Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P13 doc

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES Created in 1968, the Administrative Conference of the United States ACUS was a federal independent agency and advisory committee chartered

allowed to offer evidence of their suitability for early release fromINCARCERATION The strict rules observed in a courtroom do not apply to these hearings, and the board’s decisions must acc-ount for the public interest as well as the rights

of the prisoners

FURTHER READINGS Aman, Alfred C., Jr., and William T Mayton 2001 Aman and Mayton’s Hornbook on Administrative Law 2d ed.

Eagan, MN: West.

Barksdale, Yvette M 1993 “The Presidency and Adminis-trative Value Selection ” American Univ Law Review 42.

Diver, Colin S 1987 “The Uneasy Constitutional Status of the Administrative Agencies, Part II: Presidential Oversight of Regulatory Decisionmaking: Commentary:

Presidential Powers.” American Univ Law Review 36.

Pierce, Richard J 2002 (updated 2008) Administrative Law Treatise 4th ed Frederick, MD: Aspen.

U.S Government Manual Web site Available online

at http://www.gpoaccess.gov/gmanual/index (accessed July 3, 2009).

CROSS REFERENCES Administrative Conference of the United States; Adminis-trative Law and Procedure; Bureaucracy; National Industrial Recovery Act of 1933; Schechter Poultry Corp v United States See also entries for specific federal agencies (e.g., Food and Drug Administration).

ADMINISTRATIVE BOARD

A comprehensive phrase that can refer to any administrative agency but usually means a public agency that holds hearings

An administrative board is usually obligated

to represent the PUBLIC INTEREST; courts, in contrast, must remain impartial between the two parties before them A PAROLE board, for example, holds informal hearings where prison-ers are allowed to offer evidence of their suitability for early release from prison The strict rules observed in a courtroom do not apply to board hearings like these, and the board’s decision must take into account the public’s interest as well as the prisoner’s rights

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

Created in 1968, the Administrative Conference

of the United States (ACUS) was a federal independent agency and advisory committee chartered for the purpose of ensuring the fair and efficient administration of various federal agencies The ACUS studied administrative processes and recommended improvements

in the procedures by which federal agencies

administered regulatory, benefit, and other gov-ernment programs It had no power to enact its recommendations into law, or to enforce them once they were enacted, but it did carry great weight in the formulation of procedures and policies of federal administrative agencies The ACUS consisted of heads of adminis-trative agencies, private lawyers, university professors, various federal officials, and other experts in administrative law and government These experts collectively conducted continuing studies of selected problems that existed in the procedures of federal administrative agencies The specific charge of ACUS was to harness the experience and judgment of the administrative agency specialists to improve the fairness and effectiveness of administrative procedures and functions

From 1968 to 1995 the ACUS issued approximately two hundred recommendations, the majority of which were at least partially implemented In 1995 Congress terminated funding for the ACUS, and it ceased operation

FURTHER READINGS

“Administrative Conference of the United States” (Sympo-sium) 1998 Arizona State Law Journal 30 (spring) Funk, William “R.I.P A.C.U.S.” ABA Network: Adminis-trative & Regulatory Law News Available online at www.abanet.org/adminlaw/news/vol21no2/acus_rip html (accessed Mar 31, 2010).

“Recommendations of the Administrative Conference of the United States.” ABA Administrative Procedure Data-base Available online at www.law.fsu.edu/library/ admin/acus/acustoc.html (accessed Mar 31, 2010) CROSS REFERENCES

Administrative Agency; Administrative Law and Procedure.

ADMINISTRATIVE DISCRETION The exercise of professional expertise and judg-ment, as opposed to strict adherence to regulations

or statutes, in making a decision or performing official acts or duties

A discretionary action is informal and, therefore, unprotected by the safeguards inher-ent in formal procedure A public official, for example, hasADMINISTRATIVE DISCRETIONwhen he

or she has the freedom to make a choice among potential courses of action.ABUSE OF DISCRETION

is the failure to exercise reasonable judgment

or discretion It might provide aCAUSE OF ACTION

for an unconstitutional invasion of rights protected by the Due Process Clause of the Constitution

ADMINISTRATIVE LAW AND

PROCEDURE

Administrative law is the body of law that allows

for the creation of public regulatory agencies and

contains all of the statutes, judicial decisions,

and regulations that govern them It is created by

administrative agencies to implement their powers

and duties in the form of rules, regulations, orders,

and decisions Administrative procedure

constitu-tes the methods and processes before

administra-tive agencies, as distinguished from judicial

procedure, which applies to courts

The Administrative Procedure Act (5 U.S.C

§§ 551-706) governs the practice and

proceed-ings before federal administrative agencies The

procedural rules and regulations of most federal

agencies are set forth in the CODE OF FEDERAL

REGULATIONS(CFR)

The fundamental challenge of

administra-tive law is in designing a system of checks that

will minimize the risks of bureaucratic

arbitrar-iness and overreaching, while preserving for the

agencies the flexibility that they need in order to

act effectively Administrative law thus seeks to

limit the powers and actions of agencies and to

fix their place in U.S scheme of government

and law It contrasts with traditional notions

that the three branches of the U.S government

must be kept separate, that they must not

delegate their responsibilities to bureaucrats, and that the formalities of due process must be observed

Separation of Powers

The U.S Constitution establishes a three-part system of government, consisting of the Legis-lative Branch, which makes the laws; the

EXECUTIVE BRANCH, which carries out or enforces the laws; and the Judicial Branch, which interprets the laws This system of checks and balances is designed to keep any one branch from exercising too much power Administra-tive agencies do not fit neatly into any of the three branches They are frequently created by the legislature and are sometimes placed in the Executive Branch, but their functions reach into all three areas of government

For example, the SECURITIES AND EXCHANGE COMMISSION(SEC) administers laws governing the registration, offering, and sale of securities, such

as stocks and bonds The SEC formulates laws like a legislature does by writing rules that spell out what disclosures must be made in a

PROSPECTUSthat describes shares of stock that will

be offered for sale The SEC enforces its rules in the way that the Executive Branch of government does, by prosecuting violators It can bring disciplinary actions against broker-dealers, or it

The Securities and Exchange Commission administers laws governing the actions

of these traders on the floor of the New York Stock Exchange The SEC is an

independent agency that enforces its rules without need for approval from Congress or the executive branch of the government.

AP IMAGES

can issue stop orders against corporate issuers of securities The SEC acts as judge and jury when

it conducts adjudicatory hearings to determine violations or to prescribe punishment Although SEC commissioners are appointed by the presi-dent subject to the approval of the Senate, the SEC is an independent agency It is not part

of Congress, nor is it part of any executive department

Combining the three functions of govern-ment allows an agency to tackle a problem and

to get the job done most efficiently, but this combination has not been accepted without

a struggle Some observers have taken the position that the basic structure of the admini-strative law system is an unconstitutional violation of the principle of the SEPARATION OF POWERS

Delegation of Authority

The first issue that is encountered in the study

of administrative law concerns the way in which Congress can effectively delegate its legislative power to an administrative agency Article I, Section I, of the U.S Constitution provides that all legislative power is vested in Congress

Despite early resistance, the U.S Supreme Court gradually accepted the delegation of legislative authority so long as Congress sets clear standards for the administration of the duties in order to limit the scope of agency discretion With this basic principle as their guide, courts have invalidated laws that grant too much legislative power to an administrative agency PresidentFRANKLIN D.ROOSEVELTlearned just how far the Court would go in allowing the delegation of authority, in two cases that stemmed from his administrative-agency actions

to support hisNEW DEALprogram

The National Industrial Recovery Act (15 U.S.C.A § 701 et seq., 40 U.S.C.A § 401 et seq

[1933]) authorized the president to prohibit interstate shipments of oil that had been produced in violation of state board rules that attempted to regulate crude-oil production to match consumer demand The Panama Refin-ing Company sued to prevent federal officials from enforcing the prohibition, known as the

“hot oil” law (Panama Refining Co v Ryan, 293 U.S 388, 55 S Ct 241, 79 L Ed 446 [1935])

The U.S Supreme Court found the law to be unconstitutional Congress could have passed a law prohibiting interstate shipments of hot oil,

but it did not do so; instead, it gave that power

to the president This instance has been called

a case of delegation run amok because the law had no clear standards defining when and how the president should use the authority that the statute delegated to him

Four months later, the Court invalidated a criminal prosecution for violation of the Live Poultry Code, an unfair-competition law that President Roosevelt had signed in 1934 pur-suant to another section of the National Industrial Recovery Act This was the case of Schechter Poultry v United States, 295 U.S 495,

55 S Ct 837, 79 L Ed 1570 (1935) The problem in this case was not that the delegation

of authority was ill-defined, but that it seemed limitless The president was given the authority

to“formulate codes of fair competition” for any industry if these codes would“tend to effectuate the policy” of the law Comprehensive codes were created, establishing an elaborate regula-tion of prices, minimum wages, and maximum hours for different kinds of businesses But there were no procedural safeguards from arbitrariness or abuses by enforcement agencies Someone who was charged with a violation was not given the right to notice of the charges, the right to be heard at an agency hearing, or the right to challenge the agency’s determination in a lawsuit The Court struck this law down, stating that the unfair procedures helped strong indus-trial groups to use these codes to improve their commercial advantage over small producers

As a result of Panama Refining and Schechter Poultry, when Congress delegates authority to agencies, it also sets out important provisions detailing procedures that protect against arbi-trary administrative actions

Resolving Conflicts of Authority

On some occasions, the courts have to deter-mine which agency is the proper body to exercise authority over a certain action For instance, in Coeur Alaska, Inc v Southeast Alaska Conservation Council, No 07-984, 2009

WL 1738643 (2009), the Supreme Court reviewed a case involving the issuance of a permit that would allow a company to dump rock materials into a lake The U.S Army Corps

of Engineers originally issued the permit, but a citizens’ group argued that the ENVIRONMENTAL PROTECTION AGENCYwas the proper body to issue the permit The Court determined that the

CLEAN WATER ACT, 33 U.S.C § 1251 et seq., had

delegated authority in the specific instance

presented by the case to the Corps of Engineers

Due Process of Law

The Fifth and Fourteenth Amendments

guaran-tee that the federal government and the state

governments, respectively, will not deprive a

person of his or her life, liberty, or property

withoutDUE PROCESS OF LAW An administrative

agency thus may not deprive anyone of life,

liberty, or property without providing that

person with a reasonable opportunity,

appro-priate under the circumstances, to challenge the

agency’s action People must be given fair

warning of the limits that an agency will place

on their actions, federal courts routinely uphold

very broad delegations of authority When

reviewing administrative agency actions, courts

ask whether the agency afforded those under

its jurisdiction due process of law as guaranteed

by the U.S Constitution

The U.S Supreme Court has held it

improper for a state agency to deny welfare

benefits to applicants who meet the conditions

for entitlement to those benefits as defined by

the legislature The state must afford due

process (in these cases, an oral hearing) before

it can terminate benefits (Goldberg v Kelly,

397 U.S 254, 90 S Ct 1011, 25 L Ed 2d 287

[1970]) Likewise, when a state grants all

child-ren the right to attend public schools and

establishes rules specifying the grounds for

suspension, it cannot suspend a given student

for alleged misconduct without affording the

student at least a limited prior hearing (Goss v

Lopez, 419 U.S 565, 95 S Ct 729, 42 L Ed 2d

725[1975])

Political Controls over Agency Action:

Legislative and Executive Oversight

Government institutions that set and enforce

PUBLIC POLICYmust be politically accountable to

the electorate When the legislature delegates

broad lawmaking powers to an administrative

agency, the popular control provided by direct

election of decision makers is absent, but this

does not mean that administrative agencies are

free from political accountability In many

areas, policy oversight by elected officials in

the legislature or the Executive Branch is a

more important check on agency power than is

JUDICIAL REVIEW

Federal agencies are dependent upon Con-gress and the president for their budgets and operating authority An agency that loses the support of these bodies or oversteps the bounds

of political acceptability may be subjected to radical restructuring In the 1970s the Atomic Energy Commission (AEC) took the politically unpopular position of promoting NUCLEAR POWER, while underemphasizing safety and environmental protection It paid the price when some of its promotional functions were transferred to a newly created DEPARTMENT OF ENERGY, and the AEC was restructured into the

NUCLEAR REGULATORY COMMISSION, which was responsible for the former agency’s regulatory duties

Federal administrative agencies must be responsive to legislative and executive oversight mechanisms During the 1970s many members

of Congress began to feel that the normal process of legislation was too cumbersome for effective control of administrative action

They devised a solution called the legislative

VETO Legislative vetoes took a variety of forms, but most of them directed agencies to transmit final administrative rules to Congress for review before they became effective Just as this approach was gaining in popularity and use, the U.S Supreme Court declared the legislative veto unconstitutional This ruling involved the

IMMIGRATION and Nationality Act (8 U.S.C §

1101 et seq.), which allowed either house of Congress to nullify a decision by the attorney general suspending DEPORTATION of an alien

Jagdish Rai Chadha brought suit when the House of Representatives exercised this power

in his case The Court held, in INS v Chadha,

462 U.S 919, 103 S Ct 2764, 77 L Ed 2d 317 (1983), that the legislative veto was essentially a one-house veto, and therefore it violated Article

I, Section 7, of the Constitution, which states that no legislation is valid unless passed

by both houses of Congress and signed by the president (or, if the president vetoes it, repassed by two-thirds of each house) The Court said that in Chadha, the House veto of the attorney general’s decision was a legislative action, and therefore Article I, Section 7, applied The Chadha decision invalidated all of the nearly 200 legislative-veto provisions that were on the books

Another important legislative-oversight mech-anism is the annual appropriations process

Congress determines the budget and appro-priates money for the various administrative agencies An administrative agency that angers Congress, or a key member of either house, could find itself with less money to work with

in the next year, or could even see certain programs eliminated A legislature may also enact a SUNSET PROVISION, which provides for automatic termination of an agency after a stated time unless the legislature is convinced that the need for the agency continues

Sometimes, a sunset provision is written into the statute that creates a particular agency, but a general sunset law may terminate any agency that cannot periodically demonstrate its effectiveness A useful agency can always

be revived or retained by the enactment of a new statute

Like Congress, the president uses a variety

of powers and techniques to oversee and influence the operations of administrative agencies The Appointments Clause of the Constitution (art II, §2, cl 2) states that the president may generally appoint all“officers of the United States,” with theADVICE AND CONSENT

of the Senate Under the authority of this provision, presidents often appoint agency heads who share their political agenda The president’s power to remove an agency head depends on whether the agency is an indepen-dent agency or a cabinet department Indepen-dent agencies tend to be multimember boards and commissions, such as the Securities and Exchange Commission,FEDERAL COMMUNICATIONS COMMISSION(FCC), andNATIONAL LABOR RELATIONS BOARD (NLRB), which are run by officials who are appointed for a fixed period that does not correspond to the president’s term of office

There also may be statutes protecting the commissioners from arbitrary removal during their terms of office The heads of cabinet-level agencies, called secretaries, serve at the pleasure

of the president and may be removed at any time Appointments of cabinet secretaries must

be confirmed by the Senate

The president also reviews agency budgets, through the OFFICE OF MANAGEMENT AND BUDGET

(OMB) A president’s disapproval of agency initiatives can block appropriations in Congress

The president may also use anEXECUTIVE ORDER, a formal directive, to direct federal agencies or officials One technique that has been used frequently is the president’s authority to modify

the organizational structure of the BUREAUCRACY Under the Executive Reorganization Act (5 U.S.C §§ 901-912), the president may submit

a REORGANIZATION PLAN to Congress, transferring functions from one department to another This law recognizes that although responsibility for the organization and structure of the Execu-tive Branch is vested in Congress, the president needs flexibility to carry out executive duties Public opinion is another forceful weapon against unbridled agency action Some jurisdic-tions of the United States have created special public offices to investigate complaints about administrative misconduct Investigators hold-ing these offices, called ombudsmen, usually have broad authority to evaluate individual complaints, to intercede on behalf of belea-guered victims of red tape, and to make reports

or recommendations

The Development of Administrative Procedure Law

Administrative agencies were established to do the government’s work in a simpler and more direct manner than the legislature could do by enacting a law or the courts could do by applying that law in various cases Because they pursue their actions less formally, agencies do not follow theCIVIL PROCEDUREthat is set up for courts Instead, the law of administrative procedure has developed to ensure that agencies

do not abuse their authority even though they use simplified procedures

Although administrative agencies have existed since the founding of the United States, the early twentieth century saw a growth in the number of agencies that were designed to address new problems During the Great Depression, a host of new agencies sprang up

to meet economic challenges Antagonism toward bureaucracy increased as existing dis-satisfactions were multiplied by the number of new bureaucrats In 1939 President Roosevelt appointed a committee to investigate the need for procedural reform in the field of adminis-trative law Although the comprehensive and scholarly report of that committee was not enacted into law, a later version of it was enacted in 1946 when Congress unanimously passed the Administrative Procedure Act (5 U.S C.A §§ 551-706) (APA) The statute made agencies’ methods fairer so that there would be less reason to object to them It also limited the

power of the courts to review agency actions

and to overturn them

Judicial review of agency action furnishes an

important set of controls on administrative

behavior Unlike the political oversight controls,

which generally influence entire programs or

basic policies, judicial review regularly operates

to provide relief for the individual person who

is harmed by a particular agency decision

Judicial review has evolved over a period of

years into a complex system of statutory,

constitutional, and judicial doctrines that define

the proper BOUNDARIES of this system of

oversight The trend of judicial decisions and

the Administrative Procedure Act is to make

judicial review more widely and easily available

How far can a court go in examining an

agency decision? The reviewing court may be

completely precluded from testing the merits of

an agency action, or it may be free to decide the

issuesDE NOVO, that is, without deference to the

agency’s determination In general,

administra-tive agencies make either formal or informal

decisions, and courts have different standards

for reviewing each type

Informal Agency Action Most of the work

done by agencies is accomplished with informal

procedures For example, a person who applies

for a driver’s license does not need or want a full

trial in court in order to be found qualified So

long as the motor vehicle department follows

standard, fair procedures, and processes the

application promptly, most people will be happy

Agencies take informal action in a variety of

settings The SOCIAL SECURITY Administration

reviews over four million claims for benefits

annually, holding hearings or answering

chal-lenges to their decisions in only a small

number of cases Most transmitter applications

before the Federal Communications

Commis-sion are approved or disapproved without any

formal action The INTERNAL REVENUE SERVICE

processes most tax returns without formal

proceedings It also will provide informal

opinions to help people avoid making costly

mistakes in their financial planning

Anyone who objects to the informal

deci-sions made by a government agency can invoke

more formal procedures Someone may believe

that standards are unclear and that they should

be promulgated through formal agency rule

making Or someone may feel that the decision

in a particular case is unfair and may demand a

formal adjudicatory hearing If one of these formal procedures does not satisfy a party, the agency’s decision may be challenged in court

Formal Agency Action Most formal action taken by administrative agencies consists of rule making or adjudication Rule making is the agency’s formulation of policy that will apply

in the future to everyone who is affected by the agency’s activities Adjudication is for the agency what a trial is for the courts: It applies the agency’s policies to some act that already has been done, so that an order is issued for or against a party who appears for a decision Rule making looks to the future; adjudication looks at the past

Where either of these formal procedures is used, the agency will usually give interested or affected persons notice and an opportunity to be heard before a final rule or order is issued

Rule making Administrative agencies pro-mulgate three types of rules: procedural, interpretative, and legislative Procedural rules identify the agency’s organization and methods

of operation Interpretative rules are issued to show how the agency intends to apply the law

They range from informal policy statements announced in a press release to authoritative rules that bind the agency in the future and are issued only after the agency has given the public

an opportunity to be heard on the subject

Legislative rules are like statutes enacted by a legislature Agencies can promulgate legislative rules only if the legislature has given them this authority

Employees of the Internal Revenue Service process tax returns using informal procedures that make their jobs easier and less time-consuming If a taxpayer objects to a decision made in this way, he or she may initiate more formal review procedures.

AP IMAGES

The Administrative Procedure Act sets up the procedures to be followed for administra-tive rule making Before adopting a rule, a federal agency generally must publish advance notice in the FEDERAL REGISTER, the govern-ment’s daily publication for federal agencies

Most states have similar publication require-ments This practice gives those who have an interest in, or are affected by, a proposed rule the opportunity to participate in the decision making by submitting written data or by offering views or arguments orally or in writing Before a rule is adopted in its final form, and 30 days before its effective date, the agency must publish it in the Federal Register

Formally adopted rules are published in the Code of Federal Regulations, a set of paperback books that the government publishes each year so that rules are readily available to the public

Adjudication The procedures that admin-istrative agencies use to adjudicate individual claims or cases are diverse Like trials, these hearings resolve disputed questions of fact, determining policy in a specific factual sett-ing and ordersett-ing compliance with laws and regulations Although often not as formal as courtroom trials, administrative hearings are extremely important Far more hearings are held before agencies every year than are trials

in courts Adjudicative hearings concern a variety of subjects, such as individual claims for worker’s compensation, welfare, or Social Security benefits, in addition to multimillion-dollar disputes about whether business mergers will violate antitrust rulings These proceedings may be called hearings, adjudications, or adju-dicatory proceedings Their final disposition

is called an administrative order

Many administrative proceedings appear to

be just like courtroom trials Most are open

to the public and are conducted in an orderly and dignified manner Typically, a proceeding begins with a complaint filed by the agency, much as a civil trial begins with a complaint prepared by the PLAINTIFF After the RESPONDENT

answers, each side may conduct discovery of the other’s evidence and prehearing confer-ences AHEARING EXAMINER, sometimes called an administrative law judge (ALJ), presides over the hearing, giving rulings in response to a party’s applications for a particular type of relief The agency presents its evidence, usually

through counsel, either by a written report or

in the question-and-answer style of a trial, and then the respondent offers his or her case

WITNESSES may be called and cross-examined The examiner gives a decision, usually with written findings and a written opinion, shortly after the hearing

The Executive Branch of the federal govern-ment employs federal ALJs When Congress originally enacted the APA, it addressed con-cerns about the relationship between ALJs and their respective agencies by providing indepen-dence to the ALJ The U.S Office of Personnel Management (OPM) makes most of the deci-sions regarding the tenure and compensation of ALJs, and ALJs are exempted from many of the performance reviews that apply to other CIVIL SERVICE employees An agency may remove an ALJ only for cause and after a hearing conducted

by theMERIT SYSTEMS PROTECTION BOARD Because administrative hearings do not use juries, an ALJ makes both factual determina-tions and legal decisions based upon the evidence presented and the law governing the dispute The specific duties of an ALJ in an individual agency depend upon the powers delegated to the agency in the respective

ENABLING STATUTE and procedural regulations promulgated by the agency For instance, the Office of Inspector General is empowered to impose civil penalties against a person who makes false statements or representations with respect to Social Security benefits Under regulations promulgated by the Social Security Administration (20 C.F.R § 498.204[2009]), the ALJ may make a number of decisions regarding the submission of evidence or the examination of witnesses; rule on motions and other procedural matters; and render a SUMMARY JUDGMENTwhere appropriate However, the ALJ may not rule

as invalid a federal statutory or regulatory provision, enjoin agency officials, or review discretionary acts by the inspector general

An ALJ’s decision is often subject to review

by a board or commission of the entire agency before parties may appeal the decision to a federal court For example, labor disputes governed by the National Labor Relations Act are first heard by ALJs of the National Labor Relations Board (NLRB) The ALJ’s decision may be appealed to the five members of the NLRB for review Only after review by the NLRB, upon which it renders a decision and

issues an opinion, may a party appeal the

decision to a U.S court of appeals

Unlike a trial, an administrative hearing has

no jury The hearing examiner, or

administra-tive law judge, is usually an expert in the field

involved and is likely to be more concerned

with overall policies than with the particular

merits of one party’s case The Administrative

Procedure Act affords parties who appear in

administrative hearings involving federal

agen-cies the right to notice of the issues and

proceedings, theRIGHT TO COUNSEL, and the right

to confront and cross-examine witnesses

Judicial Review of Agency Actions

When individuals believe that they have been

the victim of administrative error or

wrongdo-ing and seek to have the actions of the

responsible agency reviewed in a court of law,

the reviewing court is faced with two principal

issues: (1) the court must determine whether it

has a right to review the agency action, and (2)

if the court does, the court must determine the

scope of that court’s review

The Right to Have a Court Review an Agency’s

Decision Whether someone has the right to ask

a court to review the action taken by an agency

depends on the answers to several questions

The first question is whether the person

bringing the action has standing (i.e., the LEGAL

RIGHT) to bring the suit Section 702 of the

Administrative Procedure Act allows court

review for any person who is adversely affected

or aggrieved by agency action within the

meaning of a relevant statute When the U.S

Supreme Court reviewed section 702 in

Associa-tion of Data Processing Service OrganizaAssocia-tions v

Camp, 397 U.S 150, 90 S Ct 827, 25 L Ed 2d

184 (1970), the Court said that for the plaintiff to

have standing to seek judicial review of

adminis-trative action, two questions must be answered

affirmatively: (1) Has the complainant alleged an

“injury in fact”?; and (2) Is the interest that the

complainant seeks to protect “arguably within

the zone of interests to be protected or regulated

by the statute or constitutional guarantee in

question”?

Even though an agency’s decision is

review-able and the plaintiff has standing to litigate, the

plaintiff still may be unable to obtain judicial

review if he or she has brought the action at the

wrong time The aggrieved person must exhaust

all other avenues of relief before the dispute is

ripe for judicial determination The doctrines

of EXHAUSTION OF REMEDIES and RIPENESS require

a person who deals with an agency to follow patiently all of the available steps within the agency’s procedures before resorting to court action These rules are essential to prevent overloading the courts with questions that might not even be disputes by the time the agencies determine what their final orders or rulings will be

The Scope of a Court’s Review If anAGGRIEVED PARTY can convince a court that he or she has standing, that all available administrative reme-dies have been exhausted, and that the case is ripe for judicial review, the court will hear the case, but the scope of its review is limited The law seeks to give agencies enough freedom of action to do their work, while ensuring that individual rights will be protected The Admin-istrative Procedure Act provides that courts may not second-guess agencies when the agencies are exercising discretion that has been granted to them by statute A court is generally limited to asking whether the agency went outside the authority granted to it; whether it followed proper procedures in reaching its decision; and whether the decision is so clearly wrong that it must beSET ASIDE The court also may set aside

an agency decision that is clearly wrong

The court usually will accept the agency’s findings of fact, but it is free to determine how the law will be applied to those facts It will look at the whole record of the administrative proceeding and will take into account the agency’s expertise in the matter The court will not upset agency decisions for harmless errors that do not change the outcome of the case If the question at issue has been committed to agency discretion, the court may consider whether the agency has exercised its discretion If the agency has not done so, then the court may order the agency to look at the situation and make a decision The Administrative Procedure Act allows courts to OVERRULEan agency action that is found to be “arbitrary, capricious, an

ABUSE OF DISCRETION, or otherwise not in accor-dance with law.”

FURTHER READINGS Aman, Alfred C., and William Mayton 2001 Administrative Law 2d ed St Paul, Minn.: West Group

Beerman, Jack M 2006 Administrative Law New York:

Aspen.

Lubbers, Jeffrey S., ed 2003 Developments in Administrative Law and Regulatory Practice (annual) Chicago, Ill.:

Section of Administrative Law and Regulatory Practice, American Bar Association.

Mezines, Basil J., Jacob A Stein, and Jules Gruff 2009.

Administrative Law New York: Matthew Bender & Co.

Rosenbloom, David H 1997 Public Administration and Law.

2d ed New York: M Dekker.

Weaver, Russell L., and William D Araiza 2006 Adminis-trative Law St Paul, Minn.: Thomson/West.

CROSS REFERENCES Administrative Conference of the United States; Adminis-trative Discretion; Federal Budget; Veto; See also entries for specific federal agencies (e.g., Food and Drug Administration).

ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS

The Administrative Office of the United States Courts is the administrative headquarters of the federal court system It was created by congres-sional act on August 7, 1939 (28 U.S.C.A § 601), and since November 6, 1939, it has tended to the nonjudicial business of the U.S courts The Administrative Office helps Congress monitor the state of affairs within the federal judiciary

The Administrative Office arranges clerical and administrative support to federal district courts and their subdivisions, and it provides for the various benefits available to the federal judiciary

Furthermore, by gathering and analyzing statis-tics and data and reporting the findings to Congress and the JUDICIAL CONFERENCE OF THE UNITED STATES, the Administrative Office plays an important part in determining the extent and character of the very support it provides

The Director

The director of the Administrative Office is the administrative officer of all the federal courts except the Supreme Court The Judicial Confer-ence of the United States—the federal agency charged with overseeing federal judicial matters—

supervises and guides the director’s work The director and the deputy director are appointed by theSUPREME COURT OF THE UNITED STATES

The director is required to perform a variety

of tasks First and foremost, the director must supervise all administrative matters relating to the offices of clerks and other clerical and administrative personnel of the federal courts

These administrative matters can range from performance policies and pay scales to guide-lines on clerical procedures

The director is charged with providing many reports to various governmental bodies With the aid of the deputy director and the Audit Office and other operatives, the director must examine court dockets, determine the needs of the various courts, and report the results four times per year

to the chief judges of the circuits These reports allow the federal courts to analyze and plan for their own clerical and administrative costs This information is also used when the director prepares and submits to Congress the budget of the federal courts

The director must submit a report of the Administrative Office to the annual meeting of the Judicial Conference of the United States At least two weeks before the conference, the director prepares an overview of the activities

of the Administrative Office and the state of the business of the courts, together with certain statistical data submitted to the chief judges of the circuits This report also contains the director’s recommendations on administrative efficiency The director submits the report, data, and recommendations to Congress and makes all these materials available to the public The director is responsible for many finan-cial matters of the federal courts The director must fix the compensation of employees of the courts whose compensation is not otherwise fixed by law, regulate and pay annuities to the surviving spouses and dependent children of judges, disburse monies appropriated for the maintenance and operation of the federal courts, examine accounts of court officers, regulate travel of judicial personnel, and provide accommodations and supplies for the courts and their clerical and administrative personnel The director must also establish and main-tain programs for the certification and utiliza-tion of court interpreters and the provision of special interpretation services in the courts Other duties may be assigned to the director by the Supreme Court or the Judicial Conference

of the United States

As of 2009, a total of seven individuals have served as director of the Administrative Office James C Duff took over the position in 2006 from Leonidas Ralph Meachum after the latter had served as director for 21 years

Probation Officers

The Probation Division of the Administrative Office supervises the accounts and practices of

the federal probation offices However, primary

control of probation practices and procedures is

left to the district courts served by the probation

offices The Probation Division establishes

pre-trial services in the federal district courts

according to the Pretrial Services Act of 1982

(18 U.S.C.A § 3152) The pretrial service offices

report to their respective courts with information

on the pretrial release of persons charged with

federal offenses These offices also supervise

criminal defendants released to their custody

With the Bureau of Prisons of the

DEPART-MENT OF JUSTICE, the Administrative Office

publishes the magazine Federal Probation The

magazine, issued four times per year, is a journal

“of correctional philosophy and practice.”

Bankruptcy Act

The Administrative Office has special

responsi-bility for BANKRUPTCY courts The Bankruptcy

Amendments and Federal Judgeship Act of 1984

(28 U.S.C.A § 152) established bankruptcy

judges as distinct units of the federal district

courts Under the Bankruptcy Amendments

Act, all cases under Title 11 of the United States

Code and all proceedings related to federal

statute 28 U.S.C.A § 1334 are to be brought

before federal district courts Such a case arises

when a person seeks to discharge his or her

debts through judicial proceedings When a suit

is filed under Title 11, the federal district court

will refer the case to its bankruptcy judges, as

authorized by 28 U.S.C.A § 157

Bankruptcy judges are appointed by the

federal courts of appeals and serve a 14-year

term as judicial officers of the district courts

The number of bankruptcy judges is controlled

by Congress, but the bankruptcy courts are

overseen by the Administrative Office

The director of the Administrative Office

has specific duties related to the bankruptcy

courts The director must make

recommenda-tions to the Judicial Conference on logistical

concerns such as the geographic placement of

bankruptcy courts The director must consider

whether additional bankruptcy judges should be

recommended to Congress; the director is also

in charge of determining the staff needs of

bankruptcy judges and clerks

Federal Magistrates

Under the Federal Magistrates Act as amended

in 1979 (28 U.S.C.A § 631), the director of the

Administrative Office must answer to Congress and the Judicial Conference on the affairs of federal magistrates Federal magistrates are appointed by federal district court judges, and their job is to reduce each case to its essence before it reaches the district courts Federal proceedings are expensive; by ruling on pretrial motions and issuing various orders at the pretrial stage, federal magistrates help preserve judicial resources

Federal magistrates do not have the full range of judicial powers available to other federal judges For example, they cannot preside over FELONY trials Federal magistrates may conduct civil or MISDEMEANOR criminal trials, but they normally conduct pretrial proceedings

in both criminal and civil cases Owing to their special function, federal magistrates operate separately from the district courts and maintain

a separate budget

With the guidance of the Judicial Confer-ence, the director supervises the administrative matters of federal magistrates through the Magistrate Division of the Administrative Of-fice The director prepares legal and adminis-trative manuals for the use of the magistrates In addition, the Administrative Office must con-duct surveys of the federal judiciary to ask questions on court conditions With these surveys, the director makes recommendations

as to the number, location, and salaries of magistrates The expansion of magistrate offices depends significantly on the availability of funds appropriated by Congress

The director of the Administrative Office compiles and evaluates information on the magistrate offices and reports the findings to the Judicial Conference The director must also report to Congress every year on the general affairs of federal magistrates

Federal Defenders

The Administrative Office also assists and oversees the offices of federal public defenders

Under the Criminal Justice Act (18 U.S.C.A § 3006A [1964]), the federal district courts are required to appoint counsel to criminal defen-dants who are unable to afford adequate representation The act also authorizes the district courts to establish federalPUBLIC DEFENDER

and federal community defender organizations

Establishing these organizations can be done in districts where at least 200 persons annually