"So long as Congress 'shall lau  down by legislative act an intelligble principle to which the person or body authorized to exercise the delegated authority is directed to conform, such legislative action is not a forbidden delegation of legislative power.'"

This is not a terribly hard test to meet, the courts give Congress pretty broad power, but not overly broad (Schecter), because the agencies need flexibility.

It does not have to be a specific formula.

KNown as: Notice and comment; informal; 553 rulemaking

Exceptions, does not apply to: 1. military or foreign affairs; 2. matters relating to housekeeping matters; 3. public property, loans, grants, or benefits contracts.

What is required?

1. Publish notice of rulemaking in Federal Register.

2. Time, place, and nature of the rulemaking is required in the notice.

3. Agency must say where it gets the legal authority to pass the rule (must be explicitly delegated form Congress).

4. Substance or proposed terms of the rule.

Rememeber:

1. The agency MUST give an opportunity to participate through submission of written data.  No oral presentation is required and that is left to the discretion of the agency.  APA does not specify how long the comment time must be, cts. have said it must be reasonable under the circumstances.

2. A rule must be published for 30 days before it takes effect.  Except a rule that grants ans exemption or relieves a restriction, an interpetive rule or policy statement that is rarely required to go through 553, or if the agency provides damn good cause.

3. Does NOT require consideration excusively on any "record". It may rely ipon the basis available in its own files and upon the knowledge and expertise of the agency.

553 is the "ceiling" of procedures that an agency must follow in informal rulemaking, not a "floor".

A court cannot impose more procedures than required by 553.

An agency may require on their own accord more procedures if they so choose.

If 553 were a floor it would creat beauracratic chaos b/c:

1. Congress would really be delegating their power to the judiciary.

2. If federal judges can review agency rulemaking in every manner, agenices will never know if they are on safe ground.

3.  It forces the agency to treat every part of rulemaking as 556 & 557 to spare the embarrassment of having their procedures overturned and this way too expensive.

4. Too much monday morning quarterbacking by the courts.

5. You can't remand informal rulemaking based on inadequate records.

The phrase "after hearing" by itself does not trigger the application of 556/557.  It only requires 553.

- 556/557 is triggered by "on the record after a hearing".  Though there may be other words the ct. did not say what they were.

Londoner Doctrine

Bi-Metallic Doctrine

Londoner: If you have a small number of people affected, you need an opportunity for oral testimony because it may affect their due process rights.

Bi-Metallic: If a rule is prosepective(future effect)/has an affect across a broad range of people it more likely to be rulemaking than adjudication.

Disqualifying:

1. Rulemakers

2. Adjudicator

1. To disqualify an agency rulemaker you MUST show clear and covincing evidence that he has an unalterably closed mindon matters critical to the dispostion.  Just about impossible to meet this standard.

2. To disqualify an adjudicator you must show by a preponderance of the evidence that they pre-judged the facts and law prior to hearing.

Fortas said: We had a trial - there was a hearing, there was an order that was perfectly lawful.

Black's Concurrence: You can make a future rule in an adjudicatory proceeding.  It is rare that judges make pure prospective rulemaking in adjudication but it does happen.  And judges do not usually apply the rule in the case at hand out of fairness.

Douglas's Dissent: In this case it was rule b/c it will cover all future representation elections for labor unions.  Therefore the rule should have been made under 553 and is not valid.

Harlan's Dissent (teaches us how to read a statute): First determine if it is rulemaking; if it is not rulemaking than it is adjudication.  An order is a final disposition of an agency in matter OTHER THAN RULEMAKING.  A rule is an agency statement of general or particular applicability that has a FUTURE EFFECT.  This was rulemaking!

An agency is not barred from applying a new principle in adjudicatory proceeding simply b/c it has the power to announce the rulein advance by rulemaking.

The choice b/t rulemaking and adjudication still lies within the agency's discretion.  Therefore, agencies are not precludded from announcing new priniciples in an adjudicative proceeding.

The legislative veto in this case plainly violates the presentment clause and bi-cameralism.

Only when Congress is involved in a legislative act do you need bi-cameralism. This is definitely a legislative act because it is altering legal rights, duties, or relations.

We must follow the same steps for taking away or altering powers of an admin agency that we did for creating the statute.

Exam question:  The purposes of the present clause include:

1. It's a way of guarding against hastily passed, ill conceived legislation.  It slows down the legislative process.

2. Protecting the prerogatives of the Exeutive from Congress.

3. To have a national perspective on the legislation (i.e. the president is elected by the nation).

Reasons for bi-cameralism:

1. You need full study and debate.

2. There needs to be a check on the legislature.

3. Dilute the power of Congress.

FOR EXAM: One house legislative acts are unconstitutional due to a lack of bicameralism and presentment.  Ecen if it is a two house legislative act it can still be unconstitutional it it doesn't have the presentment aspect.

Once an agency promulgates a regualtion pursuant to 553, the only way it can repeal or amend that regulation it must go back through 553 procedures.

Entitlements are so heavily relied upon for basic humanitarian needs that is has become a property right.  Today cts. view entitlements as rights and are protected by procedural due process.

Welfar is a unique entitlement that requires a pre-termination oral hearing b/c it provides the very means to live for these people.

Why oral hearing?

1. Most people on wlefare may not ne able to make their arguments effectively on paper.

2. Oral hearings are more flexible b/c you are talking to the decision maker.

3. B/c credibility and veracity are at issue and an oral hearing is better to determine credibility and veracity,

Termination of Social Security Disability is not required the same due process of welfare.  A post-termination hearing is fine for SS.

Eligibility for disability benefits is not based on financial need.  The decision to discontinue disbaility will turn on routine, standard, unbiased medical reports by physician specialists.  The specter of questionable credibility and veracity is not present.

Cost/Benefit Analysis:

Once you have located that there is an entitlement, to decide what process is due you look at 3 factors:

1. The private interest at stake.

2.  The risk of erroneous deprivation with current procedures and the probable value, IF ANY, of any additional or substitute safeguards/procedures.

3. The gov't interest at stake (usually in economic efficieny).

With due process analysis, look at the NATURE (as opposed to the weight) of the interest first.

Can you show some form of entitlement, statutory or otherwise?

For due process to apply you need to show some sort of entitlement.

Once you establish due process is required by looking at the nature of the interest, then you look to the weight of the interest to determine what process is due.

In this case, if suspension is less than 10 days you need to be told what the charges are, if you dispute the charges then you are told the evidence, and then you need an opportunity to tell your side of the story. (this can all be done quickly and rather informally).

If suspension is more than 10 days or a unique situation more process is probably due.

554(b): persons entitled to notice of an agency hearing shall be timely informed of:

1. the time, place, and nature of the hearing;

2. the legal authority and jurisdiction under which the hearing is to be held;

3. the matters of fact and law asserted.

- An implied requirement is that notice is timely.  Determining whether the notice is timely ultimately depends on the circumstances.  The APA is silent on the issue.

"An employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review except as witness or counsel in public proceedings."  EXCEPTIONS: determining applications for initial licenses; proceedings involving the validity or application of rates, facilities, or practices of PUBLIC UTILITIES; the agency head.  (Agency heads; rulemaking; ratemaking; initial licenses)

- Any oral or documentary evidence may be received.  Hearsay is permitted so long as the enabling statute does not prohibit it.

NO EX PARTE COMMUNICATION, if it happens you can be ruled against adversely or have your case dismissed.

A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-exam. as may be required for a full disclosure of the facts.

In rulemaking or determining claims for money or benefits or for initial licenses an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.

The transcript of testimony and exhibits, together with all papers and requests filed in the procedding, constitutes the exclusive record for decision...

EXAM QUESTION: In R. v. P., the SC held that a written report by a licensed physician who has examined the claimant may constitute susbtantial evidence for a finding adverse to the claimant....when the claimant has not exercised his right to subpoena and examine the doctor.

When we are talking about claims for benefits, the agency can require all or part of the evidence to be submitted in written form as long as no party will be prejudiced by that.

Legal residuum rule:  Although there was nothing wrong with the admission of this hearsay evidence, findings of fact cannot be based exclusively on hearsay.  They must be supported by a modicum of evidence that would be admissible in a court of law.  It can even be circumstantial evidence, this is an extremely easy standard to meet.

Exclusiveness of the record.

All decisions are a part of the record and shall include a statement of - findings and conclusions, and the reasons or basis thereof, on all issues of material issues of fact, law or discretion presented AND the appropriate rule, order, sanction, relief or denial thereof.

NO EX PARTE COMMUNICATION.  If it happens it can result in an adverse decision against the claimant.

If it happens it can be made a part of the record after the opposing side has been given an opportunity to respond.

1.   Standard of Review

a.       when an appellate ct reviews a fact finder, it must set it aside UNLESS it is supported by substantial evidence as considered by the record as a whole

b.      need to look at all parts of the record

                                                                                                                                      i.      including what contradicts the board’s fact finding

                                                                                                                                    ii.      is there substantial evidence to support the board’s fact finding?

2.      under Taft Hartly

a.       706(e) – do not roll over and play dead bc there is some part of the record that supports the agency’s finding

                                                                                                                                      i.      ask yourself is there substantial evidence as a whole to support an agency’s FF

b.      substantial evidence is not a right or a wrong

                                                                                                                                      i.      there has to be more than a mere scintilla BUT does not have to be preponderance of the evidence

                                                                                                                                    ii.      such relevant evidence as a reasonable mind might accept as adequate to support a conclusion

                                                                                                                                  iii.      substantiality of the evidence must take into account whatever in the record detracts from its weight

                                                                                                                                  iv.      whether on the record as a whole there is substantial evidence to support agency findings = is a question which Congress has placed in the keeping of the Ct of Appeals

1.      this Ct will intervene ONLY in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied

                                                              i.      subject to judicial review

1.      agency action made reviewable by statute; AND

2.      final agency action for which there is no other adequate remedy in a court

                                                            ii.      A preliminary procedural or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. 

                                                          iii.      agency action MAY be reviewable by statute (i.e. situations where statute is silent, then use 704)

1.      if enabling legislation says have this, can go to court

a.       can appeal decision to the court of appeals of US

b.      this encourages review of a decision in fed ct

2.      statutory review must be followed exactly

a.       review action MUST be brought in the ct specified in the statute within time specified in the statute and in the form specified in the state

3.      cts say do the review by subject matter and not region

BUT this will never happen bc ppl do not like to give up their power

Scope of Review

To the extent necessary and when present, the reviewing court shall"

1. Compel agency action when unlawfully withheld or unreasonably delayed AND

2. Hold unlawful and set aside agency action found to be:

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without obsefance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to 556 & 557 of this title or otherwise reviews on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing ct.