Administrative Law - Terri L. Carver

• Publication year: 1999

SURVEY ARTICLES

Administrative Lawby Terri L. Carver^*

I. Introduction

In 1998 the Eleventh Circuit Court of Appeals decided a handful of cases dealing with administrative law issues. One of the cases concerned the suspension of an Immigration and Naturalization Service ("INS") deportation order.¹ The Eleventh Circuit upheld the INS Board of Immigration Appeals in denying plaintiffs the opportunity to apply for suspension of deportation.² The court found that plaintiffs failed to make a prima facie case for suspension of deportation and abused the immigration rules in delaying their stay in the United States.³

The court decided three cases involving exhaustion of administrative remedies as a prerequisite for judicial review. In the first case, the court ruled that plaintiff failed to timely object to a utility company's investment request during the Securities and Exchange Commission's ("SEC") administrative process,⁴ as required by the Public Utility Holding Company Act.⁵ Plaintiff was barred from raising this issue on appeal because it was not raised during the administrative process.⁶

The two remaining cases concerned recent congressional enactments designed to reduce frivolous litigation by prisoners and those challenging INS deportation proceedings. The Prison Litigation Reform Act of 1995 ("PLRA")⁷ and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA")⁸ require exhaustion of administrative remedies prior to judicial review. In the PLRA case, a prisoner alleged that prison restrictions on sexually explicit material violated the First Amendment.⁹ The Eleventh Circuit ruled that plaintiff's Bivens¹⁰ section 1983 lawsuit was barred by the mandatory exhaustion of administrative remedies provision in the PLRA.¹¹ The court also held the mandatory administrative exhaustion requirement negated the judicially created futility and adequacy exceptions (allowing judicial review despite a failure to exhaust administrative remedies).¹²

In the IIRIRA case, the court strictly applied the statutory provision authorizing judicial review only upon a final agency decision and after exhaustion of administrative remedies.¹³ The case concerned a deportee with a criminal conviction, triggering the most limited judicial review provisions under the IIRIRA.¹⁴

II. Agency Standard of Review for Motion to Remand to Seek Suspension of Deportation

In Saiyid v. Immigration & Naturalization Service,¹⁵ the Eleventh Circuit reviewed a final INS deportation order for plaintiffs, Mr. and

Mrs. Saiyid, who were illegal immigrants from Bangladesh.¹⁶ Plaintiffs first appealed the deportation order to the INS Board of Immigration Appeals ("BIA").¹⁷ During their appeal to the BIA, plaintiffs became eligible to apply for suspension of deportation because they had been in the United States for more than seven years.¹⁸ Under the immigration law, suspension of a deportation order is authorized only if "extreme hardship" would result from deportation.¹⁹

The BIA denied plaintiffs' motion to remand because plaintiffs failed to make a prima facie case of extreme hardship.²⁰ Plaintiffs appealed the BIA ruling on their motion to remand and cited numerous other

91 errors.

On appeal, the Eleventh Circuit limited its discussion to the appropriateness of the prima facie standard with regard to plaintiffs' motion to remand to pursue suspension.²² The Eleventh Circuit discussed the prima facie standard as a "screening mechanism"²³ to ensure "that claims for suspension of deportation are not simply attempts to buy more time in the United States."²⁴ The court agreed with the BIA that a prima facie standard was the correct standard to apply to plaintiffs' motion to remand to pursue a suspension claim.²⁵

The court also addressed plaintiffs' petition requesting a remand to the BIA to present additional evidence in support of suspension.²⁶ Plaintiffs cited Mrs. Saiyid's breast cancer and Mr. Saiyid's deteriorating health associated with old age.²⁷ The court denied plaintiffs' petition for remand.²⁸ The court criticized the Saiyids for their abuse of the immigration laws, beginning in 1989 when they filed a "highly dubious"²⁹ application for asylum, and followed by a "series of meritless appeals."³⁰ Under these circumstances, the court would not allow plaintiffs to use illnesses associated with old age as a basis for suspension of the deportation order.³¹

III. Exhaustion of Administrative Remedies

The case of Campaign for a Prosperous Georgia v. Securities & Exchange Commission³² involved a challenge to the SEC's approval of Southern Company's investment in another utility company.³³ The Public Utility Holding Company Act ("PUHCA")³⁴ requires utility companies to obtain SEC approval for investments in Exempt Wholesale Generators ("EWGs")³⁵ or Foreign Utility Companies³⁶ ("FUCOs").³⁷ Under PUHCA, the SEC must approve the utility investment or acquisition in EWGs or FUCOs unless the proposed investment or acquisition would have a "substantial adverse impact"³⁸ on the applicant-utility's operations.³⁹

Southern Company, a utility holding company, sought SEC approval of its plan to invest 100% of its retained earnings in EWGs and FUCOs.⁴⁰ Southern Company's application did not identify the specific

EWGs or FUCOs in which it planned to invest.⁴¹ The SEC sought public comment on Southern Company's application.⁴² In November 1995 the Campaign for a Prosperous Georgia ("CPG") submitted comments in opposition to Southern Company's application.⁴³ In its comments, the CPG did not object to Southern Company's failure to identify the specific EWG or FUCO investments in its SEC application. Also, at this stage in the process, the CPG did not assert that the SEC had a duty to review Southern Company's specific investments in EWGs or FUCOs.⁴⁴

In April 1996 the SEC approved Southern Company's application.⁴⁵ The CPG filed a motion for rehearing before the SEC in May 1996, but merely repeated the same arguments made during the public comment period.⁴⁶ The SEC denied the CPG's motion for rehearing.⁴⁷ Later in 1996, Southern Company announced its intention to invest 100% of its earnings in Consolidated Electric Power of Asia, a FUCO.⁴⁸ In October 1996 the CPG filed a supplemental motion for rehearing before the SEC and, for the first time, objected to the SEC's failure to conduct a review of Southern Company's specific investments.⁴⁹ The SEC denied the CPG's supplemental motion for rehearing, and the CPG appealed.⁵⁰

The court framed the issue as follows: "[Whether] the SEC should have considered each of Southern's EWG and FUCO investments on an individual basis instead of determining in advance that Southern could invest in any EWGs and FUCOs it chose."⁵¹ The SEC argued the court did not have jurisdiction under section 24 of the PUHCA, the judicial review provision.

Section 24 provides that "'[n]o objection to the order of the Commission shall be considered by [a Court of Appeals] unless such objection shall have been urged before the Commission or unless there were reasonable grounds for failure so to do.'"⁵³ The court found section 24 was ambiguous as to when an objection must be made in the administrative process to preserve judicial review.⁵⁴ The court looked to congressional intent behind section 24.⁵⁵ "The manifest congressional intent . . . [wa]s to give the SEC a meaningful opportunity to rule on, make factfindings about, and apply its expertise to, any objections parties may have to a proposed administrative action."⁵⁶

The court rejected CPG's argument that section 24 only required an objection or issue "be raised before the SEC at some point, at any point, in the administrative process."⁵⁷ The court held that CPG's arguments, made six months after the SEC's approval and more than a year after the public comment period, did not meet the requirements of section 24 ⁵⁸ " Given the realities of the administrative process, in order for the SEC's opportunity to consider the objections to be meaningful, the objections must be made while the SEC has the application under consideration."⁵⁹ The court found no reasonable grounds for the delay because the CPG could have made its "individual review" arguments during the public comment period.⁶⁰

In Alexander v. Hawk,⁶¹ a federal prisoner challenged Federal Bureau of Prisons ("BOP") regulations restricting possession of sexually explicit materials.⁶² The Prison Litigation Reform Act of 1995 ("PLRA")⁶³ directs prisons to restrict the delivery of sexually explicit materials to prisoners, a rule the BOP implemented in its regulations.⁶⁴ Alleging a violation of his First Amendment rights, plaintiff bypassed the prison grievance process and filed a Bivens section 1983 lawsuit in district court.⁶⁵ Plaintiff sought...