SDTAAmJur Administrative Law

Summary, 2 Am. Jur.
2d Administrative Law Summary
2 Am. Jur. 2d Administrative Law Summary
American Jurisprudence, Second Edition | February 2022 Update
Administrative Law
Glenda K. Harnad, J.D.; Janice Holben, J.D.; Sonja Larsen, J.D. and Karl Oakes, J.D.
Correlation Table
Summary
Scope:
This topic is a broad view of administrative law as it impacts all federal and state agencies. It covers the general aspects and
principles of the law relating to the jurisdiction, powers, functions, and procedures of federal, state, and local governmental
bodies other than the courts and legislatures. It considers these matters with regard to the investigatory, legislative,
rulemaking, determinative, and adjudicatory functions of these bodies and agencies. It includes a basic treatment of the
Federal Administrative Procedure Act and the 1981 version of the Model State Administrative Procedure Act and the 2010
version of the Revised Model State Administrative Procedure Act. This topic also discusses the creation, membership, and
liabilities of administrative agencies and administrative and judicial review of administrative action, decisions, and orders.
Federal Aspects:
The Federal Administrative Procedure Act generally governs federal agencies. Other federal statutes control aspects of
judicial review of agency action, such as judicial procedure and remedies. In addition, there are federal statutes governing the
delegation of agency authority, disqualification of hearing officers, advice and assistance of the Attorney General to agencies,
assessment of fees by federal agencies, and publication of agency documents. The Freedom of Information Act (5 U.S.C.A. §
552), which discusses what information an agency must disseminate to the public, and the Privacy Act of 1974 (5 U.S.C.A. §
552a), which governs maintenance of, disclosure of, and access to agency records on individual citizens or residents, are
discussed in Am. Jur. 2d, Freedom of Information Acts §§ 1 et seq.
Treated Elsewhere:
Appealability as affected by transfer of federal civil case to administrative agency, see Am. Jur. 2d, Appellate Review § 139
Appeal to United States Supreme Court by administrative agency, see Am. Jur. 2d, Appellate Review § 29
Arbitration, generally, see Am. Jur. 2d, Alternative Dispute Resolution §§ 1 et seq.
Blasting damage, prior administrative action as affecting availability of judicial relief for, see Am. Jur. 2d, Explosions and
Explosives § 134
Constitutional provisions, administrative construction of, see Am. Jur. 2d, Constitutional Law § 93
Corporations, immunity from suit when created as state agencies, see Am. Jur. 2d, States, Territories, and Dependencies §
108
Due process requirements: as affecting state and federal agencies, see Am. Jur. 2d, Constitutional Law §§ 976, 977; as met by
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 1

Summary, 2 Am. Jur. 2d Administrative Law Summary
hearing before board or commission of administrative officer or tribunal, see Am. Jur. 2d, Constitutional Law § 1019;
requirements of fair and impartial tribunal as applicable in administrative hearings, see Am. Jur. 2d, Constitutional Law §
1020
Equal-protection requirements, application to state and federal agencies, see Am. Jur. 2d, Constitutional Law §§ 839, 843
Federal corporations as agencies of federal government, see Am. Jur. 2d, Foreign Corporations §§ 89, 93
Federal diversity jurisdiction, citizenship of federal and state agencies and officers for purposes of, see Am. Jur. 2d, Federal
Courts §§ 742, 744, 747 to 749
Finality, remand for proceedings before nonjudicial bodies as affecting, see Am. Jur. 2d, Appellate Review § 88
Immunity of school boards, commissions, and similar agencies or authorities, see Am. Jur. 2d, Municipal, County, School,
and State Tort Liability §§ 25 to 28
Initiative or referendum, judicial review of administrative determination, see Am. Jur. 2d, Initiative and Referendum § 48
Injunction: against acts or orders of administrative bodies, see Am. Jur. 2d, Injunctions §§ 156 to 160, 166 to 169; exhaustion
of administrative remedies as prerequisite to issuance of, see Am. Jur. 2d, Injunctions § 32
Judicial notice of rules, regulations, acts, reports, and records of administrative agencies, see Am. Jur. 2d, Evidence §§ 128,
131, 164 to 166
Judiciary, distinction between administrative agencies and, generally, see Am. Jur. 2d, Constitutional Law § 266
Libel or slander, privilege exempting responsibility for defamatory statements in judicial proceedings as extending to
administrative proceedings, see Am. Jur. 2d, Libel and Slander § 283
Licenses and permits, aspects outside coverage of administrative procedure acts, see Am. Jur. 2d, Licenses and Permits §§ 1
et seq.
Negligence based on violation of administrative regulation: generally, see Am. Jur. 2d, Negligence §§ 753 to 758;
contributory or comparative negligence as defense to, see Am. Jur. 2d, Negligence § 989; assumption of risk as barring
recovery, under rule of Restatement of Torts 2d, see Am. Jur. 2d, Negligence § 787; excuse or justification as affecting
determination of, see Am. Jur. 2d, Negligence § 710
Obscene matter, validity of legislation authorizing in first instance administrative agencies to protect public against, see Am.
Jur. 2d, Lewdness, Indecency, and Obscenity § 15
Obstruction of justice, administrative proceedings as, see Am. Jur. 2d, Obstructing Justice §§ 23, 24
Parol evidence of records of administrative bodies, see Am. Jur. 2d, Evidence § 1116
Particular federal administrative bodies and regulation thereby, generally, see applicable articles, as, for example: Civil
Service Commission, see Am. Jur. 2d, Civil Service §§ 10 to 12; Environmental Protection Agency, see Am. Jur. 2d,
Pollution Control §§ 1 et seq.; Equal Employment Opportunity Commission, see Am. Jur. 2d, Job Discrimination §§ 1 et
seq.; Federal Aviation Administration and the Civil Aeronautics Board, see Am. Jur. 2d, Aviation §§ 1 et seq.; Department of
Housing and Urban Development, see Am. Jur. 2d, Housing Laws and Urban Redevelopment § 14; Federal Energy
Regulatory Commission, see Am. Jur. 2d, Public Utilities §§ 194, 195; Federal Trade Commission, see Am. Jur. 2d,
Consumer and Borrower Protection §§ 110, 161; National Labor Relations Board, see Am. Jur. 2d, Labor and Labor
Relations §§ 1 et seq.; Nuclear Regulatory Commission, see Am. Jur. 2d, Energy and Power Sources §§ 57, 58; Patent and
Trademark Office, see Am. Jur. 2d, Patents §§ 1 et seq.; Securities and Exchange Commission, see Am. Jur. 2d, Securities
Regulation—Federal §§ 1 et seq.; Veterans’ Administration, see Am. Jur. 2d, Veterans and Veterans’ Laws §§ 1 et seq.

Presumptions relating to acts of administrative and regulatory agencies, see Am. Jur. 2d, Evidence § 222
Public officers and employees, generally, see Am. Jur. 2d, Public Officers and Employees §§ 1 et seq.
Public records, inspection and disclosure of, see Am. Jur. 2d, Records and Recording Laws §§ 1 et seq.
State or local administrative authorities and regulation thereby, generally, with regard to: drainage and sewage, see Am. Jur.
2d, Drains and Drainage Districts § 2; food, see Am. Jur. 2d, Food § 6; highways, see Am. Jur. 2d, Highways, Streets, and
Bridges §§ 12 to 14; hotels, restaurants, or similar places, see Am. Jur. 2d, Hotels, Motels, and Restaurants § 27; housing, see
Am. Jur. 2d, Housing Laws and Urban Redevelopment §§ 11 to 13; insurance, see Am. Jur. 2d, Insurance §§ 27, 28;
pollution control, see Am. Jur. 2d, Pollution Control §§ 3 to 5; public utilities, see Am. Jur. 2d, Public Utilities §§ 143, 144;
schools, see Am. Jur. 2d, Schools §§ 66 to 73; securities, see Am. Jur. 2d, Securities Regulation—State §§ 130 to 140;
workers’ compensation, see Am. Jur. 2d, Workers’ Compensation §§ 47 to 50; zoning, see Am. Jur. 2d, Zoning and Planning
§§ 605 to 705
Will, prosecution of or intervention in administrative proceedings as election to accept or renounce provisions of, see Am.
Jur. 2d, Wills § 1377
Wrongful discharge claims as affected by prior administrative decisions, see Am. Jur. 2d, Wrongful Discharge § 182
Research References:
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All Federal Cases (ALLFEDS)
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American Law Reports (ALR)
West’s A.L.R. Digest (ALRDIGEST)
American Jurisprudence 2d (AMJUR)
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Code of Federal Regulations (CFR)
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Uniform Laws Annotated (ULA)
United States Code Annotated (USCA)

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Works.

Research References, 2 Am. Jur. 2d Administrative Law I A Refs.
2 Am. Jur. 2d Administrative Law I A Refs.
Administrative Law
I. Introduction
A. In General
Topic Summary | Correlation Table
Research References
West’s Key Number Digest

West’s Key Number Digest, Administrative Law and Procedure 1 to 3
A.L.R. Library
A.L.R. Index, Administrative Law
West’s A.L.R. Digest, Administrative Law and Procedure 1 to 3
Works.

§ 1. Generally; definition of “administrative law”, 2 Am. Jur. 2d Administrative Law § 1
2 Am. Jur. 2d Administrative Law § 1
Administrative Law
I. Introduction
A. In General
§ 1. Generally; definition of “administrative law”
Topic Summary | Correlation Table | References

West’s Key Number Digest, Administrative Law and Procedure 1, 2.1
Administrative law is concerned with the legal problems arising out of the existence of agencies which combine in a single
entity legislative, executive, and judicial powers.1Acts necessary to carry out legislative policies and purposes already
declared by the legislature are administrative.2
Observation:
The identifying badge of a modern administrative agency is the combination of judicial power (adjudication) with legislative
power (rulemaking); however, agencies report to and draw their funds from the legislative body, the executive branch appoints the
personnel of the agency, and the residual power of checks resides with the judiciary.3
Footnotes
1 Mitchell v. Wright, 154 F.2d 924 (C.C.A. 5th Cir. 1946); Handlon v. Town of Belleville, 4 N.J. 99, 71 A.2d 624, 16
A.L.R.2d 1118 (1950); Floyd v. Department of Labor and Industries, 44 Wash. 2d 560, 269 P.2d 563 (1954).
2 State ex rel. Woods v. Block, 189 Ariz. 269, 942 P.2d 428 (1997).
3 McNeil-Terry v. Roling, 142 S.W.3d 828 (Mo. Ct. App. E.D. 2004).

§ 1. Generally; definition of “administrative law”, 2 Am. Jur. 2d Administrative Law § 1

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§ 2. Concern with private and public rights, 2 Am. Jur. 2d Administrative Law § 2
Administrative Law
I. Introduction
A. In General
§ 2. Concern with private and public rights

West’s Key Number Digest, Administrative Law and Procedure 2.1, 3
Because administrative agencies serve in part to effectuate the constitutional obligation of the executive branch to see that the
laws are faithfully executed, the public interest is an added dimension in every administrative proceeding. 1While sometimes
the language of “private rights” is used in the administrative context, this language may simply signify a policy relevant to
administrative law encompassing both public and private rights. 2
In essence, the public-rights doctrine reflects a pragmatic understanding that when Congress selects a quasi-judicial or
administrative method of resolving matters that could be conclusively determined by the executive and legislative branches,
the danger of encroaching on the judicial powers is less than when private rights which are normally within the purview of
the judiciary are relegated as an initial matter to administrative adjudication. 3Where private, common-law rights are at stake,
the courts’ examination of the congressional attempt to control the manner in which those rights are adjudicated will be
searching.4However, Congress may create a private right that is so closely integrated with a public regulatory scheme as to be
a matter for agency resolution with limited involvement by the federal judiciary.5These separation-of-powers concerns are
diminished where parties are not required to but merely have the option of proceeding in an administrative forum. 6In
addition, when an agency refuses to act, it generally does not exercise its coercive power over an individual’s liberty or
property rights and thus does not infringe upon areas that courts often are called upon to protect. 7
Footnotes
1 City of Hackensack v. Winner, 82 N.J. 1, 410 A.2d 1146 (1980).
2 In re St. Joseph Lead Co., 352 S.W.2d 656 (Mo. 1961).
3 Commodity Futures Trading Com’n v. Schor, 478 U.S. 833, 106 S. Ct. 3245, 92 L. Ed. 2d 675 (1986); Thomas v.
Union Carbide Agr. Products Co., 473 U.S. 568, 105 S. Ct. 3325, 87 L. Ed. 2d 409 (1985).

§ 2. Concern with private and public rights, 2 Am. Jur. 2d Administrative Law § 2
4 Commodity Futures Trading Com’n v. Schor, 478 U.S. 833, 106 S. Ct. 3245, 92 L. Ed. 2d 675 (1986).
5 Thomas v. Union Carbide Agr. Products Co., 473 U.S. 568, 105 S. Ct. 3325, 87 L. Ed. 2d 409 (1985).
As to the separation of powers of government in this context, see §§ 59 to 61.
7 Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 84 L. Ed. 2d 714 (1985).

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§ 3. Relation of administrative process to legal process, 2 Am. Jur. 2d Administrative...
Administrative Law
I. Introduction
A. In General
§ 3. Relation of administrative process to legal process

West’s Key Number Digest, Administrative Law and Procedure 2.1
Administrative agencies belong to a different branch of government than judicial courts. They are separately created and
exercise executive power in administering legislative authority delegated to them by statute. 1An important goal of any
administrative scheme is to guarantee the rationality of the process through which results are determined. 2The administrative
system substitutes administrative agencies for courts in making many determinations in the establishment and definition of
individual rights.3
Administrative procedure is generally simpler, less formal, and less technical than judicial procedure.4For instance, strict
rules of evidence generally do not apply to administrative proceedings. 5In addition, the right to a jury trial in suits at common
law preserved by the Seventh Amendment to the United States Constitution is generally inapplicable in administrative
proceedings.6
Footnotes
1
City of Hackensack v. Winner, 82 N.J. 1, 410 A.2d 1146 (1980).
As to administrative agencies, generally, see §§ 20 to 30.
2 State ex rel. K.M. v. West Virginia Dept. of Health and Human Resources, 212 W. Va. 783, 575 S.E.2d 393 (2002).
3 Federal Trade Com’n v. National Lead Co., 352 U.S. 419, 77 S. Ct. 502, 1 L. Ed. 2d 438 (1957); Benedict v. Board of
Police Pension Fund Com’rs of Seattle, 35 Wash. 2d 465, 214 P.2d 171, 27 A.L.R.2d 992 (1950).
4 Foley v. Metropolitan Sanitary Dist. of Greater Chicago, 213 Ill. App. 3d 344, 157 Ill. Dec. 514, 572 N.E.2d 978 (1st
Dist. 1991); Ruffin v. City of Clinton, 849 S.W.2d 108 (Mo. Ct. App. W.D. 1993).
5 § 332.

§ 3. Relation of administrative process to legal process, 2 Am. Jur. 2d Administrative...
6 Pernell v. Southall Realty, 416 U.S. 363, 94 S. Ct. 1723, 40 L. Ed. 2d 198 (1974).

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§ 4. Advantages of administrative process, 2 Am. Jur. 2d Administrative Law § 4
Administrative Law
I. Introduction
A. In General
§ 4. Advantages of administrative process

One of the purposes of administrative remedies is to enable parties to resolve their disputes in a less cumbersome and less
expensive manner than is normally encountered at a trial in court. 1Administrative proceedings operate to the advantage not
only of the litigants but also of the courts which are thereby relieved of some matters on their dockets. 2
In addition, by the administrative device, advantages are gained which are not procurable by the judicial process, including
preventive action and decisions which persons can procure in advance of action. 3The constant process of trial and error, on a
wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the
administrative from the judicial process.4
Footnotes
1 Buras v. Board of Trustees of Police Pension Fund of City of New Orleans, 367 So. 2d 849 (La. 1979).
2 Buras v. Board of Trustees of Police Pension Fund of City of New Orleans, 360 So. 2d 572 (La. Ct. App. 4th Cir.
1978), writ granted, 363 So. 2d 534 (La. 1978) and judgment rev’d on other grounds, 367 So. 2d 849 (La. 1979).
3 Guiseppi v. Walling, 144 F.2d 608, 155 A.L.R. 761 (C.C.A. 2d Cir. 1944), judgment aff’d, 324 U.S. 244, 65 S. Ct.
605, 89 L. Ed. 921 (1945).
4 N.L.R.B. v. Seven-Up Bottling Co. of Miami, 344 U.S. 344, 73 S. Ct. 287, 97 L. Ed. 377 (1953).

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§ 4. Advantages of administrative process, 2 Am. Jur. 2d Administrative Law § 4

§ 5. Collaboration of administrative agencies and courts, 2 Am. Jur. 2d Administrative...
Administrative Law
I. Introduction
A. In General
§ 5. Collaboration of administrative agencies and courts

Despite the differences between the administrative and judicial processes, they are to be deemed collaborative
instrumentalities of justice.1Collaboration of judicial power and function with the administrative process is a necessary part of
today’s legal system.2Courts, in actions brought before them, may call to their aid the appropriate administrative agency on
questions within its administrative competence.3
Many statutes in regulating economic enterprise have divided the duty of enforcement between courts and administrative
agencies. However, there is the greatest variety in the manner in which this responsibility is distributed; under some statutes,
the administrative process is teamed with the judicial process and the authority of the court and agency is intertwined, 4and in
some instances, an administrative finding is a statutory prerequisite to the bringing of a lawsuit. 5
Footnotes
1 U.S. v. Ruzicka, 329 U.S. 287, 67 S. Ct. 207, 91 L. Ed. 290 (1946); S.S.W., Inc. v. Air Transport Ass’n of America,
191 F.2d 658 (D.C. Cir. 1951).
2 Walling v. Benson, 137 F.2d 501, 149 A.L.R. 186 (C.C.A. 8th Cir. 1943).
3 Federal Trade Commission v. Cement Institute, 333 U.S. 683, 68 S. Ct. 793, 92 L. Ed. 1010 (1948).
4 U.S. v. Ruzicka, 329 U.S. 287, 67 S. Ct. 207, 91 L. Ed. 290 (1946).
5 Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S. Ct. 870, 94 L. Ed. 1088 (1950).

§ 5. Collaboration of administrative agencies and courts, 2 Am. Jur. 2d Administrative...
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§ 6. Role of Attorney General in advising administrative agencies, 2 Am. Jur. 2d...
Administrative Law
I. Introduction
A. In General
§ 6. Role of Attorney General in advising administrative agencies

Treatises and Practice Aids

As to duties of the attorney general, generally, see Federal Procedure, L. Ed., Administrative Procedure [Westlaw®:
Search Query]
Pursuant to federal statute, the head of an executive department may require the opinion of the Attorney General of the
United States on questions of law arising in the administration of that executive department. 1While the opinion of the
Attorney General of the United States does not control a court in the construction of an act, 2it may have a controlling
influence in some instances.3
With regard to state law, while it may be persuasive, an attorney general opinion is neither conclusive nor binding, and the
recipient of it is free to follow it or not as he or she chooses. 4Otherwise, any executive office could be controlled by the
opinion of the attorney general specifying what the law requires to be done in that office. 5
Footnotes
1 28 U.S.C.A. § 512.
As to the powers, duties, and liabilities of the U.S. Attorney General, see Am. Jur. 2d, Attorney General §§ 45 to 53.
2 Lewis Pub. Co. v. Morgan, 229 U.S. 288, 33 S. Ct. 867, 57 L. Ed. 1190 (1913); Pueblo of Taos v. Andrus, 475 F.
Supp. 359 (D.D.C. 1979).

§ 6. Role of Attorney General in advising administrative agencies, 2 Am. Jur. 2d...
3 U.S. Bedding Co. v. U.S., 55 Ct. Cl. 459, 1920 WL 656 (1920).
4 League of United Latin American Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 26 Fed. R. Serv. 3d 1379
(5th Cir. 1993) (rejected on other grounds by, U.S. v. Charleston County, S.C., 365 F.3d 341 (4th Cir. 2004))
(applying Texas law); Frazier v. State By and Through Pittman, 504 So. 2d 675, 39 Ed. Law Rep. 417 (Miss. 1987);
Follmer v. State, 94 Neb. 217, 142 N.W. 908 (1913).
5 Follmer v. State, 94 Neb. 217, 142 N.W. 908 (1913).

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§ 7. Role of Attorney General in advising administrative..., 2 Am. Jur. 2d...
Administrative Law
I. Introduction
A. In General
§ 7. Role of Attorney General in advising administrative agencies—Provision of legal services

Under federal law, when, in the opinion of the head of an executive department or agency, the interests of the United States
require the service of counsel on the examination of any witness concerning any claim, or on the legal investigation of any
claim, pending in the department or agency, he or she will notify the Attorney General. The notification must give the
Attorney General all the facts necessary to enable him or her to furnish proper professional service in attending the
examination or making the investigation, and the Attorney General will provide for that service. 1
Footnotes
1 28 U.S.C.A. § 514.

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§ 8. Administrative Conference of United States, 2 Am. Jur. 2d Administrative Law § 8
Administrative Law
I. Introduction
A. In General
§ 8. Administrative Conference of United States

The Administrative Conference Act establishes the Administrative Conference of the United States. 1The purposes of the Act
are:2
(1) to provide suitable arrangements through which federal agencies, assisted by outside experts, may cooperatively study
mutual problems, exchange information, and develop recommendations for action by proper authorities to the end that
private rights may be fully protected and regulatory activities and other federal responsibilities may be carried out
expeditiously in the public interest;
(2) to promote more effective public participation and efficiency in the rulemaking process;
(3) to reduce unnecessary litigation in the regulatory process;
(4) to improve the use of science in the regulatory process; and
(5) to improve the effectiveness of laws applicable to the regulatory process.

To carry out its stated purposes, the Administrative Conference is empowered to:3
(1) study the efficiency, adequacy, and fairness of the administrative procedure used by administrative agencies in carrying
out their programs, and make appropriate recommendations to the agencies, the President, Congress, or the Judicial
Conference of the United States;
(2) arrange for interchange among agencies of information potentially useful in improving administrative procedure;
(3) collect information and statistics from agencies and publish such reports as it considers useful for evaluating and
improving administrative procedure;
(4) enter into arrangements with any administrative agency or major organizational unit within an agency pursuant to which
the Conference performs any of the prescribed functions; and
§ 8. Administrative Conference of United States, 2 Am. Jur. 2d Administrative Law § 8
(5) provide assistance in response to requests relating to the improvement of administrative procedure in foreign countries,
subject to the concurrence of the Secretary of State, the Administrator of the Agency for International Development, or the
Director of the United States Information Agency, as appropriate, except that such assistance will be limited to the analysis
of issues relating to administrative procedure, the provision of training of foreign officials in administrative procedure, and
the design or improvement of administrative procedure, where the expertise of members of the Conference is indicated;
and such assistance may only be undertaken on a fully reimbursable basis, including all direct and indirect administrative
costs.
Footnotes
1 5 U.S.C.A. §§ 591 to 596.
2
5 U.S.C.A. § 591.
3 5 U.S.C.A. § 594.

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§ 9. Administrative Conference of United States—Membership, 2 Am. Jur. 2d...
Administrative Law
I. Introduction
A. In General
§ 9. Administrative Conference of United States—Membership

The Administrative Conference is composed of not more than 101 nor less than 75 appointed members. 1The Conference is
composed of:2
(1) a full-time chairman, appointed for a five-year term by the President with the advice and consent of the Senate;
(2) the chairman of each independent regulatory board or commission, or an individual designated by the board or
commission;
(3) the head of each executive department or other administrative agency which is designated by the President, or an
individual designated by the head;
(4) one or more appointees from a board, commission, department, or agency as designated by the head thereof with the
approval of the board or commission;
(5) individuals appointed by the President to membership on the Council who are not otherwise members of the Conference;
and
(6) not more than 40 other members appointed for two-year terms by the chairman, with the approval of the Council, such as
members of the practicing bar, scholars in the field of administrative law or government, or others specially knowledgeable
or experienced in federal administrative procedure.
Members of the Conference, except the chairman, are not entitled to pay for service. However, members appointed from
outside the federal government are entitled to travel expenses, including per diem instead of subsistence. 3
Footnotes

§ 9. Administrative Conference of United States—Membership, 2 Am. Jur. 2d...
1 5 U.S.C.A. § 593(a).
2 5 U.S.C.A. § 593(b).
3 5 U.S.C.A. § 593(c).

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§ 10. Administrative Conference of United States—Organization, 2 Am. Jur. 2d...
Administrative Law
I. Introduction
A. In General
§ 10. Administrative Conference of United States—Organization

The Administrative Conference is organized into three parts:

(1) the chairman, who is the Conference’s chief executive and reports to the President and the Congress; 1
(2) an 11-member Council which calls the Conference into session, proposes bylaws and regulations, and makes
recommendations;2and
(3) the Conference itself, constituting the Assembly of the Conference, which adopts recommendations, bylaws, and
regulations.3
Footnotes
1 5 U.S.C.A. § 595(c).
2 5 U.S.C.A. § 595(b).
3 5 U.S.C.A. § 595(a).

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Research References, 2 Am. Jur. 2d Administrative Law I B Refs.
2 Am. Jur. 2d Administrative Law I B Refs.
Administrative Law
I. Introduction
B. Administrative Procedure Acts
Research References

A.L.R. Library
West’s A.L.R. Digest, Administrative Law and Procedure 4.1, 310
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§ 11. Generally, 2 Am. Jur. 2d Administrative Law § 11
Administrative Law
I. Introduction
1. Federal Administrative Procedure Act
§ 11. Generally


As to what the Administrative Procedure Act is, generally, see Federal Procedure, L. Ed., Administrative Procedure
[Westlaw®: Search Query]
The Federal Administrative Procedure Act1is a remedial statute,2designed to insure uniformity, impartiality, and fairness in
the procedures employed by federal administrative agencies. 3Its enactment was meant to bring uniformity to a field full of
variation and diversity.4The Act does not create substantive rights on which a claim for relief can be based. 5
The provisions of the Act embody a comprehensive regulatory scheme, governing such aspects of agency action as
investigations,6adjudications,7rulemaking,8licensing,9and open meeting and disclosure requirements,10as well as providing for
judicial review of administrative proceedings.11Provision is also made for the representation of parties before administrative
agencies.12
Footnotes
1 5 U.S.C.A. §§ 551 to 559.
2 Pan-Atlantic S. S. Corp. v. Atlantic Coast Line R. Co., 353 U.S. 436, 77 S. Ct. 999, 1 L. Ed. 2d 963 (1957); Home
Loan Bank Bd. v. Mallonee, 196 F.2d 336 (9th Cir. 1952).
3 Morton v. Ruiz, 415 U.S. 199, 94 S. Ct. 1055, 39 L. Ed. 2d 270 (1974).
4 Dickinson v. Zurko, 527 U.S. 150, 119 S. Ct. 1816, 144 L. Ed. 2d 143 (1999).
5 Furlong v. Shalala, 156 F.3d 384 (2d Cir. 1998); Walker v. Secretary of Treasury, I.R.S., 713 F. Supp. 403 (N.D. Ga.
1989).
6 §§ 101 to 109.
7 §§ 258 to 262.
8 §§ 147 to 162.
9 §§ 241 to 257.
10 §§ 88 to 100.
11 §§ 383 to 397.
12 §§ 309 to 313.

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§ 12. Construction, 2 Am. Jur. 2d Administrative Law § 12
Administrative Law
I. Introduction
§ 12. Construction

Being a remedial statute,1the Federal Administrative Procedure Act2must be given a liberal interpretation,3in the light of, and
to give effect to, its purposes.4The Act is not violative of the 14th Amendment to the United States Constitution. 5
The provisions of the Act do not limit or repeal additional requirements imposed by statute or otherwise recognized by
law.6Even in circumstances where an adjudication is not required to be held pursuant to the provisions of the Act, as where
the proceedings are not contemplated by or are beyond the scope of the Act, an agency is nevertheless constitutionally
required to observe the essentials of due process.7Similarly, even though the circumstances may be such that an agency is not
required to comply with the hearing requirements of the Act, where the statute under which the agency is acting permits such
action only “after hearing,” the agency is required to accord the hearing specified. 8It is always within an agency’s discretion
to afford parties more procedure than required by the Act. 9
Observation:
Subsequent statutes may not be held to supersede or modify the provisions of the Administrative Procedure Act except to the
extent that they do so expressly.10This provision forbids amendments of the Act by implication.11

Footnotes
1 § 11.
2 5 U.S.C.A. §§ 551 to 559.
3 Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S. Ct. 591, 99 L. Ed. 868 (1955).
4 Pan-Atlantic S. S. Corp. v. Atlantic Coast Line R. Co., 353 U.S. 436, 77 S. Ct. 999, 1 L. Ed. 2d 963 (1957).
5 Silverton v. Department of Treasury, 449 F. Supp. 1004 (C.D. Cal. 1978), judgment aff’d, 644 F.2d 1341 (9th Cir.
1981).
6 5 U.S.C.A. § 559.
7 U.S. v. Libby, McNeil & Libby, 14 Alaska 37, 107 F. Supp. 697 (Terr. Alaska 1952).
As to adjudications, generally, see §§ 258 to 382.
8 U.S. v. Florida East Coast Ry. Co., 410 U.S. 224, 93 S. Ct. 810, 35 L. Ed. 2d 223 (1973).
9 Chrysler Corp. v. Brown, 441 U.S. 281, 99 S. Ct. 1705, 60 L. Ed. 2d 208 (1979).
10 5 U.S.C.A. § 559.
11 Five Points Road Joint Venture v. Johanns, 542 F.3d 1121 (7th Cir. 2008).

Works.

§ 13. Definitions, 2 Am. Jur. 2d Administrative Law § 13
Administrative Law
I. Introduction
§ 13. Definitions

The Federal Administrative Procedure Act provides definitions of various terms used in the Act, including: 1
• agency
• person
• party
• rule and rulemaking
• order
• adjudication
• license and licensing
• sanction
• relief
• agency proceeding
• agency action
• ex parte communication
The definitions of terms included in the Federal Administrative Procedure Act may on occasion provide a basis for

determining what is meant by similar terms used in other statutes relating to administrative procedure. 2
Footnotes
1 5 U.S.C.A. § 551.
2 U.S. v. Florida East Coast Ry. Co., 410 U.S. 224, 93 S. Ct. 810, 35 L. Ed. 2d 223 (1973).

Works.

Administrative Law
I. Introduction
2. State Administrative Procedure Acts
§ 14. Generally

States have enacted administrative procedure statutes based on various Model Acts. The Model State Administrative
Procedure Act was issued in 1981.1The Revised Model State Administrative Procedure Act was issued in 2010.2
Comment:
The 2010 Act is shorter and less detailed than the 1981 Act. The 2010 Act is designed to ensure fairness in administrative
proceedings, increase public access to the law administered by agencies, and promote efficiency in agency proceedings by
providing for the extensive use of electronic technology by state governments. The 2010 Act is streamlined when compared to the
1981 Act and has been drafted to be less detailed and less comprehensive.3
The 2010 Act provides for a uniform minimum set of procedures to be followed by agencies subject to the Act. 4The Act
applies to an agency unless the agency is expressly exempted by a statute of the enacting state. 5The 2010 Act creates only
procedural rights and imposes only procedural duties. 6
Similarly, the 1981 revision of the Model Act states that it applies to all agencies and all proceedings not expressly
exempted7and that it creates only procedural rights and imposes only procedural duties.8An administrative procedure statute
thus does not create substantive legal rights on which a claim for relief can be based; rather, such substantive legal rights
must exist either by statutory language, by the agency’s rules and regulations, or by some constitutional command. 9

Footnotes
1 Model State Administrative Procedure Act §§ 1-101 to 5-205 (1981).
2 Revised Model State Administrative Procedure Act §§ 101 to 803 (2010).
3 Prefatory Note to: Revised Model State Administrative Procedure Act (2010).
5 Revised Model State Administrative Procedure Act § 103(a) (2010).
7 Model State Administrative Procedure Act § 1-103(a) (1981).
8 Model State Administrative Procedure Act § 1-103(b) (1981).
9 Romer v. Board of County Com’rs of County of Pueblo, Colo., 956 P.2d 566 (Colo. 1998), as modified on other
grounds on denial of reh’g, (Apr. 27, 1998).

Works.

§ 15. Purposes and functions, 2 Am. Jur. 2d Administrative Law § 15
Administrative Law
I. Introduction
§ 15. Purposes and functions

A state administrative procedure act may have several purposes. Such an act may be designed to achieve uniformity among
the various agencies of the State with respect to the development of suitable procedural safeguards 1and to simplify the
administrative process and provide the public with a more certain administrative procedure, thereby insuring that the public
will receive due process and significantly improve the fairness of treatment. 2Such an act seeks to balance a state’s interest in
efficient administration against individuals’ interest in fairness. 3It provides a standard framework of fair and appropriate
procedures for agencies that are responsible for both the administration and adjudication of their respective statutes. 4The
passing of an administrative procedure statute will ensure that those persons or entities whom a regulation will affect have a
voice in its creation, as well as notice of the law’s requirements so that they can conform their conduct accordingly. 5
Footnotes
1 Villani v. Berle, 91 Misc. 2d 603, 398 N.Y.S.2d 796 (Sup 1977); In re Board of County Com’rs, Sublette County,
2001 WY 91, 33 P.3d 107 (Wyo. 2001) (due process).
2 School Bd. of Palm Beach County v. Survivors Charter Schools, Inc., 3 So. 3d 1220, 242 Ed. Law Rep. 962 (Fla.
2009).
3 Department of Health and Mental Hygiene v. Chimes, Inc., 343 Md. 336, 681 A.2d 484 (1996).
4 Coleman v. Anne Arundel County Police Dept., 369 Md. 108, 797 A.2d 770 (2002).
5 Tidewater Marine Western, Inc. v. Bradshaw, 14 Cal. 4th 557, 59 Cal. Rptr. 2d 186, 927 P.2d 296 (1996).

§ 15. Purposes and functions, 2 Am. Jur. 2d Administrative Law § 15

Works.

Administrative Law
I. Introduction
§ 16. Construction

A state administrative procedure act ought to be construed to achieve the purposes intended by the legislature.1The legislature
is assumed to have intended for all of the provisions in the state administrative procedure statute to have a field of
operation.2If the act is applicable to a particular agency, both the act and statutes specific to that agency should be read
together and harmonized to the extent possible; however, if a provision of the act and the agency’s statute conflict, the
agency-specific provision controls.3
Throughout the Revised Model State Administrative Procedure Act, there are provisions that refer generally to other state
laws governing related topics. When specific state laws are inconsistent with the provisions of the 2010 Act, those specific
state laws will be controlling.4
The 1981 version of the Model State Administrative Procedure Act states that the procedural rights and duties created by the
Act are in addition to those created and imposed by other statutes. To the extent that any other statute would diminish a right
created or duty imposed by the Act, the other statute is superseded by the Act unless the other statute expressly provides
otherwise.5An agency may grant procedural rights to persons in addition to those conferred by the Act so long as rights
conferred upon other persons by any provision of law are not substantially prejudiced. 6
Footnotes
1 Powell v. North Carolina Dept. of Transp., 209 N.C. App. 284, 704 S.E.2d 547 (2011); Basin Elec. Power Co-op. v.
Bowen, 979 P.2d 503 (Wyo. 1999).
2 Ex parte Nixon, 729 So. 2d 277 (Ala. 1998).

3 V Bar Ranch LLC v. Cotten, 233 P.3d 1200 (Colo. 2010).

6 Model State Administrative Procedure Act § 1-103(c) (1981).

Works.

§ 17. Construction—Severance of provisions for invalidity, 2 Am. Jur. 2d Administrative...
Administrative Law
I. Introduction
§ 17. Construction—Severance of provisions for invalidity

Pursuant to the Model State Administrative Procedure Act, if any provision of the Act or the application thereof to any
person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act which can be
given effect without the invalid provision or application. For this purpose, the provisions of the Act are severable.1
Footnotes
1 Model State Administrative Procedure Act § 1-109 (1981).

Works.

Administrative Law
I. Introduction
§ 18. Definitions

Both the Model Administrative Procedure Act and the Revised Model Administrative Procedure Act provide definitions of
key terms used throughout the respective Acts. Both Acts define the following terms: 1
• agency
• agency action
• agency head
• license
• order
• party
• person
• law or provision of law
• rule and rulemaking

The list of definitions in the 2010 Act is a more extensive list than that provided in the 1981 Act. 2Many of the new definitions
result from the technological development of the Internet and the widespread use of electronic media by governmental
entities.3

Footnotes
1 Model State Administrative Procedure Act § 1-102 (1981); Revised Model State Administrative Procedure Act § 102
(2010).
2 Revised Model State Administrative Procedure Act § 102(1) to (33) (2010).

Works.

§ 19. Suspension of Act by Governor or Attorney General;..., 2 Am. Jur. 2d...
Administrative Law
I. Introduction
§ 19. Suspension of Act by Governor or Attorney General; emergency rule

The 1981 version of the Model State Administrative Procedure Act provides that a state act may adopt a provision allowing
or requiring the Governor by executive order or the Attorney General by rule, as the state statute designates, to suspend, in
whole or in part, one or more provisions of the Act, to the extent necessary to avoid a denial of funds or services from the
United States which would otherwise be available to the State. The Governor by executive order or the Attorney General by
rule must declare the termination of a suspension as soon as it is no longer necessary to prevent the loss of funds or services
from the United States.1An executive order applicable to such suspension may be made subject to the requirements applicable
to the adoption and effectiveness of a rule. 2If any provision of the Act is so suspended, the Governor or the Attorney General
must promptly report the suspension to the legislature or other designated authority. The report must include
recommendations concerning any desirable legislation that may be necessary to conform the Act to federal law. 3
Observation:
The Revised Model State Administrative Procedure Act invokes the emergency rule in this situation; if an agency finds that the
loss of federal funding for an agency program requires the immediate adoption of an emergency rule and publishes in a record its
reasons for that finding, the agency, without prior notice or hearing or on any abbreviated notice and hearing that it finds
practicable, may adopt an emergency rule without complying with the statutory requirements. 4

§ 19. Suspension of Act by Governor or Attorney General;..., 2 Am. Jur. 2d...
Footnotes
As to requirements for the adoption and effectiveness of rules, see §§ 183 to 206.
3 Model State Administrative Procedure Act § 1-104(c) (1981).
4 Revised Model State Administrative Procedure Act § 309 (2010).

Works.

Research References, 2 Am. Jur. 2d Administrative Law II A Refs.
2 Am. Jur. 2d Administrative Law II A Refs.
Administrative Law
II. Administrative Agencies
A. Introduction
Research References

West’s Key Number Digest, Administrative Law and Procedure 5 to 7, 101 to 108
A.L.R. Library
West’s A.L.R. Digest, Administrative Law and Procedure 5 to 7, 101 to 108
Works.

§ 20. Creation and establishment, 2 Am. Jur. 2d Administrative Law § 20
Administrative Law
A. Introduction
1. In General
§ 20. Creation and establishment

West’s Key Number Digest, Administrative Law and Procedure 5, 101 to 104
An agency must be created by constitution,1by statute,2by agency action,3or by executive order.4Congress,5state

legislatures,6and municipal corporations7may create administrative agencies. The executive also may create administrative
agencies, especially investigative agencies and particularly under statutes so providing.8Sometimes, as in the field of labor
relations, federal statutes creating administrative agencies have a parallel in state statutes.9
Footnotes
1 League General Ins. Co. v. Michigan Catastrophic Claims Ass’n, 435 Mich. 338, 458 N.W.2d 632 (1990); Petition of
Rhode Island Bar Ass’n, 118 R.I. 489, 374 A.2d 802 (1977).
2 Kentucky Retirement Systems v. Bowens, 281 S.W.3d 776 (Ky. 2009); League General Ins. Co. v. Michigan
Catastrophic Claims Ass’n, 435 Mich. 338, 458 N.W.2d 632 (1990); Petition of Rhode Island Bar Ass’n, 118 R.I. 489,
374 A.2d 802 (1977).
3 League General Ins. Co. v. Michigan Catastrophic Claims Ass’n, 435 Mich. 338, 458 N.W.2d 632 (1990).
4 Petition of Rhode Island Bar Ass’n, 118 R.I. 489, 374 A.2d 802 (1977).
5 Wiener v. U.S., 357 U.S. 349, 78 S. Ct. 1275, 2 L. Ed. 2d 1377 (1958).
6 East Jeffersontown Imp. Ass’n v. Louisville & Jefferson County Planning & Zoning Commission, 285 S.W.2d 507
(Ky. 1955); Molina v. Games Management Services, 58 N.Y.2d 523, 462 N.Y.S.2d 615, 449 N.E.2d 395, 40
A.L.R.4th 655 (1983); Wall v. Fenner, 76 S.D. 252, 76 N.W.2d 722 (1956).

§ 20. Creation and establishment, 2 Am. Jur. 2d Administrative Law § 20
7 Northwestern Laundry v. City of Des Moines, 239 U.S. 486, 36 S. Ct. 206, 60 L. Ed. 396 (1916).
8 Peters v. Hobby, 349 U.S. 331, 75 S. Ct. 790, 99 L. Ed. 1129 (1955).
9 Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U.S. 767, 67 S. Ct. 1026, 91 L. Ed. 1234 (1947).

Works.

§ 21. Definition of “agency” under Federal Administrative..., 2 Am. Jur. 2d...
Administrative Law
A. Introduction
1. In General
§ 21. Definition of “agency” under Federal Administrative Procedure Act


As to administrative agencies and their powers, generally, see Federal Procedure, L. Ed., Administrative Procedure
For purposes of the Federal Administrative Procedure Act, the term “agency” means each authority of the government of the
United States whether or not it is within or subject to review by another agency 1and whether or not Congress labels it an
agency.2Certain entities are expressly excluded from the Act3while others have been deemed excluded by the courts. 4
Observation:
The President of the United States is not considered an agency within the meaning of the Administrative Procedure Act. 5

§ 21. Definition of “agency” under Federal Administrative..., 2 Am. Jur. 2d...
CUMULATIVE SUPPLEMENT
Cases:
The State Department is an agency for purposes of the Administrative Procedure Act (APA). 5 U.S.C.A. § 551 et seq. Emami
v. Nielsen, 365 F. Supp. 3d 1009 (N.D. Cal. 2019).
[END OF SUPPLEMENT]
Footnotes
1 5 U.S.C.A. § 551(1).
2 Government Nat. Mortg. Ass’n v. Terry, 608 F.2d 614, 51 A.L.R. Fed. 863 (5th Cir. 1979).
3 5 U.S.C.A. § 551(1)(A) to (H).
4 Munoz-Mendoza v. Pierce, 711 F.2d 421 (1st Cir. 1983); Southwest Williamson County Community Ass’n, Inc. v.
Slater, 173 F.3d 1033, 1999 FED App. 0158P (6th Cir. 1999); Fund for Animals, Inc. v. Florida Game and Fresh
Water Fish Com’n, 550 F. Supp. 1206 (S.D. Fla. 1982).
5 Franklin v. Massachusetts, 505 U.S. 788, 112 S. Ct. 2767, 120 L. Ed. 2d 636 (1992); Motions Systems Corp. v. Bush,
437 F.3d 1356 (Fed. Cir. 2006).

Works.

§ 22. Definition of “agency” under state administrative..., 2 Am. Jur. 2d...
Administrative Law
A. Introduction
1. In General
§ 22. Definition of “agency” under state administrative procedure acts

The Revised Model State Administrative Procedure Act defines an “agency” as a state board, authority, commission,
institution, department, division, office, officer, or other state entity that is authorized by state law to make rules or to
adjudicate. The term does not include the Governor, the legislature body, or the judiciary. 1
Pursuant to the Model State Administrative Procedure Act, the term “agency” means a board, commission, department,
officer, or other administrative unit of the State, including the agency head and one or more members of the agency head or
agency employees or other persons directly or indirectly purporting to act on behalf or under the authority of the agency head.
The term does not include the legislature or the courts or the Governor, as the particular state statute dictates, in the exercise
of powers derived directly and exclusively from the constitution of the state. The term does not include a political subdivision
of the State or any of the administrative units of a political subdivision but it does include a board, commission, department,
officer, or other administrative unit created or appointed by joint or concerted action of an agency and one or more political
subdivisions of the State or any of their units. To the extent it purports to exercise authority subject to any provision of the
Act, an administrative unit otherwise qualifying as an “agency” must be treated as a separate agency even if the unit is
located within or subordinate to another agency. 2
Under some authority, an “administrative agency” is a governmental authority, other than a court and other than a legislative
body, which affects the rights of private parties through either adjudication or rulemaking.3Some state acts require that the
agency have statewide jurisdiction.4Other state versions define “agency” in terms of particular state programs. In such cases,
an “agency” is a body in which the legislature has proposed general powers of administration of a particular state program in
connection with which it has been given statutory authority to act for the State in the implementation of that program. 5Under
other state statutes, state entities with the power to hire and fire employees effectively engage in the resolution of contested
cases and thus are “agencies” as defined under the statute. 6

Footnotes
1 Revised Model State Administrative Procedure Act § 102(3) (2010).
2 Model State Administrative Procedure Act § 1-102(1) (1981).
3 Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 (2012).
4 Staeheli v. City of St. Paul, 732 N.W.2d 298 (Minn. Ct. App. 2007).
5 Catholic Family and Community Services v. Commission on Human Rights and Opportunities, 3 Conn. App. 464, 489
A.2d 408 (1985).
6 Krentz v. Robertson, 228 F.3d 897 (8th Cir. 2000) (applying Missouri law).

Works.

Administrative Law
A. Introduction
1. In General
§ 23. Definition of “agency” under state administrative procedure acts—Agencies as state, not
local, entities

The state administrative procedure acts generally apply to state entities and not local ones. 1In fact, the Model State
Administrative Procedure Act expressly excludes a political subdivision of the State or any of the administrative units of a
political subdivision unless joint or concerted action is involved. 2Accordingly, governmental entities established by
municipalities3or counties4to perform in a wholly local capacity and to deal with problems on a local basis and which are
independent from any statewide system are not state agencies within the meaning of the state acts. For instance, a city council
is not an agency under such an act.5
Whether an entity is a state agency may depend on the level of state control over the agency. State status is determined by a
review of all the relevant characteristics which, when considered together, indicate the overall character of the entity. The fact
that an entity is created by statute does not dispositively indicate state status. 6Nor does the fact that an entity is made an
instrumentality of the State for limited purposes make it a state agency; instead, this indicates that the entity should remain
independent unless brought within the scope of the directive at issue. 7
Footnotes
1 Basurto v. Imperial Irrigation District, 211 Cal. App. 4th 866, 150 Cal. Rptr. 3d 145 (4th Dist. 2012); In re City of
Shelley, 151 Idaho 289, 255 P.3d 1175 (2011); Lipscomb v. Tucker County Com’n, 197 W. Va. 84, 475 S.E.2d 84
(1996).
2 § 22.
3 Gibson v. Ada County Sheriff’s Dept., 139 Idaho 5, 72 P.3d 845 (2003); Hammann v. City of Omaha, 227 Neb. 285,

417 N.W.2d 323 (1987); Izydore v. City of Durham (Durham Bd. of Adjustment), 746 S.E.2d 324 (N.C. Ct. App.
2013), review denied, 749 S.E.2d 851 (N.C. 2013).
4 Rubinstein v. Sarasota County Public Hosp. Bd., 498 So. 2d 1012 (Fla. 2d DCA 1986); Terrazas v. Blaine County ex
rel. Bd. of Com’rs, 147 Idaho 193, 207 P.3d 169 (2009); Vitek v. Bon Homme County Bd. of Com’rs, 2002 SD 100,
650 N.W.2d 513 (S.D. 2002).
5 Hawkeye Outdoor Advertising, Inc. v. Board of Adjustment of City of Algona, 356 N.W.2d 544 (Iowa 1984).
6 League General Ins. Co. v. Michigan Catastrophic Claims Ass’n, 435 Mich. 338, 458 N.W.2d 632 (1990).
As to the creation of administrative agencies by statute, see § 20.
7 Cohen v. Board of Trustees of University of Medicine and Dentistry of New Jersey, 240 N.J. Super. 188, 572 A.2d
1191, 59 Ed. Law Rep. 1105 (Ch. Div. 1989).

Works.

§ 24. Agencies as judicial bodies or courts, 2 Am. Jur. 2d Administrative Law § 24
Administrative Law
A. Introduction
1. In General
§ 24. Agencies as judicial bodies or courts

West’s Key Number Digest, Administrative Law and Procedure 107
Administrative agencies are not courts.1They are not part of the judicial system, nor are they judicial bodies or
tribunals.2Administrative agencies have no general judicial powers.3
A board or tribunal exercises a judicial function, however, if it decides a dispute of adjudicative fact or if a statute requires it
to act in a judicial manner.4Judicial functions performed by administrative agencies or political subdivisions are those with
which a court might have been charged in the first instance or functions courts have historically performed or did perform
prior to the creation of an administrative body.5
Observation:
Administrative agencies often perform judicial or quasi-judicial functions in response to the complexities of modern government,
economy, and technology, and this delegation of administrative decisional authority is not only possible but also desirable. 6
Footnotes
1 Dickinson v. U.S., 346 U.S. 389, 74 S. Ct. 152, 98 L. Ed. 132 (1953); State ex rel. Stenberg v. Murphy, 247 Neb. 358,
527 N.W.2d 185 (1995); Ohio Fresh Eggs, L.L.C. v. Boggs, 183 Ohio App. 3d 511, 2009-Ohio-3551, 917 N.E.2d 833
§ 24. Agencies as judicial bodies or courts, 2 Am. Jur. 2d Administrative Law § 24
(10th Dist. Franklin County 2009).

2 People v. Western Air Lines, 42 Cal. 2d 621, 268 P.2d 723 (1954) (public service commission); State ex rel. Stenberg
v. Murphy, 247 Neb. 358, 527 N.W.2d 185 (1995).
3 Murray v. Neth, 279 Neb. 947, 783 N.W.2d 424 (2010).
4 Hawkins v. City of Omaha, 261 Neb. 943, 627 N.W.2d 118 (2001).
5 Brown v. Board of Educ., Unified School Dist. No. 333, Cloud County, 261 Kan. 134, 928 P.2d 57, 114 Ed. Law Rep.
1221 (1996).
6 Mitchell v. Nixon, 351 S.W.3d 676 (Mo. Ct. App. W.D. 2011).
As to quasi-judicial functions in this regard, see § 25.

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§ 25. Agencies as judicial bodies or courts—Quasi-judicial..., 2 Am. Jur. 2d...
Administrative Law
A. Introduction
1. In General
§ 25. Agencies as judicial bodies or courts—Quasi-judicial functions

Administrative proceedings may be considered quasi-judicial if a hearing is held, both parties may participate, the presiding
officer has subpoena power over witnesses, and the body has the power to take remedial action. 1An administrative agency
acts in a quasi-judicial manner when the agency hears the view of opposing sides presented in the form of written and oral
testimony, examines the record, and makes findings of fact. 2
As a general matter, whenever an entity which normally acts as a legislative body applies general policy to particular persons
in their private capacities, instead of passing on general policy or the rights of individuals in the abstract, it is functioning in a
quasi-judicial capacity.3A function that is not a true judicial function may be a quasi-judicial function, which involves a
discretionary act of a judicial nature taken by a body empowered to investigate facts, weigh evidence, and draw conclusions
as the basis for official actions.4
Footnotes
1 Boice v. Unisys Corp., 50 F.3d 1145 (2d Cir. 1995) (applying New York law).
2 In re North Metro Harness, Inc., 711 N.W.2d 129 (Minn. Ct. App. 2006).
3 Cabana v. Kenai Peninsula Borough, 21 P.3d 833 (Alaska 2001).
When an administrative board has the power to hear and determine whether a certain state of facts warrants the
application of a certain law, it is acting in a quasi-judicial manner. A. Miner Contracting, Inc. v. Toho-Tolani County
Imp. Dist., 233 Ariz. 249, 311 P.3d 1062 (Ct. App. Div. 1 2013), review denied, (Mar. 21, 2014).
1221 (1996).
§ 25. Agencies as judicial bodies or courts—Quasi-judicial..., 2 Am. Jur. 2d...
Quasi-judicial decisions are characterized by: (1) the investigation into a disputed claim and the weighing of
evidentiary facts; (2) the application of those facts to a prescribed standard; and (3) a binding decision regarding the
disputed claim. In re Jensen Field Relocation Claims Jensen Field, Inc., 817 N.W.2d 724, 282 Ed. Law Rep. 666
(Minn. Ct. App. 2012).

Works.

§ 26. Agencies as legislative or executive, 2 Am. Jur. 2d Administrative Law § 26
Administrative Law
A. Introduction
1. In General
§ 26. Agencies as legislative or executive

West’s Key Number Digest, Administrative Law and Procedure 105, 106
While administrative agencies are separate from the judicial branch of the government, they do not clearly belong in all cases
to either of the other two branches of government although certain administrative agencies are considered agents of the
legislative branch of the government.1An administrative agency’s action is quasi-legislative in nature if it appears that the
agency determination is intended to have wide coverage encompassing a large segment of the regulated or general public
rather than an individual or a narrow select group.2”Quasi-legislative actions,” those undertaken by an agency in its
legislative capacity, entail the formulation of a rule to be applied to all future cases.3
In other cases, specific administrative agencies,4or administrative agencies generally,5are deemed to be agents of the
executive. According to some state courts, an administrative agency can play a dual role: in overseeing and managing its
internal operations, it may act in an executive or administrative capacity, and in looking to the future and changing existing
conditions by making a new rule to be applied thereafter within some area of its power, an agency exercises a legislative
function.6
Cases:
While courts have the negative power to disregard an unconstitutional enactment by Congress, they cannot re-write
Congress’s work by creating offices, terms, and the like; such editorial freedom belongs to the Legislature, not the Judiciary.
(Per Chief Justice Roberts, with two justices concurring and four justices concurring in the judgment.) Seila Law LLC v.
Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020).

§ 26. Agencies as legislative or executive, 2 Am. Jur. 2d Administrative Law § 26
[END OF SUPPLEMENT]
Footnotes
1 Nathanson v. N. L. R. B., 344 U.S. 25, 73 S. Ct. 80, 97 L. Ed. 23 (1952); Central R. Co. of N. J. v. Department of
Public Utilities, 7 N.J. 247, 81 A.2d 162 (1951).
2 Northwest Covenant Medical Center v. Fishman, 167 N.J. 123, 770 A.2d 233 (2001).
3 Coachella Valley Unified School Dist. v. State, 176 Cal. App. 4th 93, 98 Cal. Rptr. 3d 9, 247 Ed. Law Rep. 381 (1st
Dist. 2009).
4 Brennan v. Black, 34 Del. Ch. 380, 104 A.2d 777 (1954) (school district); State ex rel. Stenberg v. Murphy, 247 Neb.
358, 527 N.W.2d 185 (1995) (Commission on Law Enforcement and Criminal Justice); Dunham v. Ottinger, 243 N.Y.
423, 154 N.E. 298 (1926) (investigations by attorney general).
5 Barrett v. Tennessee Occupational Safety and Health Review Com’n, 284 S.W.3d 784 (Tenn. 2009).
1221 (1996).
As to independent agencies, generally, see § 27.

Works.

§ 27. Agencies as independent or subordinate, 2 Am. Jur. 2d Administrative Law § 27
Administrative Law
A. Introduction
1. In General
§ 27. Agencies as independent or subordinate

The term “independent” agency or commission is often used1to designate an agency independent of the executive
branch.2Unlike those federal agencies which are subject to presidential supervision through consultation with the cabinet
officers, the many independent agencies are charged by Congress to remain independent of the rest of the executive branch.
However, independence does not mean that a commission or agency must ignore or reject positions espoused by the
President in order to make an informed decision on matters of national interest.3A federal regulatory commission, although
independent of executive-branch control, may be required to give consideration to matters which are the responsibility of
other federal agencies so that consultation with officials of cabinet departments is encouraged in some instances. 4
Alternatively, the term “independent” is used to indicate an agency not subject to a superior head of a department or in
contrast to “subordinate,”5the latter term being applied to bodies whose action is subject to administrative review or revision. 6
Footnotes
1 Com. ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897, 143 A.L.R. 1473 (1942); Chapel v. Com., 197 Va. 406, 89
S.E.2d 337 (1955).
2 Federal Trade Commission v. Ruberoid Co., 343 U.S. 470, 72 S. Ct. 800, 96 L. Ed. 1081 (1952).
3 Westinghouse Elec. Corp. v. U.S. Nuclear Regulatory Com’n, 598 F.2d 759 (3d Cir. 1979).
4 Public Service Commission of State of N. Y. v. Federal Energy Regulatory Commission, 589 F.2d 542 (D.C. Cir.
1978).
5 Cofman v. Ousterhous, 40 N.D. 390, 168 N.W. 826, 18 A.L.R. 219 (1918).
§ 27. Agencies as independent or subordinate, 2 Am. Jur. 2d Administrative Law § 27
6 Joseph Burstyn, Inc. v. Wilson, 303 N.Y. 242, 101 N.E.2d 665 (1951), judgment rev’d on other grounds, 343 U.S.
495, 72 S. Ct. 777, 96 L. Ed. 1098 (1952).

Works.

§ 28. Validity, 2 Am. Jur. 2d Administrative Law § 28
Administrative Law
A. Introduction
2. Statutes Relating to Agencies
§ 28. Validity

Vesting two agencies with the same power does not necessarily render a statute uncertain and therefore unconstitutional.
However, conflict or confusion may arise from possible concurrent exercise of the power. 1
The general rule that a statute may be constitutional in one part and unconstitutional in another, and if the invalid part is
severable from the rest, the portion which is constitutional may stand while that which is unconstitutional is stricken out and
rejected,2has been applied in the case of statutes relating to administrative agencies. 3However, where it is not possible to
separate that part which is constitutional from that which is unconstitutional, the whole statute must fall. 4A provision in an
administrative law statute that valid portions will be enforced even though it is judicially determined that some part or parts
of the statute are invalid is generally carried out by the courts. 5
Footnotes
1 School Dist. No. 3 of Town of Adams v. Callahan, 237 Wis. 560, 297 N.W. 407, 135 A.L.R. 1081 (1941).
2 Am. Jur. 2d, Constitutional Law § 199.
3 Champlin Refining Co. v. Corporation Com’n of State of Okl., 286 U.S. 210, 52 S. Ct. 559, 76 L. Ed. 1062, 86 A.L.R.
403 (1932) (invalid provision for fine and imprisonment); State v. Marana Plantations, Inc., 75 Ariz. 111, 252 P.2d 87
(1953) (unconstitutional delegation of legislative power); Vissering Mercantile Co. v. Annunzio, 1 Ill. 2d 108, 115
N.E.2d 306, 39 A.L.R.2d 728 (1953).
5 Oklahoma v. U.S. Civil Service Com’n, 330 U.S. 127, 67 S. Ct. 544, 91 L. Ed. 794 (1947); Thornbrough v. Williams,
§ 28. Validity, 2 Am. Jur. 2d Administrative Law § 28
225 Ark. 709, 284 S.W.2d 641 (1955); Richards v. City of Columbia, 227 S.C. 538, 88 S.E.2d 683 (1955).
As to the severability provision found in the Model State Administrative Procedure Act, see § 17.

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§ 29. Defects in administration as ground for attacking statute, 2 Am. Jur. 2d...
Administrative Law
A. Introduction
§ 29. Defects in administration as ground for attacking statute

A clear distinction must be made between charges that an act as passed by the legislature is discriminatory, and charges that a
commission is enforcing the act in a discriminatory manner. 1A provision not objectionable on its face may be adjudged
unconstitutional because of its effect in operation. 2However, a statute which is not invalid on its face may not be attacked
because of anticipated improper or invalid action in its administration. 3The possibility that administrative officers will act in
defiance of the policy and standards stated in the delegation of authority is not a ground for objection to the delegation.4In
addition, the failure of a commission to follow necessary procedure in a particular case would at most justify an objection to
the administrative determination rather than to the statute itself. 5
Footnotes
1 Duhame v. State Tax Commission, 65 Ariz. 268, 179 P.2d 252, 171 A.L.R. 684 (1947) (overruled on other grounds
by, Valencia Energy Co. v. Arizona Dept. of Revenue, 191 Ariz. 565, 959 P.2d 1256 (1998)).
3 Yakus v. U. S., 321 U.S. 414, 64 S. Ct. 660, 88 L. Ed. 834 (1944); Senior Citizens League v. Department of Social
Sec. of Wash., 38 Wash. 2d 142, 228 P.2d 478 (1951).
4 Walls v. City of Guntersville, 253 Ala. 480, 45 So. 2d 468 (1950); Ours Properties, Inc. v. Ley, 198 Va. 848, 96
S.E.2d 754 (1957).
5 American Power & Light Co. v. Securities and Exchange Commission, 329 U.S. 90, 67 S. Ct. 133, 91 L. Ed. 103
(1946).

§ 29. Defects in administration as ground for attacking statute, 2 Am. Jur. 2d...

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§ 30. Standing to attack constitutionality, 2 Am. Jur. 2d Administrative Law § 30
Administrative Law
A. Introduction
§ 30. Standing to attack constitutionality

The elementary doctrine that the constitutionality of a legislative act is open to attack only by a person whose rights are
affected thereby1applies to statutes relating to administrative agencies.2The validity of such statutes may not be called into
question in the absence of a showing of substantial harm, actual or impending, to a legally protected interest 3and which
directly results from enforcement of the statute.4
Footnotes
2 Plymouth Coal Co. v. Com. of Pennsylvania, 232 U.S. 531, 34 S. Ct. 359, 58 L. Ed. 713 (1914); State v. Friedkin, 244
Ala. 494, 14 So. 2d 363 (1943); State ex rel. State Bd. of Mediation v. Pigg, 362 Mo. 798, 244 S.W.2d 75 (1951).
3
Gange Lumber Co. v. Rowley, 326 U.S. 295, 66 S. Ct. 125, 90 L. Ed. 85 (1945).
4 Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 43 S. Ct. 470, 67 L. Ed. 839 (1923); Ex parte Anderson, 191
Or. 409, 229 P.2d 633, 29 A.L.R.2d 1051 (1951).
As to when a public officer may question the constitutionality of a statute or ordinance imposing duties upon him or
her, see Am. Jur. 2d, Constitutional Law § 150.

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§ 30. Standing to attack constitutionality, 2 Am. Jur. 2d Administrative Law § 30

Research References, 2 Am. Jur. 2d Administrative Law II B Refs.
2 Am. Jur. 2d Administrative Law II B Refs.
Administrative Law
B. Members and Officers
Research References

West’s Key Number Digest, Administrative Law and Procedure 103.1, 109 to 115, 314
A.L.R. Library
West’s A.L.R. Digest, Administrative Law and Procedure 103.1, 109 to 115, 314
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Administrative Law
1. In General
§ 31. Generally

An administrative agency may come into existence before a majority of its members are appointed. 1Administrative functions
may be vested in interested persons2and in private persons.3Ex officio members of a public body are members for all
purposes.4
Observation:
A state constitution does not prohibit the appointment of legislators to administrative boards and commissions. These boards and
commissions, once members are appointed pursuant to valid legislative enactments in which the principles of bicameralism and
presentment have been fulfilled, then may exercise all the powers that administrative agencies have traditionally exercised in both
the federal and state systems of government.5
Footnotes
1 Liquefied Petroleum Gas Commission v. E. R. Kiper Gas Corp., 229 La. 640, 86 So. 2d 518 (1956).
2 Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 70 S. Ct. 577, 94 L. Ed. 795 (1950).

3 Caminetti v. Pacific Mut. Life Ins. Co. of Cal., 22 Cal. 2d 344, 139 P.2d 908 (1943).
As to the number of members necessary to exercise power, see §§ 79, 80.
4 Louisville & Jefferson County Planning & Zoning Com’n v. Ogden, 307 Ky. 362, 210 S.W.2d 771 (1948).
5 Almond v. Rhode Island Lottery Com’n, 756 A.2d 186 (R.I. 2000).

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§ 32. Appointment, 2 Am. Jur. 2d Administrative Law § 32
Administrative Law
1. In General
§ 32. Appointment

In cases where members of an administrative agency are appointed, the members must be appointed in accordance with the
constitution1and the applicable statutes.2The appointing power determines the fitness of the applicant: whether or not he or
she is the proper one to discharge the duties of the position. The executive power to appoint members of an agency is
unaffected by the rule that the discretion entrusted to an agency must be circumscribed by reasonably definite standards.
Likewise, the courts have no general supervising power over appointments.3However, appointments must meet the minimal
legal standards necessary to comply with the requirements of the statute, and whether such requirements have been met is
subject to judicial review.4
Footnotes
1 Board of Medical Examiners v. Steward, 203 Md. 574, 102 A.2d 248 (1954); Metropolitan Life Ins. Co. v. Boland,
281 N.Y. 357, 23 N.E.2d 532 (1939).
2 Webb v. Workers’ Compensation Com’n, 292 Ark. 349, 730 S.W.2d 222 (1987); Board of Medical Examiners v.
Steward, 203 Md. 574, 102 A.2d 248 (1954); Metropolitan Life Ins. Co. v. Boland, 281 N.Y. 357, 23 N.E.2d 532
(1939).
3 Sanza v. Maryland State Bd. of Censors, 245 Md. 319, 226 A.2d 317 (1967).
4 Webb v. Workers’ Compensation Com’n, 292 Ark. 349, 730 S.W.2d 222 (1987).

§ 32. Appointment, 2 Am. Jur. 2d Administrative Law § 32
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§ 33. Status, 2 Am. Jur. 2d Administrative Law § 33
Administrative Law
1. In General
§ 33. Status

Particular officers and members of administrative agencies or bodies which exercise determinative powers have been
declared to be executive,1administrative, or ministerial officers.2For most purposes, there is no distinction between these
classifications. The terms are used interchangeably 3in stating the general rule that such officers are not judicial officers 4or
judges.5
Footnotes
1 Southern Ry. Co. v. Commonwealth of Virginia ex rel. Shirley, 290 U.S. 190, 54 S. Ct. 148, 78 L. Ed. 260 (1933).
2 State v. Loechner, 65 Neb. 814, 91 N.W. 874 (1902).
As to the status of agencies in this regard, see §§ 24 to 26.
3
Southern Ry. Co. v. Commonwealth of Virginia ex rel. Shirley, 290 U.S. 190, 54 S. Ct. 148, 78 L. Ed. 260 (1933).
4 Pigeon v. Employers’ Liability Assur. Corp., 216 Mass. 51, 102 N.E. 932 (1913); State v. Loechner, 65 Neb. 814, 91
N.W. 874 (1902).
5 Kentucky & I. Bridge Co. v. Louisville & N.R. Co., 37 F. 567 (C.C.D. Ky. 1889).
Administrative law judges are not subject to the constitutional requirement of elected judges. Wooley v. State Farm
Fire and Cas. Ins. Co., 893 So. 2d 746 (La. 2005).

§ 33. Status, 2 Am. Jur. 2d Administrative Law § 33
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§ 34. Effect of change in membership, 2 Am. Jur. 2d Administrative Law § 34
Administrative Law
1. In General
§ 34. Effect of change in membership

Questions with regard to the effect of a change of membership or personnel arise in connection with the power of an agency
to act initially.1It has been found that an agency remains the same although its members’ terms of office expire, and the board
is reconstituted.2A change in personnel occurring during the course of or at the close of an administrative hearing does not as
such give rise to constitutional repugnance in a decision or order made by the administrative tribunal on the basis of the
previous hearing.3
Footnotes
1 Board of Medical Examiners v. Steward, 203 Md. 574, 102 A.2d 248 (1954).
2 Raymond v. Fish, 51 Conn. 80, 1883 WL 1592 (1883).
3 Wilburn v. Astrue, 626 F.3d 999 (8th Cir. 2010).

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Administrative Law
2. Disqualification
a. In General
§ 35. Generally

A.L.R. Library
When will member of federal regulatory board, commission, authority, or similar body be enjoined from participating in
rulemaking or adjudicatory proceeding because of “personal bias or other disqualification” under 5 U.S.C.A. sec. 556(b),
51 A.L.R. Fed. 400
The appropriate remedy for any bias, conflict of interest, or appearance of impropriety is the recusal or disqualification of the
tainted adjudicator.1An administrative officer may be disqualified by express provision of a statute applicable to the
administrative proceeding at issue.2In addition, although the applicable due process standards for the disqualification of
administrators do not rise to the heights of those prescribed for judicial disqualification, 3the common-law rule of
disqualification extends to administrative officers exercising judicial or quasi-judicial functions4such that the mere
appearance of impropriety by an administrative officer is to be avoided although that alone is not sufficient to mandate
recusal.5
The Federal Administrative Procedure Act specifically provides that, in the context of a hearing, a presiding or participating
employee may at any time disqualify him- or herself.6The Revised Model State Administrative Procedure Act provides that a
presiding officer or agency head acting as a final decision maker is subject to disqualification for bias, prejudice, financial
interest, ex parte communications, or any other factor that would cause a reasonable person to question the impartiality of the
presiding officer or agency head.7The Model State Administrative Procedure Act provides that any person serving or
designated to serve alone or with others as a presiding officer is subject to disqualification for bias, prejudice, interest, or any

other cause provided for in the Act or for which a judge is or may be disqualified. 8
Practice Tip:
The party asserting grounds for the disqualification of a tainted adjudicator must timely present the objection either before the
commencement of the proceeding or as soon as the disqualifying facts become known. 9
Although agency members may be disqualified from rulemaking proceedings as well, the standards for disqualification are
not always the same as in the case of adjudication. The burden of proof on parties seeking to disqualify agency members
from rulemaking proceedings is higher because of the constitutionally mandated deference to an administrative agency’s
legislative prerogatives. Parties must support their motion to disqualify by clear and convincing evidence. 10
Footnotes
1 In re Water Use Permit Applications, 94 Haw. 97, 9 P.3d 409 (2000).
2 In re Weston Benefit Assessment Special Road Dist. of Platte County, 294 S.W.2d 353 (Mo. Ct. App. 1956).
3 Spitz v. Board of Examiners of Psychologists, 127 Conn. App. 108, 12 A.3d 1080 (2011).
As to the disqualification of judges to act in a particular case, generally, see Am. Jur. 2d, Judges §§ 86 to 167.
4 Regan v. State Bd. of Chiropractic Examiners, 355 Md. 397, 735 A.2d 991 (1999).
5 Grant v. Senkowski, 146 A.D.2d 948, 537 N.Y.S.2d 323 (3d Dep’t 1989).
As to the disqualification of hearing officers for bias, see §§ 305, 306.
6 5 U.S.C.A. § 556(b).
As to the procedure for disqualification, see § 306.
As to administrative hearings, generally, see §§ 289 to 345.
7 Revised Model State Administrative Procedure Act § 402(c) (2010).
As to disqualification for bias, generally, see §§ 38 to 40.
9 In re Public Utilities Com’n, 125 Haw. 210, 257 P.3d 223 (Ct. App. 2011).
10
Tennessee Cable Television Ass’n v. Tennessee Public Service Com’n, 844 S.W.2d 151 (Tenn. Ct. App. 1992).

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§ 36. Effect of disqualification, 2 Am. Jur. 2d Administrative Law § 36
Administrative Law
2. Disqualification
a. In General
§ 36. Effect of disqualification

The general rule in the federal courts has been that, except in limited circumstances, Congress did not contemplate a grant of
jurisdiction to the courts to prevent abuse or misuse of power by prior constraint, 1and where issues relative to disqualification
are essentially questions of fact, rather than law, proper occasion for court involvement is upon judicial review of agency
action in order to avoid undue delay in the administrative determination. Nevertheless, some courts have found that where the
issues in question are purely legal,2continued participation would amount to a denial of due process;3or upon balancing the
variable factors in the case, and equity so requires, 4an injunction is appropriate.
Some state courts adopt a less restrictive approach to injunctions. Such courts find that disqualification may furnish grounds
for compelling the officer to recuse him- or herself from sitting in the proceeding if he or she does not voluntarily retire, 5or
for enjoining an officer from participation, 6or for prohibiting a board, one member of which is disqualified, from proceeding. 7
A determination made or participated in by a disqualified officer is merely voidable where only the common-law rule as to
disqualification is violated,8and the proceeding is reviewable.9However, if participation by a disqualified officer is prohibited
by statute, the determination may be void.10
Footnotes
1 Securities and Exchange Commission v. R. A. Holman & Co., 323 F.2d 284 (D.C. Cir. 1963).
2 Davis v. Secretary, Dept. of Health, Ed. and Welfare, 262 F. Supp. 124 (D. Md. 1967), judgment aff’d, 386 F.2d 429
(4th Cir. 1967).

§ 36. Effect of disqualification, 2 Am. Jur. 2d Administrative Law § 36
3 Amos Treat & Co. v. Securities and Exchange Commission, 306 F.2d 260 (D.C. Cir. 1962).
4 Davis v. Secretary, Dept. of Health, Ed. and Welfare, 262 F. Supp. 124 (D. Md. 1967), judgment aff’d, 386 F.2d 429
(4th Cir. 1967); Leyden v. Federal Aviation Administration, 315 F. Supp. 1398 (E.D. N.Y. 1970).
5 State v. Aldridge, 212 Ala. 660, 103 So. 835, 39 A.L.R. 1470 (1925).
6 Sussel v. City and County of Honolulu Civil Service Com’n, 71 Haw. 101, 784 P.2d 867 (1989).
7 State ex rel. Barnard v. Board of Educ. of City of Seattle, 19 Wash. 8, 52 P. 317 (1898).
8 City of Naperville v. Wehrle, 340 Ill. 579, 173 N.E. 165, 71 A.L.R. 535 (1930); Stahl v. Board of Sup’rs of Ringgold
County, 187 Iowa 1342, 175 N.W. 772, 11 A.L.R. 185 (1920).
9 Carr v. Duhme, 167 Ind. 76, 78 N.E. 322 (1906).
10 Stahl v. Board of Sup’rs of Ringgold County, 187 Iowa 1342, 175 N.W. 772, 11 A.L.R. 185 (1920); In re Weston
Benefit Assessment Special Road Dist. of Platte County, 294 S.W.2d 353 (Mo. Ct. App. 1956).

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§ 37. Effect of disqualification—Continuation of proceedings;..., 2 Am. Jur. 2d...
Administrative Law
2. Disqualification
a. In General
§ 37. Effect of disqualification—Continuation of proceedings; application of “rule of necessity”

A.L.R. Library
Construction and Application of Rule of Necessity Providing that Administrative or Quasi-judicial Officer Is Not
Disqualified to Determine a Matter Because of Bias or Personal Interest if Case Cannot Be Heard Otherwise, 28
A.L.R.6th 175
Due process considerations do not require a biased administrative agency to forego making a decision which no other entity
is authorized to make.1Under such circumstances, the so-called “rule of necessity” permits an adjudicative body to proceed in
spite of its possible bias or self-interest.2The rule of necessity not only allows but also requires a decision maker to act in a
proceeding when he or she would otherwise be disqualified if jurisdiction is exclusive, and no provision exists for
substitution.3
Observation:
The rule of necessity applies only in situations where the sole adjudicatory body would be precluded from carrying out its function
because of disqualifications.4It is not implicated where recusals based on bias do not deprive the administrative body of a quorum. 5

§ 37. Effect of disqualification—Continuation of proceedings;..., 2 Am. Jur. 2d...
There are ways of relieving the injustice of permitting a biased administrative decision. Whenever the rule of necessity is
invoked and the administrative decision is reviewable, the reviewing court, without altering the law about scope of review,
may and probably should review with special intensity. It makes no sense to show the extreme deference of viewing the
evidence in the light most favorable to an administrative body which is not completely impartial. 6However, this does not
mean that the court should undertake a de novo review. 7The court’s standard of review should be deferential, but it should
also compensate for the possibility that bias may have tainted the agency’s exercise of its expertise. Accordingly, the decision
of a biased administrative agency acting under the rule of necessity should be upheld if the evidence presented at the
administrative hearing would have entitled an objective decision maker to reach the same conclusion. 8
Footnotes
1 Fitzgerald v. City of Maryland Heights, 796 S.W.2d 52 (Mo. Ct. App. E.D. 1990).
2 In re Water Use Permit Applications, 94 Haw. 97, 9 P.3d 409 (2000); Fitzgerald v. City of Maryland Heights, 796
S.W.2d 52 (Mo. Ct. App. E.D. 1990).
3 In re Water Use Permit Applications, 94 Haw. 97, 9 P.3d 409 (2000).
4 Valley v. Rapides Parish School Bd., 118 F.3d 1047, 38 Fed. R. Serv. 3d 408 (5th Cir. 1997); In re Water Use Permit
Applications, 94 Haw. 97, 9 P.3d 409 (2000).
5 Valley v. Rapides Parish School Bd., 118 F.3d 1047, 38 Fed. R. Serv. 3d 408 (5th Cir. 1997).
7 Barker v. Secretary of State’s Office of Missouri, 752 S.W.2d 437 (Mo. Ct. App. W.D. 1988).

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§ 38. Bias, 2 Am. Jur. 2d Administrative Law § 38
Administrative Law
2. Disqualification
b. Particular Grounds
§ 38. Bias

A.L.R. Library
Bias or Interest of Administrative Officer Sitting in Zoning Proceeding as Necessitating Disqualification of Officer or
Affecting Validity of Zoning Decision, 4 A.L.R.6th 263
When will member of federal regulatory board, commission, authority, or similar body be enjoined from participating in
rulemaking or adjudicatory proceeding because of “personal bias or other disqualification” under 5 U.S.C.A. sec. 556(b),
51 A.L.R. Fed. 400
Administrative decision makers must be impartial.1The right to a hearing before an unbiased and impartial administrative
decision maker is the basic requirement of due process and of the statutes.2The Federal Administrative Procedure Act
provides that in administrative hearings, the functions of presiding employees and of employees participating in decisions
must be conducted in an impartial manner.3The Revised Model State Administrative Procedure Act and the Model State
Administrative Procedure Act likewise provide for the disqualification of presiding officers due to bias. 4
Actual bias, rather than the mere potential for bias, must be shown in order to disqualify a hearing tribunal. 5Generally, the test
for bias is whether the circumstances of the case could reasonably be interpreted as having the likely capacity to tempt the
official to depart from a strong public duty.6Bias or prejudice of an agency decision maker related to an issue of law or policy
is not disqualifying; however, personal bias or prejudice going beyond sincere political and philosophical views is another
matter.7Not all allegations of bias or prejudice are of the type that render a proceeding fundamentally unfair or require the
disqualification of a decision maker.8To be disqualifying, the alleged bias of an administrative law judge must stem from an
extrajudicial source or must demonstrate a deep-seated antagonism or favoritism that would make a fair judgment
impossible9and result in an opinion on the merits on some basis other than what the judge learned from participation in the
case.10A substantial showing of personal bias is required to disqualify a hearing officer. 11
Observation:
The test for bias in rulemaking proceedings is different than in adjudication because rulemaking is the type of proceeding where an
agency member’s policy biases gained from experience and expertise become an integral part of the process. 12
Cases:
Due process requires that administrative proceedings in New Mexico be administered by fair and impartial triers of fact who
are at a minimum, disinterested and from any form of bias or predisposition regarding outcome of case. U.S.C.A.
Const.Amend. 14. Lujan v. City of Santa Fe, 89 F. Supp. 3d 1109 (D.N.M. 2015).
The rule of necessity provides a limited exception to the requirement of an unbiased adjudicator for an administrative
proceeding by requiring a biased adjudicator to decide a case if and only if the dispute cannot otherwise be heard. Zlotnick v.
City of Saratoga Springs, 122 A.D.3d 1210, 997 N.Y.S.2d 809 (3d Dep’t 2014).
[END OF SUPPLEMENT]
Footnotes
2 § 292.
3 5 U.S.C.A. § 556(b).
As to disqualification for bias in the hearing context, generally, see § 305.
As to the procedure for disqualification for bias in the hearing context, see § 306.
4 § 35.
5 Jones v. Connecticut Medical Examining Bd., 129 Conn. App. 575, 19 A.3d 1264 (2011), judgment aff’d, 309 Conn.
727, 72 A.3d 1034 (2013); Felder v. Charleston County School Dist., 327 S.C. 21, 489 S.E.2d 191, 120 Ed. Law Rep.
616 (1997).
6 Matter of Bergen County Utilities Authority, 230 N.J. Super. 411, 553 A.2d 849 (App. Div. 1989).
7 Colao v. County Council of Prince George’s County, 109 Md. App. 431, 675 A.2d 148 (1996), aff’d, 346 Md. 342,
697 A.2d 96 (1997).

8 Alb. Bernalillo Co. Water Utility Authority v. NMPRC, 2010-NMSC-013, 148 N.M. 21, 229 P.3d 494 (2010).
9 Reddy v. Commodity Futures Trading Com’n, 191 F.3d 109 (2d Cir. 1999).
10 First Nat. Monetary Corp. v. Weinberger, 819 F.2d 1334 (6th Cir. 1987).
11 Head v. Chicago School Reform Bd. of Trustees, 225 F.3d 794 (7th Cir. 2000); St. Anthony Hosp. v. U.S. Dept. of
Health and Human Services, 309 F.3d 680 (10th Cir. 2002).
12 Tennessee Cable Television Ass’n v. Tennessee Public Service Com’n, 844 S.W.2d 151 (Tenn. Ct. App. 1992).

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§ 39. Bias—Prejudgment of law or facts, 2 Am. Jur. 2d Administrative Law § 39
Administrative Law
2. Disqualification
§ 39. Bias—Prejudgment of law or facts

The standard for disqualification due to prejudgment is different in adjudication proceedings and rulemaking proceedings. 1An
administrative officer exercising judicial or quasi-judicial power is disqualified or incompetent to sit in a proceeding in which
he or she has prejudged the case.2Any administrative decision maker who has made an unalterable prejudgment of operative
adjudicative facts is considered biased.3The test for disqualification is whether a disinterested observer may conclude that the
agency, or its members, have in some measure adjudged the facts, as well as the law, of a case in advance of hearing it.4
Observation:
Administrative officials may question witnesses and possess preconceived views on the legal and policy issues before them.5In the
course of adjudicative proceedings, decision makers frequently make preliminary or collateral determinations against a party, and
absent persuasive evidence of factual bias, there is no reason to assume that these decision makers thereby lose their objectivity.6
In rulemaking proceedings, the standard for prejudgment is not the same as in adjudications. Bias in the form of a crystallized
point of view on issues of law or policy is rarely, if ever, sufficient to disqualify. 7The standard for disqualifying an agency
official from participating in rulemaking proceedings for prejudgment is substantial, and potentially disqualifying statements
by an official must be considered as a whole. 8

§ 39. Bias—Prejudgment of law or facts, 2 Am. Jur. 2d Administrative Law § 39
Footnotes
2 Head v. Chicago School Reform Bd. of Trustees, 225 F.3d 794 (7th Cir. 2000); Kramarski v. Board of Trustees of
Village of Orland Park Police Pension Fund, 402 Ill. App. 3d 1040, 341 Ill. Dec. 954, 931 N.E.2d 851 (1st Dist. 2010).
3 Valley v. Rapides Parish School Bd., 118 F.3d 1047, 38 Fed. R. Serv. 3d 408 (5th Cir. 1997); Financial Solutions and
Associates v. Carnahan, 316 S.W.3d 518 (Mo. Ct. App. W.D. 2010).
4 Board of Educ. of Rich Tp. High School Dist. No. 227 v. Illinois State Bd. of Educ., 2011 IL App (1st) 110182, 358
Ill. Dec. 285, 965 N.E.2d 13, 279 Ed. Law Rep. 391 (App. Ct. 1st Dist. 2011).
5 In re Rattee, 145 N.H. 341, 761 A.2d 1076 (2000).
6 Dodds v. Commission on Judicial Performance, 12 Cal. 4th 163, 48 Cal. Rptr. 2d 106, 906 P.2d 1260 (1995).
8 Housing Study Group v. Kemp, 736 F. Supp. 321 (D.D.C. 1990), order clarified, 739 F. Supp. 633 (D.D.C. 1990).

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§ 40. Bias—Proof and presumptions, 2 Am. Jur. 2d Administrative Law § 40
Administrative Law
2. Disqualification
§ 40. Bias—Proof and presumptions

It is assumed that administrative decision makers will serve with fairness and integrity. 1There is a presumption that they are
objective2and capable of fairly judging a particular controversy on the basis of its own circumstances. 3In addition, there is a
presumption of honesty, integrity,4good faith,5and impartiality6in those serving as adjudicators, which presumption is only
rebutted by a showing of some substantial countervailing reason to conclude that a decision maker is actually biased with
respect to the factual issues being adjudicated.7To overcome the presumption of impartiality, the plaintiff must demonstrate
either actual bias8or the existence of circumstances indicating a probability of bias too high to be constitutionally tolerable. 9
Cases:
County employee failed to overcome presumption that hearing officer was free from bias and establish that officer prejudged
charges against employee by administrator of nursing home, notwithstanding that officer presided over prior related hearing
for employee. Bruso v. Clinton County, 139 A.D.3d 1169, 31 N.Y.S.3d 277 (3d Dep’t 2016).
[END OF SUPPLEMENT]

§ 40. Bias—Proof and presumptions, 2 Am. Jur. 2d Administrative Law § 40
Footnotes
1 Adkins v. Sarah Bush Lincoln Health Center, 129 Ill. 2d 497, 136 Ill. Dec. 47, 544 N.E.2d 733 (1989).
2 Simko v. Ervin, 234 Conn. 498, 661 A.2d 1018 (1995); In re Cross, 617 A.2d 97 (R.I. 1992); Voeltz v. John Morrell &
Co., 1997 SD 69, 564 N.W.2d 315 (S.D. 1997).
3 Lichoulas v. F.E.R.C., 606 F.3d 769 (D.C. Cir. 2010); Kramarski v. Board of Trustees of Village of Orland Park
Police Pension Fund, 402 Ill. App. 3d 1040, 341 Ill. Dec. 954, 931 N.E.2d 851 (1st Dist. 2010).
4 Hasie v. Office of Comptroller of Currency of U.S., 633 F.3d 361 (5th Cir. 2011); Fleming v. Civil Service Com’n of
Douglas County, 280 Neb. 1014, 792 N.W.2d 871 (2011); Champlin’s Realty Associates v. Tikoian, 989 A.2d 427
(R.I. 2010).
5 Head v. Chicago School Reform Bd. of Trustees, 225 F.3d 794 (7th Cir. 2000).
6 Gottstein v. State, Dept. of Natural Resources, 223 P.3d 609 (Alaska 2010); Morongo Band of Mission Indians v. State
Water Resources Control Bd., 45 Cal. 4th 731, 88 Cal. Rptr. 3d 610, 199 P.3d 1142 (2009); State ex rel. Praxair, Inc.
v. Missouri Public Service Com’n, 344 S.W.3d 178 (Mo. 2011).
7 Harline v. Drug Enforcement Admin., 148 F.3d 1199 (10th Cir. 1998).
A party seeking to disqualify an adjudicator in administrative agency proceedings on the basis of bias or prejudice
bears the heavy burden of overcoming the presumption of impartiality. Fleming v. Civil Service Com’n of Douglas
County, 280 Neb. 1014, 792 N.W.2d 871 (2011).
8 Withrow v. Larkin, 421 U.S. 35, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975); Bunnell v. Barnhart, 336 F.3d 1112 (9th Cir.
2003); Clisham v. Board of Police Com’rs of Borough of Naugatuck, 223 Conn. 354, 613 A.2d 254 (1992).
9 Transportation General, Inc. v. Department of Ins., State of Conn., 236 Conn. 75, 670 A.2d 1302 (1996); Northwestern
Bell Telephone Co., Inc. v. Stofferahn, 461 N.W.2d 129 (S.D. 1990).

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§ 41. Improper receipt of evidence, 2 Am. Jur. 2d Administrative Law § 41
Administrative Law
2. Disqualification
§ 41. Improper receipt of evidence

Although an administrative official does not become impartial or unfair merely through becoming familiar with the facts of
the case through the performance of a statutory or administrative duty, 1disqualification may result from evidence being
improperly received. In such a situation, disqualification depends on the facts and circumstances of each case. 2Some courts
allow a decision maker to have a dual role as a witness at one step of the proceedings and as a member of a reviewing body at
a later stage of the same proceedings.3
Footnotes
1 Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 96 S. Ct. 2308, 49 L. Ed. 2d 1 (1976);
Matter of Carberry, 114 N.J. 574, 556 A.2d 314 (1989).
2 Collura v. Board of Police Com’rs of Village of Itasca, 113 Ill. 2d 361, 101 Ill. Dec. 640, 498 N.E.2d 1148 (1986).
3 Mountain States Tel. and Tel. Co. v. Public Utilities Com’n of State of Colo., 763 P.2d 1020 (Colo. 1988).

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§ 42. Involvement in investigation or prosecution, 2 Am. Jur. 2d Administrative Law § 42
Administrative Law
2. Disqualification
§ 42. Involvement in investigation or prosecution

There is authority to the effect that an administrative officer may be disqualified from adjudication where he or she is on the
investigative or prosecuting staff in the case. 1In fact, pursuant to both the Revised Model State Administrative Procedure Act
and the Model State Administrative Procedure Act, a person who has served as an investigator, prosecutor, or advocate in a
contested case, or an adjudicative proceeding or in its preadjudicative stage, as the case may be, or persons subject to the
authority, direction, or discretion of such person may not serve as a presiding officer or assist or advise a presiding officer in
the same proceeding.2
Under some authority, however, agency members who participate in an investigation, particularly a nonadversarial one, are
not in all cases disqualified from adjudicating. 3When an assertion of bias is premised solely on an administrative
adjudicator’s exercise of both investigative and adjudicative functions, the party claiming bias must show that, under a
realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the
same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due
process is to be adequately implemented.4
Footnotes
1 Amos Treat & Co. v. Securities and Exchange Commission, 306 F.2d 260 (D.C. Cir. 1962).
2 Model State Administrative Procedure Act § 4-214(a), (b) (1981); Revised Model State Administrative Procedure Act
§ 402(b) (2010).

§ 42. Involvement in investigation or prosecution, 2 Am. Jur. 2d Administrative Law § 42
3 Withrow v. Larkin, 421 U.S. 35, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975).
4 Hasie v. Office of Comptroller of Currency of U.S., 633 F.3d 361 (5th Cir. 2011); Moncier v. Board of Professional
Responsibility, 406 S.W.3d 139 (Tenn. 2013).

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§ 43. Personal or pecuniary interest, 2 Am. Jur. 2d Administrative Law § 43
Administrative Law
2. Disqualification
§ 43. Personal or pecuniary interest

A.L.R. Library
Bias or Interest of Administrative Officer Sitting in Zoning Proceeding as Necessitating Disqualification of Officer or
Affecting Validity of Zoning Decision, 4 A.L.R.6th 263
Members of an administrative agency must be able to perform the duties of office free of an interest, personal or pecuniary,
having the potential to influence their judgment. 1Thus, an administrative officer generally is disqualified from acting as a
decision maker if he or she has a personal or pecuniary interest in the proceedings. 2The Revised Model State Administrative
Procedure Act requires disqualification for “financial interest,” and the Model State Administrative Procedure Act requires
disqualification for “interest.”3
A direct, personal, and substantial pecuniary interest exists requiring the disqualification of a judge or temporary
administrative hearing officer when the income from judging depends upon the volume of cases an adjudicator hears and
when frequent litigants are free to choose among adjudicators, preferring those who render favorable decisions. 4A personal
interest need not be pecuniary; rather, it is any interest which can be viewed as having a potentially debilitating effect on the
impartiality of the decision maker.5An administrative official also may be disqualified where he or she has a familial
relationship with one of the parties6or where he or she is biased, is prejudiced, or labors under personal animosity toward a
party.7

§ 43. Personal or pecuniary interest, 2 Am. Jur. 2d Administrative Law § 43
Footnotes
1 Matter of Bergen County Utilities Authority, 230 N.J. Super. 411, 553 A.2d 849 (App. Div. 1989).
2 In re Khan, 804 N.W.2d 132 (Minn. Ct. App. 2011); Fulce v. Public Employees Retirement System of Mississippi,
759 So. 2d 401 (Miss. 2000); Appeal of the Local Government Center, Inc., 85 A.3d 388 (N.H. 2014).
3 § 35.
4 Haas v. County of San Bernardino, 27 Cal. 4th 1017, 119 Cal. Rptr. 2d 341, 45 P.3d 280 (2002).
5 Waste Management of Illinois, Inc. v. Pollution Control Bd., 175 Ill. App. 3d 1023, 125 Ill. Dec. 524, 530 N.E.2d 682
(2d Dist. 1988).
6 In re Interest of A.M., Jr., 281 Neb. 482, 797 N.W.2d 233 (2011).
7 Head v. Chicago School Reform Bd. of Trustees, 225 F.3d 794 (7th Cir. 2000).

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§ 44. Target of criticism by party involved, 2 Am. Jur. 2d Administrative Law § 44
Administrative Law
2. Disqualification
§ 44. Target of criticism by party involved

Where the adjudicator in an administrative proceeding has been the target of personal abuse or criticism by an involved party,
the probability of actual bias is too high to be constitutionally tolerable 1and is grounds for disqualification.2Vituperative
criticism of an adjudicator by a charged party prior to the filing of administrative charges may present an unacceptably high
risk of creating bias on the part of the adjudicator. However, a contentious atmosphere can be expected in many
administrative hearings, and an attitude bordering on partisanship, or even hostility, as reflected in exchanges between the
adjudicator and the charged party does not in and of itself prove bias. 3
Footnotes
2 Matter of Carberry, 114 N.J. 574, 556 A.2d 314 (1989).

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Research References, 2 Am. Jur. 2d Administrative Law II C Refs.
2 Am. Jur. 2d Administrative Law II C Refs.
Administrative Law
C. Powers and Functions
Research References

West’s Key Number Digest, Administrative Law and Procedure 8, 103.1, 301 to 309.1, 316, 318, 322.1 to 328, 331,
428 to 437
A.L.R. Library
West’s A.L.R. Digest, Administrative Law and Procedure 8, 103.1, 301 to 309.1, 316, 318, 322.1 to 328, 331, 428 to
437
Works.

Administrative Law
1. In General
§ 45. Generally

West’s Key Number Digest, Administrative Law and Procedure 301 to 309.1
The primary function of administrative agencies is to carry into effect the will of the State as expressed by its
legislation.1Administrative agencies are vested with the responsibility to consistently interpret guidelines to avoid arbitrary
and capricious results.2Broadly speaking, agencies are expected to consider reasonable alternatives to proposed actions 3and,
in doing so, are permitted to assess the wisdom of their policies on a continuing basis. 4
While some agencies act merely as investigative or advisory bodies, 5administrative agencies may have executive,
administrative, investigative, legislative, or adjudicative powers.6In addition, some statutory schemes provide for or permit
administrative enforcement,7and some agencies are given express authority to reconsider, amend, correct, or modify orders
that would otherwise be final or to monitor conditions over time to best implement a particular statutory scheme. 8
Whether a particular administrative agency has a certain power is primarily a matter of statutory construction. 9The fact that
an asserted power is novel and unprecedented does not mean that it does not exist. 10An agency may act within its authority
even if its action is later determined to be legally erroneous.11
Cases:
Agencies are not permitted to act unlawfully even in pursuit of desirable ends. Alabama Association of Realtors v.
Department of Health and Human Services, 141 S. Ct. 2485 (2021).

[END OF SUPPLEMENT]
Footnotes
1 Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 61 S. Ct. 845, 85 L. Ed. 1271, 133 A.L.R. 1217 (1941); Rosenthal v.
State Emp. Retirement System, 30 N.J. Super. 136, 103 A.2d 896 (App. Div. 1954).
2 Biloxi HMA, Inc. v. Singing River Hosp., 743 So. 2d 979 (Miss. 1999).
3 Central Maine Power Co. v. F.E.R.C., 252 F.3d 34 (1st Cir. 2001).
4 SKF USA Inc. v. U.S., 254 F.3d 1022 (Fed. Cir. 2001).
5 Hannah v. Larche, 363 U.S. 420, 80 S. Ct. 1502, 4 L. Ed. 2d 1307 (1960); Town of Burlington v. Dunn, 318 Mass.
216, 61 N.E.2d 243, 168 A.L.R. 1181 (1945); In re Di Brizzi, 303 N.Y. 206, 101 N.E.2d 464 (1951).
6 Yesson v. San Francisco Municipal Transportation Agency, 224 Cal. App. 4th 108, 168 Cal. Rptr. 3d 212 (1st Dist.
2014).
7 Allen v. Grand Central Aircraft Co., 347 U.S. 535, 74 S. Ct. 745, 98 L. Ed. 933 (1954).
8 1000 Friends of Oregon v. Land Conservation and Development Com’n, 301 Or. 622, 724 P.2d 805 (1986).
9 State ex rel. Com’r of Ins. v. North Carolina Rate Bureau, 300 N.C. 381, 269 S.E.2d 547 (1980).
As to the administrative construction of statutes, see §§ 67 to 73.
10 U.S. v. Morton Salt Co., 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401 (1950); State ex rel. Com’r of Ins. v. North
Carolina Rate Bureau, 300 N.C. 381, 269 S.E.2d 547 (1980).
11 Custer County Action Ass’n v. Garvey, 256 F.3d 1024 (10th Cir. 2001).

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§ 46. Characterization and classification of administrative..., 2 Am. Jur. 2d...
Administrative Law
1. In General
§ 46. Characterization and classification of administrative powers

Administrative powers are executive, legislative, or judicial in nature although not specifically allocated. 1Administrative
power is the power to administer or enforce a law, as opposed to the legislative power to make a law. 2Administration has to
do with the carrying of laws into effect, that is, their practical application to current affairs, in accordance with and in
execution of the principles prescribed by the lawmaker. 3Thus, regulatory and control powers of an administrative agency are
frequently described as “administrative.”4The power of an administrative agency to make rules to carry out a policy is
administrative.5The application of such rules in particular cases is executive or administrative in nature. 6
Observation:
The issue of an administrative body’s authority presents a question of law and not a question of fact. 7
Footnotes
1 Guiseppi v. Walling, 144 F.2d 608, 155 A.L.R. 761 (C.C.A. 2d Cir. 1944), judgment aff’d, 324 U.S. 244, 65 S. Ct.
605, 89 L. Ed. 921 (1945).
2 Citizens’ Utility Ratepayer Bd. v. State Corp. Com’n of State of Kan., 264 Kan. 363, 956 P.2d 685 (1998).
§ 46. Characterization and classification of administrative..., 2 Am. Jur. 2d...
3 Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 33 S. Ct. 916, 57 L. Ed. 1472 (1913); Robertson v.
Schein, 305 Ky. 528, 204 S.W.2d 954 (1947).
4 Secretary of Agriculture v. Central Roig Refining Co., 338 U.S. 604, 70 S. Ct. 403, 94 L. Ed. 381 (1950); Guthrie v.
Curlin, 263 S.W.2d 240 (Ky. 1953).
5 U.S. v. Grimaud, 220 U.S. 506, 31 S. Ct. 480, 55 L. Ed. 563 (1911); Knudsen Creamery Co. of Cal. v. Brock, 37 Cal.
2d 485, 234 P.2d 26 (1951); Department of Public Welfare v. National Help “U” Ass’n, 197 Tenn. 8, 270 S.W.2d 337
(1954).
6 Gulf, M. & O. R. Co. v. Railroad and Public Utilities Com’n, 38 Tenn. App. 212, 271 S.W.2d 23 (1954).
7 County of Knox ex rel. Masterson v. Highlands, L.L.C., 188 Ill. 2d 546, 243 Ill. Dec. 224, 723 N.E.2d 256 (1999).

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§ 47. Source of powers, 2 Am. Jur. 2d Administrative Law § 47
Administrative Law
1. In General
§ 47. Source of powers

Being creatures of the legislature,1administrative agencies have no general or common-law powers2but only those powers
conferred upon them by statute or constitution.3An agency must act in accordance with the applicable statutes and its own
regulations.4Apart from the instances in which an administrative agency is created and empowered by a provision of a state
constitution or an executive order,5the source of the powers of administrative agencies lies in statutes, 6and administrative
agencies must find within the statutes warrant for the exercise of any authority which they claim. 7
Cases:
Administrative agencies have no general or common-law powers, but only such as have been conferred upon them by law
expressly or by implication. PNGI Charles Town Gaming, LLC v. West Virginia Racing Com’n, 765 S.E.2d 241 (W. Va.
2014).
[END OF SUPPLEMENT]
Footnotes
1 In re Hubbard, 778 N.W.2d 313 (Minn. 2010); New York State Superfund Coalition, Inc. v. New York State Dept. of
§ 47. Source of powers, 2 Am. Jur. 2d Administrative Law § 47
Environmental Conservation, 18 N.Y.3d 289, 938 N.Y.S.2d 266, 961 N.E.2d 657 (2011); Texas Natural Resource
Conservation Com’n v. Lakeshore Utility Co., Inc., 164 S.W.3d 368 (Tex. 2005).
2 Woodard v. Jefferson County, 18 Fed. Appx. 706 (10th Cir. 2001); Gaffney v. Board of Trustees of Orland Fire
Protection Dist., 2012 IL 110012, 360 Ill. Dec. 549, 969 N.E.2d 359 (Ill. 2012).
As to implied and inherent powers, generally, see § 54.
3 § 51.
4 Paralyzed Veterans of America v. West, 138 F.3d 1434 (Fed. Cir. 1998).
5 § 20.
6 Florida Elections Commission v. Davis, 44 So. 3d 1211 (Fla. 1st DCA 2010); Adamson v. Correctional Medical
Services, Inc., 359 Md. 238, 753 A.2d 501 (2000).
The terms of the enabling statute establish the scope of agency authority. Yeboah v. U.S. Dept. of Justice, 345 F.3d
216 (3d Cir. 2003).
7 M & J Garage and Towing, Inc. v. West Virginia State Police, 227 W. Va. 344, 709 S.E.2d 194 (2010); Exxon Mobil
Corp. v. Wyoming Dept. of Revenue, 2011 WY 161, 266 P.3d 944 (Wyo. 2011).
As to statutes relating to administrative agencies, generally, see §§ 28 to 30.

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§ 48. Source of powers—Legislative standards, 2 Am. Jur. 2d Administrative Law § 48
Administrative Law
1. In General
§ 48. Source of powers—Legislative standards

A statute or ordinance placing discretionary power in an administrative agency must furnish standards for those who
administer such power.1The law must enunciate standards to guide the administrative officers where the legislature delegates
to an administrative agency the power to determine a fact or state of things upon which an application of the law
depends.2The standards which must accompany such a grant of power must not be unlimited, be unreasonable, or permit
arbitrary action by the administrative body.3Failure to determine such standards may render the statute void. 4
Observation:
While adequate standards must be included in the delegating legislation,5the realities of modern legislation dealing with complex
economic and social problems have led to judicial approval of broad standards for administrative actions.6Detailed standards are
not required, especially in regulatory enactments under the police power. 7
Cases:

§ 48. Source of powers—Legislative standards, 2 Am. Jur. 2d Administrative Law § 48
Scope of provision of Affordable Care Act (ACA) prohibiting Department of Health and Human Services (HHS) from
promulgating regulation that creates unreasonable barrier to ability of individuals to obtain appropriate medical care was not
limited to ACA. 42 U.S.C.A. § 18114. State v. Azar, 385 F. Supp. 3d 960 (N.D. Cal. 2019), stay pending appeal denied, 2019
WL 2029066 (N.D. Cal. 2019) and stay pending appeal denied, 2019 WL 2996441 (N.D. Cal. 2019).
The Legislature may constitutionally delegate its legislative powers to an administrative body so long as it sets forth a policy,
rule, or standard for guidance and does not vest them with an arbitrary and uncontrolled discretion. State v. Spady, 2015 MT
218, 380 Mont. 179, 354 P.3d 590 (2015).
To withstand the charge of unconstitutional delegation of legislative power to an administrative agency, a statute must
establish reasonable standards to govern the achievement of its purpose and the execution of the power that it confers to the
agency. Chittenden County Sheriff’s Department v. Department of Labor, 2020 VT 4, 228 A.3d 85 (Vt. 2020).
[END OF SUPPLEMENT]
Footnotes
1 Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844 (2012); Texas Workers’ Compensation Com’n v. Patient Advocates
of Texas, 136 S.W.3d 643 (Tex. 2004).
As to discretionary power in this regard, see §§ 55, 56.
2 In re McClain, 741 S.E.2d 893 (N.C. Ct. App. 2013), review denied, 743 S.E.2d 188 (N.C. 2013); Fahn v. Cowlitz
County, 93 Wash. 2d 368, 610 P.2d 857 (1980), opinion amended on other grounds, 621 P.2d 1293 (Wash. 1981).
3 State v. Union Tank Car Co., 439 So. 2d 377 (La. 1983).
4 Balmoral Racing Club, Inc. v. Illinois Racing Bd., 151 Ill. 2d 367, 177 Ill. Dec. 419, 603 N.E.2d 489 (1992).
5 Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844 (2012); Elizabeth River Crossings OpCo, LLC v. Meeks, 286 Va.
286, 749 S.E.2d 176 (2013).
6 Kaufman v. State Dept. of Social and Rehabilitative Services, 248 Kan. 951, 811 P.2d 876 (1991); State ex rel. Com’r
of Ins. v. North Carolina Rate Bureau, 300 N.C. 381, 269 S.E.2d 547 (1980).

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§ 49. Source of powers—Ratification and validation, 2 Am. Jur. 2d Administrative Law § 49
Administrative Law
1. In General
§ 49. Source of powers—Ratification and validation

Acts of administrative agencies unauthorized at the time may become valid and binding by ratification 1unless the attempted
ratification is made at a time when the ratifying authority could not lawfully do the act, or there are substantial intervening
rights.2The fact that a validating act is retroactive does not, in itself, render it ineffective. 3When the legislature ratifies the act,
it becomes the act of the legislature, eliminating any question of delegation. 4
Ratification may be implied as well as express.5However, whether there is an implied ratification depends on the
circumstances of the case. Implied ratification is insufficient to show a delegation of authority to take action within an area of
questionable constitutionality6or to eliminate limitations upon the powers of an agency. 7
Footnotes
1 Ex parte Mitsuye Endo, 323 U.S. 283, 65 S. Ct. 208, 89 L. Ed. 243 (1944); Haggerty v. City of Oakland, 161 Cal.
App. 2d 407, 326 P.2d 957, 66 A.L.R.2d 718 (1st Dist. 1958) (disapproved of on other grounds by, Wong v. Di
Grazia, 60 Cal. 2d 525, 35 Cal. Rptr. 241, 386 P.2d 817 (1963)).
2 Forbes Pioneer Boat Line v. Board of Com’rs of Everglades Drainage Dist., 258 U.S. 338, 42 S. Ct. 325, 66 L. Ed. 647
(1922).
3 Swayne & Hoyt v. U.S., 300 U.S. 297, 57 S. Ct. 478, 81 L. Ed. 659 (1937).
4 City of Harrison v. Snyder, 217 Ark. 528, 231 S.W.2d 95 (1950).
5 See Hirabayashi v. U.S., 320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943).

§ 49. Source of powers—Ratification and validation, 2 Am. Jur. 2d Administrative Law § 49
6 Greene v. McElroy, 360 U.S. 474, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959).
7 Peters v. Hobby, 349 U.S. 331, 75 S. Ct. 790, 99 L. Ed. 1129 (1955).

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§ 50. Construction of statutes granting powers, 2 Am. Jur. 2d Administrative Law § 50
Administrative Law
1. In General
§ 50. Construction of statutes granting powers

Some courts find that statutes granting powers to agencies must be strictly construed as conferring only those powers stated
or necessarily implied,1in order to preclude the exercise of a power which is not expressly granted. 2However, other courts
consider that authority given to an agency should be liberally construed in order to permit the agency to carry out its statutory
responsibilities3and that incidental powers should be readily implied. 4Moreover, where the agency is concerned with
protecting the public health and welfare, the delegation of authority to the agency is liberally construed. 5
Cases:
Whether judicial power is reasonably necessary as an incident to accomplishment of the purposes for which an administrative
office or agency was created must be determined in each instance in light of the purpose for which agency was established
and in light of nature and extent of judicial power undertaken to be conferred. West’s N.C.G.S.A. Const. Art. 4, § 3.
Kindsgrab v. State Bd. of Barber Examiners, 763 S.E.2d 913 (N.C. Ct. App. 2014).
[END OF SUPPLEMENT]
Footnotes

§ 50. Construction of statutes granting powers, 2 Am. Jur. 2d Administrative Law § 50
1 In re Indiana Michigan Power Co., 297 Mich. App. 332, 824 N.W.2d 246 (2012), appeal denied, 493 Mich. 946, 827
N.W.2d 723 (2013); Governor’s Policy Research Office v. KN Energy, 264 Neb. 924, 652 N.W.2d 865 (2002);
Mayland v. Flitner, 2001 WY 69, 28 P.3d 838 (Wyo. 2001).
2 Racine Fire and Police Commission v. Stanfield, 70 Wis. 2d 395, 234 N.W.2d 307 (1975).
3 In re Adoption of N.J.A.C. 7:15-5.24(b), 420 N.J. Super. 552, 22 A.3d 94 (App. Div. 2011).
4 § 54.
5 Pennsylvania Builders Ass’n v. Department of Labor and Industry, 4 A.3d 215 (Pa. Commw. Ct. 2010); City of
Columbia v. Board of Health and Environmental Control, 292 S.C. 199, 355 S.E.2d 536 (1987).

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§ 51. General limitations, 2 Am. Jur. 2d Administrative Law § 51
Administrative Law
1. In General
§ 51. General limitations

West’s Key Number Digest, Administrative Law and Procedure 303.1, 305 to 307
A determination of the limits of an agency’s authority requires the construction of the agency’s enabling statute. 1An
administrative agency only has those powers expressly conferred upon it by statute 2or constitution3and such as are implied by
their grant of authority.4Confining delegated lawmaking authority within its intended bounds helps to assure that ultimate
control over policymaking rests with the legislative branch of government rather than with unelected administrative officials. 5
An agency has no power to act in conflict with the authority granted to it by the legislature 6or outside of its own
regulations.7In addition, an agency may not exceed its statutory authority 8or constitutional limitations,9and administrative
actions exceeding authority delegated by law are void. 10An agency cannot expand its granted powers by its own
authority,11nor can it confer jurisdiction upon itself.12
Observation:
Concern that agency interpretation of a statute exceeds the limits of power granted by Congress is heightened where the
interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power. 13

Cases:
Courts expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political
significance. Alabama Association of Realtors v. Department of Health and Human Services, 141 S. Ct. 2485 (2021).
Unlike an agency’s interpretation of ambiguous statutory terms or its own regulations, an agency has no special competence
or role in interpreting a judicial decision. Glatt v. Fox Searchlight Pictures, Inc., 791 F.3d 376 (2d Cir. 2015).
When Congress directs an agency to consider only certain factors in reaching an administrative decision, the agency is not
free to trespass beyond the bounds of its statutory authority by taking other factors into account. Murray Energy Corporation
v. Environmental Protection Agency, 936 F.3d 597 (D.C. Cir. 2019).
Subject to equitable defenses including laches, a governmental action may be challenged at any time, as ultra vires, when the
action itself is beyond the jurisdiction or authority of the administrative body to act. Dubois Livestock, Inc. v. Town of
Arundel, 2014 ME 122, 103 A.3d 556 (Me. 2014).
Agency may rely upon grant of authority that is explicit but broad when undertaking agency action, and such explicit but
broad grant of authority complies with statutory provision that no agency may implement or enforce any standard,
requirement, or threshold, including as term or condition of any license issued by agency, unless that standard, requirement,
or threshold is explicitly required or explicitly permitted by statute or rule. Wis. Stats § 227.10(2m). Clean Wisconsin, Inc. v.
Wisconsin Department of Natural Resources, 2021 WI 71, 961 N.W.2d 346 (Wis. 2021).
[END OF SUPPLEMENT]
Footnotes
1 Brzowski v. Maryland Home Imp. Com’n, 114 Md. App. 615, 691 A.2d 699 (1997).
As to the construction of statutes granting powers, see § 50.
2 Stiger v. Flippin, 201 Cal. App. 4th 646, 135 Cal. Rptr. 3d 168 (4th Dist. 2011), review denied, (Mar. 14, 2012); Doe
v. Sex Offender Registry Bd., 459 Mass. 603, 947 N.E.2d 9 (2011).
3 American Federation of Labor v. Unemployment Ins. Appeals Bd., 13 Cal. 4th 1017, 56 Cal. Rptr. 2d 109, 920 P.2d
1314 (1996); Oklahoma Public Employees Ass’n v. Oklahoma Dept. of Central Services, 2002 OK 71, 55 P.3d 1072
(Okla. 2002); US West Communications, Inc. v. Wyoming Public Service Com’n, 907 P.2d 343 (Wyo. 1995).
4 § 54.
5 Martin v. State, Agency of Transp. Dept. of Motor Vehicles, 175 Vt. 80, 2003 VT 14, 819 A.2d 742 (2003).
6 State ex rel. Brant v. Bank of America, 272 Kan. 182, 31 P.3d 952 (2001); Benson & Gold Chevrolet, Inc. v.
Louisiana Motor Vehicle Commission, 403 So. 2d 13 (La. 1981).
7 Nolan v. U.S., 44 Fed. Cl. 49 (1999).
8 District of Columbia Office of Tax and Revenue v. Shuman, 82 A.3d 58 (D.C. 2013); Walsh v. Champaign County
Sheriff’s Merit Com’n, 404 Ill. App. 3d 933, 344 Ill. Dec. 826, 937 N.E.2d 1167 (4th Dist. 2010).
As to the rulemaking power of agencies, generally, see §§ 127 to 131.
9 Castro v. Viera, 207 Conn. 420, 541 A.2d 1216 (1988).
10 Diageo-Guinness USA, Inc. v. State Bd. of Equalization, 205 Cal. App. 4th 907, 140 Cal. Rptr. 3d 358 (3d Dist.
2012); Pereira v. State Bd. of Educ., 304 Conn. 1, 37 A.3d 625, 278 Ed. Law Rep. 347 (2012); Delgado v. Board of

Election Com’rs of City of Chicago, 224 Ill. 2d 481, 309 Ill. Dec. 820, 865 N.E.2d 183 (2007).
11 District of Columbia v. Brookstowne Community Development Co., 987 A.2d 442 (D.C. 2010); Buddy Gregg Motor
Homes, Inc. v. Marathon Coach, Inc., 320 S.W.3d 912 (Tex. App. Austin 2010).
12 Southern New England Telephone Co. v. Department of Public Utility Control, 261 Conn. 1, 803 A.2d 879 (2002); In
re Campaign for Ratepayers’ Rights, 162 N.H. 245, 27 A.3d 726 (2011).
13 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 121 S. Ct. 675, 148 L.
Ed. 2d 576 (2001).

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§ 52. Limitations on manner of exercise, 2 Am. Jur. 2d Administrative Law § 52
Administrative Law
1. In General
§ 52. Limitations on manner of exercise

West’s Key Number Digest, Administrative Law and Procedure 303.1, 305, 307
The power of an administrative agency must be exercised in accordance with and in the mode prescribed by the statute or
other law bestowing such power.1Agency adjudicative power extends only to the ascertainment of facts and the application of
existing law to the facts in order to resolve issues within areas of agency expertise. 2Not only must powers be exercised in the
manner directed but also by the officer specified. 3One dealing with public officials, boards, or commissions must take notice
of their authority to act, and the law charges him or her with the knowledge of any and all limitations upon such power. 4
An agency may not assert the general power given to it and at the same time disregard the essential conditions imposed upon
its exercise.5Thus, for example, the Federal Administrative Procedure Act states that a sanction may not be imposed or a
substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law. 6Regardless of
how serious the problem an administrative agency seeks to address, it may not exercise its authority in a manner that is
inconsistent with the administrative structure that Congress enacted into law.7
Cases:
Not only must an agency’s decreed result be within the scope of its lawful authority, but the process by which it reaches that
result must be logical and rational. Michigan v. E.P.A., 135 S. Ct. 2699 (2015).
[END OF SUPPLEMENT]

§ 52. Limitations on manner of exercise, 2 Am. Jur. 2d Administrative Law § 52
Footnotes
1 U.S. v. Chicago, M., St. P. & P.R. Co., 282 U.S. 311, 51 S. Ct. 159, 75 L. Ed. 359 (1931); Ethics Com’n of Town of
Glastonbury v. Freedom of Information Com’n, 302 Conn. 1, 23 A.3d 1211 (2011).
2 Mikel v. Pott Industries/St. Louis Ship, 896 S.W.2d 624 (Mo. 1995).
3 Board of Medical Examiners v. Steward, 203 Md. 574, 102 A.2d 248 (1954); Roper v. Winner, 244 S.W.2d 355 (Tex.
Civ. App. San Antonio 1951).
4 Com. v. Whitworth, 74 S.W.3d 695 (Ky. 2002).
5 Edgerton v. International Co., 89 So. 2d 488 (Fla. 1956); State ex rel. Public Service Commission v. Northern Pac. Ry.
Co., 75 N.W.2d 129 (N.D. 1956).
6 5 U.S.C.A. § 558(b).
7 Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S. Ct. 1155, 152 L. Ed. 2d 167 (2002); Verizon v. F.C.C.,
740 F.3d 623 (D.C. Cir. 2014).

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§ 53. Limitations on manner of exercise—Fundamental..., 2 Am. Jur. 2d...
Administrative Law
1. In General
§ 53. Limitations on manner of exercise—Fundamental fairness and due process

West’s Key Number Digest, Administrative Law and Procedure 301 to 303.1, 305
General due process considerations of fairness directly limit the manner in which an agency may exercise its designated
responsibilities.1A practice which violates due process cannot be excused because of mere administrative
inconvenience.2However, the full rights of due process present in a court of law do not automatically attach. 3
An administrative agency’s actions may be only investigatory, only adjudicatory, or a combination of both, and the due
process that must be accorded in an administrative proceeding depends upon the nature of the administrative agency’s
actions.4The level of due process required in an administrative setting must be decided under the facts and circumstances of
each case.5In addition, any administrative agency in determining how best to effectuate public policy is limited by principles
of fundamental fairness.6There are no simple answers as to what constitutes fundamental fairness, and each case must be
considered and evaluated on its merits, giving weight to the effect of the decision on the agency’s public policy. 7
Observation:
Under the Mathews balancing test to determine whether an administrative procedure satisfies due process, a court must weigh: (1)
the private interest that will be affected by an official action; (2) the risk of erroneous deprivation of such interest or procedures
used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including
the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.8

§ 53. Limitations on manner of exercise—Fundamental..., 2 Am. Jur. 2d...
Cases:
The fundamental rights approach to a due process claim under the Fifth Amendment is applied when the plaintiff challenges
the concerted action of several agency employees, undertaken pursuant to broad government policies, which is akin to a
challenge to legislative action. U.S. Const. Amend. 5. Maehr v. United States Department of State, 5 F.4th 1100 (10th Cir.
2021).
The Supreme Court reviews the administrative proceedings to ensure procedural fairness at the administrative hearing;
nonetheless, procedural due process requires fundamental fairness, which, at a minimum, necessitates notice and a
meaningful opportunity for a hearing appropriate to the nature of the case. U.S.C.A. Const.Amend. 14. Schlittenhart v. North
Dakota Dept. of Transp., 2015 ND 179, 2015 WL 4184107 (N.D. 2015).
[END OF SUPPLEMENT]
Footnotes
1 Appeal of Morin, 140 N.H. 515, 669 A.2d 207 (1995); Appleby v. State ex rel. Wyoming Workers’ Safety and
Compensation Div., 2002 WY 84, 47 P.3d 613 (Wyo. 2002).
2 State ex rel. Ormet Corp. v. Industrial Com’n of Ohio, 54 Ohio St. 3d 102, 561 N.E.2d 920 (1990).
3 Medeiros v. Hawaii County Planning Com’n, 8 Haw. App. 183, 797 P.2d 59 (1990).
4 State ex rel. Hoover v. Smith, 198 W. Va. 507, 482 S.E.2d 124 (1997).
5 Bragunier Masonry Contractors, Inc. v. Maryland Com’r of Labor and Industry, 111 Md. App. 698, 684 A.2d 6
(1996).
6 State, Dept. of Environmental Protection v. Stavola, 103 N.J. 425, 511 A.2d 622 (1986); State ex rel. White v. Parsons,
199 W. Va. 1, 483 S.E.2d 1, 66 A.L.R.5th 737 (1996).
7 State, Dept. of Environmental Protection v. Stavola, 103 N.J. 425, 511 A.2d 622 (1986).
8 American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045 (9th Cir. 1995).

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§ 54. Implied and inherent powers, 2 Am. Jur. 2d Administrative Law § 54
Administrative Law
1. In General
§ 54. Implied and inherent powers

Generally, administrative agencies have the implied powers that are reasonably necessary in order to carry out the powers
expressly granted.1The reason for an agency’s implied powers is that, as a practical matter, the legislature cannot foresee all
the problems incidental to carrying out the duties and responsibilities of the agency. 2
Courts disagree as to how much latitude administrative agencies have with respect to implied powers. Some courts find wide
latitude must be given to administrative agencies in fulfilling their duties. 3Some of these courts even say that the authority
does not have to be “necessary” to effectuate the expressly delegated authority but only “appropriate.” 4Other courts find that
powers should not be extended by implication beyond what may be necessary for their just and reasonable execution. 5Still
other courts find that implied powers are “necessarily implied,” 6meaning an implication which yields so strong a probability
of intent to allow these powers that any intention to the contrary cannot be supposed. 7
An administrative agency has no inherent powers8because any authority it has comes from statutes or the constitution. 9Under
some authority, however, implied powers may sometimes be called “inherent.” 10
Footnotes
1 Kaleikini v. Thielen, 124 Haw. 1, 237 P.3d 1067 (2010); Vickers v. Lowe, 150 Idaho 439, 247 P.3d 666 (2011); State
ex rel. J.S., 202 N.J. 465, 998 A.2d 409 (2010); Texas Mun. Power Agency v. Public Utility Com’n of Texas, 253
S.W.3d 184 (Tex. 2007).
As to the express grant of powers, generally, see §§ 47, 51.
2 Kaleikini v. Thielen, 124 Haw. 1, 237 P.3d 1067 (2010); Vickers v. Lowe, 150 Idaho 439, 247 P.3d 666 (2011).

§ 54. Implied and inherent powers, 2 Am. Jur. 2d Administrative Law § 54
3 Lake County Bd. of Review v. Property Tax Appeal Bd. of State of Ill., 119 Ill. 2d 419, 116 Ill. Dec. 567, 519 N.E.2d
459 (1988).
4 Matter of Request for Solid Waste Utility Customer Lists, 106 N.J. 508, 524 A.2d 386 (1987).
6 Walker v. Arkansas State Bd. of Educ., 2010 Ark. 277, 365 S.W.3d 899, 280 Ed. Law Rep. 505 (2010); Sullivan
Financial Group, Inc. v. Wrynn, 94 A.D.3d 90, 939 N.Y.S.2d 761 (3d Dep’t 2012).
7 Mississippi Public Service Com’n v. Columbus & Greenville Ry. Co., 573 So. 2d 1343 (Miss. 1990).
8 Ethics Com’n of Town of Glastonbury v. Freedom of Information Com’n, 302 Conn. 1, 23 A.3d 1211 (2011); Dialysis
Solution, LLC v. Mississippi State Dept. of Health, 31 So. 3d 1204 (Miss. 2010); Davidson Serles & Associates v.
Central Puget Sound Growth Management Hearings Bd., 159 Wash. App. 148, 244 P.3d 1003 (Div. 1 2010).
9 Belanger & Sons, Inc. v. Department of State, 176 Mich. App. 59, 438 N.W.2d 885 (1989).
10 Jones v. Keller, 364 N.C. 249, 698 S.E.2d 49 (2010).

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§ 55. Discretionary powers, 2 Am. Jur. 2d Administrative Law § 55
Administrative Law
1. In General
§ 55. Discretionary powers

Agencies generally are given broad discretion to exercise their regulatory authority. 1While the right to exercise discretion is
frequently conferred expressly,2the duties of administrative agencies also necessarily include the right to exercise
discretion.3The rationale for agency discretion is that administrative bodies possess experience and specialization that place
them at an advantage in making decisions within an agency’s areas of expertise. 4
An agency has broad discretion to determine when and how to hear and decide the matters that come before it, 5as well as
whether or not to prosecute or enforce, through either civil or criminal process. 6The matter of recusal is generally left to the
discretion of the adjudicator, and abuse of that discretion must be shown to reverse a decision not to allow a
recusal.7Additionally, the decision whether or not to impose a sanction is discretionary. 8
The question of how best to handle related, yet discrete, issues in terms of procedures is a matter committed to agency
discretion.9Administrative agencies generally have wide discretion in selecting the means to fulfill the legislature’s
goals.10Administrative authorities are permitted, consistent with the obligations of due process, to adopt rules and policies to
carry out statutory duties11and to adapt their rules and policies to the demands of changing circumstances. 12
Observation:
By virtue of its specialized knowledge and authority, an administrative agency alone is empowered to develop that enforcement
policy best calculated to achieve the ends contemplated by the legislature and to allocate its available funds and personnel in such
a way as to execute its policy efficiently and economically.13

Cases:
Under the fundamental principle of statutory interpretation that absent provisions cannot be supplied by the courts, courts
cannot impose limits on an agency’s discretion that are not supported by the text of the statute. Little Sisters of the Poor
Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020).
Where existing methodology or research in a new area of regulation is deficient, an administrative agency necessarily enjoys
broad discretion to attempt to formulate a solution to the best of its ability on the basis of available information. Center for
Sustainable Economy v. Jewell, 779 F.3d 588 (D.C. Cir. 2015).
[END OF SUPPLEMENT]
Footnotes
1 Doe v. Sex Offender Registry Bd., 456 Mass. 612, 925 N.E.2d 533 (2010); Unified Sportsmen of Pennsylvania ex rel.
their Members v. Pennsylvania Game Commission (PGC), 18 A.3d 373 (Pa. Commw. Ct. 2011).
2 United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499, 98 L. Ed. 681 (1954); Ex parte Anderson,
191 Or. 409, 229 P.2d 633, 29 A.L.R.2d 1051 (1951).
3 I. C. C. v. Parker, 326 U.S. 60, 65 S. Ct. 1490, 89 L. Ed. 2051 (1945); Handlon v. Town of Belleville, 4 N.J. 99, 71
A.2d 624, 16 A.L.R.2d 1118 (1950); State ex rel. Shafer v. Ohio Turnpike Commission, 159 Ohio St. 581, 50 Ohio
Op. 465, 113 N.E.2d 14 (1953).
4 Save Park County v. Board of County Com’rs of County of Park, 990 P.2d 35 (Colo. 1999).
5 Tennessee Valley Mun. Gas Ass’n v. F.E.R.C., 140 F.3d 1085 (D.C. Cir. 1998).
6 J.C. & Associates v. Board of Appeals and Review, 778 A.2d 296 (D.C. 2001).
7 Herridge v. Board of Registration in Medicine, 420 Mass. 154, 648 N.E.2d 745 (1995).
8 Schoenfeld v. FDL Foods, Inc., 560 N.W.2d 595 (Iowa 1997); Larsen v. Commission on Medical Competency, 1998
ND 193, 585 N.W.2d 801 (N.D. 1998).
9 Northern Border Pipeline Co. v. F.E.R.C., 129 F.3d 1315 (D.C. Cir. 1997).
10 Zatz v. U.S., 149 F.3d 144 (2d Cir. 1998); County of Hudson v. Department of Corrections, 152 N.J. 60, 703 A.2d 268
(1997).
11 Coalition For Fair and Equitable Regulation of Docks on Lake of the Ozarks v. F.E.R.C., 297 F.3d 771 (8th Cir.
2002); In re Public Service Elec. and Gas Company’s Rate Unbundling, 167 N.J. 377, 771 A.2d 1163 (2001).
12 In re Permian Basin Area Rate Cases, 390 U.S. 747, 88 S. Ct. 1344, 20 L. Ed. 2d 312 (1968).
13 In re Morgan, 144 N.H. 44, 742 A.2d 101 (1999).


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§ 56. Discretionary powers—Limitations on discretion, 2 Am. Jur. 2d Administrative...
Administrative Law
1. In General
§ 56. Discretionary powers—Limitations on discretion

While deference is appropriately shown to agency action because of the expertise and superior knowledge of agencies in their
specialized fields, that discretion is not unbounded and must be exercised in a manner that will facilitate judicial
review.1Thus, the language in a rule allowing for agency discretion does not create unlimited discretion. 2The discretion which
is afforded to administrative agency discretion may not justify the agency in altering, modifying, or extending the reach of
the law created by the legislature.3Discretion must be exercised according to fair and legal considerations, 4in accordance with
established principles of justice, and not arbitrarily or capriciously, 5fraudulently, or without factual basis.6
Observation:
An agency which has been granted discretion by statute may limit its own discretion in its regulations. 7
Cases:
First Amendment barred abortion providers and their supporters from recovering damages for abortion opponents’ breach of

§ 56. Discretionary powers—Limitations on discretion, 2 Am. Jur. 2d Administrative...
exhibit agreements flowing from opponents’ publication of surreptitiously recorded conversations at providers’ conferences
and facilities and with providers’ targeted staff, obtained through deception by opponents in effort to advance their goal of
interfering with women’s access to legal abortion, where those damages were caused by subsequent publication of videos and
not from breach of agreements themselves. U.S. Const. Amend. 1. Planned Parenthood Federation of America, Inc. v. Center
for Medical Progress, 402 F. Supp. 3d 615 (N.D. Cal. 2019).
[END OF SUPPLEMENT]
Footnotes
1 In re Kim, 403 N.J. Super. 378, 958 A.2d 485 (App. Div. 2008).
2 Inova Alexandria Hosp. v. Shalala, 244 F.3d 342 (4th Cir. 2001).
3 State ex rel. Taylor v. Johnson, 1998-NMSC-015, 125 N.M. 343, 961 P.2d 768 (1998).
4 American Broadcasting Co. v. F.C.C., 179 F.2d 437 (D.C. Cir. 1949); Handlon v. Town of Belleville, 4 N.J. 99, 71
A.2d 624, 16 A.L.R.2d 1118 (1950).
5 Secretary of Agriculture v. Central Roig Refining Co., 338 U.S. 604, 70 S. Ct. 403, 94 L. Ed. 381 (1950); State Bd. of
Medical Examiners v. Beatty, 220 La. 1, 55 So. 2d 761 (1951); Handlon v. Town of Belleville, 4 N.J. 99, 71 A.2d 624,
16 A.L.R.2d 1118 (1950).
6 McDonough v. Goodcell, 13 Cal. 2d 741, 91 P.2d 1035, 123 A.L.R. 1205 (1939).
7 McBride v. Motor Vehicle Div. of Utah State Tax Com’n, 1999 UT 9, 977 P.2d 467 (Utah 1999).

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§ 57. Ministerial powers, 2 Am. Jur. 2d Administrative Law § 57
Administrative Law
1. In General
§ 57. Ministerial powers

If an agency, through rulemaking, decides to remove discretion from its determinations, then it appropriately relegates to
itself a ministerial role.1A ministerial duty is one in respect to which nothing is left to discretion. It is a simple, definite duty
arising under conditions admitted or proved to exist and imposed by law. 2It is a duty absolute, certain, and imperative,
involving mere execution of a specific act arising from fixed and designated facts. 3
The fact that a necessity may exist for the ascertainment of the facts or conditions, upon the existence of which the
performance of an act becomes a clear and specific duty, does not convert a ministerial act into a discretionary one. 4
Footnotes
1 Maryland Transit Admin. v. Surface Transp. Bd., 700 F.3d 139 (4th Cir. 2012).
2 Bronaugh v. Murray, 294 Ky. 715, 172 S.W.2d 591 (1943); Texas State Bd. of Dental Examiners v. Fieldsmith, 242
S.W.2d 213, 26 A.L.R.2d 990 (Tex. Civ. App. Dallas 1951), writ refused n.r.e.
3 People v. May, 251 Ill. 54, 95 N.E. 999 (1911); State ex rel. School Dist. of Scottsbluff v. Ellis, 163 Neb. 86, 77
N.W.2d 809 (1956).
As to the delegation of ministerial powers, see § 65.
4 Independent School Dist. of Danbury v. Christiansen, 242 Iowa 963, 49 N.W.2d 263 (1951); State ex rel. School Dist.
of Scottsbluff v. Ellis, 163 Neb. 86, 77 N.W.2d 809 (1956).
As to discretionary powers, generally, see §§ 55, 56.

§ 57. Ministerial powers, 2 Am. Jur. 2d Administrative Law § 57

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§ 58. Power to charge fees for services, 2 Am. Jur. 2d Administrative Law § 58
Administrative Law
1. In General
§ 58. Power to charge fees for services

A.L.R. Library
Measure of fees assessable by agency under 31 U.S.C.A. sec. 483a providing that federal agencies shall be self-sustaining
to full extent possible, 51 A.L.R. Fed. 588
Congress has stated its intention that federal agencies (except mixed-ownership government corporations), in order to be
self-sustaining to the extent possible, should be able to charge fees for each service or thing of value provided to a person
(except a person on official business of the United States government). 1This ability to charge “fees” does not include an
ability to levy taxes.2Entire agencies are not among those who may be assessed since the statute reaches only to specific
charges for specific services to specific individuals or companies. 3
The head of each agency may prescribe regulations establishing the charge for a service or thing of value provided by the
agency. These regulations are subject to policies prescribed by the President and must be as uniform as practicable. Each
charge must be fair and based on the costs to the government, the value of the service or thing to the recipient, the public
policy or interest served, and other relevant facts.4
This power does not affect a law of the United States prohibiting the determination and collection of charges and the
disposition of those charges and prescribing bases for determining charges although a charge may be redetermined under this
provision consistent with the prescribed base.5

§ 58. Power to charge fees for services, 2 Am. Jur. 2d Administrative Law § 58
Footnotes
1 31 U.S.C.A. § 9701(a).
2 National Cable Television Ass’n, Inc. v. U. S., 415 U.S. 336, 94 S. Ct. 1146, 39 L. Ed. 2d 370 (1974).
3 Federal Power Commission v. New England Power Co., 415 U.S. 345, 94 S. Ct. 1151, 39 L. Ed. 2d 383 (1974).
4 31 U.S.C.A. § 9701(b).
5 31 U.S.C.A. § 9701(c).

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Administrative Law
2. Separation of Powers of Government
§ 59. Generally

West’s Key Number Digest, Administrative Law and Procedure 8, 103.1, 301
The doctrine of separation of powers declares that governmental powers are divided among the three separate and
independent branches of government and broadly operates to distribute the power to make law to the legislature, the power to
execute law to the executive, and the power to interpret law to the judiciary. The doctrine ensures that the three branches of
government are distinct unto themselves and that they, exclusively, exercise the rights and responsibilities reserved unto
them.1However, the doctrine of separation of powers is grounded in flexibility and practicality,2and administrative agencies
combine to a certain extent the three powers of government.3Legislative authority may be delegated to an administrative body
where sufficient standards are set forth in statutes4that establish the manner and circumstance of the exercise of such
power.5Even broad delegations of authority are permissible under these circumstances. 6
Nevertheless, the doctrine of separation of powers affects administrative agencies. It is one of the bases for the principle that
courts may not usurp the functions of an administrative agency. 7In addition, separation of powers may be violated where
Congress tries to control the execution of its enactment directly instead of indirectly by passing new legislation. 8Congress’
authority to delegate portions of its powers to administrative agencies provides no support for the argument that Congress can
constitutionally control the administration of the laws by way of a congressional veto. 9
Observation:
States often, if not always, decide how power will be distributed among their governmental agencies, 10and a state constitution may
unite legislative and judicial powers in a single entity without constraint by the United States Constitution. 11

Cases:
Department of Health (DOH) had statutory authority to adopt conflict-of-interest rule, prohibiting evaluator who determines a
child’s eligibility for early intervention services, and the private agency which employs the evaluator, from providing
services to that child under contract with DOH, and did not violate separation of powers doctrine in promulgating it.
McKinney’s Public Health Law § 2550; McKinney’s Public Health Law § 2544(3)(b); McKinney’s Public Health Law §
2541(12); 10 NYCRR subpart 69–4. Agencies for Children’s Therapy Services, Inc. v. New York State Dept. of Health, 22
N.Y.S.3d 524 (App. Div. 2d Dep’t 2015).
[END OF SUPPLEMENT]
Footnotes
1 Am. Jur. 2d, Constitutional Law §§ 237, 238.
3 Sylvester v. Tindall, 154 Fla. 663, 18 So. 2d 892 (1944); Quesenberry v. Estep, 142 W. Va. 426, 95 S.E.2d 832 (1956).
As to the status of agencies in this regard, generally, see §§ 24 to 26.
4 Kaufman v. State Dept. of Social and Rehabilitative Services, 248 Kan. 951, 811 P.2d 876 (1991); Sullivan v. Board
of License Com’rs for Prince George’s County, 293 Md. 113, 442 A.2d 558 (1982).
As to legislative standards governing administrative action, see § 48.
5 Kaufman v. State Dept. of Social and Rehabilitative Services, 248 Kan. 951, 811 P.2d 876 (1991).
6 Sullivan v. Board of License Com’rs for Prince George’s County, 293 Md. 113, 442 A.2d 558 (1982).
7 American Trucking Ass’ns v. U.S., 344 U.S. 298, 73 S. Ct. 307, 97 L. Ed. 337 (1953).
8 Bowsher v. Synar, 478 U.S. 714, 106 S. Ct. 3181, 92 L. Ed. 2d 583 (1986).
9 I.N.S. v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983).
10 Sweezy v. State of N.H. by Wyman, 354 U.S. 234, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 (1957).
11 Keller v. Potomac Electric Power Co., 261 U.S. 428, 43 S. Ct. 445, 67 L. Ed. 731 (1923).

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§ 60. Encroachment by agency on adjudicative functions of..., 2 Am. Jur. 2d...
Administrative Law
§ 60. Encroachment by agency on adjudicative functions of judicial branch

The United States Constitution1and some state constitutions have provisions vesting judicial powers in the courts. 2However,
administrative agencies may make factual determinations and even adjudicate rights of the parties without running afoul of
the constitutional separation of powers.3For instance, Congress can establish under Article I “legislative courts” 4to serve as
special tribunals to examine and determine various matters arising between the government and others, which from their
nature do not require judicial determination and yet are susceptible of it. 5
Observation:
Under some authority, it is where an agency purports to enter enforceable judgments that the court has drawn the line of
permissibility. This is so because it is the power to render enforceable judgments which is the essence of judicial power. 6However,
some statutes confer power to punish for civil contempt or imply a power to hold persons in criminal contempt. 7
Footnotes
1 U.S. Const. Art. III, § 1.
2 Am. Jur. 2d, Courts § 5.

§ 60. Encroachment by agency on adjudicative functions of..., 2 Am. Jur. 2d...
3 Alakai Na Keiki, Inc. v. Matayoshi, 127 Haw. 263, 277 P.3d 988, 280 Ed. Law Rep. 450 (2012); State ex rel. Keasling
by Keasling v. Keasling, 442 N.W.2d 118 (Iowa 1989).
As to administrative agencies as judicial bodies or courts, see §§ 24, 25.
4 Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982).
5 Crowell v. Benson, 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598 (1932).
6 State ex rel. Keasling by Keasling v. Keasling, 442 N.W.2d 118 (Iowa 1989).
7 Kennedy v. Kenney Mfg. Co., 519 A.2d 585 (R.I. 1987).

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§ 61. Combining investigative, prosecutorial, and judicial powers, 2 Am. Jur. 2d...
Administrative Law
§ 61. Combining investigative, prosecutorial, and judicial powers

Some administrative agencies investigate violations of the law and act as accusers or act as advocate or prosecutor as well as
judge in the same proceeding.1It is typical for the members of administrative agencies to receive the results of investigations,
to approve the filing of charges or formal complaints instituting enforcement proceedings, and then to participate in the
ensuing hearings. This mode of procedure does not violate the administrative procedure act, and it does not violate due
process of law.2
Observation:
When the legislature gives decision-making authority to an administrative board without violating the separation of powers
doctrine embodied in the constitution, that board has a dual character in which some of its acts are within the legislative or
administrative area, and others have the effect of a judgment. Such an administrative board is permitted to resolve issues of fact
and render decisions affecting private rights that have the same force of obligation and finality as judicial ones. 3
The danger of unfairness is particularly great in an agency in which there is a high degree of concentration of both
prosecuting and judicial functions.4Nevertheless, the combination of functions has not been held to violate constitutional
rights, such as due process of law,5or to deny a fair hearing.6However, the interested party in such a case must have the right
to cross-examine witnesses and present proof,7and a court may determine from the special facts and circumstances present in
the case before it that the risk of unfairness is intolerably high. 8

§ 61. Combining investigative, prosecutorial, and judicial powers, 2 Am. Jur. 2d...
Footnotes
1 U.S. v. Morton Salt Co., 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401 (1950); People v. Western Air Lines, 42 Cal. 2d
621, 268 P.2d 723 (1954); Board of Medical Examiners v. Steward, 203 Md. 574, 102 A.2d 248 (1954).
As to the status of agencies in this regard, generally, see §§ 24 to 26.
3 McKay v. New Hampshire Compensation Appeals Bd., 143 N.H. 722, 732 A.2d 1025 (1999).
4 Mazza v. Cavicchia, 15 N.J. 498, 105 A.2d 545 (1954).
As to the separation of prosecutorial or investigative and adjudicative functions, see §§ 303, 304.
5 Morongo Band of Mission Indians v. State Water Resources Control Bd., 45 Cal. 4th 731, 88 Cal. Rptr. 3d 610, 199
P.3d 1142 (2009).
6 Matter of Permits to Drain related to Stone Creek Channel Improvements and White Spur Drain, 424 N.W.2d 894
(N.D. 1988).
7 Matter of Carberry, 114 N.J. 574, 556 A.2d 314 (1989).

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Administrative Law
3. Acting Through Other Persons; Delegation to Subordinates
§ 62. Generally

The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation
and redelegation of authority as to many functions. 1Statutes often expressly provide for such delegation by the persons in
whom the powers of the agency are directly vested. 2
The authority to subdelegate need not be expressed in the statute but may be implied if there is a reasonable basis for such
implication.3However, state courts, in specific instances, have found that the statutory authority of a commission to employ
persons as may be necessary to perform its duties does not give the commission authority, either directly or by implication, to
deputize those matters which are quasi-judicial in character.4Moreover, under certain circumstances, the subdelegation of
power may be beyond the scope of authority of an administrative agency or invalid on constitutional grounds. 5
Cases:
A federal official’s sub-delegation to a subordinate official is presumptively permissible, absent affirmative evidence in the
original delegation of a contrary intent. Mobley v. C.I.A., 806 F.3d 568 (D.C. Cir. 2015).
[END OF SUPPLEMENT]

Footnotes
1 Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L. Ed. 2d 1434 (1959); Pistachio Group of the Ass’n of Food
Industries, Inc. v. U.S., 11 Ct. Int’l Trade 668, 671 F. Supp. 31 (1987).
2 L.P. Steuart & Bro. v. Bowles, 322 U.S. 398, 64 S. Ct. 1097, 88 L. Ed. 1350 (1944); U. S. Health Club, Inc. v. Major,
292 F.2d 665 (3d Cir. 1961); Berkshire Life Ins. Co. v. Maryland Ins. Admin., 142 Md. App. 628, 791 A.2d 942
(2002).
3 § 64.
4 Apice v. American Woolen Co., 74 R.I. 425, 60 A.2d 865 (1948); State Tax Commission of Utah v. Katsis, 90 Utah
406, 62 P.2d 120, 107 A.L.R. 1477 (1936).
5 Warren v. Marion County, 222 Or. 307, 353 P.2d 257 (1960).

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§ 63. Delegation under federal law, 2 Am. Jur. 2d Administrative Law § 63
Administrative Law
§ 63. Delegation under federal law

Pursuant to federal law, in addition to the authority to delegate conferred by other law, the head of an agency may delegate to
subordinate officials the authority vested in him or her by law to take final action on matters pertaining to the employment,
direction, and general administration of personnel under his or her agency, 1as well as the authority to authorize the
publication of advertisements, notices, or proposals.2Thus, for instance, agency heads may delegate the authority to issue and
promulgate regulations dealing with the discharge of personnel. 3
The failure of an executive order to name the office of one to whom authority is delegated does not vitiate that order if the
person named is an officer appointed by the President and confirmed by the Senate. 4
Footnotes
1 5 U.S.C.A. § 302(b)(1).
2 5 U.S.C.A. § 302(b)(2).
3 Reed v. Franke, 297 F.2d 17 (4th Cir. 1961).
4 U.S. v. Chemical Foundation, 272 U.S. 1, 47 S. Ct. 1, 71 L. Ed. 131 (1926).

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§ 63. Delegation under federal law, 2 Am. Jur. 2d Administrative Law § 63

§ 64. Delegation implied from statute or nature of agency, 2 Am. Jur. 2d Administrative...
Administrative Law
§ 64. Delegation implied from statute or nature of agency

The authority to subdelegate need not be expressed in the statute but may be implied if there is a reasonable basis for such
implication.1The authority of an agency to delegate a particular function may be found in the power conferred upon an agency
to issue regulations or orders as may be deemed necessary or proper in order to carry out its purposes unless by express
provision of the statute or by implication it has been withheld.2In addition, the authority of an administrative agency to
delegate its powers, including its discretionary or quasi-judicial powers, to subordinates within the agency may be implied
from the nature of the agency.3
Where Congress confers power upon the President of the United States, even if there is no express authority to act by
deputies, such authority is implied.4Powers bestowed upon the President must, of necessity, be exercised through the various
executive departments.5Moreover, the necessity of performance of duties in the federal executive departments through
subordinates is recognized, and acts of an acting secretary6or an assistant secretary7or other subordinates8are deemed to be
acts of the secretary when they are done under his or her sanction and approval.
The same principles have been applied to uphold delegations by lesser federal9and by state10administrative agencies which, in
view of the magnitude of their tasks, are deemed not to have been intended to exercise their discretion personally; further, the
same principles which will admit of delegation by an administrative agency in any case may suffice to justify a redelegation
by its delegate.11
Footnotes
1 Warren v. Marion County, 222 Or. 307, 353 P.2d 257 (1960).
As to implied powers, generally, see § 54.

§ 64. Delegation implied from statute or nature of agency, 2 Am. Jur. 2d Administrative...
2 Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 67 S. Ct. 1129, 91 L. Ed. 1375 (1947).
An agency may impliedly delegate administrative authority if it is consistent with the legislative purpose. Santaniello
v. New Jersey Dept. of Health and Senior Services, 416 N.J. Super. 445, 5 A.3d 804 (App. Div. 2010).
3 Kimm v. Rosenberg, 363 U.S. 405, 80 S. Ct. 1139, 4 L. Ed. 2d 1299 (1960).
4 Shreveport Engraving Co. v. U.S., 143 F.2d 222 (C.C.A. 5th Cir. 1944).
5 U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S. Ct. 309, 94 L. Ed. 317 (1950).
6 Morgan v. U.S., 298 U.S. 468, 56 S. Ct. 906, 80 L. Ed. 1288 (1936).
7 Hannibal Bridge Co v. U S, 221 U.S. 194, 31 S. Ct. 603, 55 L. Ed. 699 (1911).
8 United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499, 98 L. Ed. 681 (1954).
9 Louisiana Forestry Ass’n Inc. v. Secretary U.S. Dept. of Labor, 745 F.3d 653 (3d Cir. 2014); Papagianakis v. The
Samos, 186 F.2d 257 (4th Cir. 1950).
10 Krug v. Lincoln Nat. Life Ins. Co., 245 F.2d 848 (5th Cir. 1957).
11 Shreveport Engraving Co. v. U.S., 143 F.2d 222 (C.C.A. 5th Cir. 1944).

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§ 65. Type of power, as affecting whether power may be..., 2 Am. Jur. 2d...
Administrative Law
§ 65. Type of power, as affecting whether power may be delegated

In all cases of delegated authority, where personal trust or confidence is reposed in the agent and especially where the
exercise and application of the power is made subject to judgment or discretion, the authority is purely personal and cannot
be delegated to another unless there is a special power of substitution either express or necessarily implied. 1Accordingly,
apart from statute, whether administrative officers in whom certain powers are vested or upon whom certain duties are
imposed may deputize others to exercise such powers or perform such duties usually depends upon whether the particular act
or duty sought to be delegated is ministerial or discretionary or quasi-judicial in nature.2Merely administrative and ministerial
functions may be delegated to assistants whose employment is authorized, 3but there generally is no authority to delegate acts
discretionary or quasi-judicial in nature.4
Cases:
When Labor Commission, through its administrative law judges (ALJs), acts in quasi-judicial role in workers’ compensation
cases, it cannot delegate its adjudicative authority without running afoul of provision in Utah Constitution, stating that
judicial power of the state shall be vested in a Supreme Court, in a trial court of general jurisdiction known as the district
court, and in such other courts as the legislature by statute may establish. Utah Const. art. 8, § 1. Ramos v. Cobblestone
Centre, 2020 UT 55, 472 P.3d 910 (Utah 2020).
[END OF SUPPLEMENT]

§ 65. Type of power, as affecting whether power may be..., 2 Am. Jur. 2d...
Footnotes
1 Anderson v. Grand River Dam Authority, 1968 OK 143, 446 P.2d 814 (Okla. 1968).
2 Riverhead Park Corp. v. Cardinale, 881 F. Supp. 2d 376 (E.D. N.Y. 2012) (applying New York law); Washington
Federation of State Employees v. State Dept. of General Admin., 152 Wash. App. 368, 216 P.3d 1061 (Div. 2 2009).
As to the distinction between discretionary and ministerial powers, see §§ 55, 57.
3 Krug v. Lincoln Nat. Life Ins. Co., 245 F.2d 848 (5th Cir. 1957); School Dist. No. 3 of Town of Adams v. Callahan,
237 Wis. 560, 297 N.W. 407, 135 A.L.R. 1081 (1941).
4 Riverhead Park Corp. v. Cardinale, 881 F. Supp. 2d 376 (E.D. N.Y. 2012) (applying New York law); Gabrilson v.
Flynn, 554 N.W.2d 267, 113 Ed. Law Rep. 894 (Iowa 1996).

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§ 66. Delegation to private parties, 2 Am. Jur. 2d Administrative Law § 66
Administrative Law
§ 66. Delegation to private parties

West’s Key Number Digest, Administrative Law and Procedure 318, 322.1, 323, 331
When Congress has specifically vested an agency with the authority to administer a statute, it may not shift that responsibility
to a private actor,1and such delegations to nongovernmental entities may be assumed to be improper absent an affirmative
showing of congressional authorization.2Delegations of administrative authority are suspect when they are made to private
parties, particularly to entities whose objectivity may be questioned on the grounds of conflict of interest.3An agency
abdicates its role as a rational decision maker if it does not exercise its own judgment and instead cedes near total deference
to private parties’ estimates even if the parties agree unanimously as to the estimated amount. 4However, subdelegations by
federal agencies to private parties are not invalid if the federal agency or official retains final reviewing authority. 5
Observation:
Whether a state agency may exercise internal management discretion and determine to perform its constitutional or statutory duty
using an independent contractor depends upon whether the agency possesses express or implied authority to make such a decision
in a particular circumstance.6
Footnotes
1 Perot v. Federal Election Com’n, 97 F.3d 553 (D.C. Cir. 1996).
§ 66. Delegation to private parties, 2 Am. Jur. 2d Administrative Law § 66
2 Gentiva Healthcare Corp. v. Sebelius, 723 F.3d 292 (D.C. Cir. 2013).
3 Pistachio Group of the Ass’n of Food Industries, Inc. v. U.S., 11 Ct. Int’l Trade 668, 671 F. Supp. 31 (1987).
4 Texas Office of Public Utility Counsel v. F.C.C., 265 F.3d 313 (5th Cir. 2001).
5 United Black Fund, Inc. v. Hampton, 352 F. Supp. 898 (D.D.C. 1972).
6 Oklahoma Public Employees Ass’n v. Oklahoma Dept. of Central Services, 2002 OK 71, 55 P.3d 1072 (Okla. 2002).

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Administrative Law
4. Interpretation of Laws
a. Power of Agencies; In General
§ 67. Generally

West’s Key Number Digest, Administrative Law and Procedure 303.1, 316, 428 to 437
Administrative agencies are generally clothed with the power to construe the law as a necessary precedent to administrative
action.1Even so, it is axiomatic that an administrative agency has no power to declare a statute void or otherwise
unenforceable2and has no authority to invalidate a statute on constitutional grounds or to question its validity. 3
Observation:
An administrative agency has the power and the duty to interpret its own legislative rules just as it has the power and duty to
interpret the statutes that it enforces.4
Agencies cannot by interpretation enlarge the scope of or change a properly enacted statute. 5An agency cannot modify,
abridge, or otherwise change the statutory provisions under which it acquires authority unless the statutes expressly grant it
that power.6Although an administrative agency has the authority and duty to determine its own limits of statutory authority, it
is the function of the judiciary to finally decide the limits of the authority of the agency. 7

Cases:
Where Congress has explicitly provided a definition for a term, and that definition is clear, an agency must follow it when
exercising its discretion. Safer Chemicals, Healthy Families v. U.S. Environmental Protection Agency, 943 F.3d 397 (9th Cir.
2019), for additional opinion, see, 2019 WL 6041996 (9th Cir. 2019).
To determine whether the Legislature clearly vested an agency with authority to interpret particular statutes, the appellate
court considers the phrases or statutory provisions to be interpreted, their context, the purpose of the statute, and other
practical considerations as well as the functions of and duties imposed on the agency. Dairy v. Billick, 861 N.W.2d 814
(Iowa 2015).
[END OF SUPPLEMENT]
Footnotes
1 City of North Las Vegas v. State Local Government Employee-Management Relations Bd., 261 P.3d 1071, 127 Nev.
Adv. Op. No. 57 (Nev. 2011); J.R. Simplot Co., Inc. v. Idaho State Tax Com’n, 120 Idaho 849, 820 P.2d 1206 (1991);
Dean v. State, 250 Kan. 417, 826 P.2d 1372 (1992).
2 Palm Harbor Special Fire Control Dist. v. Kelly, 516 So. 2d 249 (Fla. 1987); HOH Corp. v. Motor Vehicle Industry
Licensing Bd., Dept. of Commerce and Consumer Affairs, 69 Haw. 135, 736 P.2d 1271 (1987).
3 Delgado v. Board of Election Com’rs of City of Chicago, 224 Ill. 2d 481, 309 Ill. Dec. 820, 865 N.E.2d 183 (2007); In
re Worker’s Compensation Claim of Shryack, 3 P.3d 850 (Wyo. 2000).
As to constitutional questions and claims before agencies, see § 68.
4 Hoctor v. U.S. Dept. of Agriculture, 82 F.3d 165 (7th Cir. 1996).
5 Metheny v. Hammonds, 216 F.3d 1307 (11th Cir. 2000) (applying Georgia law); Ex parte State Health Planning and
Development Agency, 855 So. 2d 1098 (Ala. 2002); United Ass’n Local Union 246, AFL-CIO v. Occupational Safety
and Health Appeals Bd., 199 Cal. App. 4th 273, 131 Cal. Rptr. 3d 74 (3d Dist. 2011).
6 Castro v. Viera, 207 Conn. 420, 541 A.2d 1216 (1988).
7 Moderate Income Housing, Inc. v. Board of Review of Pottawattamie County, 393 N.W.2d 324 (Iowa 1986).

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§ 68. Constitutional questions and claims before agencies, 2 Am. Jur. 2d Administrative...
Administrative Law
§ 68. Constitutional questions and claims before agencies

As a general rule, administrative agencies have no jurisdiction to decide issues of constitutional law. 1The power delegated by
the legislature to an agency generally does not include the inherent authority to decide whether a particular statute or
regulation that the agency is charged with enforcing is constitutional. 2
While some courts have declared that challenges to the constitutionality of a statute or regulation promulgated by an agency
are generally beyond the power or jurisdiction of the agency, 3other courts have found that administrative agencies may
consider constitutional claims, although they lack the authority to deal with them dispositively, as the final say on
constitutional matters rests with the courts.4Yet other authority has found that administrative agencies have the power to
declare statutes and rules unconstitutional, when done with care, 5or that administrative agencies have the power to pass on
constitutional questions where relevant and necessary to the resolution of a question concededly within their jurisdiction. 6
Cases:
Although an agency lacks power to decide constitutionality of its enabling statutes and regulations, it can and should make
factual findings necessary to address a constitutional question closely intertwined with the facts of a specific case subject to
agency adjudication and apply its expertise to construction and application of any related statutes or regulations in light of
constitutional question; this process compiles an appropriate record for the Superior Court to consider on appeal in
determining whether the agency’s determinations were made in compliance with or in violation of constitutional provisions.
Mass. Gen. Laws Ann. ch. 30A, § 14(7)(a). Doe v. Sex Offender Registry Board, 488 Mass. 15, 170 N.E.3d 1143 (2021).
§ 68. Constitutional questions and claims before agencies, 2 Am. Jur. 2d Administrative...
[END OF SUPPLEMENT]
Footnotes
1 Reed v. Arvis Harper Bail Bonds, Inc., 2010 Ark. 338, 368 S.W.3d 69 (2010); Stinemetz v. Kansas Health Policy
Authority, 45 Kan. App. 2d 818, 252 P.3d 141 (2011).
2 Doe v. Sex Offender Registry Bd., 459 Mass. 603, 947 N.E.2d 9 (2011).
As a rule, an administrative agency lacks authority to decide the constitutionality of a statute. Edwards Aquifer
Authority v. Day, 369 S.W.3d 814 (Tex. 2012).
3 Gilbert v. National Transp. Safety Bd., 80 F.3d 364 (9th Cir. 1996).
4 Singh v. Reno, 182 F.3d 504 (7th Cir. 1999), as amended on other grounds on denial of reh’g, (Aug. 10, 1999).
5 Outdoor Media Dimensions Inc. v. State, 331 Or. 634, 20 P.3d 180 (2001).
6 New Jersey Dept. of Envir. Prot. v. Huber, 213 N.J. 338, 63 A.3d 197 (2013).

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§ 69. Purpose of administrative interpretation; clarifying..., 2 Am. Jur. 2d...
Administrative Law
§ 69. Purpose of administrative interpretation; clarifying ambiguity

When there is internal conflict in a statute’s mandates, the job of the agency administrator is to implement the central aim of
the statute.1When a legislative prescription is ambiguous, the administrator of such a statute must choose between conflicting
reasonable interpretations.2Although the secretary of an executive department is free to adopt a reasonable interpretation of an
ambiguous statute, the secretary is not free to disregard an unambiguous aspect of a statute to clarify and effect an ambiguous
one.3
Caution:
Ambiguity anywhere in a statute is not a license to the administrative agency that interprets the statute to roam about that statute
looking for other provisions to narrow or expand through the process of definition; rather, the delegated authority to interpret an
ambiguous statutory term extends only to the specific subject matter covered by the ambiguous term.4
In order to justify construction by either an administrative agency or court, it must first appear that construction is
necessary,5for while administrative agencies have the authority to interpret the laws which they administer, such
interpretation cannot be contrary to clear legislative intent. 6An unambiguous statute may not be supplemented 7or altered8in
the guise of interpretation. If the intent of a statute is clear, both the court and the agency charged with administering the
statute must give effect to the unambiguously expressed will of the legislature. 9

§ 69. Purpose of administrative interpretation; clarifying..., 2 Am. Jur. 2d...
Cases:
When an administrative agency’s interpretation of a statute is inconsistent with the statute itself, or when the statute is
unambiguous, such administrative interpretation carries little weight. Lancaster County v. Pennsylvania Labor Relations Bd.,
124 A.3d 1269 (Pa. 2015).
[END OF SUPPLEMENT]
Footnotes
1 Massachusetts ex rel. Div. of Marine Fisheries v. Daley, 170 F.3d 23 (1st Cir. 1999).
2 Holly Farms Corp. v. N.L.R.B., 517 U.S. 392, 116 S. Ct. 1396, 134 L. Ed. 2d 593 (1996).
3 Mt. Emmons Min. Co. v. Babbitt, 117 F.3d 1167 (10th Cir. 1997).
4 Bower v. Federal Exp. Corp., 96 F.3d 200, 17 A.D.D. 735, 1996 FED App. 0306P (6th Cir. 1996).
5 Cullinan v. McColgan, 80 Cal. App. 2d 976, 183 P.2d 115 (3d Dist. 1947).
6 Abramson v. Florida Psychological Ass’n, 634 So. 2d 610 (Fla. 1994).
Administrative orders and rules that are contrary to legislative intent must be rejected. Dababnah v. West Virginia Bd.
of Medicine, 207 W. Va. 621, 535 S.E.2d 220 (2000).
7 Cullinan v. McColgan, 80 Cal. App. 2d 976, 183 P.2d 115 (3d Dist. 1947).
8 Helvering v. Sabine Transp. Co., 318 U.S. 306, 63 S. Ct. 569, 87 L. Ed. 773 (1943); In re Loeb’s Estate, 400 Pa. 368,
162 A.2d 207 (1960).
9 American Federation of Government Employees v. Rumsfeld, 262 F.3d 649 (7th Cir. 2001); Haug v. Bank of
America, N.A., 317 F.3d 832 (8th Cir. 2003).

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§ 70. Requirement that agency follow courts; nonacquiescence, 2 Am. Jur. 2d...
Administrative Law
§ 70. Requirement that agency follow courts; nonacquiescence

Federal agencies are required to abide by the law of the relevant federal judicial circuit in matters arising within the
jurisdiction of that circuit’s court of appeals until and unless it is changed by that court of appeals or reversed by the United
States Supreme Court.1In order to establish agency nonacquiescence, the evidence must demonstrate that the agency has
deliberately failed to follow the law of the circuits whose courts have jurisdiction over the cause of action. Where the agency
does not formally announce that it will nonacquiesce in a particular decision, the agency’s conduct cannot be considered
nonacquiescence unless there are substantial differences between agency policy and court holdings and unless these
differences have influenced the agency’s adjudication of individual cases. 2
Observation:
Despite the rule regarding the obligation of agencies to follow court precedent, an agency does not have to incorporate dicta as
policy, nor does it have to apply a holding beyond the scope of the decision itself. In addition, if the agency finds a principled
distinction between a particular set of factual circumstances and the case in which the court articulated its holding, and if the
agency believes in good faith that the decision should not be applied in those circumstances, it is entitled to set out the
circumstances where the decision would be controlling and where the agency has decided it should not be applied. 3

§ 70. Requirement that agency follow courts; nonacquiescence, 2 Am. Jur. 2d...
Caution:
An agency is bound to follow higher authority only when it acts as an adjudicator and not when it litigates. 4
Footnotes
1 Industrial TurnAround Corp. v. N.L.R.B., 115 F.3d 248 (4th Cir. 1997).
2 Stieberger v. Sullivan, 738 F. Supp. 716 (S.D. N.Y. 1990).
3 Stieberger v. Sullivan, 738 F. Supp. 716 (S.D. N.Y. 1990).
4 National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs, 260 F.3d 1365 (Fed. Cir. 2001).

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§ 71. Methods of interpretation, 2 Am. Jur. 2d Administrative Law § 71
Administrative Law
§ 71. Methods of interpretation

The power of an administrative agency to construe and interpret the law is applied in several different ways. The
administrative agencies may interpret and construe the law through issuing rules and regulations. 1An administrative agency
may also render interpretations of the law in the course of exercising its adjudicating powers. 2When, as an incident to its
adjudicatory function, an agency interprets a statute, it may apply that new interpretation in the proceeding before it. 3
As an alternative to acting formally through rulemaking or adjudication, administrative agencies may act informally. 4In fact,
informal action constitutes the bulk of the activity of most administrative agencies. 5It is action that is neither adjudication nor
rulemaking and includes investigating, publicizing, planning, and supervising a regulated industry. 6In addition, an agency
may, even without the statutory authorization to do so, specifically issue interpretations, rulings, or opinions upon the law it
administers.7
Observation:
The various kinds of action can overlap, and the line between agency rulemaking and adjudication on the one hand and informal
action on the other can become blurred.8
§ 71. Methods of interpretation, 2 Am. Jur. 2d Administrative Law § 71
Footnotes
1 § 127.
2 § 258.
3 Clark-Cowlitz Joint Operating Agency v. F.E.R.C., 826 F.2d 1074 (D.C. Cir. 1987).
4 R & R Marketing, L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 729 A.2d 1 (1999).
7 Skidmore v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161, 89 L. Ed. 124 (1944); Utah Hotel Co. v. Industrial
Commission, 107 Utah 24, 151 P.2d 467, 153 A.L.R. 1176 (1944).

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§ 72. Effect of interpretation, 2 Am. Jur. 2d Administrative Law § 72
Administrative Law
§ 72. Effect of interpretation

West’s Key Number Digest, Administrative Law and Procedure 303.1, 305, 430, 435
Construction and interpretation by an administrative agency of the law under which it acts provide a practical guide as to how
the agency will seek to apply the law.1An agency to which the legislative branch has delegated policymaking responsibilities
may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its
judgments.2However, despite the fact that the interpretation given to statutes and regulations by administrative agencies is
given great weight by the courts,3one who chooses to rely upon an interpretative regulation does so at his or her own peril and
stands the risk of its not being followed by the courts. 4An erroneous construction of a statute by a state department cannot
operate to confer a legal right in accordance with such construction. 5
Footnotes
1 Skidmore v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161, 89 L. Ed. 124 (1944).
2 City of Albuquerque v. New Mexico Public Regulation Com’n, 2003-NMSC-028, 134 N.M. 472, 79 P.3d 297 (2003).
3 § 74.
4 Sawyer v. Central Louisiana Elec. Co., 136 So. 2d 153 (La. Ct. App. 3d Cir. 1961); Utah Hotel Co. v. Industrial
Commission, 107 Utah 24, 151 P.2d 467, 153 A.L.R. 1176 (1944).
5 Department of Insurance of Indiana v. Church Members Relief Ass’n, 217 Ind. 58, 26 N.E.2d 51, 128 A.L.R. 635
(1940).

§ 72. Effect of interpretation, 2 Am. Jur. 2d Administrative Law § 72

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§ 73. Change in construction, 2 Am. Jur. 2d Administrative Law § 73
Administrative Law
§ 73. Change in construction

A construction of a statute by those administering it, even though long continued, is not binding on them or their successors if
thereafter they become satisfied that a different construction should be given. 1This is especially true where the earlier
construction was clearly erroneous2but also applies when the prior construction is merely no longer sound or
appropriate.3Agencies have leeway to change their interpretations of laws, as well as of their own regulations, provided they
explain the reasons for such change and provided that those reasons meet the applicable standard of review. 4While an agency
is not locked into the first interpretation of a statute it embraces, it cannot simply adopt inconsistent positions without
presenting some reasoned analysis.5An agency may change its interpretation of an underlying statutory provision even absent
any alteration in that provision so long as the reason for the change is explained, and the change does not conflict with the
underlying statute.6
Footnotes
1 Alstate Const. Co. v. Durkin, 345 U.S. 13, 73 S. Ct. 565, 97 L. Ed. 745 (1953); Faingnaert v. Moss, 295 N.Y. 18, 64
N.E.2d 337 (1945).
2 Calbeck v. Travelers Ins. Co., 370 U.S. 114, 82 S. Ct. 1196, 8 L. Ed. 2d 368 (1962).
3 New York Tel. Co. v. F. C. C., 631 F.2d 1059 (2d Cir. 1980).
4 Saint Fort v. Ashcroft, 329 F.3d 191 (1st Cir. 2003).
5 Huntington Hosp. v. Thompson, 319 F.3d 74 (2d Cir. 2003).

§ 73. Change in construction, 2 Am. Jur. 2d Administrative Law § 73
6 Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003).

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§ 74. Generally; deference rule, 2 Am. Jur. 2d Administrative Law § 74
Administrative Law
b. Effect Given by Courts
§ 74. Generally; deference rule

A.L.R. Library
Construction and Application of “Chevron Deference” to Administrative Action by United States Supreme Court, 3
A.L.R. Fed. 2d 25
Generally, permissible1constructions given to ambiguous statutes2by agencies responsible for their administration are entitled
to great weight3or deference4by the courts if neither irrational5nor unreasonable.6Reviewing courts must respect the judgment
of an agency empowered to apply an ambiguous law to varying fact patterns even if the issue, with equal reason, is capable of
being resolved one way rather than another. 7
Observation:
A court must defer to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory
authority, that is, its jurisdiction; no matter how it is framed, the question a court faces when confronted with an agency’s
interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory
authority.8

On the other hand, where the administrative construction is manifestly wrong or clearly erroneous, 9arbitrary,10or
unreasonable,11it is not binding and will not be followed.
In any event, the construction of statutes and other laws is a matter which ultimately is for the courts. 12
Cases:
In the usual course, when an agency is authorized by Congress to issue regulations and promulgates a regulation interpreting
a statute it enforces, the interpretation receives deference if the statute is ambiguous and if the agency’s interpretation is
reasonable, and this principle is implemented by the two-step analysis set forth in Chevron. Encino Motorcars, LLC v.
Navarro, 136 S. Ct. 2117 (2016).
Administrative interpretations of statutory provisions qualify for Chevron deference when it appears that Congress delegated
authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming
deference was promulgated in the exercise of that authority. Anna Jacques Hosp. v. Burwell, 797 F.3d 1155 (D.C. Cir. 2015).
When a provision of law vests interpretive discretion in an agency, court may reverse only if the agency’s interpretation was
irrational, illogical, or wholly unjustifiable. Iowa Code Ann. § 17A.19(10)(l). United Electrical, Radio & Machine Workers
of America v. Iowa Public Employment Relations Board, 928 N.W.2d 101 (Iowa 2019).
For purposes of giving weight to the positions of administrative agencies, it does not matter whether an agency has been
consistent in its rulings; this is because an agency’s prior rulings and policies themselves are not entitled to great weight,
unless expressed in regulations. Nielsen Co. (US), LLC v. County Bd. of Arlington County, 767 S.E.2d 1 (Va. 2015).
[END OF SUPPLEMENT]
Footnotes
1 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694
(1984).
2 Presley v. Etowah County Com’n, 502 U.S. 491, 112 S. Ct. 820, 117 L. Ed. 2d 51 (1992); Eid v. Thompson, 740 F.3d
118 (3d Cir. 2014); Combs v. Chapal Zenray, Inc., 357 S.W.3d 751 (Tex. App. Austin 2011), reh’g overruled, (Jan.
25, 2012) and review denied, (Dec. 14, 2012).
(1984); Fishburn v. Indiana Public Retirement System, 2 N.E.3d 814 (Ind. Ct. App. 2014); Avenue Nursing Home and
Rehabilitation Centre v. Shah, 112 A.D.3d 1178, 977 N.Y.S.2d 774 (3d Dep’t 2013).
4 Negusie v. Holder, 555 U.S. 511, 129 S. Ct. 1159, 173 L. Ed. 2d 20 (2009); Nativi v. Deutsche Bank National Trust
Company, 223 Cal. App. 4th 261, 167 Cal. Rptr. 3d 173 (6th Dist. 2014), review denied, (Apr. 30, 2014); Federal Nat.
Mortg. Ass’n v. Sundquist, 2013 UT 45, 311 P.3d 1004 (Utah 2013), petition for certiorari filed, 82 U.S.L.W. 3453
(U.S. Jan. 14, 2014).
5 Democko v. Iowa Dept. of Natural Resources, 840 N.W.2d 281 (Iowa 2013); Lumpkin v. Department of Social
Services, 45 N.Y.2d 351, 408 N.Y.S.2d 421, 380 N.E.2d 249 (1978).

6 Presley v. Etowah County Com’n, 502 U.S. 491, 112 S. Ct. 820, 117 L. Ed. 2d 51 (1992); Federal Nat. Mortg. Ass’n
v. Sundquist, 2013 UT 45, 311 P.3d 1004 (Utah 2013), petition for certiorari filed, 82 U.S.L.W. 3453 (U.S. Jan. 14,
2014).
7 Holly Farms Corp. v. N.L.R.B., 517 U.S. 392, 116 S. Ct. 1396, 134 L. Ed. 2d 593 (1996).
8 City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863 (2013).
9 Federal Maritime Bd. v. Isbrandtsen Co., 356 U.S. 481, 78 S. Ct. 851, 2 L. Ed. 2d 926 (1958); Iowa Federation of
Labor, AFL-CIO v. Iowa Dept. of Job Service, 427 N.W.2d 443 (Iowa 1988); Durrett v. Bryan, 14 Kan. App. 2d 723,
799 P.2d 110 (1990).
10 Eid v. Thompson, 740 F.3d 118 (3d Cir. 2014); In re S.H., 2013 PA Super 165, 71 A.3d 973 (2013), appeal denied, 80
A.3d 778 (Pa. 2013).
11 Crittenden v. Cook County Com’n of Human Rights, 2013 IL 114876, 371 Ill. Dec. 783, 990 N.E.2d 1161 (Ill. 2013);
Avenue Nursing Home and Rehabilitation Centre v. Shah, 112 A.D.3d 1178, 977 N.Y.S.2d 774 (3d Dep’t 2013).
(1984); Hollinrake v. Iowa Law Enforcement Academy, Monroe County, 452 N.W.2d 598 (Iowa 1990); Durrett v.
Bryan, 14 Kan. App. 2d 723, 799 P.2d 110 (1990).

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§ 75. “Practical” construction, 2 Am. Jur. 2d Administrative Law § 75
Administrative Law
§ 75. “Practical” construction

Practical construction, as distinguished from judicial construction, is the interpretation put upon statutes by the actual
administration of them by government departments. 1The practical construction placed on a statute by an agency, if
reasonable, is highly persuasive.2An actual,3proven4construction by the administrative agency5subsequent to the adoption of a
statute6is essential to invoke the rule that the courts will give weight to a practical construction by administrative agencies in
determining the true meaning of a statute.7On the other hand, the court may decline to give force to a construction represented
by acts insufficient in rank, frequency, and duration to constitute a settled practice. 8
Footnotes
1 Department of Insurance of Indiana v. Church Members Relief Ass’n, 217 Ind. 58, 26 N.E.2d 51, 128 A.L.R. 635
(1940).
2 Wiese v. Freedom of Information Com’n, 82 Conn. App. 604, 847 A.2d 1004, 187 Ed. Law Rep. 933 (2004).
3 Railroad Commission v. Houston Natural Gas Corp., 186 S.W.2d 117 (Tex. Civ. App. Austin 1945), writ refused
w.o.m.
4 Hunstock v. Estate Development Corp., 22 Cal. 2d 205, 138 P.2d 1, 148 A.L.R. 968 (1943).
5 E. C. Olsen Co. v. State Tax Commission, 109 Utah 563, 168 P.2d 324 (1946).
6 U.S. v. Townsley, 323 U.S. 557, 65 S. Ct. 413, 89 L. Ed. 454 (1945).

§ 75. “Practical” construction, 2 Am. Jur. 2d Administrative Law § 75
7 Smith v. North Dakota Workers Compensation Bureau, 447 N.W.2d 250, 56 Ed. Law Rep. 1008 (N.D. 1989).
8 Manning v. Seeley Tube & Box Co. of New Jersey, 338 U.S. 561, 70 S. Ct. 386, 94 L. Ed. 346 (1950); In re
Porterfield, 28 Cal. 2d 91, 168 P.2d 706, 167 A.L.R. 675 (1946).

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§ 76. General limitations on deference, 2 Am. Jur. 2d Administrative Law § 76
Administrative Law
§ 76. General limitations on deference

The deference granted an agency’s interpretation of a statute is not absolute. 1There are general limitations on deference,
including—
— the statute must be one subject to construction, that is, ambiguous. 2
— judicial construction must be wanting.3
— the administrative construction must be decisive of the interpretation proposed to the court. 4
— the administrative construction must be confidently asserted.5
— the administrative construction must be made in the discharge of official duty. 6
— the administrative construction must be reasonable.7
— the administrative construction must not enlarge nor restrict the scope of the statute. 8
— the administrative construction must not conflict with the expressed purpose of the statute and the intention of the
legislature.9
The traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of
Congress.10Thus, the judiciary must reject administrative constructions which are contrary to clear congressional intent, 11such
as where the legislative history or the purpose and structure of the statute clearly reveal a contrary legislative intent. 12
Cases:
Chevron deference is not warranted where the regulation is procedurally defective, that is, where the agency errs by failing to
follow the correct procedures in issuing the regulation. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016).
§ 76. General limitations on deference, 2 Am. Jur. 2d Administrative Law § 76
A party might be foreclosed in some instances from challenging the procedures used by an agency to promulgate a given
rule, but where a proper challenge is raised to the agency procedures, and those procedures are defective, a court should not
accord Chevron deference to the agency interpretation. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016).
An unexplained inconsistency in agency policy is a reason for holding an interpretation to be an arbitrary and capricious
change from agency practice, and an arbitrary and capricious regulation of this sort is itself unlawful and receives no Chevron
deference. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016).
Unexplained inconsistency between agency actions is a reason for holding an agency’s interpretation to be an arbitrary and
capricious change under the Administrative Procedure Act (APA). Western Watersheds Project v. Bernhardt, 428 F. Supp. 3d
327 (D. Or. 2019).
[END OF SUPPLEMENT]
Footnotes
1 Department of Natural Resources v. Wingfield Development Co., 581 So. 2d 193 (Fla. 1st DCA 1991).
2 Haggar Co. v. Helvering, 308 U.S. 389, 60 S. Ct. 337, 84 L. Ed. 340 (1940); Combs v. Chapal Zenray, Inc., 357
S.W.3d 751 (Tex. App. Austin 2011), reh’g overruled, (Jan. 25, 2012) and review denied, (Dec. 14, 2012).
3 Sanford’s Estate v. Commissioner of Internal Revenue, 308 U.S. 39, 60 S. Ct. 51, 84 L. Ed. 20 (1939); E. C. Olsen Co.
v. State Tax Commission, 109 Utah 563, 168 P.2d 324 (1946).
4
Propper v. Clark, 337 U.S. 472, 69 S. Ct. 1333, 93 L. Ed. 1480 (1949).
5 Civil Aeronautics Board v. Delta Air Lines, Inc., 367 U.S. 316, 81 S. Ct. 1611, 6 L. Ed. 2d 869 (1961).
6 State v. Mutual Life Ins. Co. of New York, 175 Ind. 59, 93 N.E. 213 (1910).
7 Stewart Park and Reserve Coalition, Inc. (SPARC) v. Slater, 352 F.3d 545 (2d Cir. 2003); Stanford v. Butler, 142 Tex.
692, 181 S.W.2d 269, 153 A.L.R. 1054 (1944).
8 Jewell Ridge Coal Corp. v. Local No. 6167, United Mine Workers of America, 325 U.S. 161, 65 S. Ct. 1063, 89 L. Ed.
1534 (1945); Ex parte State Health Planning and Development Agency, 855 So. 2d 1098 (Ala. 2002).
9 Harris v. Alcoholic Beverage Control Appeals Bd., 228 Cal. App. 2d 1, 39 Cal. Rptr. 192 (2d Dist. 1964); Beck v.
Groe, 245 Minn. 28, 70 N.W.2d 886, 52 A.L.R.2d 875 (1955).
10 K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 108 S. Ct. 1811, 100 L. Ed. 2d 313 (1988).
11
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694
(1984).
12 Chemical Mfrs. Ass’n v. Natural Resources Defense Council, Inc., 470 U.S. 116, 105 S. Ct. 1102, 84 L. Ed. 2d 90
(1985); In re Township of Warren, 132 N.J. 1, 622 A.2d 1257 (1993).

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§ 77. Implied legislative approval of administrative construction, 2 Am. Jur. 2d...
Administrative Law
§ 77. Implied legislative approval of administrative construction

Reenactment of a statutory provision without material change indicates legislative approval of its administrative
construction.1This is especially true where there are repeated reenactments, as in the case of the former federal revenue
acts;2where the administrative construction has also had judicial approval; 3or where there is evidence that the legislature
considered the administrative history of the statute or was advised of the construction 4as where there is a long-standing
interpretation of the statute by the agency.5
The legislature may also adopt an administrative construction of a statute when, subsequent to such construction, it amends
the statute.6A congressional failure to revise or repeal an agency’s interpretation of a statute when amending that statute is
persuasive evidence that the interpretation is the one intended by Congress. 7
Cases:
Re-enactment doctrine, by which Congress is presumed to be aware of an administrative or judicial interpretation of a statute
and to adopt it when re-enacting a statute without change, is merely an interpretive tool fashioned by the courts for their own
use in construing an ambiguous legislation. Mize v. Pompeo, 482 F. Supp. 3d 1317 (N.D. Ga. 2020).
Consideration of the principle that Congress is presumed to be aware of an administrative or judicial interpretation of a
statute and to adopt that interpretation when it re-enacts a statute without change is secondary to consideration of the text of
the statute itself and inapplicable where the court has already found the statutory language itself to be sufficient to establish
§ 77. Implied legislative approval of administrative construction, 2 Am. Jur. 2d...
its clear meaning. Kiviti v. Pompeo, 467 F. Supp. 3d 293 (D. Md. 2020).
[END OF SUPPLEMENT]
Footnotes
1 Helvering v. Wilshire Oil Co., 308 U.S. 90, 60 S. Ct. 18, 84 L. Ed. 101 (1939); Fajardo v. U.S. Atty. Gen., 659 F.3d
1303 (11th Cir. 2011); Wilson v. State, 272 S.W.3d 686 (Tex. App. Austin 2008).
2 Cammarano v. U.S., 358 U.S. 498, 79 S. Ct. 524, 3 L. Ed. 2d 462 (1959).
3 N.L.R.B. v. Gullett Gin Co., 340 U.S. 361, 71 S. Ct. 337, 95 L. Ed. 337 (1951).
4 Service v. Dulles, 354 U.S. 363, 77 S. Ct. 1152, 1 L. Ed. 2d 1403 (1957).
5 Federal Deposit Ins. Corp. v. Philadelphia Gear Corp., 476 U.S. 426, 106 S. Ct. 1931, 90 L. Ed. 2d 428 (1986).
6 Federal Housing Administration v. Darlington, Inc., 358 U.S. 84, 79 S. Ct. 141, 3 L. Ed. 2d 132 (1958); In re Stupack,
274 N.Y. 198, 8 N.E.2d 485, 110 A.L.R. 1158 (1937).
7 Young v. Community Nutrition Institute, 476 U.S. 974, 106 S. Ct. 2360, 90 L. Ed. 2d 959 (1986).

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§ 78. Effect of subsequent acts of legislature, 2 Am. Jur. 2d Administrative Law § 78
Administrative Law
§ 78. Effect of subsequent acts of legislature

The courts will not apply an administrative construction which has been prohibited by subsequent legislative enactments of
the same nature.1However, the legislature may adopt an administrative construction of a statute when, subsequent to such
construction, it amends the statute or reenacts it without overriding such construction. 2Ratification with positive legislation
makes an administrative construction virtually conclusive, 3and reenactment of a statute is persuasive evidence of legislative
approval.4
Footnotes
1 U.S. v. Gilmore, 75 U.S. 330, 19 L. Ed. 396, 1869 WL 11571 (1869).
2
§ 77.
4 C.I.R. v. Sternberger’s Estate, 348 U.S. 187, 75 S. Ct. 229, 99 L. Ed. 246 (1955).

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Research References, 2 Am. Jur. 2d Administrative Law III A Refs.
2 Am. Jur. 2d Administrative Law III A Refs.
Administrative Law
III. Meetings and Records; Disclosure to Public
A. Meetings; in General
Research References

A.L.R. Library
Works.

§ 79. Number of members necessary to act; time of meetings, 2 Am. Jur. 2d...
Administrative Law
§ 79. Number of members necessary to act; time of meetings

A.L.R. Library
Validity of Super-Majority Voting Requirements in Constitutional, Statutory, and Other Public Provisions, 28 A.L.R.6th
439
Forms
Forms relating to meetings and hearings, generally, see Am. Jur. Pleading and Practice Forms, Administrative Law
[Westlaw® Search Query]
A “quorum” is the number of members of a larger body that must participate for the valid transaction of business. 1A quorum
generally consists of a simple majority of a collective body; in the absence of a statutory provision contrary to the common
law, a majority of such a quorum is empowered to act for the body. 2However, a supermajority of those present may be
required by statute.3All members of the collective body must have had notice and the opportunity to act. 4
Observation:
Vacancies in membership caused by the death, resignation, ineligibility, failure to qualify, abstention, or incapacity of individual

§ 79. Number of members necessary to act; time of meetings, 2 Am. Jur. 2d...
members do not affect the legality of acts of a public body so long as they are authorized by a majority of its membership
constituting a quorum.5
Footnotes
1 New Process Steel, L.P. v. N.L.R.B., 560 U.S. 674, 130 S. Ct. 2635, 177 L. Ed. 2d 162 (2010).
2 F.T.C. v. Flotill Products, Inc., 389 U.S. 179, 88 S. Ct. 401, 19 L. Ed. 2d 398 (1967); Aziken v. District of Columbia
Alcoholic Beverage Control Bd., 29 A.3d 965 (D.C. 2011); Barton v. South Carolina Dept. of Probation Parole and
Pardon Services, 404 S.C. 395, 745 S.E.2d 110 (2013).
3 Mix v. City of New Orleans, 126 So. 2d 1 (La. Ct. App. 4th Cir. 1960) (two-thirds required).
4 Brown v. District of Columbia, 23 Ct. Cl. 505, 127 U.S. 579, 8 S. Ct. 1314, 32 L. Ed. 262 (1888); Carroll v. Alabama
Public Service Commission, 281 Ala. 559, 206 So. 2d 364 (1968).
5 U.S. Vision, Inc. v. Board of Examiners for Opticians, 15 Conn. App. 205, 545 A.2d 565 (1988); Hawaii Electric
Light Co., Inc. v. Department of Land and Natural Resources, 102 Haw. 257, 75 P.3d 160 (2003), as amended on other
grounds, (Aug. 25, 2003).

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§ 80. What members are counted, 2 Am. Jur. 2d Administrative Law § 80
Administrative Law
§ 80. What members are counted

Ex officio members of a board are counted in determining the presence of a quorum. 1In addition, a substitute member duly
designated in accordance with a statute in place of an absent or disqualified member is a member whose vote counts in
determining the required number of votes.2
For purposes of determining whether a legal quorum is present, a member who is disqualified whether because of interest,
bias, prejudice, or other good cause or because he or she has voluntarily recused him- or herself is not counted.3The fact that
the member is physically present and his or her name is on the final decision is irrelevant in such a case. 4One who merely
abstains, however, is counted towards the quorum.5
Footnotes
1 Louisville & Jefferson County Planning & Zoning Com’n v. Ogden, 307 Ky. 362, 210 S.W.2d 771 (1948).
2 Real Properties v. Board of Appeal of Boston, 311 Mass. 430, 42 N.E.2d 499 (1942).
3 Garris v. Governing Bd. of South Carolina Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48 (1998).
As to disqualification of members and officers, generally, see §§ 35 to 44.
4 King v. New Jersey Racing Com’n, 103 N.J. 412, 511 A.2d 615 (1986).
5 Walker Pontiac, Inc. v. Department of State, Bureau of Professional and Occupational Affairs, 136 Pa. Commw. 54,
582 A.2d 410 (1990).

§ 80. What members are counted, 2 Am. Jur. 2d Administrative Law § 80
Works.

Research References, 2 Am. Jur. 2d Administrative Law III B Refs.
2 Am. Jur. 2d Administrative Law III B Refs.
Administrative Law
B. Requirement that Meetings Be Public; Sunshine Acts
Research References

A.L.R. Library
Works.

Administrative Law
1. State Law
§ 81. Generally

A.L.R. Library
Validity, construction, and application of statutes making public proceedings open to the public, 38 A.L.R.3d 1070 (sec.
6(b) superseded in part by Attorney-client exception under state law making proceedings by public bodies open to the
public, 34 A.L.R.5th 591)
There is no common-law right to attend meetings of government bodies. 1However, many states have enacted public meeting
statutes, often termed “Sunshine Acts” or “Open Meeting Acts,” that provide that meetings of public entities within the state
must be open to the public at large.2The purpose of such statutes is to promote openness and accountability in
government3and to prevent the government from conducting the public’s business in secret. 4
Observation:
Sunshine acts are subject to a broad or liberal interpretation that is most favorable to the public. 5
A violation of the statute may occur not only where the meeting is private but also where the meeting is held in an
inconvenient location6or in a room so small as to make it inaccessible for public attendance. 7However, the law does not
require public bodies to conduct public meetings within municipal limits; rather, the only restriction is that meetings be
conducted with minimum cost or delay to the public.8
Some courts find that official action taken in violation of these statutes is not invalidated, 9at least in the absence of
prejudice,10although there is also authority invalidating such action. 11An invalid act passed in violation of an open meetings
act may be ratified in an open meeting although the ratification will only be effective from the date of the meeting in which
the valid action was taken.12
Under some authority, voluntary committees formed for the purposes of making recommendations to a board are not subject
to the state open meetings statute, in the absence of a statute, ordinance, or official act by the board designating the
committee as a public or subsidiary body.13However, an advisory committee is subject to a state sunshine act where it is
officially sanctioned by a governmental body, and such committee takes actions sufficiently similar to the types of formal
action found in the sunshine act.14
Cases:
While the Open Meetings Law (OML) does not require public bodies to meet, the remedy of voiding certain actions taken
without meeting applies to a public body, even if its regulations or practices do not require a meeting. Colo. Rev. Stat. Ann. §
24-6-401. Wisdom Works Counseling Services, P.C. v. Colorado Department of Corrections, 2015 COA 118, 360 P.3d 262
(Colo. App. 2015).
An evaluation team appointed by the Department of Revenue, whose job was to evaluate bid proposals from vendors seeking
award of contract to manage the Department’s child-support program and to share their evaluations with a negotiation team,
had no obligation under the Sunshine Law to conduct open, public meetings; each evaluation team member individually
evaluated the competitors’ proposals, individually assigned scores, and individually submitted their scores for consideration
by others, but never met, collaborated, or discussed the competing proposals, ranked the competitors, or excluded any from
consideration by the ultimate decider, the Department’s negotiation team. Fla. Const. art. 1, § 23; Fla. Stat. Ann. § 286.011.
Carlson v. State, 227 So. 3d 1261 (Fla. 1st DCA 2017).
A court is to analyze the coverage of the Public Meetings Law broadly and its exemptions narrowly. West’s Or.Rev. Stat.
Ann. § 192.610 et seq. Handy v. Lane County, 274 Or. App. 644, 362 P.3d 867 (2015).
[END OF SUPPLEMENT]
Footnotes
1 Abood v. League of Women Voters of Alaska, 743 P.2d 333 (Alaska 1987); Smith v. Cleveland, 94 Ohio App. 3d 780,
641 N.E.2d 828 (8th Dist. Cuyahoga County 1994).
2 Sarasota Citizens For Responsible Government v. City of Sarasota, 48 So. 3d 755 (Fla. 2010); EarthResources, LLC v.
Morgan County, 281 Ga. 396, 638 S.E.2d 325 (2006); Zehner v. Board of Educ. of Jordan-Elbridge Cent. School Dist.,
91 A.D.3d 1349, 937 N.Y.S.2d 510, 275 Ed. Law Rep. 963 (4th Dep’t 2012).
As to the federal government in the Sunshine Act, see §§ 88 to 97.
3 Armstrong v. Mayor and City Council of Baltimore, 409 Md. 648, 976 A.2d 349 (2009); Wasikowski v. Nebraska
Quality Jobs Bd., 264 Neb. 403, 648 N.W.2d 756 (2002); Kearns-Tribune Corp. v. Salt Lake County Com’n, 2001 UT

55, 28 P.3d 686 (Utah 2001).

4 State ex rel. Newman v. Columbus Tp. Bd., 15 Neb. App. 656, 735 N.W.2d 399 (2007); Smith v. Township of
Richmond, 82 A.3d 407 (Pa. 2013).
5 Galbiso v. Orosi Public Utility Dist., 167 Cal. App. 4th 1063, 84 Cal. Rptr. 3d 788 (5th Dist. 2008); McCrea v.
Flaherty, 71 Mass. App. Ct. 637, 885 N.E.2d 836 (2008); Schauer v. Grooms, 280 Neb. 426, 786 N.W.2d 909 (2010).
6 In re Foxfield Subdivision, 396 Ill. App. 3d 989, 336 Ill. Dec. 512, 920 N.E.2d 1102 (2d Dist. 2009).
7 Stevens v. City of Hutchinson, 11 Kan. App. 2d 290, 726 P.2d 279 (1986).
8 Wiedemann v. Town of Hilton Head Island, 344 S.C. 233, 542 S.E.2d 752 (Ct. App. 2001).
9 Dockside Discotheque, Inc. v. Board of Adjustment of Town of Southern Pines, 115 N.C. App. 303, 444 S.E.2d 451
(1994).
10 North Pacifica LLC v. California Coastal Com’n, 166 Cal. App. 4th 1416, 83 Cal. Rptr. 3d 636 (2d Dist. 2008).
11 Sarasota Citizens For Responsible Government v. City of Sarasota, 48 So. 3d 755 (Fla. 2010); Okmulgee County
Rural Water Dist. No. 2 v. Beggs Public Works Authority, 2009 OK CIV APP 51, 211 P.3d 225 (Div. 3 2009).
12 City of San Antonio v. River City Cabaret, Ltd., 32 S.W.3d 291 (Tex. App. San Antonio 2000).
13 Donahue v. State, 474 N.W.2d 537, 69 Ed. Law Rep. 1158 (Iowa 1991); State ex rel. Am. Civ. Liberties Union of
Ohio, Inc. v. Cuyahoga Cty. Bd. of Commers., 128 Ohio St. 3d 256, 2011-Ohio-625, 943 N.E.2d 553 (2011).
14 Frazer v. Dixon Unified School Dist., 18 Cal. App. 4th 781, 22 Cal. Rptr. 2d 641, 85 Ed. Law Rep. 127 (1st Dist.
1993); Animal Legal Defense Fund, Inc. v. Institutional Animal Care and Use Committee of University of Vermont,
159 Vt. 133, 616 A.2d 224, 79 Ed. Law Rep. 130 (1992).

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§ 82. Definition of “meeting”, 2 Am. Jur. 2d Administrative Law § 82
Administrative Law
1. State Law
§ 82. Definition of “meeting”

The term “meeting” in public meeting laws generally refers to all official deliberations and formal actions 1of all
governmental boards and commissions.2The elements of a “meeting” for the purpose of an open meetings act are: (1) a
quorum of a public body’s members are present; (2) a decision is deliberated or rendered; and (3) the decision concerns a
matter of public policy.3
Definition:
Under the open meetings law, a “meeting” is a gathering of a public body quorum at which it acquires information, discusses the
information, or makes decisions regarding that information within its jurisdiction. 4
Courts have found that a function is a “meeting” only where there are to occur deliberative stages of the decision-making
process that lead to the formation and determination of public policy. 5Some statutes provide that the term “meeting” does not
include chance or social gatherings that are not intended to circumvent the sunshine law 6although luncheons to discuss public
policy issues have been found to violate an open meetings law 7as have discussions held during a break in commission
meetings.8
Some states require a meeting to be formed of a quorum.9It has been found that a public body may violate the sunshine act by
clothing itself as a sham advisory committee or subcommittee of less than a quorum. 10

Cases:
The Open Meetings Act (OMA), also known as the Sunshine Law, precludes a public body from taking official action by
way of a secret ballot. Ohio Rev. Code Ann. § 121.22. State ex rel. More Bratenahl v. Village of Bratenahl, 157 Ohio St. 3d
309, 2019-Ohio-3233, 136 N.E.3d 447 (2019).
Within the context of the Open Public Meeting Act (OPMA), the Supreme Court would adopt the following definitions: (1) a
“meeting” of a governing body occurs when a majority of its members gathers with the collective intent of transacting the
governing body’s business, (2) a “committee thereof” with respect to a given governing body is an entity that the governing
body created or specifically authorized, and (3) a committee acts “on behalf of” a governing body when the committee
exercises actual or de facto decision-making authority on behalf of the governing body. West’s RCWA 42.30.030. Citizens
Alliance for Property Rights Legal Fund v. San Juan County, 359 P.3d 753 (Wash. 2015).
[END OF SUPPLEMENT]
Footnotes
1 Matter of Hutchinson, 440 N.W.2d 171 (Minn. Ct. App. 1989); Babac v. Pennsylvania Milk Marketing Bd., 531 Pa.
391, 613 A.2d 551 (1992).
2 Hinds County Bd. of Sup’rs v. Common Cause of Mississippi, 551 So. 2d 107 (Miss. 1989).
3 Jocham v. Tuscola County, 239 F. Supp. 2d 714 (E.D. Mich. 2003) (applying Michigan law).
4 Chanos v. Nevada Tax Com’n, 124 Nev. 232, 181 P.3d 675 (2008).
5 Hinds County Bd. of Sup’rs v. Common Cause of Mississippi, 551 So. 2d 107 (Miss. 1989); Harris v. Nordquist, 96
Or. App. 19, 771 P.2d 637, 52 Ed. Law Rep. 1281 (1989); Dallas Morning News Co. v. Board of Trustees of Dallas
Independent School Dist., 861 S.W.2d 532, 85 Ed. Law Rep. 1244 (Tex. App. Dallas 1993), writ denied, (Mar. 30,
1994).
6 State ex rel. Badke v. Village Bd. of Village of Greendale, 173 Wis. 2d 553, 494 N.W.2d 408 (1993).
7 Booth Newspapers, Inc. v. Wyoming City Council, 168 Mich. App. 459, 425 N.W.2d 695 (1988).
8 Thuma v. Kroschel, 506 N.W.2d 14 (Minn. Ct. App. 1993).
9
Slagle v. Ross, 125 So. 3d 117, 299 Ed. Law Rep. 305 (Ala. 2012); Safe Air For Everyone v. Idaho State Dept. of
Agriculture, 145 Idaho 164, 177 P.3d 378 (2008); Dewey v. Redevelopment Agency of City of Reno, 119 Nev. 87, 64
P.3d 1070 (2003).
As to the definition of “quorum,” generally, see § 79.
10 Booth Newspapers, Inc. v. University of Michigan Bd. of Regents, 444 Mich. 211, 507 N.W.2d 422, 86 Ed. Law Rep.
987 (1993).

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§ 83. Definition of “meeting”—Electronic meetings, 2 Am. Jur. 2d Administrative Law § 83
Administrative Law
1. State Law
§ 83. Definition of “meeting”—Electronic meetings

The availability of electronic media of communications has brought about new interpretations of open meeting laws. A
“meeting” within a statutory definition may be conducted by written, telephonic, electronic, wireless, or other virtual
means.1Thus, the exchange of e-mail messages may constitute a “meeting” within the meaning of an open meetings law even
though the mere use or passive receipt of e-mail does not automatically constitute a “meeting.”2
Footnotes
1 Claxton Enterprise v. Evans County Bd. of Com’rs, 249 Ga. App. 870, 549 S.E.2d 830 (2001).
A quorum may be found even where some members participate through a telephone conference call on a speaker
telephone. Babac v. Pennsylvania Milk Marketing Bd., 531 Pa. 391, 613 A.2d 551 (1992).
2 Wood v. Battle Ground School Dist., 107 Wash. App. 550, 27 P.3d 1208, 155 Ed. Law Rep. 1437 (Div. 2 2001) (the
term “meeting” was intended to have a broad definition and includes any meeting at which action is taken regardless
of the particular means used to conduct it).

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§ 84. Exceptions to public meetings requirement; executive..., 2 Am. Jur. 2d...
Administrative Law
1. State Law
§ 84. Exceptions to public meetings requirement; executive sessions

A.L.R. Library
Pending or prospective litigation exception under state law making proceedings by public bodies open to the public, 35
A.L.R.5th 113
Emergency exception under state law making proceedings by public bodies open to the public, 33 A.L.R.5th 731
The state sunshine laws often provide that meetings for certain purposes need not be public. 1For instance, meetings
concerning personnel matters,2such as the hiring, firing, performance, compensation, and discipline of public employees, 3or
matters that may prejudice the reputation or character of any person 4are often, but not always,5exempted by public meetings
statutes. Some sunshine laws provide for an emergency exception; for a situation to comprise an “emergency,” the situation
must be unexpected or unforeseen, and it must necessitate immediate action.6
Observation:
While sunshine acts are generally construed liberally in favor of openness in conducting public business,7the statutory exceptions
authorizing closed sessions of legislative bodies are construed narrowly.8The exceptions are not to be used to shield the agency
from unwanted or unpleasant public input, interference, or scrutiny.9

Meetings to discuss strategy and negotiations with respect to pending claims and litigation to which the public agency is a
party are also sometimes exempt by public meetings statutes. 10A meeting with experts may be exempt from the open
meetings law where it is a strategy session with respect to proposed litigation. 11However, there is authority finding there is no
exception to the open meetings law for pending criminal investigations. 12
Meetings, in exempt cases, are by executive session.13However, even when a public meetings law permits an executive
session, the agency may still conduct a public meeting. 14Moreover, in certain cases, a violation of the open meeting law by an
illegal executive session may be cured by the readoption of an action at a public meeting. 15
Cases:
Port’s five executive sessions included discussions of factors relevant to lease price for proposed large rail terminal, but were
not focused on setting minimum price itself, as required to invoke Open Public Meetings Act’s (OPMA) minimum price
exception; executive sessions involved discussions of duration of exclusivity agreement, proposed lessee’s ability to pay for
possible environmental cleanup, and construction timelines and costs. Wash. Rev. Code Ann. § 42.30.110(1)(c). Columbia
Riverkeeper v. Port of Vancouver USA, 395 P.3d 1031 (Wash. 2017).
[END OF SUPPLEMENT]
Footnotes
1 District Attorney for Northern Dist. v. School Committee of Wayland, 455 Mass. 561, 918 N.E.2d 796, 251 Ed. Law
Rep. 898 (2009); Chanos v. Nevada Tax Com’n, 124 Nev. 232, 181 P.3d 675 (2008).
2 Morrow v. Los Angeles Unified School Dist., 149 Cal. App. 4th 1424, 57 Cal. Rptr. 3d 885, 219 Ed. Law Rep. 158
(2d Dist. 2007).
3 Burnett v. Gloucester County Bd. of Chosen Freeholders, 409 N.J. Super. 219, 976 A.2d 444 (App. Div. 2009).
4 City of Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d 1316 (Alaska 1982); Mellin v. City of Allentown, 60 Pa.
Commw. 114, 430 A.2d 1048 (1981).
5 City of Flagstaff v. Bleeker, 123 Ariz. 436, 600 P.2d 49 (Ct. App. Div. 1 1979) (posttermination hearing subject to
open meeting law).
6 Board of Selectmen of Town of Ridgefield v. Freedom of Information Com’n, 294 Conn. 438, 984 A.2d 748 (2010);
Wolf v. Grubbs, 17 Neb. App. 292, 759 N.W.2d 499 (2009).
7 § 81.
8 Page v. MiraCosta Community College Dist., 180 Cal. App. 4th 471, 102 Cal. Rptr. 3d 902, 252 Ed. Law Rep. 278
(4th Dist. 2009).
9 Carter v. Smith, 366 S.W.3d 414, 280 Ed. Law Rep. 1152 (Ky. 2012).
10 Page v. MiraCosta Community College Dist., 180 Cal. App. 4th 471, 102 Cal. Rptr. 3d 902, 252 Ed. Law Rep. 278
(4th Dist. 2009); Carter v. Smith, 366 S.W.3d 414, 280 Ed. Law Rep. 1152 (Ky. 2012).
As to meetings of agencies with their attorneys, see § 85.
11 Mayor and Aldermen of City of Vicksburg v. Vicksburg Printing and Pub. Co., 434 So. 2d 1333 (Miss. 1983).
12 Kilgore v. R.W. Page Corp., 261 Ga. 410, 405 S.E.2d 655 (1991).
13 Shirley v. Chagrin Falls Exempted Village Schools Bd. of Ed., 521 F.2d 1329 (6th Cir. 1975); Berry v. Peoples
Broadcasting Corp., 547 N.E.2d 231 (Ind. 1989).
As to notice of executive sessions, see § 86.
14 Berry v. Peoples Broadcasting Corp., 547 N.E.2d 231 (Ind. 1989).
15 McLeod v. Chilton, 132 Ariz. 9, 643 P.2d 712 (Ct. App. Div. 1 1981); Benevolent & Protective Order of Elks, Lodge
No. 65 v. City Council of Lawrence, 403 Mass. 563, 531 N.E.2d 1254 (1988).

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Administrative Law
1. State Law
§ 85. Exceptions to public meetings requirement; executive sessions—Meetings between

attorney and agency

A.L.R. Library
Pending or prospective litigation exception under state law making proceedings by public bodies open to the public, 35
A.L.R.5th 113
Attorney-client exception under state law making proceedings by public bodies open to the public, 34 A.L.R.5th 591
A public meetings statute may allow for private meetings between an agency and its attorney, particularly to discuss litigation
strategy, where an open meeting might have an adverse impact on the litigation position. 1Even in the absence of an express
statutory exemption in the open meetings act, some courts have found that private meetings between an agency and its
counsel are allowed,2particularly in cases where the communication concerns a pending investigation, claim, or action and
where the disclosure of matters discussed would seriously impair the ability of the public body to conduct the public’s
business.3
Observation:
The pending litigation exception to the open public meetings act empowers a public body to exclude the public to protect any
material covered by the attorney-client privilege. If a communication is covered by the privilege, then the public body legitimately
may meet with its attorney in closed session.4

Footnotes
1 Doherty v. School Committee of Boston, 386 Mass. 643, 436 N.E.2d 1223, 5 Ed. Law Rep. 222 (1982); Whispering
Woods at Bamm Hollow, Inc. v. Middletown Tp. Planning Bd., 220 N.J. Super. 161, 531 A.2d 770 (Law Div. 1987)
(discussion of possible settlement within litigation exception).
2 Fiscal Court of Jefferson County v. Courier-Journal and Louisville Times Co., 554 S.W.2d 72 (Ky. 1977); Cooper v.
Williamson County Bd. of Educ., 746 S.W.2d 176, 45 Ed. Law Rep. 853 (Tenn. 1987).
3 Minneapolis Star & Tribune Co. v. Housing and Redevelopment Authority In and For City of Minneapolis, 310 Minn.
313, 251 N.W.2d 620 (1976); Oklahoma Ass’n of Municipal Attorneys v. State, 1978 OK 59, 577 P.2d 1310 (Okla.
1978); Herald Pub. Co., Inc. v. Barnwell, 291 S.C. 4, 351 S.E.2d 878 (Ct. App. 1986) (attorney-client exception
applies when future litigation is a real possibility).
4 Burnett v. Gloucester County Bd. of Chosen Freeholders, 409 N.J. Super. 219, 976 A.2d 444 (App. Div. 2009).

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§ 86. Notice, 2 Am. Jur. 2d Administrative Law § 86
Administrative Law
1. State Law
§ 86. Notice

The open meetings statutes often require that notice of meetings be given. 1Notice requirements are generally intended to
provide an accurate statement of the time, place, and purpose of a public hearing to those entitled to such notice so that they
may attend the hearing and express their views. 2Where statutes require notice to be given in a certain manner, courts have
held that such statutes demand literal compliance,3and literal compliance is sufficient even if it does not provide particularly
effective notice.4Other public meetings statutes, however, do not require notice to the public of governmental meetings. 5
Observation:
Where notice is required, sometimes, the public meetings statute also requires the notice to contain the agenda of the meeting.6The
purpose of the agenda requirement is to give some notice of the matters to be considered at the meeting so that persons who are
interested will know which matters are under consideration.7
Adequate notice of executive sessions may also be required. 8The resolutions calling for such executive sessions generally
must indicate what is to be discussed.9
Footnotes

§ 86. Notice, 2 Am. Jur. 2d Administrative Law § 86
1 Town of Marble v. Darien, 181 P.3d 1148 (Colo. 2008); Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA
2010); City of Postville v. Upper Explorerland Regional Planning Com’n, 834 N.W.2d 1 (Iowa 2013).
2 Weber v. Town of Saukville, 209 Wis. 2d 214, 562 N.W.2d 412 (1997).
3 Smith County v. Thornton, 726 S.W.2d 2 (Tex. 1986).
4 Fielding v. Anderson, 911 S.W.2d 858 (Tex. App. Eastland 1995), writ denied, (Apr. 25, 1996) (notice in inaccessible
location).
5 Dozier v. Norris, 241 Ga. 230, 244 S.E.2d 853 (1978).
6 Ansonia Library Bd. of Directors v. Freedom of Information Com’n, 42 Conn. Supp. 84, 600 A.2d 1058 (Super. Ct.
1991); Hilliary v. State, 1981 OK CR 78, 630 P.2d 791 (Okla. Crim. App. 1981).
7 State ex rel. Newman v. Columbus Tp. Bd., 15 Neb. App. 656, 735 N.W.2d 399 (2007).
8 Previdi v. Hirsch, 138 Misc. 2d 436, 524 N.Y.S.2d 643, 44 Ed. Law Rep. 1282 (Sup 1988) (notice was inadequate
where the media were not informed, and the sole notice was posted on a bulletin board on the day of the meeting).
As to executive sessions, see § 84.
9 Houman v. Mayor and Council of Borough of Pompton Lakes, 155 N.J. Super. 129, 382 A.2d 413 (Law Div. 1977).

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§ 87. Standing to bring action for possible violation of..., 2 Am. Jur. 2d...
Administrative Law
1. State Law
§ 87. Standing to bring action for possible violation of public meeting law

Standing to bring an action for the violation of a public meeting law may be possessed by any interested person, including a
member of the news media; this includes taxpayers of the municipality involved. 1The purpose of the action may be to stop,
prevent, or reverse a violation or threatened violation of an open meetings law by members of a governmental body. 2Courts
have also found that any person who might be affected by a decision has standing to see that the decision is made in
compliance with the open meetings law.3Even more broadly, “any person” may have standing to seek enforcement of a
sunshine act regardless of whether he or she is an aggrieved party as a result of an official action deliberated or decided upon
in a closed meeting.4
Caution:
Even though private parties have standing to seek injunctive and mandamus relief, it has been found that only prosecutors have
standing to void governmental acts based upon violations of an open meetings act. 5If the prosecutor fails to bring an action,
however, a “relator” may be seen as a private attorney general who vindicates his or her own rights and the rights of the public to
open government. A prevailing relator, therefore, may be awarded attorney’s fees if the award would advance the purpose of the
law.6
Courts have also found that resident corporations 7and unincorporated associations of residents8have standing to bring an
action under such laws. Members of the news media 9and publishers also may have standing to bring an action with respect to
the violation of an open meetings act since newspapers have a unique role and interest in observing government activity and

§ 87. Standing to bring action for possible violation of..., 2 Am. Jur. 2d...
informing the public.10
Cases:
Willfulness of a violation of the Open Meeting Act, such that action taken is invalid, does not require a showing of bad faith,
malice, or wantonness but rather encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of
the law by those who know, or should know the requirements of the Act. 25 Okla. Stat. Ann. § 313. Fraternal Order of Police,
Bratcher/Miner Memorial Lodge, Lodge No. 122 v. City of Norman, 2021 OK 20, 489 P.3d 20 (Okla. 2021).
[END OF SUPPLEMENT]
Footnotes
1 Finlan v. City of Dallas, 888 F. Supp. 779 (N.D. Tex. 1995) (construing Texas statute).
2 Friends of Canyon Lake, Inc. v. Guadalupe-Blanco River Authority, 96 S.W.3d 519 (Tex. App. Austin 2002).
3 Harris v. Nordquist, 96 Or. App. 19, 771 P.2d 637, 52 Ed. Law Rep. 1281 (1989).
4 State ex rel. Mason v. State Emp. Relations Bd., 133 Ohio App. 3d 213, 727 N.E.2d 181 (10th Dist. Franklin County
1999).
5 City of Topeka v. Watertower Place Development Group, 265 Kan. 148, 959 P.2d 894 (1998).
6 State ex rel. Hodge v. Town of Turtle Lake, 180 Wis. 2d 62, 508 N.W.2d 603, 35 A.L.R.5th 827 (1993).
7 Metropolitan Air Research Testing Authority, Inc. v. Metropolitan Government of Nashville and Davidson County,
842 S.W.2d 611 (Tenn. Ct. App. 1992).
8 Curve Elementary School Parent and Teachers’ Organization v. Lauderdale County School Bd., 608 S.W.2d 855
(Tenn. Ct. App. 1980).
9 Hays County v. Hays County Water Planning Partnership, 69 S.W.3d 253 (Tex. App. Austin 2002).
10 Press-Enterprise, Inc. v. Benton Area School Dist., 146 Pa. Commw. 203, 604 A.2d 1221, 73 Ed. Law Rep. 1018
(1992).

Works.

Administrative Law
2. Federal Government in the Sunshine Act
§ 88. Generally

The federal open meetings law is contained in the Government in the Sunshine Act, also popularly known as the Open
Meetings Act. The Act was enacted to assure that the public may obtain to the fullest practicable extent information regarding
the decision-making processes of the federal government. The law is designed to provide the public with such information
while protecting the rights of individuals and the ability of the government to carry out its responsibilities.1
Footnotes
1 Historical and Statutory Notes to 5 U.S.C.A. § 552b.
6 C.F.R. §§ 1003.1 to 1003.9 implement the provisions of the Government in the Sunshine Act.

Works.

§ 89. Open meetings; definitions of “agency” and “member”, 2 Am. Jur. 2d...
Administrative Law
§ 89. Open meetings; definitions of “agency” and “member”

A.L.R. Library
What is “agency” within meaning of Federal Sunshine Act (5 U.S.C.A. sec. 552b), 68 A.L.R. Fed. 842
The Government in the Sunshine Act generally provides that, except as otherwise provided, every portion of every meeting
of a federal agency must be open to public observation, and members of an agency may not jointly conduct or dispose of
agency business other than in accordance with the law. 1An “agency” includes any executive department, military department,
government corporation, government-controlled corporation, or other establishment in the executive branch of the
government (including the Executive Office of the President) or any independent regulatory agency. 2For purposes of the Act,
an agency is headed by a collegial body composed of two or more individual members, a majority of whom are appointed to
such position by the President with the advice and consent of the Senate and any subdivision thereof authorized to act on
behalf of the agency.3
A “member” is an individual who belongs to a collegial body heading an agency. 4A board or panel that does not contain
members of an agency is not a subdivision of an agency under the Act, meaning that the Act does not apply to hearings of a
licensing board which does not contain any members of the agency. 5
Footnotes

§ 89. Open meetings; definitions of “agency” and “member”, 2 Am. Jur. 2d...
1 5 U.S.C.A. § 552b(b).
2 5 U.S.C.A. § 552b(a)(1), which incorporates the definition of “agency” found in 5 U.S.C.A. § 552(f)(1).
3 5 U.S.C.A. § 552b(a)(1).
4 5 U.S.C.A. § 552b(a)(3).
5 Hunt v. Nuclear Regulatory Commission, 611 F.2d 332 (10th Cir. 1979).

Works.

Administrative Law
§ 90. Definition of “meeting”

For purposes of the Federal Government in the Sunshine Act, the term “meeting” means the deliberations of at least the
number of individual agency members required to take action on behalf of the agency where such deliberations determine or
result in the joint conduct or disposition of official agency business. 1The statutory language limiting the Act’s application to
deliberations that “determine or result in” the conduct of “official agency business” contemplates discussions that effectively
predetermine official actions. Such discussions must be sufficiently focused on discrete proposals or issues as to cause or be
likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to
arise before the agency. Thus, the deliberations of a quorum of a subdivision of an agency upon matters not within the
subdivision’s formally delegated authority do not constitute “meetings” within the meaning of the Act since such
deliberations cannot determine or result in joint conduct or disposition of official agency business. Similarly, a series of joint
planning conferences do not constitute meetings “of an agency” within the meaning of the Act where the sessions are not
convened by the regulatory agency and are not subject to the agency’s unilateral control. 2
Observation:
A conversation between a member of an agency and members of the regulated industry do not constitute a “meeting” under the
open meetings provisions of the Sunshine Act although such a conversation may constitute an ex parte contact. 3

Footnotes
1 5 U.S.C.A. § 552b(a)(2).
2 F.C.C. v. ITT World Communications, Inc., 466 U.S. 463, 104 S. Ct. 1936, 80 L. Ed. 2d 480 (1984).
3 Action For Children’s Television v. F.C.C., 564 F.2d 458 (D.C. Cir. 1977).

Works.

§ 91. Exemptions from open meeting requirement, 2 Am. Jur. 2d Administrative Law § 91
Administrative Law
§ 91. Exemptions from open meeting requirement

A.L.R. Library
Construction and application of exemptions, under 5 U.S.C.A. sec. 552b(c), to open meeting requirement of Sunshine Act,
82 A.L.R. Fed. 465
The Government in the Sunshine Act contains exemptions from the open meeting requirements. The Act provides that,
except in a case where the agency finds that the public interest requires otherwise, specified open meeting requirements do
not apply where the agency properly determines that such portion or portions of its meeting or the disclosure of such
information is likely to:1
(1) disclose matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the
interests of national defense or foreign policy and are in fact properly classified pursuant to such Executive Order;
(2) relate solely to the internal personnel rules and practices of an agency;
(3) disclose matters specifically exempted from disclosure by statute, other than the Freedom of Information Act, provided
that such statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the
issue, or establishes particular criteria for withholding or refers to particular types of matters to be withheld;
(4) disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) involve accusing any person of a crime, or formally censuring any person;

§ 91. Exemptions from open meeting requirement, 2 Am. Jur. 2d Administrative Law § 91
(6) disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal
privacy;
(7) disclose investigatory records compiled for law enforcement purposes, or information which if written would be
contained in such records, but only to the extent that production would interfere with the enforcement proceedings, deprive
a person of a right to a fair trial or an impartial adjudication, constitute an unwarranted invasion of personal privacy,
disclose the identity of a confidential source (and, under certain circumstances, confidential information disclosed by the
source), disclose investigative techniques and procedures, or endanger the life or physical safety of law enforcement
personnel;
(8) disclose information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or
for the use of an agency responsible for the regulation or supervision of financial institutions;
(9) disclose information the premature disclosure of which would: (a) lead to significant financial speculation in currencies,
securities, or commodities or significantly endanger the stability of any financial institution; or (b) be likely to significantly
frustrate implementation of proposed agency action, except where the agency has already disclosed the content or nature of
its proposed action or the agency is required by law to make such disclosure on its own initiative prior to taking final
agency action; and
(10) specifically concern the agency’s issuance of a subpoena; or the agency’s participation in a civil action or proceeding, an
action in a foreign court or international tribunal, or an arbitration; or the initiation, conduct, or disposition by the agency
of a particular case of formal agency adjudication.
Observation:
Where an agency’s decision to close a meeting is challenged, the agency bears the burden of establishing that its meeting is subject
to at least one of the 10 statutorily defined grounds for closure. 2
Footnotes
1 5 U.S.C.A. § 552b(c).
2 Philadelphia Newspapers, Inc. v. Nuclear Regulatory Com’n, 727 F.2d 1195, 82 A.L.R. Fed. 449 (D.C. Cir. 1984).

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§ 92. Procedure for closing meeting, 2 Am. Jur. 2d Administrative Law § 92
Administrative Law
§ 92. Procedure for closing meeting

Forms
Forms relating to closed meetings, generally, see Federal Procedural Forms, Administrative Procedure [Westlaw® Search
Query]
Pursuant to the Government in the Sunshine Act, action to close a meeting will be taken only when a majority of the entire
membership of the agency votes to take such action, and the agency must comply with the voting requirements specified in
the Act.1Whenever any person whose interests may be directly affected by a portion of a meeting requests that the agency
close such portion to the public because private information or information regarding a crime or a criminal investigation is to
be discussed, the agency, upon request of any one of its members, must vote by recorded vote whether to close such
meeting.2Within one day of the vote, the agency must make publicly available a written copy of its vote and a full written
explanation of its action closing the meeting together with a list of all persons expected to attend the meeting and their
affiliation.3
If a majority of an agency’s business consists of regulating financial institutions or preparing adjudications, it may provide by
regulation for the closing of meetings or portions of meetings in which such topics are discussed. If such regulations are
enacted, the voting requirements and the public announcement requirements of the Act do not apply to any portion of a
meeting to which the regulations apply provided that the agency, except to the extent that such information is exempt from
disclosure under the Act, provides the public with an announcement of the time, place, and subject matter of the meeting and
of each portion of the meeting at the earliest practicable time.4

§ 92. Procedure for closing meeting, 2 Am. Jur. 2d Administrative Law § 92
Observation:
For every meeting closed pursuant to the Act’s statutory exemptions, the General Counsel or chief legal officer of the agency must
publicly certify that, in his or her opinion, the meeting may be closed to the public, and he or she must state each relevant
exemptive provision.5
Footnotes
1 5 U.S.C.A. § 552b(d)(1).
2 5 U.S.C.A. § 552b(d)(2).
3 5 U.S.C.A. § 552b(d)(3).
4 5 U.S.C.A. § 552b(d)(4).
5 5 U.S.C.A. § 552b(f)(1).

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§ 93. Public announcement of meetings, 2 Am. Jur. 2d Administrative Law § 93
Administrative Law
§ 93. Public announcement of meetings

Forms
Forms relating to open meetings, generally, see Federal Procedural Forms, Administrative Procedure [Westlaw® Search
Query]
The Federal Government in the Sunshine Act contains detailed provisions regarding public announcements of government
meetings. Such notice must be given whether the meeting is to be opened or closed 1and must be published in the Federal
Register.2Provision is also made for any changes in the time or place or subject matter of the meeting or the determination
whether to open or close a meeting or a portion thereof to the public. 3
Footnotes
1 5 U.S.C.A. § 552b(e)(1).
2 5 U.S.C.A. § 552b(e)(3).
3 5 U.S.C.A. § 552b(e)(2).

§ 93. Public announcement of meetings, 2 Am. Jur. 2d Administrative Law § 93

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§ 94. Court actions: challenging agency regulations or..., 2 Am. Jur. 2d...
Administrative Law
§ 94. Court actions: challenging agency regulations or failure to enact them

A.L.R. Library
Availability of judicial review of agency compliance with Sunshine Act (5 U.S.C.A. sec. 552b(g) and (h)), 84 A.L.R. Fed.
251
Each agency subject to the requirements of the Federal Government in the Sunshine Act must promulgate regulations to
implement the requirements of the Act. Any person may bring a proceeding in the U.S. District Court for the District of
Columbia to require an agency to promulgate such regulations if the agency has not promulgated the regulations within the
time period specified. Subject to any limitations of time provided by law, any person may bring a proceeding in the U.S.
Court of Appeals for the District of Columbia to set aside agency regulations issued pursuant to this provision that are not in
accord with the requirements of the Act and to require the promulgation of regulations that are in accord with such
provisions.1
Footnotes
1 5 U.S.C.A. § 552b(g).

§ 94. Court actions: challenging agency regulations or..., 2 Am. Jur. 2d...
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§ 95. Court actions: for injunctive, declaratory, or other relief, 2 Am. Jur. 2d...
Administrative Law
§ 95. Court actions: for injunctive, declaratory, or other relief

A.L.R. Library
251
The district courts of the United States have jurisdiction to enforce the requirements of the Federal Government in the
Sunshine Act by declaratory judgment, injunctive relief, or other relief as may be appropriate. Such actions may be brought
by any person against an agency prior to, or within 60 days after, the meeting out of which the violation of the Act arises. If
public announcement of such meeting is not initially provided by the agency in accordance with the Act, an action may be
instituted at any time prior to 60 days after any public announcement of such meeting. 1
Such actions may be brought in the district court of the United States for the district in which the agency meeting is held, or
in which the agency in question has its headquarters, or in the District Court for the District of Columbia. In such actions, a
defendant must serve an answer within 30 days after the service of the complaint. The burden is on the defendant to sustain
his or her action. In deciding such cases, the court may examine in camera any portion of the transcript, electronic recording,
or minutes of a meeting closed to the public and may take such additional evidence as it deems necessary. The court, having
due regard for orderly administration and the public interest, as well as the interests of the parties, may grant such equitable
relief as it deems appropriate.2

§ 95. Court actions: for injunctive, declaratory, or other relief, 2 Am. Jur. 2d...
Caution:
Nothing in the Act authorizes any federal court having jurisdiction solely on the basis described above 3to set aside, enjoin, or
invalidate any agency action (other than an action to close a meeting or to withhold information under the Act) taken or discussed
at any agency meeting out of which the violation of the Act arose. 4
Cases:
Appropriate remedy for Unified Carrier Registration Plan Board’s failure to publicly announce information in Federal
Register regarding meeting in which it decided to postpone start of annual registration period for motor carriers, brokers, and
freight forwarders, in violation of Sunshine Act, was to compel Board to release any draft minutes, transcripts, and recordings
of meeting, rather than injunctive relief reversing Board’s action; district court lacked authority to invalidate agency action
taken at non-conforming meeting, plaintiffs did not claim to have participated in meeting, and serious violation of Act
prejudicing plaintiffs and warranting invalidation of Board’s action was not demonstrated. 5 U.S.C.A. §§ 552b(e)(1),
552b(e)(3), 552b(h)(1), 552b(h)(2); 49 U.S.C.A. § 14504a. 12 Percent Logistics, Inc. v. Unified Carrier Registration Plan
Board, 282 F. Supp. 3d 190 (D.D.C. 2017).
[END OF SUPPLEMENT]
Footnotes
1 5 U.S.C.A. § 552b(h)(1).
2 5 U.S.C.A. § 552b(h)(1).
3 5 U.S.C.A. § 552b(h)(1).
4 5 U.S.C.A. § 552b(h)(2).

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§ 96. Court actions: for judicial review of agency action, 2 Am. Jur. 2d Administrative...
Administrative Law
§ 96. Court actions: for judicial review of agency action

A.L.R. Library
251
Any federal court otherwise authorized by law to review agency action may, at the application of any person properly
participating in the proceeding pursuant to other applicable law, inquire into violations by the agency of the requirements of
the Federal Government in the Sunshine Act and afford such relief as it deems appropriate. 1
Footnotes
1 5 U.S.C.A. § 552b(h)(2).
As to judicial review of agency action, generally, see §§ 383 to 559.

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§ 97. Attorney’s fees, 2 Am. Jur. 2d Administrative Law § 97
Administrative Law
§ 97. Attorney’s fees

A party who substantially prevails in an action brought under the Federal Government in the Sunshine Act may be awarded
reasonable attorney’s fees and other litigation costs reasonably incurred. Costs may be assessed against the plaintiff,
however, only where the court finds that the suit was initiated by the plaintiff primarily for frivolous or dilatory purposes. In
the case of assessment of costs against an agency, the costs may be assessed by the court against the United States. 1
Footnotes
1 5 U.S.C.A. § 552b(i).

Works.

Research References, 2 Am. Jur. 2d Administrative Law III C Refs.
2 Am. Jur. 2d Administrative Law III C Refs.
Administrative Law
C. Agency Minutes, Records, and Reports
Research References

A.L.R. Library
West’s A.L.R. Digest, Administrative Law and Procedure 127
Works.

Administrative Law
§ 98. Generally

Boards and commissions speak or act officially only through the minutes and records made at duly organized
meetings.1Statutes may have specific requirements for the keeping of minutes or records. 2Unless otherwise required by law,
the formal record of a public proceeding consists of the minutes of the hearing and the formal findings and order. 3
Footnotes
1 City of Indianapolis v. Duffitt, 929 N.E.2d 231 (Ind. Ct. App. 2010).
2 Pet v. Department of Health Services, 228 Conn. 651, 638 A.2d 6 (1994); Titus v. Shelby Charter Tp., 226 Mich. App.
611, 574 N.W.2d 391 (1997); Harris v. Nordquist, 96 Or. App. 19, 771 P.2d 637, 52 Ed. Law Rep. 1281 (1989).
3 Dairy Product Services, Inc. v. City of Wellsville, 2000 UT 81, 13 P.3d 581 (Utah 2000).

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§ 99. Closed meetings under Federal Government in the..., 2 Am. Jur. 2d...
Administrative Law
§ 99. Closed meetings under Federal Government in the Sunshine Act

If a meeting is closed in accordance with the Federal Government in the Sunshine Act, 1an agency must maintain a complete
transcript or electronic recording which adequately and fully records the proceedings. In the case of a meeting, or a portion
thereof, closed to the public because reports of bank examinations, information which affects financial markets, or
information regarding impending litigation is to be discussed, the agency must maintain either a transcript, a recording, or a
set of minutes that fully and clearly describes all matters discussed and fully and accurately summarizes any actions taken
and the reasons for them.2The agency must make promptly available to the public, in a place easily accessible to the public,
the transcript, electronic recording, or minutes described above except for such items that contain information which is
exempt from disclosure.3
Footnotes
1 §§ 91, 92.
2 5 U.S.C.A. § 552b(f)(1).
3 5 U.S.C.A. § 552b(f)(2).

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§ 100. Inspection of records and papers of administrative..., 2 Am. Jur. 2d...
Administrative Law
§ 100. Inspection of records and papers of administrative agencies

A historically strong and persuasive public policy requires liberality in the right to examine public records under the common
law,1under which every person is entitled to inspect public records provided that he or she has the requisite interest in them
that outweighs the State’s interest in nondisclosure. 2Apart from a statutory right, a party to a proceeding before an
administrative tribunal in which he or she is entitled to a hearing may be entitled to inspect the records and data of the
tribunal to secure information or evidence to be used in such hearing, but this right cannot extend to a general examination
that would seriously impede the work of the tribunal.3
Statutes frequently confer the right to examine the records and papers of administrative agencies, and in such cases, the extent
of the right is determined by the statute.4Pursuant to federal law, the right of a member of the public to inspect agency records
may be regulated by the Freedom of Information Act 5and the Privacy Act.6Nothing in the Government in the Sunshine Act
authorizes any agency to withhold from any individual any record, including transcripts, recordings, or minutes required by
the Act, which is otherwise accessible to such individual under the Privacy Act. 7
Footnotes
1 Am. Jur. 2d, Records and Recording Laws § 17.
2 Am. Jur. 2d, Records and Recording Laws § 22.
3 U.S. ex rel. St. Louis Southwestern Ry. Co. v. Interstate Commerce Commission, 264 U.S. 64, 44 S. Ct. 294, 68 L. Ed.
565 (1924).
4 Previdi v. Hirsch, 138 Misc. 2d 436, 524 N.Y.S.2d 643, 44 Ed. Law Rep. 1282 (Sup 1988); Harris v. Nordquist, 96 Or.
App. 19, 771 P.2d 637, 52 Ed. Law Rep. 1281 (1989).

§ 100. Inspection of records and papers of administrative..., 2 Am. Jur. 2d...
5 5 U.S.C.A. § 552, as discussed in Am. Jur. 2d, Freedom of Information Acts §§ 1 et seq.
6 5 U.S.C.A. § 552a, as discussed in Am. Jur. 2d, Freedom of Information Acts §§ 358 to 401.
7 5 U.S.C.A. § 552b(m).

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Research References, 2 Am. Jur. 2d Administrative Law IV A Refs.
2 Am. Jur. 2d Administrative Law IV A Refs.
Administrative Law
IV. Investigations
A. In General
Research References

A.L.R. Library
West’s A.L.R. Digest, Administrative Law and Procedure 11, 341 to 370
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§ 101. Generally; purposes, 2 Am. Jur. 2d Administrative Law § 101
Administrative Law
IV. Investigations
A. In General
§ 101. Generally; purposes

Forms
Forms relating to investigations, generally, see Federal Procedural Forms, Administrative Procedure; Am. Jur. Pleading
and Practice Forms, Administrative Law [Westlaw® Search Query]
Administrative agencies have the power, which is not granted to the judiciary, 1to conduct investigations.2For instance, an
administrative agency may be empowered by Congress to obtain information bearing on activities which may be properly
regulated by federal legislation.3The legislative delegation of investigative power has been found constitutional. 4
The purpose of an administrative investigation is to uncover facts with an eye toward the potential initiation of an agency
adjudication or, more generally, for the purpose of facilitating an agency’s regulatory goals 5and compliance with the law.6A
regulatory agency may investigate possible violations of the law through its administrative process provided that its inquiries
are for a proper purpose, the information sought is relevant to that purpose, and statutory procedures are observed.7An
administrative investigation is not an adversary proceeding and does not result in a judgment that determines guilt or legal
rights.8
An agency also has the authority to conduct an investigation to determine whether the subject of an investigation is within the
agency’s jurisdiction.9Other purposes for investigation include licensing, reporting to Congress, and disseminating
information to the public.10An agency may use its investigative powers to monitor compliance with court decrees it has
procured.11Investigations may also be conducted to determine if rules should be promulgated or existing rules should be
modified, but before such a decision is made, there must also be compliance with the rulemaking requirements of the
requisite administrative procedure act.12

§ 101. Generally; purposes, 2 Am. Jur. 2d Administrative Law § 101
Footnotes
1 U.S. v. Morton Salt Co., 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401 (1950).
2 U.S. v. Morton Salt Co., 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401 (1950); Brasky v. City of New York Dept. of
Investigation, 40 A.D.3d 531, 840 N.Y.S.2d 315 (1st Dep’t 2007).
3 Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S. Ct. 494, 90 L. Ed. 614, 166 A.L.R. 531 (1946).
4 Kansas City Southern R. Co. v. U.S., 231 U.S. 423, 34 S. Ct. 125, 58 L. Ed. 296 (1913); State ex rel. McEldowney v.
Uhl, 111 Idaho 915, 728 P.2d 1324 (1986).
5 U.S. Dept. of Labor v. Kast Metals Corp., 744 F.2d 1145 (5th Cir. 1984).
6 Oriana House, Inc. v. Montgomery, 108 Ohio St. 3d 419, 2006-Ohio-1325, 844 N.E.2d 323 (2006); State, Dept. of
Revenue v. Moore, 722 S.W.2d 367 (Tenn. 1986).
7 U.S. v. Gel Spice Co., Inc., 601 F. Supp. 1214 (E.D. N.Y. 1985).
8 Hannah v. Larche, 363 U.S. 420, 80 S. Ct. 1502, 4 L. Ed. 2d 1307 (1960).
9 Millan v. Restaurant Enterprises Group, Inc., 14 Cal. App. 4th 477, 18 Cal. Rptr. 2d 198 (4th Dist. 1993), as modified
on other grounds on denial of reh’g, (Mar. 24, 1993).
As to persons subject to investigation, see § 108.
12 Chicago, B. & Q. R. Co. v. U.S., 242 F. Supp. 414 (N.D. Ill. 1965), judgment aff’d, 382 U.S. 422, 86 S. Ct. 616, 15 L.
Ed. 2d 498 (1966).
As to rule-making powers and procedures, generally, see §§ 127 to 240.

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§ 102. Statutory authorization, 2 Am. Jur. 2d Administrative Law § 102
Administrative Law
IV. Investigations
A. In General
§ 102. Statutory authorization

An agency must have statutory authority to conduct an investigation1and must keep within the bounds of this authority. 2In
this regard, the Federal Administrative Procedure Act provides that investigative acts or demands, including process, the
requirement of a report, or inspection, may not be issued, made, or enforced except as authorized by law. 3Therefore, the
governing statute must explicitly grant the power to investigate, 4and the investigation must be made for a legislatively
authorized purpose.5
Observation:
An administrative investigation that is in excess of statutory authority violates due process. 6
Footnotes
1 U.S. v. Morton Salt Co., 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401 (1950); National Freelancers, Inc. v. State Tax
Com’n, Dept. of Taxation and Finance of State of New York, 126 A.D.2d 218, 513 N.Y.S.2d 559 (3d Dep’t 1987).
2 Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S. Ct. 494, 90 L. Ed. 614, 166 A.L.R. 531 (1946); Everest Re
Group, Ltd. v. Department of Financial Services, 10 So. 3d 1120 (Fla. 1st DCA 2009).
3 5 U.S.C.A. § 555(c).
§ 102. Statutory authorization, 2 Am. Jur. 2d Administrative Law § 102
4 Serr v. Sullivan, 270 F. Supp. 544 (E.D. Pa. 1967), judgment aff’d, 390 F.2d 619 (3d Cir. 1968).
5 U. S. v. Humble Oil & Refining Co., 518 F.2d 747 (5th Cir. 1975).
6 People v. McWhorter, 113 Ill. 2d 374, 101 Ill. Dec. 646, 498 N.E.2d 1154 (1986).
As to due process rights in regard to investigations, generally, see § 117.

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§ 103. Exercise and scope of power, 2 Am. Jur. 2d Administrative Law § 103
Administrative Law
IV. Investigations
A. In General
§ 103. Exercise and scope of power

In the exercise of powers of investigation, an administrative agency must not act arbitrarily, 1oppressively,2or
unreasonably.3An agency must be allowed the authority to decide where its investigative resources are best applied. 4
In matters relevant to purposes for which the agency is authorized to conduct an investigation, the agency may investigate
merely on suspicion that the law is being violated 5or even just because it wants assurance that it is not. 6Sometimes, more than
mere suspicion is required7and sometimes less.8
Footnotes
1 Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S. Ct. 494, 90 L. Ed. 614, 166 A.L.R. 531 (1946); U.S. Intern.
Trade Com’n v. ASAT, Inc., 411 F.3d 245 (D.C. Cir. 2005); Matter of Investigation into Intra-LATA Equal Access
and Presubscription, 532 N.W.2d 583 (Minn. Ct. App. 1995).
2 Walling v. La Belle S.S. Co., 148 F.2d 198 (C.C.A. 6th Cir. 1945); State ex rel. Wolgast v. Schurle, 11 Kan. App. 2d
390, 722 P.2d 585 (1986).
3 U.S. v. Berkowitz, 355 F. Supp. 897 (E.D. Pa. 1973); Unnamed Atty. v. Attorney Grievance Com’n, 313 Md. 357, 545
A.2d 685 (1988).
4 Fleszar v. U.S. Dept. of Labor, 598 F.3d 912 (7th Cir. 2010).
5 U.S. v. Morton Salt Co., 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401 (1950); Chao v. Local 743, Intern. Broth. of
Teamsters, AFL-CIO, 467 F.3d 1014 (7th Cir. 2006); Carrington v. Arizona Corp. Com’n, 199 Ariz. 303, 18 P.3d 97
(Ct. App. Div. 1 2000), redesignated as opinion, (Feb. 12, 2001).
6 Chao v. Local 743, Intern. Broth. of Teamsters, AFL-CIO, 467 F.3d 1014 (7th Cir. 2006).

§ 103. Exercise and scope of power, 2 Am. Jur. 2d Administrative Law § 103
7 Unnamed Atty. v. Attorney Grievance Com’n, 313 Md. 357, 545 A.2d 685 (1988) (requiring some demonstration of a
factual basis to support the commission’s concern).
8 U.S. v. Hunton & Williams, 952 F. Supp. 843 (D.D.C. 1997) (the Resolution Trust Corporation may initiate an audit
or investigation of the recipient of federal funds even without a particularized suspicion of any wrongdoing).

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§ 104. Relevancy and factual basis, 2 Am. Jur. 2d Administrative Law § 104
Administrative Law
IV. Investigations
A. In General
§ 104. Relevancy and factual basis

The information sought in the course of an investigation must appear reasonably relevant to the investigation. 1In addition,
there must be an authentic factual basis to warrant the investigation, 2which establishes the relevancy of the item sought.3
Footnotes
1 U.S. v. Morton Salt Co., 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401 (1950); U.S. v. Gurley, 384 F.3d 316, 2004 FED
App. 0320P (6th Cir. 2004); Feathers v. West Virginia Bd. of Medicine, 211 W. Va. 96, 562 S.E.2d 488 (2001).
2 Unnamed Atty. v. Attorney Grievance Com’n, 313 Md. 357, 545 A.2d 685 (1988); Condon v. Inter-Religious
Foundation for Community Organization, Inc., 18 Misc. 3d 874, 850 N.Y.S.2d 841 (Sup 2008), aff’d, 51 A.D.3d 465,
856 N.Y.S.2d 620, 232 Ed. Law Rep. 288 (1st Dep’t 2008); Brian v. State By and Through Oregon Government Ethics
Com’n, 320 Or. 676, 891 P.2d 649 (1995).
3 New York City Dept. of Investigation v. Passannante, 148 A.D.2d 101, 544 N.Y.S.2d 1 (1st Dep’t 1989).

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§ 105. Specificity, 2 Am. Jur. 2d Administrative Law § 105
Administrative Law
IV. Investigations
A. In General
§ 105. Specificity

In order to be valid, the demand for information in an investigation must not be indefinite 1or overbroad.2The demand must be
sufficiently specific to permit reasonable compliance without being unduly burdensome. 3However, courts have upheld
subpoenas calling for “all documents” or “all papers” or “writings of any kind” with respect to a particular subject so long as
the information sought is reasonably related to a proper area of investigation. 4
Footnotes
1 U.S. v. Morton Salt Co., 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401 (1950); U.S. v. Gurley, 384 F.3d 316, 2004 FED
App. 0320P (6th Cir. 2004); Unnamed Atty. v. Attorney Grievance Com’n, 313 Md. 357, 545 A.2d 685 (1988).
2 Unnamed Atty. v. Attorney Grievance Com’n, 313 Md. 357, 545 A.2d 685 (1988).
3 Citizens’ Aide/Ombudsman v. Miller, 543 N.W.2d 899 (Iowa 1996); Greer v. New Jersey Bureau of Securities, 288
N.J. Super. 69, 671 A.2d 1080 (App. Div. 1996); State, Dept. of Revenue v. Moore, 722 S.W.2d 367 (Tenn. 1986).
4 New York City Dept. of Investigation v. Passannante, 148 A.D.2d 101, 544 N.Y.S.2d 1 (1st Dep’t 1989).

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§ 106. Specific investigatory methods, 2 Am. Jur. 2d Administrative Law § 106
Administrative Law
IV. Investigations
A. In General
§ 106. Specific investigatory methods

Since the Federal Administrative Procedure Act provides that investigative process may not be issued, made, or enforced
except as authorized by law,1in the case of federal agencies, one must look to the particular regulatory statute, and not to the
Federal Administrative Procedure Act, to determine if a particular investigative method is authorized by statute. 2However,
when Congress invests an agency with enforcement and investigatory authority, Congress need not explicitly identify each
and every technique that may be used in the course of executing the statutory mission since regulatory or enforcement
authority generally carries with it the power to use all the modes of inquiry and investigation traditionally employed or useful
to execute the authority granted.3
On a state level, an agency’s investigation is not required to take any particular form. This is especially true where the
legislature has simply told the agency to investigate and has left to it the task of selecting methods and procedures that it
should employ in each case.4
Footnotes
1 § 102.
3 Dow Chemical Co. v. U.S., 476 U.S. 227, 106 S. Ct. 1819, 90 L. Ed. 2d 226 (1986); U.S. v. M/V SANCTUARY, 540
F.3d 295 (4th Cir. 2008); Former Employees of Alcatel Telecommunications Cable v. Herman, 25 Ct. Int’l Trade 169,
134 F. Supp. 2d 445 (2001).
4 Industrial Welfare Com. v. Superior Court, 27 Cal. 3d 690, 166 Cal. Rptr. 331, 613 P.2d 579 (1980); Gleason v. W.C.
Dean Sr. Trucking, Inc., 228 A.D.2d 678, 646 N.Y.S.2d 20 (2d Dep’t 1996).

§ 106. Specific investigatory methods, 2 Am. Jur. 2d Administrative Law § 106

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§ 107. Specific investigatory methods—Production of..., 2 Am. Jur. 2d...
Administrative Law
IV. Investigations
A. In General
§ 107. Specific investigatory methods—Production of accounts, records, or reports

West’s Key Number Digest, Administrative Law and Procedure 341 to 347, 364, 365
An administrative agency is not required to exhaust other sources before seeking to obtain information from a regulated
corporation,1and official curiosity has been found a sufficient ground for a request for information 2although it has also been
determined that such curiosity, standing alone, is an insufficient ground to seek records. 3Courts are generally liberal in
permitting an administrative agency full exercise of its powers to require the production of books, papers, and documents. 4
Observation:
An order requiring a company to keep accounts and submit reports cannot be challenged on the ground that it imposes so great a
burden on the company as to transgress statutory and constitutional limits where all of the requirements of the commission
affirmatively appear to call for the precise kind of accounting system, information, and reports that the legislature has deemed
relevant and necessary for the commission in performing its regulatory duties, and the evidence does not show that the expense
will lay so heavy a burden upon the company as to extend beyond the bounds of reason. 5
Footnotes
1 Fleming v. Montgomery Ward & Co., 114 F.2d 384 (C.C.A. 7th Cir. 1940).

§ 107. Specific investigatory methods—Production of..., 2 Am. Jur. 2d...
3 Breakey v. Inspector General of U.S. Dept. of Agriculture, 836 F. Supp. 422 (E.D. Mich. 1993).
4 Goodyear Tire & Rubber Co. v. N.L.R.B., 122 F.2d 450, 136 A.L.R. 883 (C.C.A. 6th Cir. 1941).
An administrative agency’s authority to request records and undertake other investigatory functions is broad. Eddie’s
Leaf Spring Shop and Towing LLC v. Colorado Public Utilities Com’n of State, 218 P.3d 326 (Colo. 2009).
5 Federal Power Commission v. East Ohio Gas Co., 338 U.S. 464, 70 S. Ct. 266, 94 L. Ed. 268 (1950).

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§ 108. Persons subject to investigation, 2 Am. Jur. 2d Administrative Law § 108
Administrative Law
IV. Investigations
A. In General
§ 108. Persons subject to investigation

A.L.R. Library
Power of administrative agency, in investigation of nonjudicial nature, to issue subpoenas against persons not subject to
agency’s regulatory jurisdiction, 27 A.L.R.2d 1208
An agency’s subpoena power is not necessarily confined to those persons over whom it may exercise regulatory jurisdiction.
Even though agency subpoenas directed to individuals implicate constitutionally protected privacy rights, 1if an agency has
regulatory jurisdiction over the subject matter, it may subpoena any person from whom it can obtain information and
documents relevant and material to the inquiry. 2
Footnotes
1 In re McVane, 44 F.3d 1127 (2d Cir. 1995); F.D.I.C. v. Wentz, 55 F.3d 905 (3d Cir. 1995).
As to constitutional rights and concerns regarding investigations, see §§ 110 to 120.
2 Freeman v. Brown Bros. Harriman & Co., 357 F.2d 741 (2d Cir. 1966); Freeman v. Fidelity-Philadelphia Trust Co.,
248 F. Supp. 487 (E.D. Pa. 1965).
As to the enforcement of subpoenas in this regard, see §§ 121 to 126.

§ 108. Persons subject to investigation, 2 Am. Jur. 2d Administrative Law § 108
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§ 109. Witnesses and evidence, 2 Am. Jur. 2d Administrative Law § 109
Administrative Law
IV. Investigations
A. In General
§ 109. Witnesses and evidence

Even a person who is not subject to regulation may be called as a witness 1in investigatory proceedings.2Federal statutes
sometimes provide that witnesses may be called from any part of the United States, 3which has been interpreted to authorize
compelling the production of evidence from abroad as well. 4Even where an agency is entitled to compel production of
evidence from anywhere in the United States, however, this power is intended to be exercised reasonably. 5
Footnotes
1 Ellis v. Interstate Commerce Commission, 237 U.S. 434, 35 S. Ct. 645, 59 L. Ed. 1036 (1915).
2 State ex rel. R. R. & Warehouse Commission v. Mees, 235 Minn. 42, 49 N.W.2d 386, 27 A.L.R.2d 1197 (1951).
3 Jones v. Securities and Exchange Commission, 298 U.S. 1, 56 S. Ct. 654, 80 L. Ed. 1015 (1936); Penfield Co. of Cal.
v. Securities and Exchange Commission, 143 F.2d 746, 154 A.L.R. 1027 (C.C.A. 9th Cir. 1944).
4 Federal Maritime Commission v. DeSmedt, 366 F.2d 464 (2d Cir. 1966).
5 Bank of America Nat. Trust & Savings Ass’n v. Douglas, 105 F.2d 100, 123 A.L.R. 1266 (App. D.C. 1939); People v.
McWhorter, 113 Ill. 2d 374, 101 Ill. Dec. 646, 498 N.E.2d 1154 (1986); Silverman v. Berkson, 141 N.J. 412, 661 A.2d
1266 (1995) (presenting a balancing test for the reasonableness of a subpoena; thus, when an investigation required an
individual to travel 350 miles on a specified business day and to bring certain documents with him, and where there
were less disruptive methods of settling the underlying dispute, the subpoena was held to be improper).

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§ 109. Witnesses and evidence, 2 Am. Jur. 2d Administrative Law § 109

Research References, 2 Am. Jur. 2d Administrative Law IV B Refs.
2 Am. Jur. 2d Administrative Law IV B Refs.
Administrative Law
IV. Investigations
B. Constitutional and Other Rights Affected by Investigations
Research References

West’s Key Number Digest, Administrative Law and Procedure 4.1, 5, 355 to 358, 361
West’s Key Number Digest, Searches and Seizures 79
A.L.R. Library
West’s A.L.R. Digest, Administrative Law and Procedure 4.1, 5, 355 to 358, 361
West’s A.L.R. Digest, Searches and Seizures 79
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§ 110. Searches and seizures for administrative purposes, 2 Am. Jur. 2d Administrative...
Administrative Law
IV. Investigations
1. Searches and Seizures
§ 110. Searches and seizures for administrative purposes

A.L.R. Library
Admissibility of evidence obtained by unconstitutional search in proceedings under Occupational Safety and Health Act
(29 U.S.C.A. secs. 651 et seq.), 67 A.L.R. Fed. 724
The restrictions on unreasonable searches and seizures pursuant to the Fourth Amendment are not limited to criminal
investigations but also apply to administrative inspections. 1The Fourth Amendment governs administrative inspections of
both private dwellings and businesses2although it has been recognized that businesses may be reasonably inspected in many
more situations than private homes.3The Fourth Amendment protection against unreasonable searches and seizures also
applies to corporations; however, corporations are not equivalent to individuals in enjoying the right to privacy. 4
Footnotes
1 Donovan v. Lone Steer, Inc., 464 U.S. 408, 104 S. Ct. 769, 78 L. Ed. 2d 567 (1984); Perez v. Blue Mountain Farms,
961 F. Supp. 2d 1164 (E.D. Wash. 2013).
As to unreasonable searches and seizures, generally, see Am. Jur. 2d, Searches and Seizures §§ 12 to 14.
As to administrative searches and seizures, generally, see Am. Jur. 2d, Searches and Seizures §§ 49 to 52.
2 Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978); State v. Heine, 424 N.J. Super. 48,

§ 110. Searches and seizures for administrative purposes, 2 Am. Jur. 2d Administrative...
35 A.3d 691 (App. Div. 2012), certification denied, 211 N.J. 608, 50 A.3d 40 (2012) and certification granted, 211
N.J. 608, 50 A.3d 40 (2012) and appeal dismissed, 213 N.J. 384, 63 A.3d 225 (2013).
3 Dow Chemical Co. v. U.S., 476 U.S. 227, 106 S. Ct. 1819, 90 L. Ed. 2d 226 (1986) (taking aerial photographs of an
industrial plant from navigable airspace is not a search prohibited by the Fourth Amendment); See v. City of Seattle,
387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967).
4 Am. Jur. 2d, Searches and Seizures § 36.

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§ 111. Probable cause, 2 Am. Jur. 2d Administrative Law § 111
Administrative Law
IV. Investigations
§ 111. Probable cause

West’s Key Number Digest, Administrative Law and Procedure 4.1, 5, 355 to 356.1
While the Fourth Amendment provides that no warrant is to issue except upon probable cause, probable cause is not the same
in the administrative context as it is in the police investigatory context. Probable cause, as used in the administrative context,
only measures the reasonableness of the inspection against proper legislative or administrative standards. 1
Observation:
An inspection plan must contain specific neutral criteria,2and it is still necessary to have a neutral magistrate approve a warrant in
order to assure that the inspection is reasonable under the appropriate standards. 3
Footnotes
1 Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978); Camara v. Municipal Court of City
and County of San Francisco, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967).
2 Torres v. Com. of Puerto Rico, 442 U.S. 465, 99 S. Ct. 2425, 61 L. Ed. 2d 1 (1979).

§ 111. Probable cause, 2 Am. Jur. 2d Administrative Law § 111
3 Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978).

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§ 112. Exceptions to the warrant requirement, 2 Am. Jur. 2d Administrative Law § 112
Administrative Law
IV. Investigations
§ 112. Exceptions to the warrant requirement

A variety of situations have been held to require no warrant, including:

• emergencies1
• closely regulated businesses2
• consent searches3
• searches of areas in open view or open fields4
• searches accompanying administrative investigations or inspections 5
• searches of the offices of government employees6
Fire marshals may enter a still-smoldering building for the purpose of determining the cause of the blaze before any relevant
evidence is totally destroyed.7Once the immediate emergency has ended, however, by extinguishing the fire, an
administrative warrant is required for further entries to carry out the statutorily mandated duty of the fire marshal to
investigate the origins of the fire.8Likewise, the exception for pervasively regulated industries is an extremely narrow one. 9
Footnotes
1 North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S. Ct. 101, 53 L. Ed. 195 (1908) (seizure of
unwholesome food); Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905)
(compulsory smallpox vaccination); Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of
Louisiana, 186 U.S. 380, 22 S. Ct. 811, 46 L. Ed. 1209 (1902) (health quarantine).
2 New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987); Patel v. City of Los Angeles, 738 F.3d
1058 (9th Cir. 2013); State v. Declerck, 49 Kan. App. 2d 908, 317 P.3d 794 (2014).
3 Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930
§ 112. Exceptions to the warrant requirement, 2 Am. Jur. 2d Administrative Law § 112
(1967); U.S. v. Brown, 763 F.2d 984 (8th Cir. 1985).

4 Air Pollution Variance Bd. of Colorado v. Western Alfalfa Corp., 416 U.S. 861, 94 S. Ct. 2114, 40 L. Ed. 2d 607
(1974); Northside Realty Associates, Inc. v. U.S., 605 F.2d 1348 (5th Cir. 1979); State v. Wybierala, 305 Minn. 455,
235 N.W.2d 197 (1975).
5 U. S. v. LaSalle Nat. Bank, 437 U.S. 298, 98 S. Ct. 2357, 57 L. Ed. 2d 221 (1978); Wildauer v. Frederick County, 993
F.2d 369 (4th Cir. 1993); State v. Gness, 85 A.3d 382 (N.H. 2014).
6 O’Connor v. Ortega, 480 U.S. 709, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987).
7 Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978); State v. Olsen, 282 N.W.2d 528 (Minn.
1979).
8 Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978).
9 Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978) (OSHA inspection potentially
applicable to a wide range of ordinary businesses); G. M. Leasing Corp. v. U. S., 429 U.S. 338, 97 S. Ct. 619, 50 L.
Ed. 2d 530 (1977) (IRS levy).

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§ 113. Employee drug testing, 2 Am. Jur. 2d Administrative Law § 113
Administrative Law
IV. Investigations
§ 113. Employee drug testing

A.L.R. Library
Validity, under Federal Constitution, of regulations, rules, or statutes requiring random or mass drug testing of public
employees or persons whose employment is regulated by state, local, or Federal Government, 86 A.L.R. Fed. 420
Urine or blood testing compelled or authorized by regulations promulgated by federal agencies is a search within the meaning
of the Fourth Amendment, even if carried out by private parties, where the persons carrying out the testing act as an
instrument or agent of the government.1While the Fourth Amendment protects individuals from unreasonable searches
conducted by the government, even when the government acts as an employer, where a Fourth Amendment intrusion serves
“special governmental needs,” beyond the normal need for law enforcement, it is necessary to balance the individual’s
privacy expectations against the government’s interests to determine whether it is impractical to require a warrant or some
level of individualized suspicion in the particular context. 2
Absent reasonable suspicion of on-duty drug use or drug-impaired work performance, the courts have held unconstitutional
the warrantless mandatory urinalysis drug testing of employees of the Department of Agriculture who do not hold safety- or
security-sensitive jobs,3Army civilian laboratory workers, or those in a biological-specimen chain of custody.4
Footnotes

§ 113. Employee drug testing, 2 Am. Jur. 2d Administrative Law § 113
1 Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989).
As to drug and alcohol tests as subject to the Fourth Amendment prohibition against unreasonable searches and
seizures, generally, see Am. Jur. 2d, Searches and Seizures §§ 100 to 104.
2 National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989).
3 National Treasury Employees Union v. Yeutter, 918 F.2d 968 (D.C. Cir. 1990).
4 National Federation of Federal Employees v. Cheney, 884 F.2d 603 (D.C. Cir. 1989).

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§ 114. Subpoenas for records, 2 Am. Jur. 2d Administrative Law § 114
Administrative Law
IV. Investigations
§ 114. Subpoenas for records

While the Fourth Amendment does not prevent the issuance of process to require the production of books and papers, an
order for the production of books and papers may constitute an unreasonable search and seizure within the Fourth
Amendment when the scope of the order is too broad.1However, probable cause for the issuance of an administrative
summons is not the same as probable cause in the criminal law area; that is, an agency need not have probable cause to
believe that a specific violation of a statute has occurred before it can commence an investigation and subpoena papers to
determine if there has been a violation.2
A person has no expectation of privacy in the business records of a third party and thus has no interest protected by the
Fourth Amendment in such records.3Accordingly, it has been consistently found that a person has no Fourth Amendment
basis for challenging subpoenas directed at business records covering his or her own transactions in the possession of a third
party and also has no right to notice of such subpoenas. 4
Courts are willing to enforce an administrative subpoena, even if it is quite broad, so long as it does not demand the
production of clearly irrelevant documents. 5All that is required is that the subpoena be sufficiently limited in scope, relevant
in purpose, and specific in directive so that compliance will not be unreasonably burdensome.6
Observation:
No warrant is required as a predicate to an administrative subpoena which does not involve efforts of government personnel to
make nonconsensual entries into areas not open to the public although the subject of a subpoena must be allowed to question the
reasonableness of the subpoena, in an action in district court, before suffering any penalties for refusing to comply with it. 7

§ 114. Subpoenas for records, 2 Am. Jur. 2d Administrative Law § 114
Footnotes
1 Am. Jur. 2d, Searches and Seizures § 76.
2 U.S. v. Powell, 379 U.S. 48, 85 S. Ct. 248, 13 L. Ed. 2d 112, 9 Fed. R. Serv. 2d 81A.33, Case 1 (1964).
3 U. S. v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976); People v. Pearson, 169 Cal. App. 3d 319, 215
Cal. Rptr. 147 (5th Dist. 1985).
4 U.S. v. Stuart, 587 F.2d 929 (8th Cir. 1978).
As to the requirement of relevancy in investigations, generally, see § 104.
6 Donovan v. Lone Steer, Inc., 464 U.S. 408, 104 S. Ct. 769, 78 L. Ed. 2d 567 (1984); Office of Citizens’
Aide/Ombudsman v. Edwards, 825 N.W.2d 8 (Iowa 2012); State ex rel. Workforce Safety, and Insurance v. Altru
Health Systems, 2007 ND 38, 729 N.W.2d 113 (N.D. 2007).
7 Donovan v. Lone Steer, Inc., 464 U.S. 408, 104 S. Ct. 769, 78 L. Ed. 2d 567 (1984).

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§ 115. Self-incrimination, 2 Am. Jur. 2d Administrative Law § 115
Administrative Law
IV. Investigations
2. Other Constitutional Concerns
§ 115. Self-incrimination

The privilege against self-incrimination found in the Fifth Amendment may be claimed in any proceeding, including
administrative and investigatory proceedings.1However, the privilege against self-incrimination offers no protection against
administrative sanctions that are not criminal or penal in nature 2or when, as a mere incident of an administrative search,
criminal penalties may result.3In addition, a person subject to regulation by an administrative agency cannot claim a Fifth
Amendment privilege in records that the law requires him or her to keep. 4
Caution:
A subject of an administrative subpoena can generally not invoke a blanket Fifth Amendment privilege. Instead, if the agency
requests that the subject produce documents, the subject must identify which documents contain information that may tend to
incriminate the subject.5
Footnotes
1 Allen v. Illinois, 478 U.S. 364, 106 S. Ct. 2988, 92 L. Ed. 2d 296 (1986); State ex rel. Dept. of Pesticide Regulation v.
Pet Food Exp. Ltd., 165 Cal. App. 4th 841, 81 Cal. Rptr. 3d 486 (3d Dist. 2008).
As to the privilege against self-incrimination, generally, see Am. Jur. 2d, Criminal Law §§ 1035 to 1060; Am. Jur. 2d,

§ 115. Self-incrimination, 2 Am. Jur. 2d Administrative Law § 115
Witnesses §§ 78 to 128.
2 Kimm v. Rosenberg, 363 U.S. 405, 80 S. Ct. 1139, 4 L. Ed. 2d 1299 (1960); Church v. Powell, 40 N.C. App. 254, 252
S.E.2d 229 (1979) (driver’s license revocation hearing).
3 Board of County Com’rs of Johnson County v. Grant, 264 Kan. 58, 954 P.2d 695 (1998).
4 Shapiro v. U.S., 335 U.S. 1, 68 S. Ct. 1375, 92 L. Ed. 1787 (1948); In re Shiplov, 945 So. 2d 52 (La. Ct. App. 4th Cir.
2006), on reh’g, (Dec. 6, 2006) and writ denied, 949 So. 2d 444 (La. 2007).
As to the keeping and disclosure of records, see § 107.
5 I. C. C. v. Gould, 629 F.2d 847 (3d Cir. 1980).

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§ 116. Self-incrimination—Effect of grant of immunity, 2 Am. Jur. 2d Administrative Law...
Administrative Law
IV. Investigations
§ 116. Self-incrimination—Effect of grant of immunity

A legislature is empowered to deprive a witness of the constitutional privilege against self-incrimination by according such
witness complete immunity from prosecution for the offense to which the testimony relates. 1The general federal immunity
statute provides that whenever a witness refuses to comply with an order to testify or provide other information on the basis
of the privilege against self-incrimination in a proceeding before or ancillary to an agency, the witness may not refuse to
comply with the order on the basis of the privilege. However, no testimony or other information compelled under the order,
or any information directly or indirectly derived from such testimony or other information, may be used against the witness in
any criminal case except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. 2
Footnotes
1 Am. Jur. 2d, Witnesses § 140.
2 18 U.S.C.A. § 6002.

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§ 117. Due process; right to confrontation, 2 Am. Jur. 2d Administrative Law § 117
Administrative Law
IV. Investigations
§ 117. Due process; right to confrontation

An administrative investigation is not an adversary proceeding and does not result in a judgment to determine guilt or legal
rights.1Accordingly, when only investigative powers of an agency are utilized, due process considerations do not
attach.2Neither the Due Process Clauses of the Fifth and 14th Amendments nor the Confrontation Clause of the Sixth
Amendment is offended when a federal administrative agency, without notifying a person under investigation, uses its
subpoena power to gather evidence adverse to the person. 3
As long as no legal rights are adversely determined during the investigation, the demands of due process are satisfied if
procedural rights are granted in the subsequent proceedings. 4However, this rule only applies where the initial proceeding is
purely investigatory, and due process rights must be afforded if a proceeding is essentially criminal, and the agency makes a
finding that a specific individual is guilty.5
Footnotes
1 § 101.
2 Francis v. Accardo, 602 So. 2d 1066 (La. Ct. App. 1st Cir. 1992).
As to due process of law, generally, see Am. Jur. 2d, Constitutional Law §§ 942 to 1024.
3 S.E.C. v. Jerry T. O’Brien, Inc., 467 U.S. 735, 104 S. Ct. 2720, 81 L. Ed. 2d 615 (1984).
4 Opp Cotton Mills v. Administrator of Wage and Hour Division of Department of Labor, 312 U.S. 126, 312 U.S. 657,
61 S. Ct. 524, 85 L. Ed. 624 (1941); Beverly Enterprises, Inc. v. Herman, 130 F. Supp. 2d 1 (D.D.C. 2000).
5 Jenkins v. McKeithen, 395 U.S. 411, 89 S. Ct. 1843, 23 L. Ed. 2d 404 (1969).
§ 117. Due process; right to confrontation, 2 Am. Jur. 2d Administrative Law § 117

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§ 118. Right to counsel, 2 Am. Jur. 2d Administrative Law § 118
Administrative Law
IV. Investigations
§ 118. Right to counsel

A.L.R. Library
Comment Note.—Right to assistance by counsel in administrative proceedings, 33 A.L.R.3d 229
Since administrative investigative proceedings are not adjudicatory in nature, 1a party has no constitutional right to be
accompanied by counsel during such proceedings. 2However, the general rule is subject to a possible exception where
investigatory administrative proceedings may result in criminal prosecutions, 3and statutes may grant the right to assistance of
counsel.4
Footnotes
1 § 101.
2 Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 79 S. Ct. 1157, 3 L. Ed. 2d 1234 (1959); Matter of Comprehensive
Investigation of School Dist. of Newark, 276 N.J. Super. 354, 647 A.2d 1383, 94 Ed. Law Rep. 369 (App. Div. 1994).
As to the right to counsel in criminal proceedings, see Am. Jur. 2d, Criminal Law §§ 1097 to 1153.
3 Mathis v. U.S., 391 U.S. 1, 88 S. Ct. 1503, 20 L. Ed. 2d 381 (1968).
4 § 119.

§ 118. Right to counsel, 2 Am. Jur. 2d Administrative Law § 118

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§ 119. Right to counsel—Statutory right; Federal..., 2 Am. Jur. 2d...
Administrative Law
IV. Investigations
§ 119. Right to counsel—Statutory right; Federal Administrative Procedure Act

A.L.R. Library
Comment Note.—Right to assistance by counsel in administrative proceedings, 33 A.L.R.3d 229
Even though the right to counsel is not a constitutional right in administrative investigations, 1statutes may grant the right to
assistance of counsel. Persons may have the right to be accompanied and assisted by counsel in informal administrative
proceedings under state statutes.2In addition, the Federal Administrative Procedure Act grants a person compelled to appear
in person before an agency or a representative of the agency the right to be accompanied, represented, and advised by counsel
or, if permitted by the agency, by another qualified representative. 3Anyone compelled to appear before an investigator,
including a person other than the party being investigated, 4is entitled to be represented by counsel although it has been
questioned whether a person who voluntarily appears before an investigator, and is not compelled to appear, has a right to
counsel under the Federal Administrative Procedure Act. 5
Footnotes
1 § 118.
2 Thompson v. Department of Professional Regulation, Bd. of Medical Examiners, 488 So. 2d 103 (Fla. 1st DCA 1986)
(right to counsel at an informal hearing).

§ 119. Right to counsel—Statutory right; Federal..., 2 Am. Jur. 2d...
3 5 U.S.C.A. § 555(b).
4 Backer v. C.I.R., 275 F.2d 141 (5th Cir. 1960).
5 Smith v. U.S., 250 F. Supp. 803 (D.N.J. 1966).

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§ 120. Privileges of witnesses, 2 Am. Jur. 2d Administrative Law § 120
Administrative Law
IV. Investigations
§ 120. Privileges of witnesses

West’s Key Number Digest, Administrative Law and Procedure 356.1 to 358
Forms
Forms relating to privilege: see Federal Procedural Forms, Contempt [Westlaw® Search Query]
Courts have sometimes found that certain witness privileges may apply in the context of administrative investigations. For
instance, the attorney-client privilege applies to administrative investigations.1Thus, when an agency has the power to compel
testimony, its power must be tempered by the attorney-client privilege unless there is an unambiguous statutory directive to
the contrary.2The principle of attorney-client privilege prevents an agency from subpoenaing papers from an attorney if they
would be privileged in the hands of the client; however, nonprivileged documents are not immunized when they are turned
over to an attorney.3
Observation:
Nevertheless, when administrative agencies conduct nonadjudicative, fact-finding investigations, rights such as appraisal or
specific notice, confrontation, and cross-examination of witnesses on behalf of other witnesses before the agency generally do not
apply.4

§ 120. Privileges of witnesses, 2 Am. Jur. 2d Administrative Law § 120
Footnotes
1 U.S. v. Hunton & Williams, 952 F. Supp. 843 (D.D.C. 1997) (privilege exists but is not violated by requiring attorneys
to reveal the names of clients); Southern Cal. Gas Co. v. Public Utilities Com., 50 Cal. 3d 31, 265 Cal. Rptr. 801, 784
P.2d 1373 (1990).
As to the privileges of witnesses in the judicial context, generally, see Am. Jur. 2d, Witnesses §§ 273 to 537.
2 Southern Cal. Gas Co. v. Public Utilities Com., 50 Cal. 3d 31, 265 Cal. Rptr. 801, 784 P.2d 1373 (1990).
3 Fisher v. U.S., 425 U.S. 391, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976).
4 Hannah v. Larche, 363 U.S. 420, 80 S. Ct. 1502, 4 L. Ed. 2d 1307 (1960); Rhode Island Republican Party v. Daluz,
961 A.2d 287 (R.I. 2008).

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Research References, 2 Am. Jur. 2d Administrative Law IV C Refs.
2 Am. Jur. 2d Administrative Law IV C Refs.
Administrative Law
IV. Investigations
C. Enforcement of Administrative Order or Subpoena
Research References

A.L.R. Library
West’s A.L.R. Digest, Administrative Law and Procedure 357 to 360.1
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§ 121. Generally; necessity of court proceedings, 2 Am. Jur. 2d Administrative Law § 121
Administrative Law
IV. Investigations
§ 121. Generally; necessity of court proceedings

Forms
Forms relating to contempt in connection with administrative proceedings or actions, generally, see Federal Procedural
Forms, Contempt [Westlaw® Search Query]
Administrative officials themselves do not have the power to enforce subpoenas. 1An administrative officer has no power to
hold a party in contempt or otherwise punish a party for contesting the validity of a subpoena before there is a judicial order
of enforcement.2Most regulatory statutes confer appropriate jurisdiction and provide for an application by the administrative
agency3to a specified court for an order enforcing the administrative order or subpoena. 4
In enforcing such subpoenas, however, the court’s discretion is limited. The ultimate inquiry is whether the enforcement of
the administrative subpoena would constitute an abuse of the court’s process.5As long as the investigation is within the
agency’s authority, the subpoena is not too indefinite, and the information sought is reasonably relevant, the district court
must enforce an administrative subpoena.6For purposes of an administrative subpoena, the notion of relevancy is a broad one,
and so long as the material requested touches a matter under investigation, then the administrative subpoena will survive a
challenge that the material is not relevant.7
Footnotes
1 Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S. Ct. 494, 90 L. Ed. 614, 166 A.L.R. 531 (1946); State, Dept.
of Revenue v. Moore, 722 S.W.2d 367 (Tenn. 1986).

§ 121. Generally; necessity of court proceedings, 2 Am. Jur. 2d Administrative Law § 121
2 Reisman v. Caplin, 375 U.S. 440, 84 S. Ct. 508, 11 L. Ed. 2d 459 (1964).
3 Civil Aeronautics Bd. v. Hermann, 353 U.S. 322, 77 S. Ct. 804, 1 L. Ed. 2d 852 (1957); Goodyear Tire & Rubber Co.
v. N.L.R.B., 122 F.2d 450, 136 A.L.R. 883 (C.C.A. 6th Cir. 1941).
4 N.L.R.B. v. Duval Jewelry Co. of Miami, 357 U.S. 1, 78 S. Ct. 1024, 2 L. Ed. 2d 1097 (1958); U.S. v. Golden Valley
Elec. Ass’n, 689 F.3d 1108 (9th Cir. 2012); Harris v. Stutzman, 42 Ohio St. 3d 13, 536 N.E.2d 1154 (1989).
5 University of Medicine and Dentistry of New Jersey v. Corrigan, 347 F.3d 57 (3d Cir. 2003); U.S. v. Markwood, 48
F.3d 969, 31 Fed. R. Serv. 3d 756, 1995 FED App. 0097P (6th Cir. 1995); State Bd. of Registration for Healing Arts v.
Vandivort, 23 S.W.3d 725 (Mo. Ct. App. W.D. 2000).
6 E.E.O.C. v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002).
7 N.L.R.B. v. Fortune Bay Resort Casino, 688 F. Supp. 2d 858 (D. Minn. 2010).

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§ 122. Independent actions; necessity of exhausting..., 2 Am. Jur. 2d...
Administrative Law
IV. Investigations
§ 122. Independent actions; necessity of exhausting administrative remedies

Federal courts have heard independent actions to enjoin the holding of an investigative hearing, 1to enjoin a warrantless
search,2or to vacate and quash administrative summonses.3Such independent actions may be proper if the agency has clearly
violated a right secured by statute or regulation, and the issue presented is strictly legal and cannot be later judicially
reviewed.4
If a party challenges the scope of the investigative demand, the party must first present its objection to the agency before
raising the objection in court.5A party must thereby exhaust administrative remedies.6Once the party being investigated makes
a record before the agency, the party’s remedy is to present a defense in the proceeding to enforce the subpoena.7
Observation:
Although a challenge to a subpoena must be raised before an agency, there is no requirement that the agency grant a formal
hearing on the challenge.8
Footnotes
1 Hannah v. Larche, 363 U.S. 420, 80 S. Ct. 1502, 4 L. Ed. 2d 1307 (1960).

§ 122. Independent actions; necessity of exhausting..., 2 Am. Jur. 2d...
2 Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978).
3 Application of Levine, 149 F. Supp. 642 (S.D. N.Y. 1956), order aff’d, 243 F.2d 175 (2d Cir. 1956).
4 F.T.C. v. Miller, 549 F.2d 452 (7th Cir. 1977).
5 Communist Party of U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 81 S. Ct. 1357, 6 L. Ed. 2d 625 (1961).
6 In re Establishment Inspection of Kohler Co., 935 F.2d 810 (7th Cir. 1991); E.E.O.C. v. City of Milwaukee, 919 F.
Supp. 1247 (E.D. Wis. 1996).
The Model Acts require the exhaustion of administrative remedies. Revised Model State Administrative Procedure Act
§ 506 (2010); Model State Administrative Procedure Act § 5-107 (1981).
7 Reisman v. Caplin, 375 U.S. 440, 84 S. Ct. 508, 11 L. Ed. 2d 459 (1964).
8 F.T.C. v. Hallmark, Inc., 265 F.2d 433 (7th Cir. 1959).

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§ 123. Enforcement procedure, 2 Am. Jur. 2d Administrative Law § 123
Administrative Law
IV. Investigations
§ 123. Enforcement procedure

A.L.R. Library
Procedural requirements for judicial enforcement of subpoenas issued by Federal Trade Commission under sec. 9 of
Federal Trade Commission Act (15 USC sec. 49), 7 A.L.R. Fed. 347
The Federal Rules of Civil Procedure apply to proceedings to compel testimony or the production of documents through a
subpoena issued by an United States officer or agency under a federal statute except as otherwise provided by statute, by
local rule, or by court order in the proceedings.1Accordingly, if the particular regulatory statute contains no provision
specifying the procedure to be followed in an enforcement proceeding, the procedures specified in the Federal Rules of Civil
Procedure are to be followed.2
The Federal Rules also provide that a request for a court order must be made by motion. 3A formal complaint is not required.4
Under the Revised Model State Administrative Procedure Act, unless otherwise provided by law or agency rule, an
administrative subpoena, on application to the court by a party or the agency, will be enforced in the manner provided by law
for the service and enforcement of a subpoena in a civil action.5Under the Model State Administrative Procedure Act, in
addition to other remedies provided by law, an agency may seek enforcement of its order by filing a petition for civil
enforcement in the trial court of general jurisdiction. 6Moreover, a person who would qualify under the Act as having standing
to obtain judicial review of an agency’s failure to enforce its order may file a petition for civil enforcement of that order
under specified circumstances.7

§ 123. Enforcement procedure, 2 Am. Jur. 2d Administrative Law § 123
Footnotes
1 Fed. R. Civ. P. 81(a)(5).
2 U.S. v. Powell, 379 U.S. 48, 85 S. Ct. 248, 13 L. Ed. 2d 112, 9 Fed. R. Serv. 2d 81A.33, Case 1 (1964).
3 Fed. R. Civ. P. 7(b)(1).
4 U.S. v. Newman, 441 F.2d 165 (5th Cir. 1971); U.S. v. Stoltz, 525 F. Supp. 617 (D.D.C. 1981).
5 Revised Model State Administrative Procedure Act § 410(b) (2010).

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§ 124. Enforceability of subpoenas, 2 Am. Jur. 2d Administrative Law § 124
Administrative Law
IV. Investigations
§ 124. Enforceability of subpoenas

Generally, courts will not interfere with the decision of an agency to issue subpoenas in conducting an investigation, 1and the
courts’ role in a proceeding to enforce an administrative subpoena is thus extremely limited. 2Under the Federal
Administrative Procedure Act, on contest, the court must sustain the subpoena or similar process or demand to the extent that
it is found to be in accordance with the law. 3
Since it is generally up to an administrator to define the scope of the administrator’s inquiry, a court must enforce an
administrative subpoena unless:
(1) the evidence sought is clearly incompetent or irrelevant;4
(2) the demand for information is too indefinite; 5
(3) the purpose of the investigation was not authorized by statute; 6or
(4) proper administrative steps were not followed in issuing the subpoena. 7
Cases:
Once the government makes preliminary showing necessary for judicial enforcement of an administrative subpoena, the
burden shifts to the subpoena recipient to disprove one of the criteria or to demonstrate that judicial enforcement should be
denied on the ground that it would be an abuse of the court’s process. Securities and Exchange Commission v. Marin, 982
F.3d 1341 (11th Cir. 2020).
The court’s role in a proceeding to enforce an administrative subpoena is a strictly limited one, since administrative agencies
wield broad power to gather information through the issuance of subpoenas. United States v. Institute for College Access &
Success, 27 F. Supp. 3d 106, 311 Ed. Law Rep. 869 (D.D.C. 2014).

§ 124. Enforceability of subpoenas, 2 Am. Jur. 2d Administrative Law § 124
In context of administrative subpoenas, burden on subpoenaed parties is to be expected and is necessary in furtherance of the
agency’s legitimate inquiry and the public interest. United States v. Capitol Supply, Inc., 27 F. Supp. 3d 91 (D.D.C. 2014).
Courts generally enforce an administrative subpoena if the following elements are met: (1) it reasonably relates to an
investigation within the agency’s authority, (2) the specific inquiry is relevant to that purpose and is not too indefinite, (3) the
proper administrative procedures have been followed, and (4) the subpoena does not demand information for an illegitimate
purpose. E.E.O.C. v. Trinity Health Corp., 107 F. Supp. 3d 934 (N.D. Ind. 2015).
The process of reviewing an administrative subpoena for judicial enforcement is not one for a determination of the
underlying claim on its merits; to establish its authority to investigate, administrative agency need only present an arguable
basis for jurisdiction, and as long as jurisdiction is plausible and not plainly lacking, the subpoena should be enforced, unless
the party being investigated demonstrates that the subpoena is unduly burdensome. WyoLaw, LLC v. Office of Attorney
General, Consumer Protection Unit, 2021 WY 61, 486 P.3d 964 (Wyo. 2021).
[END OF SUPPLEMENT]
Footnotes
1 Abrams v. Kearney, 133 Misc. 2d 845, 508 N.Y.S.2d 850 (Sup 1986).
2 N.L.R.B. v. American Medical Response, Inc., 438 F.3d 188 (2d Cir. 2006).
3 5 U.S.C.A. § 555(d).
4
U.S. v. Powell, 379 U.S. 48, 85 S. Ct. 248, 13 L. Ed. 2d 112, 9 Fed. R. Serv. 2d 81A.33, Case 1 (1964); U.S. v.
Whispering Oaks Residential Care Facility, LLC, 673 F.3d 813 (8th Cir. 2012).
5 U.S. v. Powell, 379 U.S. 48, 85 S. Ct. 248, 13 L. Ed. 2d 112, 9 Fed. R. Serv. 2d 81A.33, Case 1 (1964); Washington
Home Remodelers, Inc. v. State, Office of Attorney General, Consumer Protection Division, 426 Md. 613, 45 A.3d
208 (2012).
6 U.S. v. Powell, 379 U.S. 48, 85 S. Ct. 248, 13 L. Ed. 2d 112, 9 Fed. R. Serv. 2d 81A.33, Case 1 (1964); N.L.R.B. v.
American Medical Response, Inc., 438 F.3d 188 (2d Cir. 2006).
7 U.S. v. Powell, 379 U.S. 48, 85 S. Ct. 248, 13 L. Ed. 2d 112, 9 Fed. R. Serv. 2d 81A.33, Case 1 (1964); State ex rel.
McGraw v. King, 229 W. Va. 365, 729 S.E.2d 200 (2012).

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§ 125. Enforcement order, 2 Am. Jur. 2d Administrative Law § 125
Administrative Law
IV. Investigations
§ 125. Enforcement order

Pursuant to the federal statute, if a court determines that an administrative subpoena should be enforced, it must issue an
order requiring the appearance of the witness, or the production of the evidence or data requested, within a reasonable time,
under penalty of punishment for contempt in case of the contumacious failure to comply. 1If a court finds that an investigative
order of an administrative agency is only sustainable in part, it may order compliance with only part of the demand. 2In
addition, a court may modify a subpoena if it appears that the subpoena as written is too broad or oppressive 3and may also
order production under conditions that assure that the respondent’s business is not unduly disrupted. 4
Footnotes
1 5 U.S.C.A. § 555(d).
2 St. Regis Paper Co. v. U.S., 368 U.S. 208, 82 S. Ct. 289, 7 L. Ed. 2d 240 (1961); National Labor Relations Board v.
Anchor Rome Mills, 197 F.2d 447 (5th Cir. 1952).
3 F C C v. Cohn, 154 F. Supp. 899 (S.D. N.Y. 1957).
4 Civil Aeronautics Bd. v. Hermann, 353 U.S. 322, 77 S. Ct. 804, 1 L. Ed. 2d 852 (1957).

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§ 126. Appeal of enforcement order, 2 Am. Jur. 2d Administrative Law § 126
Administrative Law
IV. Investigations
§ 126. Appeal of enforcement order

A proceeding to enforce an administrative subpoena is an independent proceeding, and an order by a district court enforcing
such a subpoena is a final order appealable as of right. 1Finality is not defeated by the fact that the district court retains
jurisdiction to grant further relief.2However, an order by a magistrate judge in a subpoena enforcement proceeding is
generally not final until it is reviewed by a district judge. 3
An appeal from a district court order enforcing an administrative subpoena is rendered moot upon the subject’s compliance
with the subpoena. No live controversy is created by the fact that the party remains subject to the subpoena since future
attempts at enforcement may not occur and, if they do occur, present their own opportunity for review. 4
Observation:
The Model State Administrative Procedure Act states that decisions on petitions for civil enforcement are reviewable by the
appellate court as in other civil cases.5
Cases:

§ 126. Appeal of enforcement order, 2 Am. Jur. 2d Administrative Law § 126
A court reviewing the enforceability of an administrative subpoena may consider only whether the inquiry is within the
authority of the agency, the demand is not too indefinite, and the information sought is reasonably relevant; if agency’s
subpoena satisfies these requirements, court must enforce it. United States v. Institute for College Access & Success, 27 F.
Supp. 3d 106, 311 Ed. Law Rep. 869 (D.D.C. 2014).
[END OF SUPPLEMENT]
Footnotes
1 La Mura v. U.S., 765 F.2d 974 (11th Cir. 1985); F.T.C. v. Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977).
A district court order enforcing an administrative subpoena is final and ripe for appellate review. E.E.O.C. v. Federal
Exp. Corp., 558 F.3d 842 (9th Cir. 2009).
2 F.T.C. v. Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977).
3 U.S. v. Jones, 581 F.2d 816 (10th Cir. 1978).
4 Office of Thrift Supervision Dept. of Treasury v. Dobbs, 931 F.2d 956 (D.C. Cir. 1991).
5 Model State Administrative Procedure Act § 5-205 (1981).
As to judicial review under the Revised Model State Administrative Act, see Revised Model State Administrative
Procedure Act §§ 501 to 508 (2010).

Works.

Research References, 2 Am. Jur. 2d Administrative Law V A Refs.
2 Am. Jur. 2d Administrative Law V A Refs.
Administrative Law
V. Rulemaking
A. In General
Research References

West’s Key Number Digest, Administrative Law and Procedure 4.1, 9, 12, 341, 343.1, 381 to 389, 392.1, 441, 442
A.L.R. Library
West’s A.L.R. Digest, Administrative Law and Procedure 4.1, 9, 12, 341, 343.1, 381 to 389, 392.1, 441, 442
Works.

§ 127. General nature and basis of authority, 2 Am. Jur. 2d Administrative Law § 127
Administrative Law
V. Rulemaking
A. In General
1. Generally
§ 127. General nature and basis of authority

West’s Key Number Digest, Administrative Law and Procedure 9, 12, 381 to 389
A legislature may grant1or delegate2the power to make rules and regulations to an administrative agency. The origin of the
rulemaking capacity is in a delegation from the legislature. 3The basic purpose of establishing agencies to consider and
promulgate rules is to delegate the primary authority of implementing policy in a specialized area to governmental bodies
with the staff, resources, and expertise to understand and solve those specialized problems.4However, while administrative
agencies have no inherent legislative power, they have all the powers expressly delegated to them by the legislature and are
authorized to fill in the interstices in the legislation by promulgating rules and regulations consistent with their enabling
legislation.5In other words, while an agency does not have the power to promulgate rules that amend or change legislative
enactments, it may fill in the gaps in legislation where necessary to effectuate a general statutory scheme.6
The promulgation of administrative rules and regulations lies at the very heart of the administrative process, permitting expert
and flexible control in areas where the diversity of circumstances and situations to be encountered forbids the enactment of
legislation anticipating every possible problem which may arise and providing for its solution. 7
Cases:
Whether an agency’s statement is subject to the Administrative Procedures Act’s (APA) rule-making requirements requires
the interior determination of whether the statement is actually a rule. S.D. Codified Laws § 1-26-4. Rhines v. South Dakota
Department of Corrections, 2019 SD 59, 935 N.W.2d 541 (S.D. 2019).

§ 127. General nature and basis of authority, 2 Am. Jur. 2d Administrative Law § 127
[END OF SUPPLEMENT]
Footnotes
1 City of Albuquerque v. New Mexico Public Regulation Com’n, 2003-NMSC-028, 134 N.M. 472, 79 P.3d 297 (2003).
2 Griffith v. Frontier West Virginia, Inc., 228 W. Va. 277, 719 S.E.2d 747 (2011).
An administrative agency is empowered to adopt rules when a statute grants rule-making authority and when there is a
specific law to be implemented. Subirats v. Fidelity Nat. Property, 106 So. 3d 997 (Fla. 3d DCA 2013).
4 In re N.J.A.C. 7:1B-1.1 Et Seq., 431 N.J. Super. 100, 67 A.3d 621 (App. Div. 2013), certification denied, 216 N.J. 8,
75 A.3d 1162 (2013).
5 Kigin v. State Workers’ Compensation Bd., 109 A.D.3d 299, 970 N.Y.S.2d 111 (3d Dep’t 2013), leave to appeal
granted, 22 N.Y.3d 854, 977 N.Y.S.2d 183, 999 N.E.2d 548 (2013).
6 Washington Federation of State Employees v. State Dept. of General Admin., 152 Wash. App. 368, 216 P.3d 1061
(Div. 2 2009).
75 A.3d 1162 (2013).

Works.

§ 128. Express or implied authority, 2 Am. Jur. 2d Administrative Law § 128
Administrative Law
V. Rulemaking
A. In General
1. Generally
§ 128. Express or implied authority

A.L.R. Library
Construction and Application of Public Safety Officers’ Benefits Act (PSOBA), 42 U.S.C.A ss3796 to 3796d-7, 23 A.L.R.
Fed. 2d 129
While the need for regulation cannot alone create the authority to regulate, 1statutory authority to promulgate rules may be
either express or implied.2When a statute expressly authorizes an agency to regulate an industry, it implies the authority to
promulgate rules and regulations necessary to accomplish that purpose. 3Thus, an administrative agency’s powers to
promulgate regulations are shaped by its organic statute taken as a whole and need not necessarily be traced to specific
words.4
Federal courts hold that when Congress has explicitly left a gap for an agency to fill, it expressly delegates authority to the
agency to elucidate a specific provision of the statute by regulation. 5The power of an administrative agency to administer a
congressionally created program necessarily requires the formulation of policy and the making of rules to fill any gap left,
implicitly or explicitly, by Congress6provided it does so in a manner that is consistent with the policies reflected in the
statutory program.7When an agency fills such a “gap” reasonably, and in accordance with other applicable requirements, the
courts accept the result as legally binding.8
Footnotes

§ 128. Express or implied authority, 2 Am. Jur. 2d Administrative Law § 128
1 ExxonMobil Gas Marketing Co. v. F.E.R.C., 297 F.3d 1071 (D.C. Cir. 2002).
2 Pruett v. Harris County Bail Bond Bd., 249 S.W.3d 447 (Tex. 2008); Washington Federation of State Employees v.
State Dept. of General Admin., 152 Wash. App. 368, 216 P.3d 1061 (Div. 2 2009).
3 Pruett v. Harris County Bail Bond Bd., 249 S.W.3d 447 (Tex. 2008).
4 Ciampi v. Commissioner of Correction, 452 Mass. 162, 892 N.E.2d 270 (2008).
An enabling statute need not spell out every detail of an administrative agency’s rule to expressly authorize it.
Milwaukee Police Ass’n v. Bd. of Fire & Police Com’rs of City of Milwaukee, 787 F. Supp. 2d 888 (E.D. Wis. 2011),
appeal dismissed, 708 F.3d 921 (7th Cir. 2013) (applying Wisconsin law).
5 U.S. v. Mead Corp., 533 U.S. 218, 121 S. Ct. 2164, 150 L. Ed. 2d 292, 3 A.L.R. Fed. 2d 651 (2001); Palomar Medical
Center v. Sebelius, 693 F.3d 1151 (9th Cir. 2012); Reckitt Benckiser, Inc. v. Jackson, 762 F. Supp. 2d 34 (D.D.C.
2011); Electrical Workers Ins. Fund v. Sebelius, 906 F. Supp. 2d 707 (E.D. Mich. 2012); New Gaming Systems, Inc.
v. National Indian Gaming Com’n, 896 F. Supp. 2d 1093 (W.D. Okla. 2012).
6 Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 127 S. Ct. 2339, 168 L. Ed. 2d 54 (2007); Philip Morris USA
Inc. v. Vilsack, 896 F. Supp. 2d 512 (E.D. Va. 2012), aff’d, 736 F.3d 284 (4th Cir. 2013); Towne v. United States, 113
Fed. Cl. 87 (2013).
7 Contreras v. U.S., 215 F.3d 1267 (Fed. Cir. 2000).
8 Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 127 S. Ct. 2339, 168 L. Ed. 2d 54 (2007).

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§ 129. Limits on authority, 2 Am. Jur. 2d Administrative Law § 129
Administrative Law
V. Rulemaking
A. In General
1. Generally
§ 129. Limits on authority

An agency’s regulatory power derives only from an authorizing or empowering statute. 1Thus, the rule-making authority
delegated to administrative agencies is limited by the statute conferring the power.2An administrative agency has no power to
make law,3cannot promulgate rules or regulations that contravene the will of the legislature 4and can only promulgate rules to
further the implementation of the law as it exists5because an agency may not promulgate even reasonable regulations that
claim a force of law without delegated authority.6An agency’s authority to promulgate rules is limited to enacting rules which
carry out and further the purposes of the legislation 7and do not enlarge, alter, limit, or restrict the provisions of the act being
administered.8
In the absence of valid statutory authority, an administrative agency may not, under the guise of a regulation, substitute its
judgment for that of the legislature.9Moreover, a basic limitation on an agency’s rulemaking authority is that an
administrative agency may not legislate by enacting rules which are in excess of legislative policy. 10Nor may an agency
create,11remove, or limit substantive rights granted in the enabling act. 12In other words, administrative rules may not add to,
detract from,13or modify the statute which they are intended to implement.14In this respect, administrative agencies must
exercise their rule-making authority within the parameters of their statutory grant.15In deciding whether a particular
administrative agency has exceeded its rule-making powers, the determinative factor is whether the rule’s provisions are in
harmony with the general objectives of the act involved.16
Cases:
Power of an administrative officer or board to administer a statute and prescribe rules and regulations to that end is not the

§ 129. Limits on authority, 2 Am. Jur. 2d Administrative Law § 129
power to make law but the power to adopt regulations to carry into effect the will of the legislative body as expressed by the
statute; a regulation which does not do this, but operates to create a rule out of harmony with the statute, is a mere nullity.
Citibank, N.A. v. South Dakota Dept. of Revenue, 2015 SD 67, 868 N.W.2d 381 (S.D. 2015).
[END OF SUPPLEMENT]
Footnotes
1 § 127.
2 Bowen v. Georgetown University Hosp., 488 U.S. 204, 109 S. Ct. 468, 102 L. Ed. 2d 493 (1988).
3
Arellano v. Department of Human Services, 402 Ill. App. 3d 665, 348 Ill. Dec. 23, 943 N.E.2d 631 (2d Dist. 2010).
4 Kew Gardens Dev. Corp. v. Wambua, 103 A.D.3d 576, 961 N.Y.S.2d 48 (1st Dep’t 2013).
As to the validity of rules that exceed the scope of the legislative delegation, generally, see § 215.
5 Seittelman v. Sabol, 91 N.Y.2d 618, 674 N.Y.S.2d 253, 697 N.E.2d 154 (1998).
An administrative agency’s power to promulgate legislative regulations is limited to authority delegated by Congress.
American Federation of Labor v. Chertoff, 552 F. Supp. 2d 999 (N.D. Cal. 2007).
6 National Auto. Dealers Ass’n v. F.T.C., 864 F. Supp. 2d 65 (D.D.C. 2012), appeal dismissed, 2013 WL 1164417 (D.C.
Cir. 2013).
7 Lales v. Wholesale Motors Co., 121 Fair Empl. Prac. Cas. (BNA) 1225, 2014 WL 560829 (Haw. 2014).
8
Lales v. Wholesale Motors Co., 121 Fair Empl. Prac. Cas. (BNA) 1225, 2014 WL 560829 (Haw. 2014); Appalachian
Racing, LLC v. Family Trust Foundation of Kentucky, Inc., 423 S.W.3d 726 (Ky. 2014); Garrison v. Department of
Revenue, 345 Or. 544, 200 P.3d 126 (2008).
9 City and County of San Francisco v. Ballard, 136 Cal. App. 4th 381, 39 Cal. Rptr. 3d 1 (1st Dist. 2006).
10 Perrysburg Twp. v. Rossford Arena Amphitheater Auth., 175 Ohio App. 3d 549, 2008-Ohio-363, 888 N.E.2d 440 (6th
Dist. Wood County 2008).
11 People ex rel. Kilquist v. Brown, 203 Ill. App. 3d 957, 148 Ill. Dec. 928, 561 N.E.2d 234 (5th Dist. 1990).
12 Knox County ex rel. Kessel v. Knox County Personnel Bd., 753 S.W.2d 357 (Tenn. Ct. App. 1988).
13 Formula Development Corp. v. Town of Chester, 156 N.H. 177, 934 A.2d 504 (2007); State ex rel. Am. Legion Post
25 v. Ohio Civ. Rights Comm., 117 Ohio St. 3d 441, 2008-Ohio-1261, 884 N.E.2d 589 (2008).
14 Formula Development Corp. v. Town of Chester, 156 N.H. 177, 934 A.2d 504 (2007).
15 Sharpe v. Arizona Health Care Cost Containment System, 220 Ariz. 488, 207 P.3d 741 (Ct. App. Div. 1 2009).
16 Pruett v. Harris County Bail Bond Bd., 249 S.W.3d 447 (Tex. 2008).

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§ 130. Legislative nature, 2 Am. Jur. 2d Administrative Law § 130
Administrative Law
V. Rulemaking
A. In General
1. Generally
§ 130. Legislative nature

While there is contrary authority,1rulemaking is considered to be a legislative2or quasi-legislative function3because it is

largely concerned with questions of policy.4
Footnotes
1 Durrett v. Bryan, 14 Kan. App. 2d 723, 799 P.2d 110 (1990).
2 Chase 3000, Inc. v. Public Service Com’n, 273 Neb. 133, 728 N.W.2d 560 (2007).
4 Venter v. Board of Educ., 185 Md. App. 648, 972 A.2d 328, 245 Ed. Law Rep. 306 (2009).

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§ 131. Agency discretion, 2 Am. Jur. 2d Administrative Law § 131
Administrative Law
V. Rulemaking
A. In General
1. Generally
§ 131. Agency discretion

An agency has the inherent authority and is given wide latitude and discretion to adopt regulations 1that are reasonably
necessary to perform its statutory duties.2Accordingly, administrative agencies may not act arbitrarily and capriciously in the
enactment of rules and regulations in the exercise of their delegated powers. 3A court will not substitute its judgment for that
of the agency4as to the content of a legislative rule5absent fraud, bad faith, or abuse of power 6unless the statutes mandate the
adoption of the requested rule.7
Administrative agencies have undoubted power to use predictive tools in rulemaking. 8Moreover, the “one-step-at-a-time”
doctrine authorizes agencies to promulgate regulations in a piecemeal fashion. The one-step-at-a-time doctrine rests on the
notion that since agencies have great discretion to treat a problem partially, the court of appeals should not strike down a
regulation if it is a first step toward a complete solution.9
Observation:
The Regulatory Flexibility Act10may have an impact upon an agency’s discretion in promulgating regulations.
A regulatory agency is charged with the responsibility of adapting its regulations to changing conditions when enforcing a
statute under its authority.11Specifically, an agency may base a standard or mandate on future technology when there exists a
rational connection between the regulatory target and the presumed innovation. 12

§ 131. Agency discretion, 2 Am. Jur. 2d Administrative Law § 131
Cases:
An agency’s preference for symmetry cannot trump an asymmetrical statute. Michigan v. E.P.A., 135 S. Ct. 2699 (2015).
[END OF SUPPLEMENT]
Footnotes
1 Judicial Inquiry and Review Com’n of Virginia v. Elliott, 272 Va. 97, 630 S.E.2d 485 (2006).
2 Julie Q. v. Department of Children and Family Services, 2011 IL App (2d) 100643, 357 Ill. Dec. 448, 963 N.E.2d 401
(App. Ct. 2d Dist. 2011), appeal allowed, 360 Ill. Dec. 3, 968 N.E.2d 82 (Ill. 2012) and judgment aff’d, 2013 IL
113783, 374 Ill. Dec. 480, 995 N.E.2d 977 (Ill. 2013).
3 Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 57 S. Ct. 364, 81 L. Ed. 510 (1937); Florentine v. Town
of Darien, 142 Conn. 415, 115 A.2d 328 (1955).
4 American Network, Inc. v. Washington Utilities and Transp. Com’n, 113 Wash. 2d 59, 776 P.2d 950 (1989).
A reviewing court is not free to set aside regulations because it would have interpreted the statute in a different
manner. Batterton v. Francis, 432 U.S. 416, 97 S. Ct. 2399, 53 L. Ed. 2d 448 (1977).
5 Dilts v. Director of Revenue, 208 S.W.3d 299 (Mo. Ct. App. W.D. 2006).
6 Bayada Nurses, Inc. v. Commonwealth, Dept. of Labor and Industry, 958 A.2d 1050 (Pa. Commw. Ct. 2008), order
aff’d, 607 Pa. 527, 8 A.3d 866 (2010).
7 Bayonet Point Hosp., Inc. v. Department of Health and Rehabilitative Services, 490 So. 2d 1318 (Fla. 1st DCA 1986).
8 American Farm Bureau Federation v. U.S. E.P.A., 77 Env’t. Rep. Cas. (BNA) 1855, 2013 WL 5177530 (M.D. Pa.
2013).
9 Center for Biological Diversity v. E.P.A., 722 F.3d 401 (D.C. Cir. 2013).
10 5 U.S.C.A. §§ 601 to 612.
As to the compliance with the Act in the federal rule-making process, see § 169.
75 A.3d 1162 (2013).
12 American Petroleum Institute v. E.P.A., 706 F.3d 474 (D.C. Cir. 2013).

Works.

§ 132. Federal Administrative Procedure Act, 2 Am. Jur. 2d Administrative Law § 132
Administrative Law
V. Rulemaking
A. In General
2. Rule, Rulemaking Defined
§ 132. Federal Administrative Procedure Act

West’s Key Number Digest, Administrative Law and Procedure 381, 382.1, 385.1, 386
The Federal Administrative Procedure Act (APA) defines “rulemaking” as an agency process for formulating, amending, or
repealing a rule.1A “rule” is defined in the APA as the whole or a part of an agency statement of general or particular
applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization,
procedure, or practice requirements of an agency. 2
Footnotes
1 5 U.S.C.A. § 551(5).
2 5 U.S.C.A. § 551(4).

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§ 133. State law and Model State Administrative Procedure Act, 2 Am. Jur. 2d...
Administrative Law
V. Rulemaking
A. In General
2. Rule, Rulemaking Defined
§ 133. State law and Model State Administrative Procedure Act

West’s Key Number Digest, Administrative Law and Procedure 4.1, 381, 382.1, 385.1, 386
A state’s administrative procedures act governs the delegation of rulemaking authority to executive agencies by the state
legislature.1State administrative agencies may be bound by the rule-making provisions of the state’s administrative
procedures act.2Whether an agency’s action is rulemaking, despite bearing some other label, is determined under the state
administrative procedure act.3
Any agency announcement of policy or interpretation of law that has future effect and acts on unnamed and unspecified facts
is a “rule” for purposes of state administrative law. 4
To determine whether an agency has attempted to establish a binding norm so that the agency’s pronouncement is a
regulation, the court considers: (1) the plain language of the enactment; (2) the manner in which the agency implements it;
and (3) whether it restricts the agency’s discretion.5
The 2010 version of the Model State Administrative Procedure Act defines “rule” as the whole or a part of an agency
statement of general applicability that implements, interprets, or prescribes law or policy or the organization, procedure, or
practice requirements of an agency and has the force of law.6Also, under the 2010 version, “rulemaking” means the process
for the adoption of a new rule or the amendment or repeal of an existing rule. 7
Under the 1981 version of the Model State Administrative Procedure Act, a rule is the whole or a part of an agency statement
of general applicability that implements, interprets, or prescribes: (1) law or policy; or (2) the organization, procedure, or
practice requirements of an agency.8The term “rule” includes the amendment, repeal, or suspension of an existing rule. 9The
1981 version defines rulemaking as the process for formulation and adoption of a rule. 10
Footnotes
§ 133. State law and Model State Administrative Procedure Act, 2 Am. Jur. 2d...
1 Lockett v. Evans, 2014 OK 34, 2014 WL 1632235 (Okla. 2014).

Protocols following mandatory guidelines are deemed regulations which may not be used by a state agency until they
are formally adopted, following compliance with procedural requirements under the Administrative Procedure Act.
People v. Taylor, 174 Cal. App. 4th 920, 94 Cal. Rptr. 3d 756 (4th Dist. 2009), as modified on denial of reh’g, (June
29, 2009).
2 Bradford Associates v. Rhode Island Div. of Purchases, 772 A.2d 485 (R.I. 2001).
3 McGee Guest Home, Inc. v. Department of Social and Health Services of State of Wash., 142 Wash. 2d 316, 12 P.3d
144 (2000).
4 Young v. Children’s Div., State Dept. of Social Services, 284 S.W.3d 553 (Mo. 2009).
5 Northwestern Youth Services, Inc. v. Com., Dept. of Public Welfare, 1 A.3d 988 (Pa. Commw. Ct. 2010), order aff’d,
66 A.3d 301 (Pa. 2013).
6 Model State Administrative Procedure Act (2010) § 102(30).
7 Model State Administrative Procedure Act (2010) § 102(31).
8 Model State Administrative Procedure Act (1981) § 1-102(10).

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§ 134. Adjudication, 2 Am. Jur. 2d Administrative Law § 134
Administrative Law
V. Rulemaking
A. In General
3. Rulemaking Distinguished from Other Agency Action
§ 134. Adjudication


As to rulemaking defined and distinguished, generally, see Federal Procedure, L. Ed., Administrative Procedure
Generally, an administrative agency acting formally may do so through rulemaking, which is quasi-legislative,1or through
adjudication, which is quasi-judicial.2
The Federal Administrative Procedure Act (APA) distinguishes adjudication from rulemaking by stating that adjudication is
an agency process for the formulation of an order, 3and an order is a final disposition in a matter other than rulemaking. 4Two
principal characteristics distinguish “rulemaking” from “adjudication,” under the APA: (1) adjudications resolve disputes
among specific individuals in specific cases, and (2) because adjudications involve concrete disputes, they have an immediate
effect on specific individuals; in contrast, rulemaking is prospective and has a definitive effect on individuals only after the
rule subsequently is applied.5Thus, rulemaking looks to the future, 6since rules have legal consequences only for the
future,7while adjudication judges preexisting events under existing law. 8The APA accepts this theory and provides that a rule
is an agency statement of future effect.9When determining whether an agency action is an adjudication or a rulemaking
subject to the notice and comment requirements under the Administrative Procedure Act, the court first considers the
agency’s characterization of its own action and, second, examines the ultimate product of the agency action. 10
Adjudication is party-specific and is concerned with the determination of past and present rights and liabilities; in contrast,
rulemaking is not party-specific but, rather, tends to focus on policy considerations and results in orders that are, by
definition, orders of future effect.11Another possible distinction between rulemaking and adjudication is that rulemaking may
affect an entire class rather than particular members of a group. 12However, the Federal APA provides that a rule may be of
general or particular applicability.13Indeed, rules may affect individual rights. 14Conversely, the fact that an agency’s decision
may have collateral effects upon others similarly situated to parties in the case does not transform an adjudicatory action into
a rule-making proceeding.15
Cases:
Interpretations that arise in the course of case-specific adjudication are not “regulations” under the Administrative Procedure
Act (APA). Cal. Gov’t Code § 11340 et seq. Center for Biological Diversity v. Department of Fish and Wildlife, 234 Cal.
App. 4th 214, 183 Cal. Rptr. 3d 736 (3d Dist. 2015).
[END OF SUPPLEMENT]
Footnotes
1 As to quasi-legislative character of rulemaking, see § 130.
Administrative adjudication is a quasi-judicial function. Morgan v. U.S., 298 U.S. 468, 56 S. Ct. 906, 80 L. Ed. 1288
(1936).
As to adjudication, generally, see §§ 258 to 271.
3 5 U.S.C.A. § 551(7).
4 5 U.S.C.A. § 551(6).
5 City of Arlington, Tex. v. F.C.C., 668 F.3d 229 (5th Cir. 2012), certiorari granted in part, 133 S. Ct. 421, 184 L. Ed. 2d
252 (2012) and certiorari granted in part, 133 S. Ct. 524, 184 L. Ed. 2d 252 (2012) and aff’d, 133 S. Ct. 1863 (2013).
6 Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S. Ct. 67, 53 L. Ed. 150 (1908); C.H. v. Payne, 683 F. Supp. 2d
865 (S.D. Ind. 2010).
7 Franks v. Salazar, 816 F. Supp. 2d 49 (D.D.C. 2011).
Rulemaking is the process by which an administrative agency lays down new prescriptions to govern the future
conduct of those subject to its authority. Venter v. Board of Educ., 185 Md. App. 648, 972 A.2d 328, 245 Ed. Law
Rep. 306 (2009).
8
Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S. Ct. 67, 53 L. Ed. 150 (1908).
9 5 U.S.C.A. § 551(4).
10 City of Arlington, Tex. v. F.C.C., 668 F.3d 229 (5th Cir. 2012), certiorari granted in part, 133 S. Ct. 421, 184 L. Ed. 2d
252 (2012) and certiorari granted in part, 133 S. Ct. 524, 184 L. Ed. 2d 252 (2012) and aff’d, 133 S. Ct. 1863 (2013).
11 San Juan Cable LLC v. Puerto Rico Telephone Co., Inc., 612 F.3d 25 (1st Cir. 2010).
12 Woodland Private Study Group v. State, Dept. of Environmental Protection, 109 N.J. 62, 533 A.2d 387 (1987).
13 5 U.S.C.A. § 551(4).

14 Short Haul Survival Committee v. U.S., 572 F.2d 240 (9th Cir. 1978).
15 AviComm, Inc. v. Colorado Public Utilities Com’n, 955 P.2d 1023 (Colo. 1998).

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§ 135. Adjudication—Agency discretion to act through..., 2 Am. Jur. 2d...
Administrative Law
V. Rulemaking
A. In General
§ 135. Adjudication—Agency discretion to act through rulemaking or adjudication

An agency may establish rules of general application in either a statutory rule-making procedure or an individual
adjudication.1Adjudicative rulemaking by an agency may be appropriate when the agency is construing a new rule or an issue
requires ad hoc resolution that cannot be captured within the bounds of a general rule. 2Indeed, an agency may use
adjudication to announce new principles even if the principles involve a change from past policies. 3
On the other hand, it is sometimes said that the preferred method of policymaking is by the promulgation of rules 4rather than
in the course of deciding contested cases5to avoid undercutting the jurisdiction’s administrative procedure act. 6Thus, while
the Federal Administrative Procedure Act does not forbid agencies from using adjudicative proceedings to develop new
interpretations of statutes, regulations, or orders, it does require agencies to avoid the inherently arbitrary nature of
unpublished ad hoc determinations.7
According to some courts, an agency’s determination of a disputed question during adjudication amounts to the declaration of
a new rule, for purposes of the principle that agencies normally should promulgate new rules through the rulemaking
procedures of the state’s administrative procedure act, if it: (1) is intended to have wide coverage encompassing a large
segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied
generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively;
(4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from
the enabling statutory authorization; (5) reflects an administrative policy that was not previously expressed in any official and
explicit agency determination, adjudication or rule, or constitutes a material and significant change from a clear, past agency
position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the
interpretation of law or general policy.8
Generally, however, administrative agencies have some discretion to exercise their authority through either adjudication or
rulemaking9or both.10Even where an agency’s enabling statute expressly requires it to hold a hearing, the agency may rely on
its rule-making authority to determine issues that do not require case-by-case determination.11If a statutory scheme requires

§ 135. Adjudication—Agency discretion to act through..., 2 Am. Jur. 2d...
individualized determinations, the decisionmaker has the authority to rely on rulemaking to resolve certain issues of general
applicability unless Congress clearly expresses an intent to withhold that authority.12
Footnotes
1 Washington Hosp. Center v. District of Columbia Dept. of Employment Services, 743 A.2d 1208 (D.C. 1999).
2 Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248 (Tex. 1999).
3 Washington Hosp. Center v. District of Columbia Dept. of Employment Services, 743 A.2d 1208 (D.C. 1999).
4 Campo Jersey, Inc. v. Director, Div. of Taxation, 390 N.J. Super. 366, 915 A.2d 600 (App. Div. 2007), also published
at, 23 N.J. Tax 370, 2007 WL 1429416 (Super. Ct. App. Div. 2007).
5 Forelaws on Bd. v. Energy Facility Siting Council, 306 Or. 205, 760 P.2d 212 (1988).
6 Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248 (Tex. 1999).
7 Mid Continent Nail Corp. v. U.S., 725 F.3d 1295 (Fed. Cir. 2013).
8 U.S. v. Reeves, 891 F. Supp. 2d 690 (D.N.J. 2012) (applying New Jersey law); In re Provision of Basic Generation
Service for Period Beginning June 1 2008, 205 N.J. 339, 15 A.3d 829 (2011).
9 Securities and Exchange Commission v. Chenery Corp., 332 U.S. 194, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947); City of
Arlington, Tex. v. F.C.C., 668 F.3d 229 (5th Cir. 2012), certiorari granted in part, 133 S. Ct. 421, 184 L. Ed. 2d 252
(2012) and certiorari granted in part, 133 S. Ct. 524, 184 L. Ed. 2d 252 (2012) and aff’d, 133 S. Ct. 1863 (2013);
F.T.C. v. Wyndham Worldwide Corp., 2014 WL 1349019 (D.N.J. 2014); Mesbahi v. Maryland State Bd. of
Physicians, 201 Md. App. 315, 29 A.3d 679 (2011); Doe v. Sex Offender Registry Bd., 79 Mass. App. Ct. 683, 948
N.E.2d 1268 (2011).
An agency has wide discretion in deciding to forgo rulemaking. Squaxin Island Tribe v. Washington State Dept. of
Ecology, 177 Wash. App. 734, 312 P.3d 766 (Div. 2 2013).
10 Greenbriar Hills Country Club v. Director of Revenue, 47 S.W.3d 346 (Mo. 2001).
11 Mobil Oil Exploration & Producing Southeast Inc. v. United Distribution Companies, 498 U.S. 211, 111 S. Ct. 615,
112 L. Ed. 2d 636 (1991).
12 Lopez v. Davis, 531 U.S. 230, 121 S. Ct. 714, 148 L. Ed. 2d 635 (2001).

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§ 136. Investigation, 2 Am. Jur. 2d Administrative Law § 136
Administrative Law
V. Rulemaking
A. In General
§ 136. Investigation

West’s Key Number Digest, Administrative Law and Procedure 341, 343.1, 381, 382.1

As to rulemaking defined and distinguished, generally, see Federal Procedure, L. Ed., Administrative Procedure
Fact finding is generally done in the investigative rather than the rule-making process.1An investigation, therefore, may be a
prelude to rulemaking,2but rule-making requirements must be met once it is decided that a rule must be enacted or amended. 3
Footnotes
1 American Exp. Co. v. U. S., 472 F.2d 1050 (C.C.P.A. 1973).
As to investigations, generally, see §§ 101 to 109.
2 § 101.
3 Chicago, B. & Q. R. Co. v. U.S., 242 F. Supp. 414 (N.D. Ill. 1965), judgment aff’d, 382 U.S. 422, 86 S. Ct. 616, 15 L.
Ed. 2d 498 (1966).

§ 136. Investigation, 2 Am. Jur. 2d Administrative Law § 136

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Administrative Law
V. Rulemaking
A. In General
4. Review Committee
§ 137. Generally

Under the 2010 version of the Model State Administrative Procedure Act, a standing committee of the legislature is created
and designated as the rules review committee.1An agency must file a copy of an adopted rule with the rules review
committee, but an agency is not required to file an emergency rule. 2Further, the 2010 version of the Model Act authorizes the
rules review committee to examine each rule in effect and newly adopted rule to determine whether it is a valid exercise of
delegated legislative authority, whether the statutory authority for the rule has expired or been repealed, the necessity for the
rule, that the rule is a reasonable implementation of the law, and that the agency complied with the regulatory analysis
requirements and the analysis properly reflects the effect of the rule. 3The committee may request from an agency information
necessary to exercise its powers.4The rules review committee is authorized by the 2010 Model Act to approve, disapprove, or
disapprove and propose an amendment to a rule within 30 days after receiving a copy of it from an agency.5
Under the 1981 version of the Model State Administrative Procedure Act, agencies have a duty to review all their rules as
often as the Model Act requires to determine whether new rules should be adopted. 6The 1981 version of the Model Act also
allows for the creation of an administrative rules review committee of the legislature. 7The committee may, among other
things, selectively review possible, proposed, or adopted rules 8and recommend to an agency that it adopt a rule. 9
Footnotes
1 Model State Administrative Procedure Act (2010) § 701.
2 Model State Administrative Procedure Act (2010) § 702(a).
3 Model State Administrative Procedure Act (2010) § 702(b).

4 Model State Administrative Procedure Act (2010) § 702(c).

6 Model State Administrative Procedure Act (1981) § 3-201.
7 Model State Administrative Procedure Act (1981) § 3-203.
8 Model State Administrative Procedure Act (1981) § 3-204(a).
9 Model State Administrative Procedure Act (1981) § 3-204(e).

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Research References, 2 Am. Jur. 2d Administrative Law V B Refs.
2 Am. Jur. 2d Administrative Law V B Refs.
Administrative Law
V. Rulemaking
B. Types of Rules and Agency Statements
Research References

A.L.R. Library
Works.

Administrative Law
V. Rulemaking
1. In General
§ 138. Generally

A.L.R. Library
What constitutes “interpretative rule” of agency so as to exempt such action from notice requirements of Administrative
Procedure Act (5 U.S.C.A. sec. 553(b)(3)(A)), 126 A.L.R. Fed. 347
The Federal Administrative Procedure Act (APA)1recognizes the existence of legislative rules (sometimes referred to as
substantive rules),2interpretive rules,3procedural rules,4and general statements of policy.5While the APA does not define these
terms, courts have developed definitions.6
The Model State Administrative Procedure Act does not use these terms although state courts 7and a state’s administrative
procedure act8may do so.
A state’s administrative procedure act does not require every agency decision to be in the form of a rule. 9Thus, a state agency
can carry out its statutorily appointed day-to-day tasks without every action being considered an exercise in rulemaking, 10and
not every piece of paper emanating from an agency is a regulation. 11However, an agency may not adopt a guideline or policy
directive in lieu of a rule.12
Footnotes

1 5 U.S.C.A. § 553.
2 As to legislative rules, generally, see § 140.
3 As to interpretive rules, generally, see § 142.
4 As to procedural rules, generally, see § 144.
5 As to general statements of policy, generally, see § 145.
7 Engineering Management Services, Inc. v. Maryland State Highway Admin., 375 Md. 211, 825 A.2d 966 (2003).
There are two categories of administrative rules, quasi-legislative and interpretative. In re Cabrera, 55 Cal. 4th 683,
148 Cal. Rptr. 3d 500, 287 P.3d 72 (2012).
8 Coordinating Council for Independent Living, Inc. v. Palmer, 209 W. Va. 274, 546 S.E.2d 454 (2001).
9 Oklahoma Public Employees Ass’n v. Oklahoma Dept. of Central Services, 2002 OK 71, 55 P.3d 1072 (Okla. 2002).
10 Arkansas Pharmacist’s Ass’n, Inc. v. Arkansas State and Public School Life and Health Ins. Bd., 352 Ark. 1, 98
S.W.3d 27 (2003).
11 Chiron Corp. and PerSeptive Biosystems, Inc. v. National Transp. Safety Bd., 198 F.3d 935 (D.C. Cir. 1999).
12 Jordan v. Department of Corrections, 165 Mich. App. 20, 418 N.W.2d 914 (1987).

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§ 139. Determination of character of statement or directive, 2 Am. Jur. 2d Administrative...
Administrative Law
V. Rulemaking
1. In General
§ 139. Determination of character of statement or directive

The inquiry as to whether a statement is a rule, and subject to the rule-making requirements,1focus on whether the policy
being implemented has the effect of being a rule. 2An agency’s intent to create a regulation is ascertained by examination of
the provision’s language, its context, and any available extrinsic evidence. 3The characterization4or label an agency gives its
rules is not dispositive or conclusive5although the label carries some weight.6
Footnotes
1 As to the federal and state rule-making requirements, see §§ 142 to 182 and §§ 183 to 206, respectively.
2 Constantino v. Michigan Dept. of State Police, 707 F. Supp. 2d 724 (W.D. Mich. 2010), order amended on other
grounds, 2010 WL 4115385 (W.D. Mich. 2010).
3
Kearney Partners Fund, LLC ex rel. Lincoln Partners Fund, LLC v. U.S., 946 F. Supp. 2d 1302 (M.D. Fla. 2013);
Yankton Sioux Tribe v. Kempthorne, 442 F. Supp. 2d 774, 212 Ed. Law Rep. 304 (D.S.D. 2006).
4 U.S. v. Alameda Gateway Ltd., 213 F.3d 1161 (9th Cir. 2000); Eastwood Nursing and Rehabilitation Center v. Dept.
of Public Welfare, 910 A.2d 134 (Pa. Commw. Ct. 2006).
5 Time Warner Cable Inc. v. F.C.C., 729 F.3d 137 (2d Cir. 2013); Constantino v. Michigan Dept. of State Police, 707 F.
Supp. 2d 724 (W.D. Mich. 2010), order amended on other grounds, 2010 WL 4115385 (W.D. Mich. 2010); Sams v.
Department of Environmental Protection, 308 Conn. 359, 63 A.3d 953 (2013).
An agency’s own label as to whether a rule is interpretive, while relevant, is not dispositive. Ace Property & Cas. Ins.
Co. v. Federal Crop Ins. Corp., 517 F. Supp. 2d 391 (D.D.C. 2007).
As to the weight given a federal agency’s characterization of a rule as exempt from the Federal Administrative

§ 139. Determination of character of statement or directive, 2 Am. Jur. 2d Administrative...
Procedure Act, see § 176.

6 Truckers United for Safety v. Federal Highway Admin., 139 F.3d 934 (D.C. Cir. 1998).

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Administrative Law
V. Rulemaking
2. Legislative Rules
§ 140. Generally

A.L.R. Library

As to types of rules, generally, see Federal Procedure, L. Ed., Administrative Procedure [Westlaw®: Search Query]
”Legislative rules,” also known as substantive rules,1are those issued pursuant to statutory authority or legislative
delegation2that—
— implement a statute.3
— effect a change in existing law or policy.4
— grant rights or impose obligations.5
— create new law, rights, or duties,6in what amounts to a legislative act.7
— impose general, extrastatutory obligations8or new duties upon a regulated party.9
— affect individual rights and obligations.10
— have a “substantial impact” on those to whom they apply.11

— implement a statute.12
— create substantive law,13usually implementary to existing law.14
However, it has been held that the impact of a rule has no bearing on whether it is legislative, interpretative, or procedural for
the purposes of the Federal Administrative Procedure Act and that an otherwise-procedural rule does not become a
substantive one simply because it imposes a burden on regulated parties. 15
Observation:
If a rule is based on an agency’s power to exercise its judgment as to how best to implement a general statutory mandate, the rule
is likely a “legislative rule.”16
Cases:
A “substantive rule,” as requires notice and comment period pursuant to Administrative Procedure Act (APA), is one issued
by an agency pursuant to statutory authority, which implements the statute and has the force and effect of law. 5 U.S.C. §
553(b). Scenic America, Inc. v. United States Department of Transportation, 49 F. Supp. 3d 53 (D.D.C. 2014).
[END OF SUPPLEMENT]
Footnotes
1 American Tort Reform Ass’n v. Occupational Safety & Health Admin., 738 F.3d 387 (D.C. Cir. 2013); Building
Materials Corp. of America v. Board of Educ. of Baltimore County, 428 Md. 572, 53 A.3d 347, 285 Ed. Law Rep. 455
(2012).
2 Batterton v. Francis, 432 U.S. 416, 97 S. Ct. 2399, 53 L. Ed. 2d 448 (1977); Building Materials Corp. of America v.
Board of Educ. of Baltimore County, 428 Md. 572, 53 A.3d 347, 285 Ed. Law Rep. 455 (2012).
As to the delegation of rule-making power by the legislature, see § 127.
3 U.S. v. Stevenson, 676 F.3d 557 (6th Cir. 2012), cert. denied, 133 S. Ct. 168, 184 L. Ed. 2d 236 (2012).
4 Miller v. California Speedway Corp., 536 F.3d 1020 (9th Cir. 2008); American Tort Reform Ass’n v. Occupational
Safety & Health Admin., 738 F.3d 387 (D.C. Cir. 2013); Kiley v. Federal Bureau of Prisons, 333 F. Supp. 2d 406 (D.
Md. 2004).
5 American Tort Reform Ass’n v. Occupational Safety & Health Admin., 738 F.3d 387 (D.C. Cir. 2013); Kiley v.
Federal Bureau of Prisons, 333 F. Supp. 2d 406 (D. Md. 2004).
6 Cnty. of Clark v. LB Props., Inc., 315 P.3d 294, 129 Nev. Adv. Op. No. 96 (Nev. 2013); Building Materials Corp. of
America v. Board of Educ. of Baltimore County, 428 Md. 572, 53 A.3d 347, 285 Ed. Law Rep. 455 (2012).
An agency creates a “legislative rule,” for purposes of the Administrative Procedure Act, when it creates a new legal
norm based on the agency’s own authority to engage in supplementary lawmaking. Iowa League of Cities v. E.P.A.,

711 F.3d 844 (8th Cir. 2013).

7 New York State Elec. & Gas Corp. v. Saranac Power Partners, L.P., 267 F.3d 128 (2d Cir. 2001).
8 U.S. v. Gonzales & Gonzales Bonds and Ins. Agency, Inc., 728 F. Supp. 2d 1077 (N.D. Cal. 2010).
9 Chao v. Rothermel, 327 F.3d 223 (3d Cir. 2003).
10 Nguyen v. B.I. Inc., 435 F. Supp. 2d 1109 (D. Or. 2006); State v. Copes, 175 Md. App. 351, 927 A.2d 426 (2007).
For administrative rule to have the force and effect of law, it must be legislative in nature, affecting individual rights
and obligations. Freedom Foundation v. Washington State Dept. of Transp., Div. of Washington State Ferries, 168
Wash. App. 278, 276 P.3d 341 (Div. 2 2012).
A regulation must be a rule of sufficient generality to impinge substantially on others who will deal with the agency at
a future time. Pierce v. Lantz, 113 Conn. App. 98, 965 A.2d 576 (2009).
A substantive or legislative rule produces significant effects on private interests. American Tort Reform Ass’n v.
Occupational Safety & Health Admin., 738 F.3d 387 (D.C. Cir. 2013); Kiley v. Federal Bureau of Prisons, 333 F.
Supp. 2d 406 (D. Md. 2004).
12 U.S. v. Stevenson, 676 F.3d 557 (6th Cir. 2012), cert. denied, 133 S. Ct. 168, 184 L. Ed. 2d 236 (2012).
13 Minnesota Transitions Charter School v. Commissioner of Minnesota Dept. of Educ., 844 N.W.2d 223, 302 Ed. Law
Rep. 1198 (Minn. Ct. App. 2014).
14 Board of Trustees of Knox County Hosp. v. Shalala, 135 F.3d 493, 48 Fed. R. Evid. Serv. 1034 (7th Cir. 1998).
15 James V. Hurson Associates, Inc. v. Glickman, 229 F.3d 277, 47 Fed. R. Serv. 3d 1238 (D.C. Cir. 2000).
16 Star Enterprise v. U.S. E.P.A., 235 F.3d 139 (3d Cir. 2000), as amended, (Feb. 20, 2001).

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§ 141. Force and effect; proper promulgation, 2 Am. Jur. 2d Administrative Law § 141
Administrative Law
V. Rulemaking
2. Legislative Rules
§ 141. Force and effect; proper promulgation

Legislative or substantive rules have the force and effect of law and are binding on all persons and the courts. 1Indeed, it has
been held that the primary criterion in determining whether an agency action constitutes a legislative rule is whether the
action binds private parties or the agency itself with the force of law 2or whether the rule has legal effect3on private persons,
and not merely the internal management or organization of a state agency. 4
Legislative rules must be promulgated in accordance with proper procedures under a jurisdiction’s administrative procedure
act,5including the notice-and-comment requirements under the Federal Administrative Procedure Act. 6Indeed, an
administrative rule has the force of law only if the agency promulgated it with delegated authority. 7Thus, when a court
assessing the validity of quasi-legislative administrative rules is satisfied that the rule in question lay within the lawmaking
authority delegated by the legislature, and that it is reasonably necessary to implement the purpose of the statute, judicial
review is at an end.8
The inclusion in a bill which authorizes the promulgation of legislative rules pertaining to multiple agencies within one
executive department does not violate the one object rule of a state constitution. 9
Cases:
Rules issued through the Administrative Procedure Act’s (APA) notice-and-comment process are often referred to as
legislative rules because they have the force and effect of law. 5 U.S.C.A. § 553. Perez v. Mortgage Bankers Ass’n, 135 S.
Ct. 1199 (2015).

Nursing homes were not likely to prevail on issue of whether Center for Medicare and Medicaid Services (CMS) acted
arbitrarily and capriciously in enacting rule, which would effectively bar nursing homes receiving federal funds from entering
into new pre-dispute arbitration agreements with their residents, weighing against preliminary injunction prohibiting
enforcement of rule in nursing homes’ action under Administrative Procedure Act (APA) seeking declaration that rule was
unlawful, since fact that rule was change from CMS’ prior stated position on issue was insufficient to demonstrate that CMS
acted arbitrarily or capriciously. 5 U.S.C.A. § 551 et seq.; 42 C.F.R. § 483.70(n)(1). American Health Care Association v.
Burwell, 217 F. Supp. 3d 921 (N.D. Miss. 2016).
Beneficiaries of state Medicaid program providing home-based services to low-income individuals with physical disabilities
demonstrated likelihood of success on the merits of their claim that, by failing to provide proper notice, Department of
Human Services (DHS) did not substantially comply with Administrative Procedure Act (APA) in promulgating new rule
implementing reassessment system for determining attendant-care hours, as required to issue temporary restraining order
(TRO) enjoining DHS from reducing beneficiaries’ hours under new system; beneficiaries showed that, although DHS’s
proposed rule was submitted to the public, there was no mention of the new reassessment system in DHS’s notice of rule
making. Ark. Code Ann. § 25-15-204; Ark. R. Civ. P. 65. Arkansas Department of Human Services v. Ledgerwood, 2017
Ark. 308, 530 S.W.3d 336 (2017).
Although the Supreme Court does not defer to an administrative agency’s interpretation of a rule when that interpretation is
not promulgated, agencies may argue in favor of the interpretation as a litigation position, and the Supreme Court may adopt
the interpretation when the Court’s de novo consideration leads it to conclude that the interpretation is correct. Matter of
Minnesota Living Assistance, Inc., 934 N.W.2d 300 (Minn. 2019).
[END OF SUPPLEMENT]
Footnotes
1 § 223.
2 General Elec. Co. v. E.P.A., 290 F.3d 377 (D.C. Cir. 2002).
3 Truckers United for Safety v. Federal Highway Admin., 139 F.3d 934 (D.C. Cir. 1998).
4 Texas Dept. of Transp. v. Sunset Transp., Inc., 357 S.W.3d 691 (Tex. App. Austin 2011), reh’g overruled, (Jan. 13,
2012).
5 SBC Inc. v. Federal Communications Com’n, 414 F.3d 486 (3d Cir. 2005); State of Alaska, Alaska Bd. of Fisheries v.
Grunert, 139 P.3d 1226 (Alaska 2006) (emergency regulations).
6 Time Warner Cable Inc. v. F.C.C., 729 F.3d 137 (2d Cir. 2013); Sorenson Communications, Inc. v. F.C.C., 567 F.3d
1215 (10th Cir. 2009); American Tort Reform Ass’n v. Occupational Safety & Health Admin., 738 F.3d 387 (D.C.
Cir. 2013); Alabama v. Centers for Medicare & Medicaid Services, 780 F. Supp. 2d 1219 (M.D. Ala. 2011), aff’d, 674
F.3d 1241 (11th Cir. 2012).
As to the procedure for the promulgation of rules, generally, see §§ 147 to 206.
7 Pierce County v. State, 144 Wash. App. 783, 185 P.3d 594 (Div. 2 2008), as amended on denial of reconsideration,
(July 15, 2008).
8 In re Cabrera, 55 Cal. 4th 683, 148 Cal. Rptr. 3d 500, 287 P.3d 72 (2012).
9 Swiger v. UGI/AmeriGas, Inc., 216 W. Va. 756, 613 S.E.2d 904 (2005).


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§ 142. Interpretive rules; agency definitions, 2 Am. Jur. 2d Administrative Law § 142
Administrative Law
V. Rulemaking
3. Interpretative Rules
§ 142. Interpretive rules; agency definitions

A.L.R. Library

Judicial decisions frequently contrast legislative rules and interpretative rules. 1Unlike a legislative rule,2an interpretative
rule—
— is not an attempt to make new law or modify existing law, 3but rather instructs as to what an agency 4or administrative
officer5thinks a statute or regulation means.
— does not create rights,6but merely clarifies7or explains8an existing statute or regulation.
— gives guidance to its staff and affected parties as to how the agency intends to administer a statute or regulation. 9
— advises the public of the agency’s construction of the rules it administers. 10

— only reminds the affected parties of existing duties. 11

— only interprets the statute to guide the administrative agency in the performance of its duties. 12
— describes the type of factors which an agency will consider in future administrative proceedings without, however,
binding the agency to a particular result.13
Agency manuals, guidelines, and memoranda may be interpretive rules 14though a manual may have the force and effect of
law if promulgated in accordance with the Federal Administrative Procedure Act. 15A “program statement” is an internal
administrative agency guideline which is akin to an interpretive rule. 16
Cases:
The critical feature of interpretive rules, which are not subject to the Administrative Procedure Act’s (APA)
notice-and-comment requirement, is that they are issued by an agency to advise the public of the agency’s construction of the
statutes and rules which it administers. 5 U.S.C.A. § 553(b)(A). Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015).
Interpretive rules, which are not subject to the Administrative Procedure Act’s (APA) notice-and-comment requirement, do
not have the force and effect of law and are not accorded that weight in the adjudicatory process. 5 U.S.C.A. § 553(b)(A).
Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015).
If the language of an agency’s document is such that private parties can rely on it as a safe harbor by which to shape their
actions, it can be binding as a practical matter, as factor in determining whether document is “interpretive rule” under
Administrative Procedure Act (APA). 5 U.S.C.A. § 553. Securities Industry and Financial Markets Association v. United
States Commodity Futures Trading Commission, 67 F. Supp. 3d 373 (D.D.C. 2014).
The distinction between legislative rules, which are subject to rigorous notice-and-comment rulemaking procedures and
interpretive rules, which are not, turns primarily on whether the rule has binding legal effect, and a court makes that
assessment by considering the agency’s characterization of the guidance and whether the agency has applied the guidance as
binding on the parties. 5 U.S.C.A. § 553. United States v. US Stem Cell Clinic, LLC, 403 F. Supp. 3d 1279 (S.D. Fla. 2019).
The touchstone for distinguishing an interpretive rule from one subject to notice and comment under the Administrative
Procedure Act (APA) is whether the rule clarifies an existing statute or regulation, on the one hand, or creates new law,
rights, or duties in what amounts to a legislative act, on the other; if the rule is an interpretation of a statute rather than an
extra-statutory imposition of rights, duties or obligations, it remains interpretive even if the rule embodies the agency’s
changed interpretation of the statute. 5 U.S.C.A. § 553. Natural Resources Defense Council, Inc. v. U.S. Department of the
Interior, 397 F. Supp. 3d 430 (S.D. N.Y. 2019).
An interpretive rule serves the advisory function of explaining the meaning of a word or phrase in a statute or other rule and
describes the type of factors that an agency will consider in future administrative proceedings without, however, binding the
agency to a particular result. Colo. Rev. Stat. Ann. § 24-4-103(1). Doe 1 v. Colorado Department of Public Health and
Environment, 2019 CO 92, 451 P.3d 851 (Colo. 2019).
[END OF SUPPLEMENT]
Footnotes
1 Cooper Technologies Co. v. Dudas, 536 F.3d 1330 (Fed. Cir. 2008); Moorestown Tp. Bd. of Educ. v. S.D., 811 F.
Supp. 2d 1057, 276 Ed. Law Rep. 196 (D.N.J. 2011); Building Materials Corp. of America v. Board of Educ. of

Baltimore County, 428 Md. 572, 53 A.3d 347, 285 Ed. Law Rep. 455 (2012); State v. Harenda Enterprises, Inc., 2008
WI 16, 307 Wis. 2d 604, 746 N.W.2d 25 (2008).
2 As to legislative rules, generally, see § 140.
3 National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs, 260 F.3d 1365 (Fed. Cir. 2001).
If an administrative agency rule is inconsistent with or amends an existing legislative rule, then it cannot be
interpretive since it would impose new rights or obligations by changing an existing law. Mora-Meraz v. Thomas, 601
F.3d 933 (9th Cir. 2010).
4 Building Materials Corp. of America v. Board of Educ. of Baltimore County, 428 Md. 572, 53 A.3d 347, 285 Ed. Law
Rep. 455 (2012).
An “interpretive rule” represents the agency’s reading of statutes and rules. Guerra v. Shinseki, 642 F.3d 1046 (Fed.
Cir. 2011), cert. denied, 132 S. Ct. 1795, 182 L. Ed. 2d 617 (2012).
5 Davidson v. Glickman, 169 F.3d 996 (5th Cir. 1999).
6 U.S. v. Lott, 2014 WL 1622796 (2d Cir. 2014).
7 U.S. v. Lott, 2014 WL 1622796 (2d Cir. 2014); Dismas Charities, Inc. v. U.S. Dept. of Justice, 401 F.3d 666, 2005
FED App. 0128P (6th Cir. 2005); Cooper Technologies Co. v. Dudas, 536 F.3d 1330 (Fed. Cir. 2008).
8 Miller v. California Speedway Corp., 536 F.3d 1020 (9th Cir. 2008); Northwestern Youth Services, Inc. v. Com.,
Dept. of Public Welfare, 66 A.3d 301 (Pa. 2013); State v. Harenda Enterprises, Inc., 2008 WI 16, 307 Wis. 2d 604,
746 N.W.2d 25 (2008).
9 Moorestown Tp. Bd. of Educ. v. S.D., 811 F. Supp. 2d 1057, 276 Ed. Law Rep. 196 (D.N.J. 2011).
10 Miller v. California Speedway Corp., 536 F.3d 1020 (9th Cir. 2008); Sorenson Communications, Inc. v. F.C.C., 567
F.3d 1215 (10th Cir. 2009); Firearms Import/Export Roundtable Trade Group v. Jones, 854 F. Supp. 2d 1 (D.D.C.
2012), aff’d, 498 Fed. Appx. 50 (D.C. Cir. 2013).
11 Building Materials Corp. of America v. Board of Educ. of Baltimore County, 428 Md. 572, 53 A.3d 347, 285 Ed. Law
Rep. 455 (2012).
12 Department of Public Safety and Correctional Services v. Beard, 142 Md. App. 283, 790 A.2d 57 (2002).
13 Joseph v. Mieka Corp., 2012 COA 84, 282 P.3d 509 (Colo. App. 2012).
14 Mile High Therapy Centers, Inc. v. Bowen, 735 F. Supp. 984 (D. Colo. 1988).
15 Roath v. U.S., 843 F. Supp. 2d 944 (E.D. Wis. 2011), on reconsideration, 2012 WL 4718123 (E.D. Wis. 2012).
16 Tablada v. Thomas, 533 F.3d 800 (9th Cir. 2008).

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§ 143. Authority to issue; exemption from notice and..., 2 Am. Jur. 2d...
Administrative Law
V. Rulemaking
3. Interpretative Rules
§ 143. Authority to issue; exemption from notice and comment; lack of legal effect

A.L.R. Library

An agency charged with the duty to enforce or administer a statute has inherent authority to issue interpretive rules 1informing
the public of the procedures and standards it intends to apply in exercising its discretion. 2Agency rules which are merely
interpretive are exempt from statutory notice-and-comment requirements of the Federal Administrative Procedure Act3and
the administrative procedure acts of some states.4Interpretative regulations generally lack the force and effect of
law.5However, as a practical matter, an interpretive rule affects the regulatory practices of an agency or the expectations of a
regulated entity as to what a law or regulation means and how it will be enforced; when it has a substantial impact on the
rights of individuals, its promulgation may constitute final agency action for purposes of judicial review under the Federal
Administrative Procedure Act.6

§ 143. Authority to issue; exemption from notice and..., 2 Am. Jur. 2d...
When an agency announces a new statutory interpretation, and thus engages in interpretive rulemaking, it may do so through
adjudication without complying with the notice and comment provisions of a state administrative procedure act and, in many
cases, may give retroactive effect to the interpretation in the case in which the new interpretation is announced because the
agency is not really effecting a change in the law. 7
Cases:
Language in an agency policy that merely reminds parties of existing duties is interpretive and thus not subject to rulemaking
requirements of state Administrative Procedure Act (APA). Colo. Rev. Stat. Ann. § 24-4-103(1). Doe 1 v. Colorado
Department of Public Health and Environment, 2019 CO 92, 451 P.3d 851 (Colo. 2019).
[END OF SUPPLEMENT]
Footnotes
1 Association of Washington Business v. State, Dept. of Revenue, 121 Wash. App. 766, 90 P.3d 1128 (Div. 2 2004),
aff’d as modified, 155 Wash. 2d 430, 120 P.3d 46 (2005).
2 Durable Mfg. Co. v. U.S. Dept. of Labor, 584 F. Supp. 2d 1092 (N.D. Ill. 2008), judgment aff’d, 578 F.3d 497 (7th
Cir. 2009).
3 § 174.
4 § 204.
5 Erringer v. Thompson, 371 F.3d 625 (9th Cir. 2004); Segarra v. Federal Reserve of New York, 2014 WL 1660040
(S.D. N.Y. 2014).
6 Defenders of Wildlife v. Tuggle, 607 F. Supp. 2d 1095 (D. Ariz. 2009).
7 Andrews v. District of Columbia Police and Firefighters Retirement and Relief Bd., 991 A.2d 763 (D.C. 2010).

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§ 144. Procedural rules, 2 Am. Jur. 2d Administrative Law § 144
Administrative Law
V. Rulemaking
4. Procedural Rules; Policy Statements
§ 144. Procedural rules

A.L.R. Library

Procedural rules generally deal with an agency’s methods of operation and are not intended to change the agency’s basic
regulatory standards.1Absent constitutional constraints or extremely compelling circumstances, administrative agencies
should be free to fashion their own rules of procedure2though those regulations must be reasonably related to the purposes of
the enabling legislation.3Indeed, some states allow agencies to make rules for the conduct of their own procedures even
without explicit statutory authorization.4
”Procedural rules” are those that do not themselves alter the rights or interests of the parties 5though they may alter the manner
in which the parties present themselves or their viewpoints to the agency.6Rules that prescribe a timetable for asserting
substantive rights are procedural.7

However, it is also recognized that procedural rules may affect substantive rights8to some degree,9and where a procedural
rule, such as a new rule of evidence, 10has a substantial impact on a party’s rights, the distinction between procedural and
substantive rules breaks down.11An agency rule that modifies substantive rights can only be nominally procedural. 12However,
the substantial impact test has been rejected,13and it has been held that a procedural rule does not become substantive merely
because it has a substantive impact as by denying parties the opportunity to appeal if they fail to comply with certain
procedures.14
Observation:
Over time, in applying the exception to the Federal Administrative Procedure Act for notice-and-comment provisions for
procedural rules,15at least one federal circuit court has gradually shifted focus from asking whether a given procedure has a
“substantial impact” on parties to inquiring more broadly whether the agency action “encodes a substantive value judgment.” 16
Cases:
Beyond the Administrative Procedure Act’s (APA) minimum requirements, courts lack authority to impose upon an agency
their own notion of which procedures are best or most likely to further some vague, undefined public good, since to do so
would violate the very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure. 5
U.S.C.A. § 551 et seq. Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015).
Agencies are free, in the exercise of their discretion, to grant procedural rights in addition to the Administrative Procedure
Act’s (APA) procedures for rulemaking, but reviewing courts are generally not free to impose such rights if the agencies have
not chosen to grant them. 5 U.S.C.A. § 553. Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015).
Beyond the Administrative Procedure Act’s (APA) minimum requirements, courts lack authority to impose upon an agency
their own notion of which procedures are best or most likely to further some vague, undefined public good, since to do so
would violate the very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure. 5
U.S.C.A. § 551 et seq. Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015).
Agencies are free, in the exercise of their discretion, to grant procedural rights in addition to the Administrative Procedure
Act’s (APA) procedures for rulemaking, but reviewing courts are generally not free to impose such rights if the agencies have
not chosen to grant them. 5 U.S.C.A. § 553. Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015).
Critical feature of a procedural rule not subject to notice-and-comment rulemaking under Administrative Procedure Act
(APA) is that it covers agency actions that do not themselves alter the rights or interests of parties, although it may alter the
manner in which the parties present themselves or their viewpoints to the agency; such rules ensure that agencies retain
latitude in organizing their internal operations. 5 U.S.C.A. § 553(b)(3)(A). Rocky Mountain Health Maintenance
Organization, Inc. v. Azar, 384 F. Supp. 3d 80 (D.D.C. 2019).
[END OF SUPPLEMENT]

Footnotes
1 Aiken v. Obledo, 442 F. Supp. 628 (E.D. Cal. 1977).
2 Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S. Ct. 1197, 55
L. Ed. 2d 460 (1978).
3 Liadov v. Mukasey, 518 F.3d 1003 (8th Cir. 2008).
4 Weyerhaeuser Co. v. Miller, 306 Or. 1, 760 P.2d 1317 (1988).
5 Time Warner Cable Inc. v. F.C.C., 729 F.3d 137 (2d Cir. 2013); Electronic Privacy Information Center v. U.S. Dept.
of Homeland Sec., 653 F.3d 1 (D.C. Cir. 2011); National Mining Ass’n v. Jackson, 816 F. Supp. 2d 37 (D.D.C. 2011).
6 Time Warner Cable Inc. v. F.C.C., 729 F.3d 137 (2d Cir. 2013); Electronic Privacy Information Center v. U.S. Dept.
of Homeland Sec., 653 F.3d 1 (D.C. Cir. 2011).
7 National Whistleblower Center v. Nuclear Regulatory Com’n, 208 F.3d 256 (D.C. Cir. 2000).
Time limitations imposed upon administrative agencies by their own regulations are not mandatory. Giambrone v.
Grannis, 88 A.D.3d 1272, 930 N.Y.S.2d 735 (4th Dep’t 2011).
8 E.E.O.C. v. National Cash Register Co., 405 F. Supp. 562 (N.D. Ga. 1975).
9 Time Warner Cable Inc. v. F.C.C., 729 F.3d 137 (2d Cir. 2013).
10 Pharmaceutical Mfrs. Ass’n v. Finch, 307 F. Supp. 858 (D. Del. 1970) (rejected by, Animal Legal Defense Fund v.
Quigg, 710 F. Supp. 728 (N.D. Cal. 1989)).
11 Sannon v. U.S., 460 F. Supp. 458 (S.D. Fla. 1978).
As to legislative or substantive rules, see § 140.
13 Animal Legal Defense Fund v. Quigg, 710 F. Supp. 728 (N.D. Cal. 1989).
14 U.S. v. Gonzales & Gonzales Bonds and Ins. Agency, Inc., 728 F. Supp. 2d 1077 (N.D. Cal. 2010).
15 As to the exception to the notice-and-comment provisions for procedural rules under federal law, see § 175.
16 National Sec. Counselors v. C.I.A., 931 F. Supp. 2d 77 (D.D.C. 2013).

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§ 145. Policy statements; federal law, 2 Am. Jur. 2d Administrative Law § 145
Administrative Law
V. Rulemaking
§ 145. Policy statements; federal law


Agency policy statements are often important guides to the exercise of discretion. 1However, they have been described as
lacking the firmness of a prescribed standard 2and are generally considered not to be substantive rules 3or subject to
rule-making requirements.4If an agency’s “rule” leaves the agency free to exercise discretion, it is likely a policy
statement.5Indeed, the key inquiry in determining whether an agency has issued a rule or a policy statement is the extent to
which the challenged policy leaves the agency free to exercise its discretion to follow or not to follow that general policy in
an individual case.6Further, a policy statement, promulgated without notice and comment, does not become a regulation
simply because an agency chooses to publish it in the Code of Federal Regulations.7
The distinction between a “substantive rule” and a “policy statement,” for purposes of determining the propriety of judicial
review of agency positions, turns largely on whether the agency position is one of present binding effect, 8that is, whether it
constrains the agency’s discretion.9In other words, an agency’s general statement of policy differs from a substantive rule in
that a policy statement is neither a rule nor a precedent but merely announces to the public the policy which the agency hopes
to implement in future rulemakings or adjudication. 10
However, where a policy statement purports to create substantive requirements, it can be a legislative rule regardless of the
agency’s characterization.11Thus, an agency policy statement may be invalid if it is intended to impose obligations or to limit
the rights of members of the public but not be published in the Federal Register as a regulation in accordance with the

§ 145. Policy statements; federal law, 2 Am. Jur. 2d Administrative Law § 145
Administrative Procedure Act.12
Footnotes
1 Davis Walker Corp. v. Blumenthal, 460 F. Supp. 283 (D.D.C. 1978).
2 Sprint Corp. v. F.C.C., 315 F.3d 369 (D.C. Cir. 2003).
3 Pelissero v. Thompson, 170 F.3d 442 (4th Cir. 1999); Panhandle Eastern Pipe Line Co. v. F.E.R.C., 198 F.3d 266
(D.C. Cir. 1999).
4 New Hope Power Co. v. U.S. Army Corps of Engineers, 746 F. Supp. 2d 1272 (S.D. Fla. 2010).
As to the exemption from rule-making procedures for federal policy statements, generally, see § 175.
5 U.S. v. Vertac Chemical Corp., 453 F.3d 1031 (8th Cir. 2006); Broadgate Inc. v. U.S. Citizenship & Immigration
Services, 730 F. Supp. 2d 240 (D.D.C. 2010).
6 New Hope Power Co. v. U.S. Army Corps of Engineers, 746 F. Supp. 2d 1272 (S.D. Fla. 2010).
7 ANR Pipeline Co. v. F.E.R.C., 205 F.3d 403 (D.C. Cir. 2000).
8 Interstate Natural Gas Ass’n of America v. F.E.R.C., 285 F.3d 18 (D.C. Cir. 2002).
An agency’s policy guidelines amount to a general statement of policy, rather than a binding rule, even though the
guidelines are voluntarily followed by automakers and have become a de facto industry standard where the guidelines
do not have legal consequences since the agency never codified the practices in binding regulations. Center for Auto
Safety v. National Highway Traffic Safety Admin., 452 F.3d 798 (D.C. Cir. 2006).
9 Interstate Natural Gas Ass’n of America v. F.E.R.C., 285 F.3d 18 (D.C. Cir. 2002).
10 Panhandle Eastern Pipe Line Co. v. F.E.R.C., 198 F.3d 266 (D.C. Cir. 1999).
11 South Dakota v. Ubbelohde, 330 F.3d 1014, 56 Fed. R. Serv. 3d 271 (8th Cir. 2003).
12 Farrell v. Department Of Interior, 314 F.3d 584 (Fed. Cir. 2002).
As to the validity of rules, generally, see §§ 214 to 222.

Works.

§ 146. Policy statements; federal law—Under state law, 2 Am. Jur. 2d Administrative...
Administrative Law
V. Rulemaking
§ 146. Policy statements; federal law—Under state law

A pronouncement that leaves a state agency with discretion to deviate from its terms can be held to be a statement of policy,
not a regulation.1A statement of policy expresses what the agency hopes to implement in future rulemakings or adjudications,
but has no immediate effect, while, by contrast, a regulation establishes a standard of conduct which has the force of
law.2Policy statements may not have to be promulgated as rules under state law. 3However, rules which govern administrative
regulations may apply to an administrative agency policy which has the effect of a regulation. 4
Footnotes
1 Transportation Services, Inc. v. Underground Storage Tank Indemnification Bd., 67 A.3d 142 (Pa. Commw. Ct. 2013).
2 Borough of Bedford v. Com., Dept. of Environmental Protection, 972 A.2d 53 (Pa. Commw. Ct. 2009).
4 Agnew v. State Bd. of Equalization, 21 Cal. 4th 310, 87 Cal. Rptr. 2d 423, 981 P.2d 52 (1999).

Works.

Research References, 2 Am. Jur. 2d Administrative Law V C Refs.
2 Am. Jur. 2d Administrative Law V C Refs.
Administrative Law
V. Rulemaking
C. Federal Procedure for Adoption of Rules
Research References

West’s Key Number Digest, Administrative Law and Procedure 392 to 409, 418
A.L.R. Library
West’s A.L.R. Digest, Administrative Law and Procedure 392 to 409, 418
Works.

Administrative Law
V. Rulemaking
1. Types of Rulemaking
a. In General; Informal Rulemaking
(1) In General
§ 147. Generally

A.L.R. Library
Federal requirements for public participation in adoption, submission, and approval of state implementation plans and
revisions pursuant to sec. 110 of Clean Air Act (42 U.S.C.A. sec. 7410), 151 A.L.R. Fed. 445

As to notice-and-comment procedure, generally, see Federal Procedure, L. Ed., Administrative Procedure [Westlaw®
Search Query]
The Federal Administrative Procedure Act (APA)1requires that rules promulgated by administrative agencies undergo certain
procedures.2Generally, the legislative fact-finding technique known as notice-and-comment rulemaking must be followed 3in
promulgating substantive or legislative rules4or when the agency’s pronouncement appears on its face to be binding, or is
applied by the agency in a way that indicates it is binding, 5subject to certain exceptions,6unless formal rulemaking is
required,7or negotiated rulemaking occurs.8More specifically, the promulgation of substantive rules requires:
— notice of the proposed rule9

— a hearing or receipt and consideration of public comments10
— adoption of a rule after consideration of the relevant matter presented11
— publication of the new rule12
Cases:
The Administrative Procedure Act’s (APA) requirement that an agency offer public notice and a comment period before
adopting new regulations does not apply to public benefit programs like Medicare. 5 U.S.C.A. § 553(a)(2); 42 U.S.C.A. §
1395 et seq. Azar v. Allina Health Services, 139 S. Ct. 1804 (2019).
An administrative agency adopting permanent rules must comply with numerous procedural steps to provide public notice
and receive public input; however, when adopting temporary rules, an agency has fewer procedural steps to follow, and those
steps do not need to include pre-adoption notice and comment. Or. Rev. Stat. § 183.335(5). Friends of the Columbia Gorge v.
Energy Facility Siting Council, 366 Or. 78, 456 P.3d 635 (2020).
[END OF SUPPLEMENT]
Footnotes
1 5 U.S.C.A. § 553.
2 Center for Biological Diversity v. Brennan, 571 F. Supp. 2d 1105 (N.D. Cal. 2007).
Regulations subject to the APA cannot be afforded the force and effect of law if not promulgated pursuant to the
statutory procedural minimum found in the APA. Alaska Oil and Gas Ass’n v. Salazar, 916 F. Supp. 2d 974 (D.
Alaska 2013).
3 L.A. Closeout, Inc. v. Department of Homeland Sec., 513 F.3d 940 (9th Cir. 2008) (legislative rules); Segarra v.
Federal Reserve of New York, 2014 WL 1660040 (S.D. N.Y. 2014).
As to procedures for comment under the Federal APA, see §§ 154, 155.
4 American Tort Reform Ass’n v. Occupational Safety & Health Admin., 738 F.3d 387 (D.C. Cir. 2013); Bimini
Superfast Operations LLC v. Winkowski, 2014 WL 92897 (D.D.C. 2014); Segarra v. Federal Reserve of New York,
2014 WL 1660040 (S.D. N.Y. 2014).
5 A & E Coal Co. v. Adams, 694 F.3d 798 (6th Cir. 2012).
6 §§ 170 to 182.
7 As to formal rulemaking, see § 160.
8 As to negotiated rulemaking, see §§ 161, 162.
9 Agape Church, Inc. v. F.C.C., 738 F.3d 397 (D.C. Cir. 2013); National Mining Ass’n v. Jackson, 816 F. Supp. 2d 37
(D.D.C. 2011).
As to notice in informal federal rulemaking, generally, see §§ 149 to 153.
10 U.S. v. DeLeon, 330 F.3d 1033 (8th Cir. 2003).
As to receipt of comment and hearing in informal federal rulemaking, generally, see §§ 154 to 159.

11 Safari Aviation Inc. v. Garvey, 300 F.3d 1144 (9th Cir. 2002).
As to adoption of a federal rule, generally, see §§ 163 to 165.
12 U.S. v. DeLeon, 330 F.3d 1033 (8th Cir. 2003).
As to publication of a federal rule, generally, see §§ 166 to 168.

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§ 148. Purpose of notice-and-comment proceedings, 2 Am. Jur. 2d Administrative Law...
Administrative Law
V. Rulemaking
(1) In General
§ 148. Purpose of notice-and-comment proceedings


Search Query]
Notice improves the quality of agency rulemaking by insuring that the agency regulations will be tested by exposure to
diverse public comment.1The notice-and-comment procedure assures that the public and the persons being regulated are given
an opportunity to participate,2provide information, and suggest alternatives.3It thus gives interested parties an opportunity to
participate in the rulemaking through the submission of comments, 4data, views, or arguments.5Notice also ensures fairness to
affected parties and provides a well-developed record that enhances the quality of judicial review. 6
Footnotes
1 Steinhorst Associates v. Preston, 572 F. Supp. 2d 112 (D.D.C. 2008); New Hope Power Co. v. U.S. Army Corps of
Engineers, 746 F. Supp. 2d 1272 (S.D. Fla. 2010).
Rule-making process requires an agency to fairly apprise interested parties of all significant subjects and issues

§ 148. Purpose of notice-and-comment proceedings, 2 Am. Jur. 2d Administrative Law...
involved so that they can participate in the process. AARP v. E.E.O.C., 390 F. Supp. 2d 437 (E.D. Pa. 2005), aff’d on
other grounds, 489 F.3d 558 (3d Cir. 2007).
2 Louisiana Forestry Ass’n Inc. v. Secretary U.S. Dept. of Labor, 745 F.3d 653 (3d Cir. 2014); U.S. v. Utesch, 596 F.3d
302 (6th Cir. 2010); Erringer v. Thompson, 371 F.3d 625 (9th Cir. 2004); Northern Mariana Islands v. U.S., 686 F.
Supp. 2d 7 (D.D.C. 2009).
3 Safari Aviation Inc. v. Garvey, 300 F.3d 1144 (9th Cir. 2002).
4 Owner-Operator Independent Drivers Ass’n, Inc. v. Federal Motor Carrier Safety Admin., 494 F.3d 188 (D.C. Cir.
2007).
L. Ed. 2d 460 (1978).
6 Steinhorst Associates v. Preston, 572 F. Supp. 2d 112 (D.D.C. 2008); New Hope Power Co. v. U.S. Army Corps of
Engineers, 746 F. Supp. 2d 1272 (S.D. Fla. 2010).

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§ 149. Publication of notice, 2 Am. Jur. 2d Administrative Law § 149
Administrative Law
V. Rulemaking
(2) Notice
§ 149. Publication of notice


Search Query]
Forms
Forms relating to objections, generally, see Federal Procedural Forms, Administrative Procedure [Westlaw® Search
Query]
The Federal Administrative Procedure Act (APA) provides that general notice of proposed rulemaking must be published in
the Federal Register1unless persons subject to the rule are named and are either personally served or otherwise have actual
notice of the rule-making proceeding in accordance with the law.2The notice provisions of the Federal APA provide at least
as much protection as the due-process provisions of the Fifth Amendment.3

§ 149. Publication of notice, 2 Am. Jur. 2d Administrative Law § 149
Footnotes
1 5 U.S.C.A. § 553(b).
2 5 U.S.C.A. § 553(b).
3 Forester v. Consumer Product Safety Commission of U. S., 559 F.2d 774 (D.C. Cir. 1977).

Works.

§ 150. Compliance with publication requirements, 2 Am. Jur. 2d Administrative Law § 150
Administrative Law
V. Rulemaking
(2) Notice
§ 150. Compliance with publication requirements

A.L.R. Library
Failure to publish a notice of proposed rulemaking as required by the Federal Administrative Procedure Act (APA) results in
the invalidation of the ensuing rule,1at least if the proceeding does not come within one of the exceptions to the
notice-and-comment rule-making provisions of the APA.2Such failure to publish notice is an indication that the statement by
the agency was not meant to be a binding regulation but simply a statement of policy. 3However, a regulated entity may also
waive an objection that notice of a proposed regulation was not published where the entity participates in the proceeding
without making a timely objection to the agency.4
Practice Tip:
To state a claim that a federal agency violated the APA by failing to publish a policy in the Federal Register, the plaintiff must
demonstrate that he or she did not have actual notice of the content of that policy5and that he or she has been adversely affected by
the unpublished policy.6
§ 150. Compliance with publication requirements, 2 Am. Jur. 2d Administrative Law § 150
Footnotes
1 Shell Oil Co. v. Federal Energy Administration, 527 F.2d 1243 (Temp. Emer. Ct. App. 1975).
Failure to comply with the Administrative Procedure Act requirement to provide for a period of public notice and
comment before promulgating a rule renders an agency regulation invalid. McAloney v. Gutierrez, 557 F. Supp. 2d
694 (N.D. W. Va. 2008).
2 As to exceptions to the federal rule-making procedure, see §§ 170 to 182.
3 Beshir v. Holder, 2014 WL 284886 (D.D.C. 2014).
4 Southern Ry. Co. v. U. S., 412 F. Supp. 1122 (D.D.C. 1976).
5 Texas Alliance for Home Care Services v. Sebelius, 811 F. Supp. 2d 76 (D.D.C. 2011), aff’d, 681 F.3d 402 (D.C. Cir.
2012), cert. denied, 133 S. Ct. 1312, 185 L. Ed. 2d 178 (2013); Sherwood v. Tennessee Valley Authority, 925 F. Supp.
2d 906 (E.D. Tenn. 2013).
6 Sherwood v. Tennessee Valley Authority, 925 F. Supp. 2d 906 (E.D. Tenn. 2013).

Works.

§ 151. Contents of notice, 2 Am. Jur. 2d Administrative Law § 151
Administrative Law
V. Rulemaking
(2) Notice
§ 151. Contents of notice

A.L.R. Library

Search Query]
The Federal Administrative Procedure Act requires that a notice of proposed rulemaking include:
— a statement of the time, place, and nature of public rule-making proceedings
— reference to the legal authority under which the rule is proposed

§ 151. Contents of notice, 2 Am. Jur. 2d Administrative Law § 151
— either the terms or substance of the proposed rule or a description of the subject and issues involved 1
Integral to notice requirements is the agency’s duty to identify and make available technical studies and data that it has
employed in reaching the decisions to propose particular rules. 2When a proposed rule is based on scientific data, the agency
should identify the data and the methodology used to obtain it. 3
Footnotes
1 5 U.S.C.A. § 553(b).
2 California Communities Against Toxics v. U.S. E.P.A., 688 F.3d 989 (9th Cir. 2012); Owner-Operator Independent
Drivers Ass’n, Inc. v. Federal Motor Carrier Safety Admin., 494 F.3d 188 (D.C. Cir. 2007).
3 Lloyd Noland Hosp. and Clinic v. Heckler, 762 F.2d 1561 (11th Cir. 1985).

Works.

§ 152. Adequacy of notice, 2 Am. Jur. 2d Administrative Law § 152
Administrative Law
V. Rulemaking
(2) Notice
§ 152. Adequacy of notice


Search Query]
The Federal Administrative Procedure Act (APA) authorizes either notice which specifies the “terms or substance” of the
contemplated rule or notice which merely describes the “subjects and issues involved.”1Because Congress has not specified
the level of specificity expected of the agency in providing notice of rulemaking, the agency is entitled to broad deference in
picking a suitable level; similarly, if the underlying statutory language does not require a particular methodology, the court
cannot demand that the agency implement such a test. 2The notice need not identify every precise proposal which the agency
may ultimately adopt.3However, an agency must describe the range of alternatives being considered with reasonable
specificity, otherwise, interested parties will not know what to comment on, and notice will not lead to better-informed
agency decisionmaking.4
Generally, notice is adequate if it apprises interested parties of the issues to be addressed in the rule-making proceeding with
sufficient clarity and specificity to allow them to participate in the rulemaking in a meaningful and informed manner. 5
If notice is inadequate, the regulation must fall on procedural grounds, and the substantive validity of the change accordingly

§ 152. Adequacy of notice, 2 Am. Jur. 2d Administrative Law § 152
need not be analyzed.6
When an agency adopts final rules that differ from the proposed rules, and changes are so major that the original notice does
not adequately frame the subjects for discussion, the agency may be required to give notice a second time. 7Moreover,
although the clearly expressed intent of regulators can overcome the plain meaning of a regulation, the notice provisions of
the APA require that some indication of the regulatory intent that overcomes the plain language must be referenced in the
published notices that accompanied the rulemaking process; otherwise, interested parties would not have the meaningful
opportunity to comment on proposed regulations that the APA contemplates because they would have had no way of
knowing what was actually proposed.8
Cases:
Notice is sufficient under the Administrative Procedure Act (APA) if it affords interested parties a reasonable opportunity to
participate in the rulemaking process, and if the parties have not been deprived of the opportunity to present relevant
information by lack of notice that the issue was there. 5 U.S.C.A. § 553(b). Pharmaceutical Research and Manufacturers of
America v. Federal Trade Commission, 44 F. Supp. 3d 95 (D.D.C. 2014).
[END OF SUPPLEMENT]
Footnotes
1 5 U.S.C.A. § 553(b)(3).
2 Texas Alliance for Home Care Services v. Sebelius, 811 F. Supp. 2d 76 (D.D.C. 2011), aff’d, 681 F.3d 402 (D.C. Cir.
2012), cert. denied, 133 S. Ct. 1312, 185 L. Ed. 2d 178 (2013).
3 American Medical Ass’n v. U.S., 887 F.2d 760 (7th Cir. 1989); Hi-Tech Pharmaceuticals, Inc. v. Crawford, 505 F.
Supp. 2d 1341 (N.D. Ga. 2007), aff’d, 544 F.3d 1187 (11th Cir. 2008); Nutraceutical Corp. v. Von Eschenbach, 477 F.
Supp. 2d 1161 (D. Utah 2007).
4 Time Warner Cable Inc. v. F.C.C., 729 F.3d 137 (2d Cir. 2013); Prometheus Radio Project v. F.C.C., 652 F.3d 431 (3d
Cir. 2011), cert. denied, 133 S. Ct. 63, 183 L. Ed. 2d 710 (2012) and cert. denied, 133 S. Ct. 64, 183 L. Ed. 2d 710
(2012) and cert. denied, 133 S. Ct. 73, 183 L. Ed. 2d 710 (2012).
5 American Medical Ass’n v. U.S., 887 F.2d 760 (7th Cir. 1989).
6 Public Citizen, Inc. v. Mineta, 427 F. Supp. 2d 7 (D.D.C. 2006), judgment amended on other grounds, 444 F. Supp. 2d
12 (D.D.C. 2006), judgment aff’d, 533 F.3d 810 (D.C. Cir. 2008).
7 Connecticut Light and Power Co. v. Nuclear Regulatory Commission, 673 F.2d 525 (D.C. Cir. 1982).
8 Safe Air For Everyone v. U.S. E.P.A., 488 F.3d 1088 (9th Cir. 2007).

Works.

§ 153. Rule differing from published notice, 2 Am. Jur. 2d Administrative Law § 153
Administrative Law
V. Rulemaking
(2) Notice
§ 153. Rule differing from published notice

West’s Key Number Digest, Administrative Law and Procedure 392.1 to 395, 404.1
A.L.R. Library
What constitutes adequate notice of proposed federal agency rule against objection that rule adopted differed in substance
from that published as proposed in notice, 96 A.L.R. Fed. 411

Search Query]
A final rule is not necessarily invalid for lack of adequate notice simply by reason of the fact that the rule finally adopted
differs from the original proposal. 1An agency is not required to publish in advance every precise proposal which it may
ultimately adopt as a rule.2Indeed, the rationale of the Administrative Procedure Act’s notice and comment requirements rests
on the expectation that the final rules will be somewhat different and improved from the rules originally proposed by the
agency.3An agency can make even substantial changes from the proposed version. 4If an agency could not change a rule after
§ 153. Rule differing from published notice, 2 Am. Jur. 2d Administrative Law § 153
receiving comments, it would be placed in the absurd position of either being unable to learn from the comments or being
forced to commence new comment periods ad infinitum. 5
When the final rule adopted differs substantially from the rule proposed in the notice, the courts may evaluate the adequacy
of the initial notice under one or both of the following tests: (1) whether the final rule is a logical outgrowth of the
proposal6or the notice and comments, or rule-making, process following the publication of the proposed rule; 7and (2) whether
the notice of the proposed rulemaking fairly apprised interested parties so that they had an opportunity to comment. 8If a final
rule deviates too sharply from the proposal, affected parties will be deprived of notice and an opportunity to respond to the
proposal. Additionally, an agency cannot bootstrap notice from a comment made to the proposed rule. 9
Footnotes
1 American Medical Ass’n v. U.S., 887 F.2d 760 (7th Cir. 1989); Neighborhood Assistance Corp. of America v.
Consumer Financial Protection Bureau, 907 F. Supp. 2d 112 (D.D.C. 2012).
2 § 152.
3 National Restaurant Ass’n v. Solis, 870 F. Supp. 2d 42 (D.D.C. 2012), appeal dismissed, 2012 WL 3244056 (D.C. Cir.
2012).
4 Natural Resources Defense Council, Inc. v. Thomas, 838 F.2d 1224 (D.C. Cir. 1988).
6 NVE, Inc. v. Department of Health and Human Services, 436 F.3d 182 (3d Cir. 2006); Miami-Dade County v. U.S.
E.P.A., 529 F.3d 1049 (11th Cir. 2008); Select Specialty Hospital-Akron, LLC v. Sebelius, 820 F. Supp. 2d 13
(D.D.C. 2011).
A final rule enacted by an agency is a logical outgrowth of the proposed rule only if interested parties should have
anticipated that the change was possible and thus reasonably should have filed their comments on the subject during
the notice-and-comment period. Council Tree Communications, Inc. v. F.C.C., 619 F.3d 235 (3d Cir. 2010); Daimler
Trucks North America LLC v. E.P.A., 737 F.3d 95 (D.C. Cir. 2013).
7 ConocoPhillips Co. v. U.S. E.P.A., 612 F.3d 822 (5th Cir. 2010); Agape Church, Inc. v. F.C.C., 738 F.3d 397 (D.C.
Cir. 2013); Moore v. Kempthorne, 464 F. Supp. 2d 519 (E.D. Va. 2006).
A court will deem an agency’s final rule to be a logical outgrowth of a proposed rule if a new round of notice and
comment would not provide commentators with their first occasion to offer new and different criticisms which the
agency might find convincing. Daimler Trucks North America LLC v. E.P.A., 737 F.3d 95 (D.C. Cir. 2013).
Rule-making process requires an agency to fairly apprise interested parties of all significant subjects and issues
involved. NVE, Inc. v. Department of Health and Human Services, 436 F.3d 182 (3d Cir. 2006); Hi-Tech
Pharmaceuticals, Inc. v. Crawford, 505 F. Supp. 2d 1341 (N.D. Ga. 2007), aff’d, 544 F.3d 1187 (11th Cir. 2008).

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§ 154. Opportunity for comment; hearing not required, 2 Am. Jur. 2d Administrative...
Administrative Law
V. Rulemaking
(3) Comment and Hearing
§ 154. Opportunity for comment; hearing not required


Search Query]
Forms
Forms relating to rulemaking, generally, see Am. Jur. Pleading and Practice Forms, Administrative Law; Federal
Procedural Forms, Administrative Procedure [Westlaw® Search Query]
In the case of informal rulemaking under the Federal Administrative Procedure Act, an agency must give interested persons
an opportunity to participate in the rule-making process through submission of written data, views, or arguments with or
without the opportunity for an oral presentation.1A hearing is not required.2The public’s opportunity for comment prior to the
adoption of or modification to regulations must be a meaningful opportunity, 3which means that the agency must remain
sufficiently open-minded.4The Administrative Procedure Act thus requires that comments submitted by members of the
§ 154. Opportunity for comment; hearing not required, 2 Am. Jur. 2d Administrative...
public be considered, not simply received, by the agency. 5All an agency need do is grant interested persons the opportunity to
submit comments.6Further, the public need not have an opportunity to comment on every bit of information influencing an
agency’s decision.7
Observation:
An agency is entitled to use the comment period on a proposed rule to consider alternative interpretations before settling on the
view it considers most sound.8
Footnotes
1 5 U.S.C.A. § 553(c).
2 § 159.
3 Prometheus Radio Project v. F.C.C., 652 F.3d 431 (3d Cir. 2011), cert. denied, 133 S. Ct. 63, 183 L. Ed. 2d 710 (2012)
and cert. denied, 133 S. Ct. 64, 183 L. Ed. 2d 710 (2012) and cert. denied, 133 S. Ct. 73, 183 L. Ed. 2d 710 (2012);
Rural Cellular Ass’n v. F.C.C., 588 F.3d 1095 (D.C. Cir. 2009).
4 Rural Cellular Ass’n v. F.C.C., 588 F.3d 1095 (D.C. Cir. 2009).
5 Northern Mariana Islands v. U.S., 686 F. Supp. 2d 7 (D.D.C. 2009).
6 Chip Steak Co. v. Hardin, 332 F. Supp. 1084 (N.D. Cal. 1971), judgment aff’d, 467 F.2d 481 (9th Cir. 1972).
7 Kern County Farm Bureau v. Allen, 450 F.3d 1072 (9th Cir. 2006).
8 McNamee v. Department of the Treasury, 488 F.3d 100 (2d Cir. 2007).

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§ 155. Response to comment, 2 Am. Jur. 2d Administrative Law § 155
Administrative Law
V. Rulemaking
§ 155. Response to comment

Forms
Forms relating to responses, generally, see Federal Procedural Forms, Administrative Procedure [Westlaw® Search
Query]
The notice-and-comment provision of the Federal Administrative Procedure Act has not been interpreted to require an agency
to respond to every comment1or item of fact or opinion2or to analyze every issue or alternative raised by the comments, no
matter how insubstantial.3On the other hand, the opportunity to comment on proposed rules is meaningless unless the agency
responds to significant points raised by the public. 4
Comments must be significant enough to step over a threshold requirement of materiality before any lack of agency response
or consideration becomes of concern.5The comment cannot merely state that a particular mistake was made but must show
why the mistake was of possible significance in the results. 6Thus, an agency need respond only to those comments which—
— if true or adopted, would require a change in the proposed rule. 7
— raise significant problems.8
— can be thought to challenge a fundamental premise. 9
— are relevant or significant.10

§ 155. Response to comment, 2 Am. Jur. 2d Administrative Law § 155
Cases:
Under the Administrative Procedure Act’s (APA) notice-and-comment requirement, an agency must consider and respond to
significant comments received during the period for public comment. 5 U.S.C.A. § 553. Perez v. Mortgage Bankers Ass’n,
135 S. Ct. 1199 (2015).
An agency need not discuss every item of fact or opinion included in public comments. 5 U.S.C.A. § 551 et seq.
Environmental Defense Fund v. Environmental Protection Agency, 922 F.3d 446 (D.C. Cir. 2019).
[END OF SUPPLEMENT]
Footnotes
1 Vermont Public Service Bd. v. F.C.C., 661 F.3d 54 (D.C. Cir. 2011); Alaska v. Lubchenco, 825 F. Supp. 2d 209
(D.D.C. 2011); Ohio Valley Environmental Coalition v. Hurst, 604 F. Supp. 2d 860 (S.D. W. Va. 2009).
As to the need to respond to comments in the basis and purpose statement accompanying the promulgated rule, see §
164.
2 Louisiana Federal Land Bank Ass’n, FLCA v. Farm Credit Admin., 336 F.3d 1075 (D.C. Cir. 2003).
3 American Min. Congress v. U.S. E.P.A., 907 F.2d 1179 (D.C. Cir. 1990).
4 St. James Hosp. v. Heckler, 760 F.2d 1460 (7th Cir. 1985).
L. Ed. 2d 460 (1978); Interstate Natural Gas Ass’n of America v. F.E.R.C., 494 F.3d 1092 (D.C. Cir. 2007).
L. Ed. 2d 460 (1978).
7 Nehemiah Corp. of America v. Jackson, 546 F. Supp. 2d 830 (E.D. Cal. 2008); Sherley v. Sebelius, 776 F. Supp. 2d 1
(D.D.C. 2011), aff’d, 689 F.3d 776 (D.C. Cir. 2012), cert. denied, 133 S. Ct. 847, 184 L. Ed. 2d 655 (2013).
8 Nehemiah Corp. of America v. Jackson, 546 F. Supp. 2d 830 (E.D. Cal. 2008); Alaska v. Lubchenco, 825 F. Supp. 2d
209 (D.D.C. 2011).
9 MCI WorldCom, Inc. v. F.C.C., 209 F.3d 760 (D.C. Cir. 2000).
10 Lilliputian Systems, Inc. v. Pipeline and Hazardous Materials Safety Admin., 741 F.3d 1309 (D.C. Cir. 2014);
Nehemiah Corp. of America v. Jackson, 546 F. Supp. 2d 830 (E.D. Cal. 2008).

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§ 156. Length of comment period, 2 Am. Jur. 2d Administrative Law § 156
Administrative Law
V. Rulemaking
§ 156. Length of comment period


Search Query]
The Federal Administrative Procedure Act1does not prevent an agency from stating in its notice of rulemaking that comments
must be received by a specified date.2Generally, a notice and comment period is required for agency rulemaking. 3Indeed,
some cutoff is necessary,4and an abbreviated comment period, such as 10 days, may be proper if necessitated by deadlines for
agency action.5An agency may compensate for an abbreviated comment period by stating that comments received after the
effective date of the rule will be considered and by repromulgating the rule after those comments are received. 6
If the notice and comment period are inadequate, the regulation must fall on procedural grounds. 7
Footnotes
1 5 U.S.C.A. § 553(c).

§ 156. Length of comment period, 2 Am. Jur. 2d Administrative Law § 156
2 Fund for Animals v. Frizzell, 402 F. Supp. 35 (D.D.C. 1975), judgment aff’d, 530 F.2d 982 (D.C. Cir. 1975).
3 MacLean v. Department of Homeland Sec., 543 F.3d 1145 (9th Cir. 2008).
4 American Ass’n of Meat Processors v. Bergland, 460 F. Supp. 279 (D.D.C. 1978).
United States Department of Agriculture’s 30-day notice and comment period for rule satisfied the requirement that
interested parties have opportunity to participate in rulemaking. Fleming Companies, Inc. v. U.S. Dept. of Agriculture,
322 F. Supp. 2d 744 (E.D. Tex. 2004), aff’d, 164 Fed. Appx. 528 (5th Cir. 2006).
5 Fund for Animals v. Frizzell, 402 F. Supp. 35 (D.D.C. 1975), judgment aff’d, 530 F.2d 982 (D.C. Cir. 1975).
6 Pent-R-Books, Inc. v. U.S. Postal Service, 328 F. Supp. 297, 15 A.L.R. Fed. 464 (E.D. N.Y. 1971).
Failure to comply with APA requirement to provide for a period of public notice and comment before promulgating a
rule renders an agency regulation invalid. McAloney v. Gutierrez, 557 F. Supp. 2d 694 (N.D. W. Va. 2008).

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§ 157. Ex parte contacts, 2 Am. Jur. 2d Administrative Law § 157
Administrative Law
V. Rulemaking
§ 157. Ex parte contacts


Search Query]
Ex parte contacts can result in the invalidation of a proposed rule if private parties are competing for available
privileges.1Such contacts may also invalidate a proposed rule if the existence of ex parte contacts so interferes with the public
proceedings that it is questionable whether the rule is based on comments in the public record, thereby raising serious
questions of fairness and imperiling judicial review.2
Under other authority, while ex parte contacts are not always permissible, they do not per se vitiate agency informal
rulemaking unless it appears from the administrative record that they may have materially influenced the action ultimately
taken. The problem of ex parte contacts in rulemaking is one of degree so that a reviewing court should note whether the
proceeding was of a type susceptible to poisonous ex parte influence and whether serious questions of fairness
arose.3Moreover, an agency is not required to disclose all informal contacts related to the issue addressed in notice and
comment rulemaking so long as the contacts do not frustrate judicial review or raise serious questions of fairness.4

§ 157. Ex parte contacts, 2 Am. Jur. 2d Administrative Law § 157
Footnotes
1 Sangamon Val. Television Corp. v. U.S., 269 F.2d 221 (D.C. Cir. 1959).
2 Home Box Office, Inc. v. F.C.C., 567 F.2d 9 (D.C. Cir. 1977).
This holding may apply only in the informal rule-making context. Air Transport Ass’n of America v. F.A.A., 169 F.3d
1 (D.C. Cir. 1999).
3 Action For Children’s Television v. F.C.C., 564 F.2d 458 (D.C. Cir. 1977).
4 American Ass’n of Retired Persons v. E.E.O.C., 489 F.3d 558 (3d Cir. 2007).

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§ 158. Reliance on agency knowledge and expertise, 2 Am. Jur. 2d Administrative Law...
Administrative Law
V. Rulemaking
§ 158. Reliance on agency knowledge and expertise

West’s Key Number Digest, Administrative Law and Procedure 397, 398, 402

Search Query]
An agency, in rulemaking, can look beyond the particular hearing record since it otherwise would be unable to draw upon its
expertise.1Thus, a person designated to make a decision in a rule-making proceeding may confer with staff experts, 2may act
on the basis of data contained in the agency’s files or on information informally gained, and may rely on agency expertise,
views, or opinions.3Further, a presiding officer may ask the assistance of staff experts in interpreting technical data in the
record.4
An agency cannot rest a rule on data that, in critical degree, is known only to the agency. 5When an agency must select some
necessarily somewhat arbitrary figure in establishing bright-line rules, the court will defer to its expertise if it provides
substantial evidence to support its choice and responds to substantial criticism of that figure. 6

§ 158. Reliance on agency knowledge and expertise, 2 Am. Jur. 2d Administrative Law...
Cases:
To the extent the exact harms from an agency’s proposed rule are unknown or difficult to predict, that does not justify
disregarding the effect entirely. City and County of San Francisco v. U.S. Citizenship and Immigration Services, 408 F.
Supp. 3d 1057 (N.D. Cal. 2019).
[END OF SUPPLEMENT]
Footnotes
1 Pacific Coast European Conference v. U.S., 350 F.2d 197 (9th Cir. 1965).
2 Hercules, Inc. v. Environmental Protection Agency, 598 F.2d 91 (D.C. Cir. 1978).
3 Flying Tiger Line, Inc. v. Boyd, 244 F. Supp. 889 (D. D.C. 1965).
4 Hercules, Inc. v. Environmental Protection Agency, 598 F.2d 91 (D.C. Cir. 1978).
5 American Radio Relay League, Inc. v. F.C.C., 524 F.3d 227 (D.C. Cir. 2008); Nehemiah Corp. of America v. Jackson,
546 F. Supp. 2d 830 (E.D. Cal. 2008).
6 Association of Private Colleges and Universities v. Duncan, 870 F. Supp. 2d 133, 286 Ed. Law Rep. 313 (D.D.C.
2012).

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§ 159. Necessity of hearing, 2 Am. Jur. 2d Administrative Law § 159
Administrative Law
V. Rulemaking
§ 159. Necessity of hearing

West’s Key Number Digest, Administrative Law and Procedure 394, 395, 400
Under the Administrative Procedure Act (APA),1a federal agency need not provide an evidentiary hearing or oral presentation
as part of the comment requirement.2The Constitution does not require that interested parties be granted a
legislative,3evidentiary,4or any type of hearing in rulemaking5since when a rule applies to more than a few people, it is
impractical that everyone should have a direct voice in its adoption. 6Generally speaking, all that is required is that anyone
interested be given the opportunity to comment on all facts and all ideas that the agency considers. 7
In general, an agency possesses the discretion whether to permit oral presentations and reply submissions and can determine
their scope, character, and time sequence.8Such discretion resides only in the agency, and a court has no power to order that
an agency adopt procedures not required by the Federal APA, the Constitution, and other relevant statutes. 9
Footnotes
1 5 U.S.C.A. § 553(c).
2 Bell Tel. Co. of Pennsylvania v. F.C.C., 503 F.2d 1250 (3d Cir. 1974).
As to 5 U.S.C.A. § 553(c), providing for comment through the submission of data, views, or arguments with or
without the opportunity for an oral presentation, see § 154.
3 Powelton Civic Home Owners Ass’n v. Department of Housing and Urban Development, 284 F. Supp. 809 (E.D. Pa.
1968).

§ 159. Necessity of hearing, 2 Am. Jur. 2d Administrative Law § 159
4 Sima Products Corp. v. McLucas, 460 F. Supp. 128 (N.D. Ill. 1978), judgment aff’d, 612 F.2d 309 (7th Cir. 1980).
5 Alaska S. S. Co. v. Federal Maritime Commission, 356 F.2d 59 (9th Cir. 1966).
6 Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 36 S. Ct. 141, 60 L. Ed. 372 (1915).
7 American Ass’n of Meat Processors v. Bergland, 460 F. Supp. 279 (D.D.C. 1978).
8 American Public Gas Ass’n v. Federal Power Commission, 567 F.2d 1016 (D.C. Cir. 1977).
L. Ed. 2d 460 (1978).

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Administrative Law
V. Rulemaking
b. Formal Rulemaking
§ 160. Generally

West’s Key Number Digest, Administrative Law and Procedure 392.1, 396 to 402

As to formal rulemaking after hearing, generally, see Federal Procedure, L. Ed., Administrative Procedure [Westlaw®:
Search Query]
The Federal Administrative Procedure Act (APA) provides that when rules are required by statute to be made on the record
after an opportunity for an agency hearing, notice-and-comment provisions1do not apply, and the provisions relating to
formal, adjudicatory-type hearings before administrative law judges2apply instead.3Under the APA, formal procedures are
required only when a regulatory statute provides that there must be a hearing and the hearing must be on the record.4While
the exact words that the rule must be made on the record after an opportunity for a hearing need not be contained in a
regulatory act,5there must be a close conjunction of the concepts, and the terms “hearing” and “on the record” are extremely
relevant.6However, a court may make no presumption that a statutory “hearing” requirement does or does not compel the
agency to undertake a formal “hearing on the record,” thereby leaving it to the agency, as an initial matter, to resolve the
ambiguity.7There is a strong presumption that the procedural guarantees of the notice-and-comment provisions of the
APA8are sufficient unless Congress specifically indicates to the contrary. 9

Cases:
Rules issued through the Administrative Procedure Act’s (APA) notice-and-comment process are often referred to as
legislative rules because they have the force and effect of law. 5 U.S.C.A. § 553. Perez v. Mortgage Bankers Ass’n, 135 S.
Ct. 1199 (2015).
[END OF SUPPLEMENT]
Footnotes
1 §§ 147 to 159.
2 5 U.S.C.A. §§ 556, 557.
3 5 U.S.C.A. § 553(c).
As to procedure under 5 U.S.C.A. §§ 556, 557, see §§ 258 to 382.
4 U. S. v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S. Ct. 1941, 32 L. Ed. 2d 453 (1972).
5 U. S. v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S. Ct. 1941, 32 L. Ed. 2d 453 (1972).
6 Marathon Oil Co. v. E.P.A., 564 F.2d 1253 (9th Cir. 1977).
7 Chemical Waste Management, Inc. v. U.S. E.P.A., 873 F.2d 1477 (D.C. Cir. 1989).
8 As to notice-and-comment under the APA, see §§ 147 to 159.
9 National Classification Committee v. U.S., 765 F.2d 1146 (D.C. Cir. 1985).

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Administrative Law
V. Rulemaking
c. Negotiated Rulemaking
§ 161. Generally


As to negotiated rulemaking, generally, see Federal Procedure, L. Ed., Administrative Procedure [Westlaw®: Search
Query]
The Federal Negotiated Rulemaking Act1defines “negotiated rulemaking” as rulemaking through the use of a negotiated
rulemaking committee.2A “negotiated rulemaking committee” is an advisory committee established by an agency to consider
and discuss issues for the purpose of reaching a consensus in the development of a proposed rule. 3The notice-and-comment
procedures for rulemaking4do not apply to negotiated rulemaking.5
Footnotes
1 5 U.S.C.A. §§ 561 to 570.
2 5 U.S.C.A. § 562(6).
3 5 U.S.C.A. § 562(7).

4 As to notice-and-comment rule-making procedures under 5 U.S.C.A. § 553 of the Federal Administrative Procedure
Act, generally, see §§ 147 to 159.
5 5 U.S.C.A. § 566(e).

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§ 162. Judicial review, 2 Am. Jur. 2d Administrative Law § 162
Administrative Law
V. Rulemaking
c. Negotiated Rulemaking
§ 162. Judicial review


As to negotiated rulemaking, generally, see Federal Procedure, L. Ed., Administrative Procedure [Westlaw®: Search
Query]
An agency action relating to establishing, assisting, or terminating a negotiated rule-making committee is not subject to
judicial review.1However, the Negotiated Rulemaking Act does not bar judicial review of a rule if such judicial review is
otherwise provided for by law.2
Footnotes
1 5 U.S.C.A. § 570.
2 5 U.S.C.A. § 570.

§ 162. Judicial review, 2 Am. Jur. 2d Administrative Law § 162
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§ 163. Generally; statement of basis and purpose, 2 Am. Jur. 2d Administrative Law § 163
Administrative Law
V. Rulemaking
2. Adoption of Rule
§ 163. Generally; statement of basis and purpose

A.L.R. Library
Sufficiency of agency’s compliance with requirement of Administrative Procedure Act (5 U.S.C.A. sec. 553(c)) that
agency shall incorporate in rules adopted concise general statement of their basis and purpose, 46 A.L.R. Fed. 780

As to statement of basis and purpose, generally, see Federal Procedure, L. Ed., Administrative Procedure [Westlaw®:
Search Query]
The Federal Administrative Procedure Act (APA) requires the agency to incorporate in its rules a concise general statement
of their basis and purpose.1A federal statute may also require an agency to make a written report of proceedings or statements
of action including regulation.2
An agency is not in compliance with the APA if the statement is inadequate in content. 3An explanation of the basis and
purpose of the rule that is so inadequate that the reviewing court cannot evaluate it is a fundamental flaw that normally
requires vacatur of the rule.4However, it has also been said that no statement of basis and purpose is required if the basis and
purpose of a rule are obvious from a reading of the rule. 5

Further, a court reviewing an agency rule may not supply a reasonable basis for the agency’s action that the agency itself has
not given.6However, the reviewing court will uphold a decision of less than ideal clarity if the agency’s path may be
reasonably discerned.7A rule may be invalidated under the APA if an agency fails to explain the rule adequately. 8
The language of the APA contemplates that the basis and purpose statement will accompany the publication of the rule and
not follow the rule long after it has been published. 9
Statutes:
49 U.S.C.A. § 706 was renumbered as 49 U.S.C.A. § 1306, effective December 18, 2015.
Cases:
”Appropriate” within meaning of a statute allowing an agency to adopt appropriate regulations is the classic broad and
all-encompassing term that naturally and traditionally includes consideration of all the relevant factors; although this term
leaves agencies with flexibility, an agency may not entirely fail to consider an important aspect of the problem when deciding
whether regulation is appropriate. Michigan v. E.P.A., 135 S. Ct. 2699 (2015).
[END OF SUPPLEMENT]
Footnotes
1 5 U.S.C.A. § 553(c).
2 49 U.S.C.A. § 706(a), (b) (relating to the Surface Transportation Board).
3 § 165.
4 Heartland Regional Medical Center v. Sebelius, 566 F.3d 193 (D.C. Cir. 2009); Defenders of Wildlife v. Jackson, 791
F. Supp. 2d 96 (D.D.C. 2011).
5 Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000).
6 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S. Ct. 2856, 77 L. Ed. 2d
443 (1983).
7 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S. Ct. 2856, 77 L. Ed. 2d
443 (1983).
8 § 165.
9 Action on Smoking and Health v. C.A.B., 713 F.2d 795 (D.C. Cir. 1983).

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§ 164. Contents and sufficiency of statement, 2 Am. Jur. 2d Administrative Law § 164
Administrative Law
V. Rulemaking
2. Adoption of Rule
§ 164. Contents and sufficiency of statement

A.L.R. Library
Sufficiency of agency’s compliance with requirement of Administrative Procedure Act (5 U.S.C.A. sec. 553(c)) that
agency shall incorporate in rules adopted concise general statement of their basis and purpose, 46 A.L.R. Fed. 780

As to statement of basis and purpose, generally, see Federal Procedure, L. Ed., Administrative Procedure [Westlaw®:
Search Query]
The Federal Administrative Procedure Act does not require an exhaustive explanation of an agency’s reasoning for adopting
a rule,1nor is the requirement of a concise general statement of basis and purpose meant to be particularly onerous. 2The
required statement of basis and purpose need not justify the rules selected in every detail so long as it explains the general
basis for the rules chosen.3Nor need an agency refer to all the specific issues raised in comments 4or address every fact,
opinion, or comment received on the proposed rule.5
What is required is a concise general statement of the regulation’s basis and purpose 6which indicates the major issues of
policy that were raised and explains why the agency responded in the manner that it did. 7The agency must examine the

relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found
and the choice made.8The detail required in an administrative agency’s statement of the basis and purpose of the rules it is
adopting depends on the subject of the regulation and the nature of the comments received on the proposed rule. 9The
statement must be sufficient to allow meaningful judicial review. 10That is, the statement should convince the court that the
rule is based on the relevant factors11and is not arbitrary or capricious.12Specifically, the statement should—
— enable the courts to be aware of the legal and factual framework underlying the agency’s actions. 13
— demonstrate what major issues of policy were resolved. 14
— explain a decision to depart from a settled course of behavior.15
— respond in a reasoned manner to the comments received. 16
Observation:
An agency choosing to alter its regulatory course must supply a reasoned analysis indicating that its prior policies and standards
are being deliberately changed, not casually ignored.17
Cases:
One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its
decisions. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016).
An agency may justify its policy choice by explaining why that policy is more consistent with statutory language than
alternative policies. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016).
[END OF SUPPLEMENT]
Footnotes
1 HLI Lordship Industries, Inc. v. Committee for Purchase from the Blind and Other Severely Handicapped, 791 F.2d
1136 (4th Cir. 1986).
2
Penobscot Indian Nation v. U.S. Dept. of Housing and Urban Development, 539 F. Supp. 2d 40 (D.D.C. 2008).
3 Universal Health Services of McAllen, Inc. Subsidiary of Universal Health Services, Inc. v. Sullivan, 770 F. Supp. 704
(D.D.C. 1991), judgment aff’d, 978 F.2d 745 (D.C. Cir. 1992).
4 Alvarado Community Hosp. v. Shalala, 155 F.3d 1115 (9th Cir. 1998), opinion amended on other grounds, 166 F.3d
950 (9th Cir. 1999).
5 Reytblatt v. U.S. Nuclear Regulatory Com’n, 105 F.3d 715 (D.C. Cir. 1997).
As to holdings that an agency need not respond to every comment, generally, see § 155.
6 Penobscot Indian Nation v. U.S. Dept. of Housing and Urban Development, 539 F. Supp. 2d 40 (D.D.C. 2008);

Fleming Companies, Inc. v. U.S. Dept. of Agriculture, 322 F. Supp. 2d 744 (E.D. Tex. 2004), aff’d, 164 Fed. Appx.
528 (5th Cir. 2006).
950 (9th Cir. 1999).
8 Penobscot Indian Nation v. U.S. Dept. of Housing and Urban Development, 539 F. Supp. 2d 40 (D.D.C. 2008).
9 Ohio Valley Environmental Coalition v. Hurst, 604 F. Supp. 2d 860 (S.D. W. Va. 2009).
As to the scope of judicial review of rulemaking, generally, see §§ 468 to 472.
11 Natural Resources Defense Council, Inc. v. Securities and Exchange Commission, 389 F. Supp. 689 (D.D.C. 1974).
12 National Welfare Rights Organization v. Mathews, 533 F.2d 637 (D.C. Cir. 1976).
13 Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000).
14 Citizens to Save Spencer County v. U.S. Environmental Protection Agency, 600 F.2d 844 (D.C. Cir. 1979).
15 Penobscot Indian Nation v. U.S. Dept. of Housing and Urban Development, 539 F. Supp. 2d 40 (D.D.C. 2008).
17 Central and South West Services, Inc. v. U.S. E.P.A., 220 F.3d 683 (5th Cir. 2000).

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§ 165. Inadequate statements; judicial review, 2 Am. Jur. 2d Administrative Law § 165
Administrative Law
V. Rulemaking
2. Adoption of Rule
§ 165. Inadequate statements; judicial review

While it has been recognized that detailed findings of fact are not always required in a statement supporting a rule, 1a
reviewing court may invalidate the rule if an agency fails to explain it adequately. 2A court may require a higher degree of
factual support for a rule in its statement of basis and purpose if the governing statute requires that the rule be supported by
substantial evidence3or if the agency must justify a particular dollar limitation. 4The statement of a rule’s basis and purpose is
inadequate if it does not respond to significant public comments. 5Moreover, a statement of basis is inadequate where it
completely fails to address criticisms of the data relied upon by the agency in formulating its new rules and fails to address
alternatives suggested by commenters.6Nevertheless, absent a clear and specific congressional requirement for detailed
factual findings, a court should not import a formal fact-finding requirement into informal rulemaking.7
Footnotes
1 § 164.
950 (9th Cir. 1999).
3 Union Oil Co. of California v. Federal Power Commission, 542 F.2d 1036 (9th Cir. 1976) (rejected on other grounds
by, Superior Oil Co. v. Federal Energy Regulatory Commission, 563 F.2d 191 (5th Cir. 1977)).
4 National Welfare Rights Organization v. Mathews, 533 F.2d 637 (D.C. Cir. 1976).
6 Bedford County Memorial Hosp. v. Health and Human Services, 769 F.2d 1017 (4th Cir. 1985).

§ 165. Inadequate statements; judicial review, 2 Am. Jur. 2d Administrative Law § 165
7 Superior Oil Co. v. Federal Energy Regulatory Commission, 563 F.2d 191 (5th Cir. 1977).

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Administrative Law
V. Rulemaking
3. Publication
§ 166. Generally

A.L.R. Library
Compliance with provision of Administrative Procedure Act, 5 U.S.C.A. sec. 553(d), providing that, with certain
exceptions, required publication of a substantive rule must be made at least 30 days before its effective date, 54 A.L.R.
Fed. 553

As to publication of rule, generally, see Federal Procedure, L. Ed., Administrative Procedure [Westlaw®: Search Query]
The Federal Administrative Procedure Act (APA) requires the publication or service of legislative rules 1in the Federal
Register.2The requirement for publication of rules stems from the government’s duty to inform the public by publishing those
matters that may adversely impact a member of the public. 3When regulations are published in the Federal Register they give
legal notice of their contents to all who may be affected thereby 4and have the force and effect of law. 5Indeed, the purpose of
the requirement that an agency publish general notice of a proposed rule in the Federal Register is to give the public an
opportunity to participate in the rulemaking process and to enable the agency to educate itself before establishing rules and
procedures which have a substantial impact on those regulated.6Absent a case where the publication would be insufficient at
law, publication in the Federal Register will provide constructive notice.7Duly promulgated regulations provide constructive

notice of their requirements and are legally binding regardless of actual notice.8
Observation:
Internet notice is not an acceptable substitute for the publication of a proposed rule in the Federal Register.9
There is some authority that actual knowledge or notice of agency policy precludes reliance on an agency’s failure to comply
with the publication requirement.10However, there is also authority to the contrary holding that a member of the general
public cannot be prosecuted for a violation of an unpublished regulation 11even when he or she has had actual knowledge of
it.12
While a rule required to be published which is not published may be void and unenforceable against a noncomplying
party,13under other authority, nonpublication in the Federal Register is a strong indication that a rule has not taken effect, 14or
an indication that the statement by the agency was not meant to be a binding regulation but simply a statement of
policy.15However, a regulation need not necessarily be published in order to be enforced against the government.16
Footnotes
1 5 U.S.C.A. § 553(d).
As to substantive or legislative rules, generally, see § 140.
2 44 U.S.C.A. § 1505(a)(3).
3 Nolan v. U.S., 44 Fed. Cl. 49 (1999).
4 Tansil v. United States, 113 Fed. Cl. 256 (2013).
5 First Tennessee Bank Nat. Ass’n v. Johanns, 618 F. Supp. 2d 778 (M.D. Tenn. 2008).
6 Louisiana Forestry Ass’n Inc. v. Secretary U.S. Dept. of Labor, 745 F.3d 653 (3d Cir. 2014).
The APA requires all federal agencies to publish proposed rules in the Federal Register in order to provide the public
with notice and an opportunity to comment. Warshauer v. Solis, 577 F.3d 1330 (11th Cir. 2009).
7 U.S. v. Caseer, 399 F.3d 828, 2005 FED App. 0098P (6th Cir. 2005).
8 Grossman v. Department of Transportation, National Transportation Safety Board, 11 Fed. Appx. 780 (9th Cir. 2001).
9 Utility Solid Waste Activities Group v. E.P.A., 236 F.3d 749 (D.C. Cir. 2001).
10 Central Arkansas Auction Sale, Inc. v. Bergland, 570 F.2d 724 (8th Cir. 1978).
To state a claim that a federal agency violated the APA by failing to publish a policy in the Federal Register, the
plaintiff must demonstrate that he or she has been adversely affected by the unpublished policy and did not have actual
notice of the content of that policy. Sherwood v. Tennessee Valley Authority, 925 F. Supp. 2d 906 (E.D. Tenn. 2013).
11 U.S. v. Gavrilovic, 551 F.2d 1099 (8th Cir. 1977).
12 Hotch v. U S, 14 Alaska 594, 212 F.2d 280 (9th Cir. 1954).
13 Nolan v. U.S., 44 Fed. Cl. 49 (1999).

14 Zhang v. Slattery, 55 F.3d 732 (2d Cir. 1995).

15 Beshir v. Holder, 2014 WL 284886 (D.D.C. 2014).
16 Zhang v. Slattery, 55 F.3d 732 (2d Cir. 1995).

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§ 167. Time of publication; effective date, 2 Am. Jur. 2d Administrative Law § 167
Administrative Law
V. Rulemaking
3. Publication
§ 167. Time of publication; effective date


As to effective date of rule, generally, see Federal Procedure, L. Ed., Administrative Procedure [Westlaw®: Search
Query]
Generally, under the Federal Administrative Procedure Act, a legislative rule must be published not fewer than 30 days
before its effective date.1The delay assures that affected persons have a reasonable time to prepare for the effective date of the
rule.2The delay may also give affected persons another opportunity to bring difficulties with the rule to the attention of the
agency.3
Generally, a rule which is not published at least 30 days before its effective date can be invalidated. 4However, failure to
publish a regulation within a prescribed period of time after its adoption may not defeat its effectiveness after adequate notice
is effected by subsequent publication.5
The requirement that a substantive rule be published or served at least 30 days before its effective date does not apply—
— to a substantive rule which grants or recognizes an exemption or relieves a restriction. 6
— to interpretive rules and statements of policy.7
— as otherwise provided by the agency for good-cause found and published with the rule.8
In addition, rules relating to a military function of the United States, including delegations and reservations, can be effective
regardless of publication in the Federal Register or the Code of Federal Regulations. 9Similarly, a regulation relating to a
military function may be lawful, even though it was not published until after its implementation, to the extent that the
defendants had actual notice of the regulation.10
§ 167. Time of publication; effective date, 2 Am. Jur. 2d Administrative Law § 167
Footnotes
1 5 U.S.C.A. § 553(d).
2 British Am. Commodity Options Corp. v. Bagley, 552 F.2d 482 (2d Cir. 1977).
3 Sannon v. U.S., 460 F. Supp. 458 (S.D. Fla. 1978).
4 Universal Specialties, Inc. v. Blount, 331 F. Supp. 52 (C.D. Cal. 1971).
5 Go Leasing, Inc. v. National Transp. Safety Bd., 800 F.2d 1514 (9th Cir. 1986).
6 5 U.S.C.A. § 553(d)(1).
7 5 U.S.C.A. § 553(d)(2).
As to interpretive rules and general statements of policy, generally, see §§ 142, 145.
8 § 168.
9 Nolan v. U.S., 44 Fed. Cl. 49 (1999).
10 U.S. v. Ventura-Melendez, 321 F.3d 230 (1st Cir. 2003).

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§ 168. “Good cause” exception, 2 Am. Jur. 2d Administrative Law § 168
Administrative Law
V. Rulemaking
3. Publication
§ 168. “Good cause” exception

A.L.R. Library
What constitutes “good cause” under provision of Administrative Procedure Act (5 U.S.C.A. sec. 553(d)(3)) allowing
agency rule to become effective less than 30 days after publication, 55 A.L.R. Fed. 880

As to effective date of rule, generally, see Federal Procedure, L. Ed., Administrative Procedure [Westlaw®: Search
Query]
There is a “good-cause” exception to the Federal Administrative Procedure Act’s requirement of notice of the rule by
publication or service 30 days before its effective date. 1An agency attempting to determine whether the good-cause exception
is to be invoked must balance the necessity for immediate implementation against principles of fundamental fairness which
require that all affected persons be afforded a reasonable time to prepare for the effective date of a new rule.2When the
consequences of agency rulemaking is to make previously lawful conduct unlawful and to impose criminal sanctions, the
balance of these competing policies imposes a heavy burden upon the agency to show “public necessity.” 3In order to avail
itself of the “good-cause” exception to the 30-day notice rule, the agency must determine that compliance with the 30-day
requirement is either impracticable, unnecessary, or contrary to the public interest. 4An agency may be required to include this

§ 168. “Good cause” exception, 2 Am. Jur. 2d Administrative Law § 168
finding and a short statement of reasons with the new regulations. 5
The good-cause exception should be narrowly construed.6Thus, an agency’s desire to provide immediate guidance, without
more, does not suffice for good cause to invoke the exception to providing notice before the effective date of the rule. 7On the
other hand, a finding of good cause for accelerating the effective date of a rule may be based upon the urgency of the public
problem addressed by the rule,8such as the lack of protection in an area historically fraught with abuses. 9A much greater
showing of good cause is required if violations of the rule can constitute crimes. 10
Caution:
The “good-cause” exception for the requirement of notice of the rule by publication or service 30 days before its effective
date11should not be confused with the “good-cause” exception from the requirement of notice and comment.12
Footnotes
1 5 U.S.C.A. § 553(d)(3).
2 Nance v. E.P.A., 645 F.2d 701 (9th Cir. 1981).
4 Buschmann v. Schweiker, 676 F.2d 352 (9th Cir. 1982).
7 U.S. v. Valverde, 628 F.3d 1159 (9th Cir. 2010), cert. denied, 132 S. Ct. 1534, 182 L. Ed. 2d 219 (2012); U.S. v.
Cotton, 760 F. Supp. 2d 116 (D.D.C. 2011), appeal dismissed, 2012 WL 1183728 (D.C. Cir. 2012).
8 Texaco, Inc. v. Federal Energy Administration, 531 F.2d 1071 (Temp. Emer. Ct. App. 1976).
9 British Am. Commodity Options Corp. v. Bagley, 552 F.2d 482 (2d Cir. 1977).
11 5 U.S.C.A. § 553(d)(3).
12 § 177.

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Administrative Law
V. Rulemaking
4. Regulatory Flexibility Act
§ 169. Generally


As to procedures under Regulatory Flexibility Act, generally, see Federal Procedure, L. Ed., Administrative Procedure
The Regulatory Flexibility Act (RFA)1requires a federal agency to prepare a regulatory flexibility analysis and assessment of
the economic impact of a proposed rule on small business entities unless the agency certifies that the proposed rule will not
have a significant economic impact on a substantial number of small entities and provides a factual basis for that
certification.2The RFA was passed to encourage administrative agencies to consider the potential impact of nascent federal
regulations on small businesses.3Specifically, whenever an agency is required to publish general notice of proposed
rulemaking for any proposed rule, the agency must prepare and make available for public comment an initial regulatory
flexibility analysis.4The initial analysis must describe the impact of the proposed rule on small entities, which must be
published in the Federal Register at the time of the publication of general notice of the proposed rulemaking. 5
When the agency promulgates its final rule, the agency must prepare a final regulatory flexibility analysis. 6The final analysis
must include, among other items—
— a statement of the need for, and objectives of, the rule. 7
— the steps the agency took to minimize the significant economic impact on small entities consistent with the stated
objectives of applicable statutes.8
The agency must make copies of the final regulatory flexibility analysis available to members of the public and must publish
the final analysis or a summary of it in the Federal Register. 9

The RFA imposes no substantive requirements on an agency 10and thus imposes no obligation on an agency proposing a rule
to conduct a small entity impact analysis of effects on entities that it does not regulate. 11Its requirements are purely procedural
in nature,12requiring nothing more than the filing of a statement demonstrating a good-faith effort to carry out its
mandate.13Failure to comply with the RFA may be, but does not have to be, grounds for overturning the rule. 14
Footnotes
1 5 U.S.C.A. §§ 601 to 612.
2 Environmental Defense Center, Inc. v. U.S. E.P.A., 344 F.3d 832 (9th Cir. 2003).
An agency need only put forth a reasonable, good-faith effort to fulfill the procedural requirements of the RFA. North
Carolina Fisheries Ass’n, Inc. v. Gutierrez, 518 F. Supp. 2d 62 (D.D.C. 2007), subsequent determination, 518 F. Supp.
2d 105 (D.D.C. 2007); Tafas v. Dudas, 530 F. Supp. 2d 786 (E.D. Va. 2008).
3 Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. U.S. Dept. of Agriculture, 415 F.3d 1078
(9th Cir. 2005), for additional opinion, see, 143 Fed. Appx. 751 (9th Cir. 2005) and as amended, (Aug. 17, 2005).
4 5 U.S.C.A. § 603(a).
5 5 U.S.C.A. § 603(a).
The specific requirements for the content of the initial analysis are set out in 5 U.S.C.A. § 603(b), (c), (d).
6 5 U.S.C.A. § 604(a).
7 5 U.S.C.A. § 604(a)(1).
8 5 U.S.C.A. § 604(a)(6).
9
5 U.S.C.A. § 604(b).
(9th Cir. 2005), for additional opinion, see, 143 Fed. Appx. 751 (9th Cir. 2005) and as amended, (Aug. 17, 2005);
Tafas v. Dudas, 530 F. Supp. 2d 786 (E.D. Va. 2008).
11 Michigan v. U.S. E.P.A., 213 F.3d 663 (D.C. Cir. 2000).
(9th Cir. 2005), for additional opinion, see, 143 Fed. Appx. 751 (9th Cir. 2005) and as amended, (Aug. 17, 2005);
National Telephone Co-op. Ass’n v. F.C.C., 563 F.3d 536 (D.C. Cir. 2009); National Ass’n of Mortg. Brokers v.
Board of Governors of Federal Reserve System, 773 F. Supp. 2d 151 (D.D.C. 2011); Tafas v. Dudas, 530 F. Supp. 2d
786 (E.D. Va. 2008).
13 U.S. Cellular Corp. v. F.C.C., 254 F.3d 78 (D.C. Cir. 2001).
14 Cement Kiln Recycling Coalition v. E.P.A., 255 F.3d 855 (D.C. Cir. 2001); National Women, Infants, and Children
Grocers Ass’n v. Food and Nutrition Service, 416 F. Supp. 2d 92, 26 A.L.R. Fed. 2d 683 (D.D.C. 2006).

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Administrative Law
V. Rulemaking
5. Exceptions to Rule-Making Procedures
a. Overview; Certain Functions
§ 170. Generally


As to exceptions to rule-making procedures, generally, see Federal Procedure, L. Ed., Administrative Procedure
The rule-making provisions of the Federal Administrative Procedure Act do not apply to—
— a rule involving a military function1or foreign affairs function of the United States.2
— a matter relating to agency management, personnel, public property, loans, grants, benefits, or contracts. 3
— interpretive rules; general statements of policy; or rules of agency organization, procedure, or practice. 4
In addition, when agencies follow negotiated rule-making procedures, the notice-and-comment rule-making procedures do
not generally apply.5Furthermore, a “good-cause” exception exists to the rule-making requirements where notice is
impracticable, unnecessary, or contrary to public interest, 6and some other miscellaneous exceptions exist as well.7
The exemptions must, however, be narrowly construed, 8or else broad construction of terms such as “public benefits” could
lead to the exemption of nearly all rules from the rule-making requirements of the Federal Administrative Procedure Act
(APA).9

Practice Tip:
The good cause requirement that an agency articulate its basis for dispensing with normal notice and comment is not a procedural
formality but serves the crucial purpose of ensuring that the exceptions do not “swallow the rule.”10
Inevitably, in determining whether the APA requires notice-and-comment rulemaking, the interest of agency efficiency and
public input are in tension.11However, when an exemption is clearly and directly involved, the rule is exempt even though it is
not a mechanical or procedural rule.12An enormous quantity of rulemaking is exempt under these exceptions. 13
Footnotes
1 § 172.
2 § 171.
3 § 173.
4 § 174.
5 § 161.
6 § 177.
7 § 181.
8 City of New York v. Permanent Mission of India to United Nations, 618 F.3d 172, 58 A.L.R. Fed. 2d 689 (2d Cir.
2010); Coalition for Parity, Inc. v. Sebelius, 709 F. Supp. 2d 10 (D.D.C. 2010); Record Buck Farms, Inc. v. Johanns,
510 F. Supp. 2d 868 (M.D. Fla. 2007).
9 Housing Authority of City of Omaha, Neb. v. U.S. Housing Authority, 468 F.2d 1 (8th Cir. 1972).
10 North Carolina Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755 (4th Cir. 2012).
12 Humana of South Carolina, Inc. v. Califano, 590 F.2d 1070 (D.C. Cir. 1978).
13 Center for Auto Safety v. Tiemann, 414 F. Supp. 215 (D.D.C. 1976).

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§ 171. Rules regarding foreign affairs, 2 Am. Jur. 2d Administrative Law § 171
Administrative Law
V. Rulemaking
§ 171. Rules regarding foreign affairs


The rule-making provisions of the Federal Administrative Procedure Act do not apply to a rule involving a foreign affairs
function of the United States.1However, the foreign affairs exception is not limited to diplomatic activities and clearly applies
when the President defines, modifies or even violates the terms of an international agreement, or directs a subordinate to do
so.2
Nonetheless, the exemption was intended by Congress to receive limited application. 3It does not apply to functions merely
because they have an impact beyond the borders of the United States. 4Rather, the exemption applies if the subject matter in
question is clearly and directly involved in a foreign affairs function, 5such as matters which so affect relations with other
governments that public rulemaking would clearly provoke definitively undesirable international consequences. 6

§ 171. Rules regarding foreign affairs, 2 Am. Jur. 2d Administrative Law § 171
Cases:
A rule falls within the foreign affairs function exception to the Administrative Procedure Act’s (APA) notice-and-comment
rulemaking procedures only if it clearly and directly involves a foreign affairs function of the United States. 5 U.S.C.A. §
553(a)(1). Capital Area Immigrants’ Rights Coalition v. Trump, 471 F. Supp. 3d 25 (D.D.C. 2020).
[END OF SUPPLEMENT]
Footnotes
1 5 U.S.C.A. § 553(a).
2 Mast Industries, Inc. v. Regan, 8 Ct. Int’l Trade 214, 596 F. Supp. 1567 (1984).
3 Jean v. Nelson, 711 F.2d 1455 (11th Cir. 1983), on reh’g, 727 F.2d 957 (11th Cir. 1984), judgment aff’d, 472 U.S.
846, 105 S. Ct. 2992, 86 L. Ed. 2d 664 (1985).
4 Mast Industries, Inc. v. Regan, 8 Ct. Int’l Trade 214, 596 F. Supp. 1567 (1984).
2010) (quintessential foreign affairs functions such as diplomatic relations and the regulation of foreign missions are
subject to the exemption without a case-by-case analysis).
2010); Rajah v. Mukasey, 544 F.3d 427, 55 A.L.R. Fed. 2d 717 (2d Cir. 2008), for additional opinion, see, 544 F.3d
449 (2d Cir. 2008).

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§ 172. Rules regarding military functions, 2 Am. Jur. 2d Administrative Law § 172
Administrative Law
V. Rulemaking
§ 172. Rules regarding military functions

A.L.R. Library
Construction and application of “Military Function” exception to notice and comment requirements of Administrative
Procedure Act (5 U.S.C.A. sec. 553(a)(1)), 133 A.L.R. Fed. 537

Rules involving a military function of the federal government are exempt from the rule-making process of the Federal
Administrative Procedure Act (APA).1Indeed, a rule involving a military function may be exempt from the notice
requirements of the Federal APA even if it regulates civilians. 2

§ 172. Rules regarding military functions, 2 Am. Jur. 2d Administrative Law § 172
Footnotes
1 5 U.S.C.A. § 553(a).
2 U.S. v. Ventura-Melendez, 321 F.3d 230 (1st Cir. 2003).

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§ 173. Rules regarding management of personnel, public..., 2 Am. Jur. 2d...
Administrative Law
V. Rulemaking
§ 173. Rules regarding management of personnel, public property, loans, grants, benefits, and
contracts

A.L.R. Library
Construction and application of 5 U.S.C.A. sec. 553(a)(2), exempting from Administrative Procedure Act’s rulemaking
requirements matters relating to agency management or personnel or to public property, loans, grants, benefits, or
contracts, 41 A.L.R. Fed. 926

The rule-making provisions of the Federal Administrative Procedure Act (APA) do not apply to the extent that a rule
involves a matter relating to agency management or personnel, or public property, loans, grants, benefits, or contracts. 1These
exemptions apply when any one of the enumerated categories is clearly and directly involved in the regulatory effort at
issue.2The exemptions for public property, grants, benefits, and contracts should be narrowly construed. 3

§ 173. Rules regarding management of personnel, public..., 2 Am. Jur. 2d...
Agency action that directly concerns the agency’s ability to set medical standards for its own personnel and to implement
those standards through contract is exempted from the notice and comment rulemaking provisions of the APA. 4It has been
held generally that the rule-making requirements of the APA do not apply to matters concerning public lands. 5
The exception for public grants exists because where public benefits or entitlements are concerned, the congressional aim
was to afford agencies procedural latitude regardless of the interest of affected parties and the public generally in contributing
to the formulation of the exempted rule.6
Footnotes
1
5 U.S.C.A. § 553(a).
2 International Union, Security, Police, and Fire Professionals of America (SPFPA) v. U.S. Marshal’s Service, 350 F.
Supp. 2d 522 (S.D. N.Y. 2004); Sherwood v. Tennessee Valley Authority, 925 F. Supp. 2d 906 (E.D. Tenn. 2013).
3 Sherwood v. Tennessee Valley Authority, 925 F. Supp. 2d 906 (E.D. Tenn. 2013).
4 International Union, Security, Police, and Fire Professionals of America (SPFPA) v. U.S. Marshal’s Service, 350 F.
Supp. 2d 522 (S.D. N.Y. 2004) (agency’s promulgation of rules as to personnel’s medical standards and certification
procedures are exempt).
5 American Colloid Co. v. Babbitt, 145 F.3d 1152 (10th Cir. 1998).
6 National Women, Infants, and Children Grocers Ass’n v. Food and Nutrition Service, 416 F. Supp. 2d 92, 26 A.L.R.
Fed. 2d 683 (D.D.C. 2006).

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§ 174. Interpretive rules, general statements of policy, and..., 2 Am. Jur. 2d...
Administrative Law
V. Rulemaking
b. Nonsubstantive Rules
§ 174. Interpretive rules, general statements of policy, and rules of agency organization,
procedure, or practice

A.L.R. Library
Exceptions under 5 U.S.C.A. sec. 553(b)(A) and sec. 553(b)(B) to notice requirements of Administrative Procedure Act
rule making provisions, 45 A.L.R. Fed. 12 (secs. 5-10 superseded in part by What constitutes “interpretative rule” of
agency so as to exempt such action from notice requirements of Administrative Procedure Act (5 U.S.C.A. sec.
553(b)(3)(A)), 126 A.L.R. Fed. 347, and secs. 25-39 superseded in part by Construction and Application of Good Cause
Exception to Notice and Comment Rulemaking Under Administrative Procedure Act (APA), 5 U.S.C.A. s553(b)(B), 26
A.L.R. Fed. 2d 97)

The Federal Administrative Procedure Act (APA) provides that except when notice or hearing is required otherwise by
statute, the notice-and-comment rule-making procedures1do not apply to interpretive rules; general statements of policy; or

rules of agency organization, procedure, or practice. 2
The federal courts have held on numerous occasions that interpretative rules, general statements of policy, or rules of agency
organization, procedure, or practice, are exempt from the notice-and-comment provisions of the APA.3However, the
exception for interpretive rules and procedural rules, like the notice-and-comment exceptions generally,4is narrowly
construed.5The function of the exemption for interpretive rules is to allow agencies to explain ambiguous terms 6in legislative
enactments without having to undertake cumbersome proceedings. 7The function of the exception for procedural rules is to
further the policies of serving the need for public participation in agency decisionmaking and of ensuring the agency has all
the pertinent information before it when making a decision.8
A rule fits within the statutory exemption for “rules of agency organization, procedure, or practice” if the rule does not alter
the rights or interests of the parties, as when a rule simply prescribes the manner in which the parties present themselves or
their viewpoints to the agency.9Some courts have held that the exemption’s application depends on whether the rule encodes
a substantive value judgment.10The exemption from rule-making requirements for procedural rules is applied by the courts
with an eye toward balancing the need for public participation in agency decisionmaking with the agency’s competing
interest in retaining latitude in organizing its internal operations. 11
The function of the exemption from rule-making procedures that applies to general policy statements is to allow agencies to
announce their tentative intentions for the future without binding themselves. 12The term “general statement of policy”
includes an agency’s announcement that it will discontinue a discretionary allocation of unrestricted funds from a lump-sum
appropriation.13
Observation:
An agency directive is not subject to the notice-and-comment requirements of the APA and may be modified or rescinded at any
time.14
Cases:
Interpretive rules, which are not subject to the Administrative Procedure Act’s (APA) notice-and-comment requirement, do
not have the force and effect of law and are not accorded that weight in the adjudicatory process. 5 U.S.C.A. § 553(b)(A).
Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015).
The Paralyzed Veterans doctrine, under which an agency must use the Administrative Procedure Act’s (APA)
notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from
the agency’s previous interpretation, is contrary to the clear text of the APA’s rulemaking provisions and improperly imposes
on agencies an obligation beyond the maximum procedural requirements specified in the APA; abrogating Paralyzed
Veterans of America v. D.C. Arena L.P., 117 F.3d 579; Alaska Professional Hunters Ass’n, Inc. v. F.A.A., 177 F.3d 1030. 5
U.S.C.A. § 553. Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015).
Because an agency is not required to use the Administrative Procedure Act’s (APA) notice-and-comment procedures to issue
an initial interpretive rule, it is also not required to use those procedures when it amends or repeals that interpretive rule. 5
U.S.C.A. § 553(b)(A). Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015).

Interpretive rules, which do not require notice and comment under the Administrative Procedure Act (APA), are issued by an
agency to advise the public of the agency’s construction of the statutes and rules that it administers. 5 U.S.C.A. § 553(b)(A).
WildEarth Guardians v. Bernhardt, 501 F. Supp. 3d 1192 (D.N.M. 2020).
Interpretive rules, which are not subject to the notice-and-comment requirements of the Administrative Procedure Act (APA),
are issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers. 5
U.S.C.A. §§ 553(b)(A), 553(d)(2). Make the Road New York v. Pompeo, 475 F. Supp. 3d 232 (S.D. N.Y. 2020).
Critical feature of interpretive rules, which are not subject to notice and comment requirements of the Administrative
Procedure Act (APA), is that they are issued by an agency to advise the public of the agency’s construction of the statutes
and rules that it administers. 5 U.S.C.A. § 553(b). Guilford College v. McAleenan, 389 F. Supp. 3d 377 (M.D. N.C. 2019).
[END OF SUPPLEMENT]
Footnotes
1 As to notice-and-comment rulemaking, generally, under the APA, see §§ 147 to 159.
2 5 U.S.C.A. § 553(b)(A).
3 Erringer v. Thompson, 371 F.3d 625 (9th Cir. 2004); UPMC Mercy v. Sebelius, 793 F. Supp. 2d 62 (D.D.C. 2011);
Moorestown Tp. Bd. of Educ. v. S.D., 811 F. Supp. 2d 1057, 276 Ed. Law Rep. 196 (D.N.J. 2011); Cohn v. Federal
Bureau of Prisons, 302 F. Supp. 2d 267 (S.D. N.Y. 2004); Mares v. Federal Bureau of Prisons, 401 F. Supp. 2d 775
(S.D. Tex. 2005).
4 § 170.
5 Time Warner Cable Inc. v. F.C.C., 729 F.3d 137 (2d Cir. 2013); Steinhorst Associates v. Preston, 572 F. Supp. 2d 112
(D.D.C. 2008).
6 UPMC Mercy v. Sebelius, 793 F. Supp. 2d 62 (D.D.C. 2011) (exception also applies to interpretive rules that remind
parties of existing duties).
7 American Hosp. Ass’n v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987).
However, to reap full benefit of judicial deference, the agency’s interpretation of an ambiguous statute ought have
gone through required notice-and-comment procedure mandated by the APA. Massachusetts ex rel. Executive Office
of Health and Human Services v. Sebelius, 701 F. Supp. 2d 182 (D. Mass. 2010).
8 Time Warner Cable Inc. v. F.C.C., 729 F.3d 137 (2d Cir. 2013).
9 Inova Alexandria Hosp. v. Shalala, 244 F.3d 342 (4th Cir. 2001); U.S. v. Gonzales & Gonzales Bonds and Ins.
Agency, Inc., 728 F. Supp. 2d 1077 (N.D. Cal. 2010).
10 Association of American Physicians & Surgeons, Inc. v. Sebelius, 901 F. Supp. 2d 19 (D.D.C. 2012), aff’d, 746 F.3d
468 (D.C. Cir. 2014).
11 Chamber of Commerce of U.S. v. U.S. Dept. of Labor, 174 F.3d 206 (D.C. Cir. 1999).
12
American Hosp. Ass’n v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987).
13 Mares v. Federal Bureau of Prisons, 401 F. Supp. 2d 775 (S.D. Tex. 2005).
14 Eastern Paralyzed Veterans Ass’n, Inc. v. Secretary of Veterans Affairs, 257 F.3d 1352 (Fed. Cir. 2001).


Works.

§ 175. Exception not absolute, 2 Am. Jur. 2d Administrative Law § 175
Administrative Law
V. Rulemaking
§ 175. Exception not absolute

A.L.R. Library
Exceptions under 5 U.S.C.A. sec. 553(b)(A) and sec. 553(b)(B) to notice requirements of Administrative Procedure Act
rule making provisions, 45 A.L.R. Fed. 12 (secs. 5-10 superseded in part by What constitutes “interpretative rule” of
agency so as to exempt such action from notice requirements of Administrative Procedure Act (5 U.S.C.A. sec.
553(b)(3)(A)), 126 A.L.R. Fed. 347, and secs. 25-39 superseded in part by Construction and Application of Good Cause
Exception to Notice and Comment Rulemaking Under Administrative Procedure Act (APA), 5 U.S.C.A. s553(b)(B), 26
A.L.R. Fed. 2d 97)
Interpretive rules and general statements of policy are not entirely exempt from all rule-making requirements. For example,
while interpretative rules and statements of policy are not subject to the requirement that their effective date be delayed until
30 days after publication,1the Freedom of Information Act still requires that such rules be published for the guidance of the
public.2
Footnotes
1 § 167.
2 5 U.S.C.A. § 552(a)(1).
§ 175. Exception not absolute, 2 Am. Jur. 2d Administrative Law § 175
As to the disclosure of agency statements of organization and rules under the Freedom of Information Act, generally,
see Am. Jur. 2d, Freedom of Information Acts §§ 39 to 46.

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§ 176. Effect of agency characterization of rule as exempt, 2 Am. Jur. 2d Administrative...
Administrative Law
V. Rulemaking
§ 176. Effect of agency characterization of rule as exempt

An agency’s characterization of a rule as exempt is not controlling or binding on a court 1and need not be accepted at face
value2or deferred to by the court.3Thus, an agency may not escape the notice-and-comment requirements for rulemaking by
labeling a major substantive legal addition4or substantive change5to a rule a mere interpretation. The court must
independently inquire6into the substance and effect of a policy pronouncement 7and will honor an agency’s characterization of
a rule as legislative or interpretive only if it reasonably describes what the agency has done. 8
On the other hand, an agency’s view or characterization of its own action, while not decisive, 9is entitled to some
consideration10and is a factor to consider in determining whether its action constitutes an interpretive rule exempt from
notice-and-comment rulemaking.11
Footnotes
1 CropLife America v. E.P.A., 329 F.3d 876 (D.C. Cir. 2003).
2 Hemp Industries Ass’n v. Drug Enforcement Admin., 333 F.3d 1082 (9th Cir. 2003).
3 UPMC Mercy v. Sebelius, 793 F. Supp. 2d 62 (D.D.C. 2011).
4 Appalachian Power Co. v. E.P.A., 208 F.3d 1015 (D.C. Cir. 2000).
5 Air Transport Ass’n of America, Inc. v. F.A.A., 291 F.3d 49 (D.C. Cir. 2002).

§ 176. Effect of agency characterization of rule as exempt, 2 Am. Jur. 2d Administrative...
6 UPMC Mercy v. Sebelius, 793 F. Supp. 2d 62 (D.D.C. 2011).

7 Mt. Diablo Hosp. Dist. v. Bowen, 860 F.2d 951 (9th Cir. 1988).
8 American Federation of Government Employees, AFL-CIO v. U.S., 622 F. Supp. 1109 (N.D. Ga. 1984), opinion aff’d,
780 F.2d 720 (Fed. Cir. 1986).
As to holdings regarding an agency’s characterization of a rule as substantive or interpretative, see § 139.
9 Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000).
10 Daughters of Miriam Center for the Aged v. Mathews, 590 F.2d 1250 (3d Cir. 1978).
11 Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000).

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§ 177. “Good-cause” exception where notice impracticable,..., 2 Am. Jur. 2d...
Administrative Law
V. Rulemaking
c. Good Cause
§ 177. “Good-cause” exception where notice impracticable, unnecessary, or contrary to public

interest

A.L.R. Library
Construction and Application of Good Cause Exception to Notice and Comment Rulemaking Under Administrative
Procedure Act (APA), 5 U.S.C.A. s553(b)(B), 26 A.L.R. Fed. 2d 97

Forms
Forms relating to emergencies, generally, see Federal Procedural Forms, Administrative Procedure [Westlaw® Search

Query]
The Federal Administrative Procedure Act (APA) excuses noncompliance with the procedural requirements for rulemaking
where they are impracticable, unnecessary, or contrary to the public interest.1Under the APA, any finding of good cause must
be incorporated into the rules as issued, along with a brief statement of reasons supporting the finding. 2This requires the
agency to publish a specific finding of good cause documenting why the statutory procedures are impracticable, unnecessary,
or contrary to the public interest.3The finding is not, however, binding on the courts. 4
The good-cause exception is essentially an emergency procedure. 5The exception may also be used in cases when delay could
result in serious harm,6but it is not an escape clause.7It should be narrowly construed and only reluctantly
countenanced.8Further, it is important to note that the agency bears the burden of demonstrating the grounds for good cause. 9
A finding of good cause indicates the agency’s intention to promulgate a legislative-type rule.10Later attempts by the agency
to recharacterize the rule as interpretative are given very little weight. 11Under other authority, the use of the good-cause
exception merely assures that if a court determined that any portion of the final rule was legislative, the agency had on record
its justification for invocation of the “good-cause” exception.12
The type of emergency situation which justify resort by the agency to the “good-cause” exception is one in which delay
would unavoidably frustrate agency powers. 13Notice and comment on a rule may be impracticable when the due and required
execution of the agency functions would be unavoidably prevented by its undertaking public rule-making proceedings.14In
other words, the “good-cause” exception authorizes departures from the APA’s requirements only when compliance would
interfere with the agency’s ability to carry out its mission.15Additionally, narrowly focused and temporary emergency
regulations that address only the problem at hand may be promulgated without notice and comment since they legitimately
fall within the APA’s good cause exception.16However, where the agency has been considering the problem addressed by the
regulation “for some time,” a court may conclude that no emergency exists and that normal rule-making procedures can and
should be followed.17The exemption should similarly not be used to circumvent the notice and comment requirements
because an agency finds them inconvenient to follow.18
The “unnecessary” prong of the good cause exception for dispensing with normal notice and comment requirements for
rulemaking applies when an administrative rule is a routine determination, insignificant in nature and impact, and
inconsequential to the industry and to the public. 19
Footnotes
1 5 U.S.C.A. § 553(b)(B).
2 5 U.S.C.A. § 553(b)(B).
3 Hemp Industries Ass’n v. Drug Enforcement Admin., 333 F.3d 1082 (9th Cir. 2003).
4 Mobil Oil Corp. v. Department of Energy, 610 F.2d 796 (Temp. Emer. Ct. App. 1979).
5 North Carolina Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755 (4th Cir. 2012); U.S. v. Valverde, 628
F.3d 1159 (9th Cir. 2010), cert. denied, 132 S. Ct. 1534, 182 L. Ed. 2d 219 (2012).
6 North Carolina Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755 (4th Cir. 2012); U.S. v. Dean, 604 F.3d
1275 (11th Cir. 2010); Chamber of Commerce of U.S. v. S.E.C., 443 F.3d 890 (D.C. Cir. 2006).
7 Record Buck Farms, Inc. v. Johanns, 510 F. Supp. 2d 868 (M.D. Fla. 2007).

8 Record Buck Farms, Inc. v. Johanns, 510 F. Supp. 2d 868 (M.D. Fla. 2007); U.S. v. Rebelo, 646 F. Supp. 2d 682
(D.N.J. 2009), aff’d, 394 Fed. Appx. 850 (3d Cir. 2010); U.S. v. Torres, 573 F. Supp. 2d 925 (W.D. Tex. 2008).
9 Northern Arapahoe Tribe v. Hodel, 808 F.2d 741, 6 Fed. R. Serv. 3d 1248 (10th Cir. 1987).
10 Levesque v. Block, 723 F.2d 175 (1st Cir. 1983).
12 United Technologies Corp. v. U.S. E.P.A., 821 F.2d 714 (D.C. Cir. 1987).
13 National Nutritional Foods Ass’n v. Kennedy, 572 F.2d 377 (2d Cir. 1978).
14 North Carolina Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755 (4th Cir. 2012).
15 Natural Resources Defense Council, Inc. v. Evans, 316 F.3d 904 (9th Cir. 2003).
16 Northern Mariana Islands v. U.S., 686 F. Supp. 2d 7 (D.D.C. 2009).
17 Texas Food Industry Ass’n v. U.S. Dept. of Agriculture, 842 F. Supp. 254 (W.D. Tex. 1993).
18 Record Buck Farms, Inc. v. Johanns, 510 F. Supp. 2d 868 (M.D. Fla. 2007).
19 North Carolina Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755 (4th Cir. 2012); Mack Trucks, Inc. v.
E.P.A., 682 F.3d 87 (D.C. Cir. 2012).

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§ 178. Impracticability; time constraints, 2 Am. Jur. 2d Administrative Law § 178
Administrative Law
V. Rulemaking
c. Good Cause
§ 178. Impracticability; time constraints


”Impracticable” means a situation in which the due and required execution of the agency functions would be unavoidably
prevented by public rule-making proceedings.1Impracticability exists when the agency cannot both follow the
notice-and-comment procedure and execute its statutory duty. 2For example, where the rulemaking deadline imposed by
Congress places the administrative agency in a bind such that adherence to Administrative Procedure Act’s (APA)
requirements would prevent the statutory program from having effect, courts will defer to an agency’s assertion of the good
cause exception.3Furthermore, there is good cause to forego notice and comment procedures in promulgating an interim rule
implementing a statute where Congress granted the agency some discretion to issue an interim rule without first providing
notice and comment in order to ensure that a rule was in place by the effective date, it would have been difficult for the
agency to have set aside a period of time to undertake notice and comment, there was a compelling need to have a rule in
effect by the statute’s effective date, and the rule was only temporary. 4
However, while time constraints,5imminence of a deadline,6or the urgent need for agency action 7are factors to be considered,
they are inadequate justification to invoke the good-cause exception, especially when it would have been possible to comply
with both the Federal Administrative Procedure Act and with the statutory deadline. 8Thus, good cause for eliminating notice
and the opportunity to comment may not exist, even though an agency feels the need to provide immediate guidance
§ 178. Impracticability; time constraints, 2 Am. Jur. 2d Administrative Law § 178
regarding the operation of a new program 9or wishes to have the regulations in effect during the current harvest
season.10Further, statutory language imposing strict deadlines, standing alone, does not constitute sufficient good cause
justifying departure from the standard notice-and-comment requirements for agency rulemaking.11
Footnotes
2 Natural Resources Defense Council, Inc. v. Evans, 316 F.3d 904 (9th Cir. 2003).
3 U.S. v. Rebelo, 646 F. Supp. 2d 682 (D.N.J. 2009), aff’d, 394 Fed. Appx. 850 (3d Cir. 2010).
Fed. 2d 683 (D.D.C. 2006).
6 U.S. v. Rebelo, 646 F. Supp. 2d 682 (D.N.J. 2009), aff’d, 394 Fed. Appx. 850 (3d Cir. 2010).
7 Natural Resources Defense Council, Inc. v. U.S. E.P.A., 683 F.2d 752 (3d Cir. 1982).
8 Natural Resources Defense Council, Inc. v. U.S. E.P.A., 683 F.2d 752 (3d Cir. 1982).
10 National Ass’n of Farmworkers Organizations v. Marshall, 628 F.2d 604 (D.C. Cir. 1980).
11 Asiana Airlines v. F.A.A., 134 F.3d 393 (D.C. Cir. 1998).

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§ 179. Minor amendment not affecting public interest, 2 Am. Jur. 2d Administrative Law...
Administrative Law
V. Rulemaking
c. Good Cause
§ 179. Minor amendment not affecting public interest

An agency wishing to correct a mistake in a rule must either undergo the notice and comment process or invoke an exception
thereto.1Notice and opportunity to comment may be unnecessary if the agency is making only a minor or technical
amendment to its rules which does not affect the public interest. 2”Unnecessary” means unnecessary so far as the public is
concerned, as is the case if a minor or merely technical amendment in which the public is not particularly interested is
involved.3
Footnotes
1 Select Specialty Hospital-Akron, LLC v. Sebelius, 820 F. Supp. 2d 13 (D.D.C. 2011) (correction of a ministerial error
in a rule does not require an exception to the notice and comment requirement).
2 National Nutritional Foods Ass’n v. Kennedy, 572 F.2d 377 (2d Cir. 1978).

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§ 180. Significant harm from proposal of rule, 2 Am. Jur. 2d Administrative Law § 180
Administrative Law
V. Rulemaking
c. Good Cause
§ 180. Significant harm from proposal of rule

In special circumstances, good cause can exist when the very announcement of a proposed rule itself can be expected to
precipitate activity by affected parties that would harm the public welfare. 1For example, the public interest prong of the good
cause exception is appropriately invoked when the timing and disclosure requirements of the usual procedures would defeat
the purpose of the proposal if, for example, announcement of a proposed rule would enable the sort of financial manipulation
the rule sought to prevent, and in such a circumstance, notice and comment could be dispensed with in order to prevent the
amended rule from being evaded.2However, if the exception is not to become an all-purpose escape clause, the anticipated
response must involve a significant threat of serious damage to an important public interest.3
Footnotes
1 Chamber of Commerce of U.S. v. S.E.C., 443 F.3d 890 (D.C. Cir. 2006).
2 Mack Trucks, Inc. v. E.P.A., 682 F.3d 87 (D.C. Cir. 2012).

Works.

§ 181. Other exceptions, 2 Am. Jur. 2d Administrative Law § 181
Administrative Law
V. Rulemaking
d. Other Exceptions; Waiver
§ 181. Other exceptions


The Federal Administrative Procedure Act (APA) does not govern rulemaking by territorial and commonwealth officials. 1The
APA rule-making requirements also do not apply if, under the pertinent regulatory statute, the administrator has the
discretion to change policies or classifications at any time. 2However, if no statute manifests a strong congressional intent that
rule-making procedures should not be followed, and no exemption is granted under the APA, no exemption should be
permitted by the courts.3
Footnotes
1 Nestle Products, Inc. v. U. S., 64 Cust. Ct. 158, 310 F. Supp. 792 (Cust. Ct. 3 Div. 1970).
2 Certified Color Mfrs. Ass’n v. Mathews, 543 F.2d 284 (D.C. Cir. 1976).
3 Environmental Defense Fund, Inc. v. Blum, 458 F. Supp. 650 (D.D.C. 1978).

§ 181. Other exceptions, 2 Am. Jur. 2d Administrative Law § 181

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§ 182. Waiver of, or estoppel from asserting, exemption, 2 Am. Jur. 2d Administrative...
Administrative Law
V. Rulemaking
d. Other Exceptions; Waiver
§ 182. Waiver of, or estoppel from asserting, exemption


An agency’s exemption from the rule-making requirements of the Federal Administrative Procedure Act (APA) may be
waived by an announcement in the Federal Register.1Under some circumstances, an agency may also be estopped from
claiming one exemption if it relies on another exemption, such as that notice is impracticable, unnecessary, or contrary to the
public interest.2However, it has also been held that the voluntary publication of notice in the Federal Register and an
invitation for public comment does not necessarily constitute an estoppel against the application of one of the exemptions. 3
Where an agency issued a policy statement providing that it will give notice of proposed rulemaking and invited the public to
participate in rulemaking where not required by law, including rulemaking relating to grants and benefits, the policy
statement fully binds the agency to the procedural requirements of the APA and an otherwise exempt rule is subject to the
notice and comment procedures.4
Footnotes

§ 182. Waiver of, or estoppel from asserting, exemption, 2 Am. Jur. 2d Administrative...
1 Linoz v. Heckler, 800 F.2d 871 (9th Cir. 1986).

2 City of New York v. Diamond, 379 F. Supp. 503 (S.D. N.Y. 1974) (disapproved of on other grounds by, U.S. v.
Gavrilovic, 551 F.2d 1099 (8th Cir. 1977)).
3 Lewis v. Richardson, 428 F. Supp. 1164 (D. Mass. 1977).
Fed. 2d 683 (D.D.C. 2006) (the court further discussing the policy statement’s good cause exemption).

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Research References, 2 Am. Jur. 2d Administrative Law V D Refs.
2 Am. Jur. 2d Administrative Law V D Refs.
Administrative Law
V. Rulemaking
D. State Procedure for Adoption of Rules
Research References

West’s Key Number Digest, Administrative Law and Procedure 392.1 to 400, 402 to 411, 418
A.L.R. Library
West’s A.L.R. Digest, Administrative Law and Procedure 392.1 to 400, 402 to 411, 418
Works.

Administrative Law
V. Rulemaking
1. In General
§ 183. Generally

Administrative agencies may only regulate by a new rule if the proper rulemaking procedures have been followed. 1State
agencies generally must follow statutory requirements or procedures in rule-making proceedings2in compliance with the
state’s administrative procedure act.3These procedures include notice, public hearing,4and public comment requirements.5In
addition, when an agency undertakes rulemaking, it ordinarily must follow publication procedures. 6
In determining whether an agency policy or rule is a regulation that must be promulgated in compliance with the state’s
administrative procedure act requirements, a court examines its character and use. 7When an agency exercises its authority to
supplement a statute, not simply to construe it, it makes new law and thereby engages in substantive or legislative
rulemaking, as must comply with the notice and comment provisions of its administrative procedure act. 8The states may
impose rulemaking procedures only upon those statements which are intended by their own effect to create rights, or to
require compliance, or otherwise to have the direct and consistent effect of law. 9
Footnotes
1 Villegas v. Silverman, 832 N.E.2d 598 (Ind. Ct. App. 2005).
2 Coalition of Greater Minnesota Cities v. Minnesota Pollution Control Agency, 765 N.W.2d 159 (Minn. Ct. App.
2009); Deborah Heart and Lung Center v. Howard, 404 N.J. Super. 491, 962 A.2d 577 (App. Div. 2009); Fidelity &
Guar. Ins. Co. v. Bureau of Workers’ Compensation, 13 A.3d 534 (Pa. Commw. Ct. 2010).
3 People v. Taylor, 174 Cal. App. 4th 920, 94 Cal. Rptr. 3d 756 (4th Dist. 2009), as modified on denial of reh’g, (June
29, 2009); Andrews v. District of Columbia Police and Firefighters Retirement and Relief Bd., 991 A.2d 763 (D.C.
2010); Mallinckrodt U.S. LLC v. Department of Environmental Protection, 2014 ME 52, 2014 WL 1317513 (Me.
2014); In re Authorization For Freshwater Wetlands Statewide General Permit 6, Special Activity Transition Area
Waiver For Stormwater Management, Water Quality Certification, 433 N.J. Super. 385, 80 A.3d 1132 (App. Div.
2013).
4 Labor Com’r of State of Nevada v. Littlefield, 123 Nev. 35, 153 P.3d 26 (2007).
5 Greenbriar Hills Country Club v. Director of Revenue, 47 S.W.3d 346 (Mo. 2001).
6 Andrews v. District of Columbia Police and Firefighters Retirement and Relief Bd., 991 A.2d 763 (D.C. 2010); Taylor
v. Kansas Dept. of Health and Environment, 49 Kan. App. 2d 233, 305 P.3d 729 (2013).
7 Squires v. Alaska Bd. of Architects, Engineers & Land Surveyors, 205 P.3d 326 (Alaska 2009).
8 Andrews v. District of Columbia Police and Firefighters Retirement and Relief Bd., 991 A.2d 763 (D.C. 2010).
9 Agency for Health Care Admin. v. Custom Mobility, Inc., 995 So. 2d 984 (Fla. 1st DCA 2008).

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§ 184. Rationale; purpose, 2 Am. Jur. 2d Administrative Law § 184
Administrative Law
V. Rulemaking
1. In General
§ 184. Rationale; purpose

The purposes behind procedural requirements for state rulemaking are to—
— ensure that all interested parties are made aware of or have notice of any proposed rule. 1
— give the public and affected parties an opportunity to participate and express their views on the proposed rule. 2
— provide information to the agency through statements of those in support of or in opposition to the proposed rule. 3
— ensure that those persons or entities whom a regulation will affect have a voice in its creation, as well as notice of the
law’s requirements so that they can conform their conduct accordingly. 4
— create an administrative record assuring effective judicial review. 5
— permit a full and fair analysis of the impact and validity of a proposed rule. 6
— prevent secret agency rulemaking when the agency uses undisclosed but authoritative interpretations of law or policy. 7
— ensure that none of the essential functions of the legislative process are lost. 8
Cases:
The rulemaking requirements of Administrative Procedure Act (APA) are mandatory protections against the arbitrary
imposition of regulatory requirements; they are fundamental to the administrative process and apply broadly to any action by
an agency that functions as a rule. R.C. § 119.01 et seq. Fairfield Cty. Bd. of Commrs. v. Nally, 143 Ohio St. 3d 93,
2015-Ohio-991, 34 N.E.3d 873 (2015).
[END OF SUPPLEMENT]

§ 184. Rationale; purpose, 2 Am. Jur. 2d Administrative Law § 184
Footnotes
1 Women’s and Children’s Hosp. v. State, Dept. of Health and Hospitals, 984 So. 2d 760 (La. Ct. App. 1st Cir. 2008),
writ granted, 983 So. 2d 1287 (La. 2008) and decision aff’d, 2 So. 3d 397 (La. 2009).
The administrative procedure act is meant to reduce the risk of arbitrary application and to inform the public of
regulations. Friends of Willow Lake, Inc. v. State, Dept. of Transp. & Public Facilities, Div. of Aviation & Airports,
280 P.3d 542 (Alaska 2012).
2 In re Provision of Basic Generation Service for Period Beginning June 1 2008, 205 N.J. 339, 15 A.3d 829 (2011).
3 Beverly Enterprises-Missouri Inc. v. Department of Social Services, Div. of Medical Services, 349 S.W.3d 337 (Mo.
Ct. App. W.D. 2008).
4 Reilly v. Superior Court, 57 Cal. 4th 641, 160 Cal. Rptr. 3d 410, 304 P.3d 1071 (2013).
5 POET, LLC v. California Air Resources Board, 218 Cal. App. 4th 681, 160 Cal. Rptr. 3d 69 (5th Dist. 2013), as
modified on denial of reh’g, (Aug. 8, 2013) and review denied, (Nov. 20, 2013).
6 State ex rel. United Auto Aerospace & Agricultural Implement Workers of Am. v. Ohio Bur. of Workers’ Comp., 95
Ohio St. 3d 408, 2002-Ohio-2491, 768 N.E.2d 1129 (2002).
7 City of Des Moines v. Employment Appeal Bd., 722 N.W.2d 183 (Iowa 2006).
8 Danse Corp. v. City of Madison Heights, 466 Mich. 175, 644 N.W.2d 721 (2002).

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§ 185. Effect of noncompliance with rule-making..., 2 Am. Jur. 2d...
Administrative Law
V. Rulemaking
1. In General
§ 185. Effect of noncompliance with rule-making procedures; substantial compliance

An agency violates a state’s administrative procedure act if it engages in rulemaking without following the act’s procedural
requirements.1Generally, rules not promulgated in accordance with the administrative procedure act are invalid, 2without
effect,3void,4and provide no one with a clear legal right to judicial relief. 5
However, the administrative procedure act may require only substantial compliance for a rule to be valid. 6This is the
approach of the 1981 version of the Model State Administrative Procedure Act, which says that no rule is valid unless
adopted in substantial compliance with the Model Act.7Substantial compliance, as required under state rulemaking
procedures, is more than minimal compliance, but less than strict or absolute compliance. 8It has alternatively been defined as
actual compliance in respect to the substance essential to every reasonable objective of the statute. 9Similarly, under the 2010
version of the Model State Administrative Procedure Act, an action taken under the rulemaking article is not valid unless it
substantially complies with the rulemaking procedural requirements. 10
Footnotes
1 State, Dept. of Taxation v. Chrysler Group LLC, 300 P.3d 713, 129 Nev. Adv. Op. No. 29 (Nev. 2013).
2 Niles Freeman Equipment v. Joseph, 161 Cal. App. 4th 765, 74 Cal. Rptr. 3d 690 (3d Dist. 2008); Bueno v. Board of
Trustees, 422 N.J. Super. 227, 27 A.3d 1237, 271 Ed. Law Rep. 1030 (App. Div. 2011); El Paso Hosp. Dist. v. Texas
Health and Human Services Com’n, 247 S.W.3d 709 (Tex. 2008).
An agency’s failure to comply with the APA’s procedures in enacting a rule requires invalidation of the rule. City of
Vancouver v. State Public Employment Relations Com’n, 198 L.R.R.M. (BNA) 2899, 2014 WL 1226499 (Wash. Ct.
App. Div. 2 2014).
3 Mallinckrodt U.S. LLC v. Department of Environmental Protection, 2014 ME 52, 2014 WL 1317513 (Me. 2014).
§ 185. Effect of noncompliance with rule-making..., 2 Am. Jur. 2d...
4 Taylor v. Kansas Dept. of Health and Environment, 49 Kan. App. 2d 233, 305 P.3d 729 (2013); Department of Social
Services, Div. of Medical Services v. Little Hills Healthcare, L.L.C., 236 S.W.3d 637 (Mo. 2007).
5 Coordinating Council for Independent Living, Inc. v. Palmer, 209 W. Va. 274, 546 S.E.2d 454 (2001).
6 Seneca Nation of Indians v. State, 89 A.D.3d 1536, 933 N.Y.S.2d 500 (4th Dep’t 2011), leave to appeal denied, 18
N.Y.3d 808, 942 N.Y.S.2d 36, 965 N.E.2d 263 (2012).
When an agency substantially fails to comply with rulemaking requirements of the State APA, courts are not limited to
choosing between invalidation of the regulation and no remedy at all; furthermore, when selecting an appropriate
remedy for a procedural violation of the APA, courts may consider the public interests affected by the remedy. POET,
LLC v. California Air Resources Board, 218 Cal. App. 4th 681, 160 Cal. Rptr. 3d 69 (5th Dist. 2013), as modified on
denial of reh’g, (Aug. 8, 2013) and review denied, (Nov. 20, 2013).
7 Model State Administrative Procedure Act (1981) § 3-113(a).
8 Brighton Pharmacy, Inc. v. Colorado State Pharmacy Bd., 160 P.3d 412 (Colo. App. 2007).
9 California Assn of Medical Products Suppliers v. Maxwell-Jolly, 199 Cal. App. 4th 286, 131 Cal. Rptr. 3d 692 (1st
Dist. 2011).

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Summary, 2 Am. Jur.

2d Administrative Law Summary

2 Am. Jur. 2d Administrative Law Summary

American Jurisprudence, Second Edition | February 2022 Update

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2 Am. Jur. 2d Administrative Law I A Refs.

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Topic Summary | Correlation Table

West’s Key Number Digest

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2 Am. Jur. 2d Administrative Law § 1

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§ 1. Generally; definition of “administrative law”

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2 Am. Jur. 2d Administrative Law § 2

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§ 2. Concern with private and public rights

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2 Am. Jur. 2d Administrative Law § 3

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§ 3. Relation of administrative process to legal process

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2 Am. Jur. 2d Administrative Law § 4

American Jurisprudence, Second Edition | February 2022 Update

§ 4. Advantages of administrative process

Topic Summary | Correlation Table | References

West’s Key Number Digest

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2 Am. Jur. 2d Administrative Law § 5

American Jurisprudence, Second Edition | February 2022 Update

§ 5. Collaboration of administrative agencies and courts

Topic Summary | Correlation Table | References

West’s Key Number Digest

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2 Am. Jur. 2d Administrative Law § 6

American Jurisprudence, Second Edition | February 2022 Update

§ 6. Role of Attorney General in advising administrative agencies

Topic Summary | Correlation Table | References

West’s Key Number Digest

Treatises and Practice Aids

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