Administrative Procedure

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Administrative Procedure

• 5 U.S.C. 500-596

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APA History and Purpose

• Enacted 1946 as part of the New Deal legislation.
• Creates a framework for regulating administrative
  agencies.
• Goal is to strike a balance expand government
  by creating administrative agencies but avoid
  dictatorship and central planning.

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Purposes of the APA

• Keep the public informed
• Provide for public participation in the
  rulemaking process
• Establish uniform standards for the conduct of
  formal rulemaking and adjudication
• Define the scope of judicial review

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Scope of APAs coverage

• Executive Agencies
• Department of State Treasury Interior Justice
  Agriculture Commerce Labor Defense HHS HUD
  Transportation Energy Education Veterans
  Affairs Homeland Security
• Independent Agencies
• CIA, EPA, EEOC, FCC, FDIC, FTC, GSA, NASA, NEA,
  NEH, NLRB, NSF, NTSB, OPM, Peace Corps, SBA, SEC,
  SSA, TVA, etc.

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Side Note Agencies and ADA

• ADA expressly charges some agencies with
  developing regulations
• EEOC Employment
• DOJ State and local governments Public
  accommodations
• DOT Transportation
• Agencies are also given jurisdiction to enforce
  specified ADA provisions
• EEOC Employment
• Agriculture Farming and livestock
• Education Education
• HHS Health care and social services
• HUD Public housing
• Interior Lands and natural resources museums
• DOT Transportation
• Federal agency that funds the entity being
  challenged
• DOJ Law enforcement public safety public
  accommodations all functions not assigned to
  another designated agency

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Two Types of Administrative Action

• Rulemaking
• Generalized nature
• Policy orientation
• Prospective application
• Adjudication
• Determination of individual rights or duties
• Policymaking is incidental to deciding an
  individual controversy

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Purposes of the APA (review)

• Keep the public informed
• Provide for public participation in the
  rulemaking process
• Establish uniform standards for the conduct of
  formal rulemaking and adjudication
• Define the scope of judicial review

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Rulemaking Notice Comment

• Notice
• Must be provided before the agency adopts a new
  substantive rule.
• Must be sufficient to afford interested persons a
  reasonable and meaningful opportunity to
  participate in the rulemaking process.
• Usually by publication in the Federal Register.
• Comment
• Any interested person may participate.

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Federal Register (8/4/06)

• Revised Medical Criteria for Evaluating Immune
  System Disorders
• AGENCY Social Security Administration.
• ACTION Proposed rule.
• SUMMARY We propose to revise the criteria in the
  Listing of Impairments (the listings) that we use
  to evaluate claims involving immune system
  disorders. We apply these criteria when you claim
  benefits based on disability under title II and
  title XVI of the Social Security Act (the Act).
  The proposed revisions reflect our adjudicative
  experience, as well as advances in medical
  knowledge, treatment, and methods of evaluating
  immune system disorders.
• DATES To be sure your comments are considered,
  we must receive them by October 3, 2006.
• ADDRESSES You may give us your comments by
  using our Internet facility (i.e., Social
  Security Online) at http//policy.ssa.gov/erm/rule
  s.nsf/RulesOpenToComment or the Federal
  eRulemaking Portal at http//www.regulations.gov
  e-mail to regulations_at_ssa.gov telefax to lefax
  to [phone] or, letter to the Commissioner
  of Social Security, P.O. Box 17703, Baltimore, MD
  21235-7703. You may also deliver them to the
  Office of Regulations, Social Security
  Administration, 107 Altmeyer Building, 6401
  Security Boulevard, Baltimore, MD 21235-6401,
  between 8 a.m. and 430 p.m. on regular business
  days. Comments are posted on our Internet site,
  or you may inspect them physically on regular
  business days by making arrangements with the
  contact person shown in this preamble.

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Agency Website
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Regulations.gov
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Notice Is Not Required . . .

• When the agency issues interpretive rules,
  general statements of policy, or rules of agency
  organization, procedure, or practice. 5 U.S.C.
  553(b)(3)(A).
• When notice comment is impracticable,
  unnecessary, or contrary to the public interest.
  5 U.S.C. 553(b)(3)(B).

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Example
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Rulemaking Notice Comment

• Notice
• Comment
• Any interested person may participate.
• Typically, 60 days.
• Public hearings may be held.

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Comment Example
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Example
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Purposes of the APA (review)

• Keep the public informed
• Provide for public participation in the
  rulemaking process
• Establish uniform standards for the conduct of
  formal rulemaking and adjudication
• Define the scope of judicial review

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Adjudication Stages

• Example Social Security Administration
• Claimant files for a benefit.
• Claims representative helps to complete the file.
• Staff member and doctor make initial
  determination.
• Local level appeal reconsideration
• Second level appeal before ALJ
• Appeal to Appeals Council
• Review in federal District Court
• Magistrate produces Report and Recommendation
• District Judge

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Administrative Law Judge

• Presides over the second-level appeal.
• Responsible for creating a record.
• Testimony
• Doctor
• Vocational expert
• Detailed findings of fact and conclusions of law.

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Purposes of the APA (review)

• Keep the public informed
• Provide for public participation in the
  rulemaking process
• Establish uniform standards for the conduct of
  formal rulemaking and adjudication
• Define the scope of judicial review

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Skidmore v. Swift (1944)

• Agencys view represents a body of experience
  and informed judgment to which courts and
  litigants may properly resort for guidance.
• The power to persuade, but not the power to
  control.

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SEC v. Chenery (1943)

• Where agency action rests upon an exercise of
  judgment in an area which Congress has entrusted
  to the agency, deference is owed.
• Where agency action rests upon a determination of
  law as to which the reviewing authority of the
  courts comes into play, no deference is owed.

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SEC v. Chenery (1947)

• The choice made between proceeding by general
  rule or by individual, ad hoc litigation is one
  that lies primarily in the informed discretion of
  the administrative agency.
• Our duty is at an end when it becomes evident
  that the Commission's action is based upon
  substantial evidence and is consistent with the
  authority granted by Congress.

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Scope of Review (Rulemaking)

• Deference to Agency policy determinations
• Agency expertise
• Notice and comment procedures
• Legislative intent congress has delegated
  authority to the agency (separation of powers)

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Chevron (1984)

• Did Congress speak unambiguously to the precise
  question at issue?
• Is the agencys interpretation based on a
  permissible construction of the statute?
• Did Congress delegate authority to the agency?
• If express authority, is the reg arbitrary,
  capricious or manifestly contrary to the statute?
• If implicit authority, is the agencys
  interpretation reasonable?

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Modern Cases

• U.S. v. Mead, 533 U.S. 218 (2001).
• Even when you dont get Chevron deference, you
  get Skidmore deference.
• National Cable Telecommunications Association
  v. Brand X Internet Services, 545 U.S. 967
  (2005).
• When Chevron deference applies, the agencys
  interpretation trumps a prior contrary
  interpretation by a federal court.

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Summary

• Chevron deference
• When Congress has, explicitly or implicitly,
  delegated authority to the agency to make policy
  judgments.
• Is the statute ambiguous (or is there a gap)?
• Is the agencys interpretation reasonable?
• Skidmore deference
• When Congress hasnt delegated, but the agency
  has expertise.
• No deference at all (Chenery I)
• When the agency is applying general legal
  principles.

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Scope of Review (Adjudication)

• Statutory interpretation
• Chevron deference applies. Mead. 5 U.S.C.
  706(2)(A).
• Factual determinations
• The District Court must affirm the ALJs
  determination if there is substantial evidence to
  support the factual findings. 5 U.S.C.
  706(2)(E).