CHAPTER 6
Administrative Law
INTRODUCTION
This chapter examines the role of
administrative agencies functioning as an
informal fourth branch of government. It
offers students an explanation of how these
agencies function, and of the appropriate
interactions necessary for an individual or
business to successfully navigate the vast
world of administrative agency authority.
HOW ADMINISTRATIVE
AGENCIES ACT
 The Fourth Branch of Government – administative
agencies have quasi-legislative, quasi-judicial, and
executive roles.
 Making Rules
1. Notice to the Public (Federal Register)
2. Evaluation and comment period
3. Adoption
 Conducting Formal Adjudications-administrative
agencies can make formal investigations and have
hearings.
HOW ADMINISTRATIVE
AGENCIES ACT
Case 6.1 Synopsis. Chamber of Commerce v.
United States Department of Labor, (D.C. Cir. 1999).
OSHA issued a directive (the Directive) establishing the OSHA High
Injury/Illness Rate Targeting and Cooperative Compliance Program, a
new approach to the problem of work safety at dangerous workplaces.
The Directive set up a procedure whereby dangerous workplaces would
be placed on a “primary inspection list” and subjected to a
comprehensive inspection. The Chamber of Commerce challenged the
Directive for failure to provide notice and an opportunity to comment.
ISSUE: Was OSHA required to provide notice and an opportunity to
comment ? HELD: Yes, the court vacated the directive because it was
neither a procedural rule or policy statement.
ADMINISTRATIVE AGENCIES
AND THE CONSTITUTION
• Separation of Powers concerns.
• Limits Imposed by the Bill of Rights are
still applicable:
- Self-Incrimination
- Probable Cause
- Search and Seizure
- Right to a Jury Trial
SEPARATION OF POWERS
Case 6.2 Synopsis. Noriega-Perez v. United States (9th Cir. 1999).
Noriega-Perez was indicted in the district court for the Southern District
of California for conspiracy to possess forged, counterfeit and false
immigration documents. He entered a plea of guilty and was fined. After
his plea, the Immigration and Naturalization Service (INS) filed a
complaint alleging that Noriega-Perez violated the Immigration and
Nationality Act (Act) by forging immigration documents and possessing
fraudulent Social Security cards and INS forms. After a number of
motions, the administrative law judge (ALJ) issued an order imposing a
civil fine on Noriega-Perez. Noriega-Perez appealed. ISSUE: Does the
imposition of a fine by an ALJ, rather an Article III judge, violate the
separation of powers? HELD: No, the civil fine was upheld. The INS
Act did not impermissibly delegate Article III powers to the ALJ.
DELEGATION OF AUTHORITY
Case 6.3 Synopsis. American Trucking Ass’n v. EPA, (D. C. Cir. 1999).
Sections of the Clean Air Act require the EPA to promulgate national
ambient air quality standards (NAAQS) for a list of air pollutants
identified by the agency. EPA sets a “primary standard,” a level
necessary to protect the public health with an adequate margin of
safety, and a “secondary standard,” a level necessary to protect the
public welfare. In July 1997, the EPA issued final rules revising the
primary and secondary NAAQS for particulate matter and ozone.
Plaintiff filed petitions for review of the rules on a number of grounds
including that the EPA construed the CAA as to render them
unconstitutional delegations of legislative power. ISSUE: Were the
EPA rulings unconstitutional delegations of legislative powers?
HELD: Yes. The court remanded the matter to the EPA to give the
agency an opportunity to extract a determinate standard of its own.
PRINCIPLES OF
ADMINISTRATIVE LAW
 Choice of Approach – administrative agencies
have a fundamental right to decide whether to
proceed on a case-by-case basis or by rule.
 Authority to Act – it is incumbent upon those
dealing with governmental agencies to make
sure that the person they are dealing with is
authorized to act and that the proposed actions
are permitted by law.
JUDICIAL REVIEW OF
AGENCY ACTIONS
 Review of Rule Making and Informal
Discretionary Actions
 Review of Factual Findings
 Review of Statutory Interpretations
 Review of Procedures
 Standing to Sue
RULE MAKING AND
INFORMAL ACTIONS
Case 6.4 Synopsis. FDA v. Brown and Williamson Tobacco (U.S., 2000).
On August 28, 1996, the FDA promulgated regulations entitled “Regulations
Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco
to Protect Children and Adolescents.” The regulations targeted the
promotion, labeling and accessibility of tobacco products to children and
adolescents. A group of tobacco manufacturers, retailers, and advertisers
challenged the regulations on the grounds that the FDA lacked
administrative authority to regulate tobacco products. ISSUE: Does the
FDA have authority under the Food, Drug and Cosmetic Act (FDCA) to
regulate tobacco products? HELD: The U.S. Supreme Court struck down
the FDA regulations on tobacco noting tobacco’s “unique place in
American history and society, [and] its own unique political history.”
FACTUAL FINDINGS
Case 6.5 Synopsis. Dickinson v. Zurko (U.S., 1999).
Zurko applied for a patent on a method for increasing computer
security. The PTO examiner denied the application after concluding that
the method was obvious in light of prior art. The PTO’s review board
upheld the examiner’s decision, and Zurko sought review in the U.S.
Court of Appeals for the Federal Circuit. The appeals court treated the
PTO’s conclusion as a factual finding and ruled that it was “clearly
erroneous” under the Administrative Procedures Act (APA). The
Commissioner of Patents appealed. ISSUE: Were the PTO’s factual
findings subject to the clearly erroneous standard of review or the less
stringent standard set forth in the APA? HELD: Reversed. Supreme
Court held that the standard of review under the APA was the
appropriate standard.
STANDING TO SUE
Case 6.5 Synopsis. Lujan v. Defenders of Wildlife (U.S.1992).
The Endangered Species Act (ESA) instructs the Secretary of
the Interior to have a list of endangered species. The Fish and
Wildlife Service and the National Marine Fisheries Service
promulgated a joint regulation stating the obligations under the
ESA be extended to actions taken in foreign countries. The
next year, the Interior Department revised and re-interpreted
the section requiring consultation only for actions taken in the
United States or on the high seas. ISSUE: Do organizations
interested in environmental and wildlife issues have standing
to sue? HELD: No. The Supreme Court ruled that these
groups lacked sufficiently imminent injuries to have legal
standing.
LIMITS OF REVIEW
 No Right to Probe the Mental Processes
of the Agency – a court may not inquire
into the decision-making process, but
the legislature may.
 Timing of Review
– Exhaustion of Administrative Remedies
– Ripeness - legal, not hypothetical questions
DECISION-MAKING
POWER OF AGENCIES
 Only Delegated Powers – an administrative agency may
do only what Congress or the state legislature has
authorized it to do.
 Obligation to Follow Own Rules – agencies are required
to follow their own rules and regulations.
 Explanation of Decisions – an agency must explain the
basis for its decisions and must show that it has taken
into account all relevant considerations as required by
the statute.
FINDING AN AGENCY’S
RULES AND PROCEDURES

The Federal Register and the Code of
Federal Regulations (CFR) provides
notice of rules and changes.
OBTAINING DOCUMENTS
FROM AN AGENCY
 With certain specific exemptions, the
Freedom of Information Act allows any
citizen to request documents of the
government on any item of interest.
 The agency is then required to respond
within 10 days.
SEVEN BASIC STEPS FOR WORKING
SUCCESSFULLY WITH AN
ADMINISTRATIVE AGENCY
1.
2.
3.
4.
5.
6.
7.
Investigate the applicable standards that will govern the
agency’s actions.
Identify and evaluate the agency’s formal structure.
Determine what facts are before the agency.
Identify the interests of others who may be involved in
the decision-making process.
Adopt a strategy to achieve the desired goal.
Eliminate any adverse impacts on other interested
parties.
Get involved in the administrative process early and stay
involved.
REVIEW
1. Are administrative agencies
constitutional? Why?
2. If administrative agencies act at least
quasi-judicially, why is there no right to
a jury trial?
3. Should there be a Court of Appeals
specifically for all administrative agency
decisions?