Administrative Law - Susan Wells Drechsel

• Publication year: 1996

SURVEY ARTICLES

Administrative Lawby Susan Wells Drechsel*

I. Introduction

The Eleventh Circuit Court of Appeals addressed a broad range of administrative law issues during 1995. In a case of first impression for the Eleventh Circuit,¹ the court held that a criminal defendant's time spent in halfway and safe houses cannot be credited against the defendant's sentence.² In reaching this conclusion, the court deferred to a "program statement" issued without notice and comment by the United States Department of Justice's Bureau of Prisons.³ The court also discussed, but did not decide, the first impression issue for the circuit of the proper scope of judicial review in an appeal of a criminal conviction for violation of an Endangered Species Act regulation.⁴ In this case, the court applied the same scope of judicial review that would be applied in a proceeding for direct review of the rule, and upheld the defendant's conviction for the unlawful sale of Alabama red-bellied turtles.⁵

The court continued its trend of deferring to an agency's factfinding and statutory interpretation,⁶ including its emphasis on deferring to an agency's resolution of perceived policy issues.⁷ However, the court did reverse an agency's decision that applied a statutory requirement non-uniformly to the same type of Medicare provider.⁸

The court issued three opinions addressing the scope of federal court jurisdiction in administrative law matters. The court declined, on Article III grounds, to review a Federal Communications Commission ("FCC") decision to preempt state and federal court jurisdiction over "lowest unit charge" complaints.⁹ The court also held that a prisoner must exhaust his or her administrative remedies at the Bureau of Prisons before a court can consider a Bivens claim for both injunctive and monetary relief.¹⁰ In addition, the court held that the time limitation for judicial review of a regulation issued under the Manufactured Housing Act was triggered by the date that the challenged rule was published in the Federal Register.¹¹

Finally, the court addressed the adequacy of an agency's consultation with an advisory council where the statute requires consultation "to the extent feasible."¹² In deciding whether additional consultation was required after issuance of the proposed rule and before issuance of the final rule, the court applied the "logical outgrowth" standard usually used to determine when a proposed rule must be reissued for notice and comment.¹³

II. Jurisdiction to Review Agency Action

A. Application of Article Ill's "Case or Controversy" Requirement to Judicial Review of Agency Decisions

In Miller v. Federal Communications Commission,¹⁴ the court considered a challenge by several candidates for public office to a declaratory ruling by the FCC. In that ruling, the agency stated that all complaints against broadcasters for failing to offer political candidates the "lowest unit charge" for advertisements during the final weeks of a campaign must be lodged with the Federal Communications Commission.¹⁵ The FCC initiated the declaratory ruling proceeding on its own motion, after observing "inconsistent decisions in state and federal court litigation brought by candidates alleging overcharging by broadcast stations."¹⁶

The Eleventh Circuit dismissed the candidates' petition for judicial review after finding that the issue presented in the petition "constitutes a hypothetical question rather than an actual case or controversy."¹⁷ The court first characterized the FCC's declaratory ruling as a mere interpretive rule:

The Commission's declaratory ruling ... is not a regulation promulgated pursuant to section 315(d) [of the Communications Act]. Unlike the regulations found at 47 C.F.R.. . ., the ruling does not define relevant statutory terms, dictate the use of certain industry practices, or prescribe appropriate methods for calculating the lowest unit charge. Furthermore, the declaratory ruling is not an adjudication of a pending case involving a dispute between a candidate and a broadcast station licensee. It is not a decision, a letter of admonition, or an order levying a penalty of forfeiture, a loss of operating authority, or a refund to the candidate. Because it is axiomatic that Congress has not delegated, and could not delegate, the power to any agency to oust state courts and federal district courts of subject matter jurisdiction, the FCC's declaratory ruling amounts to an agency opinion—a pronouncement interpreting the Communications Act to the effect that Congress has impliedly abolished state and federal court jurisdiction over lowest unit charge violations.¹⁸

Then, noting that the case or controversy requirement of Article III¹⁹ "appl[ies] with the same stringency in the administrative law context,"²⁰ the court concluded that "[fjederal courts simply are not permitted to render advisory opinions regarding agency pronouncements."²¹

B. Exhaustion of Administrative Remedies

In Irwin v. Hawk,²² issued per curiam, the court affirmed the district court's dismissal of a federal prisoner's civil rights claim under Bivens,²³ based on the prisoner's failure to pursue his administrative remedies at the Federal Bureau of Prisons.²⁴ Because exhaustion was required by Bureau regulations, and not explicitly by statute, the court reviewed the district court's dismissal under an "abuse of discretion" standard.²⁵

In upholding the district court's dismissal for failure to exhaust, the court focused principally on distinguishing the plaintiff's claim from that presented in McCarthy v. Madigan.²⁶ In McCarthy, the United States Supreme Court held that a federal prisoner who initiates a Bivens action solely for money damages need not exhaust the Bureau of Prisons grievance procedure.²⁷ In contrast, emphasized the Eleventh Circuit, Mr. Irwin sought both injunctive and monetary relief.²⁸ Thus, stated the court, "the grievance procedure probably would be capable of producing the type of corrective action desired."²⁹

The court also rejected the prisoner's "general and conclusory allegation" that exhaustion of his remedies at the Bureau of Prisons would be futile because of "the bias of the administrative process."³⁰ The court found that the Bureau of Prisons' three-level administrative review process "provides inherent insulation against potential bias and prejudice arising at the institutional level."³¹ In addition, the court noted that even though administrative denial of the prisoner's requests for relief was the likeliest outcome, "in denying relief the Bureau may give a statement of its reasons that is helpful to the district court in considering the merits of the claim."³² Thus, exhaustion would not be a futile exercise.

C. Trigger for Time Limitation on Filing Petition for Review: Date of Order or Date of Publication in Federal Register?

In Florida Manufactured Housing Ass'n v. Cisneros,³³ discussed more fully below in Section III of this article, the court considered whether the time limitation for filing a petition for review of a rulemaking order by the Department of Housing and Urban Development ("HUD") was triggered by the date on the order itself or by the date of the order's publication in the Federal Register.³⁴ The applicable statute in this case was the Manufactured Housing Act, which requires filing of a petition for judicial review "prior to the sixtieth day after such order is issued."³⁵

The court rejected the agency's argument that the term "issued" refers to the date on which the rulemaking order was dated, rather than when it was published in the Federal Register.³⁶ First, the court declined to defer to HUD's interpretation of this provision of the Manufactured Housing Act, emphasizing that the agency had interpreted the term "issued" differently in the same rulemaking proceeding.³⁷ Second, the court stated, "HUD's latest interpretation contravenes the plain meaning of the term 'issued.' The verb 'issue' clearly refers to an act of public pronouncement and not to the act of arriving at a private decision within the agency."³⁸ Third, HUD's interpretation of "issued" would give the agency "the power to manipulate the jurisdiction of the federal courts."³⁹ Finally, "[a]s a matter of fairness," said the court, "the sixty-day filing period should not begin to run until the public has notice of the final rule's content."⁴⁰

III. Judicial Review of Agency Action

A. Review of an Agency's Regulation in a Criminal Proceeding

In United States v. Guthrie,⁴¹ an appeal of a criminal conviction, the court considered a challenge to the United States Fish and Wildlife Service's listing of the Alabama red-bellied turtle as an endangered species.⁴² The defendant had entered a plea of guilty in 1991 to charges of violating the Endangered Species Act.⁴³ The defendant's plea was conditioned upon his right to appeal several issues, including the validity of the Fish and Wildlife Service's decision in 1987 to list the Alabama red-bellied turtle as an endangered species.⁴⁴ The defendant claimed that the Alabama red-bellied turtle is not an endangered species as defined by the statute, because the turtle is a hybrid and not a pure species.⁴⁵ In the proceedings before the district court, the defendant sought permission to test the DNA of the turtles that were the subject of his conviction, citing studies which allegedly demonstrated that the Alabama red-bellied turtle was not a pure species.⁴⁶ The district court denied these motions.⁴⁷

The court addressed three issues in its review of the Fish and Wildlife Service's action: (1) the scope of judicial review in a collateral challenge to an agency's regulation; (2) the scope of the record in the collateral review; and (3) whether the Fish and Wildlife Service's listing of the Alabama red-bellied turtle as an endangered species was arbitrary and capricious.⁴⁸

On the first issue—the scope of judicial review in a collateral challenge to an agency's action—the court noted...