Introduction
Nature of agencies
The Administrative Procedure Act (APA)
Agencies simulate all branches
Types of agencies
Procedural due process
Relevance to administrative law
Four step test
Step one: governmental action
step two: individualized action
Comparison with APA distinction between adjudication and rulemaking
Step three: protected property or liberty interest
Step four: amount of process due
Administrative adjudication
Basic divide between formal and informal adjudication
Distinguish formal from informal adjudication
The nature of formal adjudication
Rulemaking - delegation and distinction
Formal rulemaking
Informal, notice-and-comment rulemaking
Hybrid rulemaking
Hypothetical #15
Categorical exceptions from rulemaking proceedings
External, non-judicial review of rules
Bias and ex parte contacts in rulemaking
Discretion to choose between rulemaking and adjudication
Agency information gathering
Clash between desire for privacy and accomplishment of regulatory objectives
Three important devices
Searches or inspections
Recordkeeping and reporting
Subpoenas
Privilege limitations
External controls on agencies
Generally
Delegation
Estoppel
Freedom of Information Act
Executive controls
Legislative controls
Venue: generally determined by enabling act
Form of challenge
Preconditions of judicial review
Standing
Final order rule
Ripeness
Exhaustion of administrative remedies
Primary jurisdiction
"Committed to agency discretion by law"
Statutory preclusion of review
Judicial review
Four questions
Law
Historical fact
Policy
Discretion
Damage actions as a method of judicial review
Exam approach
Look for key words
Classify the agency action: adjudication, rulemaking or information gathering
Identify statutory limitation on agency's actions (principally APA)
Identify constitutional limitations on agency's actions
Identify constitutional limitation on agency's actions
Identify any important pre-conditions of judicial review (e.g. exhaustion, standing)
Classify the nature of the challenge: legal, factual, policy or discretion
Apply the appropriate standard of review.