Congress specifies otherwise, federal agencies have some discretion under these procedural rules.
1.4.3 Adjudication
Judging noncompliance and imposing penalties for violation of regulations may also be a part of an agency’s responsibility (if so authorized by statute). Agency adjudication is an agency hearing, somewhat similar to a judicial proceeding, but typically conducted before an agency official acting in the capacity of an administrative law judge (or hearing referee). Agency adjudication is less formal than most judicial proceedings. An adjudicatory hearing deals with specific parties and facts; it establishes what happened and prescribes what is to be done, including determining penalties. For example, a state agriculture department might conduct an adjudication proceeding in which it first establishes the facts as to whether a food establishment violated applicable sanitation standards and then whether revocation of the establishment’s license is warranted.
Thus, an administrative agency can serve as the lawmaker, the prosecutor, and the judge, all rolled into one. This does not necessarily violate the principle of separation of powers. The rationale is that administrative agencies have narrow areas of technical expertise, they are controlled by numerous procedural requirements, and these decisions always may be appealed to the court system. Due process and the APA specify that agencies, when engaged in adjudication, must provide a person notice of the case against him or her, and a meaningful opportunity to present their case. In some cases, the determination must be made by trial‐type proceeding.35
While court challenges of agency adjudications are not uncommon, it should be noted that those challenges are usually based on procedural, rather than substantive grounds. The courts are enormously deferential to an agency’s expertise, and are unlikely to interfere with the substantive decisions made by an agency.36 Procedural challenges are much more likely to be successful, and also provide greater advantage for negotiated settlements or delays in the implementation of the agency’s decision. For example, a grocery store may challenge an agency’s decision to revoke their license due to insanitary conditions. However, the challenge is far less likely to be successful on the basis that the agency was incorrect in its professional judgment that the store was insanitary (a substantive challenge), as opposed to the challenge that the agency failed to consider all pertinent evidence in the record because it failed to properly notify the establishment (procedural challenges). A court is far less likely to overturn the agency’s decision on the seriousness of the insanitation than to find there was a procedural deficiency.
1.4.4 Judicial Review
Administrative agency activity must also be consistent with the Constitution and relevant statutes. Judicial review of administrative agency activity oversees this consistency. Standards for judicial review of agency actions are outlined in the APA, which defines the basis and scope of judicial intervention and review. Generally, the courts will not consider whether an agency acted wisely, but only whether the agency acted as follows:
Stayed within its constitutional and statutory authority.
Properly interpreted the applicable law.
Conducted a fair proceeding.
Avoided arbitrary or capricious action.
Reached a decision supported by substantial evidence in the record.
However, the Supreme Court has also ruled that the courts are to review agency decisions with a searching and careful inquiry to determine “whether the decision was based on consideration of the relevant factors and whether there has been a clear error of judgment.”37 This “Hard Look” doctrine leaves reviewing courts with considerable latitude for overseeing the actions of administrative agencies.
1.4.5 Federal Advisory Committee Act (FACA)
FACA requires that certain kinds of groups whose advice is relied upon by the government be chartered as advisory committees. Advisory committees must be constituted to provide balance and to avoid a conflict of interest. Committee meetings must also be held in public with an opportunity for comment from those outside the committee.
As science‐based programs, the food‐regulation agencies often rely on committees for scientific advice. Therefore, affected parties may find it important to have a say in the deliberations and recommendations of these advisory committees. For example, USDA and HHS select members for the Dietary Guidelines Advisory Committee, which issues the nation’s nutritional and dietary guidelines. These recommendations are the foundation for the nutritional standards in all federal food assistance programs, including school lunches and food stamps, and are used in developing the food guides and nutritional classes. Various groups have contested the makeup of the committee for lack of balance and for conflicts of interest. Because food companies are regular sponsors for educational activities of nutrition professional associations as well as nutrition research, finding nutrition academics without some connection to the food industry is difficult.38
NOTES AND QUESTIONS
1 1.2 FACA. Why would the composition of the various advisory committees be so important that Congress would write a law requiring balance?
2 1.3 Conflicts of interest. What type of conflicts of interest might arise in the composition of the Dietary Guidelines Advisory Committee?
3 1.4 Advisory Committees. The FDA relies on expert advisory committees heavily for therapeutic products approvals. To a lesser extent, they are used for food. FD&C Act § 721(b)(5)(D) & (D) mandates an advisory committee for color additives, but that is an exception and most advisory committees are established at FDA’s discretion.
1.4.6 Freedom of Information Act (FOIA)
A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power knowledge gives.
James Madison
Federal executive branch agencies are required under the FOIA to disclose most records requested in writing by any person. Agencies may withhold information under nine exemptions and three exclusions in the statute.
FOIA litigation is a complex area of law with thousands of court decisions interpreting the act. However, this should not intimidate you from understanding the fundamentals of the law or from making a request yourself. More information on FOIA is found in Chapter 20 infra.
1.4.7 Constitutional Limitations on Agency Power
Police power, specifically the power of state governments to regulate for the health and welfare of the people, has been upheld to be quite broad in reach and impact. Generally, these laws will be upheld if they are at all rational attempts to protect and promote the public’s health, safety, or general welfare. The courts will not review whether the laws are the best option or even whether they are “good” laws, but merely whether they avoid being arbitrary or capricious.
State
