Agency Discretion

What is Discretion?

• Discretion is the power to make a choice among different actions or alternatives.• Agency discretion is necessary because laws may

not be detailed or specific enough to apply to an individual action.• Agencies use discretion primarily for informal

agency processes such as• Processing claims• Informal hearings• Negotiations

What are dangers of agency discretion?

• If there is too much discretion, an agency may become arbitrary and dictatorial• If there is too little discretion, an agency may

become ineffective in in the daily decision-making.

Safeguards against agency discretion• Constitutional protections • Individual’s basic right to due process, fairness, and

search warrants

• Statutes • Enabling act that specified the agency’s mission that is

limited to expertise.

• Politics • Political pressure from politician that want to ensure

reelection.

Informal Actions

• How does discretion affect informal agency decisions?• The agency’s adaptation to chronological, societal, and

technological changes in areas delegated to the agency in the enabling statute; and• The agency’s choice of which process to use to adapt

to these changes that may become problems needing agency solutions.

Administrative Agency and Discretion

A complaint is filed

Accept complaint Agency Response Options Reject complaint

What are the facts? Are the facts documented?

Formal Actions

• Are agencies required to create written reports of formal proceedings?• This is part of agency discretion, especially if there is

not a statute to require such a procedure. Decisions made by agency heads.• Uniform Administrative Procedures Act – requires

administrative law judges to write a recommendation for a final decision

Past Practice and Discretion

• Repeated decision-making creates past practice, which allows for predictability and regularity in similar future cases.• Adhering to past practices also avoids

duplication of time and effort.• Past practices also is a basis for creating of

agency standards and rules.

Past Practice and Discretion

• On the other hand, discretion allows agencies to conform to acceptable conduct today that may not have been considered acceptable previously• If an agency decides not to adhere to past

practices, its decision should be reasonable and based on a rational process. • If not, the discretionary power will be

questioned and brought into court actions and placed under scrutiny, which equals increased judicial review.

Greater Boston Television Corp. v. FCC, 444 F2d 841 (D.C. Cir. 1970)• Deals with a change in agency procedures. • FCC established new procedures for license

renewals from individual approach to a comparative approach• Court upheld the agency’s power of discretion.

An agency’s view of what is in the public interest may change, either with or without a change in circumstances. Agency discretion should be reasonable and based on a rational process, if not it can by place under scrutiny of judicial review.

Abuse of Discretionary Power

• If an agency has abused its discretionary power, its action are reviewable.• Each agency should have an appeals process to rectify

concerns.• Pursuant to the Administrative Procedures Act (APA), 5

USC §557(c)(1)(2) and (3):• (c) Before a … decisions on agency review of the decision… the

parties are entitled to a reasonable opportunity to submit for consideration…

(1) proposed findings and conclusions; or(2) exceptions to the decisions…(3) supporting reasons for the exceptions or proposed

findings or conclusions.

Abuse of Discretionary Power

• Once the agency appeal process has been exhausted, an individual may file a petition with the appropriate court.

• Action should depict• What was the abuse?• What law are you citing?

What Constitutes Abuse?

• The APA (at §706) states:To the extent necessary to a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall –

(2) hold unlawful and set aside agency actions, findings, and conclusions found to be –

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

What Constitutes Abuse?

• Courts review abuse in accordance with the Constitution, statutes, and cases.• The court may decide to either:• Remand (send back) to the agency• Substitute its own decision in place of the agency

decision

Appeals within an Agency

• When an individual makes an appeal or request for review within an agency, different agency personnel than the one who rejected the claim will review the action. • Claims are usually heard by an administrative law

judge (ALJ)• The ALJ will do one of two things:• Review the evidence and give a decision• Set up a hearing, possible request additional evidence.

At this point the claimant may appeal to the courts.

Court Review

• After a claimant has exhausted all processes of review within the agency, the claimant may seek judicial review, which is court examination of the agency decision• Agency rules or statutes will govern judicial

jurisdiction• If a petition for court is accepted, the court will

review the record of the case, the evidence presented to the agency, and the reasons for the agency decision.

Court Review

• Issues not raised during agency decision may not be raised at trial. Any new evidence will be sent to the agency for review. • When the court decision is made, the court often

remands the decision to the agency to implement the court recommendations.

Cases Uphold Discretion

• Citizens to Preserve Overton Park, Inc. v. Volpe • Court looked to whether the Secretary acted outside

of his scope of authority and whether his actions followed the necessary procedural requirements• Case was remanded back to District Court to make

these determinations.

• Heckler v. Chaney• Whether agency’s decision not to act subject to

judicial review• Ct held decision is not subject to judicial review under

the APA

Next Week – September 29, 2011

• Read Chapter 4• Pay close attention to cases!!!• Review TN Sunshine Law