Administrative Law Prof Blog

Final agency action case in D.C. Circuit

A general rule of standing in challenges to administrative actions is that the agency action be "final". There are a few exceptions, mostly where further proceedings would be useless. While many cases argue over the meaning of "final", plaintiffs in a case heard yesterday by the D.C. Circuit en banc assert that they have standing without final agency action because the procedure is unduly burdensome (but not useless), and a split panel has already agreed with them. Mike Scarcella posted this story on The BLT: The Blog of the Legal Times, "Full D.C. Circuit Digs Into IRS Tax Dispute".

Typically, the appeals court hears disputes after there has been “final” agency action. There’s no such agency determination in this case.

Chief Judge David Sentelle questioned whether a ruling in favor of the plaintiffs would open the door to other litigation challenging agency procedure. “That’s a precedent that could have grave implications for the court,” Sentelle said. “We don’t just have the IRS. We have all of the agencies.”

The citation for the panel decision is Cohen v. U.S., 578 F.3d 1 (D.C. Cir., 2009). EMM

Revived: Administrative Conference of the United States

I just received the following email:

Thank you very much for your time.  I thought this might be of interest to you.  Please let me know if you have any questions.

I am pleased to share with you a press release regarding the Administrative Conference of the United States (ACUS) announcing its public members.  This is the first of many exciting announcements regarding the rebirth of this independent federal agency, one that has a unique opportunity to “Form a More Perfect Union,” having recently been reestablished in early 2010 after a 15-year hiatus. 

These individuals will join fifty senior federal officials and notable administrative law experts (as senior fellows) to form the Administrative Conference, an in-house federal laboratory designed to optimize the performance of federal agencies. 

The Conference’s mission is to improve how federal agencies interact with citizens and business in regulatory and adjudicatory functions.  When President Obama announced the reestablishment of the Administrative Conference on July 8, 2010, he called it “a public-private partnership designed to make government work better.”

Reestablishing a federal agency is a historic undertaking which requires rebuilding its committee membership and cadre of experts, engaging the public and creating and encouraging open communication.  Please take a moment to review this distinguished list of individuals who will help ACUS achieve its goals, join in the conversation, and feel free to contact me at any time. 

With every good wish, I am sincerely yours,

Kathy Kyle

 

Kathy Kyle | Communications Director

1120 20^th Street, NW  Suite 706 South .  Washington, DC  .  20036

(202) 480-2091  (o)  .  (202) 603-1609 (bb)  .  (571) 228-7046 (iphone)

kkyle@acus.gov  .  www.acus.gov 

EMM

If it's not a rule, the APA doesn't apply

The issue of when an agency decision is a "rule" requiring APA-style rulemaking is frequently raised. The usual context is when an internal agency procedure - which the agency argues is not subject to rulemaking procedures - has an important impact on outside parties. An example from my own experience is the Federal Highway Administration's procedure for selecting trucking companies for inspection. Another example is provided by a recent Arizona Court of Appeals opinion concerning the amount health care providers are paid under workers' compensation. Canyon Ambulatory Surgery Center v. SCF Arizona, No. 1 CA-CV 09-0408, Sept 16, 2010 (Ariz. App.), http://www.cofad1.state.az.us/opinionfiles/CV/CV090408.pdf (most citations and footnotes omitted). Arizona's Administrative Procedure Act is similar to the Federal act on this issue.

¶1  Appellants ... (collectively the “Surgery Centers”) appeal the trial court’s dismissal of their claims against SCF Arizona1 (“SCF”) .... The Surgery Centers also challenge the court’s grant of partial summary judgment finding SCF exempt from the rulemaking requirements of the Administrative Procedures Act (“APA”)....

¶2  The Surgery Centers are two of approximately 150 ambulatory surgical centers (“ASCs”) in Arizona that provide facilities for various outpatient medical and  surgical procedures. SCF provides workers’ compensation coverage to Arizona employers, which indemnifies employers for financial obligations imposed by Arizona’s workers’ compensation laws. Between March 2003 and March 2007, the Surgery Centers treated 2100 workers who were entitled to benefits under SCF insurance policies  for work-related injuries (“injured workers”). The Surgery  Centers did not have a contract with SCF establishing billing rates for services provided to the injured workers, so they billed SCF [their standard rates].

¶3  Prior to March 2003, SCF paid the Surgery Centers the full amount billed. Thereafter, as part of its cost containment system, SCF hired Qmedtrix to review each bill submitted and recommend a reasonable reimbursement amount. Qmedtrix created a payment methodology based on reimbursements made by other carriers, which resulted in reduced payments to the Surgery Centers. As compensation for  Qmedtrix’s services, SCF paid Qmedtrix 25% of the recommended price reduction.

¶4  Canyon filed a declaratory judgment action in December 2003 alleging that SCF’s reimbursement methodology constituted a “rule” under the APA, and was adopted in violation of the APA’s notice and hearing requirements. ...

¶17  The Surgery Centers argue the trial court erred in granting summary judgment on their claim that SCF violated the APA rulemaking requirements. They contend that SCF, as a state agency, is subject to the provisions of the APA and that the Qmedtrix payment methodology is a de facto “rule” promulgated by SCF in violation of the APA’s notice and hearing requirements. ...

¶19  As the trial court noted, it is undisputed that SCF’s adoption of a new pricing methodology was not done in compliance with the APA. ...

¶21  Regardless of whether SCF is a state agency subject to the APA, we are not persuaded that the use of the Qmedtrix methodology is a rule subject to APA  notice and hearing provisions. A “rule” within the APA is defined as any agency statement that “implements, interprets or prescribes law or policy.” An entity’s internal guidelines, however, are not rules. ...  

¶23  ...[T]he fee methodology at issue here is not a rule subject to the APA; it is merely a way to collect data to be considered in setting reimbursement amounts, in the exercise of SCF’s discretion. Here, the record reflects that the information provided by Qmedtrix to SCF is intended as a “recommendation” of how much SCF should pay based on Qmedtrix’s estimation of what is a reasonable  charge. [Note 12]

[Note] 12  Moreover, after the court granted SCF partial summary judgment on this issue, the Surgery Centers conceded that calculations made by Qmedtrix are recommendations when they stipulated in the joint pretrial statement that "SCF has paid Canyon and El Dorado the amounts that were recommended by Qmedtrix."

SCF is under no obligation to adopt the recommendations of Qmedtrix; it simply uses the information provided to guide its reimbursement decisions. [Note 13]

[Note] 13  This conclusion is further supported by the fact that SCF, on at least one occasion, informed Qmedtrix of SCF’s disagreement with Qmedtrix’s reimbursement recommendations for particular medical services and Qmedtrix adjusted its reimbursement methodology accordingly. SCF’s decision to adopt the vast majority of Qmedtrix’s reimbursement recommendations during the time frame at issue does not change our analysis. 

¶24  In addition, applicable statutory authority provides that SCF does not adopt rules regarding workers’ compensation matters; those rules are promulgated by the Industrial Commission of Arizona (“ICA”).  A.R.S. § 23-107(A) (Supp. 2009) (granting the ICA “full power, jurisdiction, and authority to ..  .  [f]ormulate and adopt rules and regulations for effecting the purposes of this article” including acting “as the regulatory agency insuring that workers’ compensation carriers are processing claims in accordance with chapter 6 of this title”). The  “rulemaking authority” of the SCF is limited to two circumstances. The SCF Board of Directors may adopt rules “for the conduct of its business[.]” The SCF manager may also “adopt rules for the collection, maintenance and disbursement of the fund[.]” Neither of these rulemaking categories is subject to the APA requirements because both involve matters “concerning only the internal management of [SCF] that do[] not directly and substantially affect the procedural or substantive rights or duties of any segment of the public.” [Note 15]

[Note] 15 Furthermore, the rules adopted by the SCF Board of Directors under A.R.S. § 23-981.01(A) are not subject to the APA because the Board has discretion in publishing and distributing such rules.  § 23-981.01 (stating that the board “may cause them to be published and  distributed”). (emphasis added).  In contrast,  A.R.S. §§ 41-1003 (2004), -1012 (2004) of the APA provide that rules must be published. (Emphasis added.) ... 

¶25  The Surgery Centers cite three cases in support of their argument that prescribing reimbursement amounts for healthcare providers is tantamount to “rulemaking” under the APA. We find these cases inapposite. Each of them involved a state agency expressly empowered to promulgate rules governing the administration of those agencies, including prescribing fees and amending or repealing prior rules. Moreover, in each case, the agency in question intended to establish an exclusive and universally applied reimbursement scheme pursuant to its statutory authority.

¶26  In sum, we find the Qmedtrix methodology employed by SCF to inform its decisions regarding reasonable reimbursement amounts to health care providers is not a rule within the meaning of the APA. Consequently, the trial court did not err in granting SCF’s motion for partial summary judgment as to the non-applicability of the APA.

I submit that the Court's argument in ¶¶24 and 25 about the SCF's limited authority to make rules begs the question (and I mean that as a term of art). To say an agency policy is not a rule because the agency doesn't have the authority to make rules is solipsistic at best. However, the argument that the use of Qmedtrix is an internal, information gathering procedure rather than a "rule" is more cogent. Had the SCF used its own staff to make these recommendations rather than a contractor, would there be less whining? EMM

Sneaky notices

On his Customs Law blog, Lawrence Friedman (Barnes/Richardson, Chicago) describes an upcoming matter in "Requests for Information As Disclosure Terminators":

The issue in question is whether Customs and Border Protection can use the common Request for Information (CF28) or Notice of Action (CF29) as the record of the commencement of an investigation and evidence proving that an importer has received notice of the commencement of an investigation.

This matters for several reasons. Most important, importers who discover violations of certain customs laws may protect themselves from civil penalties (in excess of interest on unpaid duties) by completing a voluntary prior disclosure. In the disclosure, the importer sets out the incorrect and the corrected information, tenders duties owed and probably the interest, and walks away with, we hope, an improved compliance system. But, if the importer is on notice that Customs has already commenced an investigation into the same issue, the importer is stuck and cannot fully benefit from a disclosure.

I recommend reading his discussion of an issue that appears at first glance to be truly arcane but that really matters in terms of dollars for the regulated entities.  Notices of various events are often critical to procedings across the scope of administrative law. When the government is considered to have notified a regulated entity and vice versa can determine results. The situation described in Mr. Friedman's post looks like a good discussion or exam question. EMM

Stare decisis within an agency

Internal agency rules and decisions can have a big impact on regulated entities even when they are denominated "procedural" rather than "substantive". On his Customs Law blog, Lawrence Friedman (Barnes/Richardson, Chicago) describes a case that binds the government to a history of internal rulings in "Redelivery and Conflicts":

... Customs was seeking $120,000 for [the importer's] failure to redeliver merchandise to Customs. [If I understand correctly, Customs requires that goods violating a Customs reg be placed under government control until the matter is resolved.] When the importer failed to redeliver, Customs sought liquidated damages .... This is the usual course of action because merchandise is, more often than not, already gone by the time the importer receive[s] the Notice to Redeliver. ... Pressman and the surety maintain that the Notice to Redeliver was late and, therefore, they are under no obligation to redeliver and [are] not liable for liquidated damages. ...

On the merits, the case turns on the timeliness of the Notice to Redeliver. The regulations permit Customs and Border Protection to demand redelivery within 30 days of the end of the conditional release period applicable to the merchandise. When Customs requests a sample, the conditional release period ends when Customs receives the sample. In this case, Customs demanded redelivery well beyond the the end of this period. Customs, however, argues that it properly extended the conditional redelivery period ...

According to the [Court of International Trade], the government's position is "bankrupt." The Court notes that 19 CFR 113.62(d) requires that Customs issue a Notice of Redelivery within 30 days of the end of the conditional release. Further, the Court noted 20 years of Customs rulings stating that the conditional release period ends on the delivery of sample to Customs. Thus, the Court found the United States had no basis on which to proceed against Pressman for liquidated damages. ...

The Court further dismissed several arguments trying to distinguish this case from twenty years of consistent interpretation. However, Mr. Friedman points out an important practical issue.

This is one of those cases that might has a short shelf life, even assuming it survives an appeal. The regulations do not address the issue squarely. Almost all of the authority relied upon here is from rulings. Customs, like all federal agencies, has the authority to reconsider its legal interpretations of ambiguous laws and regulations. To do so, though, Customs has to jump through the proper administrative hoops. With respect to previously issued rulings, that means the revocation or modification process of 19 USC § 1625. It is a good bet that someone in Customs is looking at that right now.

EMM

New administrative law articles

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

• Lietzan, Erika Fisher and Sarah E. Pitlyk. Thoughts on preemption in the wake of the Levine decision. 13 J. Health Care L. & Pol'y 225-255 (2010). [H]|[L]|[W]
• Olivo, Andrew. Student essay. Secrets and lies: the intelligence community's "don't ask, don't tell." 12 Scholar 551-583 (2010). [H]|[L]|[W]
• An Uncomfortable Fit?: Intellectual Property Policy and the Administrative State. Kali Murray, moderator; Sapna Kumar, Jason Mazzone, Hannibal Travis and Jasmine Abdel-khalik, panelists. 14 Marq. Intell. Prop. L. Rev. 441-469 (2010). [H]|[L]|[W]
• Camacho, Alejandro E. Assisted migration: redefining nature and natural resource law under climate change. 27 Yale J. on Reg. 171-255 (2010). [H]|[L]|[W]
• Bebchuk, Lucian A., Alma Cohen and Holger Spamann. The wages of failure: executive compensation at Bear Stearns and Lehman 2000-2008. 27 Yale J. on Reg. 257-282 (2010). [H]|[L]|[W]
• Verret, J.W. Treasury Inc.: how the bailout reshapes corporate theory and practice. 27 Yale J. on Reg. 283-350 (2010). [H]|[L]|[W]
• Kimhi, Omer. Chapter 9 of the Bankruptcy Code: a solution in search of a problem. 27 Yale J. on Reg. 351-395 (2010). [H]|[L]|[W]
• Molk, Peter. Broadening the use of municipal mortgages. 27 Yale J. on Reg. 397-407 (2010). [H]|[L]|[W]

EMM

For an entertaining example of admin law enforcement

"Drop that Head of Cabbage, Mister, and Step Back from Your Cultivator with Your Hands in the Air | September 20, 2010", posted on the International Municipal Lawyers Association - Local Government Blog by Dwight Merriam (Robinson & Cole, LLP, Hartford, CT):

DeKalb County, Georgia, can teach us all something about zoning enforcement.   The zoning enforcement authorities cited Steve Miller for growing too many vegetables on his 2-acre lot in a residential zone.  Actually, it’s not that he was growing the vegetables; it was that he was selling them at an off-site farmers’ market, you see, because that makes it a commercial activity.  Isn’t there some federal law about transporting zucchini over county lines for the purpose of illegal sale? ...

EMM

New administrative law articles

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

• Colburn, Jamison E. Agency interpretations. 82 Temp. L. Rev. 657-701 (2009). [H]|[L]|[W]

• Dunn, Sarah E. Note. Mental block: the challenges awaiting a mentally impaired claimant when applying for Social Security disability benefits. 22 Regent U. L. Rev. 453-479 (2009-2010). [H]|[L]|[W]

• Gershonowitz, Aaron. The role of science in environmental litigation: courts give deference to agency experts except when they don't. 39 Sw. L. Rev. 233-264 (2009). [H]|[L]|[W]

• Goodley, James. Comment. The effect of Metropolitan Life v. Glenn on ERISA benefit denials: time for the "treating physician rule." 26 J. Contemp. Health L. & Pol'y 403- 440 (2010). [H]|[L]|[W]

• Osborn, John E. Can I tell you the truth? A comparative perspective on regulating off- label scientific and medical information. 10 Yale J. Health Pol'y L. & Ethics 299-356 (2010). [H]|[L]|[W]

• Phillips, Michael D. Note. Wyeth v. Levine: the impact of FDA approval of drug labeling. (Wyeth v. Levine, 129 S. Ct. 1187, 2009.) 13 Mich. St. U. J. Med. & L. 391- 426 (2009). [H]|[L]|[W]

• Williams, Lucy A. Administrative advocacy: justice in the lives of low-income families. 31 Hamline J. Pub. L. & Pol'y 47-62 (2009). [H]|[L]|[W]

• Note. Justifying the Chevron doctrine: insights from the rule of lenity. (Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 1984.) 123 Harv. L. Rev. 2043-2064 (2010). [H]|[L]|[W]

EMM

Grewal on legislative entrenchment

New on SSRN: "Legislative Entrenchment Rules in the Tax Law", by Andy Grewal (Arizona State). Abstract:

Numerous federal statutes contain legislative entrenchment rules, i.e., provisions that condition the effect of future legislation on the satisfaction of some specified requirement. For example, the War Powers Resolution says that no future statute may authorize war unless the future statute says that it is doing so within the meaning of the War Powers Resolution. Along the same lines, some federal tax statutes say that to amend a provision of the tax code, the amending statute must itself be in the tax code. Statutes outside of the tax code, even if they directly seek to amend the protected provision, are irrelevant.

Although the requirements imposed by a legislative entrenchment rule may seem easy to follow, later Congresses have frequently enacted statutes that fail to comply with the requirements imposed by previous Congresses. This raises the issue of whether these later statutes have any legal effect or must instead be disregarded entirely. Scholars and courts have wrestled with this issue, and conflicts involving the Administrative Procedure Act's legislative entrenchment rule have been especially common.

This Article analyzes whether legislative entrenchment rules (including the APA's) may categorically control the interpretation of subsequently enacted tax statutes. The Article considers and rejects arguments made by some scholars who favor strict application of legislative entrenchment rules, and also considers some of the political motivations and costs/benefits of these rules.

EMM

Theory: Post-hoc Rationalizations and Executive Orders

A recent post on Discourse.net raises this question: Does Due Process impose on the President (acting through an Executive Order) the requirement for a rationale contemporaneous with promulgation that the APA imposes on agencies?  "Post-hoc Rationalizations and Executive Orders" by Michael Froomkin (Miami). EMM

Not quite Chevron deference

From BNA's U.S. Law Week, "Ninth Circuit Treads Lightly While Surveying Scope of Protections for Endangered Plants", 79 U.S.L.W. 1290.

The Endangered Species Act's prohibition against disturbing endangered plants in “areas under Federal jurisdiction” does not include private lands regulated under the Clean Water Act, the U.S. Court of Appeals for the Ninth Circuit held Aug. 25 (Northern California River Watch v. Wilcox, 9th Cir., No. 08-15780, 8/25/10).

In the absence of guidance from the ESA or the U.S. Fish and Wildlife Service, Judge Richard A. Paez and the rest of the panel took it upon themselves to interpret the term, concluding that the jurisdictional scope of the CWA “is simply too large” for the ESA. Such an interpretation would bestow authority on the FWS coextensive with that of the Army Corps of Engineers—authority that the U.S. Supreme Court has already questioned as overbroad, the court said.

Despite its ruling, the court conceded that—considering the statutory ambiguity—the FWS remains free to adopt reasonable regulations that expand the scope of its authority to rival that of the ACOE, if it so chooses. ...

To determine the meaning of “areas under Federal jurisdiction,” the court engaged in a Chevron analysis. The first step, the court said, was “[t]o determine if Congress has spoken directly to the meaning of ‘areas under Federal jurisdiction,' ” either in the statute's text, or in the legislative history.

Both River Watch and the defendants argued that the statute's language was clear on its face; however, the court said that “areas under Federal jurisdiction” is not explicitly defined in the ESA, nor is its definition “immediately clear.”

The court noted that the ACOE refers to wetlands regulated under the CWA as “jurisdictional wetlands,” lending some credence to River Watch's interpretation. Further, Section 7 of the ESA requires agencies to consult with the FWS prior to any action that may impact an endangered species—including granting wetlands permits under the CWA. River Watch seemed to score points with the court when it argued that, under the defendants' reading of the statute, property owners could circumvent Section 7 by removing or destroying endangered plants on their land prior to seeking a CWA permit.

However, the court was not entirely convinced. “It is clear from the statutory text that Congress did not intend for § 7 and § 9 to be coextensive,” the court said. “We cannot discern from the text of the ESA why Congress crafted § 9 to leave the gap in coverage identified by River Watch.”

Additionally, upon examining both a House Conference Report and Senate Report related to two rounds of ESA amendments, the court concluded that “the text examined in the two reports does not signal Congress' ‘clear intent' to limit ‘areas under Federal jurisdiction' to land owned by the federal government, … or to extend it to ‘waters of the United States' as defined by the CWA.” ...

The United States also relied on an “interpretation” of “areas under Federal jurisdiction” found in the Habitat Conservation Planning And Incidental Take Permit Processing Handbook—“an FWS guidance manual,” the court said. ...

Even though the handbook was subject to a notice and comment period, the court concluded that it is not deserving of Chevron deference. Specifically, the court said that the handbook: 1) lacks the force of law; 2) explicitly states that it is not “intended to supersede or alter any aspect of Federal law or regulation”; 3) has not been given Chevron deference in at least four circuit court opinions; and 4) “does not discuss ‘areas under Federal jurisdiction' ” other than restating the statute. ...

Finally, the court also added that “our conclusion does not foreclose the possibility that the FWS might adopt some version of the statutory construction set forth by River Watch” at a later date.

EMM

Retroactive regulation

From BNA's U.S. Law Week, "New HCFC Rule ‘Impermissibly Retroactive,' But EPA May Apply Regulation Prospectively", 79 U.S.L.W. 1289:

The Environmental Protection Agency must rethink its approach to implementing further reductions of hydrochlorofluorocarbons because its most recent rule has an impermissible retroactive effect on producers, the U.S. Court of Appeals for the District of Columbia Circuit held Aug. 27 (Arkema Inc. v. Environmental Protection Agency, D.C. Cir., No. 09-1318, 8/27/10).

The final rule, issued Dec. 15, 2009, was meant to implement the “stepdown” in HCFC production mandated by the Montreal Protocol on Substances that Deplete the Ozone Layer beginning in 2010.

However, the final rule invalidated certain transactions—permitted under the original 2003 rule—that allowed companies to permanently reallocate their own production allowances by swapping one pollutant for another, the court said.

Writing for the 2-1 majority, Judge Janice Rogers Brown set about analyzing the new rule in light of retroactivity rules she termed “easy to state, less easy to apply.” In the end, she concluded that EPA's decision to invalidate “inter-pollutant transfers,” which had been billed as “permanent” by the agency since 2003, was “impermissibly retroactive.” ...

“At its core, this is a dispute over whether the Agency has changed its interpretation of Title VI of the [Clean Air Act],” 42 U.S.C. §§ 7671–7671q, which gives EPA the authority to implement the protocol's reduction requirements, the court said. “The critical question is whether the interpretation established by the new rule ‘changes the legal landscape.' ” If it does, and “attaches new legal consequences to events completed before its enactment, it operates retroactively,” the court said. ...

“[O]nce the Agency has approved permanent changes to the baseline as a result of inter-pollutant transfers on the same basis as changes resulting from inter-company transfers, it cannot, without Congress' express authorization, … undo these completed transactions,” the court said, remanding the rule “insofar as it operates retroactively.”

On the other hand, the agency is free to change its mind regarding baseline inter-pollutant transfers in the future, the court held. “The Final Rule appears to have been properly promulgated under the Administrative Procedure Act,” the court said. In the absence of any procedural defect, “EPA can limit inter-pollutant trades to a single year and can prohibit inter-pollutant baseline transfers” going forward, the court concluded.

EMM

New administrative law article

New on SSRN: "Disentangling Administrative Searches" by Eve Brensike Primus (Michigan). Abstract:    

Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and contends that much of the current mischief in administrative search law can be traced to the Supreme Court’s conflation of two distinct types of searches within one doctrinal exception – namely “dragnet searches” of every person, place, or thing in a given area or involved in a particular activity and “special subpopulation searches” of individuals deemed to have reduced expectations of privacy. Dragnets came first, and special subpopulation searches came later. As the category of administrative searches tried to accommodate both kinds of searches, it gradually lost the ability to impose meaningful limitations on either one. To bring clarity and sense to this area of the law, this Article proposes that we disentangle these two kinds of administrative searches.

Where administrative law meets criminal procedure. EMM

Why lay people are sometimes confused by administrative law

Heck, why lawyers are sometimes confused by administrative law.  From Byrum v. Office of Personnel Management, No. 2009-3264 (Fed. Cir. Sept. 9, 2010) (available here), slip op. at 2:

Those uninitiated in the ways of government might suppose a conclusion regarding whether a daughter was or was not also her mother’s spouse, even on these scant facts, to be somewhat strange, and might even suppose that a correct conclusion regarding that proposition is sufficiently self-evident not to have required two years of administrative consideration.  One might even think there must have been something else at issue.  In fact, there was.  It falls to us to explain to the Justice Department, the MSPB, and OPM why it is now necessary, after all the administrative proceedings that preceded, for this court to vacate and remand the matter so OPM can start over, addressing the issues Ms. Byrum’s claim actually presented. 

Thanks to How Appealing for the pointer. EMM

When is rulemaking required?

David Erickson and James Neet (Shook Hardy & Bacon LLP) discuss a recent 10th Circuit opinion in "Administrative Procedure Act/RCRA: Tenth Circuit rules EPA may revise tentative interpretation of regulation without rulemaking", posted on Lexology:

The Tenth Circuit Court of Appeals has determined that EPA [Environmental Protection Agency] can revise a tentative interpretation governing the handling of magnesium waste without conducting a formal rulemaking. U.S. v. Magnesium Corp. of Am., No. 08-4185 (10th Cir. (8/17/10). ...    

EPA had initiated an enforcement action against defendant in 2001, alleging noncompliance with waste management regulations under subtitle C of RCRA [Resource Conservation and Recovery Act]. Defendant argued that facility wastes were exempted from subtitle C under an agency interpretation contained in a report to Congress and that, to revise its interpretation, EPA was required to conduct a formal rulemaking under the Administrative Procedure Act. The federal district court in Utah agreed and granted defendant’s motion for partial summary judgment; the government appealed. 

Reversing the district court, the appeals court held that the prior EPA interpretation was repeatedly described as “tentative” in the report, submitted in response to congressional action that required the agency to determine under the Beville Amendment whether it could regulate ore and mineral processing wastes under subtitle C or subtitle D. In the report, EPA noted that its tentative findings were subject to comments from interested parties. According to the court, an EPA decision to revise a tentative interpretation of a regulatory provision does not require formal notice-and-comment rulemaking. The court remanded the case to the district court for further proceedings.

Note that they are not talking about "formal" rulemaking under §§ 556 and 557 of the APA, but rather "informal" notice and comment rulemaking under § 553. (To access Lexology articles, register for your own free account at http://www.lexology.com/account/register.aspx.) EMM

Who can complain?

Standing is often an issue in administrative law cases, if the party complaining is not the government, a regulated entity, or directly affected by the government action. Patty Salkin (Albany) describes a recent case on her Law of the Land blog in "Nebraska Supreme Court Finds No Standing to Bring Annexation Claim and No Violation of Open Meetings Law for Site Visit and Dinner":

This case involved the development of an ethanol plant on a previously vacant plot of agricultural land ...

Plaintiffs filed action seeking to void the annexation [by the City of Ord], asserting that the City exceeded its statutory authority by declaring non-City land substandard and blighted; and violated the Open Meetings Act by failing to give proper notice and not having a designated method for doing so. ... [O]n appeal the Supreme Court of Nebraska held plaintiffs did not have standing to challenge the annexation ...

As neighboring landowners who neither owned property interest in the subject land nor would be subject to the new zoning regulations, plaintiffs did not have standing to challenge the annexation simply because of their location.  Plaintiffs argued their legal interest at stake was the annexation [by the City) resulting in Redevelopment Area # 3 no longer being subject to [County] zoning law prohibiting the construction of commercial fuel bulk plants within one-half mile of a neighboring dwelling unit, and rendering [a] lawsuit against the county moot. However, the court held that both the annexation enabling the financing to facilitate the plant’s construction, and the mootness of another lawsuit were both too far removed to confer standing.

Plaintiffs did have standing to bring the second cause of action, regardless of whether they could allege a particularized injury resulting from the annexation, pursuant to Open Meetings Act § 84-1414 which confers standing to any citizen challenging meetings in violation of the act. ...

EMM

SAGE offers free journal access

SAGE publishes around 560 journals in health and medicine, social sciences, and the humanities. It is offering free access to all of its journals back to 1999 from now through October 15. Journals related to administrative law include:

• Administration & Society
• The American Review of Public Administration
• International Review of Administrative Sciences
• Public Policy and Administration
• Public Works Management & Policy
• Review of Public Personnel Administration
• State and Local Government Review

Yes, your library can get articles from SAGE journals by interlibrary loan, but the truly phenomenal aspect of this deal is that you can search the full text. So, if you are doing any "law-and-" research, give this a shot. EMM

New administrative law articles

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

• Dolehide, Robert C. Note. A comparative "hard look" at Chevron: what the United Kingdom and Australia reveal about American administrative law. 88 Tex. L. Rev. 1381- 1399 (2010). [H]|[L]|[W]

• Mashaw, Jerry L. Federal administration and administrative law in the Gilded Age. 119 Yale L.J. 1362-1472 (2010). [H]|[L]|[W]

EMM

The human side of agencies

David Zaring (Penn - Wharton) links to the 2010 list of the results of government employee satisfaction surveys on the Conglomerate blog, "Pre-Game Your Government Agency By Determining Its Happiness":

... How can you trade on this information?

You could make something of the fact that the SEC and OMB are newly miserable.  You could see that the old classic agencies - State, Treasury, and Justice - do well, but not superlatively.  You might think that scientists and artists like their work more than do grant issuers.  Or you could conclude, given the eclectic distribution, that it is likely that happy bureaucrats are not made by the mission of their agency but by the quality of their supervisors. ...

It does make a difference. EMM