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. DEP’T OF JUSTICE, ATTORNEY GENERAL’S 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.