
irreparable injury; (3) the grant of relief to the applicant will not substantially harm other
parties to the proceeding; and (4) the threat to the public health, safety, or welfare relied
on by the agency is not sufficiently serious to justify the agency's action in the
circumstances. 13 If the above conditions do not exist, the court must grant relief if it
finds, in its independent judgment, that the agency's action on the application for stay or
other temporary remedies was unreasonable in circumstances. 14 Thus, the
responsibility for deciding a stay rests principally, as well as initially with the agency.
The function of the reviewing court, in passing on a motion for a stay, is not to
second-guess the agency, but to act in opposition only when the action of the
commissioner cannot be supported, or in cases where intervening events call into
question the advisability of the determination under the changed circumstances. 15
If the court determines that relief should be granted from the agency's action on an
application for stay or other temporary remedies, the court may remand the matter to the
agency with directions to deny a stay, to grant a stay on appropriate terms, or to grant
other temporary remedies, or the court may issue an order denying a stay, granting a stay
on appropriate terms, or granting other temporary remedies. 16
§ 551 ----Temporary remedies; stay [SUPPLEMENT]
Case authorities:
Anti-Injunction Act did not bar employer's suit claiming that NLRA preempted state
labor board's jurisdiction over employer's unfair labor practice charges against union; Act
applies only to federal injunctions to stay proceedings in state court, while employer was
seeking injunction against pending adjudication in state administrative agency. Bud Antle
v Barbosa (1995, CA9) 45 F3d 1261.
Footnotes
Annotation: Validity and construction of state statutory provision forbidding court to

stay, pending review, judgment or order revoking or suspending professional, trade, or
occupational license, 42 ALR4th 516.
Forms: Objections–To administrative order–Allegation–Irreparable injury to public

interest. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 147.

Findings of fact and conclusions of law–By federal court–Favoring temporary stay of
operation of determinations by federal official. 1A Am Jur Pl & Pr Forms (Rev),
Order–Granting stay of operation of administrative official's determinations. 1A Am

Footnote 15. Re Insurance Services Office, Inc., 148 Vt 634, 537 A2d 134.
§ 552 Injunctions
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Relief by way of mandatory injunction 17 is an extraordinary remedy granted in the

sound discretion of the court and only under compelling circumstances. 18 Injunction is
an appropriate remedy where the actions of a state officer or agency are beyond the scope
of their authority, violate official duties, destroy rights or privacy of the citizens, 19 or
are arbitrary and capricious, 20 and where there is no adequate remedy at law. 21
Where the discretionary power of an administrative agency is abused, the court has a
duty to issue injunctive restraint. 22
Before a court will grant an injunction, a complainant must make a showing of

irreparable injury. 23 Irreparable injury is a practical term, to be defined under
the facts of the particular case. 24 However, the definition will not usually include
increased litigation expenses, 25 temporary loss of income, 26 or damage to one's
reputation. 27
Courts will not grant injunctive relief which would improperly frustrate congressionally
mandated procedures. 28 Nor will they grant relief which would interrupt ongoing
agency procedures 29 unless the agency violates a petitioner's constitutional 30
or statutory rights, or a right created by a regulation, 31 or the issue involved is strictly
legal 32 and does not require the application of agency expertise. 33
The issuance of an injunction to stay agency proceedings is therefore very unusual, and
an injunction will only be granted under limited circumstances. 34 Where an
injunction is proper, it must be drawn with such specificity so as to remedy only the
particular harm complained of; an injunction drawn too broadly will not be upheld. 35
Where the elements necessary for an injunction to issue are not present, a court may
sometimes treat the request for an injunction as an application for a declaratory judgment.
36
reviewing court may grant injunctive relief. 37
§ 552 ----Injunctions [SUPPLEMENT]
Practice Aids: Complaint, petition or declaration–By retired government

employee–To enjoin administrative agency from modifying pension benefits
determination. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 477.
Case authorities:
Waiver of sovereign immunity contained in 5 USCS § 702 is not limited to suits brought
under APA, and is applicable to suit for injunctive relief brought to prevent closing of
naval shipyard as final act of allegedly illegal process, despite fact that President played
some role in that process. Specter v Garrett (1993, CA3 Pa) 995 F2d 404, petition for
certiorari filed (Aug 23, 1993).
Footnotes
Footnote 17. As to injunctions generally, see 42 Am Jur 2d, Injunctions §§ 1 et seq.
Footnote 18. Monroe v Middlebury Conservation Com., 187 Conn 476, 447 A2d 1.
Footnote 19. Toan v Falbo, 268 Ark 337, 595 SW2d 936.

Fed 400.
Necessity and propriety (under 28 USCS § 2281) of three-judge Federal District Court
in suit to enjoin enforcement of state statute or administrative order, 15 L Ed 2d 904).
Footnote 20. Toan v Falbo, 268 Ark 337, 595 SW2d 936; Hiers v Brownell, 376 Mich
225, 136 NW2d 10.
Footnote 21. Toan v Falbo, 268 Ark 337, 595 SW2d 936; Monroe v Middlebury
Conservation Com., 187 Conn 476, 447 A2d 1; Hiers v Brownell, 376 Mich 225, 136
NW2d 10.
Footnote 22. Hiers v Brownell, 376 Mich 225, 136 NW2d 10.
Forms: Complaint–For injunctive relief–To compel production of documents denied

following request under Freedom of Information Act [5 USCS § 552(a)(6)]–Waiver of
fees. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 73.
Complaint, petition, or declaration–To enjoin enforcement of administrative regulation

adversely affecting persons engaged in particular business or industry. 1A Am Jur Pl

–To enjoin enforcement of administrative regulation establishing drug testing

procedures for particular business, industry, or profession for which license is
required–Unlawful search and seizure–Violation of right to due process–Violation of
right to privacy. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 341.1.
–By license holder–Against administrative agency–To enjoin further proceedings to

suspend or revoke license–Attempt to suspend or revoke license on grounds not listed
in statute authorizing suspension or revocation of license. 1A Am Jur Pl & Pr Forms
(Rev), Administrative Law, Form 341.2.
–By retired government employee–To enjoin administrative agency from modifying

pension benefits determination. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law,
Form 342.1.
Motion–For interlocutory injunction pending review of administrative order–And for

temporary restraining order pending hearing on motion. 1A Am Jur Pl & Pr Forms
Motion in federal court–For temporary injunction–To stay execution of determinations

by federal official pending review under petition. 1A Am Jur Pl & Pr Forms (Rev),
Findings of fact and conclusions of law–Favoring granting of injunction against

administrative determination on complaint to agency. 1A Am Jur Pl & Pr Forms
(Rev), Administrative Law , Form 345.
–By federal court–Favoring temporary stay of operation of determinations by federal

official. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 346.
Footnote 23. Zwickler v Koota, 389 US 241, 19 L Ed 2d 444, 88 S Ct 391, on remand

(ED NY) 290 F Supp 244, revd on other grounds 394 US 103, 22 L Ed 2d 113, 89 S Ct
956; Katzenbach v McClung, 379 US 294, 13 L Ed 2d 290, 85 S Ct 377, 1 CCH EPD ¶
9713; Beacon Theatres, Inc. v Westover, 359 US 500, 3 L Ed 2d 988, 79 S Ct 948, 2
FR Serv 2d 650; Toan v Falbo, 268 Ark 337, 595 SW2d 936; Toan v Falbo, 268 Ark 337,
595 SW2d 936.
Footnote 24. Katzenbach v McClung, 379 US 294, 13 L Ed 2d 290, 85 S Ct 377, 1

CCH EPD ¶ 9713.
Forms: Objections–To administrative order–Allegation–Irreparable injury to public

interest. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 147.
Order–Temporarily staying enforcement of order revoking license–Irreparable loss and

damage. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 351.

94 S Ct 1028.
Footnote 26. Sampson v Murray, 415 US 61, 39 L Ed 2d 166, 94 S Ct 937.

Footnote 27. Boyle v Landry, 401 US 77, 27 L Ed 2d 696, 91 S Ct 758.
Footnote 28. Myers v Bethlehem Shipbuilding Corp., 303 US 41, 82 L Ed 638, 58 S Ct

459, 1 A BNA LRRM 575, 1 CCH LC ¶ 17024.
It is a long standing and well-established policy of this state that the District Court does
not have jurisdiction to restrain an administrative agency from performing its statutory
functions. State Board of Cosmetology v District Court of Denver, 187 Colo 175, 530
P2d 1278.
Footnote 30. Gibson v Berryhill, 411 US 564, 36 L Ed 2d 488, 93 S Ct 1689

(recognizing rule in the context of an action in federal court to enjoin the proceedings of
a state administrative agency); Fitzgerald v Hampton, 152 US App DC 1, 467 F2d 755,
app gr 409 US 1054, 34 L Ed 2d 507, 93 S Ct 547, stay gr 409 US 1055, 34 L Ed 2d
509, 93 S Ct 549, stay vac 409 US 1100, 34 L Ed 2d 682, 93 S Ct 888; Amos Treat &
Co. v SEC, 113 US App DC 100, 306 F2d 260.
Footnote 31. Leedom v Kyne, 358 US 184, 3 L Ed 2d 210, 79 S Ct 180, 43 BNA

LRRM 2222, 36 CCH LC ¶ 65085.
Footnote 33. Weinberger v Bentex Pharmaceuticals, Inc., 412 US 645, 37 L Ed 2d 235,

93 S Ct 2488.
375 US 943, 11 L Ed 2d 274, 84 S Ct 350.
The issuance of injunctions in proceedings related to the assessment or collection of taxes

is also limited by a provision in the Internal Revenue Code. 26 USCS § 7421(a).
As to actions for injunctions in proceedings related to the assessment or collection of

taxes, see 34 Am Jur 2d, Federal Taxation ¶ 9689.

Fed 400.
Footnote 35. Hartford-Empire Co. v United States, 323 US 386, 89 L Ed 322, 65 S Ct

373, 64 USPQ 18, clarified 324 US 570, 89 L Ed 1198, 65 S Ct 815, 65 USPQ 1, later
proceeding (CA6 Ohio) 573 F2d 1, 1978-1 CCH Trade Cases ¶ 61964, 25 FR Serv 2d
400.
Footnote 36. Zwickler v Koota, 389 US 241, 19 L Ed 2d 444, 88 S Ct 391, on remand

(ED NY) 290 F Supp 244, revd on other grounds 394 US 103, 22 L Ed 2d 113, 89 S Ct
956; Katzenbach v McClung, 379 US 294, 13 L Ed 2d 290, 85 S Ct 377, 1 CCH EPD ¶
9713.

As to declaratory judgments, see § 550.
§ 553 Habeas corpus
View Entire Section

Although habeas corpus is primarily employed as a post-conviction remedy, 38 it may

in some instances be appropriate as a vehicle for obtaining judicial review of
administrative actions. 39 Specifically, habeas corpus is useful in obtaining judicial
review of allegedly unconstitutional agency action 40 in the face of statutory
provisions making agency action "final," that is, precluding judicial review, 41
particularly in the areas of deportation and admission of aliens, 42 unlawful
detention of persons in the military, 43 and the confinement, treatment, and discipline of
inmates of correctional institutions. 44 Habeas corpus may also be appropriate to
challenge the propriety of hospital regulations. 45
Before a court may grant a writ of habeas corpus, 46 the applicant must exhaust
administrative remedies 47 and meet the requirements of the Judicial Code. 48 It
should be noted that the provision of the Code which directs the courts to "summarily
hear and determine the facts, and dispose of the matter as law and justice require" 49
may permit a court to choose a more appropriate form of relief, even though habeas
corpus is the sole relief requested in the pleadings. 50
Footnotes
Footnote 38. As to habeas corpus generally, see 39 Am Jur 2d, Habeas Corpus §§ 1 et
seq.
Forms: Petition–For writ of habeas corpus [28 USCS § 2241(a); S Ct Rule 20]. 2
Federal Procedural Forms, L Ed, Appeal, Certiorari, and Review § 3:1376.
Petition–For writ of habeas corpus ad subjiciendum–General form [28 USCS §

2241(c); FRCP 81(a)(2)]. 10 Federal Procedural Forms, L Ed, Habeas Corpus §
36:131.
Writ of habeas corpus [28 USCS § 2243; FRCP 81(a)(2)]. 10 Federal Procedural
Forms, L Ed, Habeas Corpus § 36:139.
Footnote 40. Heikkila v Barber, 345 US 229, 97 L Ed 972, 73 S Ct 603, reh den 345
US 946, 97 L Ed 1371, 73 S Ct 828.

Footnote 42. As to habeas corpus proceedings in the areas of immigration and

naturalization, see 3A Am Jur 2d, Aliens and Citizens §§ 783, 784, 788, 1114, 1253,
1255, 1263-1266, 1276, 1278, 1280.
Footnote 43. As to habeas corpus proceedings in military matters, see 39 Am Jur 2d,
Habeas Corpus §§ 101-104.
Footnote 44. As to the extension of the writ of habeas corpus to prisoners generally, see
39 Am Jur 2d, Habeas Corpus §§ 64 et seq.
Annotation: Propriety of federal court's considering state prisoner's petition under 28

USCS § 2254 where prisoner has exhausted state remedies as to some, but not all,
claims in petition, 43 ALR Fed 631.
Footnote 45. Jones v Robinson, 142 US App DC 221, 440 F2d 249; Covington v Harris,
136 US App DC 35, 419 F2d 617; Miller v Overholser, 92 US App DC 110, 206 F2d
415.
Footnote 46. Parisi v Davidson, 405 US 34, 31 L Ed 2d 17, 92 S Ct 815, conformed to

(CA9) 456 F2d 686.
Footnote 47. As to the doctrine of exhaustion of administrative remedies, generally, see

§§ 505-512.
Footnote 50. Carafas v La Vallee, 391 US 234, 20 L Ed 2d 554, 88 S Ct 1556; Peyton v

Rowe, 391 US 54, 20 L Ed 2d 426, 88 S Ct 1549.
2. All Writs Act [554-557]
§ 554 Generally
View Entire Section

The All Writs Act 51 empowers the federal courts to issue all writs necessary or
appropriate in aid of their jurisdiction and agreeable to the usages and principles of law.
52 The All Writs Act is not an independent grant of jurisdiction to a court; it merely
permits a court to issue writs in aid of jurisdiction acquired to grant some other form of
relief. 53 Although the statute is not jurisdictional, once a court properly has jurisdiction
under another statute it may apply any remedy which may be appropriate, even though
the jurisdictional statute does not specifically authorize the particular remedy invoked. 54
Furthermore, the authority of the appellate court is not confined to the issuance of writs
in aid of jurisdiction already acquired by appeal, but extends to those cases which are
within its appellate jurisdiction although no appeal has been perfected. 55 In other
words, the Act empowers a federal court to issue writs of mandamus necessary to protect
its prospective jurisdiction. 56
The All Writs Act may also be available for interim relief 57 in cases where an agency
has clearly abused its power. 58
Footnotes
Footnote 52. As to the All Writs Act and extraordinary writs generally, see 32 Am Jur 2d,
Federal Practice and Procedure §§ 253-266.
Col) 810 F Supp 1308).
Footnote 54. Adams v United States, 317 US 269, 87 L Ed 268, 63 S Ct 236, 143 ALR
435, reh den 317 US 713, 87 L Ed 568.
Col) 810 F Supp 1308).
Col) 810 F Supp 1308).
Footnote 57. As to judicial review of nonfinal agency action generally, see § 500.
Footnote 58. Bankers Life & Casualty Co. v Holland, 346 US 379, 98 L Ed 106, 74 S
Ct 145.
§ 555 Mandamus
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Go to Supplement
The writ of mandamus is an extraordinary remedy 59 to be applied only under

exceptional conditions, and is not to be extended beyond its well-established limits.
Mandamus is the traditional remedy for the failure of the public official to perform a
legal duty 60 and is the appropriate remedy in situations where: (1) the duty to be
performed is ministerial; (2) the party applying for the writ has a clear legal right to have
the duty performed; and (3) there is no other sufficient remedy. 61 Therefore, an action
in mandamus lies only where the defendant owes a clear nondiscretionary duty, and only
when the plaintiff has exhausted all other avenues of relief and review by other means is
not possible. 62 A petitioner may not invoke mandamus as a mere substitute for
appeal, but may do so only where an appeal by means of a petition for judicial review can
promise no more than a clearly inadequate remedy. 63
Mandamus is chiefly employed to compel a performance (when refused) of administerial

duties, or to compel action (when refused) in matters involving judgment or discretion.
64 Thus, mandamus will lie to: (1) compel a public official to perform an official act
required by law; (2) to compel an official both to exercise discretion (if required by law
to do so) and to exercise it under a proper interpretation of the applicable law; and (3) to
correct an abuse of discretion by an official acting in an administrative capacity. 65
Mandamus may also be used to prevent action which is arbitrary and capricious or an
abuse of discretion, in a proper case. 66
Mandamus will not lie to compel an agency to exercise its discretion in a particular way
67 or to direct the retraction or reversal of an action already taken. 68
A remedy "in the nature of" mandamus is made available by statute 69
Remedies available under mandamus are co-extensive with those available under the
Administrative Procedure Act 70 which provides that a reviewing court may compel
agency action unlawfully withheld or unreasonably delayed. 71 Thus, claims of
unreasonable agency delay represent one narrow class of cases which is within an
appellate court's mandamus jurisdiction. 72
§ 555 ----Mandamus [SUPPLEMENT]
Practice Aids: Administrative mandamus as a prerequisite to inverse condemnation:

"Healing" California's confused takings law, 22 Pepp LR 1:99-129 (1995).
Footnotes
Footnote 59. Allied Chemical Corp. v Daiflon, Inc., 449 US 33, 66 L Ed 2d 193, 101 S
Ct 188, 1980-81 CCH Trade Cases ¶ 63620, 30 FR Serv 2d 653.
As to mandamus generally, see 32 Am Jur 2d, Federal Practice and Procedure §§

255-264.
Cal Rptr 574, 777 P2d 610.
Footnote 61. Monroe v Middlebury Conservation Com., 187 Conn 476, 447 A2d 1.
The remedy of mandamus is foreclosed when another adequate remedy at law or equity is
available. Keystone, Div. of Ralston Purina Co. v Flynn (Colo) 769 P2d 484; Common

Cause of California v Board of Supervisors, 49 Cal 3d 432, 261 Cal Rptr 574, 777 P2d
610.
As to mandamus, generally, see 52 Am Jur 2d, Mandamus §§ 1 et seq.
Footnote 62. Pittston Coal Group v Sebben, 488 US 105, 102 L Ed 2d 408, 109 S Ct
414, motion den (US) 115 L Ed 2d 1050, 111 S Ct 2885; Heckler v Ringer, 466 US
602, 80 L Ed 2d 622, 104 S Ct 2013.
Jurisdiction in not available by means of a writ of mandamus sought in District Court to

address a matter which by statute is reserved for judicial review in the Court of Appeals,
in suit by leaded fuel refiner to reallocate lead credits established by EPA. Farmers
Union Cent. Exchange, Inc. v Thomas (CA9 Mont) 881 F2d 757, 30 Envt Rep Cas 1504,
20 ELR 20013.
Footnote 63. Re GTE Service Corp., 246 US App DC 45, 762 F2d 1024.
Footnote 64. Pennsylvania Dental Asso. v Commonwealth Ins. Dept., 512 Pa 217, 516
A2d 647, app den 512 Pa 234, 516 A2d 656.
Cal Rptr 574, 777 P2d 610.
Law Reviews: Walker. Judicially created uncertainty: the past, present, and future of
the California writ of administrative mandamus. 24 UC Davis LR 783 (Spring 1991).
Annotation: Mandamus to compel zoning officials to cancel permit granted in

violation of zoning regulation, 68 ALR3d 166, §§ 6, 7.
Footnote 66. Work v United States, 267 US 175, 69 L Ed 561, 45 S Ct 252; United
States ex rel. Knight v Lane, 228 US 6, 57 L Ed 709, 33 S Ct 407.
As to the "arbitrary, capricious, or abuse of discretion" standard of judicial review, see

§§ 529 et seq.
Cal Rptr 574, 777 P2d 610; Keystone, Div. of Ralston Purina Co. v Flynn (Colo) 769 P2d
484; Pennsylvania Dental Asso. v Commonwealth Ins. Dept., 512 Pa 217, 516 A2d 647,
app den 512 Pa 234, 516 A2d 656.
Footnote 68. Pennsylvania Dental Asso. v Commonwealth Ins. Dept., 512 Pa 217, 516
A2d 647, app den 512 Pa 234, 516 A2d 656.
Forms: Petition–For writ of prohibition or mandamus in aid of jurisdiction [28 USCS

§ 1651(a); FRAP 21(a)]. 2 Federal Procedural Forms, L Ed, Appeal, Certiorari, and
Review § 3:521.
Answer–To petition for writ of mandamus or prohibition [28 USCS § 1651; FRAP
21(b)]. 2 Federal Procedural Forms, L Ed, Appeal, Certiorari, and Review § 3:527.

Motion for leave to file petition, and petition–For writ of prohibition and/or mandamus
[28 USCS § 1651(a); S Ct Rules 20]. 2 Federal Procedural Rules, L Ed, Appeal,
Petition or application–Refusal of administrative agency to act on petition. 1A Am Jur

–Refusal of administrative official to issue certificate or permit. 1A Am Jur Pl & Pr

–Subsequent to order for issuance by administrative board. 1A Am Jur Pl & Pr Forms

–To compel approval of matters submitted after arbitrary disapproval by administrative

agency. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 324.
Judgment or decree–For peremptory writ requiring issuance of order by administrative

agency. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 326.
–Requiring administrative official or agency to issue certificate or permit. 1A Am Jur

Footnote 71. Conservation Law Foundation, Inc. v Clark (DC Mass) 590 F Supp 1467,
21 Envt Rep Cas 1256, later proceeding (DC Mass) 1988 US Dist LEXIS 17249, affd
(CA1 Mass) 864 F2d 954, 19 ELR 20631.
As to agency action unreasonably delayed, see § 2:, see § 212, supra.
Col) 810 F Supp 1308).
§ 556 Prohibition
View Entire Section

The writ of prohibition 73 is not available for review of administrative action unless
usurpation or excessive exercise of jurisdiction is clearly shown. 74 Even where
such a showing is made, a court will not grant prohibition if an adequate and complete
alternative remedy is available. 75
Footnotes

Footnote 73. As to extraordinary writs generally, 32 Am Jur 2d, Federal Practice and
Procedure §§ 253-266.
Footnote 74. Thompson Products, Inc. v NLRB (CA6) 133 F2d 637, 12 BNA LRRM
501, 6 CCH LC ¶ 61461.
Forms: Petition–For writ of prohibition or mandamus in aid of jurisdiction [28 USCS

§ 1651(a); FRAP 21(a)]. 2 Federal Procedural Forms, L Ed, Appeal, Certiorari, and
Review § 3:521.
Answer–To petition for writ of mandamus or prohibition [28 USCS § 1651; FRAP
Motion for leave to file petition, and petition–For writ of prohibition and/or mandamus
[28 USCS § 1651(a); S Ct Rules 20]. 2 Federal Procedural Forms, L Ed, Appeal,
Forms: Petition or application–To restrain administrative agency from hearing charges

against petitioner–Lack of jurisdiction. 1A Am Jur Pl & Pr Forms (Rev),
Judgment or decree–Granting writ of prohibition against enforcement of administrative

order. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form 333.
Footnote 75. Kabadian v Doak, 62 App DC 114, 65 F2d 202, cert den 290 US 661, 78 L
Ed 572, 54 S Ct 76.
§ 557 Certiorari
View Entire Section

Common law certiorari is available to review legal questions involved in an

administrative agency's decision where statutory appeal is either inadequate to address
the issue or is not available. Only questions of law are raised in a common law certiorari
proceeding, and the procedure cannot be used to review an agency's exercise of
legislative or judicial discretion. The issues addressed by common law certiorari are: (1)
whether the agency acted within its discretion; (2) whether the agency acted according to
law; (3) whether the agency's action was arbitrary, oppressive or unreasonable so as to
represent its will and not its judgment; and (4) whether the evidence before the agency
was such that it might reasonably make the determination it did. 76
Generally, a writ of certiorari will not issue where a plain, adequate, and speedy remedy
at law exists. 77 An exception to this principle exists when the interests of justice
demand the issuance of the writ, that is, the court has exclusive jurisdiction to issue a
common law writ of certiorari on occasions in which available remedies are inadequate to
safeguard a litigant from substantial harm or injustice. 78 A writ of certiorari will also
lie where the right to appeal has been denied or lost otherwise than by a party's own fault.
79 Petitioners need only make a prima facie showing for issuance of the writ, including
lack of an adequate remedy at law and substantial injury to petitioners if the court does
not issue the writ. 80
Certiorari review is limited to review of the record made before the agency and questions
of law presented to it. Upon this limited review, the trial court must affirm the judgment
of personnel if there is any substantial or legal evidence to support its finding. 81
Footnotes
Footnote 76. Franklin v Housing Authority of Milwaukee (App) 155 Wis 2d 419, 455
NW2d 668; Schmidt v Employee Trust Funds Bd., 153 Wis 2d 35, 449 NW2d 268.
Certiorari shall only be granted where an inferior tribunal, board, or officer, exercising
judicial functions is alleged to have exceeded its jurisdiction or otherwise acted illegally.
Tindal v Norman (Iowa) 427 NW2d 871.
Where no right of discretionary review has been provided by statute or appellate rules for
the quasi-judicial decision of an administrative agency or an administrative law judge, an
aggrieved party has the common law right to petition for a writ of certiorari. Re Haymes
(Minn) 444 NW2d 257.
Annotation: Statute providing for judicial review of administrative order revoking or

suspending automobile driver's license as providing for trial de novo, 97 ALR2d 1367.
Existence of jurisdictional facts found by inferior tribunal as subject of inquiry on

certiorari, 5 ALR2d 675.
Footnote 77. Eldorado at Santa Fe, Inc. v Cook (NM App) 822 P2d 672.
Footnote 78. Ratcliffe v Coastal Resources Management Council (RI) 584 A2d 1107.
Where, due to the error in the publication notice, petitioners failed to receive notice of the
application of the city for a permit to drill a replacement water well, petitioners lost their
right of appeal without any fault or negligence on their part, a writ of certiorari will lie,
assuming petitioners make a prima facie showing of injury. Eldorado at Santa Fe, Inc. v
Cook (NM App) 822 P2d 672.
Footnote 81. Board of Water & Sewer Comrs. v Smith (Ala App) 591 So 2d 521, cert
den, without op (Ala) 1991 Ala LEXIS 1274.
3. Actions for Money Damages [558]

§ 558 Generally
View Entire Section

Go to Supplement
The Administrative Procedure Act 82 waives sovereign immunity for suits challenging
agency actions, but specifically excludes from this waiver suits seeking money damages.
83 The legislative history of the APA provision granting right of review 84
demonstrates that the exception pertaining to "money damages" should not be broadened
beyond the meaning of its plain language. The term "money damages" is not synonymous
with the term "monetary relief": the fact that a judicial remedy may require one party to
pay money to another is not a sufficient reason to characterize the relief as money
damages under the APA. 85 There is a fundamental distinction between "damages,"
which are sums of money used as compensatory relief, and "specific relief," which are
not substitute remedies at all, but attempt to give the plaintiff the very thing to which the
plaintiff was entitled. 86 The APA section providing for judicial review of agency
actions 87 does not foreclose judicial review by a federal district court of a state action
seeking enforcement of a statutory entitlement to receive withheld federal grant-in-aid
money, as the action is one for specific relief and not for money damages. 88 But, an
award of back pay is properly characterized as money damages, and therefore suits
seeking such awards are outside the scope of 5 USCS § 702's waiver of sovereign
immunity. 89
 Comment: The l981 Model State Administrative Procedure Act provides that the
provisions of the Act for judicial review do not apply to litigation in which the sole
issue is a claim for money damages or compensation and the agency whose action is at
issue does not have statutory authority to determine the claim. 90 It also provides that
the court may award damages or compensation only to the extent expressly authorized
by another provision of law. 91
Practice Aids: Permissibility of award of damages, or suit in federal court to enforce

such award, against state agency under Randolph-Sheppard Vending Stand Act (20
USCS §§ 107 et seq.) 117 ALR Fed 503.
Case authorities:
When appropriation under which claimant seeks injunctive relief has lapsed or been fully
obligated, federal courts are without authority to provide monetary relief; even if funds
were available from other source, claim would be for monetary damages and would not
be authorized by APA. City of Houston v Department of Hous. & Urban Dev. (1994,
App DC) 306 US App DC 313, 24 F3d 1421.
Footnotes

Footnote 86. Bowen v Massachusetts, 487 US 879, 101 L Ed 2d 749, 108 S Ct 2722;
National Asso. of Counties v Baker, 268 US App DC 373, 842 F2d 369, cert den 488 US
1005, 102 L Ed 2d 775, 109 S Ct 784.
Footnote 88. Bowen v Massachusetts, 487 US 879, 101 L Ed 2d 749, 108 S Ct 2722,
further stating that the State's suit is not a suit seeking money in compensation for the
damage sustained by the failure of the Federal Government to pay as mandated; rather, it
is a suit seeking to enforce the statutory mandate itself, which happens to be one for the
payment of money).
Footnote 89. Sibley v Ball (CA1 Mass) 924 F2d 25; Hubbard v Administrator, EPA (App
DC) 299 US App DC 143, 982 F2d 531.
Footnote 90. Model State Administrative Procedure Act (l981) § 5-101.
Footnote 91. Model State Administrative Procedure Act (l981) § 5-117(a).
E. Procedure to Obtain, and Present Questions for, Review [559-581]
Research References
5 USCS §§ 701-706; 28 USCS §§ 2341-2350
Model State Administrative Procedure Act (1961) §§ 8, 15; (1981) 5-102 to 5-105, 5-108
to 5-110, 5-112
FRCP 3, 5, 8, 10, 12, 15, 55
FRAP 3, 4, 15-20, 26
1. Introduction [559, 560]
§ 559 Generally
View Entire Section

Go to Supplement

A court has the power to review an administrative action as provided by law 92 and in
judicial review proceedings, a District Court exercises only appellate jurisdiction and has
no original authority to declare the rights of the parties or the applicability of any statute
or rule. 93 The right to appeal an administrative agency's decision is purely statutory,
and an appeal taken without statutory authority must be dismissed for want of
jurisdiction. 94 In addition, strict compliance with statutes creating the right to appeal
from administrative agency decisions is required. 95
Before the jurisdiction of a court may be invoked for review of an administrative action,
a plaintiff must comply with all statutorily provided procedures, not merely the
requirement that a petition for review be timely filed. 96 For example, a plaintiff must
meet the requisites for the content of a verified petition. 97 Furthermore, an
administrative appeal must include a proper citation in order to invoke the jurisdiction of
the court. An improperly executed citation, however, implicates the personal jurisdiction
of the court, and does not affect the subject matter jurisdiction of the court.
Consequently, as a defect in allowing a court to acquire personal jurisdiction over a
defendant, an improperly executed citation may be waived by the defendant. 98
Once a court acquires jurisdiction to review an administrative agency's decision, that

court retains jurisdiction of the action until final disposition. Therefore, a court retains
jurisdiction of an action after remanding to an agency for a rehearing and a petitioner is
not required to follow the statutory procedure required when initiating an administrative
review when she seeks to review the rehearing order. 99
A court on review can only act within the jurisdiction conferred by law, and this cannot
be enlarged by waiver, consent, or acquiescence of the parties. Consequently, lack of
jurisdiction, unlike improper venue, may not be cured by consent of the parties. 1 Lack
of subject matter jurisdiction renders any judgment entered in the proceedings subject to
collateral attack and it may be raised at any time. 2
A final administrative decision made upon remand by a court for a factual determination
is subject to judicial review. 3 While a party may seek judicial review of an
administrative decision made pursuant to a judicial remand, the party must exhaust her
administrative remedies before returning to court a second time. 4
Case authorities:
Because redesignation of agency advocating for rights of persons with developmental

disabilities is neither approval nor modification of plan, nor withholding of funds,
Developmental Disabilites Assistance and Bill of Rights Act does not give court
jurisdiction, either alone or with 5 USCS § 702, to hear appeal by government of Guam
from Secretary of Health and Human Services's refusal to permit governor to redesignate
agency. Office of Governor v Department of Health & Human Servs., Admin. on Dev.
Disability (1993, CA9) 997 F2d 1290, 93 CDOS 4772, 93 Daily Journal DAR 8113.
Landowners' claims against group developing abandoned rail lines for interim trail use
must be dismissed, where landowners allege their private property rights underlying rail
easements have been taken in violation of § 1983 and Fifth Amendment, and assert
violation of 16 USCS § 1247(d) by group's failure to negotiate with them or recognize
their legal rights, because both these claims challenge ICC's final Notice of Interim Trail
Use, and must be directed to Ninth Circuit under 28 USCS § 2342. Dave v Rails to
Trails Conservancy (1994, ED Wash) 863 F Supp 1285.
Review of an agency decision under G.S. § 150B-51(a) allows the court to determine
whether the "agency's decision states the specific reasons why the agency did not adopt
the [administrative law judge's] recommended decision," but that statute does not entitle
petitioner to review of whether those stated reasons were correct. Oates v North Carolina
Dep't of Correction (1994) 114 NC App 597, 442 SE2d 542.
A superior court judgment was vacated and remanded where plaintiff was dismissed; had
a hearing before an administrative law judge; another hearing before the State Personnel
Commission, which adopted the administrative law judge's findings that the dismissal be
left undisturbed; filed an action in superior court requesting a trial on the record
developed before the administrative law judge pursuant to GS § 126-37(b); and the
superior court conducted a hearing on the record and made its own findings and
conclusions, deciding that plaintiff was not dismissed for just cause. The superior court
treated the statute as creating a cause of action in which the court could make its own
findings of fact and substitute its own judgment for the Commission's and, in doing so,
exceeded its jurisdiction over state employee grievances. Allowing a new cause of action
at this point, after prior administrative hearings have been conducted, is senseless in that
it interrupts the logical progression on an employee's action from the administrative
hearing to appellate review in the superior court. Mitchell v Thornton, 94 N.C. App. 313,
was implicitly overruled by Harding v North Carolina Dept. of Correction, 334 N.C. 414.
Hill v Morton (1994) 115 NC App 390, 444 SE2d 683.
It is well established in Wisconsin that where there are no statutory provisions for
judicial review, action of board or commission may be reviewed by way of certiorari.
State ex rel. Iushewitz v Milwaukee County Personnel Review Bd. (1993, App) 176 Wis
2d 706, 500 NW2d 634.
Footnotes
Footnote 92. Daley v Zebra Zone Lounge, Inc. (1st Dist) 236 Ill App 3d 511, 177 Ill Dec
715, 603 NE2d 785.
Law Reviews: Project: State judicial review of administrative action. 43 Admin LR

571 (1991).
Footnote 93. Ft. Dodge Secur. Police, Inc. v Iowa Dept. of Revenue (Iowa App) 414
NW2d 666.
(Ala App) 587 So 2d 1210.
For a discussion of the statutory bases of jurisdiction, see § 422.
Footnote 95. Korean Buddhist Dae Won Sa Temple of Hawaii, Inc. v Zoning Bd. of
Appeals, 9 Hawaii App 298, 837 P2d 311, cert dismd (Hawaii) 843 P2d 144.

Footnote 96. The time requirements for filing petitions for review are discussed in § 569.
Footnote 97. Prohosky v Department of Natural Resources (Ind App) 599 NE2d 611.
Regarding the form and content requirements for petitions for review, see § 564.
Footnote 98. Brunswick v Inland Wetlands Com., 222 Conn 541, 610 A2d 1260, on
remand, remanded 29 Conn App 634, 617 A2d 466.
Footnote 1. § 426.
Footnote 2. McNea v Cleveland (Cuyahoga Co) 78 Ohio App 3d 123, 603 NE2d 1158.
Footnote 3. Indiana Dept. of Public Welfare v Chair Lance Service, Inc. (Ind) 523 NE2d
1373.
1373.
The requirement that a party exhaust its administrative remedies prior to initially seeking
judicial review is discussed in §§ 505-509.
§ 560 Requirement of application for rehearing, reconsideration, or modification
View Entire Section

Some statutes relating to particular agencies provide that no cause of action shall accrue
in any court 5 or no proceeding to review any order of the agency shall be brought 6
by any person unless such person shall have made application to the agency for a
rehearing on the order or decision involved. Other statutes provide that a petition for
statutory review must be filed within a specified time after an application for rehearing is
denied or after rendition of decision on a rehearing, and they also are deemed to make it
necessary to file a petition for rehearing and procure a ruling thereon before the matter
can be reviewed in court. 7 Such provisions reflect the policy that a party must exhaust
her administrative remedies before seeking judicial review. 8
Some statutes also declare that an appellant or person seeking relief may not rely upon
grounds for relief that were not set forth in her petition for rehearing before the agency 9
unless there is reasonable ground for failure so to do. 10 Where such a statute
applies it not only bars the aggrieved party from raising an objection not urged on
rehearing, but also precludes the court itself from raising, considering, and sustaining the
same objection sua sponte. 11
A motion for reconsideration generally tolls the time for appeal from the original
decision. 12 The Interstate Commerce Commission's denial of a petition to reopen and
reconsider its order is subject to judicial review only if the petition alleges new evidence
or changed circumstances that render the Commission's original order inappropriate.
Consequently, a petition to reopen or reconsider that is based only upon material error in
the original Commission decision on the same record that was before the Commission
when it rendered its original decision is not subject to judicial review and will be
dismissed for lack of jurisdiction. 13 In contrast, when the Interstate Commerce
Commission reopens a proceeding for any reason and after reconsideration issues a new
and final order setting forth the rights and obligations of the party, that order is subject to
judicial review on its merits, even if it merely reaffirms the rights and obligations set
forth in the original order. If the Commission goes beyond clarification of an ambiguity
and in the guise of interpreting an original order in fact revises it, that constitutes a new
order that is immediately appealable. 14
Footnotes
Footnote 5. State ex rel. Alton R. Co. v Public Service Com., 348 Mo 780, 155 SW2d
149 (application must be timely); Warner v Ohio Edison Co., 152 Ohio St 303, 40 Ohio
Ops 355, 89 NE2d 463.
583, 75 S Ct 467, 4 OGR 897; Federal Power Com. v Metropolitan Edison Co., 304 US
375, 82 L Ed 1408, 58 S Ct 963.
Footnote 7. Ross v Industrial Com., 82 Ariz 9, 307 P2d 612.
583, 75 S Ct 467, 4 OGR 897.
Footnote 9. State ex rel. Anderson Motor Service Co. v Public Service Com., 339 Mo
469, 97 SW2d 116; State ex rel. Utilities Com. v Mead Corp., 238 NC 451, 78 SE2d 290;
Warner v Ohio Edison Co., 152 Ohio St 303, 40 Ohio Ops 355, 89 NE2d 463.
583, 75 S Ct 467, 4 OGR 897 (rejecting a contention that the application for rehearing
did, in substance, raise the particular question involved); Panhandle Eastern Pipe Line
Co. v Federal Power Com., 324 US 635, 89 L Ed 1241, 65 S Ct 821, reh den 325 US
892, 89 L Ed 2004, 65 S Ct 821.
583, 75 S Ct 467, 4 OGR 897.



2. Instituting Proceedings [561-577]
a. Filing and Serving Papers [561-568]
§ 561 Generally; applicable rules
View Entire Section

Where a forum for review and the procedure to be followed on review therein are
statutorily prescribed, the provisions of the statute are, of course, controlling. Where a
statute designates the forum but makes no provision regarding procedural particulars,
procedure may be governed, in the case of a Court of Appeals, by a general review
statute such as the Hobbs Act, 15 the Federal Rules of Appellate Procedure, 16 and any
applicable rules of court; or, in the case of a Federal District Court, by the provisions of
the Administrative Procedure Act 17 in conjunction with the Federal Rules of Civil
Procedure 18 and applicable local court rules. 19 The Administrative Procedure Act
authorizes an action for review of final agency action in the district courts to the extent
that other statutory procedures for review are inadequate. 20
When undertaking review of an administrative agency's order of adjudication, a trial

court acts in a limited appellate capacity. The determination of whether the order of the
agency can withstand the standard of review prescribed by statute is essentially a
question of law for the trial court. 21
 Observation: The Federal Rules of Appellate Procedure are expressly applicable to

administrative review proceedings, and explicit references to administrative review are
sprinkled throughout the rules; however, FRAP 20 makes several of the rules
inapplicable to such proceedings.
Footnotes
Footnote 16. FRAP 15-20.
Footnote 17. 5 USCS §§ 701-706.
Footnote 18. As to the applicability of the Federal Rules of Civil Procedure to

proceedings in the Federal District Courts generally, see 32 Am Jur 2d, Federal Practice
and Procedure §§ 502-530.
Footnote 19. As to local Federal District Court rules generally, see 32 Am Jur 2d,
Federal Practice and Procedure §§ 521-530.

104 S Ct 1936, 10 Media L R 1685.
Footnote 21. University Hosp., University of Cincinnati College of Medicine v State

Employment Relations Bd., 63 Ohio St 3d 339, 587 NE2d 835, 140 BNA LRRM 2187,
reh den 63 Ohio St 3d 1459, 590 NE2d 753.
§ 562 Notice of appeal; petitions for review
View Entire Section

Go to Supplement
Judicial review of a state agency's action is generally initiated by filing a petition for
review 22 or a copy or the original of a notice of appeal 23 in the appropriate court.
A petition for review must be filed with the clerk of the court 24 and the petition may
seek any type of relief available under the applicable statute. 25 A court is without
jurisdiction to hear an appeal where no application for appeal has been made and the
notice of appeal is not timely filed. 26 It is, however, possible that a state's appeal
process might not require an appellant to file a notice of appeal with the agency clerk
within the time limit for filing an appeal. 27 A petitioner may file a supplemental
complaint challenging agency action that occurs subsequent to the petitioner's first
complaint, rather than initiating a second, separate action. 28
When a state's statute requires that a petition for judicial review be verified, the
verification of a petition by a corporation's attorneys is consistent with the purpose of the
statute's verification requirement if the attorneys have express authority to sue on the
corporation's behalf and the attorneys also have personal knowledge of the facts in the
verified petition. 29
Judicial review of federal administrative action is initiated in the Courts of Appeals by

petition, 30 and in the Federal District Courts by complaint. 31 Review in the
Federal District Courts may also be obtained in a proper case under the Administrative
Procedure Act 32 by filing a counterclaim. 33 In addition, it is procedurally
permissible for a respondent in enforcement proceedings to file a third party complaint.
34 The petition or complaint must be seasonably filed, 35 meet certain minimal
requirements as to content, 36 and be properly served on all the parties. 37 In addition,
when filing any separate or joint petition for review in any Court of Appeals, the
petitioner must pay the clerk of the Court of Appeals the fees established by statute, and
also the docket fee prescribed by the Judicial Conference of the United States. 38
§ 562 ----Notice of appeal; petitions for review [SUPPLEMENT]
Practice Aids: Notice–Appeal to court from administrative order or decision–General

form. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 351.
Petition or application–For review of administrative order–On rejection of petitioner's

application–In contested hearing–On rendition of administrative decision and order,
following court's remittitur. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, §
376.
Case authorities:
The trial court erred by denying respondent's motion to dismiss petitioner's petition for
judicial review of his dismissal as a county health department inspector, since the petition
failed to meet the specificity requirements of GS § 150B-46 in that it lacked even a single
exception to particular findings of fact or conclusions of law and set forth no basis for
alleging that the final decision of dismissal was "arbitrary and capricious," except
perhaps the statement that it contradicted the recommended decisions of the
administrative law judge and the State Personnel Commission which were advisory only.
Gray v Orange County Health Dep't (1995) 119 NC App 62, 457 SE2d 892.
Footnotes
Footnote 22. Model State Administrative Procedure Act (1961) § 15(b); Model State
Forms: Petition or application to set aside administrative order. 1A Am Jur Pl & Pr

Forms (Rev), Administrative Law, Forms 247-250.
Petition or application for review of administrative order. 1A Am Jur Pl & Pr Forms

Petitions or applications for judicial review. 1A Am Jur Pl & Pr Forms (Rev),

Administrative Law, Forms 261-278.
Footnote 23. Broxton v State Bd. of Educ. (Fla App D5) 601 So 2d 1292, 17 FLW D
1614, later proceeding (Fla App D5) 626 So 2d 227.
Forms: Notice of appeal from administrative order. 1A Am Jur Pl & Pr Forms (Rev),
Notices of appeal from administrative orders. 1A Am Jur Pl & Pr Forms (Rev),

Footnote 26. St. Simons Island Save Beach Assn. v Glynn County Bd. of Comrs., 205 Ga
App 428, 422 SE2d 258.
For a discussion of the timely filing requirements for appeals from agency decisions, see
§ 569.
Footnote 27. Broxton v State Bd. of Educ. (Fla App D5) 601 So 2d 1292, 17 FLW D
1614, later proceeding (Fla App D5) 626 So 2d 227.

For a discussion of service of a petition for review or a notice of an appeal, see § 566.
Footnote 28. Richardson v Kittery (Me) 571 A2d 1201.
1373.
Review of an order of an administrative agency, board, commission, or officer is

obtained by filing with the clerk of the Court of Appeals that is authorized to review such
order a petition to enjoin, set aside, suspend, modify, or otherwise review, or a notice of
appeal, whichever form is indicated by the applicable statute (the term "petition for
review" thus includes a petition to enjoin, set aside, suspend, modify, or otherwise
review, or a notice of appeal). FRAP 15(a).
Forms: Petition in federal court–For review of administrative order. 1A Am Jur Pl &

Pr Forms (Rev), Administrative Law, Forms 271-278.
Petition for review in Court of Appeals–Promulgation of new source performance

standards [33 USCS § 1369(b); FRCP 15(a)]. 9 Federal Procedural Forms, L Ed,
Environmental Protection § 29:125.
Petition for review in Court of Appeals–EPA approval of revision of implementation

plan [42 USCS § 1857h-5; FRCP 15(a)]. 9 Federal Procedural Forms, L Ed,
Environmental Protection § 29:211.
Petition to Court of Appeals–For review of order cancelling registration under FIFRA

[7 USCS § 136n(b); FRCP 15(a)]. 9 Federal Procedural Forms, L Ed, Environmental
Protection § 29:281.
Petition for review–In Court of Appeals–Review of FDA order [FRAP 15(a)]. 9

Federal Procedural Forms, L Ed, Food, Drugs, and Cosmetics § 31:321.
Footnote 31. FRCP 3.
Forms: Complaint–Single count [FRCP 7(a), 8(a)]. 1 Federal Procedural Forms, L Ed,
Actions in District Court § 1:141.
Complaint–Multiple counts–With same jurisdictional basis [FRCP 7(a), 8(a), 8(e)]. 1

Federal Procedural Forms, L Ed, Actions in District Court § 1:142.
Notice of appeal to District Court–From reparation order against PACA licensee,

broker, or dealer [5 USCS §§ 701-706; 7 USCS § 499g(c)]. 9 Federal Procedural
Forms, L Ed, Farms, Ranches, and Agricultural Products Forms § 30:187.
Footnote 33. Adams v United States (CA9 Cal) 318 F2d 861; Coleman v United States
(CA9 Cal) 363 F2d 190, adhered to (CA9 Cal) 379 F2d 555 and revd on other grounds

390 US 599, 20 L Ed 2d 170, 88 S Ct 1327, reh den 391 US 961, 20 L Ed 2d 875, 83
S Ct 1834 and conformed to (CA9 Cal) 405 F2d 72, cert den 394 US 907, 22 L Ed 2d
217, 89 S Ct 1014.
Footnote 34. Century Utilities, Inc. v Palm Beach County (Fla App D4) 458 So 2d 1178,
9 FLW 2343.
Footnote 35. §§ 569-574.
Footnote 38. FRAP 15(e).
§ 563 Amended petitions for review
View Entire Section

Generally, if a petition for review is filed and the agency then withdraws its order and
issues an order on reconsideration, the petitioner must file an amended petition for
judicial review. An amended petition for review is not required, however, if on
reconsideration the agency affirms the order or modifies its order with only minor
changes. Expanding the text and renumbering the pages of an order constitute minor
changes when the facts, analysis and result all remain the same as in the original order.
39
A motion to amend a petition for review to name a nonparty to the appeal must be filed
within the time limits for filing the original petition, and failure to do so, where the only
named party in the petition is deceased, will cause the petition for review to be dismissed
for lack of jurisdiction over a real party in interest. 40
Footnotes
Footnote 39. Nida v Bureau of Labor & Industries, 112 Or App 1, 826 P2d 1045, later
proceeding 119 Or App 509, 852 P2d 974 (construing Oregon Administrative Procedure
Act).
Footnote 40. Kowaleski v Director, Office of Workers' Compensation Programs, etc.

(CA3) 879 F2d 1173, 14 FR Serv 3d 256, cert den 493 US 1070, 107 L Ed 2d 1021,
110 S Ct 1114.
§ 564 Form and contents

View Entire Section
Go to Supplement
Some statutes specifically prescribe what a petition for review must contain and how it
must be stated. For example, the Model Administrative Procedure Act of 1981 states that
a petition for review must set forth (1) the name and mailing address of the petitioner; (2)
the name and mailing address of the agency whose action is at issue; (3) an identification
of the agency action at issue, together with a duplicate copy, summary, or brief
description of the agency action; (4) an identification of persons who were parties in any
adjudicative proceedings that led to the agency action; (5) facts to demonstrate that the
petitioner is entitled to obtain judicial review; (6) the petitioner's reasons for believing
that relief should be granted; and (7) a request for relief, specifying the type and extent of
relief requested. 41
A petition for judicial review of an order suspending driver privileges must name the
director of revenue or the trial court has no jurisdiction to consider the matter, because to
be a party to a suit a person must either be named in the original pleading, or be later
added by appropriate court order. 42
A claimant for relief must do more than merely suggest his claim, 43 but specific
allegations of error need not be included in the petition for review absent a requirement
that the failure of an agency to make findings of fact and conclusions of law be included
in the petition for review, nor is it required that a request for the same be made to the
agency. 44 An allegation in the general language of a statute is sufficient to bring a
complaint within the jurisdiction of a court under such statute. 45 In addition, if a
request for review gives the reader a fair indication of why the party feels aggrieved, that
is enough to satisfy the requirement that the request for review contain appropriate
citations to the record. 46
A statement of objections to the governmental determination constitutes the heart of a

petition for review, and, without it no issue is preserved for appellate review. 47 A
requirement that the notice of appeal set forth the decision appealed from is met where
the notice so sufficiently describes the decision as to advise the opposite party what
issues appeal is taken from; a copy of the decision appealed from is not necessary in
order to comply with the statute. 48 Furthermore, a petition for judicial review is
sufficient if it asks that the decision of the agency be set aside even where a petitioner
mistakenly recites the terms of the punishment assessed, as for example, where the
punishment is referred to as a 30-day suspension rather than an indefinite suspension. 49
Because court rules deem that amendments be liberally allowed and that the principal of
relation back be freely applied, a constitutional point not set out in an initial pleading can
be added by amendment. Consequently, constitutional points are not defectively
presented when they are not raised in the original petition for review, but rather added by
amendment after the evidence is closed. Whether to allow an amendment even after
hearing, but before judgment, is a matter for the discretion of the trial court, and an
appellate court will not interfere with the decision. 50
The form in which a suit seeking review of an agency action is brought is not dispositive;
actions should be treated as if filed in the proper form. If, however, a petition seeking a
remand for an administrative hearing is required by statute to contain an allegation of the
agency's failure to comply with its own regulations, and the petition does not contain
such an allegation, the petition is fatally flawed and does not come with any court's
appellate jurisdiction. 51
§ 564 ----Form and contents [SUPPLEMENT]
Case authorities:
Petitioners were not entitled to a contested case hearing by the Office of Administrative
Hearings (OAH) of a decision of the Division of Environmental Management (DEM)
granting a modification of respondent town's permit to discharge wastewater into a river
to allow the relocation of its wastewater treatment plant because petitioners failed to
satisfy the requirement of GS § 150B-46 that the petition explicitly state what exceptions
are taken to the decision where the petition requested only that petitioners be allowed to
present further evidence as to the adverse environmental impact on the river and
surrounding area; this question was determined by the superior court; and the petition did
not state that petitioners challenged the decisions of the DEM not to prepare an
environmental impact review and to authorize relocation of the plant. This requirement of
GS § 150B-46 was not met because petitioners attached to the petition the record of the
OAH proceedings which identifies petitioners' exceptions to the agency's decision where
the OAH proceedings were not made a part of the record on appeal. Save Our Rivers, Inc.
v Town of Highlands (1995) 341 NC 635, 461 SE2d 333.
The trial court erred by denying respondent's motion to dismiss petitioner's petition for
judicial review of his dismissal as a county health department inspector, since the petition
failed to meet the specificity requirements of GS § 150B-46 in that it lacked even a single
exception to particular findings of fact or conclusions of law and set forth no basis for
alleging that the final decision of dismissal was "arbitrary and capricious," except
perhaps the statement that it contradicted the recommended decisions of the
administrative law judge and the State Personnel Commission which were advisory only.
Gray v Orange County Health Dep't (1995) 119 NC App 62, 457 SE2d 892.
Footnotes

571 (1991).
Footnote 42. Kelley v Missouri Dept. of Revenue (Mo App) 827 SW2d 767.
67 S Ct 1493.
Footnote 44. Century State Bank v State Banking Bd. (Mo App) 523 SW2d 856.
Footnote 45. Corden v Zoning Board of Appeals, 131 Conn 654, 41 A2d 912, 159 ALR
849; State ex rel. Public Service Com. v Marion Circuit Court, 230 Ind 277, 100 NE2d

888 (allegation that order was insufficient, unreasonable, unlawful, and was procured by
unlawful means).
Footnote 46. Hilde v Arizona Dept. of Economic Secur. (App) 166 Ariz 498, 803 P2d
909, 58 Ariz Adv Rep 56.
Footnote 47. Larocca v Workmen's Compensation Appeal Bd. (Pittsburgh Press), 140 Pa
Cmwlth 192, 592 A2d 757, app den 529 Pa 659, 604 A2d 251 and (criticized on other
grounds by Hughes v Pennsylvania State Police, 152 Pa Cmwlth 409, 619 A2d 390).
Footnote 48. Castleberry v Evatt, 147 Ohio St 30, 33 Ohio Ops 197, 67 NE2d 861, 167
ALR 198.
Footnote 49. Houston v Anderson (Tex App Houston (1st Dist)) 841 SW2d 449, writ den
(Mar 24, 1993).
Footnote 50. Dye v Division of Child Support Enforcement, Dept. of Social Services
(Mo) 811 SW2d 355.
Footnote 51. Kester v Pennsylvania Bd. of Probation & Parole, 148 Pa Cmwlth 29, 609
A2d 622.
§ 565 --Federal courts
View Entire Section

A petition for review of administrative action in a Court of Appeals must name each
party seeking review, either in the caption or in the body of the petition, and the use of
such terms as "et al.," "petitioners," or "respondents" is not effective to name the parties.
52 A complaint in a Federal District Court must likewise contain the names of the
parties to the action. 53 If two or more persons are entitled to petition the same court for
review of the same order, and their interests are such as to make joinder practicable, they
may file a joint petition for review and thereafter proceed as a single petitioner. 54
The petition also must designate the respondent. 55 The agency responsible for the
challenged order must always be named as a respondent. 56 On the other hand, where
an agency board functions as a quasi judicial body, it does not act as a representative of
the agency, and should not be named as respondent in a petition for review. 57 The
specificity requirement of FRAP 15(a) is jurisdictional. 58
The Hobbs Act states that a petition to a Court of Appeals requesting judicial review of
agency action must include a concise statement of the nature of the proceedings as to
which relief is sought, accompanied by copies of the order, report, or decision of that
agency, which must be attached to the petition as exhibits. 59 The Federal Rules of
Appellate Procedure however, require only that a petition for review specify the parties
seeking review, designate the respondent, and designate the order or part thereof to be
reviewed, 60 and specify a simple form therefor. 61 A petition for review designating
one order in a proceeding does not suffice to obtain review of any other order that is part
of the same administrative record. 62
Petitions for review of administrative action under both the Hobbs Act 63 and the
Federal Rules of Appellate Procedure, 64 as well as applications to Courts of Appeals
under the rules for enforcement of agency orders, 65 must indicate the relief sought. 66
Additionally, the Hobbs Act requires a concise statement of the grounds on which such
relief is sought. 67
Complaints in the Federal District Courts must contain a short and plain statement of the
claim showing that the pleader is entitled to relief, and a demand for judgment for the
relief to which the pleader deems herself entitled. 68
A concise statement of the facts upon which venue 69 is based must also be included in
applications to Courts of Appeals for enforcement of administrative orders under the
Federal Rules of Appellate Procedure, 70 as well as in petitions for review under the
Hobbs Act. 71
No statement as to venue is required in a complaint in a Federal District Court; improper

venue is, rather, a matter to be pleaded by motion as an affirmative defense. 72
Footnotes
Footnote 52. FRAP 15(a).
If the petition uses the term "et al." only the named petitioner is before the agency, and
this defect cannot be cured by submitting a notice of appearance listing all the petitioners
by name. Goos v ICC (CA8) 911 F2d 1283, 17 FR Serv 3d 771.
Footnote 53. FRCP 10(a).
Footnote 57. Boeing Petroleum Services, Inc. v Watkins (CA FC) 935 F2d 1260, 37 CCF
¶ 76103.
Footnote 58. Goos v ICC (CA8) 911 F2d 1283, 17 FR Serv 3d 771.
Footnote 61. FRAP Appendix of Forms, Form 3.
Footnote 62. John D. Copanos & Sons, Inc. v Food & Drug Admin., 272 US App DC
101, 854 F2d 510.

Footnote 65. FRAP 15(b).
Footnote 66. As to remedies available on judicial review of administrative action, see §§

548-558.
Footnote 69. As to venue generally, see § 428.
Footnote 72. FRCP 12(b)(3).
§ 566 Service of petition or notice
View Entire Section

A petitioner for judicial review must serve a copy of the petition upon the agency in the
manner provided by statute 73 and the failure to properly serve the petition for judicial
review necessitates dismissal of the action. 74 Furthermore, the petitioner must use the
means provided by statute to give notice of the petition for review to all other parties in
any adjudicative proceedings that led to the agency action. 75 If a state's Administrative
Procedure Act does not specify how service of a notice of appeal should be made, a court
will look to the state's rules of civil procedure for guidance. Although a notice of appeal
must be personally served, the use of substituted personal service is not precluded. 76
The time limit for the issuance of summons is mandatory, not jurisdictional, and a failure
to comply with that requirement will not deprive a court of jurisdiction. As the time
period for service is intended to hasten the procedure of administrative review and avoid
undue delay, however, a litigant must show a good faith effort to file the complaint and
secure the issuance of summons within the time period in order to avoid dismissal. 77
Some courts are inflexible regarding service, requiring that a copy of the petition for
judicial review of an agency decision must be served upon an agency head or upon any
other person or persons designated by the agency head to receive service in the manner
set forth by statute, 78 while other courts state that service upon the secretary of an
agency is sufficient to comply with notice requirements even when a plaintiff fails to
specifically include the name of the agency. 79

The courts are similarly split on the issue of substantial compliance with service
requirements. Some courts have stated that substantial compliance with the service
requirement will be to no avail if the statute sets forth no provision for substantial
compliance. 80 Other courts have said that where timely notice is in fact received by a
school district and there is absolutely no prejudice, there is no reasonable policy basis for
not holding substantial compliance with the service requirement sufficient. 81
Footnotes
Footnote 74. Donn, Inc. v Ohio Civil Rights Com. (Cuyahoga Co) 68 Ohio App 3d 561,
589 NE2d 110, dismd, motion overr 62 Ohio St 3d 1431, 578 NE2d 823.

571 (1991).
Footnote 76. Maasjo v McLaughlin School Dist. No. 15-2 (SD) 489 NW2d 618.
Footnote 77. Lockett v Chicago Police Bd., 133 Ill 2d 349, 140 Ill Dec 394, 549 NE2d
1266.
Footnote 78. Claus v Kansas Dept. of Revenue, 16 Kan App 2d 12, 825 P2d 172.
Footnote 79. Prohosky v Department of Natural Resources (Ind App) 599 NE2d 611.
Footnote 80. Claus v Kansas Dept. of Revenue, 16 Kan App 2d 12, 825 P2d 172.
Footnote 81. Hall v Seattle School Dist. No. 1, 66 Wash App 308, 831 P2d 1128.
View Entire Section

Unless a different manner of service is prescribed by an applicable statute, a copy of a

petition for review or of an application or cross application 82 for enforcement of an
administrative order in a Court of Appeals must be served by the clerk of the court
involved on each respondent in the manner prescribed by FRAP 3(d). 83 At the time of
filing, the petitioner must furnish the clerk with a copy of the petition or application for
each respondent. 84 At or before the time of filing a petition for review, all parties who
have been admitted to participate in the proceedings before the agency, other than those
who will be served by the clerk, must be served by the petitioner with a copy of that
petition; and the petitioner must file with the clerk a list of those so served. 85 In review
proceedings under the Hobbs Act, 86 the clerk must serve a copy of the petition on the
agency and upon the Attorney General of the United States. Such service must be by
registered mail, return receipt requested. 87
Complaints in the Federal District Courts must be served upon each of the parties. 88 If
a party is represented by an attorney, service must be made upon the attorney, unless the
court orders service upon the party. 89 Service is made, in either case, by delivering a
copy to the attorney or party, mailing it to the attorney's or party's last known address, or,
if no address is known, leaving it with the clerk of the court. 90 Service by mail is
complete upon mailing. 91
 Observation: The requirements of FRAP 15(c) are not jurisdictional. 92
Footnotes
Footnote 83. FRAP 15(c).
For a discussion of the service requirements of FRAP 3(d), see 32A Am Jur 2d, Federal
Practice and Procedure § 1040.
Footnote 89. FRCP 5(b).
Footnote 92. Wisniewski v Director, Office of Workers' Compensation Programs, etc.

(CA3) 929 F2d 952, 19 FR Serv 3d 110.
§ 568 Responsive pleadings
View Entire Section

In the federal District Courts, the United States, or an officer or agency thereof, must

serve an answer to a complaint seeking judicial review of an administrative order, or a
reply to a counterclaim in an enforcement proceeding, within 60 days after service of the
complaint upon the United States attorney. 93 Should no answer be filed, a default may
be entered by the clerk of court; 94 however, no default judgment will be entered against
the United States or an officer or agency thereof unless the claimant establishes a claim
or right to relief by evidence satisfactory to the court. 95
When a state's general statute governing the procedure for review of administrative
decisions does not require responsive pleadings, the state's civil rules requiring
responsive pleadings do not apply to administrative proceedings. When a statute
provides a special type of review, it is exclusive so as to preclude the use of any other or
nonstatutory method. 96
Footnotes
Footnote 95. FRCP 55(e).
Footnote 96. Daus v Director of Revenue (Mo App) 840 SW2d 892.
b. Computation and Extension of Time [569-575]
§ 569 Time for filing petition for review
View Entire Section

Go to Supplement
Generally, a petition for review in state courts must be filed within 30 days after the final
decision of the agency 97 or, if a rehearing is requested, within 30 days after the decision
thereon. 98 A petition for judicial review of a rule may be filed at any time, except as
limited by statute. 99 A petition for judicial review of agency action other than a rule or
order must be filed within 30 days after the agency action. 1 A rule of court cannot
override a contrary statutory provision concerning the manner and time for the effective
taking of an appeal from the administrative agency. 2
Timely filing of a complaint seeking review of an administrative decision is a

prerequisite to a court's jurisdiction and judicial review is barred if the complaint is not
timely filed. 3 A petitioner's demonstration of a manifest intent to appeal does not allow
acceptance of an untimely appeal. 4 Indeed, it has been held that a court has no power to
avoid a jurisdictional defect caused by a failure to file an appeal by extending the time for
filing. 5 Therefore, an appeal generally must be dismissed where the statutory time
requirement for filing a notice of appeal has not been met. 6 As long as the petition for
judicial review is timely filed, however, a district court may accept a tardy memorandum
of points of authorities and support of a petition. 7
Although an agency's authority to act or its jurisdiction over a matter may be properly
raised by judicial review of the agency's action, the statutorily prescribed time limitation
for filing for judicial review is a jurisdictional requirement and an untimely petition for
review must be dismissed even where the petition for review is based upon the agency's
alleged lack of subject matter jurisdiction. 8
 Caution: A judgment by a trial court ordering further administrative proceedings

does not terminate a separate and distinct proceeding. Consequently, hearings held
pursuant to the trial court's remand order are a continuation of the original agency
proceeding and not a separate and distinct proceeding, and the time for filing and
serving an appeal is governed by the rule in effect at the time the agency proceedings
originated. 9
 Observation: When decisions of the agency are reviewable through the common law
writ of certiorari, a petitioner's complaint which is untimely under an administrative
procedure act may still be timely filed under the time limit for filing a writ of certiorari,
thereby allowing the petitioner to obtain judicial review. 10
§ 569 ----Time for filing petition for review [SUPPLEMENT]
Case authorities:
Challenges to procedural lineage of agency regulations, whether raised by direct appeal,

by petition for amendment or rescission of regulation, or as defense to agency
enforcement proceeding, will not be entertained outside 60-day period provided by
statute. Jem Broadcasting Co. v FCC (1994, App DC) 22 F3d 320.
Appellant demonstrated good cause for untimely filing where agency admitted receiving
appeal on last day for timely filing and appellant's representative promptly filed appeal
petition with Board's regional office upon learning from agency 5 days later that petition
had been misdirected. Daniel v Department of the Treasury (1994, MSPB) 61 MSPR
249.
Footnotes
Footnote 97. Model State Administrative Procedure Act (1961) § 15(b); Model State

571 (1991).

Footnote 2. Harper v Division of Water Pollution Control, 412 Mass 464, 589 NE2d
1239.
Appeals, 9 Hawaii App 298, 837 P2d 311, cert dismd (Hawaii) 843 P2d 144; Lockett v
Chicago Police Bd., 133 Ill 2d 349, 140 Ill Dec 394, 549 NE2d 1266; Falcon Oil Co. v
Department of Environmental Resources, 148 Pa Cmwlth 90, 609 A2d 876; Fitzpatrick v
State, 107 Nev 486, 813 P2d 1004.
A party that fails to file a petition for review in a timely manner waives its right to
judicial review and a court is correct in dismissing the case for lack of jurisdiction.
Kansas Sunset Assoc. v Kansas Dept. of Health & Environment, 16 Kan App 2d 1, 818
P2d 797.
Footnote 4. Falcon Oil Co. v Department of Environmental Resources, 148 Pa Cmwlth

90, 609 A2d 876.
Footnote 5. Grand Canyon Dories, Inc. v Idaho State Tax Com., 121 Idaho 515, 826 P2d
476, appeal after remand 124 Idaho 1, 855 P2d 462.
Appeals, 9 Hawaii App 298, 837 P2d 311, cert dismd (Hawaii) 843 P2d 144.
Footnote 7. Fitzpatrick v State, 107 Nev 486, 813 P2d 1004.
Footnote 8. Board of Appeals v DeCarolis, 32 Mass App 348, 588 NE2d 1378.
Footnote 9. Raines v Freedom of Information Com., 221 Conn 482, 604 A2d 819.
Footnote 10. Yeksigian v Chicago (1st Dist) 231 Ill App 3d 307, 172 Ill Dec 731, 596
NE2d 10.
View Entire Section

A petition for review of agency action in a Court of Appeals must be filed within the time
prescribed by law; 11 that is, within the time period specified by the agency's organic
statute, where the statute contains such a provision. A petition is filed by the clerk when
the petitioner has submitted all the various information in compliance with FRAP 15(c)
and has paid the docketing fee. 12 A petition is timely filed within the statutory period
where it is received by the clerk of courts within such period; 13 mailing the petition
within the prescribed period is insufficient. 14 A Court of Appeals cannot accept the
date a letter or petition was received by the agency's review board as the date of filing in
the Court of Appeals. 15 The procedures set forth in the rule 16 are jurisdictional, 17
and, except as specifically authorized by law, a court may not enlarge the time prescribed
by law for filing such a petition. 18 Where no time limit is specified in the applicable
statute, the time for seeking review is subject only to the doctrine of laches. 19
Where review is under the Hobbs Act, the petition for review must be filed within 60
days following the entry of the agency's final order. 20 The date of entry that
commences the running of the 60-day period is the date on which the agency's final
decision is signed and served. 21 An agency must determine the event that triggers
commencement of the judicial review period reasonably, bearing in mind that before any
litigant reasonably can be expected to present a petition for review of an agency rule, the
petitioner must first be put on fair notice that the rule in question is applicable to him. 22
Like FRAP 15, the time requirement contained in the Hobbs Act 23 is jurisdictional, 24
and may not be judicially altered, enlarged 25 or waived. 26 Although one view is
that the erroneous filing of a petition for review in a District Court rather than a Court of
Appeals within the time limit for filing such a petition satisfies the statutory requirement,
27 another view is that the action should be dismissed if the petition is not timely filed in
the appropriate appellate court. 28
Additionally, if an administrative rehearing is timely sought, the filing period is extended

to the 60th day after public notice is given of the agency's opinion and order denying the
rehearing. 29 Furthermore, timely petitions for administrative reconsideration, 30 or
petitions to reopen administrative final actions, 31 may toll the 60-day period under the
Hobbs Act.
An appeal seeking judicial review of an Interstate Commerce Commission order denying

a petition for clarification of a prior Commission order, such appeal being filed more than
60 days after the prior order was served, and thus being filed beyond the Hobbs Act 32
60-day limitation for judicial review of Commission orders, is nonetheless timely where a
petition for administrative reconsideration of the order denying the petition for
clarification is timely filed. The appeal is considered timely because the running of the
Hobbs Act's limitation period for judicial review is stayed until the petition for
administrative reconsideration is acted upon by the Commission. A contrary conclusion,
suggested by language concerning the finality of agency orders in the Hobbs Act and in
the Interstate Commerce Act 33 which govern judicial review of Commission orders, is
not dispositive because the language of a similar provision of the Administrative
Procedure Act 34 has long been construed merely to relieve parties from the
requirement of petitioning for administrative rehearing before seeking judicial review,
but not to prevent petitions for reconsideration that are actually filed from rendering the
orders under reconsideration nonfinal, and there is no basis for distinguishing the
language of the Hobbs Act and the Interstate Commerce Act from that of the
Administrative Procedure Act. 35
Although the Administrative Procedure Act 36 contains no specific time limit for filing
a complaint in a Federal District Court, review may be barred by laches as untimely
sought where a complainant's delay in invoking judicial action has prejudiced another
party. 37 If no prejudice is shown, however, a complaint will still be timely though
its filing is delayed. 38
Any requirement that a petitioner pay a filing or docketing fee with a petition for review
of an agency action is not jurisdictional, so that payment of such a fee beyond the time
prescribed by statute for filing the petition for review does not render the petition
untimely or deprive the court of jurisdiction. 39

Footnotes

(CA3) 929 F2d 952, 19 FR Serv 3d 110.
Footnote 13. Danko v Director, Office of Workers' Compensation Programs, U.S. Dept.
of Labor (CA6) 846 F2d 366; Pinat v Office of Personnel Management (CA FC) 931 F2d
1544.
Footnote 14. Danko v Director, Office of Workers' Compensation Programs, U.S. Dept.
of Labor (CA6) 846 F2d 366.
Footnote 15. Fairchild v Director, Office of Workers' Compensation Programs, United

States Dept. of Labor (CA6) 863 F2d 17.
Footnote 16. FRAP 15.

(CA3) 929 F2d 952, 19 FR Serv 3d 110; Dole v Briggs Constr. Co. (CA6) 942 F2d 318,
15 BNA OSHC 1160, 21 FR Serv 3d 1235.
FRAP 26(a), extending the period for timely filing of a notice of appeal where the last
day for timely filing falls on a weekend or holiday, is applicable to appellate review of
agency orders. Funbus Systems, Inc. v California Public Utilities Com. (CA9 Cal) 801
F2d 1120, 8 FR Serv 3d 822.
Footnote 19. Griffith Co. v NLRB (CA9) 545 F2d 1194, 1 EBC 1268, 93 BNA LRRM
BNA LRRM 2514, 82 CCH LC ¶ 10155, later proceeding 243 NLRB 1121, 102 BNA
LRRM 1129, 1979-80 CCH NLRB ¶ 16091, enforced (CA9) 660 F2d 406, 2 EBC 2163,
108 BNA LRRM 2943, 92 CCH LC ¶ 13094, cert den 457 US 1105, 73 L Ed 2d 1313,
102 S Ct 2903, 3 EBC 1670, 110 BNA LRRM 2608, 94 CCH LC ¶ 13658.
Annotation: What circumstances constitute laches barring federal judicial review of

allegedly wrongful discharge from military service, 100 ALR Fed 821.
Annotation: When petition for review of administrative order under 28 USCS § 2344
is timely commenced, 84 ALR Fed 369.
Footnote 21. Energy Probe v United States Nuclear Regulatory Com., 277 US App DC 1,
872 F2d 436.
Footnote 22. Public Citizen v Nuclear Regulatory Com., 284 US App DC 41, 901 F2d
147, 22 ELR 21224, reh den, en banc (App DC) 1990 US App LEXIS 10506 and cert den

498 US 992, 112 L Ed 2d 546, 111 S Ct 536.
Footnote 24. New York v United States (CA2) 568 F2d 887, appeal after remand (CA2)
600 F2d 349, cert den 449 US 887, 66 L Ed 2d 113, 101 S Ct 242, 101 S Ct 243; Nutt
v Drug Enforcement Admin. (CA5) 916 F2d 202; Commonwealth Edison Co. v United
States Nuclear Regulatory Com. (CA7) 830 F2d 610; Goos v ICC (CA8) 911 F2d 1283,
17 FR Serv 3d 771; West Coast Truck Lines, Inc. v American Industries, Inc. (CA9 Cal)
893 F2d 229.
Footnote 25. Texas v United States (CA5) 749 F2d 1144, reh den, en banc (CA5) 756
F2d 882 and cert den 472 US 1032, 87 L Ed 2d 642, 105 S Ct 3513; Goos v ICC (CA8)
911 F2d 1283, 17 FR Serv 3d 771; West Coast Truck Lines, Inc. v American Industries,
Inc. (CA9 Cal) 893 F2d 229; Energy Probe v United States Nuclear Regulatory Com.,
277 US App DC 1, 872 F2d 436.
Provision of FRAP 4(a) relating to extensions of time to file a notice of appeal is not
applicable in administrative review proceedings. Consequently, a court has no power to
extend the time for filing a petition for review on the ground of excusable neglect.
Midway Industrial Contractors, Inc. v Occupational Safety & Health Review Com.
(CA7) 616 F2d 346, 29 FR Serv 2d 726.
Footnote 26. Goos v ICC (CA8) 911 F2d 1283, 17 FR Serv 3d 771; Cartersville Elevator,
Inc. v Interstate Commerce Com. (CA8) 724 F2d 668, adhered to, en banc (CA8) 735
F2d 1059.
Footnote 27. Boggs v U.S. R. Retirement Bd. (CA11) 725 F2d 620, 38 FR Serv 2d 1134.
Footnote 28. Nutt v Drug Enforcement Admin. (CA5) 916 F2d 202.
Footnote 29. Microwave Communications, Inc. v Federal Communications Com., 169

US App DC 154, 515 F2d 385.

Footnote 31. Cartersville Elevator, Inc. v Interstate Commerce Com. (CA8) 724 F2d 668,
adhered to, en banc (CA8) 735 F2d 1059.
Footnote 33. 49 USCS § 10327(i).

Footnote 36. 5 USCS §§ 701-706.

1507 (superseded by statute on other grounds as stated in Lubrizol Corp. v Train (CA6
Ohio) 547 F2d 310, 9 Envt Rep Cas 1478, 7 ELR 20106); Smith v Hitchcock, 226 US
53, 57 L Ed 119, 33 S Ct 6.
Footnote 38. Petrowicz v Holland (DC Pa) 142 F Supp 369.

(CA3) 929 F2d 952, 19 FR Serv 3d 110.
§ 571 Determination of time
View Entire Section

The time period in which an appeal from an administrative order must be filed begins to
run on the date the order is issued, 40 not on the order's effective date. 41
Consequently, when an agency's rules provide that an order is final upon resolution of
any administrative appeal, a petition for judicial review is timely if it is filed within the
statutorily prescribed period following the agency's disposition of the appeal. 42 In
some instances, however, an agency's order may constitute its final decision subject to
judicial review even where a motion for reconsideration is filed and subsequently denied.
For example, a state's Administrative Procedure Act may provide that the filing of an
application for reconsideration of an agency's order does not extend the time for seeking
judicial review of the order unless the specific statutory provisions governing the agency
require the filing of an application for reconsideration. 43 The administrative agency
must also provide the plaintiff with adequate notice of its decision in order to commence
running of the time period within which an appeal must be filed, 44 because the right to
review includes not only the right to present evidence, but also a reasonable opportunity
to know what claims must be defended against and what consequences are proposed.
Consequently, the agency must serve the plaintiff a complete copy of the decision and not
merely a portion of the decision. 45
Footnotes
Footnote 40. Lake Elmo v Minnesota Municipal Bd. (Minn App) 474 NW2d 450;
Sistrunk v Eastern Oregon Correctional Inst., 108 Or App 19, 813 P2d 74.
Footnote 41. Lake Elmo v Minnesota Municipal Bd. (Minn App) 474 NW2d 450.
Footnote 42. Sistrunk v Eastern Oregon Correctional Inst., 108 Or App 19, 813 P2d 74.
Footnote 43. Cheney v State Mined Land Reclamation Bd., Dept. of Natural Resources
(Colo App) 826 P2d 367, cert den (Colo) 1992 Colo LEXIS 220.
Footnote 44. Cortez v Owyhee County, 117 Idaho 1034, 793 P2d 707; Lutheran General
Health Care System v Illinois Dept. of Revenue (1st Dist) 231 Ill App 3d 652, 172 Ill Dec
544, 595 NE2d 1214, app den 146 Ill 2d 631, 176 Ill Dec 802, 602 NE2d 456.
Footnote 45. Lutheran General Health Care System v Illinois Dept. of Revenue (1st Dist)
231 Ill App 3d 652, 172 Ill Dec 544, 595 NE2d 1214, app den 146 Ill 2d 631, 176 Ill Dec
802, 602 NE2d 456.
§ 572 Premature filing
View Entire Section

Premature petitions for judicial review, filed before an agency or commission gives
public notice of the order, 46 or prior to entry of the agency orders to which they
pertain, cannot confer jurisdiction upon an appellate court. 47 Even though a petition
may have been filed prematurely, however, a party still may be allowed to obtain judicial
review, given the presumption in favor of judicial reviewability of agency action,
depending upon the equities of the situation. 48
Where a petition for review is timely filed but dismissed following the transfer of earlier
petitions to another circuit, based on the assumption that the petitions would not be held
premature, and where that assumption was proven to be erroneous, the petition will be
reinstated in order to allow the party to receive judicial review. 49
 Practice guide: If a practitioner has filed a petition for review that could possibly be
interpreted as premature, it is worthwhile to supplement that petition with a later
protective petition to avoid dismissal.
Footnotes
Footnote 46. North American Telecommunications Asso. v FCC (CA7) 751 F2d 207,
supp op (CA7) 772 F2d 1282 and (criticized by Western Union Tel. Co. v FCC, 249 US
App DC 112, 773 F2d 375, 84 ALR Fed 357).
Footnote 47. Sierra Club v United States Nuclear Regulatory Com. (CA9) 825 F2d 1356,
18 ELR 20020; Western Union Tel. Co. v FCC, 249 US App DC 112, 773 F2d 375, 84
ALR Fed 357.
Footnote 48. North American Telecommunications Asso. v FCC (CA7) 751 F2d 207,
supp op (CA7) 772 F2d 1282 and (criticized by Western Union Tel. Co. v FCC, 249 US
App DC 112, 773 F2d 375, 84 ALR Fed 357).
Footnote 49. Gallup v Federal Energy Regulatory Com., 233 US App DC 382, 726 F2d
772, 38 FR Serv 2d 688.
§ 573 Extensions of time

View Entire Section
Go to Supplement
Under some state statutes, the time for filing a petition for judicial review of an order or
an agency action other than a rule or order is extended during the pendency of a
petitioner's timely attempts to exhaust administrative remedies, if the attempts are not
clearly frivolous or repetitious. 50 Therefore, a motion for reconsideration tolls the time
for appeal from the original decision and the time for filing a petition for judicial review
commences when the petition for reconsideration decided; the time for appeal does not
run from the initial decision. 51 In addition, when an application for rehearing is
allowed by statute and the statute provides that an application for rehearing tolls the
period in which to file a petition for judicial review, the time period is tolled for all
parties not merely the party that files an application for rehearing. 52 If, however, there
is no statute or agency rule that provides for a rehearing, a petition for rehearing filed
with the agency does not toll the time period in which an action for judicial review must
be filed. 53 Furthermore, a motion for relief from judgment has been held inapplicable
to an administrative appeal. Consequently, a motion for relief from judgment does not
stay the time for filing a notice of appeal. 54
The time for filing a petition for review of agency action other than a rule or order may
be extended during any period that the petitioner did not know and was under no duty to
discover, or did not know and was under a duty to discover but could not reasonably have
discovered, that the agency had taken the action or that the agency action had sufficient
effect to confer standing upon the petitioner to obtain judicial review. 55 The time for
taking an appeal may not be extended as a matter of grace or indulgence; extensions are
limited to cases involving fraud or some breakdown in the court's operation, and
negligence of an appellant 56 or counsel is not a sufficient excuse for the failure to file a
timely appeal. 57
§ 573 ----Extensions of time [SUPPLEMENT]
Case authorities:
Disability benefits claimant should be afforded opportunity to argue merits, enabling

court to determine whether claim has sufficient merit to make strict application of time
limit unfair, where she requested Appeals Council review of adverse decision from ALJ
roughly 6 weeks after running of 60-day time limit in regulations, because
administratively imposed time limits, while entitled to reasonable deference to achieve
their objectives of avoiding lengthy delays prejudicial to agency functions, are subject to
application in light of other legal principles such as inquiry into whether or not prejudice
was caused, exemplified by but not limited to harmless error rule set forth in FRCP 61.
Sealy v Shalala (1994, SD NY) 871 F Supp 612, 46 Soc Sec Rep Serv 415, CCH
Unemployment Ins Rep ¶ 14593B.
Footnotes

Footnote 50. Model State Administrative Procedure Act (1981) §§ 5-108(2), 5-108(3)(i).
Footnote 51. Hall v Seattle School Dist. No. 1, 66 Wash App 308, 831 P2d 1128.
Footnote 52. Fee v Employment Appeal Bd. (Iowa) 463 NW2d 20 (employer filed an
application for rehearing that was deemed denied and employee filed petition for judicial
review within 30 days of the time the employer's application for rehearing was deemed
denied; the court held the employee's petition timely filed).
Footnote 53. Fredette v Beecher (3d Dist) 192 Ill App 3d 737, 139 Ill Dec 642, 548 NE2d
1356.
Footnote 54. Giovanetti v Ohio State Dental Bd. (Trumbull Co) 66 Ohio App 3d 381, 584
NE2d 66.
Footnote 55. Model State Administrative Procedure Act (1981) § 5-108(3)(ii).
Footnote 56. A petitioner may not circumvent the time limit for filing a petition for
judicial review by asserting that she is not bound by the time limits due to an agency's
failure to give notice of its final order to non-intervenors when the petitioner has received
notice that she might have an interest that could be affected by the agency's decision in a
contested case and she fails to intervene when she should have. Ft. Dodge Secur. Police,
Inc. v Iowa Dept. of Revenue (Iowa App) 414 NW2d 666.
Footnote 57. Hospitalization of an attorney, failure of a post office to forward mail, an ill
secretary, and car problems on the way to the post office to mail an appeal are examples
of cases where untimely appeals may be allowed. Miscommunication in an attorney's
office, however, is not unique and compelling enough to warrant allowing the filing of an
untimely appeal. Nardy v Commonwealth, DOT, Bureau of Driver Licensing, 142 Pa
Cmwlth 388, 597 A2d 288.
A nunc pro tunc appeal on an administrative action will be allowed only where there is a
showing of fraud, breakdown on the administrative process, where unique and
compelling factual circumstances establishing a non-negligent failure to file a timely
appeal. Falcon Oil Co. v Department of Environmental Resources, 148 Pa Cmwlth 90,
609 A2d 876.
§ 574 Circumstances justifying untimely review–Agency estopped from asserting

statute of limitations
View Entire Section

A narrow exception to the jurisdictional time period for filing a complaint exists if the
charge is untimely filed because of a defendant's misleading conduct, which estops a
defendant from raising the limitation period as a defense. The defendant is estopped,
however, only if it is conduct initiated by the defendant that induces the plaintiff not to
act. 58 Ambiguity in an order of the Interstate Commerce Commission does not,
however, create an exception to the rule that a denial of a petition to reopen and consider
a Commission order is subject to judicial review only if the petition alleges new evidence
or changed circumstances that render the agency's original order inappropriate. If such
an exception were created, the time limits of the Hobbs Act, 59 which govern judicial
review of final orders of the Commission, would be held hostage to ever-present
ambiguities. 60
Footnotes
Footnote 58. Faulkner-King v Department of Human Rights (4th Dist) 225 Ill App 3d
627.

§ 575 --Review of application of rule or regulation
View Entire Section

Go to Supplement
The Hobbs Act's 60-day period for filing a petition for review 61 bars direct
pre-enforcement challenges to rules after the expiration of that time. 62 Therefore, the
statutory time periods, as applied to rules and regulations, apply to cut off review of the
agency order promulgating the rule. 63 However, an indirect challenge to a rule
underlying the agency decision is allowed when the rule is applied to a particular
individual, even though the petition for the review of the agency action was brought
beyond the 60-day period. 64 Furthermore, in such a situation, judicial review may
also include the rule's applicability to a particular situation. 65 Therefore, the statutory
time period does not cut off review of particular agency actions applying a rule in a
particular case. 66 Additionally, when the agency, by a new promulgation creates the
opportunity for renewed comment and objection on some established practice for which
the 60-day limit of the Hobbs Act has long since barred review, its renewed adherence to
the rule is substantively reviewable. 67 Also, where an agency reiterates a rule or policy
in such a way as to render the rule or policy subject to renewed challenge on any
substantive grounds, a coordinate challenge that the rule or policy is contrary to law will
not be held untimely because of limited statutory review periods. 68
 Practice guide: A claim that agency action was violative of statute may be raised
outside a statutory limitations period by filing a petition for amendment or rescission of
the agency's regulations, and challenging the denial of that petition. 69 Without
such a petition to the agency, a court may review a rule only when the agency's action
did not reasonably put aggrieved parties on notice of the rule's content, or clearly

remained unripe for judicial review throughout the statutory review period, or in
extreme cases involving gross violations of statutory or constitutional mandates, or
denial of an adequate opportunity to test the regulation in court. 70 When the
aggrieved party neither petitions the agency to change the rule nor presents a valid
excuse for failing to mount a timely challenge to the initial regulation, considerations
of both finality and exhaustion require that the litigant should be bound by that
regulation. 71
§ 575 --Review of application of rule or regulation [SUPPLEMENT]
Case authorities:
Petitioners were entitled to judicial review of DEHNR's decision to modify respondent

city's wastewater treatment plant discharge permit, since petitioners were aggrieved
parties in that they were residents of the county who used the river in question for
recreational, religious, and other purposes and owned land adjoining the river; the
decision making process of holding a public hearing, receiving public comments, and
conducting water quality modeling constituted a "contested case;" DEHNR's decision to
modify the city's permit was a "final decision" in a contested case; petitioners had
exhausted their only available administrative remedy by participating in the agency's
decision making process; petitioners' petition for judicial review sufficiently identified
the exceptions petitioners had to the agency decision; petitioners were obviously
challenging the agency's failure to perform an environmental assessment before
modifying the city's permit because the agency determined the modification was a "minor
construction activity;" and petitioners were not required to allege in their petition the
particular reason under G.S. § 150B-51(b) which was the basis for reversing or
modifying the agency decision. G.S. § 150B-43. Save Our Rivers v Town of Highlands
(1994) 113 NC App 716, 440 SE2d 334, stay gr (NC) 1994 NC LEXIS 283.
Footnotes
Footnote 62. Commonwealth Edison Co. v United States Nuclear Regulatory Com.
(CA7) 830 F2d 610.
Footnote 63. MCI Telecommunications Corp. v FCC, 247 US App DC 32, 765 F2d 1186.
F2d 882 and cert den 472 US 1032, 87 L Ed 2d 642, 105 S Ct 3513; Commonwealth
Edison Co. v United States Nuclear Regulatory Com. (CA7) 830 F2d 610.
F2d 882 and cert den 472 US 1032, 87 L Ed 2d 642, 105 S Ct 3513 and (criticized by
Commonwealth Edison Co. v Nuclear Regulatory Com. (CA7) 819 F2d 750).
Footnote 66. MCI Telecommunications Corp. v FCC, 247 US App DC 32, 765 F2d 1186.
Footnote 67. Association of American Railroads v Interstate Commerce Com., 270 US

App DC 6, 846 F2d 1465.
Footnote 68. Public Citizen v Nuclear Regulatory Com., 284 US App DC 41, 901 F2d
147, 22 ELR 21224, reh den, en banc (App DC) 1990 US App LEXIS 10506 and cert den
498 US 992, 112 L Ed 2d 546, 111 S Ct 536.
Footnote 69. Edison Electric Inst. v ICC, 297 US App DC 221, 969 F2d 1221, digest op
at (App DC) 135 PUR4th 583; Public Citizen v Nuclear Regulatory Com., 284 US App
DC 41, 901 F2d 147, 22 ELR 21224, reh den, en banc (App DC) 1990 US App LEXIS
10506 and cert den 498 US 992, 112 L Ed 2d 546, 111 S Ct 536.
at (App DC) 135 PUR4th 583.
at (App DC) 135 PUR4th 583.
c. Assignments of Error; Posting Bond [576, 577]
§ 576 Briefs and assignments of errors
View Entire Section

An appeal from action of an administrative agency may need to conform with the
applicable rules as to preparation of briefs. 72 An assignment of errors, or specification
of alleged errors committed in the proceeding below and relied on as grounds for
reversal, is necessary as a general rule in proceedings to review a judgment of a lower
court, 73 and a similar requirement, 74 sometimes by express statutory provision, 75
exists in proceedings to review some determinations of administrative agencies. 76
A failure to set forth the grounds and reasons for an appeal may warrant, 77 or,
particularly in regard to failure to comply with a statutory requirement in this connection,
may require 78 dismissal of an appeal; but such a failure does not absolutely require the
court to dismiss the appeal. 79
A statement of reasons for an appeal should clearly indicate the ground upon which the
decision appealed from is challenged and the issue presented for determination by the
court. 80 It must set forth with particularity the errors relied upon. 81
An appellant's failure to file a brief in accordance with appellate rules does not warrant
dismissal when the appellant is proceeding pro se, and in such circumstances, a court
may use its discretionary power to consider the appeal. 82 An agency's failure to brief
and argue an obvious issue in dispute does not amount to a default in the nature of failing
to file a responsive pleading to a petition, because where an appellant files a brief raising
an appropriate issue, the court is obligated to consider the substance of the claim. 83

Footnotes
Footnote 72. Heflin v Red Front Cash & Carry Stores, Inc., 225 Ind 517, 75 NE2d 662.
Footnote 73. 5 Am Jur 2d, Appeal and Error §§ 648 et seq.
Footnote 74. Greenwood v Luby, 105 Conn 398, 135 A 578, 51 ALR 1443; Windsor
Hills Imp. Ass'n v Baltimore, 195 Md 383, 73 A2d 531 (petition for appeal should
specify grounds of illegality complained of). See McCarthy v General Electric Co., 293
Pa 448, 143 A 116, 60 ALR 1288; Utah I. C. R. Co. v Industrial Com. of Utah, 84 Utah
364, 35 P2d 842, 94 ALR 1423.
Footnote 75. Re State ex rel. Employment Secur. Com., 234 NC 651, 68 SE2d 311,
stating that the purpose of the provision is to give notice to the commission and adverse
parties of the alleged errors committed by the commission and limit the scope of the
hearing in the superior court to the specific questions raised by the errors assigned.
Footnote 77. Haugse v Sommers Bros. Mfg. Co., 43 Idaho 450, 254 P 212, 51 ALR
1438; State Board of Medical Education & Licensure v Williams, 172 Pa Super 448, 94
A2d 61.
Footnote 78. Re State ex rel. Employment Secur. Com., 234 NC 651, 68 SE2d 311.
Footnote 79. Haugse v Sommers Bros. Mfg. Co., 43 Idaho 450, 254 P 212, 51 ALR
1438.
Footnote 80. WOKO, Inc. v FCC, 71 App DC 228, 109 F2d 665 (alleging abuse of
discretion without assigning reason is not sufficient).
Footnote 81. Stuart v FCC, 70 App DC 265, 105 F2d 788.
Footnote 82. Kiss v Ohio Motor Vehicle Dealers Bd. (Cuyahoga Co) 76 Ohio App 3d
677, 602 NE2d 1250.
Footnote 83. PoPeople, Inc. v Labor & Industrial Relations Com. (Mo) 830 SW2d 403,
§ 577 Appeal bond
View Entire Section

Some statutes relating to administrative agencies require the appealing party to file a
bond, that is, a security for stay of proceedings upon appeal, 84 and a petitioner's failure
to file an appeal bond when seeking judicial review of an agency's decision deprives the
court of jurisdiction over the matter. 85 In contrast, the statutes relating to appeals
frequently exempt the government or governmental agencies from the requirement of an
appeal bond. 86
Footnotes
Footnote 84. Login Corp. v Botner (DC Cal) 74 F Supp 133.
Annotation: Construction and application of federal Perishable Agricultural

Commodities Act, 21 ALR2d 840, § 15.
Footnote 85. Grand Gulf Military Monument Com. v Cox (Miss) 492 So 2d 287.
Footnote 86. 4 Am Jur 2d, Appeal and Error §§ 330-331.
3. Presenting and Preserving Issues Before Agency [578-581]
§ 578 Failure to present and preserve issues; waiver
View Entire Section

Generally, a party may not advance a theory or raise an issue on appeal of an

administrative agency's action that was not presented below, 87 the failure to timely
raise an issue before the administrative agency constituting a waiver of it. 88 In
addition, new theories or defenses will not be considered when raised for the first time on
appeal. 89 For example, even if estoppel is otherwise applicable it may not be
considered on appeal when a petitioner fails to raise it at the administrative level or any
time before the filing of her reply brief. 90
When an agency holds public hearings, a party's failure to raise an issue or present
evidence at the public hearings operates as a waiver of presenting the evidence or raising
the issue before the trial court, whose function it is to review the record. 91 A party
may also waive issues by failing to brief and argue them before the appellate court even
though the party raises the issues in her cross-petition. 92 In addition, a party waives an
issue on a subsequent appeal when the issue was decided prior to the original appeal and
any argument the party may have had regarding the issue could have been made in the
original appeal. 93
Although a party's complaint for review of an agency's decision in the trial court is
sufficient to raise all the issues presented to the agency, the arguments which it may
make on appeal are confined to those questions that were actually tried to the judge. 94
 Comment: A petitioner's attempt to raise an issue before the agency must be

calculated to bring the alleged error to the attention of the presiding officer and allow

her to address the alleged error, otherwise the alleged error is waived. The purpose of
such a rule is to provide the lower tribunal an opportunity to correct alleged errors, thus
increasing the efficient use of judicial resources by obviating the need for appellate
review. 95
Footnotes
583, 75 S Ct 467, 4 OGR 897; New Mexico Environmental Improv. Div. v Thomas
(CA10) 789 F2d 825, 24 Envt Rep Cas 1427, 16 ELR 20647; Semple v Tri-City Drywall,
Inc. (App) 172 Ariz 608, 838 P2d 1369, 123 Ariz Adv Rep 14; Glenbrook Rd. Assn. v
District of Columbia Bd. of Zoning Adjustment (Dist Col App) 605 A2d 22; Fisher v
Iowa Bd. of Optometry Examiners (Iowa) 478 NW2d 609; Heft v Maryland Racing
Com., 323 Md 257, 592 A2d 1110; Board of Selectmen v Alcoholic Beverages Control
Com., 32 Mass App 914, 585 NE2d 754; Markel v Circle Pines (Minn) 479 NW2d 382;
Chesterfield v Director of Revenue (Mo) 811 SW2d 375; Garcia v County of Bernalillo
(App) 114 NM 440, 839 P2d 650; Lilly v North Carolina Dept. of Human Resources, 105
NC App 408, 413 SE2d 316.
The appellant is obligated to make its record before the agency and, if it fails to do so, the
reviewing court will decline to consider any inferences that the appellant urges upon the
court for the first time on appeal. The agency's action must be reviewed on the evidence
and proceedings before the agency at the time it acted. New Mexico Environmental
Improv. Div. v Thomas (CA10) 789 F2d 825, 24 Envt Rep Cas 1427, 16 ELR 20647.
Administrative and judicial efficiency require that all claims be first raised at the agency
level to allow the appropriate development and administrative response before judicial
review. Abolaji v District of Columbia Taxicab Com. (Dist Col App) 609 A2d 671.
Regarding the failure to raise an issue below as constituting waiver of the issue on
appeal, generally, see 5 Am Jur 2d, Appeal and Error §§ 545 et seq..
Footnote 88. Caldwell v Pima County (App) 172 Ariz 352, 837 P2d 154, 94 Ariz Adv
Rep 74; Cooper v Illinois Dep't of Children & Family Servs. (4th Dist) 234 Ill App 3d
1261, later proceeding (CD Ill) 834 F Supp 282; Chesterfield v Director of Revenue (Mo)
811 SW2d 375.
When a person is entitled to raise a matter before an agency by making a timely objection
or request, thereby obtaining a hearing at which the agency will consider the merits of the
matter, but the person fails to take the required timely action and the agency
consequently denies her a hearing and refuses to consider the merits of the matter, the
person is not entitled to have a court consider the issue. In other words, a procedural
default before the agency ordinarily precludes judicial review of the merits. Heft v
Maryland Racing Com., 323 Md 257, 592 A2d 1110.
Footnote 89. Garcia v County of Bernalillo (App) 114 NM 440, 839 P2d 650.
The function of the reviewing court is not to substitute its judgment for that of the agency
on matters where the agency has not had an opportunity to make a factual record or apply

its expertise, but to review agency action based on the record before the agency unless
exceptional circumstances justify use of extra-record materials. New Mexico
Environmental Improv. Div. v Thomas (CA10) 789 F2d 825, 24 Envt Rep Cas 1427, 16
ELR 20647.
Footnote 90. Faulkner-King v Department of Human Rights (4th Dist) 225 Ill App 3d
627 (petitioner alleged agency knowingly misled her and caused her to file her charge
late).
Footnote 91. Morgan v Community Redevelopment Agency (2nd Dist) 231 Cal App 3d
243, 284 Cal Rptr 745, 91 CDOS 4702, 91 Daily Journal DAR 7088, review den (Cal)
1991 Cal LEXIS 3883 and cert den (US) 117 L Ed 2d 619, 112 S Ct 1476, reh den (US)
118 L Ed 2d 597, 112 S Ct 2002.
Footnote 92. Motor Vehicle Admin. of Maryland DOT v Seidel Chevrolet, Inc., 326 Md
237, 604 A2d 473.
Footnote 93. Warren v Department of Admin. (Fla App D5) 590 So 2d 514, 16 FLW D
3004.
Footnote 94. J. C. Hillary's v Massachusetts Com. against Discrimination, 27 Mass App

204, 536 NE2d 1104, review den 405 Mass 1202, 541 NE2d 344.
Footnote 95. Zong v Insurance Dep't, 150 Pa Cmwlth 66, 614 A2d 360, app den (Pa) 626
A2d 1159.
§ 579 --Constitutional issues
View Entire Section

Constitutional questions are also generally deemed waived when not raised at the first
opportunity consistent with good pleading and orderly procedure. 96 Therefore, a
petitioner waives a constitutional issue that she fails to raise at the agency hearings, 97
before the lower court, or in her petition for judicial review to the appellate court. 98 A
constitutional issue must be raised before the agency in the pleadings, motions, or
testimony during a hearing. Such issues may be raised before the board in a motion for,
or resistance to, a request for a rehearing or at the rehearing itself. At the very least, a
petitioner should state in a petition for rehearing that she believes the agency's decision
suffers from a constitutional infirmity. 99 In addition, a petitioner's argument that there
was no waiver when the appellate court in its original opinion decides an issue of first
impression and remands to the agency, will fail if the petitioner fails to raise the issue
before the agency on remand. 1 Moreover, a petitioner cannot obtain review of
procedural errors in the administrative process that were not raised before the agency
merely by alleging that every error violates due process. 2
A contrary view is that a constitutional issue need not be preserved before an agency
whose adjudication is reviewed by a court on the basis of a petition for review, 3
although the issue must be preserved in the trial court and any notice of appeal from the
decision of the trial court. 4
Footnotes
Footnote 96. St. Regis Paper Co. v Marshall (CA10 Colo) 591 F2d 612, 18 BNA FEP
Cas 1635, 18 CCH EPD ¶ 8888, cert den 444 US 828, 62 L Ed 2d 36, 100 S Ct 55, 20
BNA FEP Cas 1473, 20 CCH EPD ¶ 30266, reh den 444 US 974, 62 L Ed 2d 390, 100
S Ct 470, 21 CCH EPD ¶ 30343a; Quaker Action Group v Morton, 148 US App DC 346,
460 F2d 854; Chesterfield v Director of Revenue (Mo) 811 SW2d 375.
Footnote 97. Caauwe v Police Pension Bd. (1st Dist) 216 Ill App 3d 313, 160 Ill Dec 124,
576 NE2d 1078, app den 141 Ill 2d 536, 162 Ill Dec 483, 580 NE2d 109; Fisher v Iowa
Bd. of Optometry Examiners (Iowa) 478 NW2d 609.
Footnote 98. Lilly v North Carolina Dept. of Human Resources, 105 NC App 408, 413
SE2d 316.
Footnote 99. Fisher v Iowa Bd. of Optometry Examiners (Iowa) 478 NW2d 609.
Footnote 1. Caauwe v Police Pension Bd. (1st Dist) 216 Ill App 3d 313, 160 Ill Dec 124,
576 NE2d 1078, app den 141 Ill 2d 536, 162 Ill Dec 483, 580 NE2d 109.
Footnote 3. § 581.
Footnote 4. Pennsylvania State Police, Bureau of Liquor Control Enforcement v Beer &
Pop Warehouse, Inc., 145 Pa Cmwlth 355, 603 A2d 284.
A petitioner may raise and argue a constitutional claim in the appellate court and the
court has the power to order remedies, including a remand for a hearing, where
appropriate. The mere raising of a claim of such a procedural error does not, however,
destroy the subject matter jurisdiction of the court, and the claim may be waived by the
failure to argue the point. East Allegheny School Dist. v Secretary of Educ., 145 Pa
Cmwlth 477, 603 A2d 713.
§ 580 Manner and form of raising issues
View Entire Section

The rule requiring that objections to the proceedings of an administrative agency must be
raised before the agency requires that the objection be made specifically 5 and in a
proper manner 6 or the manner required by statute or rule. In particular situations,
by statute or otherwise, an application for a rehearing may be required. 7
Footnotes
583, 75 S Ct 467, 4 OGR 897.
Footnote 6. United States v Capital Transit Co., 338 US 286, 94 L Ed 93, 70 S Ct 115,
reh den 338 US 901, 94 L Ed 554, 70 S Ct 247.
Footnote 7. § 560.
§ 581 Exceptions
View Entire Section

The general rule of waiver is procedural rather than jurisdictional and exists for orderly
court administration. Therefore, an appellate court may consider an issue that was not
raised below where the facts are undisputed, the issue is one of substantive law that
affects the general pubic interest and the appellate court's refusal to consider the issue
would allow an erroneous application of a statute. 8 There may also be exceptional cases
or particular circumstances that will prompt a reviewing or an appellate court, where
injustice might otherwise result, to consider questions of law that were neither pressed
nor passed upon by the court or administrative agency below. 9 For example,
where a pro se petitioner has been potentially misled as to her appellate rights and may
have received an inadequate opportunity to present her arguments to the agency, review
may not be foreclosed. 10 Furthermore, the reviewing court may decide an issue not
raised in an agency action if the agency lacks either the power or the jurisdiction to
decide it. For example, the challenge to the constitutionality of a statute or a regulation
need not be raised before the agency. 11 In addition, when a jurisdictional defect is
alleged, the failure to raise the issue before the agency does not constitute a waiver. 12
Except for jurisdictional claims based upon constitutional challenges to an agency's
enabling legislation, a party is not entitled to raise arguments on appeal that it could have
raised, but did not raise, before the administrative agency. 13
The Model State Administrative Procedure Act of 1981, on the other hand, provides that
the general rule against consideration of issues not raised before the agency may be
avoided only in specific circumstances. A person may obtain judicial review of an issue
that was not raised before the agency only to the extent that the agency did not have
jurisdiction to grant an adequate remedy based on a determination of the issues; the
person did not know and was under no duty to discover, or did not know and was under a
duty to discover but could not reasonably have discovered, facts giving rise to the issue;
the agency action subject to judicial review is a rule and the person has not been a party
in adjudicative proceedings which provided an adequate opportunity to raise the issue;
the agency action subject to judicial review is an order and the person was not notified of
the adjudicative proceedings and substantial compliance with that Act; or the interest of
justice would be served by judicial resolution of an issue arising from a change in
controlling law occurring after the agency action; or agency action occurring after the
person exhausted the last feasible opportunity for seeking relief from the agency. 14
Footnotes
Footnote 8. Semple v Tri-City Drywall, Inc. (App) 172 Ariz 608, 838 P2d 1369, 123 Ariz
Adv Rep 14.
Footnote 9. International Ladies' Garment Workers' Union, etc. v Quality Mfg. Co., 420
US 276, 43 L Ed 2d 189, 95 S Ct 972, 88 BNA LRRM 2698, 76 CCH LC ¶ 10663;
NLRB v United Mine Workers, 355 US 453, 2 L Ed 2d 401, 78 S Ct 386, 41 BNA
LRRM 2449, 34 CCH LC ¶ 71257; Hormel v Helvering, 312 US 552, 85 L Ed 1037, 61
S Ct 719, 41-1 USTC ¶ 9322, 25 AFTR 1198.
Footnote 10. Lundahl v District of Columbia Dept. of Employment Services (Dist Col
App) 596 A2d 1001.
Footnote 12. Caldwell v Pima County (App) 172 Ariz 352, 837 P2d 154, 94 Ariz Adv
Rep 74.
Footnote 13. Board of Selectmen v Alcoholic Beverages Control Com., 32 Mass App
914, 585 NE2d 754.
F. Practice and Procedure on Review [582-618]
Research References
5 USCS §§ 703, 705; 28 USCS §§ 2112, 2341-2350
Procedure Act (1981) §§ 5-111, 5-113 through 5-115, 5-118
FRAP 15, 16, 18, 33
FRCP 5, 16, 24
1. In General [582-584]
§ 582 Generally
View Entire Section

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Depending upon the method in which relief from or review of agency action is sought 15
and the applicable statutes, the practice and procedure may be governed by the principles
governing ordinary actions at law, by the principles governing an ordinary appeal, or by
particular statutory rules provided by the statutes governing review of the acts of
individual agencies.
Some statutes, both the 1961 and 1981 Model State Administrative Procedure Acts, 16
for example, provide that the procedure shall be the same as in other civil cases, 17 and
this is a general rule even though the statute does not expressly so state, so long as it does
not otherwise provide. A hearing de novo by a court of an administrative determination
will be tried as any other civil action when the statute does not prescribe the procedure to
be followed or limit the scope of the determination to be made. 18 Some statutes
provide that the trial de novo shall proceed in all respects like other civil suits except that
the findings and order involved shall be prima facie evidence of the facts therein stated.
19 It has been pointed out, however, that where a statute provides for review, the
inclusion of adversary proceedings before the court is as important as encouraging them
before the commission. 20
Case authorities:
Review of an agency decision under G.S. § 150B-51(a) allows the court to determine
whether the "agency's decision states the specific reasons why the agency did not adopt
the [administrative law judge's] recommended decision," but that statute does not entitle
petitioner to review of whether those stated reasons were correct. Oates v North Carolina
Dep't of Correction (1994) 114 NC App 597, 442 SE2d 542.
A superior court judgment was vacated and remanded where plaintiff was dismissed; had
a hearing before an administrative law judge; another hearing before the State Personnel
Commission, which adopted the administrative law judge's findings that the dismissal be
left undisturbed; filed an action in superior court requesting a trial on the record
developed before the administrative law judge pursuant to GS § 126-37(b); and the
superior court conducted a hearing on the record and made its own findings and
conclusions, deciding that plaintiff was not dismissed for just cause. The superior court
treated the statute as creating a cause of action in which the court could make its own
findings of fact and substitute its own judgment for the Commission's and, in doing so,
exceeded its jurisdiction over state employee grievances. Allowing a new cause of action
at this point, after prior administrative hearings have been conducted, is senseless in that
it interrupts the logical progression on an employee's action from the administrative
hearing to appellate review in the superior court. Mitchell v Thornton, 94 N.C. App. 313,
was implicitly overruled by Harding v North Carolina Dept. of Correction, 334 N.C. 414.
Hill v Morton (1994) 115 NC App 390, 444 SE2d 683.
Footnotes
Footnote 16. Model State Administrative Procedure Act (1961) § 16; Model State

Law Reviews: Project: State Judicial Review of Administrative Action. 43

Administrative Law Review 571 (1991).
Footnote 17. State ex rel. Transcontinental Bus Service, Inc. v Carmody, 53 NM 367, 208
P2d 1073 (to be tried and determined as other civil actions without a jury); Dimitroff v
State Industrial Acci. Com., 209 Or 316, 306 P2d 398.
Footnote 18. Mason v World War II Service Compensation Board, 243 Iowa 341, 51
NW2d 432.
Footnote 19. 7 USCS § 499g(c).
Annotation: Construction and application of Federal Perishable Agricultural

Commodities Act, 21 ALR2d 840 § 11.
Footnote 20. Re Engineers Public Service Co. (CA3 Del) 221 F2d 708.
Practice References Judicial review from petition to judgment. 2 Federal Procedure,

L Ed, Administrative Procedure §§ 2:347-2:391.
§ 583 Prehearing conference
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A federal Court of Appeals may direct the attorneys for the parties in the review
proceeding before it to appear before the court, or a judge thereof, for a prehearing
conference to consider the simplification of the issues and such other matters as may aid
in the disposition of the case. 21 The court or judge must make an order reciting
the action taken at the conference and the agreements made by the parties regarding any
of the matters considered, and limiting the issues to those not disposed of by admissions
or agreement of counsel. 22 Such an order, when entered, controls the subsequent
course of the proceeding, unless modified to prevent manifest injustice. 23
Like the Courts of Appeals, the federal District Courts have the power, in any actions
before them, to exercise their discretion to direct the attorneys for the parties, or any
unrepresented parties, to appear for a pretrial conference 24 to consider and take action
with respect to:
• The formulation and simplification of the issues, including the elimination of frivolous
claims or defenses
• The necessity or desirability of amendments to the pleadings
• The possibility of obtaining admissions of fact and of documents which will avoid
unnecessary proof, stipulations regarding the authenticity of documents, and advance
rulings from the court on the admissibility of evidence
• The avoidance of unnecessary proof and of cumulative evidence
• The identification of witnesses and documents, the need and schedule for filing and
exchanging pretrial briefs, and the date or dates for further conferences and for trial
• The advisability of referring matters to a magistrate or master
• The possibility of settlement or the extrajudicial procedures to resolve the dispute
• The form and substance of the pretrial order
• The disposition of pending motions
• The need for adopting special procedures for managing potentially difficult or
protracted actions that may involve complex issues, multiple parties, difficult legal
questions, or unusual proof problems
• Such other matters as may aid in the disposition of the action 25
The District Court is required to enter an order reciting the action taken; and this order
will control the subsequent course of the action, unless modified by a subsequent order.
26
§ 583 ----Prehearing conference [SUPPLEMENT]
Rules:
(FRAP, Rule 33), amended in 1994, now refers to appeal conference rather than
prehearing conference. It provides that the court may direct the attorneys, and in
appropriate cases the parties, to participate in one or more conferences to address matters
to aid in the disposition of the proceedings, including the simplification of issues and
possibility of settlement. A conference may be conducted in person or by telephone.
Before the conference, attorneys must consult with their clients and obtain as much
authority as feasible to settle the case.
Footnotes
Footnote 21. 28 USCS § 2345; FRAP 33.
Forms: Motion and notice–For pretrial conference. 11A Am Jur Pl & Pr Forms (Rev),
Federal Practice and Procedure, Form 1422.
Stipulation–To set pretrial conference. 11A Am Jur Pl & Pr Forms (Rev), Federal
Practice and Procedure, Form 1421.
Order–Granting motion for pretrial conference. 11A Am Jur Pl & Pr Forms (Rev),

Order–Calling pretrial conference–Requiring pretrial statement. 11A Am Jur Pl & Pr

Forms (Rev), Federal Practice and Procedure, Form 1424.
Order–Setting preliminary pretrial conference. 11A Am Jur Pl & Pr Forms (Rev),

Pretrial order. 11A Am Jur Pl & Pr Forms (Rev), Federal Practice and Procedure,
Form 1441.
Pretrial order–Alternate form. 11A Am Jur Pl & Pr Forms (Rev), Federal Practice and
Procedure, Form 1442.
Footnote 26. FRCP 16(e).
§ 584 Discovery
View Entire Section

A petitioner is generally not entitled to present additional or new evidence at trial, 27

thus discovery pertaining to the introduction of new evidence is severely limited and is
within the sound discretion of the trial court. 28 A petitioner may be permitted to
make a showing that the documents sought or depositions requested are relevant and
material to the preparation of the case for trial and that the material has not been
previously produced. The trial court will then exercise its discretion in determining
whether the discovery sought will lead to relevant and material evidence. 29
A question regarding the availability of discovery on judicial review goes to the authority
of a court and is a question of law. An order regarding discovery is therefore reviewed
for the correction of errors at law. 30 If the petitioner seeks to discover information
which it could have sought and presented at public hearings and has failed to show that
the information was not available at the time of the public hearings, the trial court does
not abuse its discretion in denying the discovery request. 31
A federal court sitting in review of a federal agency action is also not generally free to
hold de novo hearings, unless required by statute. 32 Therefore, discovery is not
permitted prior to a court's review of the legality of agency action under the
Administrative Procedure Act. 33 However, discovery may be permitted to determine
whether documents which are properly part of the administrative record have been
withheld. 34
Footnotes
118 L Ed 2d 597, 112 S Ct 2002.
In judicial review of a contested case, the court sits in an appellate capacity, and
therefore, because the court has no authority to hear additional evidence, it normally has
no authority to order discovery. Fisher v Iowa Bd. of Optometry Examiners (Iowa) 478
NW2d 609.
118 L Ed 2d 597, 112 S Ct 2002.
For a discussion of limited discovery when the administrative record is inadequate, see §
595.
118 L Ed 2d 597, 112 S Ct 2002.
Footnote 33. National Law Center on Homelessness & Poverty v United States Dept. of
Veterans Affairs (DC Dist Col) 736 F Supp 1148, later proceeding (DC Dist Col) 1991
US Dist LEXIS 12633, reported in full (DC Dist Col) 765 F Supp 1, motion to vacate den
(DC Dist Col) 1992 US Dist LEXIS 1533 and affd (App DC) 296 US App DC 89, 964
F2d 1210.
2. Record on Review [585-599]
a. State Courts [585-589]

§ 585 Generally
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The general rule in reviewing a state administrative agency decision is that, in the
absence of a statute providing otherwise, the review is limited to the record 35 made in
the administrative proceeding. 36 Similarly, state administrative procedure acts provide
that judicial review of disputed issues of fact must be confined to the agency record, 37
supplemented by additional evidence taken pursuant to statute 38 and that the review
must be conducted by the court without a jury. In cases of alleged irregularities and
procedure before the agency, however, which are not shown in the record, proof of the
alleged irregularities may be taken in the court. The court, upon request, must hear oral
argument and receive written briefs. 39 Accordingly, a record of material and
substantial evidence must be created by the agency so that a reviewing court can
determine whether sufficient factual development occurred or whether the agency's
actions were based on unwarranted or undeclared assumptions. This requires that the
record contain findings of basic facts upon which all material issues in the proceedings
and upon which the ultimate findings of facts or conclusions are based. Therefore, it is
essential to surviving judicial review that the record of a contested agency action contains
such factual findings as permit a court to follow the agency's reasoning from the
evidentiary facts on record to its eventual legal conclusions. In addition, a contested case
hearing must provide, and the record of that proceeding must document, information
sufficient for the making of a reasonable decision. 40
 Observation: The need for such strict compliance with the statutory provisions
relating to the content of an agency record derives largely from a need to ascertain
whether contested case hearings actually provide statutorily mandated procedural
protections. 41
The agency's ultimate findings must be sustained if warranted by the hearing officer's
finding of evidentiary facts in the record. 42 Conversely, absent such information, the
agency decision must be set aside as arbitrary. 43
Normally, a reviewing court must consider the original or a certified copy of the entire
record before the administrative agency. When the record or an exhibit is lost, however,
the missing parts of the record may be supplied, upon application and an order of the
court, by the best evidence the nature of the case will admit. This evidence is ordinarily
provided by affidavit from the clerk or Master, the attorneys, or any other person who is
best acquainted with the facts or nature of the missing record. If the newly supplied
evidence is the best that the nature of the case will permit, and if it is sufficiently clear,
cogent, and definite, then it will be accepted with all the force and effect of the original.
A petitioner may not assert that the trial court erred by considering less than a complete
record when the petitioner fails to take steps to have the original or certified copy of the
entire record transmitted to the reviewing court. 44
An appellant has the burden of providing citations to the record which support its
position. When there are no references to portions of the record for support and
argument for reversal, the reviewing court will not consider that argument. 45
Where the disposition of a state agency action calls for the gathering of evidence, the
finding of facts, and the application of legal conclusions, the matter may proceed in the
trial court if there is no agency record amenable to appellate review. 46
Case authorities:
A county which had been granted party status to participate in an administrative hearing
was properly denied standing to appeal the agency's decision, because RS Art 6252- 13a
provides that a party seeking judicial review must offer the agency record into evidence,
and the county neglected to do so; because the issue of standing in the district court
requires findings of fact, and because no statement of facts was provided, the court had to
assume that there was no evidence to support the county's standing. Ft. Bend County v
Texas Parks & Wildlife Com. (1991, Tex App Austin) 818 SW2d 898.
Footnotes
Footnote 35. The record, for purposes of judicial review of the agency's findings, consists
solely of a formal finding of basic or evidentiary facts made by the panel or
administrative law judge. Fredrickson v Denver Public School Dist. No. 1 (Colo App)
819 P2d 1068.
Footnote 36. Department of Corrections v Colbert, 202 Ga App 27, 413 SE2d 498,
102-238 Fulton County D R 10B; Kilauea Neighborhood Assn. v Land Use Com., 7
Hawaii App 227, 751 P2d 1031; Morgan v Idaho Dept. of Health and Welfare, 120 Idaho
6, 813 P2d 345; Garcia v County of Bernalillo (App) 114 NM 440, 839 P2d 650.
Footnote 37. Model State Administrative Procedure Act (1961) § 15(f); Model State
Footnote 39. Model State Administrative Procedure Act (1961) § 15(f).
Footnote 40. Mekss v Wyoming Girls' School (Wyo) 813 P2d 185, reh den (Wyo) 1991
Wyo LEXIS 120 and cert den (US) 116 L Ed 2d 777, 112 S Ct 872.
Footnote 42. Fredrickson v Denver Public School Dist. No. 1 (Colo App) 819 P2d 1068.
Footnote 44. Goins v University of Tennessee Memorial Research Center & Hosp. (Tenn

App) 821 SW2d 942.
Footnote 45. Central Illinois Public Service Co. v Illinois Commerce Com. (4th Dist) 219
Footnote 46. State Farm Mut. Auto. Ins. Co. v State, Dept. of Public Advocate, 227 NJ
Super 99, 545 A2d 823, certif gr 114 NJ 479, 555 A2d 605 and certif gr 114 NJ 479, 555
A2d 605 and affd 118 NJ 336, 571 A2d 957.
Annotation: Composition of record on review of agency action under 28 USCS §

2112(b) and Rule 16(a) of Federal Rules of Appellate Procedure, 32 ALR Fed 648.
§ 586 As required on trial de novo
View Entire Section

Judicial trial de novo after an administrative hearing is not usually intended as a trial
without appropriate consideration of the evidence upon which the administrative body
based its action. 47 Under statutes providing for a trial de novo, the record of the agency
proceedings is held required, and, certainly, competent evidence. 48
Footnotes
Footnote 47. Dare v Board of Medical Examiners, 21 Cal 2d 790, 136 P2d 304.
Footnote 48. Civil Service Com. v Matlock, 206 Ark 1145, 178 SW2d 662.
For a discussion of what a trial de novo in review of administrative agency decisions

encompasses, see § 545.
§ 587 Transmittal, contents, cost
View Entire Section

The state administrative procedure acts contain requirements regarding the transmittal,
contents and assessment of costs of sending the agency's record to the reviewing court.
After the service of the petition the agency must transmit to the reviewing court the
original or a certified copy of the entire record of the proceedings under review, 49
including any agency documents expressing the agency action, or other documents
identified by the agency as having been considered by it and used as a basis for its action,
and any other material described as the agency record for the type of agency action at

issue, subject to the applicable statutory provisions. 50
If part of the record has been preserved without a transcript, 51 the agency must prepare
a transcript for inclusion in the record transmitted to the court, except for portions which
the parties stipulate to omit. The agency will charge the petitioner with the reasonable
cost of preparing any necessary copies for transmittal to the court, although the failure of
a petitioner to pay any of this cost to the agency does not relieve the agency for
responsibility for timely preparation of the record and transmittal to the court. 52
By stipulation of all parties to the review proceedings, the record may be shortened, 53
summarized, or organized. 54 A party who unreasonably refuses to stipulate to limit the
record may be taxed by the court for the additional costs. 55 For example, the court may
tax the costs of preparing transcripts and copies for the record against the party who
unreasonably refuses to stipulate to shorten, summarize, or organize the record. 56
Footnotes
Footnote 49. Model State Administrative Procedure Act (1961) § 15(d); Model State
§ 588 --Transcripts
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An agency may be statutorily required to accurately and completely preserve all

testimony in proceedings before it and on the request of any party make a full or partial
transcript available at no more than actual cost. 57 If an agency is statutorily required to
provide a transcript of agency proceedings at no more than actual cost, the agency must
provide indigent petitioners with transcripts at no charge. 58 But in the absence of a
statutory directive, a court is without power to order that an indigent petitioner be
provided with a transcript at no cost. 59
Footnotes
Footnote 57. Gretz v Florida Unemployment Appeals Com. (Fla) 572 So 2d 1384, 16
FLW S 50.
Footnote 58. Smith v Department of Health & Rehabilitative Services (Fla) 573 So 2d
320, 16 FLW S 40, later proceeding (Fla App D1) 596 So 2d 130, 17 FLW D 730.
Footnote 59. Civil Service Com. v Superior Court of Los Angeles County (2nd Dist) 63
Cal App 3d 627, 133 Cal Rptr 825 (holding that due process and equal protection do not
dictate otherwise).
The trial court erred in granting the petition of a former city employee for an order
requiring the city to provide him, without cost, a copy of the transcript of administrative
proceedings that resulted in denial of his claim for service connected retirement disability
benefits, despite the employee's declaration of indigency, where the city had not refused
to cooperate in the preparation of a settled statement or refused to present to the court for
its review any available tapes of the proceeding, and where the record revealed that the
employee had been afforded the essentials of due process in regard to notice, opportunity
to be heard, and a fair hearing. The declaration of indigency did not affect the
requirement of a city code section relating to judicial review of administrative
proceedings that a party requesting a transcription of the tape recordings of a proceeding
pay for such transcript. Sacramento v Superior Court of Sacramento County (3rd Dist)
113 Cal App 3d 715, 170 Cal Rptr 75.
§ 589 Supplementation of record
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Under the Model State Administrative Procedure Acts, judicial review of disputed issues
of fact must be confined to the agency record for judicial review, supplemented by
additional evidence taken pursuant to statute 60 and the court may require or permit
subsequent corrections or additions to the record. 61 The only provision for
supplementing the record is for the court to order additional evidence to be taken by the
agency 62 upon such conditions as the court deems proper. 63 While the court may
order that additional evidence be taken before the agency, the court is not obligated to do
so. The decision is purely discretionary. 64
Generally, the agency's deliberations in a contested case proceeding are not part of the
record and thus are not subject to judicial review. 65 Deliberations that are made part of
the record before the agency, may, however, come before the District Court on judicial
review. In addition, if the agency fails to make its deliberations a part of the record, a
judicial order, made pursuant to a motion to expand the record, directing expansion of the
record before the agency to include the deliberations may be proper, 66 provided that the
objection to the agency's decision was properly presented to the board. 67 In this
instance, the agency's deliberations might also be subject to judicial review. An
application for leave to expand the record must meet the statutory grounds for presenting
additional evidence, namely that the additional evidence was material to the issues before
the agency or that there was good reason for the failure to present it in the contested case
proceeding before the agency. 68
Footnotes
Footnote 62. Department of Corrections v Colbert, 202 Ga App 27, 413 SE2d 498,
102-238 Fulton County D R 10B.
1031.
1031.
b. Federal Courts [590-599]
§ 590 Generally
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Several statutes 69 and rules 70 provide for the time and manner of filing, contents,
certification, modification, and transfer of the record in proceedings for review or
enforcement of agency orders before the Courts of Appeals. 71 The Administrative
Procedure Act 72 governs such matters in proceedings before the federal District
Courts. 73

Practice Aids: Motion–In United States Court of Appeals–For order granting leave to
proceed on appeal in forma pauperis–By party on appeal of administrative agency
decision. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 390.
Case authorities:
USDA regulations and rules of practice allow officer to take judicial notice; therefore,
judicial officer, in reviewing administrative law judge's suspension of produce
dealership's license under Perishable Agricultural Commodities Act, 7 USCS § 499h,
was entitled to consider findings in another administrative proceeding where officer gave
party required opportunity to object before taking official notice. Conforti v United States
(1996, CA8) 74 F3d 838.
Footnotes
Footnote 69. 28 USCS §§ 2112, 2346, 2347.
Footnote 70. FRAP 16, 17.
Footnote 72. 5 USCS §§ 701-706.
§ 591 Record in Court of Appeals
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The record before the Court of Appeals in a proceeding to review or enforce a federal
agency order consists of: (1) the order sought to be reviewed or enforced; (2) the
findings or report on which the order is based; and (3) the pleadings, evidence, and
proceedings before the agency, 74 or such portions thereof as may consistently with the
Rules be designated to be included in the record by written stipulation of the parties filed
with the agency or the court, 75 or such portions thereof as the court upon motion of a
party or, after a prehearing conference, upon its own motion may by order in any such
proceeding designate to be included in the record. 76 In an appropriate case, such a
stipulation or order may provide that no record need be filed in the Court of Appeals;
however, if the correctness of an agency's finding of fact is in question, all of the
evidence before the agency must be included in the record, except such as the parties by
written stipulation agree to omit as wholly immaterial to the questioned finding. 77
"Evidence," within the meaning of the federal rule 78 and federal statute 79 includes
any document that might have influenced the agency's decision, but subject to any
privilege that the agency may properly claim as protecting its interest in nondisclosure.
80 Regardless of the foregoing, an agency may at its option file in court the entire
record of the proceedings before it without abbreviation; and indeed, where the petitioner
so requests, the agency must do so. 81 In federal courts, predecisional transcripts of
deliberations within an agency are not ordinarily considered by a court in its review of an
agency record. 82 Where an agency has a policy of taping hearings rather than
providing written transcripts, the written transcript of the hearing is not required to be
part of the official record; only if the court finds the tapes unsatisfactory and specifically
requests a written transcript, will such be required. 83
Although a Court of Appeals admits evidence not in the administrative record for the
purpose of determining whether the administrative record was adequate, it does not
conduct a trial de novo where the District Court did not use any evidence outside the
administrative record in reaching its decision. 84
Footnotes
Forms: Stipulation–Designation of parts of record to be filed [FRAP 17(b)]. 2 Federal

Procedural Forms, L Ed, Appeal, Certiorari, and Review § 3:485.
Annotation: Composition of record on review of agency action under 28 USCS §

2112(b) and Rule 16(a) of Federal Rules of Appellate Procedure, 32 ALR Fed 648.
Forms: Stipulation–That certified list of documents etc., or that no part of record, be

filed with reviewing court [FRAP 17(b)]. 2 Federal Procedural Forms, L Ed, Appeal,
Footnote 80. National Courier Asso. v Board of Governors of Federal Reserve System,
170 US App DC 301, 516 F2d 1229, 32 ALR Fed 628.
Footnote 82. Deukmejian v Nuclear Regulatory Com. (1984) 243 US App DC 68, 751
F2d 1287, 21 Envt Rep Cas 2174, 15 ELR 20822, motion gr, vacated, in part on other
grounds, on reh, en banc 245 US App DC 296, 760 F2d 1320, on reh 252 US App DC
194, 789 F2d 26, 16 ELR 21006, cert den 479 US 923, 93 L Ed 2d 302, 107 S Ct 330.

Footnote 83. Gearan v Department of Health & Human Services (CA FC) 838 F2d 1190.
Footnote 84. Norwich Eaton Pharmaceuticals, Inc. v Bowen (CA6 Ohio) 808 F2d 486,
De novo review is discussed in § 545.
§ 592 Record in federal District Courts
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Under the Administrative Procedure Act 85 a federal District Court has jurisdiction 86
to review final agency action 87 for which there is no other remedy in a court. The
basis for such review is the full administrative record that was before the agency at the
time it made its decision, on those parts of it cited by a party. 88
Judicial review of agency action is generally limited to the full administrative record
already in existence, and not a new record made initially in the reviewing court. 89
If a court is to review an agency's action fairly, it should have before it neither more nor
less information than the agency did when it made its decision. 90 Therefore, the
administrative record consists of what was before the agency at the time the decision
being reviewed was made. 91 The rule confining judicial review of agency action to the
administrative record applies not only to proceedings involving formal evidentiary-type
hearings but also to informal agency adjudication on a nonevidentiary record. 92
The administrative record consists of all documents and materials directly or indirectly
considered by agency decisionmakers and includes evidence contrary to the agency's
position. 93 In reviewing an agency regulation, the whole record consists solely of the
administrative rulemaking record. 94 The whole record in an informal rulemaking
case is comprised of the basis and purpose statement required by statute, 95 comments
received, hearings held, if any, 96 and the regulatory flexibility analysis required by the
Regulatory Flexibility Act of 1980. 97 Stipulations entered into before the agency will
ordinarily be given great weight by a reviewing court; however, where such a stipulation
was inadvertent, contrary to law or fact, or made without proper authority, the court may
disregard it. 98
Although the APA does allow review based not only on the whole record, but on those
parts of it cited by a party, 99 for review to go forward on a partial record, the court
would have to be convinced that the selection of particular portions of the record was the
result of mutual agreement between the parties after both sides had fully reviewed the
complete record. 1
Remand from the Court of Appeals to the District Court is appropriate where the lower
court's decision on review of the agency action was not based on the full administrative
record. 2

§ 592 ----Record in federal District Courts [SUPPLEMENT]
Case authorities:
District Court would review decision of Interior Board of Land Appeals (IBLA) and not
ALJ in dispute over ownership of islands within Colorado River, where IBLA had
reversed decision of ALJ, since agency has all power it would have in making initial
decision when it reviews decision of ALJ and scope of Court's review is limited solely to
agency record. Koch v United States (1993, DC Colo) 824 F Supp 996.
Footnotes
Footnote 86. As to jurisdiction of federal District Courts to review federal agency action,
see §§ 429-430.
Footnote 87. As to the requirement of finality of agency action in general, see §§

487-504.
Norfolk & Walpole v United States Army Corps of Engineers (DC Mass) 137 FRD 183,
22 ELR 20105, summary judgment gr (DC Mass) 772 F Supp 680, 22 ELR 20282, affd
(CA1 Mass) 968 F2d 1438, 35 Envt Rep Cas 1013, 22 ELR 21337; RSR Corp. v
Environmental Protection Agency (ND Tex) 588 F Supp 1251, 21 Envt Rep Cas 1861, 15
ELR 20129; Stop H-3 Asso. v Dole (CA9 Hawaii) 740 F2d 1442, 21 Envt Rep Cas 1644,
14 ELR 20777, cert den 471 US 1108, 85 L Ed 2d 859, 105 S Ct 2344, appeal after
remand (CA9 Hawaii) 870 F2d 1419, 29 Envt Rep Cas 1390, 19 ELR 20873; AT & T
Information-Systems, Inc. v General Services Admin., 258 US App DC 254, 810 F2d
1233, 33 CCF ¶ 75062.
As to evidence before the court, see § 611.
Footnote 91. Norfolk & Walpole v United States Army Corps of Engineers (DC Mass)
137 FRD 183, 22 ELR 20105, summary judgment gr (DC Mass) 772 F Supp 680, 22
ELR 20282, affd (CA1 Mass) 968 F2d 1438, 35 Envt Rep Cas 1013, 22 ELR 21337;
County of Bergen v Dole (DC NJ) 620 F Supp 1009, affd without op (CA3 NJ) 800 F2d
1130 and affd without op (CA3 NJ) 800 F2d 1130.

Citizens to Preserve Overton Park, Inc. v Volpe, 401 US 402, 28 L Ed 2d 136, 91 S Ct
814, 2 Envt Rep Cas 1250, 1 ELR 20110; AT & T Information-Systems, Inc. v General
Services Admin., 258 US App DC 254, 810 F2d 1233, 33 CCF ¶ 75062.
County of Bergen v Dole (DC NJ) 620 F Supp 1009, affd without op (CA3 NJ) 800 F2d
1130 and affd without op (CA3 NJ) 800 F2d 1130.
Footnote 94. St. James Hospital v Heckler (ND Ill) 579 F Supp 757, affd (CA7 Ill) 760
F2d 809.
Footnote 98. Kaminer Constr. Corp. v United States, 203 Ct Cl 182, 488 F2d 980.
§ 593 Original papers or copies; certified lists
View Entire Section

When filing the record, the agency may file the original papers from the agency
proceeding, or it may file certified copies of such papers. 3 If the original papers are
filed, they must be returned to the agency upon the final determination of the review or
enforcement proceeding. 4 Pending a final determination, the Court of Appeals may
return such papers to the agency on a temporary basis if needed for the transaction of
public business. 5 Certified copies of any papers included in the record or any
supplemental record may also be returned to the agency upon the final determination of
the review or enforcement proceedings. 6
Instead of filing the actual record or designated parts of it, an agency may file a certified
list of all the documents, transcripts of testimony, exhibits, and other material comprising
the record, or a list of such parts of it as the parties may designate, adequately describing
each; and the filing of the certified list constitutes filing the record. 7 The parties may
also stipulate that neither the record nor a certified list be filed with the court, in which
case they must file the stipulation with the clerk of court; the date of the filing of the
stipulation is then deemed the date on which the record is filed. 8 In the event that a
certified list is filed, or that the parties designate only parts of the record for filing or
stipulate that neither the record nor a certified list be filed, the agency will retain the
record or parts thereof. All parts of the record so retained are a part of the record on
review for all purposes. 9 Any record or part of a record which is retained by an agency
must be transmitted to the Court of Appeals upon request either by the court or by a
party, prior stipulations to the contrary notwithstanding. 10
Footnotes
Forms: Stipulation–That certified list of documents etc., or that no part of record, be

filed with reviewing court [FRAP 17(b)]. 2 Federal Procedural Forms, L Ed, Appeal,
§ 594 Time to file
View Entire Section

In review proceedings, the agency must file the record with the clerk of the Court of
Appeals within 40 days after service upon it of the petition for review, unless a different
time is specified in the statute authorizing review. 11 In enforcement proceedings, the
agency need not file the record unless the respondent has filed an answer contesting
enforcement of the order, or unless the court otherwise orders. 12 Where the record
must be filed, the time limit is 40 days from the filing of the application for enforcement.
13 The Court of Appeals has discretion to shorten or extend the prescribed time limits
for filing. 14 The clerk of court is required to notify all parties of the date on which the
record is filed. 15

Footnotes
Forms: Motion–For order extending or shortening time for filing record [FRAP 17(a)].
2 Federal Procedural Forms, L Ed, Appeal, Certiorari, and Review § 3:483.
Request–By administrative agency–For extension of time for preparing and

transmitting record on review [FRAP 17(a)]. 2 Federal Procedural Forms, L Ed,
Appeal, Certiorari, and Review § 3:484.
§ 595 Curing an inadequate record
View Entire Section

In order to allow for meaningful judicial review, the agency must produce an
administrative record that delineates the path by which it reached its decision. 16 If the
record is not adequate, the reviewing court may insist that the agency produce, by
whatever means the agency chooses, a record that does meet the required level of
performance. 17 However, a reviewing court may not impose upon the agency specific
procedural steps that must be followed in order to create a reviewable record. 18
Accordingly, a court may require agency officials who participated in the challenged
action to give testimony explaining their actions, if such are unclear from the record. 19
An explanation will not be required where the record is adequate for effective judicial
review, 20 or where such a requirement would amount to a trial de novo. 21 A court
may also require an agency to supply a statement of its reasons for taking a particular
action. 22
Furthermore, a reviewing court is justified in looking outside the record–
–where the documents in question are necessary to explain the agency's action. 23
–to understand an otherwise inexplicable administrative action. 24
–to explain an unclear or technical record. 25
Although it has been held that discovery is not a remedy for an inadequate administrative
record, 26 petitioners who make a substantial showing that an administrative record is
incomplete are entitled to an opportunity to determine, by limited discovery, whether any
other documents which are properly part of the administrative record have been withheld.
27
Footnotes
Footnote 16. Occidental Petroleum Corp. v SEC, 277 US App DC 112, 873 F2d 325,
CCH Fed Secur L Rep ¶ 94388.
Footnote 19. Camp v Pitts, 411 US 138, 36 L Ed 2d 106, 93 S Ct 1241; Citizens to

Preserve Overton Park, Inc. v Volpe, 401 US 402, 28 L Ed 2d 136, 91 S Ct 814, 2 Envt
Rep Cas 1250, 1 ELR 20110; Virginia Agric. Growers Ass'n v Donovan (CA4 Va) 774
F2d 89, later proceeding (CA4 Va) 803 F2d 714; Occidental Petroleum Corp. v SEC, 277
US App DC 112, 873 F2d 325, CCH Fed Secur L Rep ¶ 94388.
As to the power of the court to hear additional evidence, see § 612.
Footnote 20. Bank of Commerce v City Nat. Bank (CA5 Tex) 484 F2d 284, cert den 416
US 905, 40 L Ed 2d 109, 94 S Ct 1609.
Footnote 21. Couch v Udall (WD Okla) 265 F Supp 848, affd (CA10 Okla) 404 F2d 97.
Trial de novo is discussed in §§ 545, 546.
Footnote 22. Maine v Kreps (CA1 Me) 563 F2d 1043, 7 ELR 20762, appeal after remand
(CA1 Me) 563 F2d 1052, 7 ELR 20790.
ELR 20282, affd (CA1 Mass) 968 F2d 1438, 35 Envt Rep Cas 1013, 22 ELR 21337.
Footnote 24. NAACP v Wilmington Medical Center, Inc. (DC Del) 453 F Supp 280, later
proceeding (DC Del) 453 F Supp 330 and remanded (CA3 Del) 599 F2d 1247; County of
Bergen v Dole (DC NJ) 620 F Supp 1009, affd without op (CA3 NJ) 800 F2d 1130 and
affd without op (CA3 NJ) 800 F2d 1130.
(CA1 Mass) 864 F2d 954, 19 ELR 20631.
Footnote 26. National Petroleum Refiners Asso. v Federal Trade Com. (DC Dist Col) 392
F Supp 1052, 1974-1 CCH Trade Cases ¶ 75119.
Footnote 27. National Law Center on Homelessness & Poverty v United States Dept. of

Veterans Affairs (DC Dist Col) 736 F Supp 1148, later proceeding (DC Dist Col) 1991
F2d 1210.
Regarding discovery in judicial review of administrative actions generally, see § 584.
§ 596 Supplementation of the record; omissions or misstatements
View Entire Section

If anything material to any party is omitted from the record or misstated therein, the
parties may at any time supply the omission or correct the misstatement by stipulation, or
the court may at any time direct that the omission or misstatement be corrected and, if
necessary, that a supplemental record be prepared and filed. 28 The practice of
allowing supplementation of the record is the exception rather than the rule. 29
Supplementation of the record based on allegations that the agency relied on extra-record
evidence may be required if petitioners make a prima facie showing that the agency
excluded from the record evidence adverse to its position or that the agency's stated
rationale is but a pretext masking its true basis of decision. 30 Also, supplementation
of the record based on agency bad faith may be considered if a petitioner's allegations are
documented with a requisite degree of specificity, and are not conclusory. 31
Additionally, a reviewing court is justified in supplementing the record–
–where bad faith or improper behavior is claimed, 32 although a strong showing of bad
faith or improper behavior would be necessary to allow a party to supplement the
administrative record with evidence of bias or other illegal actions. 33
–where evidence either confirming or denying agency predictions made in the original
decision subsequently becomes available. 34
–to show factors the agency should have considered but did not. 35
After-the-fact supplementation of the administrative record by the parties may be done

only by joint stipulation. 36 Moreover, where an agency is allowed to supplement the
administrative record to provide additional explanation of the reasons for its decision, the
agency may not offer new rationalizations; the new material should be merely
explanatory of the original record. 37
Footnotes
Forms: Motion–To correct or supplement record [FRAP 16(b)]. 2 Federal Procedural

Stipulation–For supplying omission or correcting misstatement in record [FRAP
Order–To transmit and file portion of administrative record previously omitted from
record on appeal [FRAP 17(b)]. 2 Federal Procedural Forms, L Ed, Appeal, Certiorari,
and Review § 3:487.
Footnote 29. Deukmejian v Nuclear Regulatory Com., 243 US App DC 68, 751 F2d
1287, 21 Envt Rep Cas 2174, 15 ELR 20822, motion gr, vacated, in part, on reh, en banc
245 US App DC 296, 760 F2d 1320, on reh 252 US App DC 194, 789 F2d 26, 16 ELR
ELR 20282, affd (CA1 Mass) 968 F2d 1438, 35 Envt Rep Cas 1013, 22 ELR 21337.
Corning Sav. & Loan Asso. v Federal Home Loan Bank Bd. (CA8 Ark) 736 F2d 479.
(CA1 Mass) 864 F2d 954, 19 ELR 20631.
(CA1 Mass) 864 F2d 954, 19 ELR 20631.
Footnote 37. AT & T Information-Systems, Inc. v General Services Admin., 258 US App
DC 254, 810 F2d 1233, 33 CCF ¶ 75062.
§ 597 Effect of multiple petitions for review in different courts; transfer
View Entire Section

If proceedings have been instituted in two or more Courts of Appeals with respect to the
same order, the following rules apply. If, within 10 days after issuance of the order, the
agency receives, from the persons instituting the proceedings, the petition for review with
respect to proceedings in at least two Courts of Appeals, the agency must, promptly after
the expiration of the 10-day period, so notify the Judicial Panel on Multidistrict
Litigation in such form as that panel prescribes. 38 The judicial panel will then, by
random selection, designate one Court of Appeals, from among those in which petitions
for review have been filed and received within the 10-day period, in which the record is
to be filed, and issue an order consolidating the petitions for review in that court. 39
The agency must file the record in the designated court. 40 If the agency receives the
petition for review with respect to proceedings in only one Court of Appeals, from
persons instituting the proceedings, the agency must file the record in that court
notwithstanding the institution in any other Court of Appeals of proceedings for review
of that order. 41 In all other cases in which proceedings have been instituted in two or
more Courts of Appeals with respect to the same order, the agency must file the record in
the court in which proceedings with respect to the order were first instituted. 42 A copy
of the petition or other pleading which institutes proceedings in a Court of Appeals and
which is stamped by the court with the date of filing constitutes the petition for review
for these purposes. 43
All courts in which proceedings are instituted with respect to the same order, other than
the court in which the record is filed, must transfer those proceedings to the court in
which the record is first filed. 44 Thereafter, the court in which the record is filed may,
for the convenience of the parties in the interest of justice, transfer all the proceedings
with respect to that order to any other Court of Appeals. 45 It is also recognized that a
Court of Appeals has an inherent discretionary power to transfer the proceeding to
another circuit in the interest of justice in sound judicial administration. 46
A motion for extraordinary relief from an agency order must, under some circumstances,
be treated similarly to a petition for review for purposes of applying the statute requiring
the filing of the record in a particular Court of Appeals. 47
In review proceedings under the Hobbs Act, a Court of Appeals may order a transfer to a
District Court for the district in which the petitioner resides or has its principal office, for
a hearing and determination as if the proceedings were originally initiated in the District
Court, when a hearing is not required by law and a genuine issue of material fact is
presented. The procedure in such cases is governed by the Federal Rules of Civil
Procedure. 48
The transfer of agency review proceedings between United States District Courts is not
controlled by the statute which controls transfers between Courts of Appeals, 49 even
though that provision may be better adapted to agency review proceedings; rather,
transfer between District Courts is governed by the statutes dealing with transfer of civil
actions generally. 50
Footnotes

Footnote 38. 28 USCS § 2112(a)(1), (3).
Practice before the Judicial Panel on Multidistrict Litigation is discussed in 32A Am Jur
2d, Federal Practice and Procedure §§ 1844-1849.
Footnote 39. 28 USCS § 2112(a)(3).
Footnote 40. 28 USCS § 2112(a)(3).
Footnote 41. 28 USCS § 2112(a)(1).
Footnote 43. 28 USCS § 2112(a)(2).
Petitions for review are discussed generally in §§ 562 et seq.
Footnote 44. 28 USCS § 2112(a)(5).
Annotation: Power of Federal Courts of Appeals to transfer cases between circuits, 22

ALR3d 563.
Footnote 45. 28 USCS § 2112(a)(5).
Annotation: Construction and application of provisions of 28 USCS § 2112(a) for

transfer, from one United States Court of Appeals to another, of proceedings to review
or enforce orders of administrative agencies, 19 ALR Fed 520.
Footnote 47. Ball v NLRB (CA4) 299 F2d 683, 49 BNA LRRM 2658, 44 CCH LC ¶
17437, cert den 369 US 838, 7 L Ed 2d 843, 82 S Ct 868, 49 BNA LRRM 2955, 44
CCH LC ¶ 17527; American Public Gas Asso. v Federal Power Com., 180 US App DC
380, 555 F2d 852, 58 OGR 281; Chicago v Federal Power Com., 124 US App DC 13,
360 F2d 828.
Footnote 48. 28 USCS § 2347(b)(3).
Footnote 50. New York C. R. Co. v United States (SD NY) 200 F Supp 944, 5 FR Serv
2d 416.
Transfers between District Courts are generally discussed in 77 Am Jur 2d, Venue §§
48-92.
§ 598 --"Same order" requirement

View Entire Section
The statutory transfer provision 51 will not usually be applied where the orders
appealed from are in fact different, 52 even though they may be substantially
similar. 53 There is, however, authority suggesting that some courts will liberally
construe the "same order" requirement so as to allow transfer to permit review by a single
court of closely related matters 54 such as sequential orders arising from the same
administrative background and cumulative record. 55
 Comment: In revising the statute regarding transfer of petitions for review, Congress
noted in 1987 that the amendment is not intended to change the practice of having
sequential or closely related orders issued in the course of the same or interrelated
administrative proceedings treated as the "same order" and reviewed by the Court of
Appeals reviewing the initial order. 56
Factors that the courts have considered relevant in deciding whether agency actions are
the same order include the unitary form of the order, the agency's own characterization of
its action, the origin of the actions in the same or interrelated proceedings before the
agency, and the necessity of the agency's filing a single record before more than one
court. 57
Footnotes
Footnote 52. Public Interest Research Group v FCC (CA1) 522 F2d 1060, 8 Envt Rep
Cas 1162, cert den 424 US 965, 47 L Ed 2d 731, 96 S Ct 1458; Pan American World
Airways, Inc. v Civil Aeronautics Board (CA2) 380 F2d 770, affd 391 US 461, 20 L Ed
2d 748, 88 S Ct 1715, reh den 393 US 957, 21 L Ed 2d 369, 89 S Ct 370; Midwest
Video Corp. v United States (CA8) 362 F2d 259.
Footnote 53. Far East Conference v Federal Maritime Com., 119 US App DC 110, 337
F2d 146, cert den 379 US 991, 13 L Ed 2d 611, 85 S Ct 704 and cert den 379 US 991,
13 L Ed 2d 611, 85 S Ct 705.
Footnote 54. Bristol Laboratories v Richardson (CA1) 456 F2d 563; American Tel. &
Tel. Co. v Federal Communications Com. (CA2) 519 F2d 322; Eastern Air Lines, Inc. v
Civil Aeronautics Board, 122 US App DC 375, 354 F2d 507.
(CA3) 598 F2d 759, 13 Envt Rep Cas 1168, 9 ELR 20338; American Civil Liberties
Union v Federal Communications Com., 158 US App DC 344, 486 F2d 411.
Footnote 56. Senate Judiciary Committee Report No. 100-263 (1987, 100th Cong., 1st
Sess.) p. 5.
Footnote 57. Natural Resources Defense Council, Inc. v U. S. Environmental Protection

Agency, 218 US App DC 1, 673 F2d 392, 15 Envt Rep Cas 1157, 11 ELR 20011, cert
den 459 US 879, 74 L Ed 2d 143, 103 S Ct 175, 17 Envt Rep Cas 2168.
§ 599 --"First to file" rule
View Entire Section

Except where the agency receives two or more petitions for review with respect to an
order within ten days after it is issued, 58 in cases in which proceedings have been
instituted in two or more Courts of Appeals with respect to the same order, the agency
must file the record in the court in which proceedings with respect to the order were first
instituted. 59 The "first to file" rule does not apply where competing petitions for
review challenge closely related but nevertheless distinct agency orders. 60 The duty of
determining who was first to file for purposes of the transfer statute 61 falls with the
agency whose proceedings are under review, and official notations of time of filing are
conclusive. 62 Where priority of filing clearly appears, the action must be in the court of
first filing despite contentions that the second court has special expertise in the matter to
be reviewed, 63 that the second court has exclusive statutory jurisdiction to review the
challenged order, 64 or that the court of first filing would not have had venue in the first
instance. 65
It is always for the court of first filing to determine the validity of the petition filed in that
court and to act accordingly; 66 any other rule would create a risk of unseemly conflicts
between courts. 67 Of course, the court of first filing may later transfer the case to
another court, pursuant either to its inherent powers or to its statutory authority 68 to
transfer for the convenience of the parties in the interest of justice. 69
Footnotes
Footnote 59. 28 USCS § 2112(a)(1).

Footnote 62. United Steelworkers of America v Marshall (CA3) 592 F2d 693.
Footnote 63. Public Service Com. v Federal Power Com., 153 US App DC 195, 472 F2d
1270, 19 ALR Fed 513.
Footnote 64. Valley Vision, Inc. v Federal Communications Com., 127 US App DC 291,
383 F2d 218, transf to (CA9) 399 F2d 511.

Statutory bases of jurisdiction are discussed in § 422.
Footnote 65. Eastern Air Lines, Inc. v Civil Aeronautics Board, 122 US App DC 375,
354 F2d 507.
Venue for judicial review of administrative actions is discussed in §§ 431, 434, 437.
Footnote 66. Superior Industries Int'l, Inc. v NLRB (CA1) 865 F2d 1, 130 BNA LRRM
2348, 110 CCH LC ¶ 10879, later proceeding 295 NLRB 320, 131 BNA LRRM 1590,
1988-89 CCH NLRB ¶ 15633.
Footnote 67. J. P. Stevens & Co. v NLRB (CA4) 592 F2d 1237, 100 BNA LRRM 2853,
85 CCH LC ¶ 11138.
Footnote 68. 28 USCS § 2112(a)(5).
Footnote 69. American Tel. & Tel. Co. v Federal Communications Com. (CA2) 519 F2d
322; Dayton Power & Light Co. v Environmental Protection Agency (CA6) 520 F2d 703,
7 Envt Rep Cas 2002, 5 ELR 20415; Farah Mfg. Co. v NLRB (CA8) 481 F2d 1143, 83
BNA LRRM 2993, 71 CCH LC ¶ 13876; Consumer Federation of America v FTC, 169
3. Supersedeas and Stay of Proceedings [600-605]
§ 600 Generally
View Entire Section

Go to Supplement
The circumstances surrounding a controversy may change irrevocably during the

pendency of an appeal, and the judicial review which a court is to provide would be an
idle ceremony if, so far as the court could prevent it, the situation were permitted to
change irreparably before the court could correct an error of law made by an
administrative tribunal. 70 Accordingly, it is reasonable that an appellate court should be
able to prevent irreparable injury to the parties or to the public resulting from premature
enforcement of a determination which may later be found to have been wrong. 71 A
court, therefore, has the authority to stay proceedings before an agency pending an appeal
of the agency's decision. 72 The filing of a petition for judicial review does not,
however, in itself stay enforcement of an agency decision; 73 a stay or enforcement must
be applied for and is within the court's discretion. 74 Additionally, a motion for stay
must be accompanied by a petition to review the underlying order to give the court
jurisdiction to grant the motion. 75 A motion for stay premised upon a court's statutory
authority to stay agency orders pending review in the court will be granted only if the
motion is made in a proceeding in the court in which a petition to review an agency order
is pending, and in which the movant is a party. 76 The agency may grant, or the
reviewing court may order, a stay upon appropriate terms. 77 It is the movant's
obligation to justify the court's exercise of such an extraordinary remedy. 78
Where proceedings for review or enforcement of agency orders are instituted in two or
more federal Courts of Appeals with respect to the same order, any Court of Appeals in
which proceedings with respect to the order have been instituted may, to the extent
authorized by law, stay the effective date of the order; and any such stay may thereafter
be modified, revoked, or extended by a Court of Appeals 79 with respect to that order or
by any other Court of Appeals to which the proceedings are transferred. 80
A respondent in an administrative action need not seek a stay of an order that has no
coercive effect in itself; if the agency never initiates an action to enforce the order, there
is nothing that needs to be stayed. If, however, the agency does initiate an enforcement
action, which is consolidated with an appeal, the enforcement action should proceed to
judgment before the order is reviewed. If, after entering an enforcement judgment, the
court reverses the administrative order upon review, the respondent may seek relief from
the enforcement judgment by means of a motion for relief from judgment. In order to
prevent the issuance of an enforcement judgment before the order is reviewed, the
respondent may seek a stay of enforcement proceedings under either the appellate rules
or the Administrative Procedure Act. A court is not required to nor barred from placing
conditions, such as the posting of a bond, upon its imposition of a stay when the statutory
authority for granting a stay does not require the posting of a supersedeas bond prior to
the imposition of a stay. 81
 Observation: A stay of proceedings pending administrative review involves a

jurisdictional issue which can never be waived by any party at any time. 82
Case authorities:
Generally, SEC considers request for stay in light of four criteria: (1) whether petitioner
has shown strong likelihood that it will prevail on merits on appeal, (2) whether
petitioner has shown that, without stay, it will suffer irreparable injury, (3) whether there
would be substantial harm to other parties if stay were granted, and (4) whether issuance
of stay would likely serve public interest. Re Christian Klein & Cogburn, Inc., et al.
(1994) 55 SEC 2191.
Footnotes
Footnote 70. Hollingsworth v Koelsch, 76 Idaho 203, 280 P2d 415.
Footnote 71. State ex rel. Public Service Com. v Marion Circuit Court, 230 Ind 277, 100
NE2d 888.
Footnote 72. Ambrogio v Board of Firearms Permit Examiners, 42 Conn Supp 157, 607
A2d 460, reported at (Conn Super) 1992 Conn Super LEXIS 1036.
Footnote 73. Model State Administrative Procedure Act (1961) § 15(c); Ansonia Library
Bd. of Directors v Freedom on Information Com., 42 Conn Supp 84, 600 A2d 1058.

Supp 84, 600 A2d 1058.
Forms: Application–For stay of administrative order pending review–To agency [5

USCS § 705]. 2 Federal Procedural Forms, L Ed, Appeal, Certiorari, and Review §
3:491.
Motion–For stay of administrative order–To Court of Appeals [5 USCS § 705; FRAP

Supersedeas bond–In connection with stay of administrative order pending review

[FRAP 18]. 2 Federal Procedural Forms, L Ed, Appeal, Certiorari, and Review §
3:494.
Footnote 78. Cuomo v United States Nuclear Regulatory Com., 249 US App DC 54, 772
Footnote 79. Designated under 28 USCS § 2112(a)(3).
Footnote 80. 28 USCS § 2112(a)(4).
Footnote 81. Pipeliners Union 798, United Asso. v Alaska State Com. for Human Rights
(Alaska) 681 P2d 330.
Footnote 82. Chun v Employees' Retirement Sys., 73 Hawaii 9, 828 P2d 260,
reconsideration den 73 Hawaii 625, 829 P2d 859.
§ 601 Stay under Federal Rules
View Entire Section

Under the Federal Rules of Appellate Procedure, 83 an application for a stay of an

agency decision or order pending direct review in a Court of Appeals must ordinarily be
made in the first instance to the agency itself. Such a motion may be made directly to the
Court of Appeals, or to a judge thereof; however, if it is, it must show that application to
the agency for the relief sought is not practicable, or that such an application has been
made and denied (reciting the reasons given by the agency for the denial), or that the
action of the agency did not afford the relief which the applicant had requested. 84
A motion for stay must contain the reasons for the relief requested and the facts relied
upon. 85 If the facts are in dispute, the motion must be supported by affidavits or
other sworn statements, or copies thereof; and, in all events, such parts of the record as
are relevant to the relief sought must also be filed. 86 Furthermore, reasonable notice of
the motion must be given to all parties, and the court may require a bond or other security
to be filed. 87 The motion is to be filed with the clerk of court, and ordinarily will be
considered by a panel or division of the court; however, in exceptional cases where such
procedure would be impracticable due to the requirements of time, the application may
be made to and considered by a single judge. 88
An agency order deferring decision on a motion for a stay until further consideration has
been had is not appealable; no appeal may be had until some decision has been handed
down by an administrative hearing officer or the agency itself. 89 Such a motion will
not be granted where it is unlikely that a movant will prevail on the merits. 90
Footnotes
Forms: Application–For stay of administrative order pending review–To agency [5

USCS § 705]. 2 Federal Procedural Forms, L Ed, Appeal, Certiorari, and Review §
3:491.

As to supersedeas or appeal bond generally, see § 577.
Forms: Supersedeas bond–In connection with stay of administrative order pending

review [FRAP 18]. 2 Federal Procedural Forms, L Ed, Appeal, Certiorari, and Review
§ 3:494.
Footnote 89. Greene County Planning Bd. v Federal Power Com. (CA2) 490 F2d 256, 6
Footnote 90. American Cyanamid Co. v Richardson (CA1) 456 F2d 509.
§ 602 Express statutory provisions

View Entire Section
There is considerable diversity in the types of statutory provisions made in respect to the
power of courts to stay action of an administrative agency pending its review in the
courts. Some statutes provide that the institution of a suit or appeal shall not suspend or
supersede the action of the agency 91 unless the court 92 or the administrative
agency 93 specifically so provides; some authorize a reviewing court, 94 to stay or
suspend the operation of the action complained of until final disposition of the suit or
appeal; and others provide that a court shall stay the order, if a showing of irreparable
damage is made. 95
Alternatively, a trial court may be clearly prohibited by statute from issuing any ex parte
order in an action subject to a state's administrative procedure act. 96
Some statutes provide that no stay shall be granted pending review except for a period
not exceeding a specified number of days. Such a limitation cannot be disregarded even
though injustice results. 97 Other statutes forbid a stay until final judicial decree or
provide that no court shall have authority pending review to suspend the operation of
particular types of action taken by an administrative agency, 98 although such a statute
may be regarded as amounting to a denial of due process of law warranting injunctive
relief in the federal court. 99 State courts also recognize that there may be
circumstances under which a statute precluding a stay pending a review by the court of
an administrative order may be regarded as denying due process of law. 1 Due process
is not violated, however, by a statute providing for review of the action of a licensing
board in suspending, revoking, or canceling a license to practice a profession affecting
the public's health, safety, and welfare which withholds the right to a stay during the
interval between a decision of the board and the entry of a decree by the reviewing court,
where the many safeguards in the statute insure an adequate hearing in the first instance
before the board. 2
Footnotes
Footnote 91. Weiss v McCanless, 176 Tenn 222, 140 SW2d 409; McLellan v Mayor,
etc., of Janesville, 99 Wis 544, 75 NW 308 (legislative intent was that there should be no
stay).
1002, 71 S Ct 762; Oklahoma v United States Civil Service Com., 330 US 127, 91 L Ed
794, 67 S Ct 544 (appeal from order of the Federal Civil Service Commission under the
Hatch Political Activity Act which also provided that the officer or employee concerned
must be suspended from office or employment during the pendency of the proceedings);
Stewart v Martin (La App 1st Cir) 84 So 2d 235.
Footnote 93. Dallas Fuel Co. v Horne, 230 Iowa 1148, 300 NW 303.
Footnote 94. State ex rel. Pacific Tel. & Tel. Co. v Duncan, 191 Or 475, 230 P2d 773.
Footnote 95. Under such a statute, it is the mandatory duty of the trial court to grant such
a stay where it is made to appear without contradiction that irreparable damage will be
suffered from suspension of a medical license unless a stay is granted. Hollingsworth v
Koelsch, 76 Idaho 203, 280 P2d 415 (holding that the conclusion is obvious that the
professional practice of a doctor will be scattered, dissipated, and irreparably damaged if
he is compelled to refrain from taking care of such practice pending the determination of
his appeal from an order suspending for 15 months his license to practice).
Footnote 96. Buchanan v Kansas Dept. of Revenue, 14 Kan App 2d 169, 788 P2d 285.
Footnote 97. Yacht Club Catering, Inc. v Bruckman, 276 NY 44, 11 NE2d 345.
Footnote 98. Keller v Kentucky Alcoholic Beverage Control Board, 279 Ky 272, 130
SW2d 821; Flynn v Board of Registration in Optometry, 320 Mass 29, 67 NE2d 846,
166 ALR 571.
Annotation: Validity and construction of state statutory provision forbidding court to

stay, pending review, judgment or order revoking or suspending professional, trade, or
occupational license, 42 ALR4th 516.
Footnote 99. Porter v Investors Syndicate, 286 US 461, 76 L Ed 1226, 52 S Ct 617,

adhered to 287 US 346, 77 L Ed 354, 53 S Ct 132.
Footnote 1. Flynn v Board of Registration in Optometry, 320 Mass 29, 67 NE2d 846,
166 ALR 571.
Footnote 2. Flynn v Board of Registration in Optometry, 320 Mass 29, 67 NE2d 846,
166 ALR 571.
§ 603 --Stay under Hobbs Act
View Entire Section

A federal Court of Appeals has discretion, under the Hobbs Act, to restrain or suspend, in
whole or in part, the operation of an agency order 3 pending a final hearing and
determination of a petition for review. 4 When an application for an interlocutory
injunction is made, at least 5 days' notice of the hearing thereon must be given to the
agency and to the Attorney General. 5 A Court of Appeals may also, on hearing and
after reasonable notice to the agency and the Attorney General, order a temporary stay or
suspension, in whole or in part, of the operation of the agency order for not more than 60
days from the date of the order, pending the hearing on the application for the
interlocutory injunction, if irreparable damage would otherwise result to the petitioner. 6
In such a case, the Court of Appeals' order must contain a specific finding, based upon
evidence submitted to the court and identified by reference thereto, that irreparable
damage would occur; and the nature of the damage must likewise be specified. 7 The
Court of Appeals, at the time of hearing the application for an interlocutory injunction, on
a like finding, may continue the temporary stay or suspension, in whole or in part, until
decision on the application. 8
Footnotes
Footnote 3. The Hobbs Act only authorizes the granting of relief pendente lite after an
agency has taken some action and entered a final order. Susquehanna Valley Alliance v
Three Mile Island Nuclear Reactor (CA3 Pa) 619 F2d 231, 15 Envt Rep Cas 1394, 10
ELR 20235, cert den 449 US 1096, 66 L Ed 2d 824, 101 S Ct 893, 15 Envt Rep Cas
1406.
§ 604 --Administrative procedure acts
View Entire Section

Under the federal Administrative Procedure Act, an agency may postpone the effective
date of its own action pending judicial review, where it finds that justice so requires; 9
and if an agency has so suspended its action, an application to a court for a stay will be
rejected as moot. 10 An agency order which is subject to approval by the President of
the United States will not be stayed, as such an order is immune from judicial review. 11
A court may not grant a stay to preserve the status quo pending the outcome of the
administrative proceedings, unless permitted to do so by statute or unless, absent such
action, a party will suffer irreparable injury. 12
Where review procedures in the Court of Appeals are fully adequate to protect a party's
rights, a federal District Court has no jurisdiction to issue a preliminary injunction
pending review by that court. 13 Likewise, a federal District Court has no
jurisdiction to review an agency decision to initiate enforcement actions where such a
decision is indistinguishable from a finding of probable cause, which may not be
challenged in a separate action. 14 However, where there is a complete absence of
evidence to support an agency action, a federal District Court may be warranted in
issuing an injunction pursuant to 5 USCS § 705. 15
Similarly, the Model State Administrative Procedure Act of 1981 provides that unless
precluded by law, an agency may grant a stay upon appropriate terms or other temporary
remedies during the pendency of judicial review. In addition, a party may file a motion
in the reviewing court, during the pendency of judicial review, seeking interlocutory
review of the agency's action on an application for stay. If the agency has found that its
action on an application for stay is justified to protect against a substantial threat to the
public health, safety, or welfare, the court may not grant relief unless it finds that the
applicant is likely to prevail when a court finally disposes of the matter; without relief the
applicant will suffer irreparable injury; the grant of relief to the applicant will not
substantially harm other parties to the proceedings; and the threat to the public health,
safety, or welfare relied on by the agency is not sufficiently serious to justify the agency's
action in the circumstances. If the agency has not found that its action on an application
for stay is justified to protect a substantial threat to the public health, safety or welfare,
the court must grant relief if it finds in its independent judgment that the agency's action
on the application for stay was unreasonable in the circumstances. If the court
determines that relief should be granted from the agency's action on an application for
stay, the court may remand the matter to the agency with directions to deny a stay, to
grant a stay on appropriate terms, or the court may issue an order denying the stay or
granting a stay, on appropriate terms. 16
Footnotes
Forms: Motion–For temporary stay of administrative order [5 USCS § 705]. 1A

Application–For stay of administrative order pending review–To agency [5 USCS §


Footnote 10. Isothermics, Inc. v U. S. Energy Research & Development Agency (DC NJ)
434 F Supp 1155.
Footnote 11. Trans World Airlines, Inc. v Civil Aeronautics Board (CA2) 184 F2d 66,
cert den 340 US 941, 95 L Ed 679, 71 S Ct 504.
As to preclusion of judicial review of agency action generally, see §§ 472, 473.
Footnote 13. Ft. Worth Nat. Corp. v Federal Sav. & Loan Ins. Corp. (CA5 Tex) 469 F2d
47 (disapproved on other grounds by Mohasco Corp. v Silver, 447 US 807, 65 L Ed 2d
532, 100 S Ct 2486, 23 BNA FEP Cas 1, 23 CCH EPD ¶ 30998) as stated in Edmonds v
United States Dept. of Labor (CA9) 749 F2d 1419 and (disapproved on other grounds by
Brock v Pierce County, 476 US 253, 90 L Ed 2d 248, 106 S Ct 1834).
Footnote 14. Parke, Davis & Co. v Califano (CA6 Mich) 564 F2d 1200, cert den 435 US
942, 55 L Ed 2d 539, 98 S Ct 1522.
Footnote 15. Rutherford v United States (WD Okla) 424 F Supp 105, later proceeding
(WD Okla) 429 F Supp 506, 23 FR Serv 2d 289, later proceeding (WD Okla) 438 F Supp

1287.
§ 605 Factors to be considered by the court on motion for stay
View Entire Section

The federal courts may, and will, grant stays of administrative orders in instances where
the following conditions are met: (1) it is likely that the petitioner will prevail on the
merits of the appeal; (2) there will be irreparable injury to the petitioner unless a stay is
granted; (3) the granting of a stay will not cause substantial harm to other interested
persons; and (4) the granting of a stay will not harm the public interest. 17 These four
considerations are factors to be balanced, not prerequisites to be met; in order for the
reviewing court to adequately balance these factors, the party seeking a stay must address
each of the factors regardless of its strength, and provide the court with facts and
affidavits supporting these assertions. 18
Ordinarily the party seeking a stay must show a strong or substantial likelihood of
success. 19 At a minimum however, the movant must show serious questions going to
the merits and irreparable harm which decidedly outweighs any potential harm to the
defendant if a stay is issued. 20 The probability of success that must be shown is
inversely proportional to the degree of irreparable injury the plaintiffs will suffer absent
an injunction, and thus a stay may be granted with either a high probability of success
and some injury or vice versa. 21
In evaluating the harm which will occur both if the stay is issued and if it is not, the court
must look to three factors: the substantiality of the injury alleged, the likelihood of its
occurrence, and the adequacy of the proof provided. 22 A party moving for a stay is
required to demonstrate that the injury claimed is both certain and great. 23 Irreparable
harm is not established by the mere fact that it is burdensome to submit to agency
hearings, 24 or that the private financial arrangements and public and employee
relations of a business may be damaged by administrative action. 25 Economic loss
does not constitute irreparable harm in and of itself 26 and a party is not entitled to a stay
or supersedeas where the only injury it will suffer is monetary. 27 In addition, neither
the possible temporary loss of earnings or humiliation and damage to one's reputation are
bases for a finding of irreparable injury warranting temporary injunctive relief. 28 In
order to substantiate a claim that irreparable injury is likely to occur, a movant must
provide some evidence that the harm has occurred in the past and is likely to occur again;
and the evidence contained in the record should be presented in a nontechnical format,
allowing the average adult reader to make a reasonable determination. 29
Footnotes
Footnote 17. Eastern Air Lines, Inc. v Civil Aeronautics Board (CA2) 261 F2d 830; Ohio
ex rel. Celebrezze v Nuclear Regulatory Com. (CA6) 812 F2d 288, 17 ELR 20420;
Unglesby v Zimny (ND Cal) 250 F Supp 714; Liberty Nat. Bank & Trust Co. v Board of
Governors of Federal Reserve System (CA10) 312 F2d 392; Freeman v Cavazos (CA11)
923 F2d 1434, later proceeding (CA11) 939 F2d 1527; Cuomo v United States Nuclear
Regulatory Com., 249 US App DC 54, 772 F2d 972, 23 Envt Rep Cas 1820.
Footnote 18. Ohio ex rel. Celebrezze v Nuclear Regulatory Com. (CA6) 812 F2d 288, 17
ELR 20420.
ELR 20420.
ELR 20420.
ELR 20420; Cuomo v United States Nuclear Regulatory Com., 249 US App DC 54, 772
ELR 20420.
ELR 20420; Cuomo v United States Nuclear Regulatory Com., 249 US App DC 54, 772
Footnote 24. Sears, Roebuck & Co. v NLRB, 153 US App DC 380, 473 F2d 91, 81 BNA
1474, 85 BNA LRRM 2466.
Footnote 25. Twentieth Century Airlines v Ryan (US) 98 L Ed 1143, 74 S Ct 8.
ELR 20420.
Footnote 27. PoPeople, Inc. v Labor & Industrial Relations Com. (Mo) 830 SW2d 403,
ELR 20420.
4. Parties; Intervention [606-609]
§ 606 Parties
View Entire Section

Where relief or review of action of an administrative agency is sought in court, the

absence of a necessary party may preclude the granting of relief. 30 Who are
necessary or proper parties in a proceeding to review agency action is largely determined
by statutes governing the particular agency, the nature of its powers, and the effect of the
exercise of such powers. 31
If the particular administrative agency whose action is sought to be reviewed does not
have an independent existence which by express provision of statute or otherwise renders
it capable of being sued, a suit may be sustained against the government of which the
agency is an instrumentality. 32 Some statutes expressly provide that actions seeking
review in regard to particular agencies shall be brought against the government. For
example, the statute relating to review in the Court of Appeals of the orders of certain
federal agencies states that the action shall be brought against the United States. 33 If
no special statutory review proceeding is applicable, the action for judicial review may be
brought against the United States, the agency by its official title, or the appropriate
officer. 34
 Observation: The purpose of the foregoing statute 35 is to simplify technical

complexities concerning the naming of defendant parties in actions challenging federal
administrative action and thereby permit a plaintiff to name the United States, the
agency, or an appropriate officer as defendant, in order to eliminate technical problems
arising from a plaintiff's failure to name proper government officer as defendant. 36
The administrative agency whose action is sought to be reviewed may be, and normally
is, a necessary 37 and proper 38 party. 39 In particular it has been held that the
action of an administrator may not be challenged except in a proceeding to which she is a
party. 40
The private persons who were parties in the proceeding before the administrative agency
are usually necessary and proper parties in the review proceeding. 41 In addition,
some statutes provide that each party to the action or proceeding before the agency shall
have the right to appear in the review proceeding. While the "right to appear" means the
right to appear and to participate in the proceeding thereto, it does not necessarily follow
that each party to the proceeding before the agency must be named in the writ of review
and specifically notified of its issuance. 42
Footnotes
Footnote 30. Mine Safety Appliances Co. v Forrestal, 326 US 371, 90 L Ed 140, 66 S
Ct 219.
For a discussion of standing to seek judicial review of an administrative agency's order,

Footnote 31. Stewart v Martin (La App 1st Cir) 84 So 2d 235.
Annotation: Who is "party aggrieved," so as to be entitled to petition Court of Appeals

for review of final order of administrative agency, under 28 USCS § 2344, 88 ALR
Fed 341.
Footnote 32. Coleman v Gary, 220 Ind 446, 44 NE2d 101.
Footnote 36. Ford v United States Dept. of Housing & Urban Development (ND Ill) 450
F Supp 559.
Footnote 37. Order of R. Conductors v Pennsylvania R. Co., 323 US 166, 89 L Ed 154,

Footnote 38. Board of Adjustment v Stovall, 147 Tex 366, 216 SW2d 171.
Footnote 39. An administrative agency is more than a nominal party to an appeal to the
court from its award where the statute provides that the board or commission and each
party shall have a right to appear in the review proceedings. Workmen's Compensation
Board v Abbott, 212 Ky 123, 278 SW 533, 47 ALR 789; Brigham Young University v
Industrial Com. of Utah, 74 Utah 349, 279 P 889, 65 ALR 152 (holding the commission
was entitled to oppose a motion to annul an award in pursuance of an agreement between
the parties).
Footnote 40. Redlands Foothill Groves v Jacobs (DC Cal) 30 F Supp 995, 2 CCH LC ¶
18516; Kansas Gas & Electric Co. v Independence (CA10 Kan) 79 F2d 32, 100 ALR
1479, reh den (CA10 Kan) 79 F2d 638, 100 ALR 1497 (acts in administering National
Industrial Recovery Act).
Footnote 41. Coleman v Gary, 220 Ind 446, 44 NE2d 101; Hernreich v Quinn, 350 Mo
770, 168 SW2d 1054.
The successful charging party and the successful charged party have a right to intervene
in Court of Appeals proceedings to review a decision of the National Labor Relations
Board. International Union, etc. v Scofield, 382 US 205, 15 L Ed 2d 272, 86 S Ct 373,
60 BNA LRRM 2479, 52 CCH LC ¶ 16771.
Footnote 42. State ex rel. Anderson Motor Service Co. v Public Service Com., 339 Mo
469, 97 SW2d 116.
§ 607 Intervention; substitution
View Entire Section


Go to Supplement
Generally, the right to intervene in a court review of action of an administrative agency is

within the discretion of the trial court, measured in the light of the intervenor's interest in
the subject matter and the issues raised by the proceedings. 43 The failure to
participate in agency proceedings and the later failure to seek to intervene in a timely
manner may prevent a person from being entitled to the status of an intervenor. 44
A statute which requires that no appeal can be withdrawn and no settlement between the
parties to the appeal can be effective without court approval of the proposed withdrawal
or settlement after a hearing requires the consent of an intervenor, as well as the original
parties to the appeal. 45
A successor in office may be substituted as a party under court rules. 46
§ 607 ----Intervention; substitution [SUPPLEMENT]
Practice Aids: Motion–Leave to intervene in proceeding for review–General form. 1A

Case authorities:
In suit by animal rights group charging government with violating Endangered Species
Act by permitting night club performer to purchage and maintain orangutans, performer
had right to intervene where he had substantial economic interest in preserving his rights
to use orangutans in his act. People for Ethical Treatment of Animals v Babbitt (1993,
DC Dist Col) 151 FRD 6.
Footnotes
Footnote 43. Nyburg v Solmson, 205 Md 150, 106 A2d 483, 46 ALR2d 1051.
Annotation: Right to intervene in court review of zoning proceeding, 46 ALR2d

1059, § 1.
Footnote 44. Alabama Power Co. v Interstate Commerce Com., 271 US App DC 394,
852 F2d 1361, 12 FR Serv 3d 102; Nyburg v Solmson, 205 Md 150, 106 A2d 483, 46
ALR2d 1051.
Footnote 45. Ralto Developers, Inc. v Environmental Impact Com., 220 Conn 54, 594
A2d 981.
67 S Ct 1129.
§ 608 --Motion or notice of intervention

View Entire Section
Unless an applicable statute provides a different method of intervention, a person wishing

to intervene in a proceeding before a federal Court of Appeals for the review or
enforcement of an administrative order must serve upon all parties to the proceeding, and
file with the clerk of court, a motion for leave to intervene. 47 The Federal Rules of
Appellate Procedure require such a motion, or other notice of intervention authorized by
an applicable statute, to be filed within 30 days of the date on which the petition for
review is filed. 48
Moreover, the motion must contain a concise statement of the interest of the moving
party and the grounds upon which intervention is sought. 49
A person wishing to intervene in a proceeding before a federal District Court must do so

by motion. 50 The motion must be served upon all the parties, 51 and such service is
accomplished in the same manner as service of the complaint. 52 The motion to
intervene must state the grounds therefor and be accompanied by a pleading setting forth
the claim or defense for which intervention is sought. 53
Footnotes
Footnote 47. FRAP 15(d).
Forms: Motion–Leave to intervene in proceeding for review–General form. 1A Am

Motion–Leave to intervene in proceeding for review–After grant of order for review.

Motion in federal court–For leave to intervene in proceeding for review–Interest in

trade or industry affected–As respondent. 1A Am Jur Pl & Pr Forms (Rev),
Motion–For leave to intervene in review proceeding [FRAP 15(d), 27(a)]. 2 Federal

Procedural Forms, L Ed, Appeal, Certiorari, and Review § 3:461.
Motion–For leave to intervene in proceeding for enforcement of administrative order

[FRAP 15(b), 15(d)]. 2 Federal Procedural Forms, L Ed, Appeal, Certiorari, and
Review § 3:463.
Intervention in District Court cases is fully discussed in 26 Federal Procedure, L Ed,

Parties §§ 59:256-59:424.
Footnote 52. §§ 566, 567.
§ 609 Grounds supporting intervention; participation as party
View Entire Section

While the Federal Rule of Appellate Procedure governing a motion to intervene in

judicial review proceedings 54 provides no standard for resolving intervention questions,
an appellate court should consider the statutory design of the relevant act, and the
policies underlying intervention in the trial courts. 55
In proceedings under the Hobbs Act, communities, associations, corporations, firms, and
individuals whose interests are affected by the agency order under review may intervene.
56 Such intervention is discretionary with the Court of Appeals. 57 Where
intervention has been permitted, the Attorney General of the United States may not
dispose of or discontinue the review proceeding over the objection of any intervenor;
rather, any intervenor may prosecute, defend, or continue such a proceeding unaffected
by the action or inaction of the Attorney General. 58
Intervenors in a proceeding may not raise issues in addition to those raised by parties
filing petitions for review. 59
Footnotes
Footnote 55. Texas v United States Dept. of Energy (CA5) 754 F2d 550, 22 Envt Rep
Cas 1654, 1 FR Serv 3d 1247, 15 ELR 20300.
Intervention pursuant to FRCP 24 is fully discussed in 59 Am Jur 2d, Parties §§

124-178.
Footnote 57. Montship Lines, Ltd. v Federal Maritime Board, 111 US App DC 160, 295
F2d 147.
Footnote 59. United Gas Pipe Line Co. v Federal Energy Regulatory Com. (CA5) 824
F2d 417; Platte River Whooping Crane Critical Habitat Maintenance Trust v FERC, 295
US App DC 218, 962 F2d 27, 22 ELR 21167, reh, en banc, den 297 US App DC 354,
972 F2d 1362, 22 ELR 21495 and reh dismd, clarified, in part 61 FERC ¶ 61206, 1992
FERC LEXIS 3023, clarified, reconsideration gr, in part 62 FERC ¶ 61057, later
proceeding (FERC) slip op.
Intervenor may join issue only on matter that has been brought before court by another
party, since otherwise time limitations for filing petitions for review could easily be
circumvented through device of intervention. Illinois Bell Tel. Co. v FCC, 286 US App
DC 34, 911 F2d 776, appeal after remand 300 App DC 296, 988 F2d 1254.
5. Hearings; Evidence [610-613]
§ 610 Hearing or trial
View Entire Section

Go to Supplement
A court may decide an appeal from an administrative board upon statements of counsel
where they clearly and definitely disclose no cause of action or no defense, or admit facts
the existence of which precludes a recovery by their clients, and where, if evidence were
introduced, it would necessarily be to the same effect. Such peremptory action should
not, however, be taken unless the statements or concessions are plainly and
understandingly made. 60
While in some areas review statutes may provide for a right to a jury trial, 61 other
statutes exclude such right, 62 and the constitutional right to jury trial does not include
the right to have a jury pass on the validity of an administrative order. 63
It is the duty of the court to instruct the jury in accordance with the applicable law and
this may include an instruction concerning a presumption favoring administrative action.
64
Although a court is not required to conduct a hearing concerning the merits of an

agency's decision to revoke a person's driver license if the parties waive their right to be
heard, the court cannot avoid a statute which contemplates that the court conduct a de
novo hearing prior to entering its order by simply failing to hold a hearing. 65
§ 610 ----Hearing or trial [SUPPLEMENT]
Practice Aids: Order–Granting petition for jury trial to review administrative

proceeding. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 410.
Footnotes

Footnote 60. Hill v Kesselring, 310 Ky 483, 220 SW2d 858, 10 ALR2d 1301.
Footnote 61. Baltimore & O. R. Co. v Zapf, 192 Md 403, 64 A2d 139, 6 ALR2d 400;
Dimitroff v State Industrial Acci. Com., 209 Or 316, 306 P2d 398; Floyd v Department
of Labor & Industries, 44 Wash 2d 560, 269 P2d 563 (matter of right on demand of either
party; de novo appeal on the record).
Footnote 62. Scott v Lowe, 223 Miss 312, 78 So 2d 452.
Footnote 63. Cox v United States, 332 US 442, 92 L Ed 59, 68 S Ct 115, reh den 333
US 830, 92 L Ed 1115, 68 S Ct 449 and reh den 333 US 830, 92 L Ed 1115, 68 S Ct
450.
Footnote 64. The result under the statute is that the decision of an experienced
commission, based upon technical and medical knowledge, is reviewed by laymen having
normally no experience in the difficult process of determining the extent of disability or
the need of medical treatment, and having no familiarity with the administrative
procedure or the terminology employed therein. We therefore find it to be of peculiar
importance that the jury in the exercise of its independent function should at least be
informed by an instruction that there is a disputable presumption in favor of the decision
of the commission. Dimitroff v State Industrial Acci. Com., 209 Or 316, 306 P2d 398.
Footnote 65. Bowman v Parrott, 200 Ga App 405, 408 SE2d 115, cert den (Ga) 1991 Ga
LEXIS 546.
§ 611 Evidence
View Entire Section

An administrative appeal must be confined to the record 66 except in cases of alleged

irregularities and procedure before the agency, not shown on the record, where proof of
alleged irregularities may be taken in court. 67 Consequently, an appeal from an
administrative tribunal should ordinarily be determined upon the record of that tribunal,
and only when that record fails to present the hearing in the manner sufficient for the
determination of the merits of the appeal, or when some extraordinary reason requires it,
should the court hear the evidence. 68 In the case of an allegation of illegality not
apparent on the record the trial court may, in its discretion, also permit additional
evidence to be presented. For example, a claim of conflict of interest is grounds for
conducting such an evidentiary inquiry. 69 Alternatively, rather than permitting the
presentation of additional evidence, the court may remand the case to the agency with
directions that the agency supplement the record. 70
Although the trial court may not review evidence not before the administrative agency,
the court may find that the hearing officer should have admitted certain evidence. 71
Furthermore, a reviewing court has the duty to examine the procedural methods
employed at an administrative hearing to ensure that a fair and impartial procedure was
used. 72
A reviewing court may take judicial notice of records and reports of administrative
agencies, 73 as well as other matters of public record. 74
Post hoc explanations, especially those offered by counsel, are an inadequate basis for the
exercise of substantive review of an administrative decision. 75 Thus, because they are
often merely post hoc rationalizations, litigation affidavits are an inadequate basis for
review. 76
Footnotes
Footnote 67. Adriani v Commission on Human Rights & Opportunities, 220 Conn 307,
596 A2d 426, on remand (Conn Super) 1992 Conn Super LEXIS 3406; Brunswick v
Inland Wetlands Com., 29 Conn App 634, 617 A2d 466.
596 A2d 426, on remand (Conn Super) 1992 Conn Super LEXIS 3406.
Footnote 69. Brunswick v Inland Wetlands Com., 29 Conn App 634, 617 A2d 466.
Footnote 71. Miko v Commission on Human Rights & Opportunities, 220 Conn 192, 596
A2d 396.
Footnote 72. Metz v Illinois State Labor Relations Bd. (5th Dist) 231 Ill App 3d 1079,
173 Ill Dec 231, 596 NE2d 855, 142 BNA LRRM 2992.
Footnote 73. Interstate Natural Gas Co. v Southern California Gas Co. (CA9 Cal) 209
F2d 380.
Footnote 74. Mealha v Shaughnessy (CA2 NY) 219 F2d 600.
Footnote 75. United States v Garner (CA5 Miss) 767 F2d 104.
136, 91 S Ct 814, 2 Envt Rep Cas 1250, 1 ELR 20110; AT & T Information-Systems,
Inc. v General Services Admin., 258 US App DC 254, 810 F2d 1233, 33 CCF ¶ 75062.
§ 612 --Application for leave to adduce additional evidence
View Entire Section

The Model State Administrative Procedure Act of 1961 permits additional evidence to be
taken under limited circumstances. If, before the date set for hearing, an application is
made to the court for relief to present additional evidence and it is shown to the
satisfaction of the court that the additional evidence is material and that there were good
reasons for the failure to present it in a proceeding before the agency, 77 the court may
order that the additional evidence be taken before the agency upon conditions determined
by the court. The agency may modify its findings and decision by reason of the
additional evidence and must file that evidence and any modifications, new findings, or
decisions with the reviewing court. 78 The 1981 Act further limits the taking of
additional evidence by providing that a court may receive evidence, in addition to that
contained in an agency record for judicial review, only if it relates to the validity of an
agency action at the time it was taken and is needed to decide disputed issues regarding
improper constitution as a decisionmaking body, or improper motive or grounds for
disqualification, of those taking the agency action; unlawfulness of procedure or of
decisionmaking process; or any material fact that was not required by any provision of
law to be determined exclusively on an agency record of a type reasonably suitable for
judicial review. 79
Whether the trial court improperly denied a plaintiff's motion to present evidence to
supplement the record is examined under the abuse of discretion standard. 80 A trial
court abuses is discretion in denying a plaintiff the opportunity to present evidence to
supplement the agency record on the basis that the plaintiff's motion was untimely when
the plaintiff's complaint initiating the appeal clearly states that she seeks to supplement
the record in order to prove her allegations of procedural irregularities. In addition, a trial
court abuses its discretion in denying a motion to supplement the record on the basis that
the plaintiff's motion failed to give the defendant proper notice when neither the statutes
nor the court rules involved require a party to file a written motion to supplement. 81
Under the Hobbs Act, 82 if a party in a review proceeding applies to the Court of
Appeals in which the proceeding is pending for leave to adduce additional evidence, and
shows to the satisfaction of the court that (1) the additional evidence is material, and (2)
there were reasonable grounds for failure to adduce the evidence before the agency, the
court may order the additional evidence and any counterevidence the opposing party
desires to offer to be taken by the agency. 83 A Court of Appeals may treat an appeal
for review of an agency decision as an application raising such an issue even though the
petitioner has not applied for leave to adduce additional evidence. 84 The agency, in
light of the new evidence adduced, may modify its findings of fact or make new findings,
and may likewise modify or set aside its order. 85 Thereafter, the additional evidence,
the modified or new findings, and the modified order or the order setting aside the
original order must be filed in the Court of Appeals by the agency. 86
If the newly discovered evidence is first tendered to the court, the applicant must first
petition the agency to reopen the case; 87 the discretion under the statute 88 may be
exercised not by ordering remand to the agency, 89 but by allowing the petitioner to
move for reopening of the proceedings below. 90 However, if the agency itself
prevented the applicant from placing the evidence before it, and if the board has acted
improperly, the applicant is entitled to judicial relief, 91 and the case may be remanded
for the creation of an adequate record. 92
Footnotes

Footnote 77. Model State Administrative Procedure Act (1961) § 15(e).
A reviewing court may order that additional evidence be taken before the agency only
upon a showing that the evidence is material and that there was a good reason for the
failure to present it in the original agency proceeding. Benmosche v Board of
Registration in Medicine, 412 Mass 82, 588 NE2d 621.
Footnote 78. Model State Administrative Procedure Act (1961) § 15(e).
Footnote 84. Dolores v Immigration & Naturalization Service (CA6) 772 F2d 223.
Footnote 87. Osaghae v United States INS (CA7) 942 F2d 1160, habeas corpus
proceeding (CA7) 1992 US App LEXIS 10981.
Footnote 89. Remand is discussed in §§ 629-632.
Footnote 90. Rhoa-Zamora v INS (CA7) 971 F2d 26, mod, reh, en banc, den (CA7) 1992
US App LEXIS 28778 and cert den (US) 123 L Ed 2d 649, 113 S Ct 1943, reh den (US)
124 L Ed 2d 302, 113 S Ct 2401 and cert den (US) 124 L Ed 2d 243, 113 S Ct 2331,
later proceeding (CA7) 1993 US App LEXIS 33998.
Footnote 91. Osaghae v United States INS (CA7) 942 F2d 1160, habeas corpus
proceeding (CA7) 1992 US App LEXIS 10981.
§ 613 Witnesses
View Entire Section

Although state courts may allow a petitioner to call the officers who made the order at
issue as witnesses, and require them to testify whether in fact any evidence was
submitted to and considered by them as the basis for such order, 93 in federal courts,
protecting the integrity of the administrative process prohibits administrative officers,
like judges, from being subjected to such scrutiny. 94
Footnotes
Footnote 93. State ex rel. York v Board of Com'rs, 28 Wash 2d 891, 184 P2d 577, 172
ALR 1001.
314 US 704, 86 L Ed 565, 62 S Ct 52.
Annotation: Administrative decision by officer not present when evidence was taken,
18 ALR2d 606, § 10.
6. Presumptions and Burden of Proof [614-618]
§ 614 General principles
View Entire Section

Go to Supplement
The general rule that in the absence of evidence to the contrary, public officers will be
rebuttably presumed to have properly performed their duties and not to have acted
illegally, 95 is usually applied when regulations, decisions, or orders of an
administrative officer or agency, acting within the limits of the jurisdiction conferred by
law, are challenged in court. 96 Therefore, an agency's decision carries a
presumption of validity, and the appellant bears the burden 97 of making a
convincing showing 98 by clear and satisfactory evidence 99 that the decision is invalid
because it is unjust, 1 unreasonable, 2 unlawful, 3 arbitrary, capricious, or an abuse of
discretion, 4 not supported by substantial evidence, 5 or wrong. 6
When reviewing the evidence, a court gives it its strongest probative force in favor of the
agency. 7 Therefore, the party seeking review of the merits of an administrative
decision, based upon the sufficiency of the evidence presented, must give the court a
reasonable basis upon which to review that decision; it is the petitioner's burden to plead
a valid theory upon which relief can be granted. 8 In order to establish an absence of
substantial evidence, a petitioner must show that the proof before the agency was so
nearly undisputed that fairminded persons could not reach the agency's conclusions. The
question is not whether the evidence supports a contrary finding, but whether it supports
the finding that was made. 9 Consequently, if substantial evidence is found, the fact that
two different conclusions may be drawn from the evidence does not prohibit a court from
holding that the conclusion drawn by the administrative agency was supported by
substantial evidence. 10
§ 614 ----General principles [SUPPLEMENT]
Practice Aids: The appearance of fairness versus actual unfairness: Which standard
should the Arkansas courts apply to administrative agencies? 16 U Ark L R LJ 4:587
(1994).
Footnotes
Footnote 95. 29 Am Jur 2d, Evidence §§ 170-174.
Footnote 96. Hynes v Grimes Packing Co., 337 US 86, 93 L Ed 1231, 69 S Ct 968;
Interstate Commerce Com. v Jersey City, 322 US 503, 88 L Ed 1420, 64 S Ct 1129;
Guiseppi v Walling (CA2) 144 F2d 608, 8 CCH LC ¶ 62243, 155 ALR 761, affd 324
US 244, 89 L Ed 921, 65 S Ct 605, 9 CCH LC ¶ 51195; Cooper v O'Connor, 69 App DC
100, 99 F2d 135, 118 ALR 1440, cert den 305 US 643, 83 L Ed 414, 59 S Ct 146, reh
den 305 US 673, 83 L Ed 436, 59 S Ct 242 and reh den 307 US 651, 83 L Ed 1530,
59 S Ct 1035; Bennett v State Corp. Com., 157 Kan 589, 142 P2d 810, 150 ALR 1140;
Douglas County v State Board of Equalization & Assessment, 158 Neb 325, 63 NW2d
449; State ex rel. Speeth v Carney, 163 Ohio St 159, 56 Ohio Ops 194, 126 NE2d 449;
State ex rel. Staley v Wayne County Court, 137 W Va 431, 73 SE2d 827.
Footnote 97. R-C Motor Lines, Inc. v United States (MD Fla) 241 F Supp 124;
Aeronautical Radio, Inc. v United States (CA7) 335 F2d 304, cert den 379 US 966, 13 L
Ed 2d 559, 85 S Ct 658; Druid Hills Civic Asso. v Federal Highway Admin. (CA11 Ga)
772 F2d 700, 23 Envt Rep Cas 1663, 15 ELR 21082, reh den, en banc (CA11 Ga) 777
F2d 704 and reh den, en banc (CA11 Ga) 777 F2d 704, later proceeding (ND Ga) 650 F
Supp 1368, 17 ELR 20797, affd (CA11 Ga) 833 F2d 1545, 10 FR Serv 3d 181, 18 ELR
20440, cert den 488 US 819, 102 L Ed 2d 38, 109 S Ct 60; Arizona Water Co. v
Arizona Corp. Com. (App) 161 Ariz 389, 778 P2d 1285, 42 Ariz Adv Rep 14; Arkansas
Transit Homes, Inc. v Stone, 301 Ark 323, 783 SW2d 860; Kilauea Neighborhood Assn.
v Land Use Com., 7 Hawaii App 227, 751 P2d 1031; Iwanski v Steamwood Police
Pension Bd. (1st Dist) 232 Ill App 3d 180, 173 Ill Dec 67, 596 NE2d 691; Busing v Iowa
DOT, Motor Vehicle Div. (Iowa) 455 NW2d 921; General Chemical Corp. v Wyoming
State Bd. of Equalization (Wyo) 819 P2d 418.
1031.
Footnote 99. Arizona Water Co. v Arizona Corp. Com. (App) 161 Ariz 389, 778 P2d
1031.

1285, 42 Ariz Adv Rep 14; Kilauea Neighborhood Assn. v Land Use Com., 7 Hawaii
App 227, 751 P2d 1031.
The burden rests upon a petitioner to show that the agency's policy choices were
unreasonable, the court readily defers to the agency's expertise. Busing v Iowa DOT,
Motor Vehicle Div. (Iowa) 455 NW2d 921.
Footnote 4. General Chemical Corp. v Wyoming State Bd. of Equalization (Wyo) 819
P2d 418.

Ark 221, 824 SW2d 363.
Footnote 8. Williams v Chicago Hous. Auth. (1st Dist) 217 Ill App 3d 1055, 160 Ill Dec
892, 578 NE2d 71, 125 CCH LC ¶ 57392.

Ark 221, 824 SW2d 363.
§ 615 Legality, validity, and reasonableness of agency action
View Entire Section

The rebuttable presumption in favor of the action of an administrative agency, and the
attendant burden of proof upon one challenging such action, extends to the legality and
validity of the action. 11 The agency's action is presumed reasonable, 12 not
arbitrary or capricious, 13 made in accordance with the statute, 14 and upon
appropriate evidence 15 duly considered and properly applied, 16 taken at a
meeting of which all members had due notice, 17 honestly and in good faith 18 and for
proper motives, 19 on knowledge of material facts, 20 justified by the facts, 21
and with a quorum present and a majority agreeing. 22
The interpretation of applicable regulations is not included within the burden of proof of
the parties; the interpretation of regulations is a matter of law to be determined by the
court. The trial court has a duty to decide which of the interpretations advanced by
parties is correct or to apply its own interpretation. 23
Footnotes
Footnote 11. Hynes v Grimes Packing Co., 337 US 86, 93 L Ed 1231, 69 S Ct 968
(regulation); Interstate Commerce Com. v Jersey City, 322 US 503, 88 L Ed 1420, 64 S
Ct 1129 (rate order); Woods v Board of Education, 259 Ala 559, 67 So 2d 840; Varholy v
Sweat, 153 Fla 571, 15 So 2d 267; New Misson Baptist Church v Atlanta, 200 Ga 518,
37 SE2d 377 (building permit subsequently revoked presumed valid); Bennett v State
Corp. Com., 157 Kan 589, 142 P2d 810, 150 ALR 1140; Tepel v Sima, 213 Minn 526, 7
NW2d 532, 6 CCH LC ¶ 61381; Milwaukie Co. of Jehovah's Witnesses v Mullen, 214 Or
281, 330 P2d 5, 74 ALR2d 347, cert den and app dismd 359 US 436, 3 L Ed 2d 932,
79 S Ct 940; Atlantic C. L. R. Co. v Public Service Com., 226 SC 136, 84 SE2d 132;
Footnote 12. Interstate Commerce Com. v Jersey City, 322 US 503, 88 L Ed 1420, 64 S
Ct 1129; Woods v Board of Education, 259 Ala 559, 67 So 2d 840; Louisville &
Jefferson County Metropolitan Sewer Dist. v Joseph E. Seagram & Sons, Inc., 307 Ky
413, 211 SW2d 122, 4 ALR2d 588; Burkitt v School Dist., 195 Or 471, 246 P2d 566
(regulation); Atlantic C. L. R. Co. v Public Service Com., 226 SC 136, 84 SE2d 132;
State ex rel. Billado v Wheelock, 114 Vt 350, 45 A2d 430; Huntington v State Water
Com., 137 W Va 786, 73 SE2d 833.
Footnote 13. Louisville & Jefferson County Metropolitan Sewer Dist. v Joseph E.
Seagram & Sons, Inc., 307 Ky 413, 211 SW2d 122, 4 ALR2d 588; Milwaukie Co. of
Jehovah's Witnesses v Mullen, 214 Or 281, 330 P2d 5, 74 ALR2d 347, cert den and app
dismd 359 US 436, 3 L Ed 2d 932, 79 S Ct 940.
Footnote 14. Warburton v Warkentin, 185 Kan 468, 345 P2d 992, 79 ALR2d 1114.
Footnote 15. Banton v Belt Line R. Corp., 268 US 413, 69 L Ed 1020, 45 S Ct 534;
Louisiana & P. B. R. Co. v United States, 257 US 114, 66 L Ed 156, 42 S Ct 25
(findings must be assumed supported by the evidence where only part of evidence taken
by Commission was introduced in court); Meeker v Lehigh V. R. Co., 236 US 412, 59 L
Ed 644, 35 S Ct 328 (absent showing to contrary findings must be presumed supported
by the evidence where the report states the findings are based on the evidence); Woods v
Board of Education, 259 Ala 559, 67 So 2d 840; Williams Electric Cooperative, Inc. v
Montana-Dakota Utilities Co. (ND) 79 NW2d 508 (presumption that if commission
considered a file in its possession it would have complied with a statute requiring the
giving of opportunity to meet such evidence).
Footnote 16. Beaumont, S. L. & W. R. Co. v United States, 282 US 74, 75 L Ed 221, 51
S Ct 1; Pacific Employers Ins. Co. v Industrial Acci. Com., 19 Cal 2d 622, 122 P2d 570,
141 ALR 798 (presumption that commission granting a rehearing and finding contrary to
referee in original hearing reviewed the record and considered all the facts); Louisville &
N. R. Co. v Commonwealth (Ky) 300 SW2d 777; State ex rel. Speeth v Carney, 163 Ohio
St 159, 56 Ohio Ops 194, 126 NE2d 449.
A court is slow to conclude that testimony admitted before an agency has been heard with
a deaf ear and a closed mind. NLRB v Donnelly Garment Co., 330 US 219, 91 L Ed

854, 67 S Ct 756, 19 BNA LRRM 2317, 12 CCH LC ¶ 51238.
Footnote 17. Gunnip v Lautenklos, 33 Del Ch 415, 94 A2d 712.
Footnote 18. Board of School Trustees v Moore, 218 Ind 386, 33 NE2d 114, 133 ALR
1431.
Footnote 19. Adams Theatre Co. v Keenan, 12 NJ 267, 96 A2d 519 (denial, suspension,
or revocation of license assumed actuated by proper motives and for valid reasons).
Footnote 20. Smith v St. Louis & S. R. Co., 181 US 248, 45 L Ed 847, 21 S Ct 603.
Footnote 21. United States v Rock Royal Co-operative, Inc., 307 US 533, 83 L Ed 1446,
59 S Ct 993, reh den 308 US 631, 84 L Ed 526, 60 S Ct 66, 60 S Ct 67 (determination
of propriety of special differentials); Guiseppi v Walling (CA2) 144 F2d 608, 8 CCH LC
¶ 62243, 155 ALR 761, affd 324 US 244, 89 L Ed 921, 65 S Ct 605, 9 CCH LC ¶
51195; California Drive-In Restaurant Asso. v Clark, 22 Cal 2d 287, 140 P2d 657, 7
CCH LC ¶ 61672, 147 ALR 1028 (adequate and reasonable basis for police regulations);
Milwaukie Co. of Jehovah's Witnesses v Mullen, 214 Or 281, 330 P2d 5, 74 ALR2d 347,
cert den and app dismd 359 US 436, 3 L Ed 2d 932, 79 S Ct 940.
Footnote 23. MGPC, Inc. v Canadian Hidrogas Resources, Ltd. (Em Ct App) 725 F2d
§ 616 Correctness of agency action
View Entire Section

The rebuttable presumption in favor of the action of an administrative agency when such
action is challenged in court extends to the truth, rightness, or correctness of such action,
whether it involves a finding of fact 24 or an exercise of discretion, 25 and
the presumption may also be applied to the determination of a question of law. 26 The
expertise and experience of particular administrative agencies fortify this presumption.
27
Footnotes
Footnote 24. District of Columbia v Pace, 320 US 698, 88 L Ed 408, 64 S Ct 406;

Interstate Transit Lines v Commissioner, 319 US 590, 87 L Ed 1607, 63 S Ct 1279,
43-1 USTC ¶ 9486, 30 AFTR 1310, reh den 320 US 809, 88 L Ed 489, 64 S Ct 26;
Troup v Bird (Fla) 53 So 2d 717; Board of Comrs. v Heaston, 144 Ind 583, 41 NE 457,
reh overr 144 Ind 597, 43 NE 651; Cedar Rapids Steel Transp., Inc. v Iowa State
Commerce Com. (Iowa) 160 NW2d 825, cert den 394 US 918, 22 L Ed 2d 451, 89 S Ct
1189; Atlantic C. L. R. Co. v Public Service Com., 226 SC 136, 84 SE2d 132;
Footnote 25. Carlson v Landon, 342 US 524, 96 L Ed 547, 72 S Ct 525, reh den 343
US 988, 96 L Ed 1375, 72 S Ct 1069 (attorney general's exercise of discretion to deny
bail in deportation); Milwaukie Co. of Jehovah's Witnesses v Mullen, 214 Or 281, 330
P2d 5, 74 ALR2d 347, cert den and app dismd 359 US 436, 3 L Ed 2d 932, 79 S Ct
940 (application for special-use permit under zoning ordinance).
Footnote 27. Interstate Commerce Com. v Chicago, R. I. & P. R. Co., 218 US 88, 54 L
Ed 946, 30 S Ct 651.
The court should not substitute its judgment for that of an administrative agency in a field
where the agency has particular competence. Pabst v Wisconsin Dept. of Taxation, 19
Wis 2d 313, 120 NW2d 77, 5 ALR3d 594.
§ 617 Under express provisions of statute
View Entire Section

It is frequently provided by statute that regulations, findings, decisions, or orders of a

particular administrative agency are prima facie evidence of the matters therein stated, or
prima facie correct, right, and proper, or reasonable and just. 28 Where a statute also
declares that the burden of proof shall be upon the complainant or appellant, 29 such a
provision raises in court a presumption that the order is just, reasonable, and correct. 30
This presumption is rebuttable and subject to be overcome by other evidence. 31
Footnotes
Footnote 28. §§ 523, 528.
Footnote 29. Meeker v Lehigh V. R. Co., 236 US 412, 59 L Ed 644, 35 S Ct 328.
Footnote 30. Meeker v Lehigh V. R. Co., 236 US 412, 59 L Ed 644, 35 S Ct 328.
Footnote 31. Meeker v Lehigh V. R. Co., 236 US 412, 59 L Ed 644, 35 S Ct 328; State
ex rel. Utilities Com. v Mead Corp., 238 NC 451, 78 SE2d 290.
§ 618 On trial de novo
View Entire Section


Go to Supplement
An express statutory provision for trial de novo on review of action of an administrative

agency calls for a new determination without any presumption in favor of the agency's
decision. 32 But in review under the "trial de novo" accorded by some courts in regard
to constitutional or jurisdictional facts, the presumptions in favor of the agency action are
applied. 33 Also, in a trial de novo before a jury, the jury should be instructed as to the
statutorily provided presumption in favor of the agency decision, although the jury
exercises an independent function on the appeal. 34
While the burden of proof in a trial de novo is ordinarily upon the plaintiff, 35 the
contrary is true under the express terms of some statutes providing for trial de novo. 36
§ 618 ----On trial de novo [SUPPLEMENT]
Case authorities:
Administrator of qualified benefit plans is not entitled to de novo review of Pension

Benefit Guaranty Corporation's (PBGC) decision to terminate plans, where administrator
is member of controlled group of corporations liable for minimum funding contributions
and plan's unfunded benefit liabilities, and PBGC determined that plans should be
terminated due to possible long-run loss resulting from bankruptcy of one of controlled
corporations, because arbitrary and capricious standard under 5 USCS § 706(2)(A)
should be applied to PBGC's decision to afford it appropriate amount of judicial
deference. Pension Ben. Guarantee Corp. v Fel Corp. (1992, DC NJ) 798 F Supp 239, 15
EBC 2401.
Administrator of qualified benefit plans is not entitled to de novo review of Pension

Benefit Guaranty Corporation's (PBGC) decision to terminate plans, where administrator
is member of controlled group of corporations liable for minimum funding contributions
and plan's unfunded benefit liabilities, and PBGC determined that plans should be
terminated due to possible long-run loss resulting from bankruptcy of one of controlled
corporations, because arbitrary and capricious standard under 5 USCS § 706(2)(A)
should be applied to PBGC's decision to afford it appropriate amount of judicial
deference. Pension Ben. Guarantee Corp. v Fel Corp. (1992, DC NJ) 798 F Supp 239, 15
EBC 2401.
Footnotes
Footnote 32. Broadway v Alabama Dry Dock & Shipbuilding Co., 246 Ala 201, 20 So 2d
41 (fixing benefit wage percentage).
Footnote 33. Dimitroff v State Industrial Acci. Com., 209 Or 316, 306 P2d 398.
Footnote 34. Dimitroff v State Industrial Acci. Com., 209 Or 316, 306 P2d 398.
Footnote 35. Thaw v Fairfield, 132 Conn 173, 43 A2d 65, 160 ALR 679; Dimitroff v
State Industrial Acci. Com., 209 Or 316, 306 P2d 398.

Footnote 36. Gillaspie v Department of Public Safety, 152 Tex 459, 259 SW2d 177, cert
den 347 US 933, 98 L Ed 1084, 74 S Ct 625.
G. Decision on Review; Subsequent Proceedings [619-647]
Research References
5 USCS § 706; 28 USCS §§ 2341, 2342, 2349, 2349,
Procedure Act (1981) §§ 5-114, 5-118
FRCP 54-63
FRAP 19, 40, 41
1. Initial Court Review [619-628]
§ 619 Generally
View Entire Section

Go to Supplement
What decision a court may make in a proceeding in which review of or relief from action
of an administrative agency is sought may depend upon the type of proceeding involved.
37 If the proceeding is an ordinary action at law, the ordinary principles governing
judicial power will apply. If the proceeding is a statutory review proceeding designed for
review of the orders of a particular agency, the particular statute will govern. 38 In a
statutory review proceeding, the court must act within the bounds of the statute
conferring its jurisdiction to review, 39 and may not intrude upon the province of the
administrative agency. 40 A decision on the merits is favored whenever possible.
41
Under the Hobbs Act, 42 a Court of Appeals reviewing an agency order has the
authority to make and enter, on the petition, evidence, and proceedings set forth in the
record on review, a judgment determining the validity of, and enjoining, setting aside, or
suspending, in whole or in part, the agency's order.
Judgments in the federal District Courts are governed by the provisions of the Federal
Rules of Civil Procedure. 43
Case authorities:
Claimant is not limited to amount of recovery claimed in administrative claim if injury

worsens since claim was filed. Michels v United States (1994, CA8 Iowa) 31 F3d 686.
Footnotes
Footnote 37. As to methods of review, see §§ 548 et seq.
Footnote 38. Avery Freight Lines, Inc. v White, 245 Ala 618, 18 So 2d 394, 154 ALR
732 (judgment of reviewing court is supervisory in character, such as is appropriate to
particular case and within terms of statute viewed in light of its intent and purpose).
Law Reviews: Project: State judicial review of administrative action. 43

Administrative Law Review 571 (1991).
85, reh den 344 US 910, 97 L Ed 702, 73 S Ct 326; Unemployment Compensation
Com. v Aragon, 329 US 143, 91 L Ed 136, 67 S Ct 245; Federal Power Com. v Pacific
Power & Light Co., 307 US 156, 83 L Ed 1180, 59 S Ct 766; Public Service Com. v
Chicago, I. & L. R. Co., 235 Ind 394, 132 NE2d 698, reh den 235 Ind 403, 134 NE2d 53.
Footnote 41. Hardy v Tarpon Springs (Fla) 81 So 2d 503.
Footnote 43. FRCP 54-63.
Forms: Judgment on decision by the court. FRCP, Appendix of Forms, Form 32.
§ 620 Grounds of decision below as basis
View Entire Section

A court's jurisdiction to review the decision of an administrative agency is limited to the

basis upon which the decision was rendered. 44 Therefore, an agency's findings must be
sufficient to allow the reviewing court to track the steps by which the agency reached its
decision. 45 In reviewing an agency's decision, a court is limited to reviewing the
evidence to determine whether there was substantial evidence to support the decision
made, and an appellate court's review of the evidence is similarly limited. 46 When a
court reviews an agency's factual findings, it examines whether they are supported by
substantial evidence. 47 In addition, a court may hold an agency action invalid if the
court finds that the agency erroneously interpreted or applied the law. 48
If an administrative decision substantially affects a fundamental vested right, a trial court

must exercise its independent judgment on the evidence and find an abuse of discretion if
the findings are not supported by the weight of the evidence. If the decision does not
substantially affect a fundamental vested right, the trial court considers only whether the
findings are supported by substantial evidence in light of the whole record. 49 Under the
independent judgment rule, a trial court must weigh evidence and make its own
determination whether the administrative findings should be sustained. 50
An agency decision that is irreconcilably inconsistent in critical particulars cannot be

upheld. A reviewing court is obliged, however, to evaluate the record in a light most
favorable to the agency's decision. Consequently, any inconsistency that does not affect
the basic integrity of a final administrative decision may properly be disregarded. An
agency's decision is not inconsistent merely because it reaches the same result as its prior
decision when the inconsistent and ambiguous language which caused the remand to the
agency is eliminated in the subsequent decision. The fact that the two decisions reached
the same result is not a bar to affirmance of the subsequent decision. 51
It is a fundamental rule of administrative law that a reviewing court, in dealing with a

determination or judgment which an administrative agency alone is authorized to make,
must judge the propriety of such action solely by the grounds invoked by the agency 52
as disclosed by the record. 53 The orderly functioning of the process of review
requires that the grounds upon which the administrative agency acted be adequately
sustained or the action cannot be upheld, even though there are other grounds upon which
the agency could have, but did not, base its action. 54 If the grounds invoked by an
administrative agency for its determination are inadequate or improper, a reviewing court
is powerless to affirm the administrative action by substituting what it considers to be a
more adequate or proper basis. 55 On the other hand, a court reviewing a
determination of an administrative agency usurps the agency's function when it sets aside
such determination upon a ground not theretofore presented and deprives the agency of
an opportunity to consider the matter, make its ruling, and state the reasons for its action.
56
Footnotes
Footnote 44. Lane v Arizona Dept. of Economic Secur. (App) 161 Ariz 581, 780 P2d
414, 44 Ariz Adv Rep 17 (criticized on other grounds by Hilde v Arizona Dept. of
Economic Secur. (App) 166 Ariz 498, 803 P2d 909, 58 Ariz Adv Rep 56).
1031.
Ark 221, 824 SW2d 363.
Footnote 47. Sigmen v Arizona Dept. of Real Estate (App) 169 Ariz 383, 819 P2d 969,
83 Ariz Adv Rep 18.
Footnote 48. Havens v Board of Adult Care Home Admrs., 17 Kan App 527, 839 P2d
1253.
Footnote 49. Goat Hill Tavern v Costa Mesa (4th Dist) 6 Cal App 4th 1519, 8 Cal Rptr
2d 385, 92 CDOS 4603, 92 Daily Journal DAR 7289, review den (Cal) 1992 Cal LEXIS
4132.

Footnote 50. Vaill v Edmonds (2nd Dist) 4 Cal App 4th 247, 6 Cal Rptr 2d 1, 92 CDOS
2339, 92 Daily Journal DAR 3650.
Footnote 51. G & G Trucking Co. v Public Utilities Com. (Colo) 745 P2d 211.
Footnote 52. Barry v O'Connell, 303 NY 46, 100 NE2d 127.
Footnote 53. American Trucking Assos. v United States, 364 US 1, 4 L Ed 2d 1527, 80

S Ct 1570.
Footnote 54. SEC v Chenery Corp., 318 US 80, 87 L Ed 626, 63 S Ct 454; Cooper v
State Board of Medical Examiners, 35 Cal 2d 242, 217 P2d 630, 18 ALR2d 593.
332 US 783, 92 L Ed 367, 68 S Ct 26; Barry v O'Connell, 303 NY 46, 100 NE2d 127.
Footnote 56. Unemployment Compensation Com. v Aragon, 329 US 143, 91 L Ed 136,

67 S Ct 245, noting statute providing judicial review required exhaustion of
administrative remedies.
§ 621 Effect of change of law
View Entire Section

In considering an appeal from an order of an administrative agency, a court must apply

the substantive law in effect when the agency made its order. 57 On the other hand,
where the law is changed during the review proceedings, the court should vacate the
order based on the old law and remand the case to the administrative agency for
reconsideration in light of the changed conditions. 58
Upon review of agency action taken under statutes which were repealed after the action
was taken but before review, the repeal of a statute does not operate to impair or
otherwise affect rights which have been vested or accrued while the statute was in force.
Where a new statute continues in force, provisions of an old statute a right of action
created by the old statute is not destroyed. 59
Footnotes
Footnote 57. Peterson v Livestock Com., 120 Mont 140, 181 P2d 152.
Footnote 58. Southgate Bank v Slay, 379 Mich 1, 148 NW2d 858.
Footnote 59. Inland Navigation Co. v Chambers, 202 Or 339, 274 P2d 104.
As to the effect of the repeal of statutes, generally, see 73 Am Jur 2d, Statutes §§ 378 et
seq.
§ 622 Rule of prejudicial error
View Entire Section

The doctrine that error, in order to furnish a ground for reversal of a judgment, must be
prejudicial is applied upon review of action of an administrative agency. 60
The federal Administrative Procedure Act declares that the court on review shall take due
account of the rule of prejudicial error, 61 and courts do not reverse thereunder where
error is not prejudicial. 62 The Model State Administrative Procedure Act, as
adopted in some states, authorizes reversal or modification if the substantial rights of the
petitioners may have been prejudiced in specified respects. 63 Statutes in regard to
particular agencies also speak in terms of error to the prejudice of the appellant's
substantial rights. 64
Although a court, on review of an administrative determination, must take due account of

the rule of prejudicial error, procedural irregularities are not per se prejudicial, and each
case must be determined on its individual facts. Moreover, the burden of showing that
prejudice has resulted is on the party claiming injury from erroneous rulings. 65
Footnotes
Footnote 60. Witmer v United States, 348 US 375, 99 L Ed 428, 75 S Ct 392; Bendel v
Nagle (CA9 Cal) 17 F2d 719, 57 ALR 1129; Commissioner of Corps. & Taxation v Ford
Motor Co., 308 Mass 558, 33 NE2d 318, 139 ALR 936.
Annotation: Administrative decision by officer not present when evidence was taken,
18 ALR2d 606 § 12 (participation in decision by officer not hearing evidence).
Comment Note.–Administrative official notice–federal cases, 3 L Ed 2d 1628

(improperly taking official notice).
Footnote 62. NLRB v Mattison Machine Works, 365 US 123, 5 L Ed 2d 455, 81 S Ct

434, 47 BNA LRRM 2437, 41 CCH LC ¶ 16730; Union Starch & Refining Co. v NLRB
(CA7) 186 F2d 1008, 27 BNA LRRM 2342, 19 CCH LC ¶ 66152, 27 ALR2d 629, cert
den 342 US 815, 96 L Ed 617, 72 S Ct 30, 28 BNA LRRM 2625 (error disregarded as
harmless where it does not affect substantial rights); Sisto v Civil Aeronautics Board, 86
US App DC 31, 179 F2d 47.
Footnote 64. Avery Freight Lines, Inc. v White, 245 Ala 618, 18 So 2d 394, 154 ALR
732 (order shall be set aside if commission erred to prejudice of appellant's substantial
right in its application of the law). See Cooper v State Board of Medical Examiners, 35
Cal 2d 242, 217 P2d 630, 18 ALR2d 593 (involving "prejudicial abuse of discretion").
Footnote 65. NLRB v Heath Tec Division/San Francisco (CA9) 566 F2d 1367, 97 BNA
LRRM 2712, 83 CCH LC ¶ 10354, cert den 439 US 832, 58 L Ed 2d 127, 99 S Ct 110,
99 BNA LRRM 2600, 84 CCH LC ¶ 10875.
§ 623 Summary judgment
View Entire Section

The provisions of the Federal Rule 66 mandating an award of summary judgment against
a plaintiff who fails to make a showing sufficient to establish the existence of an element
essential to the plaintiff's case, and on which the plaintiff would bear the burden of proof
at trial, are fully applicable in the context of a petition for judicial review. 67 In order
to withstand a motion for summary judgment, a party seeking judicial review of a federal
agency action bears the burden of setting forth specific facts showing that the party is
adversely affected or aggrieved by agency action within the meaning of a relevant statute.
68
As in other civil cases, summary judgment may be granted upon judicial review when
there is no genuine issue as to any material fact and the only dispute involves a question
of law. 69 Summary judgment procedures have special utility in a case of judicial
review of administrative action which was clearly documented before the start of
litigation and where the review is not de novo review. 70 Summary judgment is still
possible even though the controlling statute authorizes de novo review where the
administrative record of the hearing establishes that there are no material facts in dispute.
71
When a party with no right to a trial de novo petitions for judicial review, the case is ripe
for summary judgment, since whether the administrative order was supported by
sufficient evidence or is otherwise legally assailable involve matters of law. 72 0n the
other hand, it has been held that where a case presents the issue of whether a
determination made by an administrative agency is unsupported by substantial evidence
and where there is substantial controversy as to material facts, the District Court is
precluded from entering summary judgment. 73 Where the statute providing for judicial
review provides that the judgment should be entered upon the pleadings and "transcript
of the record," summary judgment procedure is not appropriate because the federal rule
74 would allow new factual evidence to be substituted in the form of affidavits, while
nothing but the administrative record can be considered by the court under the statute. 75
Footnotes

Summary judgment is more fully discussed in 73 Am Jur 2d, Summary Judgment §§ 1 et

seq.
For a comprehensive discussion of standing, see §§ 438 et seq.
Footnote 69. Soler v G & U, Inc. (SD NY) 615 F Supp 736, 27 BNA WH Cas 435, 105
CCH LC ¶ 34846, later proceeding (SD NY) 628 F Supp 720, 27 BNA WH Cas 866, 105
CCH LC ¶ 34847, costs/fees proceeding (SD NY) 658 F Supp 1093, 28 BNA WH Cas
225, 106 CCH LC ¶ 34905 and revd on other grounds (CA2 NY) 833 F2d 1104, 28 BNA
WH Cas 593, 107 CCH LC ¶ 34995, cert den 488 US 832, 102 L Ed 2d 64, 109 S Ct
88, 1 BNA WH Cas 2d 168 and affd in part and set aside in part on other grounds (SD
NY) 768 F Supp 452, 119 CCH LC ¶ 35507, costs/fees proceeding (SD NY) 138 FRD
47, 1 BNA WH Cas 2d 180, costs/fees proceeding (SD NY) 801 F Supp 1056, 1 BNA
WH Cas 2d 192, 122 CCH LC ¶ 35671; Davis Bros., Inc. v Marshall (ND Ga) 522 F
Supp 628, 25 BNA WH Cas 101, 92 CCH LC ¶ 34077 (facts established by stipulation).
Footnote 70. Upper West Fork River Watershed Assn. v Corps of Engineers, United
States Army (ND W Va) 414 F Supp 908, 8 Envt Rep Cas 2027, 6 ELR 20580, affd
without op (CA4 W Va) 556 F2d 576, 11 Envt Rep Cas 1097, 7 ELR 20444, cert den
434 US 1010, 54 L Ed 2d 752, 98 S Ct 720, 11 Envt Rep Cas 1160.
Footnote 71. Mayesh v Schultz (DC Ill) 58 FRD 537.
Footnote 72. Johnson v Califano (DC Md) 434 F Supp 302; Bank of Commerce v City
Nat. Bank (CA5 Tex) 484 F2d 284, cert den 416 US 905, 40 L Ed 2d 109, 94 S Ct
1609; Milton v Harris (CA7 Ill) 616 F2d 968.
Footnote 73. Heber Valley Milk Co. v Butz (CA10 Utah) 503 F2d 96.
Footnote 74. FRCP 56.
Footnote 75. Sage v Celebrezze (WD Va) 246 F Supp 285; Torphy v Weinberger (ED
Wis) 384 F Supp 1117; Gomez v Harris (DC Alaska) 504 F Supp 1342.
§ 624 Res judicata defense
View Entire Section

The courts are reluctant to deny a claim on the basis of a technical defense such as res
judicata, particularly where the records of the prior proceedings indicate that the claimant
was acting pro se, had limited education, alleged mental impairment, and never requested
a hearing; 76 or that the agency improperly applied its own regulations, denying a claim
without a hearing or advising the claimant of his right to representation by counsel on
appeal; 77 or that neither the court nor the agency involved had sufficient information to
make the factual findings necessary to resolve the issue. 78
Footnotes
Footnote 76. Winter v Finch (SD NY) 318 F Supp 602.
Footnote 77. Chenoweth v Weinberger (WD Mo) 376 F Supp 1338, appeal after remand
(WD Mo) 421 F Supp 955.
Footnote 78. Federal Trade Com. v Markin (CA6 Mich) 532 F2d 541, 1976-1 CCH Trade
Cases ¶ 60752.
Forms: Prior judgment as bar to present action. 15 Am Jur Pl & Pr Forms (Rev),
Judgments, Form 371.
Judgment–Effect of former judgment as res judicata. 15 Am Jur Pl & Pr Forms (Rev),

Judgment on plea of res judicata–For defendant. 15 Am Jur Pl & Pr Forms (Rev),

§ 625 Affirmance or approval
View Entire Section

Go to Supplement
If it appears on judicial appellate review that the agency carefully examined the record,
was duly cognizant of the deference to be given to the decision of a magistrate, did not
misapprehend or grossly misapply the substantial evidence standard, and gave adequate
reason grounded in the record for reversing the magistrate, the judicial tendency should
be to deny leave to appeal or, if it is granted to affirm. 79 Therefore, a court will affirm
an agency's findings of fact if the agency's findings are supported by substantial evidence.
Substantial evidence is relevant evidence that a reasonable mind might accept as
adequate to support a conclusion. A court will not reverse an agency's decision unless it
is convinced that fairminded persons with the same facts before them could not have
arrived at the agency's conclusion. 80 On appeal, a court is obliged to affirm an agency's
adjudication unless the court finds that it violates constitutional rights, is contrary to law,
or is based on findings of fact which are not supported by reliable, probative, 81 and
substantial evidence. 82
A court will affirm an administrative agency's decision if the decision is correct for any
reason appearing in the record, 83 even if the grounds stated in its support are erroneous.
84 A court may not, however, affirm an administrative agency action on a basis
containing any element of discretion, including discretion to find facts and interpret
statutory ambiguities, that is not the basis the agency used because this would remove the
discretionary judgment from the agency to the court. Therefore, even if an agency gives
a reviewable reason for an otherwise unreviewable action, the action does not become
reviewable. 85
§ 625 ----Affirmance or approval [SUPPLEMENT]
Practice Aids: Order–Affirming administrative determination. 1A Am Jur Pl & Pr

Footnotes
Footnote 79. Holden v Ford Motor Co., 439 Mich 257, 484 NW2d 227, reh den 439 Mich
1241, 485 NW2d 565, later proceeding (Mich) 487 NW2d 409.
Footnote 80. Patrick v Arkansas Oak Flooring Co., 39 Ark App 34, 833 SW2d 790;
Robinson v Ed Williams Constr. Co., 38 Ark App 90, 828 SW2d 860.
Footnote 81. Ford v Ohio Dept. of Natural Resources (Franklin Co) 67 Ohio App 3d 755,
588 NE2d 884.
Footnote 82. Ford v Ohio Dept. of Natural Resources (Franklin Co) 67 Ohio App 3d 755,
588 NE2d 884; Ardolino v Pennsylvania Secur. Com., 145 Pa Cmwlth 40, 602 A2d 438,
CCH Blue Sky L Rep ¶ 73610.
A court must affirm the agency's decisions unless the agency's findings of fact are not
supported by a preponderance of the evidence, its conclusions of law are not sustained by
the findings of fact, its decision is not supported by the conclusions of law, or its decision
is not in accordance with the law. Ekstrom v North Dakota Workers Compensation
Bureau (ND) 478 NW2d 380.
Footnote 83. Suburban Medical Hosp., Inc. v Department of Health & Rehabilitative
Services (Fla App D3) 600 So 2d 1195, 17 FLW D 1338.
Footnote 84. Vermont Elec. Power Co. v Town of Cavendish, 158 Vt 369, 611 A2d 389.

§ 626 Reversal or vacation
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In statutory review proceedings the court is usually given power to reverse or vacate the
action taken by the administrative agency, 86 or to command that an order or decision
be set aside. 87 Accordingly, judicial review of agency proceedings is limited. That is,
a court may reverse or modify an agency's decision only in limited circumstances. 88 A
court may reverse or modify the decision of an agency if the substantial rights of the
appellant have been prejudiced because the administrative findings, inferences,
conclusions or decisions are in violation of constitutional or statutory provisions; in
excess of the statutory authority of the agency; made upon unlawful procedures; affected
by other error of law; clearly erroneous in view of the reliable, probative, and substantial
evidence on the whole record; or arbitrary or capricious or characterized by an abuse of
discretion or clearly unwarranted exercise of discretion. 89
The courts are slow to overturn the action of an administrative agency 90 and due
regard must be given to the agency's determination of credibility issues. 91 When a trial
court, in its appraisal of the evidence, determines that there exist legally sufficient
reasons for discrediting certain evidence relied upon by the agency and necessary to its
determination, the court may reverse, vacate or modify the administrative order. 92
When an agency decides a case using an improper legal standard, it acts arbitrarily and
therefore commits reversible error. 93 In addition, a court has the authority to reverse an
agency's arbitrary decision even when the agency has acted legally in the narrow sense of
being procedurally correct. 94
The authority of the reviewing court is limited to reversing and remanding the agency's
decision in whole or in part, and if necessary, identifying issues requiring further hearing
and providing proper instructions. Because the determination of the appropriate sanction
is to be made by the administrative agency and not the court, a reviewing court will not
interfere with an agency's decision to impose sanctions unless the agency acts
unreasonably or arbitrarily or truth is a sanction which is unrelated to the purpose of the
statute. 95
§ 626 ----Reversal or vacation [SUPPLEMENT]
Practice Aids: Order–Setting aside administrative determination–Requiring issuance

of certificate or permit. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 423.
Case authorities:
Where Department of Labor won judgment against government contractor for

underpayments in administrative hearing that contractor refused to attend, and
Department sought collection order enforcing judgment in district court, district court
exceeded its jurisdiction when it ordered ALJ to reopen agency case and allow contractor
another opportunity to be heard, because, unless district court held that ALJ's findings
were not supported by preponderance of evidence, there was no legal basis that could
sustain court's order to remand matter for another round of administrative proceedings.
United States v Todd (1994, CA6 Mich) 38 F3d 277, 1994 FED App 358P.
ALJ improperly rejected claimant's treating psychiatrist's opinion that claimant, as result
of his depressive syndrome, would be unable to relate appropriately to co-workers and
supervisors, to meet quality or production standards, to sustain work- adequate
attendance, or to tolerate customary work pressures, where, contrary to ALJ's conclusion,
claimant's daily activities were not inconsistent with physician's opinion, and physician's
opinion was supported by his records, which showed that claimant was consistently
belligerent, hostile, and resistive to staff at outpatient center and had manipulative,
demanding approach; furthermore, evidence of occasional social visits by claimant
interspersed with month-long periods when he did not leave house was not substantial
evidence that he could relate appropriately to co-workers and supervisors; in addition,
record showed that claimant had, since 1989, been frequently hospitalized for treatment
of his mental impairment and that he had required regular outpatient treatment. Ford v
Shalala (1993, ND Ala) CCH Unemployment Ins Rep ¶ 17438A.
Footnotes
Footnote 86. 28 USCS §§ 2342, 2349.
Public Service Com. v Chicago, I. & L. R. Co., 235 Ind 394, 132 NE2d 698, reh den 235
Ind 403, 134 NE2d 53; Russell v Ely & Walker Dry Goods Co., 332 Mo 645, 60 SW2d
44, 87 ALR 953; Avant Gas Service Co. v Corporation Com., 184 Okla 583, 89 P2d 291,
122 ALR 189.
Footnote 87. Cooper v State Board of Medical Examiners, 35 Cal 2d 242, 217 P2d 630,
18 ALR2d 593.
Footnote 88. Morgan v Idaho Dept. of Health and Welfare, 120 Idaho 6, 813 P2d 345.
Courts will not reverse or modify a final administrative determination unless it is

contrary to law or unsupported by the evidence. Indiana Dept. of Public Welfare v Chair
Lance Service, Inc. (Ind) 523 NE2d 1373.
Circuit courts, acting as intermediate courts of appeal, may overturn a factual finding
made by a workers' compensation commission only when the finding is not supported by
credible, substantial evidence. Cawthon v Alcan Aluminum Corp. (Miss) 599 So 2d 925,
reh den (Miss) 1992 Miss LEXIS 367.
For a discussion of modification of administrative agency orders, see § 628.
Morgan v Idaho Dept. of Health and Welfare, 120 Idaho 6, 813 P2d 345; Cunningham v
Bechtold, 186 W Va 474, 413 SE2d 129.
A reviewing court may reverse or modify an agency's decision if substantial rights of the
appellant have been prejudiced because the decision is arbitrary or capricious, or its
findings are characterized by an abuse of discretion, or the decision is manifestly
erroneous in view of substantial evidence in the record. Elysian Fields, Inc. v St. Martin
(La App 4th Cir) 600 So 2d 69.
A reviewing court may modify or reverse an agency's decision as the substantial rights of
the petitioner may have been prejudiced because the agency's findings, inferences,
conclusions or decisions are affected by an error of law, unsupported by substantial
evidence in view of the entire record, or arbitrary or capricious. Wiggins v North

Carolina Dept. of Human Resources, 105 NC App 302, 413 SE2d 3.
Footnote 90. NLRB v Babcock & Wilcox Co., 351 US 105, 100 L Ed 975, 76 S Ct 679,
38 BNA LRRM 2001, 30 CCH LC ¶ 69911.
Footnote 91. Elysian Fields, Inc. v St. Martin (La App 4th Cir) 600 So 2d 69.
Footnote 92. Beeler v Franklin County Sheriff (Franklin Co) 67 Ohio App 3d 748, 588
NE2d 879.
Footnote 93. Re Application of Northland Transp., Inc., 239 Neb 918, 479 NW2d 764.
Footnote 94. Kellogg v Hoven School Dist. No. 53-2 (SD) 479 NW2d 147.
Footnote 95. Wesley v Police Bd. of Chicago (1st Dist) 223 Ill App 3d 1042, 166 Ill Dec
390, 586 NE2d 348.
§ 627 --Effect
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Go to Supplement
If an administrative order is affirmative or mandatory in character, the result of its being

reversed, vacated, or set aside is that such an order cannot be enforced by the
administrative agency against the complaining party. 96
Where a court sets aside agency action under a statute merely authorizing a judgment
either affirming or setting aside such action, the administrative agency is not precluded
from reopening the case and hearing it de novo. 97 If a decision is set aside for lack of a
fair hearing, the agency is not precluded from holding another hearing even though the
statute does not provide for a rehearing. 98
§ 627 --Effect [SUPPLEMENT]
Practice Aids: Construction and application of anti-injunction provision of Financial

Institutions Reform, Recovery, and Enforcement Act (FIRREA) (12 USCS § 1821(j)).
126 ALR Fed 43.
Footnotes
Footnote 96. Public Service Com. v Chicago, I. & L. R. Co., 235 Ind 394, 132 NE2d 698,
reh den 235 Ind 403, 134 NE2d 53.

§ 628 Modification
View Entire Section

Some statutes in regard to particular agencies 99 and some state administrative

procedure acts 1 confer upon the reviewing court power to modify the action under
review or to set it aside in whole or in part. 2 For example, one statute provides that the
court may modify the decision if substantial rights of the appellant have been prejudiced
because the administrative findings, inferences, conclusions or decisions are: (1) in
violation of constitutional or statutory provisions; (2) in excess of the agency's statutory
authority; (3) made upon unlawful procedure; (4) affected by other error of law; (5)
clearly erroneous in view of the reliable, probative and substantial evidence on the whole
record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion. 3 Such a power conferred in one section of a statute
may be read into another section where the two sections provide different methods of
review. 4
The scope of administrative discretion should be regarded when a court is called upon to
modify ancillary features of a valid agency order, and the court should not lightly modify
the orders of an expert agency. 5 Consequently, the court may decline to exercise
its power to modify an order and instead remand the case for further proceedings where
the matter requires exercise of an informed expert judgment to which great weight would
be given in the reviewing court and the question at issue has not been passed upon by the
administrative agency. 6 On the other hand, when an agency makes an error of law,
the reviewing court may reverse or modify the decision for that reason alone. 7
The power to modify or set aside in whole or in part is not authority to exercise an
essentially administrative function. 8 Nor would it be good judicial administration to
strike a contested provision of an order of the agency to meet a hypothetical situation,
where the agency has reserved jurisdiction to meet just such contingencies. 9
Footnotes
Footnote 99. FTC v Mandel Bros., Inc., 359 US 385, 3 L Ed 2d 893, 79 S Ct 818
(modification consented to by commission); Federal Power Com. v Idaho Power Co.,
344 US 17, 97 L Ed 15, 73 S Ct 85, reh den 344 US 910, 97 L Ed 702, 73 S Ct 326;
Hessey v Capital Transit Co., 193 Md 265, 66 A2d 787, 10 ALR2d 1114 (court directed
commission to permit utility to abandon a line); Hernreich v Quinn, 350 Mo 770, 168
SW2d 1054; Russell v Ely & Walker Dry Goods Co., 332 Mo 645, 60 SW2d 44, 87
ALR 953; State ex rel. Utilities Com. v Mead Corp., 238 NC 451, 78 SE2d 290.
Footnote 1. Pennsylvania State Athletic Com. v Bratton, 177 Pa Super 598, 112 A2d 422.
Footnote 5. Moog Industries, Inc. v FTC, 355 US 411, 2 L Ed 2d 370, 78 S Ct 377, reh
den 356 US 905, 2 L Ed 2d 583, 78 S Ct 559; FTC v National Lead Co., 352 US 419,
1 L Ed 2d 438, 77 S Ct 502.
1.
Footnote 7. Shanty Town Assoc. Ltd. Partnership v Department of Environment, 92 Md

App 103, 607 A2d 66, cert den 328 Md 94, 612 A2d 1316.
85, reh den 344 US 910, 97 L Ed 702, 73 S Ct 326.
Footnote 9. FTC v National Lead Co., 352 US 419, 1 L Ed 2d 438, 77 S Ct 502.
2. Final Judgment or Remand [629-638]
a. Remand [629-632]
§ 629 Generally
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The court may remand a matter to the agency, 10 before final disposition of a petition
for review, with directions that the agency conduct fact-finding and other proceedings the
court considers necessary and that the agency take such further action on the basis of the
further proceedings as the court directs, if the agency was required by any provision of
law to base its action exclusively on a record of a type reasonably suitable for judicial
review, but the agency failed to prepare or preserve an adequate record; the court finds
that new evidence has become available that relates to the validity of the agency action at
the time it was taken, and that one or more of the parties did not know and was on no
duty to discover, or did not know and was under a duty to discover but could not
reasonably have discovered, until after the agency action, and the interests of justice
would be served by remand to the agency; the agency improperly excluded or omitted
evidence from the record; or a relevant provision of law changed after the agency action
and the court determined that the new provision may control the outcome. 11 A court
does not encroach upon the administrative function by remanding to the agency, and
there is nothing in the principles governing judicial review of administrative acts which
precludes the courts from giving an administrative agency an opportunity to meet
objections to its order by correcting irregularities in procedure, or supplying deficiencies
in its record, or making additional findings where these are necessary, or supplying
findings validly made in the place of those attacked as invalid. 12
The principle that a court cannot make an affirmative order on the merits and substitute
its opinion for that of the administrative agency cannot be avoided by indirection. There
is no difference between a direct affirmative order to the agency and a judicial opinion
which states exactly what the agency should do on the merits followed by a mandate to
the agency for further proceedings consistent with the law stated in the opinion. 13
There is, however, no difficulty upon remand in requiring an administrator to discharge a
duty laid upon him by statute where the court does not tell the administrator how to
exercise his discretion but merely requires him to exercise it. 14
When the court has acquired jurisdiction of a subject matter or cause and has remanded
such cause for further consideration by an administrative agency, the power of the court
continues until final disposition of the matter to the exclusion of any other court of
coordinate jurisdiction to interfere in the matter. 15 Therefore, the court may remand
and retain jurisdiction in the event that either party is dissatisfied with the outcome of the
administrative proceedings. 16 Deviation from a court's remand order in a subsequent
administrative proceeding is legal error, subject to reversal on further judicial review, and
when the court retains jurisdiction over the action pending the agency's decision and its
filing with the court, the court retains the power to assure that its prior mandate is
effectuated. 17
Case authorities:
"Court" referred to in sentence four of 42 USCS § 405(g), which provides that court has
power to enter, upon pleadings and transcript of record, judgment affirming, modifying
or reversing decision of Secretary of Health and Human Services, with or without
remanding cause for rehearing, is district court; consequently, it is district court's order
remanding case to Secretary that will constitute sentence four remand and make social
security plaintiff prevailing party under EAJA. Goatcher v Chater (1995, CA10 Okla) 57
F3d 980, 48 Soc Sec Rep Serv 208, CCH Unemployment Ins Rep ¶ 14647B.
Footnotes
The trial court must remand to the agency rather than to a hearing examiner as a hearing
examiner is nothing more than an extension of the agency and lacks independent
authority to act on his or her own. Heine v Chiropractic Examining Bd. (App) 167 Wis
2d 187, 481 NW2d 638, supp op (Wis App) 1993 Wisc App LEXIS 1512.
Footnote 12. Ford Motor Co. v NLRB, 305 US 364, 83 L Ed 221, 59 S Ct 301, 3 BNA
LRRM 663, 1 CCH LC ¶ 17040; Love v Mississippi State Board of Veterinary

Examiners, 230 Miss 222, 92 So 2d 463; Pennsylvania State Athletic Com. v Bratton,
177 Pa Super 598, 112 A2d 422.
Footnote 13. Public Service Com. v Chicago, I. & L. R. Co., 235 Ind 403, 134 NE2d 53.
Footnote 14. Addison v Holly Hill Fruit Products, Inc., 322 US 607, 88 L Ed 1488, 64
S Ct 1215, 153 ALR 1007, reh den 323 US 809, 89 L Ed 645, 65 S Ct 27.
Footnote 15. State ex rel. Public Service Com. v Boone Circuit Court, 236 Ind 202, 138
NE2d 4, reh den 236 Ind 212, 139 NE2d 552.
Footnote 16. Offutt v Earp, 200 Ga App 74, 406 SE2d 571, 102-129 Fulton County D R
13.
§ 630 Propriety or necessity for remand
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Go to Supplement
It is necessary or proper for a court to remand a case to the administrative agency under a
variety of circumstances. A court will remand a case to the administrative agency where
the court determines that the evidence on which the agency expressly relied in making its
determination is not substantial; 18 the agency fails to follow the proper notice
procedures for implementing an agency rule, thereby depriving claimants of procedural
due process; 19 the agency appears to have applied the incorrect standard for
determining liability; 20 the agency's findings do not adequately reflect the justification
for the agency's position; 21 the agency's exercise of discretion is outside the range of
discretion delegated to the agency by law, or is otherwise in violation of a constitutional
or statutory provision; 22 the proceedings are found to have been unfair; 23 or
subsequent to the administrative agency's hearings an appellate court set forth a new legal
standard pertaining to the issues involved in the administrative agency's hearings. 24
Furthermore, a court's remand to the administrative agency for reconsideration is

appropriate where the original hearing before the agency was conducted by an
unauthorized hearing officer. In addition, it is proper to remand to the agency for
reconsideration where there are errors in the admission of evidence before the
administrative agency. After a reviewing court determines what evidence is admissible,
the agency should be given an opportunity to exercise its discretion based on that
evidence alone. 25 It is also appropriate for a court to remand a case to the agency with
directions that a hearing officer's findings be clarified, instead of the court simply
reversing outright the agency's findings. 26
If a state's Administrative Procedure Act provision that a court may modify the order or
make such other ruling is supported by reliable, probative and substantial evidence, the
application of such permissive language allows, but does not require, the court to remand
the case to an agency where the order in its entirely or in part has been found to be
unsupported by reliable, probative, and substantial evidence. 27
A reviewing court will not substitute its judgment for that of the agency unless the
agency has abused its discretion. A court may, however, remand an action for a review
of sanctions even where the agency has not abused its discretion based upon the court's
findings that the regulation upon which the agency proceedings was based was overly
broad and therefore unconstitutional. 28
It is also proper for a Court of Appeals to remand benefits cases for further proceedings
where the Court of Appeals correctly determines that an interim regulation establishing
the standards under which disability benefit claims are administratively adjudicated
violates a United States statute. It is not proper, however, for the Court of Appeals to
reverse a District Court's refusal to issue a writ of mandamus instructing the Secretary of
Labor to readjudicate, under the correct standards, cases that have already become final
by reason of the claimants' failure to pursue administrative remedies or petition for
judicial review in a timely manner. 29
An administrative agency has an obligation to state clearly and completely the facts
essential to its conclusion. When the agency fails to do this, remand is appropriate unless
a remand would only prolong rather than benefit the process. 30 For example, where the
administrative agency does not err in the conduct of the hearing, but rather in the results
reached, there is no basis for reconsideration. 31 Similarly, when it appears that the
agency could reasonably reach only one conclusion, the court may direct the agency to
act in accordance with that conclusion. 32 It is also unnecessary for a court to remand to
the agency where the remand would be pointless, as where an agency exceeds its
authority in granting emotional distress and punitive damages when the only damages it
is authorized to award are pecuniary and the agency's ruling excluded any pecuniary
damage recovery. 33 And if a decision results from a statutory denial, and is determined
by an appellate court that a remand for the adoption of a written resolution would be
futile, the court must undertake its own assessment of the record and conduct a de novo
review of the evidence. 34
A remand may generally be made in light of additional evidence only if the claimant
shows good cause for failing to present the evidence earlier. 35 A remand to the
agency for an appropriate hearing and factual findings on an issue is warranted, however,
where the petitioner's failure to raise the question at the agency level purportedly results
from improper advice from the manager with the agency. 36
§ 630 ----Propriety or necessity for remand [SUPPLEMENT]
Case authorities:
U.S. Coast Guard's decision that repaired ship was eligible for coast-wide privileges
pursuant to 46 Appx USCS § 14 is remanded, where stern of wrecked Japanese-built
tanker that had been granted coast- wide privileges had been joined with barge that had
been denied such privileges, because no clear policy exists from record of prior Coast
Guard decisions by which Coast Guard's decision that ship constitutes rebuilt tanker and
not rebuilt barge could be reviewed. Keystone Shipping Co. v United States (1992, DC
Dist Col) 801 F Supp 771, 1993 AMC 629.
Former State Lottery Commission official was not entitled to reconsideration of common
pleas court's affirmation of agency-ordered firing where the former official sought to
compel remand to common pleas for reconsideration pursuant to RC § 119.12 in light of
newly discovered evidence; RC § 119.12 pertains solely to appeals from an order of an
agency to the court of common pleas and is inapplicable to appeals to a court of appeals.
Smith v Ohio Lottery Com. (1991, Cuyahoga Co) 75 Ohio App 3d 753, 600 NE2d 805.
Footnotes
Footnote 18. Atlantic Venture, Inc. v Supervisor of Assessments, 94 Md App 73, 615
A2d 1210; Martin v Psychiatric Secur. Review Bd., 312 Or 157, 818 P2d 1264.
Footnote 19. Re Order of Comr. of Ins. Deferring Certain Claim, etc., 256 NJ Super 553,
607 A2d 992 (insurance plan was issued with neither the notice period nor the
opportunity for comment required by the Administrative Procedure Act).
Footnote 20. It is appropriate under such circumstances to vacate and remand the
agency's decision so that the agency may reconsider the decision in accordance with the
language of the statute involved and apply the correct standard of liability. Chemlawn
Services Corp. v Department of Agriculture, 146 Pa Cmwlth 235, 605 A2d 437.
Footnote 21. Billings v Wyoming State Bd. of Outfitters & Professional Guides (Wyo)
837 P2d 84.
Footnote 22. Heine v Chiropractic Examining Bd. (App) 167 Wis 2d 187, 481 NW2d
638, supp op (Wis App) 1993 Wisc App LEXIS 1512.
Footnote 24. Florida State University v Florida Unemployment Appeals Com. (Fla App
D1) 548 So 2d 768, 14 FLW 2029.
Footnote 25. Newman v California State Personnel Bd. (Cal App) 10 Cal App 4th 41, 12
Cal Rptr 2d 601, 92 Daily Journal DAR 14041.
Footnote 26. Department of Corrections v Chandler (Fla App D1) 582 So 2d 1183, 16
FLW D 364, different results reached on reh (Fla App D1) 16 FLW D 1820 (this holding
was made on rehearing).
Footnote 27. Re Niehaus (Franklin Co) 62 Ohio App 3d 89, 574 NE2d 1104.
Footnote 28. Ardt v Department of Professional Regulation (1st Dist) 218 Ill App 3d 61,
161 Ill Dec 1, 578 NE2d 128, later proceeding (Ill) 162 Ill Dec 480, 580 NE2d 106 and
app gr 142 Ill 2d 651, 164 Ill Dec 914, 584 NE2d 126 and affd 154 Ill 2d 138, 180 Ill Dec
713, 607 NE2d 1226.
Footnote 29. Pittston Coal Group v Sebben, 488 US 105, 102 L Ed 2d 408, 109 S Ct
414, motion den (US) 115 L Ed 2d 1050, 111 S Ct 2885 and costs/fees proceeding

(CA4) 974 F2d 508.
Footnote 30. Caldwell v Minneapolis (Minn App) 486 NW2d 151.
Footnote 31. Newman v California State Personnel Bd. (Cal App) 10 Cal App 4th 41, 12
Cal Rptr 2d 601, 92 Daily Journal DAR 14041.
Footnote 32. Milardo v Inland Wetlands Com., 27 Conn App 214, 605 A2d 869.
Footnote 33. Indiana Civil Rights Com. v Union Township Trustee (Ind App) 590 NE2d
1119, transfer den (Jul 6, 1992).
Footnote 34. Patal v Planning Bd. of Woodbridge, 258 NJ Super 437, 609 A2d 1319.
Footnote 35. Melkonyan v Sullivan (US) 115 L Ed 2d 78, 111 S Ct 2157, 91 CDOS
4337, 91 Daily Journal DAR 6689, CCH Unemployment Ins Rep ¶ 16030A (not followed
on other grounds by Heredia v Secretary of HHS (DC Puerto Rico) 783 F Supp 1550, 36
Soc Sec Rep Serv 604, CCH Unemployment Ins Rep ¶ 16860A) and (not followed on
other grounds by Lenz v Secretary of HHS (DC NH) 1992 US Dist LEXIS 14550).
An appellate court is not required to remand to the trial court when there is newly
discovered evidence. Smith v Ohio Lottery Com. (Cuyahoga Co) 75 Ohio App 3d 753,
600 NE2d 805.
Footnote 36. Lundahl v District of Columbia Dept. of Employment Services (Dist Col
App) 596 A2d 1001.
§ 631 --Remand to supplement the administrative record
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Go to Supplement
In the event that an appellate court finds itself unable to exercise informed judicial review
of a decision of an administrative agency because of an inadequate administrative record,
the appellate court may always remand the case to the agency for further consideration.
37
It is proper to remand a case to the agency when the record is incomplete. For example, if
the record does not contain a transcript of hearings held before the agency the case
should be remanded to the agency with instructions to reconstruct, if possible, the record
of the hearings originally heard before it. In the event the record cannot be reconstructed,
the plaintiff is entitled to be granted a new trial. 38 In addition, a court may remand the
case for further proceedings or reverse the decision if it cannot find any support for the
agency's decision in the record. 39
It is necessary for a court to remand to the agency for the making of a more complete
record where the administrative record is inadequate or incomplete, 40 or if the agency's
actions are not supportable on the administrative record, 41 and is an advisable
procedure even in cases where the court could conduct a de novo trial. 42 Alternatively,
the court may refer the case in some circumstances to a special master. 43
In federal courts, where the administrative record is inadequate because the agency has
failed without justification to consider newly discovered evidence, and has acted
improperly in preventing the petitioner from placing evidence before it, the case may be
remanded for the creation of an adequate record. 44 Moreover, if the agency lacked
a basis in the record for its actions, then the proper course is to reverse or vacate its
decision and remand for further administrative proceedings. 45 It has been stated that
a reviewing court has inherent power to remand a cause to an administrative agency for
further proceedings to permit further evidence to be taken or additional findings to be
made on the central points. 46
§ 631 --Remand to supplement the administrative record [SUPPLEMENT]
Case authorities:
The trial court did not err in denying petitioners' petition for remand to the Division of
Environmental Management for the taking of additional evidence pursuant to G.S. §
150B-49, since there was competent evidence in the record to support findings that the
proposed new evidence was cumulative and not materially different from that considered
by the administrative agency when the decisions were made. Save Our Rivers v Town of
Highlands (1994) 113 NC App 716, 440 SE2d 334, stay gr (NC) 1994 NC LEXIS 283.
Footnotes
Footnote 37. Harrison v PPG Industries, Inc., 446 US 578, 64 L Ed 2d 525, 100 S Ct
1889, 14 Envt Rep Cas 1497, 10 ELR 20353.
Footnote 38. Muggivan v Jefferson Parish School Bd. (La App 5th Cir) 583 So 2d 1157,
cert den (La) 590 So 2d 66.
Footnote 39. Dovel v Dobson, 122 Idaho 59, 831 P2d 527.
Footnote 40. Citizens Utils. Co. v Pollution Control Bd. (3d Dist) 216 Ill App 3d 629,
159 Ill Dec 746, 576 NE2d 415, app den 142 Ill 2d 652, 164 Ill Dec 916, 584 NE2d 128.
Occidental Petroleum Corp. v SEC, 277 US App DC 112, 873 F2d 325, CCH Fed Secur
L Rep ¶ 94388; National Law Center on Homelessness & Poverty v United States Dept.
of Veterans Affairs (DC Dist Col) 736 F Supp 1148, later proceeding (DC Dist Col) 1991
F2d 1210 and motion den, motion gr (DC Dist Col) 1991 US Dist LEXIS 5991,
costs/fees proceeding (DC Dist Col) 1992 US Dist LEXIS 1742, costs/fees proceeding
(DC Dist Col) 799 F Supp 148 and mod on other grounds (DC Dist Col) 819 F Supp 69.

Footnote 42. Secretary of Labor v Farino (CA7 Ill) 490 F2d 885; Capobianco, etc. v
United States, 184 Ct Cl 160, 394 F2d 515.
104 S Ct 1936, 10 Media L R 1685.
Footnote 44. Rhoa-Zamora v INS (CA7) 971 F2d 26, mod, reh, en banc, den (CA7) 1992
US App LEXIS 28778 and cert den (US) 123 L Ed 2d 649, 113 S Ct 1943, reh den (US)
124 L Ed 2d 302, 113 S Ct 2401 and cert den (US) 124 L Ed 2d 243, 113 S Ct 2331,
later proceeding (CA7) 1993 US App LEXIS 33998; Osaghae v United States INS (CA7)
942 F2d 1160, habeas corpus proceeding (CA7) 1992 US App LEXIS 10981.
Footnote 46. Becerra-Jimenez v Immigration & Naturalization Service (CA10) 829 F2d
996.
§ 632 Procedure on remand
View Entire Section

A reviewing court may control the scope of a remand to an administrative agency 47 and
remand for a specific act does not reopen the entire case; the lower tribunal has only the
authority to carry out the court's mandate. 48 A remand for a new hearing on the
existing factual record requires an agency to review the record as it existed at the close of
the hearing, receive whatever additional evidence either party desires to present, and
render a decision accordingly. 49 In contrast, when a case is remanded to an
administrative agency because the agency failed to adequately consider the petitioner's
legal arguments, the agency must hold a new hearing. At the new hearing, the agency
must analyze each event, determine whether the event is legally relevant given the
petitioner's legal arguments, discard any that are not legally relevant, and determine
whether the remaining legally relevant events constitute sufficient support for the
agency's decision. 50 An agency cannot revisit counts which were dismissed, even
where a trial court strongly suggests that the agency do so, when the agency has already
accepted the parties' stipulation that those counts would not be considered in imposing
disciplinary action. 51
The administrative agency is bound to act on and respect and follow the court's
determination of questions of law, 52 but it is not foreclosed, after its error has been
corrected, from enforcing the legislative policy committed to its charge, 53 and it
may take such further proceedings as the statute permits. 54 It is required to exercise
its judgment and discretion with respect to the matters newly presented to it 55 and on
a different basis may reach the same determination which had previously been reversed.
56
Some statutes provide for a report to the court of the action taken by the agency
subsequent to remand. 57
Footnotes
Footnote 47. Public Util. Comm'n v GTE-Southwest (Tex App Austin) 833 SW2d 153,
writ den (Dec 31, 1992) and denial of writ withdrawn, writ granted (Tex) 36 Tex Sup Ct
Jour 978 and cause set for submission (Sep 13, 1993).
Footnote 48. Warren v Department of Admin. (Fla App D5) 590 So 2d 514, 16 FLW D
3004.
Footnote 49. Allen v Louisiana State Bd. of Dentistry (La App 4th Cir) 603 So 2d 238.
Footnote 50. Tolman v Salt Lake County Attorney (Utah App) 818 P2d 23, 169 Utah
Adv Rep 40 (court stated case was not governed by Utah Administrative Procedure Act,
because Act applies only to administrative actions of state agencies and not to local
administrative bodies).
332 US 783, 92 L Ed 367, 68 S Ct 26; FCC v Pottsville Broadcasting Co., 309 US 134,
84 L Ed 656, 60 S Ct 437, 2 CCH LC ¶ 17058.
Footnote 54. United States v Morgan, 307 US 183, 83 L Ed 1211, 59 S Ct 795.
Footnote 55. North American Holding Corp. v Murdock (1st Dept) 6 App Div 2d 596,
180 NYS2d 436, app gr 5 NY2d 711 and affd 6 NY2d 902, 190 NYS2d 708, 160 NE2d
926.
332 US 783, 92 L Ed 367, 68 S Ct 26.
b. Final Judgment [633-638]
§ 633 Rendering or ordering final judgment
View Entire Section

Just as the courts do not have the power to substitute their discretion and judgment for
that of the administrative agency in passing upon the correctness of the matter under
review, 58 they also lack this power after they have determined that the agency has
erred. Consequently, a court generally cannot 59 or will not 60 enter or direct the
order which shall be entered, unless such power has been conferred upon them by law.
In clear and obvious cases, however, the court may direct the action to be taken by the
administrative agency. 61
The absence of such power does not render a reversal of the administrative determination
a mere gesture. 62 There is no need for the court to enter the ultimate order which may
be called for by its judgment and decision, since there is no more reason for assuming
that an administrative agency will disregard the law as fixed by the reviewing court than
that a lower trial court would do so. 63 There is a remedy for compelling the
performance of a mandatory duty by an administrative agency, 64 and in a particular
case this may be integrated with the review proceeding. 65
Footnotes
Footnote 58. §§ 480, 529, 646.
Footnote 59. Central Kentucky Natural Gas Co. v Railroad Com. of Kentucky, 290 US
264, 78 L Ed 307, 54 S Ct 154; Weigel v Commissioner (CA7) 96 F2d 387, 38-1 USTC
¶ 9260, 21 AFTR 122, 117 ALR 366; Public Service Com. v Chicago, I. & L. R. Co.,
235 Ind 394, 132 NE2d 698, reh den 235 Ind 403, 134 NE2d 53; State ex rel. Spurck v
Civil Service Board, 226 Minn 240, 32 NW2d 574.
Annotation: Federal Housing and Rent Act of 1947 and amendments, 10 ALR2d 249
§ 15 (rent fixing).
Footnote 60. Love v Mississippi State Board of Veterinary Examiners, 230 Miss 222, 92
So 2d 463.
Footnote 61. Denver Union Stock Yard Co. v Producers Livestock Marketing Asso., 356
US 282, 2 L Ed 2d 771, 78 S Ct 738.
Footnote 62. State ex rel. Spurck v Civil Service Board, 226 Minn 240, 32 NW2d 574.
The act of the Court of Appeals, in setting aside an order of the Federal Power
Commission refusing to permit a merger of power companies, is not a mere empty
gesture because the court is without power to grant permission for the merger or to order
the commission to grant such permission. The judgment rendered will be a final and
indisputable basis of action between the commission and the defendant, and it will be
assumed that the commission will not disregard the directions of the reviewing court in
subsequent proceedings before it. Federal Power Com. v Pacific Power & Light Co.,
307 US 156, 83 L Ed 1180, 59 S Ct 766.
Footnote 63. Federal Power Com. v Pacific Power & Light Co., 307 US 156, 83 L Ed

1180, 59 S Ct 766; Public Service Com. v Chicago, I. & L. R. Co., 235 Ind 394, 132
Footnote 64. As to mandamus, see 52 Am Jur 2d, Mandamus §§ 162-165.
Footnote 65. State ex rel. Spurck v Civil Service Board, 226 Minn 240, 32 NW2d 574.
§ 634 Compliance with court decision
View Entire Section

Go to Supplement
The administrative agency has an enforceable 66 duty to comply with the order or
judgment rendered on judicial review of its action 67 unless it is void. 68 A court may
enforce judgments rendered after judicial review of administrative decisions through its
contempt powers. A court has the inherent power to enforce its own judgments and
should carry out such enforcement when called upon to do so. Finality of a judgment,
which occurs within a certain number of days after entry, merely bars the court's right to
alter, modify or change the judgment; it does not include enforcement of the judgment as
originally rendered. Therefore, a judgment on a petition for judicial review may be
enforced by contempt provided that the court has jurisdiction of the parties and subject
matter; jurisdiction to render the particular judgment in the case before it; and the
judgment specifically requires some affirmative action other than the payment of money.
When a judgment, capable of enforcement by contempt exists, the pendency of other
proceedings before the agency which involve the same issue has no effect on the court's
jurisdiction to enforce its own judgment, although the court may have discretion to stay
the contempt proceedings pending the agency's determination of the related matter. It is,
however, error for the court to dismiss a motion for contempt on the basis of lack of
jurisdiction under such circumstances. 69
The lower tribunal's exercise of jurisdiction after remand by the reviewing court is
necessarily conditioned by the terms of the judgment on appeal, 70 and deviation from a
court's remand order and subsequent administrative proceedings is itself legal error,
subject to reversal on further judicial review. When a court retains jurisdiction over an
action pending the administrative agency's decision in the agency's filing of the decision
with the court, the court retains the power to assure that its prior mandate is effectuated.
71 The administrative agency is bound to act on and respect and follow the court's
determination of questions of law 72 within a reasonable time. 73 This does not
mean, however, that the agency may not indicate disagreement with the court's decision.
74
What is called for by the mandate of a court in remanding a proceeding to an

administrative agency is a matter of interpretation of which the issuing court is normally
the best judge, but the correctness of the court's judgment in refusing to enforce an order
of the agency as not in accordance with the remand must be judged in the light of the
interrelation of the two proceedings before the agency and the agency's justifiable
interpretation of the directions which it received upon remand of the first order. 75
§ 634 ----Compliance with court decision [SUPPLEMENT]
Case authorities:
Footnotes
Footnote 66. State ex rel. Spurck v Civil Service Board, 226 Minn 240, 32 NW2d 574
(holding action of the board not in compliance with the order of the court to be without
jurisdiction and void and subject to relief by mandamus).
Footnote 67. Booker v Reavy, 281 NY 318, 23 NE2d 9.
After a District Court in certiorari proceedings had reversed a civil service board's
approval of an employee's discharge, the sole duty of the board was to order the
employee reinstated. It could not, under the guise of prescribing conditions of
reinstatement deny the employee reinstatement altogether. State ex rel. Spurck v Civil
Service Board, 226 Minn 240, 32 NW2d 574.
Footnote 68. Hernreich v Quinn, 350 Mo 770, 168 SW2d 1054 (if judgment in certiorari
proceeding is void and unconstitutional, disobedience is not a contempt).
Footnote 69. Division of Classification & Treatment v Wheat (Mo App) 829 SW2d 581,
appeal after remand sub nom Riley v Wheat (Mo App) 861 SW2d 739.
Footnote 70. Application of Plainfield-Union Water Co., 14 NJ 296, 102 A2d 1.
Footnote 71. Sullivan v Hudson, 490 US 877, 104 L Ed 2d 941, 109 S Ct 2248, 000
Footnote 72. FCC v Pottsville Broadcasting Co., 309 US 134, 84 L Ed 656, 60 S Ct

437, 2 CCH LC ¶ 17058; Federal Radio Com. v Nelson Bros. Bond & Mortg. Co., 289
US 266, 77 L Ed 1166, 53 S Ct 627, 89 ALR 406; State ex rel. Spurck v Civil Service
Board, 226 Minn 240, 32 NW2d 574.
Annotation: Comment Note.–Applicability of stare decisis doctrine to decisions of

administrative agencies, 79 ALR2d 1126 § 8.
Footnote 73. Ford Motor Co. v NLRB, 305 US 364, 83 L Ed 221, 59 S Ct 301, 3 BNA
LRRM 663, 1 CCH LC ¶ 17040.

19 BNA LRRM 2317, 12 CCH LC ¶ 51238.
19 BNA LRRM 2317, 12 CCH LC ¶ 51238.
§ 635 Finality of court decision
View Entire Section

Go to Supplement
An appeal from the action of an administrative agency is a continuation of the original

proceeding, so that persons bound by the original judgment or order are bound by the
final judgment of the court. 76 The court's decision determines the rule of law
governing subsequent administrative proceedings and is a final and indisputable basis of
action in all further proceedings. 77 The doctrine of res judicata precludes
administrative agency action which is contrary to that mandated by a prior court order.
In addition, when the identical parties are before the administrative tribunal, res judicata
applies to any issues which were previously litigated. 78 Furthermore, if the party
appealing did not object to the findings of fact adopted by the agency at the lower court
level, those findings are binding on the lower court and on the appellate court for
purposes of review. 79 Some statutes specifically provide for finality of the court's
decision subject to review by an appellate court. 80
The "law of the case" is a rule of practice, based upon sound policy that when an issue is
once litigated and decided, that should be the end of the matter. In order to sustain
application of the rule a final judgment is required just as it is for the kindred rule of res
judicata. 81 The rule of the law of the case is, however, only a discretionary rule of
practice and is not controlling in all situations. 82
§ 635 ----Finality of court decision [SUPPLEMENT]
Case authorities:
Although district court's partial summary judgment in AFDC recipients' § 1983 action
challenging Florida Department of Health and Rehabilitative Service's (HRS) freeze on
provision of child care services was not final within meaning of § 1291 since it did not
adjudicate claims of all parties, it was reviewable since it enjoined HRS from denying
child care to one plaintiff. Maynard v Williams (1996, CA11 Fla) 72 F3d 848, 9 FLW
Fed C 749.
Footnotes

Footnote 77. Federal Power Com. v Pacific Power & Light Co., 307 US 156, 83 L Ed
1180, 59 S Ct 766; State ex rel. Spurck v Civil Service Board, 226 Minn 240, 32 NW2d
574.
Footnote 78. Hollingsworth v Department of Environmental Regulation (Fla App D1)

466 So 2d 383, 10 FLW 762.
Footnote 79. Wiggins v North Carolina Dept. of Human Resources, 105 NC App 302,
413 SE2d 3.
As to res judicata effect of agency decisions, see § 381.
Footnote 80. Tacoma v Taxpayers of Tacoma, 357 US 320, 2 L Ed 2d 1345, 78 S Ct

1209.
Footnote 81. United States v United States Smelting Refining & Mining Co., 339 US
186, 94 L Ed 750, 70 S Ct 537, reh den 339 US 972, 94 L Ed 1379, 70 S Ct 994.
Footnote 82. United States v United States Smelting Refining & Mining Co., 339 US
186, 94 L Ed 750, 70 S Ct 537, reh den 339 US 972, 94 L Ed 1379, 70 S Ct 994.
§ 636 Settlement of judgment enforcing order; objections
View Entire Section

After a federal Court of Appeals files an opinion directing the entry of a judgment
enforcing in part an agency order, the agency has 14 days within which to serve upon the
respondent and file with the clerk of the court a proposed judgment in conformity with
that opinion. 83 If the respondent objects to the proposed judgment as not being in
conformity with the Court of Appeals opinion, the respondent must, within 7 days after
being notified of the proposed judgment, serve upon the agency and file with the clerk of
court a proposed judgment which the respondent deems to be in conformity with the
opinion. 84 The Court of Appeals will then settle the judgment and direct its entry
without further hearing or argument. 85
Footnotes
Forms: Objections–To judgment proposed by administrative agency for enforcement

of agency order [FRAP 19]. 2 Federal Procedural Forms, L Ed, Appeal, Certiorari, and
Review § 3:501.
Notice–Of filing respondent's objections to proposed judgment of agency and

respondent's proposed judgment in lieu thereof [FRAP 19]. 2 Federal Procedural
Judgment–Proposed by respondent in lieu of judgment proposed by agency [FRAP 19].

2 Federal Procedural Forms, L Ed, Appeal, Certiorari, and Review § 3:503.
§ 637 Stay of enforcement; issuance of mandate
View Entire Section

A petition for rehearing, 86 or a motion for a stay pending application to the United
States Supreme Court for a writ of certiorari, 87 will operate to stay the issuance of the
Court of Appeals' mandate under the Federal Rules of Appellate Procedure. 88 If the
petition for rehearing is denied, the mandate will issue 7 days after entry of the order
denying the petition, unless the time is shortened or enlarged by order of the court. 89
Upon the filing of a copy of an order of the Supreme Court denying the petition for a writ
of certiorari, the mandate will issue immediately. 90
In the federal District Courts, a stay of proceedings to enforce a judgment may be granted
pending the disposition of various motions, including motions for a new trial, to alter or
amend a judgment or findings, or for relief from a judgment or order. 91 Such a stay is
also proper pending an appeal. 92
Footnotes
Forms: Petition–For rehearing. 11A Am Jur Pl & Pr Forms (Rev), Federal Practice
and Procedure, Form 2453.
Footnote 92. FRCP 62(d).

§ 638 Recall of mandate
View Entire Section

Although it is within the power of a federal Court of Appeals to recall its mandate
affirming an order of a federal agency, the general rule is that such a mandate, once
issued, will not be recalled except for good cause shown. Fraud, concealment, or
unconscionable injustice are examples of good cause for recalling a mandate. 93 A
Court of Appeals also has the discretion, in a proper instance, to recall its mandate
directing action by a federal agency. 94
Footnotes
31 ALR Fed 765, cert den 406 US 950, 32 L Ed 2d 338, 92 S Ct 2042.
Annotation: Recall of appellate mandate affirming order of federal agency, 31 ALR

Fed 795.
560 F2d 589, 10 Envt Rep Cas 1549, 7 ELR 20624, 44 ALR Fed 813, cert den 435 US
914, 55 L Ed 2d 505, 98 S Ct 1467, 11 Envt Rep Cas 1320.
Annotation: Recall of appellate mandate directing action by federal agency, 44 ALR

Fed 831.
3. Further Appellate Review [639-647]
§ 639 Generally
View Entire Section

Go to Supplement
In the absence of a specific statute granting an appellate court jurisdiction over a written
review from an agency proceeding, the court has no jurisdiction. 95 Both the 1961 and
1981 versions of the Model State Administrative Procedure Act provide for a second tier
of judicial review. The 1961 Act provides that an aggrieved party may obtain a review of
any final judgment of the trial court under the Act by appeal to a higher court, 96 while
the 1981 Act provides that decisions on petitions for review of agency action are
reviewable by a higher court. 97 Both Acts provide that the appeal will be taken as in
other civil cases. 98

 Comment: The provision regarding appeals in the 1981 Model State Administrative
Procedure Act is optional, due to the possibility that jurisdiction for the initial appeal
may rest in an appellate court and may not be subject to further review. 99
Final judgments of Courts of Appeals in proceedings for review under the Hobbs Act 1
are subject to review by the United States Supreme Court on a writ of certiorari. 2 The
United States Supreme Court also has asserted its statutory power to review judgments
and orders of the federal District Courts by resort to a writ of mandamus or prohibition. 3
Through this latter power correction of errors at an interlocutory stage, without awaiting
appeal from a final judgment, may be possible in situations presenting a conflict of
jurisdiction between a District Court and an administrative agency. 4
Further judicial review of an agency's decision is not of right. Appellate courts have the
discretion to not entertain an appeal where a lower court has reviewed an administrative
agency's decision. This summary procedure permits the appellate courts to expeditiously
review decisions of the lower courts reviewing administrative agency's decisions without
issuing an opinion in every case. 5
Case authorities:
Issue of whether parties claiming cleanup costs under CERCLA substantially complied
with National Contingency Plan is mixed question of law and fact reviewed de novo, but
specific factual findings by district court which are challenged are reviewed for clear
error. Louisiana-Pacific Corp. v ASARCO Inc. (1994, CA9 Wash) 24 F3d 1565, 94
CDOS 2969, 94 Daily Journal DAR 5695, reh den, motion gr (1994, CA9 Wash) 94
CDOS 2981, 94 Daily Journal DAR 5689, 24 ELR 20992 and amd, remanded (1994,
CA9 Wash) 94 CDOS 6610, 94 Daily Journal DAR 12140.
Although there are statutory provisions establishing judicial review of administrative

agency decisions, no section of the Administrative Procedure Act delineates the
procedures to be followed upon appellate review. Appellate courts have agreed that
characterization of the alleged error on appeal dictates the method or scope of review,
with more than one method being used if required by the issues, but the manner of review
is not governed merely by the label an appellant places upon an assignment of error and
the appellate court need only consider those grounds for reversal or modification argued
by the petitioner before the superior court and assigned as error on appeal. Separate
panels of the Court of Appeals have reached differing conclusions concerning the proper
standard of appellate review; this panel determined that the proper standard was to
examine the trial court's order for error of law rather than to apply the same standard as
the trial court and to examine the evidence. G.S. § 150B- 52. Amanini v North Carolina
Dep't of Human Resources, Special Care Ctr. (1994) 114 NC App 668, 443 SE2d 114.
De novo review is required where it is alleged that an agency's decision was based upon
an error of law; review is conducted under the whole record test where it is alleged that
the agency's decision is not supported by substantial evidence. An error of law exists as
that term is used in G.S. § 150B-51(b)(4) if a conclusion of law entered by the
administrative agency is not supported by the findings of fact entered by the agency or if

the conclusion of law does not support the decision of the agency. Brooks v ANSCO &
Assocs. (1994) 114 NC App 711, 443 SE2d 89, 16 BNA OSHC 1803, 1994 CCH OSHD
¶ 30416.
Because some of respondent's assignments of error in an appeal from a superior court

order reversing a decision of the State Personnel Commission presented errors of law, the
Court of Appeals conducted a de novo review of those issues. Eury v North Carolina
Employment Sec. Comm'n (1994) 115 NC App 590, 446 SE2d 383.
Footnotes
Footnote 95. Raines v Freedom of Information Com., 221 Conn 482, 604 A2d 819;
Southern Utah Wilderness Alliance v Board of State Lands & Forestry (Utah) 830 P2d
233, 181 Utah Adv Rep 7; Morean-Usher v Town of Whitingham, 158 Vt 378, 610 A2d
1108.
Footnote 98. Model State Administrative Procedure Act (1961) § 16; Model State
Footnote 99. Comment to Model State Administrative Procedure Act (1981) § 5-118.
Footnote 3. United States Alkali Export Asso. v United States, 325 US 196, 89 L Ed
1554, 65 S Ct 1120.
As to the Supreme Court's jurisdiction and power to issue a writ of mandamus, see 52
Am Jur 2d, Mandamus §§ 28-30.
Regarding the Supreme Court's power to issue a writ of prohibition affecting public
officers or bodies, see 63A Am Jur 2d, Prohibition §§ 29-34.
Footnote 4. United States Alkali Export Asso. v United States, 325 US 196, 89 L Ed
1554, 65 S Ct 1120.
Footnote 5. St. Simons Island Save Beach Assn. v Glynn County Bd. of Comrs., 205 Ga
App 428, 422 SE2d 258.
§ 640 Requirement of final order
View Entire Section

Go to Supplement
The order of a court reviewing an administrative decision must be a final order to be

appealable. 6 A trial court's order remanding a case to the administrative agency for the
taking of additional evidence, prior to the court hearing the merits of the appeal, is not a
final and appealable order, because the trial court retains jurisdiction over the case.
Under such circumstances, the court does not hear the appeal on the merits until the
administrative agency has first received additional evidence, and that same evidence,
with any modifications of the agency's findings of decisions is made available to the
court. 7 In contrast, where a court proceeding is commenced to quash or enforce an
administrative subpoena, summons, search warrant, or similar process issued by an
administrative agency or official, where the court refuses to quash or orders enforcement,
and where the court's order terminates the court proceeding, the order is final and
appealable. The fact that the administrative proceedings may not be terminated does not
render the court order interlocutory if nothing remains to be done in the trial court. In
this situation, a person need not be adjudged in contempt of a court order in order to
obtain appellate review. 8
§ 640 ----Requirement of final order [SUPPLEMENT]
Case authorities:
Although district court's partial summary judgment in AFDC recipients' § 1983 action
challenging Florida Department of Health and Rehabilitative Service's (HRS) freeze on
provision of child care services was not final within meaning of § 1291 since it did not
adjudicate claims of all parties, it was reviewable since it enjoined HRS from denying
child care to one plaintiff. Maynard v Williams (1996, CA11 Fla) 72 F3d 848, 9 FLW
Fed C 749.
Footnotes
Footnote 6. An aggrieved party may obtain a review of any final judgment of the court.
Footnote 7. Hickory Hills Ltd. Partnership v Secretary of State, 84 Md App 677, 581 A2d
834.
Footnote 8. Unnamed Attorney v Attorney Grievance Com., 303 Md 473, 494 A2d 940,
appeal after remand 313 Md 357, 545 A2d 685.
§ 641 Case or controversy
View Entire Section


The existence of a "case" or "controversy" is a prerequisite to United States Supreme
Court review of a decision made upon review of action of an administrative agency. 9
The assessment of costs against a party to an appeal to the District of Columbia Court of
Appeals in what is essentially an administrative proceeding does not give it the character
of a "case" or "controversy." 10
Statutory proceedings for judicial review in controversies arising before administrative

agencies are not civil actions for the purpose of construing constitutional limitations upon
the jurisdiction of an appellate court in civil actions at law. 11
Footnotes
Footnote 9. Dessalernos v Savoretti, 356 US 269, 2 L Ed 2d 751, 78 S Ct 690; Old

Colony Trust Co. v Commissioner, 279 US 716, 73 L Ed 918, 49 S Ct 499, 1 USTC ¶
408, 7 AFTR 8875.
Footnote 10. Federal Radio Com. v General Electric Co., 281 US 464, 74 L Ed 969, 50
S Ct 389.
Annotation: Supreme Court's view as to what is a "case or controversy" within the

meaning of Article III of the Federal Constitution or an "actual controversy" within the
meaning of the Declaratory Judgment Act (28 USCS § 2201), 40 L Ed 2d 783.
Footnote 11. Bowen v Department of Social Secur., 14 Wash 2d 148, 127 P2d 682.
§ 642 Agency's right to appeal
View Entire Section

Go to Supplement
The Model State Administrative Procedure Act of 1961 provides that any aggrieved party
may appeal a final judgment of a court reviewing an administrative agency's decision. 12
In regard to quasi-judicial agencies with simply the functions of finding facts and
applying the law to the facts, and where no statute provides otherwise, the agency has no
right to appeal from such decision, the administrative agency being in no different
position from a court or judge which has rendered a decision. 13 On the other hand,
when administrative agencies, even of the fact-finding type, are engaged in a
policy-making function, represent the public interest in the proper enforcement of the law
being administered, and where the public as well as private parties have an interest in
upholding the order of the agency, the agency itself is the proper party to represent this
public interest where its order is under review. 14
A court may, within its discretion, entertain an appeal by an agency even where it is
doubtful that a judge's remand order is an appealable final judgment. The court may elect
to entertain an appeal if its disposition will resolve controversy and dismissal would
serve no other purpose than to make it necessary for the parties to return to reargue issues
already fully briefed and argued. 15
§ 642 ----Agency's right to appeal [SUPPLEMENT]
Case authorities:


Footnotes
Footnote 13. Minnesota Water Resources Board v County of Traverse, 287 Minn 130,
177 NW2d 44, 1 Envt Rep Cas 1295; Re Application of Blue Cross (Franklin Co) 60
Ohio App 2d 245, 14 Ohio Ops 3d 226, 396 NE2d 792.
To extent that zoning board seeks appeal to vindicate its decision as to propriety of
granting application, the board lacks standing to appeal reversal of its decision; however,
the board does have standing to appeal reversal of its decision to extent that it is
protecting its right and duty to interpret zoning ordinances. Furlong v Chicago (1st Dist)
142 Ill App 3d 347, 96 Ill Dec 841, 491 NE2d 1301, 61 ALR4th 893.
In the absence of a statute authorizing it to do so, an administrative agency is without

standing to appeal where it has acted in a judicial or quasi-judicial capacity. Re Getsug,
290 Minn 110, 186 NW2d 686.
Generally as to right of a public officer to appeal, see 5 Am Jur 2d, Appeal and Error §
233.
Annotation: Standing of zoning board of appeals or similar body to appeal reversal of

its decision, 13 ALR4th 1130.

Footnote 14. Gonzales v New Mexico State Board of Embalmers & Funeral Directors, 63
NM 13, 312 P2d 541; Board of Adjustment v Stovall, 147 Tex 366, 216 SW2d 171.
Footnote 15. McCarthy v Civil Service Com., 32 Mass App 166, 587 NE2d 791.
§ 643 Question first raised on appeal
View Entire Section

Go to Supplement
The appellate court may decline to pass upon a question which was not raised 16 or
considered 17 in the court of first instance, even a constitutional question. 18
But a party may be found to have raised an issue in the trial court even though he or she
did not thoroughly argue the issue when the record contains references which are
sufficient to indicate that the issue was raised in the trial court. 19
The Supreme Court may consider a jurisdictional question first raised on appeal to it, 20
or raise such question on its own motion. 21
A procedural error which was available but not raised in a prior review proceeding in the
United States Supreme Court is deemed abandoned and cannot be raised in a subsequent
review proceeding in that court. When a case is brought before the Supreme Court of the
United States for review of administrative action, all the rulings of the agency upon
which the party seeks reversal, and which are then available to party, must be presented,
and those not presented are abandoned. 22
§ 643 ----Question first raised on appeal [SUPPLEMENT]
Case authorities:

Footnotes
Footnote 16. United States v Vaca, 59 US 556, 18 How 556, 15 L Ed 485 (objection that
a Mexican grant under which a claim to land was confirmed was fictitious).
Footnote 17. The Supreme Court will not review the administrative record in the first
instance or determine the sufficiency of the evidence where it reverses a lower court on a
matter of law which makes it unnecessary for the lower court to consider the sufficiency
of the evidence. United States v Great N. R. Co., 343 US 562, 96 L Ed 1142, 72 S Ct
985, reh den 344 US 848, 97 L Ed 659, 73 S Ct 4; NLRB v Donnelly Garment Co.,
330 US 219, 91 L Ed 854, 67 S Ct 756, 19 BNA LRRM 2317, 12 CCH LC ¶ 51238.
Footnote 18. Dayton-Goose C. R. Co. v United States, 263 US 456, 68 L Ed 388, 44 S

Ct 169, 33 ALR 472 (confiscation); Mitchell v Grewal, 338 Mich 81, 61 NW2d 3
(constitutionality of statute under which board acted).
Footnote 19. Semple v Tri-City Drywall, Inc. (App) 172 Ariz 608, 838 P2d 1369, 123
Ariz Adv Rep 14.
Footnote 20. The objection that a suit against the treasury department of a state in a
federal court is a suit against the state in violation of the Eleventh Amendment may be
raised in the Supreme Court of the United States even though there urged for the first
time, since the Eleventh Amendment declares a policy and sets forth an explicit
limitation on federal judicial power. Ford Motor Co. v Department of Treasury, 323 US
459, 89 L Ed 389, 65 S Ct 347.
S Ct 763, 1 Media L R 1983 (question of appellant's right to appeal not raised by either
party or the Court of Appeals).
§ 644 Review limited to judicial function
View Entire Section

Go to Supplement
Under the doctrine that constitutional courts of the United States may exercise only
judicial power, the Supreme Court of the United States cannot and will not review a
decision which calls for exercise by the lower court of administrative rather than judicial
powers. 23 Where a court exercises both nonjudicial and judicial duties, its decisions
rendered in its administrative capacity are not judicial acts and their review, even though
sanctioned by Congress, is not within the appellate jurisdiction of the Supreme Court of
the United States. 24 However, possession by a court of nonjudicial functions presents
no obstacle to appellate review of its judicial determination. 25
The separation of powers doctrine also prevents the appellate court, like the initial court,
from applying a too intensive review and substituting its discretion for the discretion
reposed in the administrative agency. 26
In particular instances the appellate courts are governed by the same rules of review as
the initial court, 27 and review the agency order as though the appeal was taken directly
to the appellate court. 28 In other instances, courts review the judgment of the initial
court. 29

§ 644 ----Review limited to judicial function [SUPPLEMENT]
Case authorities:


De novo review is required where it is alleged that an agency's decision was based upon
an error of law; review is conducted under the whole record test where it is alleged that
the agency's decision is not supported by substantial evidence. An error of law exists as
that term is used in G.S. § 150B-51(b)(4) if a conclusion of law entered by the
administrative agency is not supported by the findings of fact entered by the agency or if
the conclusion of law does not support the decision of the agency. Brooks v ANSCO &
Assocs. (1994) 114 NC App 711, 443 SE2d 89, 16 BNA OSHC 1803, 1994 CCH OSHD
¶ 30416.

Footnotes
Footnote 23. Postum Cereal Co. v California Fig Nut Co., 272 US 693, 71 L Ed 478, 47

S Ct 284.
Footnote 24. Pope v United States, 323 US 1, 89 L Ed 3, 65 S Ct 16.
Footnote 25. Pope v United States, 323 US 1, 89 L Ed 3, 65 S Ct 16.
Footnote 26. Peterson v Livestock Com., 120 Mont 140, 181 P2d 152.
Footnote 27. Sigmen v Arizona Dept. of Real Estate (App) 169 Ariz 383, 819 P2d 969,
83 Ariz Adv Rep 18; Pueblo v Fire & Police Pension Assn. (Colo App) 827 P2d 597;
Board of Directors of Lawton-Bronson Community School Dist. v Davies (Iowa) 489
NW2d 19; Havens v Board of Adult Care Home Admrs., 17 Kan App 527, 839 P2d 1253;
Vector Marketing Corp. v Maine Unemployment Ins. Com. (Me) 610 A2d 272; J. C.
Hillary's v Massachusetts Com. against Discrimination, 27 Mass App 204, 536 NE2d
1104, review den 405 Mass 1202, 541 NE2d 344; Orion Township v State Tax Com., 195
Mich App 13, 489 NW2d 120, app den 442 Mich 908, 503 NW2d 446; Biggs v Missouri
Com. on Human Rights (Mo App) 830 SW2d 512; Hakanson v North Dakota Dept. of
Human Services (ND) 479 NW2d 809; Caldwell v John Morrell & Co. (SD) 489 NW2d
353; Cowling v Board of Oil, Gas & Mining, Dept. of Natural Resources (Utah) 830 P2d
220, 177 Utah Adv Rep 6.
Second tier judicial review is not a means to insure that the district court has done its job
in reviewing the decision of an administrative agency. Rather, on appeal, the appellate
court's job is to canvas the whole record to determine if there is substantial evidence to
support the administrative agency's decision. Garcia v County of Bernalillo (App) 114
NM 440, 839 P2d 650.
Footnote 29. Goat Hill Tavern v Costa Mesa (4th Dist) 6 Cal App 4th 1519, 8 Cal Rptr
2d 385, 92 CDOS 4603, 92 Daily Journal DAR 7289, review den (Cal) 1992 Cal LEXIS
4132; State, Dept. of Highway Safety & Motor Vehicles v DeShong (Fla App D2) 603 So
2d 1349, 17 FLW D 1909; Gimbel v Employment Appeal Bd. (Iowa App) 489 NW2d 36;
Commonwealth, DOT, Bureau of Driver Licensing v McGlynn, 147 Pa Cmwlth 454, 611
A2d 770; Kellogg v Hoven School Dist. No. 53-2 (SD) 479 NW2d 147.
§ 645 Record on appeal
View Entire Section

When a lower court acts as an intermediate appellate tribunal regarding an administrative

agency's decision and receives no additional evidence, an appellate court will directly
review the record developed before the agency. 30 In such circumstances, the appellate
court does not rely on the trial court's findings of fact and conclusions of law. 31 When,
however, a court is unable to review the transcripts of a proceeding before an
administrative agency because the transcripts of the initial proceedings were not made a
part of the record on appeal although the trial court considered the transcripts in reaching
its decision, the appeals court must presume that those transcripts were sufficient to
support the trial court's judgment in affirming the agency's decision. 32 A federal court
has stated however, that an appellate court may properly receive affidavits to explain
apparent gaps in, and to otherwise clarify, the administrative record. 33 Furthermore, it
is proper to remand a case to the trial court for further proceedings when the trial court
abuses its discretion in disallowing a plaintiff's motion to supplement the record. 34
When the District Court's summary judgment ruling is appealed, no portion of the
purported administrative record which was not before the District Court can be relied on
as part of the record on appeal, especially as regards the issue whether there was a
genuine issue of material fact that would preclude issuing summary judgment. 35
Footnotes
Footnote 30. Thomas Brooks Chartered v Burnett (CA10 Colo) 920 F2d 634; Lewiston
Raceway, Inc. v Maine State Harness Racing Com. (Me) 593 A2d 663; Citizens for Safe
Neighborhood v Seattle, 67 Wash App 436, 836 P2d 235, review den 120 Wash 2d 1020,
844 P2d 1017.
Footnote 31. Citizens for Safe Neighborhood v Seattle, 67 Wash App 436, 836 P2d 235,
review den 120 Wash 2d 1020, 844 P2d 1017.
Footnote 32. Starlite Lounge, Inc. v Alabama Alcoholic Beverage Control Bd. (Ala App)
603 So 2d 1107.
Footnote 33. Sierra Club v Marsh (CA1 Me) 976 F2d 763, 35 Envt Rep Cas 2002, 23
ELR 20321.
Supplementation of the administrative record is discussed in § 631.
Footnote 35. United States v Arizona Fuels Corp. (Em Ct App) 681 F2d 797.
§ 646 Standard of review
View Entire Section

In some jurisdictions, the appellate court's review essentially involves the three-step
process. First, the court examines whether the findings of fact are supported by a
preponderance of the evidence. Second, the court examines whether the conclusions of
law are sustained by the findings of fact. Third, the appellate court examines whether the
agency decision is supported by the conclusions of law. 36 Other courts apply a clearly
erroneous standard of review in reviewing an agency's findings of fact. 37 Another
approach when fact questions in a contested case are involved is for an appellate court to
apply a substantial evidence standard, but where constitutional issues are raised to review
de novo. 38 Mixed questions of fact and law, however, require the application of a legal
standard to an established set of facts and are fully reviewable. 39
The courts that review the trial court decision are also divided regarding the correct
standard of review. Some courts state that an appeals court reviewing the lower court's
order determines whether the trial court afforded procedural due process and applied the
correct law; it does not review whether there was competent substantial evidence to
support the hearing officer's findings. 40 Other courts, to determine whether the lower
court correctly applied the law, ask whether there is substantial supporting evidence for
the agency action in the whole record made before the agency. If a reasonable person
would find the evidence adequate to reach a decision, it is substantial for purposes of
appellate review. If the appellate court's conclusions are the same as the district court's,
affirmance is in order; if not, reversal may be required. 41
In contrast, where a trial court reviews an agency's decision de novo the appellate court's
scope of review is limited to a determination of whether the trial court based its findings
of fact on substantial competent evidence or committed an error of law. 42 Conflicts in
the evidence must be resolved in favor of the judgment of the trial court and where two or
more inferences can be reasonably drawn from the facts, the reviewing court must accept
the inferences drawn by the trial court. 43
Footnotes
Footnote 36. Hakanson v North Dakota Dept. of Human Services (ND) 479 NW2d 809.
Footnote 37. South Dakota Public Utilities Com. v Barzen Int'l, Inc. (SD) 479 NW2d
910.
Footnote 38. Adair Ben. Soc. v State, Ins. Div. (Iowa) 489 NW2d 1.
Footnote 39. South Dakota Public Utilities Com. v Barzen Int'l, Inc. (SD) 479 NW2d
910.
Footnote 40. State, Dept. of Highway Safety & Motor Vehicles v DeShong (Fla App D2)
603 So 2d 1349, 17 FLW D 1909; Gimbel v Employment Appeal Bd. (Iowa App) 489
NW2d 36.
An appellate court may not weigh the evidence, nor can the court substitute its judgment
for that of the administrative agency. Outdoor Systems, Inc. v Arizona DOT, 171 Ariz
263, 830 P2d 475, 111 Ariz Adv Rep 74.
An appellate court's review on appeal from a district court's order is limited to the sole
question whether the district court correctly applied the law. Des Moines v City Dev. Bd.
(Iowa) 473 NW2d 197.
Footnote 41. Des Moines v City Dev. Bd. (Iowa) 473 NW2d 197.
Footnote 42. Commonwealth, DOT, Bureau of Driver Licensing v McGlynn, 147 Pa

Cmwlth 454, 611 A2d 770.
Footnote 43. Vaill v Edmonds (2nd Dist) 4 Cal App 4th 247, 6 Cal Rptr 2d 1, 92 CDOS
2339, 92 Daily Journal DAR 3650.
§ 647 Level of deference accorded decision below
View Entire Section

A state's highest court will independently review the merits of an administrative decision,
generally giving no deference to a lower court's decision when the lower court acts as an
intermediate court of appeal. 44 In addition, an appellate court will not defer to a trial
court's factual findings that are derived from the trial court's review of the same
administrative record that is before the appellate court. 45 The court does not defer, or
accord a presumption of correctness, to the lower court's decision, because that court's
review of the administrative record is no more advantaged than the appellate court's. 46
A contrary view is that although an appellate court reviews an agency's decision, the
district court's analysis must be considered and is entitled to respect. 47
An appellate court is, however, bound by the agency's findings of fact if those findings
are supported by substantial evidence. 48 In addition, if the court finds that the evidence
is evenly balanced, the agency's view must prevail on appeal. 49 The appellate court
does not retry the case or substitute its judgment for that of the agency, and it accords the
agency due deference because of the agency's experience in passing on the fact questions
involved and because of its advantage of seeing and hearing the testimony of the
witnesses. 50
In determining a question of law, the appellate court is not bound by either the trial
court's 51 or the administrative agency's 52 conclusions, and may correct
misapplications of the law. 53
Footnotes
Footnote 44. Handley v State, Dept. of Revenue (Alaska) 838 P2d 1231.
Footnote 45. Clisham v Board of Police Comrs., 223 Conn 354, 613 A2d 254; Citizens
for Safe Neighborhood v Seattle, 67 Wash App 436, 836 P2d 235, review den 120 Wash
2d 1020, 844 P2d 1017.
An appellate court will review the record with due regard for, but independently from,
the District Court's determination when the issues presented to the appellate court are the
same as those considered by the District Court in reviewing an agency's administrative
decision. Pan American Assur. Co. v Department of Ins. (App) 121 Idaho 884, 828 P2d
913.
Footnote 46. Cowling v Board of Oil, Gas & Mining, Dept. of Natural Resources (Utah)
830 P2d 220, 177 Utah Adv Rep 6.
Footnote 47. Ekstrom v North Dakota Workers Compensation Bureau (ND) 478 NW2d
380.
Footnote 48. Sharp v Employment Appeal Bd. (Iowa) 479 NW2d 280.
Footnote 51. Walgreen Co. v Selcke (1st Dist) 230 Ill App 3d 442, 172 Ill Dec 26, 595
NE2d 89; Crutcher v Dabis (Ind App) 582 NE2d 449, transfer den (Jul 6, 1992); Havens
v Board of Adult Care Home Admrs., 17 Kan App 527, 839 P2d 1253; Citizens for Safe
Neighborhood v Seattle, 67 Wash App 436, 836 P2d 235, review den 120 Wash 2d 1020,
844 P2d 1017.
Footnote 52. Cox v Department of Ins. (App) 121 Idaho 143, 823 P2d 177; Walgreen Co.
v Selcke (1st Dist) 230 Ill App 3d 442, 172 Ill Dec 26, 595 NE2d 89; Hoffmann v Lyon
Metal Prods. (2d Dist) 217 Ill App 3d 490, 160 Ill Dec 384, 577 NE2d 514; Crutcher v
Dabis (Ind App) 582 NE2d 449, transfer den (Jul 6, 1992); Sharp v Employment Appeal
Bd. (Iowa) 479 NW2d 280.
Footnote 53. Sharp v Employment Appeal Bd. (Iowa) 479 NW2d 280.
IX. LIABILITY OF ADMINISTRATIVE AGENCIES [648-656]
Research References
ALR Digests: Administrative Law § 9.5
ALR Index: Administrative Law; Public Officers and Employees
§ 648 Generally
View Entire Section

Go to Supplement
Although an action which seeks to impose liability upon an administrative officer seeks
damages for a wrongful act rather than a revision of the administrative act, the question
of an officer's liability is sometimes approached from a standpoint of review. 54
The immunity of an administrative officer from personal liability depends upon the
nature of the officer's duty. 55 Where public officials are acting within the scope of
their duties and exercising a discretionary power, the courts are not warranted in
interfering unless fraud or corruption is shown, or the power or discretion is being

manifestly abused to the oppression of the citizen. 56 In other words, administrative
agencies and their officers, when acting in relation to matters committed to their control
or supervision, are generally immune from civil liability for the consequences of their
acts. 57
The general rule of immunity from civil liability has been applied to executive officers,
as well as to judicial and quasi-judicial officials, 58 including banking department
officers, 59 election officers, 60 health boards and officers, 61 inspection officers, 62
school officers, 63 and tax assessors. 64 Immunity has also been afforded particular
officers with regard to acts of granting, withholding, 65 or revoking 66 licenses or
permits, officers killing or injuring animals, 67 false imprisonment, 68 libel and
slander, 69 and malicious prosecution. 70
Practice Aids: Complaint, petition, or declaration–Against members of administrative

agency–On wrongful rejection of application for certificate or permit, pursuant to
conspiracy–For damages, and directive requiring issuance of certificate or permit. 1A
Case authorities:
ICC does not have authority to enforce labor protective conditions adopted in compliance
with Interstate Commerce Act extraterritorially on behalf of Canadian citizens working in
Canada for American rail carrier; Act does not contain "clear expression" of
congressional intent to apply it extraterritorially. Van Blaricom v Burlington N. R.R.
(1994, CA9 Wash) 17 F3d 1224, 94 CDOS 1567, 94 Daily Journal DAR 2769, 145 BNA
LRRM 2696, 127 CCH LC ¶ 11042.
Footnotes
Footnote 54. As to action against an officer as a method of review, see § 548.
As to the liability of officers generally, see 63A Am Jur 2d, Public Officers and
Employees §§ 358 et seq.
US 855, 4 L Ed 2d 93, 80 S Ct 41 and (not followed on other grounds by Bothke v Fluor
Engineers & Constructors, Inc. (CA9 Cal) 713 F2d 1405, 83-2 USTC ¶ 9556, 52 AFTR
2d 83-5859).
Footnote 56. §§ 551, 552.
Footnote 57. Industrial Com. v Superior Court of Pima County, 5 Ariz App 100, 423 P2d
375.
Footnote 58. Cooper v O'Connor, 69 App DC 100, 99 F2d 135, 118 ALR 1440, cert den
305 US 643, 83 L Ed 414, 59 S Ct 146, reh den 305 US 673, 83 L Ed 436, 59 S Ct 242
and reh den 307 US 651, 83 L Ed 1530, 59 S Ct 1035.

Footnote 59. Fidelity & Deposit Co. v Ware, 47 Ariz 12, 53 P2d 415; State ex rel. Funk v
Turner, 328 Mo 604, 42 SW2d 594; State ex rel. Robertson v Farmers' State Bank, 162
Tenn 499, 39 SW2d 281.
Footnote 60. 25 Am Jur 2d, Elections § 47.
Footnote 61. 39 Am Jur 2d, Health §§ 17, 18.
Footnote 62. 42 Am Jur 2d, Inspection Laws § 9.
Footnote 63. 57 Am Jur 2d, Municipal, County, School and State Tort Liability § 45.
Footnote 64. 72 Am Jur 2d, State and Local Taxation § 1063.
Footnote 65. Elmore v Overton, 104 Ind 548, 4 NE 197; Monnier v Godbold, 116 La 165,
40 So 604 (refusal to register a pharmacist); Jaffarian v Murphy, 280 Mass 402, 183 NE
110, 85 ALR 293.
Footnote 66. Downer v Lent, 6 Cal 94; Rehmann v Des Moines, 204 Iowa 798, 215 NW
957, 55 ALR 430 (building permit).
Footnote 67. 4 Am Jur 2d, Animals § 36.
Footnote 68. 32 Am Jur 2d, False Imprisonment §§ 38-79.
Footnote 69. 50 Am Jur 2d, Libel and Slander §§ 224, 228.
Footnote 70. 52 Am Jur 2d, Malicious Prosecution §§ 57 et seq.
§ 649 General rule as to discretionary, judicial, or quasi-judicial acts
View Entire Section

Go to Supplement
The doctrine of judicial immunity from suit 71 has been extended to governmental
officials with respect to their acts of a discretionary, judicial, or quasi-judicial nature. 72
The general rule is that an administrative officer is not personally liable in a civil action
for damages for an error or mistake in making a determination 73 where the officer was
acting within his or her jurisdiction, 74 in the honest exercise of judgment, without bad
faith, and without violating clearly established statutory or constitutional rights of which
a reasonable person would be aware, 75 in a judicial or quasi-judicial capacity, 76
or in a capacity which was not merely ministerial, but one in which it was the officer's
duty to exercise judgment and discretion. 77 The general rule of immunity
extends not only to a head of a department, but also applies to those subordinate officers
who act in her place, carrying out the duties of the department. 78
§ 649 ----General rule as to discretionary, judicial, or quasi-judicial acts
[SUPPLEMENT]
Practice Aids: Answer–Defense–Statutory immunity from liability for exercise of

discretion in rejecting application for certificate or permit. 1A Am Jur Pl & Pr Forms
Footnotes
Footnote 71. 46 Am Jur 2d, Judges §§ 72 et seq.
2d 83-5859); Spalding v Vilas, 161 US 483, 40 L Ed 780, 16 S Ct 631; Kendall v
Stokes, 44 US 87, 3 How 87, 11 L Ed 506; Hardy v Vial, 48 Cal 2d 577, 311 P2d 494,
66 ALR2d 739; Gammel v Ernst & Ernst, 245 Minn 249, 72 NW2d 364, 54 ALR2d 316.
When the state confers judicial powers upon an individual, it confers them with full
immunity from private suits. Wright v White, 166 Or 136, 110 P2d 948, 135 ALR 1.
As to exception in the Federal Tort Claims Act exempting government from liability for
any claim based on exercise or failure to exercise a discretionary function or duty on the
part of a federal agency, see 35 Am Jur 2d, Federal Tort Claims Act §§ 15-18.
Forms: Answer–Defense–Statutory immunity from liability for exercise of discretion

in rejecting application for certificate or permit. 1A Am Jur Pl & Pr Forms (Rev),
Footnote 73. Wright v White, 166 Or 136, 110 P2d 948, 135 ALR 1 (malicious
prosecution action against military officers); Chireno Independent School Dist. v
Wedgeworth (Tex Civ App) 15 SW2d 679.
Footnote 76. Wilkes v Dinsman, 48 US 89, 7 How 89, 12 L Ed 618 (not followed on
other grounds by Trerice v Pedersen (CA9 Cal) 769 F2d 1398) and (superseded by statute
on other grounds as stated in Knutson v Wisconsin Air Nat'l Guard (CA7 Wis) 995 F2d
765) (detention of marine by superior officer after expiration of term of enlistment);
Yaselli v Goff (CA2 NY) 12 F2d 396, 56 ALR 1239, affd 275 US 503, 72 L Ed 395,
48 S Ct 155 (malicious prosecution by special assistant to United States Attorney
General); State ex rel. Atty. Gen. v Broadaway, 192 Ark 634, 93 SW2d 1248 (approval
of claim); Robinette v Price, 214 Minn 521, 8 NW2d 800 (welfare board's order to poor
persons to depart to their place of settlement); Meinecke v McFarland, 122 Mont 515,
206 P2d 1012 (authorization to sell fish and game licenses); State ex rel. School Dist. v
Ellis, 163 Neb 86, 77 NW2d 809 (county treasurer distributing money paid in lieu of

taxes); Morrill County v Bliss, 125 Neb 97, 249 NW 98, 89 ALR 932 (banking
department officers taking possession of bank); Dickey v Cordell, 176 Okla 205, 55 P2d
126 (fixing amount in bonding warehouses); State ex rel. Robertson v Farmers' State
Bank, 162 Tenn 499, 39 SW2d 281 (decision of superintendent of bank as to safety or
solvency of bank); Logan City v Allen, 86 Utah 375, 44 P2d 1085 (compromise of tax
claim).
Defendant racetrack stewards appointed to enforce the "Rules of the Race" were
quasi-judicial officials and could not therefore be held liable for personal injuries
allegedly resulting from their continuous negligent failure to call fouls. Turcotte v Fell
(2d Dept) 84 App Div 2d 535, 443 NYS2d 169.
Footnote 77. Kendall v Stokes, 44 US 87, 3 How 87, 11 L Ed 506 (Postmaster General's
erroneous reversal of allowances upon which his predecessor had finally decided); Otis v
Watkins, 13 US 339, 9 Cranch 339, 3 L Ed 752 (detention of vessel under embargo act);
Cooper v O'Connor, 69 App DC 100, 99 F2d 135, 118 ALR 1440, cert den 305 US 643,
83 L Ed 414, 59 S Ct 146, reh den 305 US 673, 83 L Ed 436, 59 S Ct 242 and reh den
307 US 651, 83 L Ed 1530, 59 S Ct 1035 (malicious prosecution by officer); Hardy v
Vial, 48 Cal 2d 577, 311 P2d 494, 66 ALR2d 739 (dismissal of college professor);
Bullock v Joint Class "A" School Dist., 75 Idaho 304, 272 P2d 292; Tucker v Edwards,
214 La 560, 38 So 2d 241 (drainage district commissioners); Thiede v Scandia Valley,
217 Minn 218, 14 NW2d 400 (superintendents of the poor); Meinecke v McFarland, 122
Mont 515, 206 P2d 1012 (authorization to sell fish and game licenses); State ex rel.
School Dist. v Ellis, 163 Neb 86, 77 NW2d 809 (county treasurer distributing money paid
in lieu of taxes).
As to a discretionary act as judicial within the rule of immunity, see § 649.
2d 83-5859) (privilege of immunity from suit is not a badge or emolument of exalted
office); Papagianakis v The Samos (CA4 Va) 186 F2d 257, cert den 341 US 921, 95 L
Ed 1354, 71 S Ct 741; Cooper v O'Connor, 69 App DC 100, 99 F2d 135, 118 ALR
1440, cert den 305 US 643, 83 L Ed 414, 59 S Ct 146, reh den 305 US 673, 83 L Ed
436, 59 S Ct 242 and reh den 307 US 651, 83 L Ed 1530, 59 S Ct 1035.
§ 650 --What constitutes judicial or quasi-judicial functions
View Entire Section

Administrative enforcement agencies often perform multiple functions, some but not all
of which are quasi-judicial. Conducting hearings on the prosecution of violations
resembles the inherently discretionary roles of judge and prosecutor, 79 and state
administrative proceedings are sufficiently comparable to judicial proceedings to warrant
the extension of immunity to an administrative hearing officer engaging in a function that
is quasi-judicial in nature. 80 For example, a worker's compensation board, in making
compensation awards, acts as a quasi-judicial body of limited jurisdiction and members
of the board are entitled to immunity. 81 It is not only a judicial function to receive
evidence and admit it to the record, it is also a judicial function to settle a record for
review on appeal under some circumstances. Consequently, a person acting as an
administrative hearing officer in making and certifying a hearing record, is engaged in a
discretionary quasi-judicial function and is entitled to immunity even though the officer
may have erred in including documents in the record when they were not formally
entered into evidence at the hearing, as long as she did not act in the clear absence of all
authority. 82 In contrast, performing a nondiscretionary ministerial task, such as a
factual analysis of comparable rents, is more analogous to the function of a subordinate
clerk in the executive branch and is not entitled to immunity. 83
Whether an agency is immune from liability for its rulemaking decisions also depends on
whether the agency is exercising discretion. If an agency's officers are required to fulfill
the mandates of a statute and to adopt the rules and procedures necessary to do so, they
have no more discretion to adopt rules and procedures that are not reasonable devices for
achieving statutory requirements then to adopt no rules at all. The rulemaking function is
not a discretionary one when it is simply an adjunct of the duty to execute a mandatory
statute, and delineating the specific content of rules involves no policy judgment when
the policy is established by statute and the rules have no purpose except to give effect to
the statutory policy. In such cases, the agency is not immune from liability for its
rulemaking decisions. 84
Footnotes
Footnote 79. Broadway & 67th St. Corp. v New York, 116 Misc 2d 217, 455 NYS2d
347, revd on other grounds, summary judgment gr (1st Dept) 100 App Div 2d 478, 475
NYS2d 1.
Footnote 80. Loran v Iszler (ND) 373 NW2d 870.
375
For a discussion of workers' compensation boards' powers and functions generally, see 82
Am Jur 2d, Workers' Compensation §§ 55-58.
Footnote 83. Broadway & 67th St. Corp. v New York, 116 Misc 2d 217, 455 NYS2d
347, revd on other grounds, summary judgment gr (1st Dept) 100 App Div 2d 478, 475
NYS2d 1.
As to ministerial tasks, generally, see § 652.
Footnote 84. Pendergrass v State, 74 Or App 209, 702 P2d 444, review den 300 Or 162,
707 P2d 584.

§ 651 --Basis of rule
View Entire Section

The rule of immunity is simply one of public policy 85 designed to aid in the effective
functioning of government, 86 and represents a balance between the evils inevitable
in either alternative. 87 Therefore, in evaluating an agency officer's claim of
immunity, a court must apply a discretionary function test and balance the policies
underlying the official immunity doctrine in the context of the facts. This inquiry is
essentially threefold: (1) whether the defendants were acting within the scope of their
official duties; (2) whether the acts complained of involved the exercise of judgment or
discretion; and (3) whether a grant of absolute immunity under the circumstances of the
case would further the policies underlying the official immunity doctrine. 88
The officer is entitled to the protection, not because the law is concerned with his or her
personal immunity, but because such immunity tends to insure zealous and fearless
administration of the law. 89
Footnotes
95 L Ed 1354, 71 S Ct 741.
2d 83-5859).
95 L Ed 1354, 71 S Ct 741; Hardy v Vial, 48 Cal 2d 577, 311 P2d 494, 66 ALR2d 739.
Footnote 88. Strothman v Gefreh (DC Colo) 603 F Supp 256, affd (CA10 Colo) 808 F2d
1399.
2d 83-5859); Papagianakis v The Samos (CA4 Va) 186 F2d 257, cert den 341 US 921,
95 L Ed 1354, 71 S Ct 741; Cooper v O'Connor, 69 App DC 100, 99 F2d 135, 118 ALR
1440, cert den 305 US 643, 83 L Ed 414, 59 S Ct 146, reh den 305 US 673, 83 L Ed
436, 59 S Ct 242 and reh den 307 US 651, 83 L Ed 1530, 59 S Ct 1035; Robinette v
Price, 214 Minn 521, 8 NW2d 800; Kittler v Kelsch, 56 ND 227, 216 NW 898, 56 ALR
1217.
§ 652 --Exceptions to rule

View Entire Section
The unreasonableness of an officer's act, 90 the nature of the injury resulting to the
complainant from the error of an administrative officer, 91 the mode of proceedings in
which the determination was made, for example, if it was made without a hearing and
without opportunity for the complainant to contest the decision or offer evidence against
it, 92 and the lack of any other remedy for such injury, 93 may contribute to creating
an exception to the general rule of immunity in the exercise of discretionary powers, and
render an officer liable for a mistake or error of judgment even though he acts within his
jurisdiction.
Liability for nonfeasance may also attach when the duty is ministerial, that is, when it is
in obedience to the mandate of legal authority and the act is to be performed in a
prescribed manner without the exercise of the officer's judgment as to the propriety of the
act. 94 When duties which are purely ministerial are cast upon officers whose functions
are judicial, and the ministerial duty is violated, the officer, although for some purposes a
judge, is still civilly liable for such misconduct. 95
Footnotes
Footnote 90. Lewis v Brautigam (CA5 Fla) 227 F2d 124, 55 ALR2d 505; Douglas v
Campbell, 89 Ark 254, 116 SW 211; Crayton v Larabee, 220 NY 493, 116 NE 355.
Forms: Complaint against members of administrative agency–On wrongful rejection

of application for certificate or permit, pursuant to conspiracy–For damages and
directive requiring issuance of certificate or permit. 1A Am Jur Pl & Pr Forms (Rev),
Footnote 91. Douglas v Campbell, 89 Ark 254, 116 SW 211.
Footnote 92. North American Cold Storage Co. v Chicago, 211 US 306, 53 L Ed 195,
29 S Ct 101; Lawton v Steele, 152 US 133, 38 L Ed 385, 14 S Ct 499; Miller v Horton,
152 Mass 540, 26 NE 100; People ex rel. Copcutt v Board of Health, 140 NY 1, 35 NE
320.
Footnote 93. Beeks v Dickinson County, 131 Iowa 244, 108 NW 311 (recognizing rule
but declining to apply it to public health cases).
375.
Footnote 95. Logan City v Allen, 86 Utah 375, 44 P2d 1085.
§ 653 Absolute or qualified immunity

View Entire Section
Much of the discussion regarding the immunity of administrative officers focuses on

whether the officers enjoy absolute or qualified immunity. Absolute immunity is the right
to be free, not only from the consequences of a suit's results, but from the burden of
defending oneself altogether. In contrast, qualified immunity only shields an
administrative officer from liability if the officer's activities are within the scope of her
office, are in objective good faith, 96 and do not violate clearly established statutory or
constitutional rights of which a reasonable person would be aware. 97 The general
rule of qualified immunity is intended to provide government officials with the ability to
reasonably anticipate when their conduct may give rise to liability for damages and to
protect officials from broad-ranging pretrial discovery, which can be peculiarly
disruptive of effective government. 98 Qualified immunity protects all but the plainly
incompetent or those who knowingly violate the law and whether an official protected by
qualified immunity may be held personally liable generally turns on the objective legal
reasonableness of the allegedly unlawful action, assessed in the light of the legal rules
that were clearly established at the time it was taken. 99
Qualified immunity represents the norm, 1 although there are exceptional

circumstances where it may be demonstrated that absolute immunity is essential for the
conduct of public business. 2 For example, judges, prosecutors, and hearing
officers who act in a quasi-judicial role have absolute immunity because they must be
free to exercise their judgment impartially, 3 and to perform their respective functions
without harassment or intimidation. 4 Therefore, a federal agency attorney who
arranges for the presentation of evidence on the record in the course of an adjudication is
absolutely immune from suits based on the introduction of such evidence, because there
is no substantial difference between the function of the agency attorney in presenting
evidence at the agency hearing and the function of a prosecutor who brings evidence
before a court. 5 Furthermore, in light of the safeguards provided to guarantee the
independence of hearing examiners, the risk of an unconstitutional act by those presiding
at agency hearings is outweighed by the importance of preserving their independent
judgment. Consequently, persons subject to such restraints in performing adjudicatory
functions within a federal agency are entitled to absolute immunity from damages
liability for their judicial acts. In addition, those federal officials who are responsible for
the decision to initiate or continue a proceeding subject to agency adjudication are
entitled to absolute immunity from damages liability for their parts in that decision,
because the legal remedies already available to the defendant in such a proceeding
provide sufficient checks on agency zeal. 6
Application of a qualified immunity standard permits the defeat of insubstantial claims

without resort to trial. 7
 Practice guide: Qualified, or good-faith, immunity is an affirmative defense that

must be pleaded by a defendant government official in a suit for civil damages based
upon her official acts. 8
Footnotes

Footnote 96. 63A Am Jur 2d, Public Officers and Employees § 360.
Footnote 97. Harlow v Fitzgerald, 457 US 800, 73 L Ed 2d 396, 102 S Ct 2727 (not
followed on other grounds by Garcia v Miera (CA10 NM) 817 F2d 650) and (among
conflicting authorities noted on other grounds in Martin v Malhoyt, 265 US App DC 89,
830 F2d 237).
Footnote 98. Anderson v Creighton, 483 US 635, 97 L Ed 2d 523, 107 S Ct 3034, on

remand (DC Minn) 724 F Supp 654, affd (CA8 Minn) 922 F2d 443.

Footnote 1. Cleavinger v Saxner, 474 US 193, 88 L Ed 2d 507, 106 S Ct 496; Harlow v

Fitzgerald, 457 US 800, 73 L Ed 2d 396, 102 S Ct 2727 (not followed by Garcia v
Miera (CA10 NM) 817 F2d 650) and (among conflicting authorities noted on other
grounds in Martin v Malhoyt, 265 US App DC 89, 830 F2d 237).
Annotation: Immunity of federal tax agent from suit based upon agent's effort to
enforce or collect tax, 99 ALR Fed 700.
Liability of Federal Government or government officials for action taken under Federal
Witness Protection Program (18 USCS §§ 3521-3528 Supp IV 1986), 98 ALR Fed
545.
Footnote 2. Butz v Economou, 438 US 478, 57 L Ed 2d 895, 98 S Ct 2894, on remand

(SD NY) 466 F Supp 1351, affd without op (CA2 NY) 633 F2d 203 and (not followed on
other grounds by Egger v Phillips (CA7 Ind) 710 F2d 292) and (ovrld on other grounds
by Harlow v Fitzgerald, 457 US 800, 73 L Ed 2d 396, 102 S Ct 2727) as stated in
Hobson v Wilson, 237 US App DC 219, 737 F2d 1, cert den 470 US 1084, 85 L Ed 2d
142, 105 S Ct 1843.
Footnote 3. Broadway & 67th St. Corp. v New York, 116 Misc 2d 217, 455 NYS2d 347,
revd on other grounds, summary judgment gr (1st Dept) 100 App Div 2d 478, 475
NYS2d 1.

142, 105 S Ct 1843.

142, 105 S Ct 1843.

142, 105 S Ct 1843.

830 F2d 237).

followed by Garcia v Miera (CA10 NM) 817 F2d 650) and (among conflicting authorities
noted in Martin v Malhoyt, 265 US App DC 89, 830 F2d 237).
§ 654 --Application to constitutional violations
View Entire Section

Under the principle of qualified immunity for constitutional violations, federal officials
are not liable for mere mistakes in judgment, whether the mistake is one of fact or law. 9
In the absence of a congressional direction to the contrary, federal officials are not
accorded a higher degree of immunity from liability when sued for a constitutional
violation than state officials are accorded when sued for an identical violation under 42
USCS § 1983. 10 Consequently, federal officials who seek absolute exemption
from personal liability for unconstitutional conduct bear the burden of showing that
public policy requires an exemption of such scope. 11
Footnotes

142, 105 S Ct 1843.

142, 105 S Ct 1843.
Footnote 11. Cleavinger v Saxner, 474 US 193, 88 L Ed 2d 507, 106 S Ct 496; Harlow
v Fitzgerald, 457 US 800, 73 L Ed 2d 396, 102 S Ct 2727 (not followed on other
grounds by Garcia v Miera (CA10 NM) 817 F2d 650) and (among conflicting authorities
noted on other grounds in Martin v Malhoyt, 265 US App DC 89, 830 F2d 237).
§ 655 Jurisdictional questions
View Entire Section

The general rule of immunity of administrative officers requires the officer to act within
her jurisdiction in order to protect her from liability 12 and when a public
officer goes outside the scope of his authority or duty, he is not entitled to protection
because of his office, but is liable for his acts the same as any private individual. 13
Accordingly, although an administrative hearing officer is immune from suit for damages
for discretionary acts not done in the clear absence of all jurisdiction, 14 an officer is
liable for errors or mistakes when acting wholly without jurisdiction. 15 An
administrative officer may also be liable if she acts in excess of her jurisdiction. 16
It is not necessary for acts to be prescribed by statute for them to be done within an
officer's scope of authority. 17 It is sufficient if the acts are done in relation to
matters committed by law to the control or supervision of the officer, 18 or if they
are more or less connected to the general matters committed by law to his control or
supervision, or if they are governed by a lawful requirement of the department under
whose authority the officer is acting. 19
Footnotes
Footnote 12. Spalding v Vilas, 161 US 483, 40 L Ed 780, 16 S Ct 631; Wilkes v

Dinsman, 48 US 89, 7 How 89, 12 L Ed 618 (not followed on other grounds by Trerice
v Pedersen (CA9 Cal) 769 F2d 1398) and (superseded by statute on other grounds as
stated in Knutson v Wisconsin Air Nat'l Guard (CA7 Wis) 995 F2d 765); Kendall v
Stokes, 44 US 87, 3 How 87, 11 L Ed 506; Yaselli v Goff (CA2 NY) 12 F2d 396, 56
ALR 1239, affd 275 US 503, 72 L Ed 395, 48 S Ct 155; Cooper v O'Connor, 69 App
DC 100, 99 F2d 135, 118 ALR 1440, cert den 305 US 643, 83 L Ed 414, 59 S Ct 146,
reh den 305 US 673, 83 L Ed 436, 59 S Ct 242 and reh den 307 US 651, 83 L Ed
1530, 59 S Ct 1035; Hardy v Vial, 48 Cal 2d 577, 311 P2d 494, 66 ALR2d 739;
Robinette v Price, 214 Minn 521, 8 NW2d 800; Feuchter v St. Louis, 357 Mo 616, 210
SW2d 21; Meinecke v McFarland, 122 Mont 515, 206 P2d 1012; State ex rel. School
Dist. v Ellis, 163 Neb 86, 77 NW2d 809; Miller v Foster, 244 Wis 99, 11 NW2d 674,
153 ALR 845.
Footnote 13. Randolph v Ketchum, 117 Vt 468, 94 A2d 410.
and reh den 307 US 651, 83 L Ed 1530, 59 S Ct 1035; Logan City v Allen, 86 Utah
375, 44 P2d 1085.
Footnote 16. Lewis v Brautigam (CA5 Fla) 227 F2d 124, 55 ALR2d 505; Thiede v
Scandia Valley, 217 Minn 218, 14 NW2d 400; Dickey v Cordell, 176 Okla 205, 55 P2d
126; Logan City v Allen, 86 Utah 375, 44 P2d 1085.
and reh den 307 US 651, 83 L Ed 1530, 59 S Ct 1035.
and reh den 307 US 651, 83 L Ed 1530, 59 S Ct 1035; Hardy v Vial, 48 Cal 2d 577,
311 P2d 494, 66 ALR2d 739; Tillotson v Fair, 160 Kan 81, 159 P2d 471.
Footnote 19. Spalding v Vilas, 161 US 483, 40 L Ed 780, 16 S Ct 631; Cooper v

O'Connor, 69 App DC 100, 99 F2d 135, 118 ALR 1440, cert den 305 US 643, 83 L Ed
414, 59 S Ct 146, reh den 305 US 673, 83 L Ed 436, 59 S Ct 242 and reh den 307 US
651, 83 L Ed 1530, 59 S Ct 1035.
§ 656 Effect of administrative officer's unreasonable conduct or malice
View Entire Section

Go to Supplement
Bare allegations of malice are not sufficient to subject government officials to either the
costs of trial or the burdens of far reaching discovery. Consequently, administrative
officers performing discretionary functions are generally shielded from civil liability for
damages if their conduct does violate clearly established statutory or constitutional rights
of which a reasonable person would be aware. 20 Public officials are immune from
personal liability for their allegedly unlawful official actions unless the law clearly
proscribes the actions they took. 21 In addition, the contours of the right that the
official allegedly violated must be sufficiently clear that a reasonable official would
understand that what she is doing violates that right. 22 If the law at the time of the
action was not clearly established, an official cannot reasonably be expected to anticipate
subsequent legal developments, nor can she fairly be said to know that the law forbade
conduct not previously identified as illegal. 23 This does not mean, however, that the
very action in question must have previously be held unlawful, it means that the
unlawfulness of the contested action must be apparent in the light of pre-existing law. 24
If the law is clearly established at the time of the action, the immunity defense should
generally fail, as a reasonably competent administrative officer should know the law
governing her conduct. The defense should be sustained, however, if the officer claims
extraordinary circumstances and can prove that she neither knew nor should have known
of the relevant legal standard. 25

§ 656 ----Effect of administrative officer's unreasonable conduct or malice
[SUPPLEMENT]
Practice Aids: Complaint, petition, or declaration–Allegation–Improper motives and

malice of administrative officers in making determination. 1A Am Jur Pl & Pr Forms
Instruction to jury–Immunity of administrative officers–In absence of dishonesty, bad

faith, or corrupt motives. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, § 527.
Footnotes


830 F2d 237).

830 F2d 237).
Annotation: Civil liability of school officials for malicious prosecution, 66 ALR2d

749 (malicious prosecution).
Civil liability of law enforcement officers for malicious prosecution, 28 ALR2d 646 §
1 (malicious prosecution).
Forms: Complaint, petition, or declaration–Allegation–Improper motives and malice

of administrative officers in making determination. 1A Am Jur Pl & Pr Forms (Rev),
Instruction to jury–Immunity of administrative officers–Where no dishonesty, bad

faith, or corrupt motives. 1A Am Jur Pl & Pr Forms (Rev), Administrative Law, Form
384.


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ADMINISTRATIVE LAW

Copyright © 1998, West Group

Copyright © 1998, West Group

Copyright © 1998, West Group

Copyright © 1998, West Group

Administrative Rules and Regulations:

View Entire Section

Footnote 1. Harriman, The Development of Administrative Law in the United States. 25

Footnote 3. See Dickinson, Administrative Regulation and the Judicial Process. 89 U of

Copyright © 1998, West Group

§ 2 Concern with private and public rights

View Entire Section

Sometimes the language of "private rights" is used in the administrative context. 7

Footnote 7. Re St. Joseph Lead Co. (Mo) 352 SW2d 656.

Footnote 8. Re St. Joseph Lead Co. (Mo) 352 SW2d 656.

Footnote 14. As to effect of separation of powers on administrative agencies, generally,

§ 3 Factors in development of administrative law

View Entire Section

Footnote 17. Morgan v United States, 304 US 1, 82 L Ed 1129, 58 S Ct 773, 58 S Ct

As to administrative agencies, generally, see §§ 24 et seq.

Copyright © 1998, West Group

Footnote 23. Commonwealth v Anheuser-Busch, Inc., 181 Va 678, 26 SE2d 94.

Footnote 24. As to investigations, see §§ 122 et seq.

Footnote 25. As to rules and rulemaking, see §§ 152 et seq.

Footnote 26. As to adjudications, see § 261 et seq.

As to the Model State Administrative Procedure Act, generally, see §§ 18 et seq.

2. Relation of Administrative Process to Legal Process [4-6]

View Entire Section

As to factors in the development of administrative law, see § 3.

As to administrative agencies, generally, see §§ 24 et seq.

As to administrative adjudication, generally, see §§ 261 et seq.

Law Reviews: Schwartz, Fashioning an Administrative Law System. 40 Admin L Rev

Footnote 37. § 262.

Footnote 40. § 345.

Footnote 41. US Const, Amend 7.

Copyright © 1998, West Group

§ 5 Advantages of administrative process

View Entire Section

One of the purposes of administrative remedies is to enable parties to resolve their

Footnote 43. Buras v Board of Trustees (La) 367 So 2d 849.

Footnote 47. United States v Western P. R. Co., 352 US 59, 1 L Ed 2d 126, 77 S Ct

Copyright © 1998, West Group

View Entire Section

3. Role of Attorney General in Advising Administrative Agencies [7-11]

View Entire Section

Copyright © 1998, West Group

Footnote 54. 28 USCS § 512.

Footnote 55. 25 Op Atty Gen 584 [1906].

Footnote 56. 28 Op Atty Gen 47, 369, 557 [1909, 1911].

Footnote 58. 19 Op Atty Gen 556 [1890].

Footnote 59. 16 Op Atty Gen 94 [1878]; 39 Op Atty Gen 425 [1940].

Footnote 60. 10 Op Atty Gen 267 [1862].

§ 8 Who may request opinion

View Entire Section

Because only department heads may request opinions, 61 subordinate government

–the legislative department. 63

–the Department of Justice. 65

–the regents of the Smithsonian Institution. 66

Copyright © 1998, West Group

–particular government employees. 68

–individuals seeking advice on claims against the government. 69

Footnote 62. 21 Op Atty Gen 174, 186 [1895].

Footnote 63. 18 Op Atty Gen 87, 107 [1884, 1885].