Administrative Law Prof Blog

Theory and practice: Admin law principles that are not common across agencies

New on SSRN: "Agency-Specific Precedents" by Richard E. Levy (Kansas) and Robert L. Glicksman (George Washington).  Abstract:

As a field of legal study and practice, administrative law rests on the premise that legal principles concerning agency structure, administrative process, and judicial review cut across multiple agencies. In practice, however, judicial precedents addressing the application of administrative law doctrines to a given agency tend to rely most heavily on other cases involving the same agency, and use verbal formulations or doctrinal approaches reflected in those cases. Over time, the doctrine often begins to develop its own unique characteristics when applied to that particular agency. These “agency-specific precedents” deviate from the conventional understanding of the relevant principles as a matter of administrative law and raise fundamental questions for administrative law scholars and practitioners.

Our central thesis is that agency-specific precedents are a manifestation of the “silo effect,” a phrase commonly used in the literature concerning the operation of large organizations to describe the tendency of subdivisions to develop their own bureaucratic imperatives that create obstacles to information sharing and other forms of cooperation. After describing the emergence of administrative law as a body of generally applicable legal doctrine and introducing the silo effect and the related concept of information silos, the article presents five case studies of agency-specific precedents: (1) the treatment of “interpretive regulations” promulgated by the IRS; (2) the “reasoned decisionmaking” concept in judicial review of the FCC (and a few other agencies); (3) the requirement that EPA must docket ex parte communications of “central relevance” in rulemaking; (4) the treating physician rule in judicial review of SSA disability determinations; and (5) cases limiting the NLRB’s ability to overturn an administrative law judge’s credibility determinations based on demeanor. These agency-specific precedents cannot be fully explained by agency-specific statutes, programs, or practices that prompt specific judicial responses.

We postulate that agency-specific precedents are a manifestation of the silo effect and discuss how the dynamics of information costs, the specialized bar, and the process of judicial review tend to produce them. Precedents are a type of information that is costly to gather and apply and whose value in litigation depends on its precedential weight or authority. Because attorneys who practice in most administrative law fields tend to be specialized, the information costs of finding and citing cases involving the agency are much lower than the costs of doing so for cases involving other agencies, while the precedential weight of decisions involving the agency will be higher than that of cases involving other agencies. Courts rely heavily on the attorneys litigating a case to gather and present information concerning precedent, so the information costs of finding and analyzing precedents outside the agency in question will be passed along to the courts. In addition to considering the dynamic that contributes to the formation of agency-specific precedents, we discuss their normative implications in terms of consistency with statutory provisions (particularly the APA), promoting legal certainty, and the development of optimal administrative law doctrines. Although the balance of costs and benefits from agency-specific precedents varies according to the circumstances, some agency-specific precedents would appear to be unjustified. We suggest that greater attention to the phenomenon by attorneys, courts, and scholars would help to break down such undesirable agency-specific precedential silos.

EMM

Just because you think an administrative appeal would be useless

Doesn't mean that the courts will think it is useless. Dean Patty Salkin (Albany) on her Law of the Land blog reports on a Federal District Court case that suggests one must be very, very careful before deciding that available administrative remedies would be useless and charging into the courts. "Federal Dist. Court in Michigan Holds Plaintiff Must Exhaust Local Administrative Review Despite Belief that Hearing Officer Was Selected by City Attorney".  The general rule requires those objecting to administrative action to exhaust their administrative remedies before asking for judicial review.  There is an exception if further administrative steps would be futile and irreparable harm will result from the delay (as with a preliminary injunction).  Fear of bias, however well founded, does not mean that the agency will no-way do the right thing. It could have an attack of logic, or common sense, or honesty, or other insanity.  Most agency decision makers, no matter how political, try to follow the rules.  Even when the appellant is a whining publicity hound who contributed to the other party.  EMM

Revised Model State Administrative Procedure Act

From the National Conference of Commissioners on Uniform State Laws (NCCUSL) web site:

The Revised Model State Administrative Procedure Act is an update of the 1980 act of the same name.  The 1980 Act provided procedures for promulgating administrative regulations and for adjudicating disputes before administrative bodies.  The Revision updates the act to recognize electronic communications and other state procedural innovations since the Act was originally promulgated.

The draft presented at the recently completed Annual Meeting, along with other related materials, is available here. EMM

Federal Register Website Is Updated

See the Federal Register website. Take a look at the video explaining what's new:

EMM

"Policy" v. "procedure"

The question of whether an action by an administrative agency is a "policy" - a quasi-legislative act subject to very limited judicial review and liability - or a "procedure" - an executive act sometimes subject to more judicial scrutiny and perhaps more liability - can be difficult.  There is a quick review in the "board of education" context in "The distinction between policy and procedure" by Jeffrey T. Sultanik (Fox Rothschild LLP, Blue Bell, Pennsylvania). EMM

Growth of the administrative state

I firmly believe that administrative law is a growth industry.  Confirming this, see "Elena Kagan and the Regulatory State" on the University of Pennsylvania's RegBlog:

... [Kagan] would become the third professor of administrative law to sit on the Court at any given time, joining Justices Breyer and Scalia who, like Kagan, specialized in administrative law during their previous academic careers.

Just as the appointment of a third woman to the Supreme Court speaks of the nation’s progress in gender equality, the fact that the Court could come to include three former full-time scholars of administrative law underscores a dramatic shift that has occurred in American government over the last half century. The United States has fully transitioned from a legal system that once was organized primarily around judge-made principles – the so-called common law – to one firmly anchored in laws passed by Congress and regulations adopted by numerous federal administrative agencies, from the Department of Agriculture to the Transportation Security Administration. Ever since the New Deal, the number and scope of administrative agencies has increased dramatically. Congress has delegated so many responsibilities to agencies that today they affect all segments of the economy and many parts of our daily lives. ...

And not just at the federal level.  State and local regulation has increased as well.  EMM

The Federal Register turns 75

From the University of Pennsylvania's RegBlog, "Another Regulatory Milestone: The Federal Register Act Turns 75":

July 26, 2010, will mark the 75th anniversary of the passage of the Federal Register Act (44 U.S.C. Ch. 15), which created the federal government’s daily “newspaper” of record, the Federal Register. ...

EMM

New administrative law articles

From the University of Washington's Current Index to Legal Periodicals:

• Armstrong, Alan. Call for a congressional inquiry into the arbitrary and capricious decisions of the National Transportation Safety Board. 75 J. Air L. & Com. 3-67 (2010). [H]|[L]|[W]
• Brown, Keith S. and Adam Candeub. Partisans and partisan commissions. 17 Geo. Mason L. Rev. 789-822 (2010). [H]|[L]|[W]
• Ellison, Brian A. Bureaucratic politics, the Bureau of Reclamation, and the Animus-La Plata Project. 49 Nat. Resources J. 367-401 (2009). [H]|[L]|[W]
• Endres, A. Bryan and Michaela N. Tarr. United States food law update: food allergy labels, reaching organic equivalence, misbranding litigation and regulatory takings. 5 J. Food L. & Pol'y 223-263 (2009). [H]|[L]|[W]
• Golden, John M. The Federal Circuit and the D.C. Circuit: comparative trials of two semi-specialized courts. 78 Geo. Wash. L. Rev. 553-574 (2010). [H]|[L]|[W]
• Hesser, Justin Newell. Case note. Administrative law--deliberating in the open? Applying Wyoming's Public Meeting Act to contested case hearings. (Decker v. State ex. rel. Wyo. Med. Comm'n, 191 P.3d 105, 2008.) 10 Wyoming L. Rev. 203-226 (2010). [H]|[L]|[W]
• Lindquist, Greg. Comment. Diet starts Monday: an analysis of current dietary supplement regulations through international comparison. 3 St. Louis U. J. Health L. & Pol'y 123-151 (2009). [H]|[L]|[W]
• Malloy, Timothy F. The social construction of regulation: lessons from the war against command and control. 58 Buff. L. Rev. 267-355 (2010). [H]|[L]|[W]
• Ruhl, J.B. and James Salzman. Climate change, dead zones, and massive problems in the administrative state: a guide for whittling away. 98 Cal. L. Rev. 59-120 (2010). [H]|[L]|[W]
• Washburn, Kevin K. Agency conflict and culture: federal implementation of the Indian Gaming Regulatory Act by the National Indian Gaming Commission, the Bureau of Indian Affairs, and the Department of Justice. 42 Ariz. St. L.J. 303-338 (2010). [H]|[L]|[W]

EMM

Public law takes precedence over private law

From Law.com, "9th Circuit: No Choice of Law on Independent Contractor Status" by Cheryl Miller of The Recorder:

In a significant victory for employment plaintiffs, the 9th U.S. Circuit Court of Appeals on Tuesday held that employers cannot use choice-of-law contracts to avoid California labor regulations.

While workplace contracts may be subject to out-of-state law, actual workplace terms and conditions affecting workers in the Golden State are governed by California statutes ...

"While the contracts will likely be used as evidence to prove or disprove the statutory claims, the claims do not arise out of the contract, involve the interpretation of any contract terms, or otherwise require there to be a contract," [the judge] wrote. The plaintiffs' "claims arose under the Labor Code, a California regulatory scheme, and consequently, California law should apply to define the boundaries of liability under that scheme."

Narayan involves the red-hot issue of employee classification. Plaintiffs lawyers say that multistate companies have increasingly tried to designate workers as independent contractors to avoid California's perceived worker-friendly regulations on overtime and meal-and-rest periods. ...

EMM

Scope of agency authority

From Law.com, "Judge, in Rare Move, Allows Discovery in FTC Enforcement Action" by Gina Passarella:

A magistrate judge in Washington, D.C., has granted a rarely approved request for discovery in a CEO's fight to avoid a subpoena in an FTC investigation that stems from a reverse-payment settlement between Frazer, Pa.-based Cephalon Inc. and Watson Pharmaceuticals.

Watson Chief Executive Officer Paul M. Bisaro sought discovery in the U.S. Federal Trade Commission's court action against him in its efforts to enforce a subpoena it issued last year.

Bisaro alleged the FTC went outside the scope of its regulatory and enforcement authority by trying to broker a deal between Watson and another generic pharmaceutical company so that Watson would give up any exclusivity it may have had in regard to marketing its generic form of Cephalon sleep-disorder drug Provigil.

Bisaro claimed the subpoena was only an attempt to pressure Watson to enter the deal ...

[U.S. Magistrate Judge Alan Kay ruled] Tuesday that the "extraordinary circumstances" needed to compel discovery in what would normally be a summary procedure of a subpoena enforcement proceeding were present in this case. The judge said he could cite only one other time in the D.C. Circuit where discovery was permitted in such a proceeding -- the 1977 case of United States v. Fensterwald.

The relevant challenge from Bisaro, Kay said, was whether the subpoena was issued for an improper purpose. ...

In citing the U.S. Supreme Court's 1964 decision in United States v. Powell, Kay said it is an abuse of process to enforce a subpoena that was issued for an improper purpose, such as harassment or to put pressure on a party to settle a related matter. ...

EMM

Due process

A nice little case on the question of "how much process is due" is reviewed on The Public Blawg, "County's 30-Day Impoundment of Vehicle Passes Constitutional Muster":

... [T]he Court found that the County of Sonoma's 30-day impoundment of a vehicle, pursuant to Vehicle Code Section 14602.6,  did not violate the equal protection and due process rights afforded to the plaintiff by the federal and state constitutions.  In the case, Alviso v. Sonoma County Sheriff's Department et al., A126241, a County Deputy Sheriff pulled over the plaintiff and discovered that his license had been suspended due to a previous conviction for driving while intoxicated, and impounded his vehicle.  The plaintiff failed to request an administrative hearing to challenge the impoundment, and his car remained impounded for 30 days, at which point fees related to the impoundment exceeded the value of the vehicle. 

The Court of Appeal's decision found that Section 14602.6, which authorizes a 30-day impoundment, does not violate equal protection rights because the 30-day impoundment requirement is rationally related to the goal of preventing dangerous driving offenses.  Additionally, the fact that Vehicle Code Section 22852, under which the owner of a seized vehicle is entitled to an administrative hearing to determine the validity of the impoundment, does not require a hearing before a judicial officer, does not violate due process rights. ...

The post has a link to the Court's opinion. EMM

Somewhat off topic

But I can't help it. From Law.com's Legal Blog Watch comes "San Francisco Issues Regulations for Making Pot Brownies":

Thank you, San Francisco, for giving us official rules on how to make pot brownies.

NBC Bay Area reports that the city's Department of Public Health has now issued "Medical Cannabis Dispensary (MCD) Regulations for Preparation of Edible Cannabis Products," which translates into English as "How to Make Pot Brownies." The rules are, for now at least, directed at "legitimate edible cannabis treats at medical marijuana dispensaries," but NBC Bay Area notes that "if California voters pass Proposition 19, the Tax Cannabis Act that would effectively decriminalize the recreational use of the drug, you can expect similar regulations to apply to entrepreneurs looking to bake goods that will get you baked."

For details, see the post at the link above. EMM

Music to my ears

From Law.com's Legal Blog Watch, "Wal-Mart Spares No Expense Fighting Trampling Case OSHA Fine":

The pride of Bentonville, Ark., is taking "It's not the money, it's the principle" to impressive heights. The New York Times reported last night on Wal-Mart's crusade to avoid payment of a $7,000 fine imposed by the Occupational Safety and Health Administration arising out of a deadly stampede at a Valley Stream, N.Y., store on Black Friday in 2008.

By the NYT's account, Wal-Mart has spent over $2 million in legal fees fighting the fine. The company had previously entered into a settlement with Nassau County authorities to avoid criminal charges, at a cost of almost $2 million. But the OSHA fine, company officials fear, would set a dangerous precedent, making retailers responsible for unruly crowds as an occupational hazard.

"It's the principle of the thing."  Music to any lawyer's ears.  But the problem of agency precedents is real, especially with a change from an anti-regulation to a pro-regulation administration.  When this case reaches District Court, it will be interesting to see the various grounds on which Wal-Mart is challenging the fine.  EMM