Agency Discretion

1. Agency Discretion

2. 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

3. What are dangers of agencydiscretion?
• 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.

4. 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.

5. 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.

6. AdministrativeAgency and Discretion
A complaint is filed
Accept complaint
Agency Response
Options
Reject complaint
What are the facts? Are the facts documented?

7. 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

8. 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.

9. 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.

10. 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.

11. 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.

12. 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?

13. 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;

14. 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

15. 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.

16. 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.

17. 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.

18. 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

19. Next Week – September 29, 2011
• Read Chapter 4
• Pay close attention to cases!!!
• Review TN Sunshine Law