The Administrative Procedure Act in
Juvenile Corrections

Federal and State administrative procedure statutes can serve as a means to raise safe and lawful conditions of confinement issues for detained and incarcerated youth. The Federal Administrative Procedure Act (APA) and corresponding State administrative procedure statutes set out the process that agencies must adhere to both when making broad policy decisions (rulemaking) and when applying those policies to individual circumstances (adjudicating). Administrative procedure statutes regulate executive agency behavior through the rulemaking and adjudication processes. Executive agencies include agencies involved with administering detention and correctional facilities, among other juvenile justice services. These administrative procedure statutes can be effective tools to address unjust procedures within facilities for juveniles.

The breadth of administrative procedure statutes allows parties affected by the procedures of an institution to intervene when an institution makes rules or adjudicates. Juvenile justice institutions are replete with instances of rulemaking and adjudication. Each disciplinary code, behavioral regulation, and process for determining privileges and violations is a rule. The application of each of these rules to an individual's particular circumstances is an adjudication. Therefore, in some instances, administrative procedure statutes may allow for substantial oversight of institutional activities in States where statutes have been enacted.

About two-thirds of the States have implemented administrative procedure statutes to govern State agency conduct. More than half of the States consulted and followed the Model State Administrative Procedure Act (Model State APA) when constructing their statutes. The other States modeled their statutes after the Federal APA. Since the Model State APA and the Federal APA differ, advocates must examine the specific provisions of their State statutes carefully.

Distinction Between Rulemaking and Adjudication

Notwithstanding the specific differences in each State's statutes, all statutes distinguish between rulemaking and adjudication procedures because these have different effects upon the rights of individuals.100 To satisfy due process concerns, an action determined to be rulemaking must allow for public participation in the formulation of the rule. Alternatively, an action determined to be an adjudication entitles an individual to some level of hearing.

Public participation in rulemaking helps to keep the political process of making rules in check. In a juvenile correctional facility, for example, there may be a desire to implement a specific mental health plan. Implementing a mental health plan is a broad policy decision because factors such as budget, space, personnel, and the number of youth are general to the entire facility population. The creation of this plan would be considered rulemaking. The required public participation in the process of creating the mental health plan will protect the residents' rights.

Applying the mental health plan to an individual resident, however, is an adjudication. If the mental health plan, for example, requires that any youth who attempts suicide be placed in isolation, then the application of that rule to an individual compels some level of hearing. The level of hearings varies from formal to informal and depends on the applicable administrative procedure statute, constitutional due process, and facility regulations and practices.

When applying administrative procedure statutes to juvenile correctional systems, it is important to determine whether the agency is acting in its rulemaking or adjudicatory capacity. The distinction between the two is based on the nature of the decision facing the agency. Actions pursuant to generalized facts do not require an individual hearing and can be taken according to procedures applicable to rulemaking. Actions pursuant to individualized facts require some level of hearing and are classified as an adjudication. The classification of the action as rulemaking or adjudication provides the basis for what procedures the agency must follow.


Under the Federal APA, rules are defined as "the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy. . . ."101 Rulemaking is defined as the "agency process for formulating, amending, or repealing a rule."102 An agency action pursuant to common or generalized facts and applicable to a group of persons is termed "rulemaking" and must be carried out in accordance with statutory regulations. All agencies subject to the authority of an APA must follow its specific rulemaking procedures.103

In theory, these procedures allow advocates to intervene in the rulemaking process before the rules become effective. For example, a juvenile justice agency may want to implement a rule that it will not allow youth, family members, or attorneys to participate in the placement decision. The agency wants to allow only a social worker's report on the youth, a treatment team summary, and a written statement by the youth to be considered. The agency may only implement the proposed rule following proper procedures. The agency must provide proper notice, allow for comment by all interested parties, consider all points of view, issue a concise general statement about the basis and purpose of the rule, and publish it at least 30 days in advance. Thus, during the notice and comment period, advocates can provide arguments and documentation demonstrating that both the facility and the youth would be better served by a rule that allowed for full participation by the youth and others in the placement decision process. Through this effort, advocates can stop the implementation of proposed rules or at least gather support to have them publicized or modified before they are enacted.

Under both the Federal APA and the Model State APA, basic rulemaking procedures include:

 Publishing notice of the proposed rule in the Federal Register104 under the Federal APA or a State publication under the Model State APA. The notice must contain:
 Statement of time, place, and nature of public rulemaking procedures.
 Reference to the legal authority under which the rule is proposed.
 Either the terms or the substance of the proposed rule or a description of the subjects and issues involved.105
 The agency must give interested persons the opportunity to participate in the rulemaking through the submission of data, views, arguments, and positions, with or without the opportunity for oral presentation.106 (Although this does not assure oral participation, a statute or regulation may guarantee a right to oral participation.)
 All relevant matters must be considered.
 The agency shall promulgate rules with a concise general statement of their basis and purpose.107
 The rule must then be published at least 30 days before it becomes effective.108

Rulemaking Differences Between the Model State APA and the Federal APA. The 1981 Model State APA differs somewhat from the Federal APA. One significant difference is the way in which each defines a rule. Under the Federal APA, a rule can have "general or particular applicability." The 1981 Model State APA requires that a rule have only "general applicability."109 Therefore, under the 1981 Model State APA, an action applicable to a group, but affecting only an individual, would be an adjudication and would require a hearing. The same action, however, would be considered rulemaking under the Federal APA and would only require adequate public participation in the process. For example, a rule that affects all residents with learning disabilities where only one resident has a learning disability would entitle that resident to a hearing under the Model State APA. Under the Federal APA, the action would still be considered rulemaking and the resident would be entitled to intervene only as permitted through the rulemaking process.

Another difference that exists between the Model State APA and the Federal APA is the amount of alteration permitted between the proposed rule and the adopted rule. Under the 1981 Model State APA, the adopted rule may not be "substantially different" from the proposed rule.110 Under the Federal APA, as long as the adopted rule is a "logical outgrowth" of the proposed rule, the adopted rule has been properly promulgated.111 The Model State APA allows for less alteration of a rule during the rulemaking process than the Federal APA. However, the basic procedures for rulemaking under the Model State APA and the Federal APA remain fundamentally similar and provide advocates with an opportunity to intervene in the rulemaking process within agencies that run juvenile detention and correctional facilities.112


The application of rules to an individual's particular circumstances results in the issuance of orders. The process for issuing an order is an adjudication.113 An order is defined under the Federal APA as "the whole or part of a final disposition, whether affirmative, negative, injunctive, or declaratory, in form, of an agency in a matter other than rulemaking but including licensing."114

Adjudications require some level of hearing ranging from formal proceedings to informal proceedings. These hearings may even be held before an administrative law judge. Formal hearings afford an individual certain rights, which may include the right to have counsel present, the right to cross-examine witnesses, the right to present evidence, and the right to a record of the proceedings. Informal proceedings may merely provide the opportunity to be heard and the right to a written explanation of the factfinder's decision. The formality of a hearing depends upon the requirements of the due process clause of the Constitution, or a statute, or an agency's regulations or practice. Hearings, however, are not automatic, and unless the affected individual asserts the right to a hearing, the right may be waived.

If an individual's constitutionally protected property or liberty interest will be affected by the adjudication, then the formality of the hearing depends on a due process analysis. This analysis balances the individual's property or liberty interest against the State's interest in restricting that property or liberty interest. The type of hearing required depends on the three factors outlined by the Supreme Court in Matthews v. Eldridge:115

  1. The nature of the private interest affected.

  2. The risk to that interest posed by the challenged procedure and the likelihood that a different procedure would better protect that interest.

  3. The burden upon the government in imposing a different procedure.

This balancing test yields the appropriate level of protection that should be afforded an individual before a property or liberty interest may be infringed upon in an adjudication.

In one case, for example, an administrator wanted to transfer an incarcerated juvenile from a juvenile correctional facility to a mental hospital. Because this is an action applicable to an individual, it is an adjudication and requires some level of hearing. Treatment and social consequences in admission to a hospital are much different than in placement in a juvenile facility, and the transfer would therefore affect the juvenile's liberty interest. The Matthews v. Eldridge balancing test was applied to determine the appropriate level of hearing. The liberty interest of the juvenile and the risk imposed on that interest were weighed against the government's interest in the transfer. It was determined that a formal trial-type hearing needed to be held before the transfer could be made because admission to a mental institution posed a substantial risk to the liberty interests of the juvenile.116

If an individual's statutory rights will be affected by an adjudication, the type of hearing will depend on the statute and APA in question. The Model State APA requires a formal hearing in every case of adjudication, whether or not a statute expressly requires it.117 The formal hearing protection of the Model State APA applies to every adjudication.

The Federal APA takes a different approach to determining the level of hearing necessary. The protection of the Federal APA applies "in every case of adjudication required by statute to be determined on the record after opportunity for agency hearing."118 This means that the Federal APA's formal protections apply to hearings required to be on the record by a statute. A statute merely requiring a hearing, or one that does not speak to the matter, does not trigger the Federal APA requirement of a formal hearing.119

When a statute does not call for a hearing on the record, it is termed an "informal adjudication" (informal hearings only occur under the Federal APA). The Federal APA requires very few procedural protections for informal adjudications. It does provide for the right to appear personally before an agency and to be represented by counsel.120 It provides that subpoenas and reports be enforced only as authorized by law.121 It also provides that the agency must give prompt notice and explanation of its decision.122 Without these protections, agencies have substantial discretion over how to structure informal adjudications.

Jurisdictions that follow the Federal APA have fewer formal hearings than those that follow the Model State APA.123 This significant difference can be easily illustrated. After a youth threatened a staff member at an institution, the administration placed her in administrative segregation. The applicable administrative procedure statute called for a hearing before she could be segregated. The resident and staff were questioned and the administrator found that the resident had made the threats, but no formal hearing was conducted. Under the Model State APA, the resident was entitled to a hearing that met formal procedures because every adjudication requires a formal hearing.124 Because the institution did not conduct a formal hearing and was in a Model State APA jurisdiction, the resident had to be released from segregation, and a formal hearing had to be held. Under the Federal APA, however, the resident did not have a right to a more formal hearing because the statute did not call for a hearing on the record. The agency's regulations or past practices could also have required more substantial protections under the Federal APA.

Agency regulations or past practices can trigger formal protections similar to those of the APA's. If an agency regulation provides certain procedural formalities for a hearing, the agency is bound to follow those formalities in the case of every adjudication. An agency cannot arbitrarily choose which protections to provide for hearings if its own regulations call for specific procedures. Also, if an agency has established certain procedures for particular hearings, that agency may be bound to apply those procedures to every similar hearing. An agency may be required, based on established practice, to apply certain procedures and formalities to particular hearings.

Suppose a delinquent committed to an agency is eligible for release. Because problems exist between the youth and superintendent, the superintendent wants to deny the request. Neither due process nor the applicable administrative procedure statute requires a hearing for the juvenile. The agency regulation, however, requires that a youth's treatment team and social worker issue reports taking a position on release. If the reports favor the release, a formal hearing is required before the youth can be denied release. An advocate may request the release reports from the treatment team and social worker. If the reports favor release, the youth must be released or a formal hearing must be held. The agency is bound to follow its own regulations, and the superintendent cannot circumvent these regulations in individual cases.

In juvenile corrections, decisions are often made at the discretion of an administrator or staff member. If a staff member was required to follow specific procedures but failed to do so, although his or her discretionary decision cannot be challenged, the procedures for reaching the decision may be challenged. Suppose a staff member decides to punish a youth by requiring her to clean the unit's bathroom for a week. If the disciplinary code requires a hearing before any punishment greater than a reprimand may be imposed, the administrative procedure statute can be used to invalidate the staff member's discretionary decision because the action was an adjudication without a hearing. In this way, the statute limits the discretion that individual juvenile corrections staff members may exercise. Of course, after a hearing, the youth may be ordered to clean the bathroom. Yet that juvenile will have had the protections of a hearing, such as notice of the alleged violations and an opportunity to respond, before the increased sanction is imposed.

Using the Administrative Procedure Acts To Improve Conditions of Confinement

APA's can play a significant role in juvenile corrections reform because they govern the actions of the agencies charged with the administration of juvenile detention and correctional facilities, unless excepted by a specific statute. When these agencies promulgate rules, issue orders, implement programs, or deliver services, they must follow the procedures outlined in the State administrative procedure statutes. These procedures are intended to limit the discretion of the agency and provide for a fair use of the agency's power.

The State statutes can be used by juvenile advocates in a variety of different ways. The statutes suggest that an agency provide a youth with a hearing when the agency makes decisions about that particular youth. Although a hearing may be provided for by statute, it must be demanded or an agency may deem it waived and then make important decisions without any input from the youth. The State statutes also provide procedural protections for hearings. This prevents the agency from arbitrarily deciding the procedures to apply at a hearing.

If an advocate observes unlawful or inhumane conditions of confinement and wants to use an APA to improve the care of juveniles adjudicated delinquent, the first step is to track down the applicable Federal or Model State APA and study it carefully. Then an action or lack of action by the juvenile justice agency that could be challenged must be identified. Next, the advocate must decide whether the action is rulemaking (broadly applicable based on generalized facts) or adjudication (applicable to an individual and based on facts particular to that individual).

Agencies often violate APA procedures by making decisions internally or by not fully adhering to the requirements set forth in the APA. When that occurs, these decisions can sometimes be challenged. It is important to remember that APA's govern the process of formulating and enforcing policy rather than the substance of those decisions. Nevertheless, these regulations can have input in the formulation of the policies in a juvenile institution and ensure that the policies are correctly applied to the residents.

From the perspective of a juvenile advocate using APA's, the focus should be on the promulgation of rules and the application of those rules to individuals through the issuance of orders. It is in these two areas that advocates can most likely participate in or challenge agency action.


Federal and State APA's can be an effective tool for addressing unjust procedures within juvenile correction facilities. Advocates can use APA's to participate in the regulatory process and address unlawful conditions of confinement for incarcerated youth. Under the breadth of APA's, any party negatively affected by an institution's procedures may be able to challenge them through the rulemaking or adjudicatory process.

The Model State APA and the Federal APA are effective models that should be consulted for APA construction, but advocates need to be aware of the differences. For example, jurisdictions that follow the Federal APA may have fewer formal hearings than those that follow the Model State APA. Readers are urged to closely examine their State statutes for differences that will affect the rights of individuals when hazardous conditions are observed.

Checklist for the Rulemaking Process
If an agency is acting pursuant to generalized facts and is following a procedure implemented as a rule:
Check Closely examine your State statutes and the agency regulations.

Check Determine whether the agency has followed applicable rulemaking procedures in adopting the rule. The basic rulemaking procedures under both the Model State APA and the Federal APA include:
Check Appropriate published notice of the proposed rule.
Check Opportunity for interested parties to comment and participate in the rulemaking process.
Check Consideration of relevant material before promulgating the rule.
Check Publication of the rule at least 30 days before it becomes effective.
Check Determine whether statutes provide more procedural protection.
Check Participate in the rulemaking procedure if the opportunity becomes available. This can be accomplished individually or by joining forces with attorneys or advocacy groups. An agency is required to assess all relevant information it receives during the process, and the submission of data can have an effect on the final rule.
Check Consider the validity of the final rule if it is substantially different from the proposed rule and therefore invalid under the Model State APA.

Checklist for the Adjudicatory Process
If the agency is following a procedure implemented as an adjudication:
Check Closely examine your State statutes and the agency regulations.
Check Consider the level of hearing necessary by determining whether it is required by due process, a statute, or an agency regulation or past practice.
Check If a hearing is required by due process rights, then weigh the juvenile's liberty interest against the government's interest in restricting that liberty interest by applying the three factors outlined in Matthews v. Eldridge:
Check The nature of the interest affected.
Check The risk the government action poses to the interest and the likelihood that a different action would better protect that interest.
Check The burden on the government in imposing a different action.
Check If a hearing is required by an administrative procedure statute, then determine whether it calls for formal hearings only in on-the-record proceedings (following the Federal APA) or whether it always requires formal hearing procedures (following the Model State APA). Whether a hearing is formal or informal, become familiar with the hearing procedures that are required by the statute.
Check If neither due process nor a statute apply, investigate agency regulations and past practices that may require a formal hearing and procedures.
Check Examine each way a hearing is invoked -- due process, an administrative procedure statute, or agency regulation -- to determine if additional protections are available.
Check Monitor the agency to see if it is following the required procedures. Read the applicable administrative procedure statute again at each step to ensure that the juvenile is provided with all available procedural protection.

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