Introduction to Administrative Law and Process The Administrative Procedure Act Getting Into Court Standards of Judicial Review

> Pros and Cons of Administrative Agencies > Origins: Delegation Doctrine Administrative Agencies: “The Fourth Branch” > Rise of the Administrative State Fundamental Problem: How to minimize bureaucratic arbitrariness and over- reaching, while preserving flexibility to act effectively

Values to consider (1) Fairness (2) Accuracy (3) Efficiency (4) Acceptability

Limits on Agency Power  Statutory  Executive  Legislative  Judicial

Administrative Procedures Act (APA)  Passed in 1946 to make agency procedures more uniform  Due Process: Notice and Opportunity to be Heard  How much process is due in any given situation?

Rulemaking: APA § 553  Formal  Informal  Hybrid  Negotiated Rulemaking (Reg-Neg)  Exemptions  Problems with Rulemaking

Adjudication: APA § 554, 556, 557  Establishes minimum standards when required by statute  Quasi-judicial process  Appeal first within agency, then to federal Court of Appeals

Obtaining Judicial Review

Unreviewable Actions Strong presumption in favor of reviewability Exceptions in APA § 701: Review not available to the extent that (1) statutes preclude judicial review, or (2) agency action is committed to agency discretion by law Time limits, however, are very common

Getting Into Court: “Standing” (1) Has the complainant alleged “injury in fact”? (2) Is the interest sought to be protected by the complainant “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question?”

Injury in Fact (1) Invasion of a legally protected interest which is (a) concrete and particularized (b) actual and imminent, not conjectural or hypothetical

(2) There must be a “causal connection” between the injury and the complaint; the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court

(3) It must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision

Zone of Interests Test Prevents standing only when “the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” This is a case law doctrine, created by courts as a “rule of self-restraint”

Landmark Standing Cases Sierra Club v. Morton, 405 U.S. 727 (1972) U.S. v. SCRAP, 412 U.S. 669 (1973) Duke Power v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978) Lujan v. Nat’l Wildlife Federation, 497 U.S. 871 (1990) Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

Exhaustion of Administrative Remedies Court will usually dismiss case if review is sought while an agency proceeding is still underway Exceptions: -- Agency is clearly exceeding its jurisdiction -- Administrative remedies are inadequate -- Statutory exemption from requirement

Ripeness Courts cannot decide abstract or theoretical claims, or render advisory opinions. Test: whether the issue presented to the court is “fit for review” (the so-called legal fitness test) and whether withholding review would impose a substantial hardship on the party seeking review.

Finality APA § 704: “final agency action” subject to review. Other statutes have similar provisions Bars review of actions taken by subordinate official Courts are quite flexible on the question of immediate judicial review regarding interim relief pending a final decision

Judicial Remedies Declaratory Judgment Writ of Mandamus Preliminary Injunction Permanent Injunction Money damages or attorney’s fees and expenses, but only if authorized by statute