ALR Week 3 Admin Law

ALR Spring 2024

Week 3

Administrative Law Research

Start

Week 3 Agenda

Search Methods

Sources of Law: Regs

01

04

Recap & Questions

Types of Agency Documents

02

05

In Class Activities

Major Publications

03

06

01

Sources of Law: Regulations & Decisions

The Authority of Rules

*Published in U.S. Code

U.S. Constitution

*Published in U.S. Code (federal) and FL Statutes (state)

Statutes

*Published in Federal Register (proposed, new) or Code of Federal Regulations (final)

*State rules are in FL Admin. Register & FL Admin. Code

Regulations

*Published in state, federal, and regional reporters

Case Law

*Varies, commerical publishers or organizations will publish on different topics

Secondary Sources

02

What do agencies produce?

Agencies: More Than Regs

* Majority of what agencies produce are not regulations, but regs ARE the most important > Decisions > Other Publications

Other Publications

Rules (regs) = agency created law

Guidance Documents

Agency Decisions

• Anything else product by agency
• Can be a variety of docs based on work of agency
• Ex. include: info. for public, data, reports, manuals

• Pub'd by agencies for the public and/or practitioners
• Provide insight into how certain situtions will be treated
• Provides official policy

• Quasi-judicial proceeding
• Rulings interpret regs
• Trial and appeal boards
• Must exhaust all admin remedies to seek JR

• Primary authority
• Delegated power
• Implements legislation practically
• Drafted by experts with public input

+INFO

+INFO

+INFO

+INFO

03

Major Publications

• Published daily, as regs are promulgated
• Contains notices of proposed rulemakings (NPRMs), proposed rules, new final rules, notices, presidential papers & proclamations, and Executive Orders
• Cite as: (volume) __Fed. Reg.__ (page) (date of issue) (only when not yet codified)

• Codification of all final regs
• Published annually, in quarters
• Titles 1-16 revised January 1;
• Titles 17-27 revised April 1;
• Titles 28-41 revised July 1;
• Titles 42-50 revised October 1
• Arranged into 50 topical titles
• Cite as: _ C.F.R. _ (Title, Part/Section)(Year)
• E.g. 36 C.F.R. § 2.15

Where to Find the Federal Register & C.F.R.

Lexis+

Westlaw Precision

Bloomberg Law

Govinfo.gov (official)

CFR

Office of the Federal Register

FR

eCFR (unofficial)

State > Westlaw, Lexis, BLaw; for FL use flrules.org

For older issues of C.F.R., use HeinOnline

Where to Find Agency Decisons?

Westlaw Precision

Lexis+

Agency Websites (varies)

Bloomberg Law (selected areas)

State > Westlaw, Lexis or Agency Websites; for FL use DOAH website

04

Admin Law Search Methods

Search Methods

By Statute

By Secondary Source

By Finding Aid

By Citation

Each rule and each deicision cites to its authority (statute); Ise citing refs or Context & Analysis

The FR and the C.F.R. has finding aids available to locate rules by topic or law

Simply plug in the full citation to the regulation or agency decision

Do a filtered or a topic search to search for a practice manual or treatise

Week 3 Recap 1: Administrative Law

• Administrative law = law of agencies
• Agencies create law, regulations, via delegated authority from Congress (i.e. through enabling legislation)
• Regulations are primary law, must be updated & validated

• Agencies create regs according to federally defined procedures under the APA Informal rulemaking or “notice & comment” is the most common process
• Proposed rules and recent final rules appear in the daily Federal Register
• Final codified rules appear in the Code of Federal Regulations (C.F.R.)

Week 3 Recap 2: Administrative Law

• Agencies often also establish review boards or appeal procedures for disputes re: rulemaking
• Adjudications w/in agencies involve an initial decision before an ALJ, then appeals before a review board > then may seek judicial review
• No formal requirement to publish decisions (varies agency to agency)
• Best bet is to use agency's website
• Rules and adjudications can be found via:
• Citation
• Statute
• Secondary Source
• Finding Aids
• Filtered searching

Week 3 Questions

1. Why don't agencies publish all of their decisions?
2. What would be the best resource to use when interpreting a regulation's application?
3. How do you know when an agency is about to propose a rule or solicit comments?
4. What if you are a challenging the scope of an agency's power -- do you still have to exhaust all administrative remedies before judicial review?
5. Do agencies have too much power?
6. What if an agency oversteps its authority?

Demo: Finding a CFR Rule

You have recently started a new job practicing immigration law! You decide to familiarize yourself with the laws and regulations governing immigration as well as the organization of the Code of Federal Regulations (C.F.R.) and the Federal Register (Fed. Reg.).Your client, Zofia, is 30 years old and in good physical and mental health with no cognitive disabilities. Her application for naturalization was denied (after the agency appeal process) by the USCIS for failure to adequately demonstrate the ability to speak English. The interviewer said she mumbled some non-responsive English words/expressions in response to questions. You decide to use Westlaw to research the law concerning the English language requirements for naturalization. Let's use the indexes for both the U.S.C. (C&A) and C.F.R. and we will also update our rule.

Demo: Rules & Decisions

If we check the Parallel Table of Authorities on Govinfo will be find the rule? Now let's work backwards to find the rule in the Federal Register. This will have info about the regulatory intent of the rule. 8 C.F.R. § 312.1 is our rule, the credits give us amendments and the source gives us the enabling of authorizing legislation. Where is the intent info?

Let's go back to either our statute or rule. We can use the annotations on Westlaw or Lexis to find a relevant agency decision.

Demo: Finding a Comment

What if we want to find comments for this rule? - Let's go to regulations.gov and search for the rule. Where can we find the docket number for the rule? Why are comments useful?

In-Class Practice & Research

Dear interns, In the realm of law/ your task is clear/to analyze a rule, without fear. Does it infringe on our rights so dear?/ The First Amendment's line, you must steer./Does it breach rights? /A question met, /with keen analysis, answers beget.

1. Find the codified rule
2. Find the authorizing statute
3. Find the supplemental information that explains the rule's purpose
4. Find an administrative decision by the HHS' review board

You cannot move onto the next question until it has been checked by your Dungeon Professor. HERE ARE THE RULES -----------------------> Go to this website to access the dice for this game: https://tinyurl.com/mr37xtua

Your Dice Rolls

Roll twice to select a question and a method. Dice numbers mean: 1 - C.F.R. rule 2 - Statute (authority) 3 - Supplemental rule info 4 - Rule comment 1 - Boolean Search 2 - Secondary Source 3 - Agency Website or Regulations.gov 4 - Finding Aid (index, tables, TOC, citing sources/references)

You are interning during the summer for the Food & Drug Administration. You and several other law student interns are working on a research project for your supervisor, and decide to take a quick break. You all go to the breakroom inside the agency's law library. You notice a tempting box of fresh Krispy Kreme donuts sitting on a table. Assuming they are for anyone, you dole them out to the other students and eat the delicious baked goods. You suddenly become rather dizzy . . . then everything goes dark.An hour later you and the other interns awake in a mysterious chamber within the Law Library (ironically, you realize the donuts were adulterated against FDA rules). There is one laptop and a shelf of old books inside the room. A small paper sits atop the laptop. The only door is bricked over, with a sign above that reads, “Peritus investigātor" Chamber. To escape, you must find the following answers using your administrative research skills. A new rule has been promulgated re: enhanced cigarette and tobacco warning labels on products. Some in the tobacco industry believe this violates the 1st Amendment. Will you escape to the Library or become lost in its depths forever? Your fate hangs in the balance as you embark on this perilous journey into the C.F.R. and beyond.

End of Week 3 Lecture * Please post by Wednesday @ 3 PM

Other Agency Publications

Generally these provide information to the public on procedures, laws overseen by agency, data related to mission, research related to mission, etc. E,g, Circulars by the Copyright Office, Environmental Reports by the EPA, Manuals by the IRS, etc.

Input your citation in the search bar OR filter to the compilation or collection and then input the citation

Do a filtered search by practice area (Boolean), or simply select the practice area and select Secondary Sources (Westlaw) or Secondary Materials (Lexis). Then run a Boolean search within, or use the TOC or index (if available).

The APA puts certain limitations on judicial review of agency actions:Courts may only review an agency action if:

• there is a separate statute authorizing review of the action or
• the action is final and “there is no other adequate remedy in a court” with respect to that action
• Courts may not review challenges to an agency’s action if another statute precludes judicial review of the action
• No review of actions “committed to agency discretion by law.”
• In rare cases, judicial review may occur if:

• the relevant statute ‘is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.’
• WITHIN POWER OF CONGRESS TO AMEND APA FOR WIDER REVIEW

Mostly because they are not required to and often lack funding and time to organize and publish decisions.-------------------------------------------------------------------------- The APA only requires publication of final decisions and orders. FOIA doesn't require pub. of non-decision materials (pleadings, motions, briefs). Though you can request this info. Obama-era executive order (Open Data Policy) required agencies to make more info accessible and online . . . but this hasn't uniformly happened.

Congress has not only the power to legislate, but also holds the purse strings. - Can defund an agency - Can pass new legislation limiting power, changing its purview, or abolishing an agency altogther (this has happened before, e.g. Interstate Commerce Commission or the Office of Technological Assessment - Individuals can seek judicial review, "major questions" doctrine requires agencies to have "clear congressional authority" over a particular area before making decisions of "great economic or political import"

Agency Decisions

• Many agencies provide a method of reviewing its actions for the public
• Not required by the APA unless stated in enabling legislation
• Similar to the regular court system
• (Initial Review =Trial; Review Board = Appellate)
• Must exhaust all admin. remedies to seek judicial review in court
• Publications vary (online, reporter, not at all)

Rulemaking Authority

Enabling Legislation & Authority

• Agencies can only be created by an act of Congress = enabling laws
• Enabling legislation provides parameters of agency's authority and its mission
• Congress funds (or defunds) each agency
• If Congress makes another law related to agency's mission, it will also give rulemaking authority over to agency e.g. below:

In 1934, Congress passes the Communications Act of 1934 (Pub. L. 73–416)

Legislation establishes an agency to monitor and enforce wire and radio communications law(s) = FCC

FCC makes rules and establishes review board to implement law; later FCC has authority over 1996 Telecommunications Act too

Rulemaking Process

There are different types of rules > formal, informal, emergency, interim, direct final, etc.

Agency drafts rule, pub'd as NPRM or PR in Federal Register

Comment period opens, public submits input

Comment period closes, agency reviews comments and makes changes

Agency publishes final rule in Fed. Reg. with effective date

Final rule is codified & pub'd in Code of Federal Regulations

Congress passes Clean Water Act (Pub.L. 92-500)

Congress delegates rulemaking authority to Environmental Protection Agency (EPA)

EPA makes rules regarding surface water treatment protocols

How do Agencies Create Law?

Congress Enacts Law

Congress Delegates

Agency Creates Rule

Only Congress has power to make laws (legislative power)

Not able to foresee all circumstances, lack expertise, gaps in laws must be filled, so assigns to agency

Agency is created (enabling legis.) OR agency receives authority to make rules to implement law

Info

Info

Info

Use the index in the C.F.R. (Westlaw, Lexis, Govinfo), Go to Govinfo.gov, select Browse > C > CFR Index & FInding Aids: there is an agency index, subject index, AND Parallel Table of Authorities

Navigate to the statute, choose either Citing References or Context & Analysis > then regulations (Westlaw) OR choose Other Citing Sources and filter to Regulations (Lexis)

Guidance Documents

These state what the official policy of an agency is in certain sitatutions They are not primary auth. and don't have weight of regs UNLESS it functions like rulemaking

• Types of guidance varies according to agency purview
• E.g. Technical Advice Memoranda by the IRS

This is more of a policy question, than a research question -- but it is an interesting one. The politics of SCOTUS seem to indicate they will leave Chevron without teeth in future. Critics say there should also be congressional approval of agency rules and independent admin courts to review actions. Opponents say this will cause delays, frustrate efforts and cause rules to be influenced by politics over practical considerations.