Meet Me in the Middle: The Search for the Appropriate Standard of Review for the APA's Good Cause Exception

Author:Kelli M. Golinghorst
Position:J.D. Candidate, The University of Iowa College of Law, 2018; B.A., Political Science and Economics, Luther College, 2014
Pages:1277-1300
1277
Meet Me in the Middle:
The Search for the Appropriate Standard
of Review for the APA’s Good Cause
Exception
Kelli M. Golinghorst *
ABSTRACT: Section 553 of the Administrative Procedure Act (“APA”)
governs informal agency rulemaking and requires agencies to proceed through
what is known as “notice-and-comment” rulemaking. The good cause
exception to these proceedings allows agencies to bypass notice-and-comment
rulemaking and immediately promulgate a rule if the agency has good cause
to do so. The appropriate standard of review for an agency’s use of the good
cause exception is ambiguous. Some courts review the action de novo, while
others apply a lesser, more deferential “arbitrary and capricious” standard.
This Note advocates that the appropriate standard of review is yet a third
standard that strikes a middle ground between de novo review and deferential
review. In doing so, this Note examines the inadequacies of applying either
standard on their own in order to highlight the strength of a mixed or blended
standard. This standard satisfies the purpose of the APA and would serve as
a clear guide to agencies for future use of the good cause exception.
I.INTRODUCTION ........................................................................... 1278
II. BACKGROUND ............................................................................. 1280
A.THE ADMINISTRATIVE PROCEDURE ACT ................................. 1280
B.MEANT TO BE BROKEN: RULEMAKING UNDER THE APA AND
THE GOOD CAUSE EXCEPTION ................................................ 1282
C.THE EXCEPTION IN ACTION: SORNA AND THE GOOD CAUSE
EXCEPTION ........................................................................... 1285
D.A TALE OF TWO STANDARDS OF REVIEW ................................. 1287
III.NO GOOD STANDARD FOR THE GOOD CAUSE EXCEPTION ......... 1289
*
J.D. Candidate, The University of Iowa College of Law, 2018; B.A., Political Science and
Economics, Luther College, 2014. I would like to thank my family, fiancé and the members of
the Iowa Law Review for their hard work during the editing process.
1278 IOWA LAW REVIEW [Vol. 103:1277
A.THE COMMON FACTS ............................................................ 1290
B.DE NOVO REVIEW .................................................................. 1291
C.“ARBITRARY AND CAPRICIOUS REVIEW .................................. 1294
IV. THE BEST STANDARD OF REVIEW FOR AGENCY USE OF THE
GOOD CAUSE EXCEPTION ........................................................... 1297
A.STRIKING A MIDDLE GROUND ................................................ 1297
B.SERVING THE PURPOSE OF THE APA ....................................... 1299
C.GUIDING AGENCIES FUTURE USE OF THE GOOD CAUSE
EXCEPTION ........................................................................... 1299
V.CONCLUSION .............................................................................. 1300
I. INTRODUCTION
In response to the ever-growing network of federal administrative
agencies in the United States, Congress passed the Administrative Procedure
Act (“APA”) in 1946.1 The Act was meant to govern the agency functions of
rulemaking, adjudication, and licensing. Most importantly, the Act provided
for agency accountability by requiring agencies to notify the public of
proposed rules and to allow the public to participate in the rulem aking
process.2 Today, more than 70 years after the passage of the Act, the network
of federal administrative agencies has grown significantly.3 There are
“2,840,000 federal workers in 15 departments, 69 agencies and 383
nonmilitary sub-agencies.”4 As a result of such growth, many scholars worry
that the rise of a fourth branch challenges America’s constitutionally
1. Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified at 5
U.S.C. §§ 551–59 (2012)).
2. See U.S. DEPT OF JUSTICE, ATTORNEY GENERALS MANUAL ON THE ADMINISTRATIVE
PROCEDURE ACT 6 (1947) (noting that soon after the passage of the APA in 1946, government
agencies began calling on the Department of Justice for guidance and “advice on the meaning of
the various provisions of the Act,” the Manual being a culmination of the work stemming from
those requests); see also Robert S. Shwarts, Delineation in the Exceptions to the Notice and Comment
Provisions of the Administrative Procedure Act, 57 GEO. WASH. L. REV. 1069, 1072 n.25 (1989) (“The
Manual was prepared primarily as a guide for the agencies themselves but was made available to
the general public due to heavy demand (undoubtedly due to the lack of legislative history).”).
3. Jonathan Turley, The Rise of the Fourth Branch of Government, WASH. POST: OPINIONS (May 24,
2013), https://www.washi ngtonpost.com/opin ions/the-rise-of -the-fourth-bran ch-of-government/
2013/05/24/c7faaad0-c2ed-11e2-9fe2-6ee52d0eb7c1_story.html (“For much of our nation’s history,
the federal government was quite small. In 1790, it had just 1,000 nonmilitary workers. In 1962, there
were 2,515,000 federal employees. Today, we have 2,840,000 federal workers . . . .”); see also Jared
Meyer, How to Fight the Fourth Branch of Government, FORBES: OPINION (July 12, 2016, 8:31 AM), http://
www.forbes.com/sites/jaredmeyer/2016/07/12/how-to-fight-the-fourth-branch-of-government/#65
373e7363eb (“Today’s administrative state is truly an unaccountable fourth branch of government,
with control over how regulations are issued, enforced, and litigated.”).
4. Turley, supra note 3.

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