Administrative Law – Spring 22

5 U.S.C. § 551(4) – “rule” means the whole or 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 the agency….

5 U.S.C. § 551(7) – “adjudication” means agency process for the formulation of an order

5 U.S.C. § 551(6) – “order” means 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

a) 5 U.S.C. § 553(c) – When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.

b) [For formal rulemaking, the detailed requirements of §§ 556 and 557 replace the comment and publication portions of the informal rulemaking process in § 553]

a) 5 U.S.C. § 554(a) – This section applies … in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing….

b) [Review 5 U.S.C. §§ 554(b)-(e), 556 and 557 for specific procedures that govern formal adjudication]

a) If formal adjudication under § 554(a) – “adjudication required by statute to be determined on the record after opportunity for agency hearing” – is not required, informal adjudication (not governed by the APA) may nonetheless be necessary if:

(1) statute authorizing agency action requires use of some hearing procedures, or

(2) constitutional principles of due process obligate the agency to follow some type of hearing process

(1) 5 U.S.C. § 701 – [Judicial review] chapter [of APA] applies ... except to the extent that– (1) Statutes preclude judicial review; or (2) Agency action is committed to agency discretion by law [Is not reviewable]

(2) 5 U.S.C. § 702 – 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 thereof.

(a) This provision can provide constitutional “standing” (i.e., a legal right to review) if another statute does not provide such a right to review of agency action.

under the Constitution, Congress may delegate its powers to an agency only under carefully controlled conditions, and those conditions must be expressly set out in the agency’s enabling act

When Congress delegates decision-making power to the agency, Congress must establish some “intelligible principle” within the language of the statute itself that constrains or limits the agency’s discretion in acting under its particular grant of authority

Spotting and resolving the issue of a proper standard – an “intelligible principle” to guide and constrain agency discretion – is a matter of searching the enabling act in question for words that set out a standard

a) Said another way, the issue of non-delegation is one that must be decided by examining the language of the enabling statute itself: Language like requisite, necessary, and adequately in relation to a goal, such as “necessary to avoid an imminent hazard to public safety”

a) 5 U.S.C. § 553(b)(3) – Unless notice or hearing is required by statute, this subsection does not apply –

(1) (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or

(2) (B) when the agency for good cause finds … that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

The decision is voidable if, “as a result of improper ex parte communications, the agency’s decisionmaking process was irrevocably tainted so as to make the ultimate judgment of the agency unfair, either to an innocent party or to the public interest that the agency was obliged to protect.”

two prong test in JEM Broadcasting v. FCC:

1) JEM emphasizes that a procedural rule is one that does not itself directly alter the rights or interest of the parties, although it may alter the way in which the parties present themselves or their viewpoints to the agency. [said another way, does the rule "change the substantive standards" by which the agency will act? This part comes from AHA v. Bowen]

2.) even if a rule does not directly alter the rights of parties (which would make it substantive), the notice and comment process may still be necessary if the substantive effects of a procedural rule are "sufficiently grave so that notice and comment are needed to safeguard the policies underlying the APA." [balancing test]