Part II Chapter 8: Administrative Law

1. The Paralegal ProfessionalESSENTIALS, Second Edition Part II Chapter 8: Administrative Law

2. Underlying Authority • Implied in the constitution as part of the powers granted to the legislature and executive. • Have the delegated power to promulgate their own rules and regulations to carry out the directives of the other branches. • Beginning with a mandate, e.g., people should pay taxes, an agency (IRS) is given the responsibility to make it happen.

3. Administrative Agencies • General regulation – applies to many different businesses or industries (labor rules). • Specific regulation – applies to a specific industry (aviation, railroads). • Administrative agencies – created at all levels of government, large (departments, such as the Department of the Interior) or small (the local zoning board).

4. Administrative Law • Includes rules and regulations promulgated by the agency, under power delegated by the legislative or executive branches. • Enforce statutes • Interpret statutes • Also includes agency procedural laws and administrative procedural law.

5. Federal Administrative Agencies • Agencies are generally executive (execute the enacted law), and many are housed under Cabinet departments: • Labor • Transportation • Interior • Justice

6. State Administrative Agencies • Interpret state law • Control state commerce issues, health, safety, welfare, parks, taxes, workers’ compensation, etc. • Local governmental units have administrative agencies, as well: • Zoning • Local taxes • Safety

7. Administrative Procedure Act (APA) • Part of the United States Code (USC) • Establishes administrative procedures for federal agencies: • Notice and hearings • Adjudication procedural rules • Rule promulgation • States have procedural rules for state agencies.

8. Delegated Powers • Agency law is not mentioned in the Constitution. • Administrative power derives from constitutional grants to: • The legislative branch to enact regulations • The executive branch to enforce the law, and • They have limited power to adjudicate violations, a judicial function.

9. Legislative Powers • Agencies can issue substantive rules, which have the force of statutory law. • They must follow the APA guidelines: • Publish a general notice in the Federal Register • Time, place, and nature of the proceeding • Legal authority (delegated power) • Terms of the proposed rule • Provide interested parties with the opportunity to be heard (notice and comment) • Review oral and written comments from the public (informal rule making) • Conduct a trial-like proceeding to determine the validity of the comments (formal rule making)

10. Legislative Powers, cont. • Interpretive rule making -- agencies make rules that interpret existing statutes for agency application. • Statements of policy -- agencies can issue statements of policy that map out an intended course of action, but do not rise to the level of law.

11. Legislative Powers, cont. • Licensing powers – handle licensing of businesses (radio stations, asbestos removal, etc.) or individuals (attorneys, dentists, CPAs, etc.). • Can require: • Detailed applications • Comments and hearings • Decision subject to judicial review

12. Executive Powers • Enforcement of administrative/legislative law • Investigation and prosecution • Agencies have administrative subpoena power • Inspections (administrative searches) are reasonable if: • The party voluntarily agrees • There is a valid search warrant • It is an emergency • The industry has established the validity of warrantless searches • The industry is inherently hazardous, giving rise to public safety concerns

13. Judicial Powers • Agencies have the power to adjudicate violations of statutes or regulations. • Proceedings must comply with due process requirements (notice of the acts that constitute the alleged violation, the statute or regulation allegedly violated and an opportunity to defend one’s self).

14. Adjudicative Procedures • Administrative Law Judges (ALJs) • Conduct hearings • Are employees of the agency • Are triers of fact • Issue a decision in the form of an order • States the decision • States the rationale for the decision • Decisions are initially appealed within the agency • Review can include new facts, arguments • Further review is in judicial branch courts

15. Judicial Review • The legislative enabling statute may provide for judicial review. • When the statute is silent, APA authorizes review of petitioner’s claims. • In order to be eligible for review, the issue must: • Be “ripe for review” (a real controversy must exist) • Have “exhausted all administrative remedies” (there cannot be an additional layer of administrative review available) • Be a “final order” (after the agency issues its final order in the matter)

16. Standards of Judicial Review • Questions of law • Interpretation of statutory language • Court may arrive at its own interpretation, despite agency rulings • Questions of fact • Reviewing court usually defers to the agency factual findings • APA standards of review: • Arbitrary, capricious abuse-of-process test (informal decisions appear inconsistent) • Substantial-evidence (formal decisions are supported by substantial evidence) • Unwarranted-by-the-facts test (court conducts a trial de novo, as if lower administrative hearings were not conducted)

17. Public Disclosure • Congress has encouraged “transparency” in agencies: • Inform public of agency actions • Protect public from obtrusive interference • Freedom of Information Act (FOIA) • Government in the Sunshine Act • Equal Access to Justice Act • Privacy Act

18. FOIA • Public access permitted to agency documents unless: • Documents are classified by the President as protected in the interests of national security • Documents are statutorily protected • Release of records would interfere with law enforcement • Documents concern agency personnel matters • Intra-agency and interagency memos • Medical or otherwise confidential files • Trade secrets, or other confidential or privileged information • Financial institution records • Geological and geophysical data and maps

19. FOIA, cont. • Agencies must publish procedures, rules, regulations (regs), interpretations, etc., in the Federal Register. • Sets time allowed for response, costs, and sanctions for non-compliance. • Denials may be reviewed in Federal District Court.

20. Government in the Sunshine Act • Orders certain agency meetings to be held publicly • Applies to agencies headed by two or more presidential appointees • Exceptions apply to meetings involving: • FOIA exceptions • Criminal charges • Issuing subpoenas • Implementation of a proposed action, which would be frustrated by the presence of the public • Day-to-day operational issues

21. Equal Access to Justice Act (EAJ) Privacy Act • EAJ provisions in the USC protect the public from unjustified agency action by permitting the recovery of costs and attorneys’ fees. • Conduct must be “outrageous” • States may have similar statutes • Privacy Act provisions permit agencies to maintain only relevant and necessary information about individuals.

22. Federal Administrative Agencies • Food & Drug Administration (FDA) • Regulates food, drugs, cosmetics, and medical devices • Can seek search warrants and conduct inspections • Can obtain orders for the seizure, recall, and condemnation of products • Can seek injunctions and criminal penalties • Must give prior approval in some areas (such as drugs)

23. FDA • Regulation of food • Ensure wholesomeness • Encourage accuracy in labeling • Prevent injury to health • Defines adulterated food • Filthy, putrid, or decomposed • Unfit for food • Misbranded food • Requires disclosure of information on the label • Name of food • Name of manufacturer • Ingredients • No false claims

24. FDA, cont. • Regulation of Drugs • Testing • Manufacture • Distribution • Proper directions for method and duration of use • Warnings about side effects • Sale • License

25. FDA, cont. • Regulation of cosmetics • Make-up, but not ordinary soap • Labeled properly: • Ingredients • Warnings about possible health hazards • Sale of adulterated or misbranded cosmetics prohibited • May remove products that make unsubstantiated claims

26. FDA, cont. • Regulation of medical devices • Internal (pacemakers, artificial joints) or external (dialysis machines, defibrillators) • Devices can be removed from the market if they don’t perform (“quack” claims)

27. Equal Opportunity Employment Commission (EEOC) • Enforces USC antidiscrimination statutes, using: • Investigations • Interpretation • Conciliation efforts • Law suits • Injunctions

28. Consumer Product Safety Commission (CPSC) • Independent agency empowered to: • Adopt rules and regulations • Interpret and enforce the Consumer Product Safety Act • Conduct product safety research • Collect data on consumer injuries • Promulgate product safety standards and enforce with: • Recalls • Ordered repairs or replacements • Seen injunctive relief or criminal sanctions

29. Federal Trade Commission (FTC) • Enforces and interprets the FTC Act • Prohibits “unfair and deceptive practices” • Cease and desist orders • Affirmative disclosures to consumers • Corrective advertising • Can sue to compensate consumers

30. Environmental Protection Agency (EPA) • Adopts regulations that: • Protect air and water • Regulate hazardous wastes • Protect wildlife • Are enforced with both civil and criminal penalties • The EPA can: • Hold administrative hearings • Make decisions • Initiate court proceedings against violators

31. EPA, cont. • The National Environmental Policy Act (NEPA) requires all federal governmental entities to consider the environmental impact of their decisions. • An Environmental Impact Statement (EIS) must be submitted to the EPA. • Describes the affected environment • Describes the impact of the proposal • Identifies any alternatives • Lists resources • Runs a cost-benefit analysis between the proposed action and any alternatives

32. EPA, cont. • Clean Air Act & Amendments provides for EPA regulation of air quality. • States need to explore reduction of pollution from stationary and mobile sources. • EPA establishes national ambient air quality standards for some pollutants (carbon monoxide, nitrogen oxide, sulfur oxide, ozone, lead and particulate matter). • Primary – protect human beings. • Secondary – protect vegetation, climate, economic value, etc.

33. EPA, cont. • Clean Water Act protects the interests of human health, recreation, agriculture, business, and wildlife. • States are required to enforce the provisions, regulating: • Point sources of pollution (dischargers of pollutants) • Thermal pollution (heated materials entering the waterways) • Wetlands (destroying the marshes or swamps by altering the drainage patterns) • EPA enforces the Toxic Substances Control Act, testing new chemicals prior to marketing them.

34. EPA, cont. • Administer “Superfund” site clean-up • Monitors hazardous waste generation, disposal, treatment, storage, and transportation • Toxic • Radioactive • Corrosive • Flammable

35. EPA, cont. • Enforces the Endangered Species Act • Endangered and threatened species • Works with the Department of the Interior to designate critical habitats