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Administrative Law (short outline)

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GOVERNING LAW

Federal or State Constitution: The federal or state constitution applies to all areas where the state APA does not apply. Local Functions: The common law and the constitution apply to local governments performing local functions.

TYPES OF AGENCY ACTIONS

  1. Types of Actions: Review of the legality of the agency action depends upon the classification of the action.
    1. Administration: The agency is in an administrative capacity when acting like an executive.
    2. Rule Making: The agency is in a rule making capacity when acting like a legislature
    3. Adjudication: The agency is in an adjudication capacity when acting like a court.
    4. Investigation: The agency is in an investigative capacity when acting like the police.

ADMINISTERING POLICIES

The issue is whether the agency can perform certain actions based on the legislation creating it.

  1. Creation of the Agency: The legislature creates an agency through enabling legislation.
  2. Proper Delegation: A regulation delegating power to an agency is proper if it provides (1) standards that define the agency’s actions and (2) procedural safeguards to control arbitrary administrative action.
  3. Ultra Vires: An agency action is ultra vires and therefore void when it goes beyond the power set forth in the enabling statute.

RULEMAKING

The issue is whether the state agency complied with the APA rule making requirement.

  1. Rule: A rule is an agency, order, directive, or regulation of general applicability that (1) subjects a person to a penalty, (2) effects procedures in agency hearings, or (3) relates to public benefits, licenses, or mandatory product standards.
    1. An agency is not subject to APA rulemaking procedures if it does not fit the APA "rule" definition or if it is merely a statement of internal policy or a policy interpretation. ##Ultra Vires: An agency rule is ultra vires and therefore void when the substance of the rule goes beyond the agency's delegated authority.
    2. No Rule: If an agency takes action against a person or business without having a published rule, that agency action is unenforceable under the APA.
  2. APA RuleMaking Requirements: The APA requires public notice of the proposed rule and the opportunity for public comment on the rule. A rule is invalid and unenforceable under the APA if there is no notice or comment period.
    1. Pre-Notice Publication: The agency must publish a pre-notice inquiry in the State Register 30 days before the Notice of Proposed Rule. The notice must include the rule’s (1) statutory authority, (2) reasons needed, (3) goals, and (4) its willingness to consider alternative procedures.
      1. Exceptions: There is no pre-notice publication requirement for emergency rules, statutorily required rules, or procedural rules.
    2. Notice of Proposed Rule: The agency must publish a notice of proposed rule in the State Register 20 prior to the rulemaking hearing. The notice must include the rule’s (1) statutory authority, (2) summary, (3) explanation, and (4) time, place, and manner for public comment.
      1. 1. Exceptions: There is no notice of proposed rule publication required for an emergency rule. An emergency rule is a rule which is necessary to preserve the public health, safety, or welfare and may only be implemented for 120 days.
    3. Public Participation: Public comments may be oral or in writing and must be considered by the agency.
    4. Concise Explanatory Statement and Rulemaking File: Before the agency may adopt a rule, it must write a statement including (1) the reasons for the adopted rule, (2) any changes it made to the rule, (3) a summary of comments, and (4) the agency’s response to the comments.
      1. Rulemaking File: The agency must keep a copy of all comments for the rule making file.
    5. Final Rule: The agency may then publish a final rule in the Washington State Registrar 30 days before it is effective that includes a description of the reasons for adopting, differences in the final rule, the final rule, and a summary of the contents.
  3. Significant Legislative Rules: A rule that significantly affects people’s lives must also include a justification for the need of the rule and a cost-benefit analysis.
  4. Constitutionality of the Rule: A rule may be struck down as arbitrary and capricious and therefore illegal because it violates the Constitution.
  5. Defenses: An agency may defend its rule on the grounds that (1) an agency is only required to substantially comply with rulemaking procedures, (2) there was an emergency, or (3) the person or business challenging the rule is beyond the 2 year Statute of Limitations.

ADJUDICATION

The issue is whether the agency gave enough process to the person requesting the hearing and whether there is a right to the hearing at all.

  1. Right to an Administrative Hearing: Under the APA, a person has a right to an admin hearing if he is aggrieved by the agency action. For all non-APA agencies, a person has a right to a hearing only if denied life, liberty or property.
  2. Due Process Requirements for Hearings: For hearings conducted under the APA, statutory due process is required. For all other agency actions, constitutional due process is required (If the APA applies, compare agency acts to the APA standards first. If the APA is satisfied, or does not apply, evaluate Constitutional Due Process).
    1. APA Statutory Due Process: The APA requires that a party eligible for a hearing (1) may request a hearing within 20 days, and (2) has a right to cross examine witnesses under oath, an impartial decision maker, and written findings supporting the decision.
    2. Constitutional Due Process: The Due Process Clause of the 14th Amendment provides that a state may not intentionally take a person’s life, liberty or property without due process of law. To do so requires notice and an opportunity to be heard before a neutral decision maker.
      1. Property Deprivation: To establish the deprivation of property, the challenger must who a legitimate expectation to the continuation of an entitlement under federal or state law.
      2. To determine the nature and timing of the hearing, the court will weigh (1) the importance of the individual interest involved, (2) the risk of erroneous deprivation and the extent to which additional safeguards would reduce that risk and (3) the burden on the government in providing those safeguards.
        1. The more critical the benefit being denied, the more likely the court will require a pre-deprivation hearing.
  3. Appearance of Fairness: An agency decision is void if the hearing violated the Appearance of Fairness doctrine. The doctrine is violated if a reasonable observer would conclude that the parties did not receive a fair hearing.

INVESTIGATION

  1. Governing Law: The Constitution, not the APA, governs agency investigations.
  2. Records: The 5th Amendment bars agencies from requiring businesses to keep records when (1) no statute requires records to be kept, (2) it is private information, and (3) the agency is only requiring this of suspected criminals.
    1. Exceptions: The 5th Amendment does not prohibit agencies requiring government regulated businesses to keep records because they are public records.
  3. Searches and Inspections: The 4th Amendment requires a warrant prior to search by an agency except when (1) it is a heavy regulated business, (2) the search is in a public area, or (3) it is a non-intrusive inspection.
  4. Subpoenas: An agency must have statutory authority to subpoena witnesses and documents.

JUDICIAL REVIEW

  1. Analysis: This type of issue is whether the person or business has the right to go to court to challenge the agency's action or whether the person can skip the agency hearing and go right to court to appeal.
  2. Standing: To have standing under the APA, a person needs to be “aggrieved” by the agency decision. To have standing under the Constitution, a person must have (1) an injury in fact, (2) causation, and (3) redressibility.
  3. Time to Appeal
    1. Statute of Limitations: A person can appeal a rulemaking within 2 years or an adjudication within 30 days.
    2. Finality: A person may only appeal a final order after adjudication.
    3. Exhaustion: A person must exhaust her administrative remedies before seeking judicial review unless the administrative remedy is inadequate, futile, or will result in irreparable harm.
    4. Ripeness: A person may only seek judicial review if the issue is ripe for a decision.
  4. Scope of Review
    1. RuleMaking: A person may seek declaratory judgment in court. A rule is void if any error of law under de novo review. If the rule is not the product of a rational decision maker, the court uses an arbitrary and capricious standard of review.
    2. Adjudication: A court grants relief from an agency order when: (1) the order or statute upon which the order is based is unconstitutional, (2) the agency violated provisions of the APA, (3) the agency misinterpreted or wrongfully applied the law, (4) the agency failed to decide all the issues, (5) the order is not supported by evidence, or (6) the order is arbitrary and capricious.