Administrative Agency Practice for ALJs

1. Administrative Agency Practice for ALJs Edward P. RichardsJanuary 2010 http://biotech.law.lsu.edu/

2. Course Objectives • Prof Richards • Provide a general introduction to administrative agency practice as context for ALJs • Review the interplay between rulemaking and adjudications • Prof Devlin • Review the jurisprudence of Article V/Federal Article III reviewing agency rulemaking and adjudications • Discuss the special relationship between Department of Administrative Law ALJs and Louisiana Agencies

3. Agencies in Constitutional History • The Colonies had rudimentary agencies • States were active regulators during the 1800s and still are major regulators. • The US Constitution is silent on agencies • The United States Supreme Court was uncomfortable with the delegation of legislative and judicial powers to agencies • This was resolved in the 1930s and the courts no longer question the hybrid role of agencies

4. Agencies are the Vehicle for Carrying out Political Policy • Enforcement policy • When does a business get a second chance and when do they get closed for violating regulations? • When do you use quarantine and isolation? • Fiscal policy • Which diseases do you investigate when you have limited staff? • What programs are cut when the budget is cut? • Changes of government can profoundly change agencies

5. Changing Agency Policy • Executive branch control • Replace the agency director • Use Executive Orders to direct agency policy • Legislature • Change the enabling law • Increase or eliminate the funding for agency functions • Citizens • Petition the agency to change regulations • Participate in pubic hearings • Lobby the executive and legislature • Elect different politicians in the executive and legislature

6. Agencies are Established by the Legislature • The agency enabling statute establishes the agency's: • Powers and Duties/Organization/Funding • Standards for Judicial Review of the Agency's Actions • Some state agencies are established by the state constitution or constitutional amendments. • The legislature must still fund and empower such agencies

7. Delegation of Power to the Agency by the Legislature • The Legislature cannot grant the agency more power than the legislature itself can exercise • General Grant of Power • Specific Grants of Power • Contingent Grants of Power • Air pollution regs triggered by ozone levels • Emergency powers

8. Location of Enforcement Agencies in the Federal Government • All enforcement agencies are in the Executive branch. • Enforcement can include orders to comply with the law, fines, and criminal prosecution • Congress can control agencies that only do studies and investigations, but no enforcement, such as the Congressional Budget Office or the Library of Congress

9. Executive Control of Federal Agencies • Cabinet agencies • Presidential appointees, confirmed by the Senate • Can be removed at will by the president • Independent agencies • Presidential appointees, confirmed by the Senate • Fixed terms of office • Can only be removed by the president for cause • IRS, SEC, Federal Reserve

10. Executive Control in the States • States have several elected executives that control agencies • The governor controls most agencies. • The attorney general controls the legal office. • Other state offices, like state auditor, also have elected heads. • States also have independent agencies • Some states even allow legislative agencies with enforcement powers

11. Carrying Out Agency Policy

12. Administrative Procedure Act (APA) • The set of laws in each state and the federal government that specifies how the agencies in that jurisdiction carry out basic functions such as rulemaking, adjudications, and how citizens can petition the agencies. • Equivalent to the code of civil procedure for agencies • APAs were first adopted post-WWII • The APA only applies if the legislature has not made special rules for a given agency.

13. Administrative Rules • The Legislature can delegate the power to make rules to the agency • Some agencies do not have rulemaking authority • Rules cannot exceed the authority in the agency's enabling legislation or the Constitution • Properly promulgated rules have the same effect as statutes

14. Why Make Rules? • Legislatures do not have the expertise or the time to legislate in technical areas • National standards can be adopted through agency rules, harmonizing practice across jurisdictions • National building codes • Recommendations of the Advisory Committee on Immunization Practices • Rules give the public and regulated parties guidance

15. Directing Adjudications and Judicial Review with Rules • Facts or legal conclusions established by rules cannot be contested in adjudications • Rules were used to limit fact finding in disability cases • Sanitation codes limit disputes over restaurant operation • Louisiana agencies with rulemaking powers could use rules to establish the framework for adjudications

16. Public Participation in Rulemaking • Proposed rules must be published for public comment. • The agency must take written comments. • Some states require public hearings if requested by enough people. • Federal agencies sometimes use public hearings on important policy issues. • The agency must review and respond to the comments.

17. Agency Enforcement Tools

18. What is an Adjudication? • Adjudications are the process used to make an order involving specific identified parties • All enforcement actions involve adjudications • Examples of adjudications • ALJ trial type hearings • Medicare bills • Medical licenses • Restaurant inspections

19. How is an Adjudication Different from a Rule? • Rules apply to everyone in the affected class. • Adjudications decide questions in individual cases and only bind those parties. • Parties to an adjudication are entitled to be heard. • Adjudications may include oral hearings. • Some adjudications are done on written documents only.

20. Adjudications to Make Policy • Are courts charged with making law and policy thought legal opinions? • Do their opinions make law and policy? • What is happening with gay marriage? • Are civil law courts bound by precedent? • Why do we read civil court opinions? • How do they set law and policy? • Agency adjudications can work the same way

21. Why Make Policy Through Adjudications? • Why don't legislatures write laws that are specific enough that courts have no room to set policy? • When might a legislature intentionally write an ambiguous law, knowing it will have to be resolved by a court? • Agencies face the same issues • While they can make rules, as we will see, that can be slow, cumbersome, and politically hazardous

22. Permits and Licenses • You have to show you have met the standards set by law or regulation before you get the license or permit. • Standards must be clear. • Must treat all applicants equally. • Conditioned on accepting enforcement standards • You agree to be bound by the administrative rules. • You must allow inspections during business hours. • Licenses and permits can be revoked without a court order

23. Inspections • The inspector determines the facts through the inspection. • The defendant may present its case explaining the problem during the inspection. • The inspector must provide a written record. • Local government often allows appeals to the city council. • The courts will defer to the inspector's findings if the case is appealed to the courts.

24. Administrative Searches • License and permit holders may be inspected without a warrant. • Other inspections may require an administrative warrant. • Requirements for an administrative warrant. • No probable cause. • Must show the reason for the search and the locations • Administrative searches cannot be used when a criminal warrant is necessary. • Special rules for national security law

25. Administrative Orders • The first step in enforcement is to issue an order explaining the violation and how to correct it • Most persons comply with the order • If the person does not comply, the order proves that the person was on notice of the problem • In some cases there may also be a fine for not complying with the order

26. Enforcement of Agency Orders • If the target of the order does not comply, then the department must seek a judicial order to force compliance • Most agencies don't make arrests or use force • Some agencies do have police and prosecutors

27. Court Orders • In many cases the agency must ask the court to issue orders to enforce agency regulations or adjudications • Injunctions • Orders to prevent an actions, such as operating a restaurant • Temporary injunctions • Permanent injunctions • Personal restriction orders • These order individuals to refrain from dangerous behavior

28. The Advisory and Consultative Role • There are some agencies that do not have enforcement powers • They do research and education • They shape policy by funding other agencies or private projects • Even enforcement agencies depend on voluntary compliance and have a strong advisory and consultative role

29. Public Health Examples • The CDC is a non-enforcement agency • The CDC's primary role is providing guidance to state and local health departments • Most guidance is voluntary, but can be tied to the receipt of grant funds • State and local health departments • Departments with enforcement powers also have an important research and educational role • This includes epidemiology, health education, and technical assistance to businesses such as restaurants

30. Public Access to Agency Information

31. Freedom of Information Acts • Provide public access to information held by agencies • Have exceptions to protect trade secrets and information that will affect agency function or public safety • Modified by state and federal privacy laws to protect personal information

32. Open Meetings Laws • Provide for public attendance at agency governing body meetings. • Require public notice of meetings • Allow for closed meetings on personnel matters and other topics such as bids that require secrecy