PETITION FOR RULEMAKING TO PROMULGATE REGULATIONS PROHIBITING THE ISSUANCE, RELIANCE ON OR DEFENSE OF IMPROPER AGENCY GUIDANCE SUBMITTED TO THE UNITED STATES DEPARTMENT OF EDUCATION
JULY 31, 2018
Secretary of Education
U.S. Department of Education
Lyndon Baines Johnson Building
400 Maryland Avenue, S.W.
Washington, DC 20202
Robert S. Eitel,
Senior Counsel to the Secretary
U.S. Department of Education
400 Maryland Avenue, S.W.
Washington, DC 20202
Office of the General Counsel
U.S. Department of Education
Lyndon Baines Johnson Building
400 Maryland Avenue, S.W.
Washington, DC 20202
Elizabeth A.M. McFadden
Deputy General Counsel
Ethics, Regulatory & Legislative Services
Office of the General Counsel
U.S. Department of Education
Lyndon Baines Johnson Building
400 Maryland Avenue, S.W.
Washington, DC 20202
Assistant General Counsel
Regulatory Services Division
Office of the General Counsel
U.S. Department of Education
Lyndon Baines Johnson Building
400 Maryland Avenue, S.W.
Washington, DC 20202
I. Statement of the Petitioner
Pursuant to the Administrative Procedure Act (APA), 5 U.S.C. § 553(e), the New Civil
Liberties Alliance (NCLA) hereby petitions the Department of Education (hereinafter
“Department”) to initiate a rulemaking proceeding to promulgate regulations prohibiting any
Department component from issuing, relying on, or defending improper agency guidance. This
rule would formalize and make more permanent policies and best practices from other agencies
concerning any agency guidance that improperly attempts to create rights or obligations binding
on persons or entities outside the Department. As hereby proposed, it also would provide
affected parties with a means of redress for improper agency action.
II. Summary of the Petition
Even though both the Constitution and the Administrative Procedure Act prohibit the
practice, federal agencies often engage in the “commonplace and dangerous” acts of issuing
informal interpretations, advice, statements of policy, and other forms of “guidance” that “make
law simply by declaring their views about what the public should do.” Philip Hamburger, Is
Administrative Law Unlawful? 114, 260 (2014). This practice evades legal requirements, and
often is “used for the purpose of coercing persons or entities outside the federal government into
taking any action or refraining from taking any action beyond what is required by the terms of
the applicable statute or regulation.” Ibid. And despite being prohibited by law, improper
guidance is typically “immuniz[ed]” from judicial review by procedural limits. Appalachian
Power Co. v. Envtl. Prot. Agency, 208 F.3d 1015, 1020 (D.C. Cir. 2000). This conduct results in
a form of illegal and unconstitutional “extortion” where agencies obtain compliance through
“extralegal lawmaking.” Hamburger, supra, at 115, 260.
To rein in these abuses, NCLA proposes that the Department issue a formal rule
prohibiting the Department or any of its offices from issuing, relying on, or defending the
validity of improper guidance that has been issued by any federal entity. The proposed rule not
only adopts existing legal limitations on such improper agency action, but, critically, also creates
a permanent and binding set of limits on departmental practice. The proposed rule also sets out a
means to enforce these limitations by empowering regulated parties to petition the Department to
rescind improper guidance and to seek judicial review of improper agency actions.
III. Statement of Interest
The New Civil Liberties Alliance is a nonprofit civil rights organization founded to
defend constitutional rights through original litigation, amicus curiae briefs, and other means.
The “civil liberties” of the organization’s name include rights at least as old as the U.S.
Constitution itself, such as jury trial, due process of law, the right to live under laws made by the
nation’s elected lawmakers rather than by prosecutors or bureaucrats, and the right to be tried in
front of an impartial and independent judge whenever the government brings cases against
NCLA defends civil liberties by asserting constitutional constraints on the administrative
state. Although Americans still enjoy the shell of their Republic, there has developed within it a
very different sort of government—a type, in fact, that the Constitution was framed to prevent.
This unconstitutional administrative state within the Constitution’s United States violates more
rights of more Americans than any other aspect of American law, and it is therefore the focus of
Even where NCLA has not yet brought a suit to challenge an agency’s unconstitutional
exercise of administrative power, it encourages agencies themselves to curb the unlawful
exercise of such power by respecting constitutional limits on administrative rulemaking,
guidance, adjudication, and enforcement. The courts are not the only government bodies with the
duty to attend to the law. Even more immediately, agencies and agency heads have a duty to
follow the law, not least by avoiding unlawful modes of governance. NCLA therefore advises
that all agencies and agency heads must examine whether their modes of rulemaking, guidance,
adjudication, and enforcement comply with the APA and with the Constitution.
NCLA is thus an “interested” party concerning the proposed rule set out in this
document. See 5 U.S.C. § 553(e).
IV. Legal Authority to Promulgate the Rule
This petition for rulemaking is submitted pursuant to 5 U.S.C. § 553(e), which provides
any “interested person the right to petition [an agency] for the issuance … of a rule.”
The Secretary, “is authorized to make, promulgate, issue, rescind, and amend rules and
regulations governing the manner of operation of … the Department.” 20 U.S.C. § 1221e-3.
Further, the “Secretary is authorized to prescribe such rules and regulations as the Secretary
determines necessary or appropriate to administer and manage the functions of the Secretary or
the Department.” 20 U.S.C. § 3474.
When an agency engages in rulemaking procedures it must abide by the requirements set
out in 5 U.S.C. § 553.
V. Reasons for Creating the Rule
A. Legal Background
No agency has any inherent power to make law. Article I, § 1 of the U.S. Constitution
vests “[a]ll legislative powers” in the Congress, and “the lawmaking function belongs to
Congress … and may not be conveyed to another branch or entity.” Loving v. United States, 517
U.S. 748, 758 (1996). This is a constitutional barrier to an exercise of legislative power by an
agency. Further, “an agency literally has no power to act … unless and until Congress confers
power upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). Thus, even if an
agency could constitutionally exercise legislative power, it cannot purport to bind anyone
without congressional authorization.
And, instead of conferring such power, Congress has categorically prohibited the
issuance of binding guidance. The Administrative Procedure Act (APA) was passed in 1946 in
order “to introduce greater uniformity of procedure and standardization of administrative
practice among the diverse agencies whose customs had departed widely from each other.” Wong
Yang Sung v. McGrath, 339 U.S. 33, 41, modified on other grounds by 339 U.S. 908 (1950). As
a result, it sets out a comprehensive set of rules governing administrative action. Ibid.
Consistent with this design, the APA established a process by which agencies could
engage in “rule making.” 5 U.S.C. § 553. The APA explains that a “rule” “means the whole or a
part of an agency statement of general or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy or describing the organization, procedure, or
practice requirements of an agency.” 5 U.S.C. § 551(4).
Rules, on the whole, may be promulgated by agencies only following notice-andcomment
procedures. First, an agency must post a “general notice” of the proposed rulemaking
in a prominent place and seek commentary from private parties. 5 U.S.C. § 553(b). This notice
must set out “the time, place and nature” of the proposed “public rule making proceedings,” “the
legal authority under which the rule is proposed,” and “either the terms or substance of the
proposed rule or a description of the subjects and issues involved.” Id. at §§ 553(b)(1)-(3).
After the notice has been set out, the agency must “give interested persons an opportunity
to participate in the rule making through submission of written data, views, or arguments.” Id. at
§ 553(c). “An agency must consider and respond to significant comments received during the
period for public comment.” Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015). In
response to submitted comments, a “general statement” of the purpose of the rules must also be
“incorporate[d] in the rules adopted.” 5 U.S.C. § 553(c).
The APA’s notice-and-comment period “does not apply … to interpretive rules, general
statements of policy, or rules of agency organization procedure, or practice.” Id. at § 553(b).
Instead, this requirement applies only to “substantive rules,” which are sometimes referred to as
“legislative rules.” Mendoza v. Perez, 754 F.3d 1002, 1021 (D.C. Cir. 2014); see also 5 U.S.C.
§ 553(d) (distinguishing between “substantive” and “interpretive” rules for publication and
A “substantive” or “legislative” rule is any “agency action that purports to impose legally
binding obligations or prohibitions on regulated parties.” Nat’l Mining Ass’n v. McCarthy, 758
F.3d 243, 251 (D.C. Cir. 2014). Stated differently: “A rule is legislative if it supplements a
statute, adopts a new position inconsistent with existing regulations, or otherwise effects a
substantive change in existing law or policy.” Mendoza, 754 F.3d at 1021. Such “legislative
rules” have the “force and effect of law.” Chrysler Corp. v. Brown, 441 U.S. 281, 302-03 (1979).
Legislative rules are also accorded deference from courts. United States v. Mead Corp., 533 U.S.
218, 230 (2001).
In contrast, “interpretive rules” are not subject to notice-and-comment requirements.
Mendoza, 754 F.3d at 1021. Interpretative rules “do not have the force and effect of law and are
not accorded that weight in the adjudicatory process.” Shalala v. Guernsey Mem’l Hosp., 514
U.S. 87, 99 (1995).
An interpretative rule is any “agency action that merely interprets a prior statute or
regulation, and does not itself purport to impose new obligations or prohibitions or requirements
on regulated parties.” Nat’l Mining Ass’n, 758 F.3d at 252. “[I]nterpretive rules … are issued by
an agency to advise the public of the agency’s construction of the statutes and rules which it
administers.” Perez, 135 S. Ct. at 1204 (internal citation and quotation marks omitted). Such a
rule simply “describes the agency’s view of the meaning of an existing statute or regulation.”
Batterton v. Marshall, 648 F.2d 694, 702 n. 34 (D.C. Cir. 1980).
Aside from merely being a technical requirement under the APA, the notice-andcomment
process serves important purposes. As the Supreme Court has explained, “Congress
contemplates administrative action with the effect of law when it provides for a relatively formal
administrative procedure tending to foster the fairness and deliberation that should underlie a
pronouncement of such force.” Mead Corp., 533 U.S. at 230. “APA notice and comment” is one
such formal procedure, “designed to assure due deliberation.” Id. (quoting Smiley v. Citibank
(South Dakota) N.A., 517 U.S. 735, 741 (1996)).
Informal interpretations, such as policy statements, agency manuals, enforcement
guidelines and opinion letters “lack the force of law” and warrant, at best, only limited “respect”
from courts concerning matters of interpretation. Christensen v. Harris County, 529 U.S. 576,
587 (2000). Further, to the extent that a court grants any “respect” to these interpretations, the
strength of such respect varies widely depending on the degree of formality employed by the
agency. See Mead Corp., 533 U.S. at 228 (discussing the deference owed to agency decisions). It
depends in many instances on an agency’s use of “notice-and-comment rulemaking or formal
adjudication.” Id. at 228-30 (internal citation and quotation marks omitted). A court gives the
least amount of respect to “agency practice [that lacks] any indication [the agency] set out with a
lawmaking pretense in mind” when it acted. Id. at 233.
Despite the relatively straightforward legal distinction, it is not always easy for courts or
regulators to draw practical distinctions between “legislative” and “interpretive” rules. Because
each agency action is unique, determining whether a given agency action is a legislative rule or
interpretive rule “is an extraordinarily case-specific endeavor.” Am. Hosp. Ass’n v. Bowen, 834
F.2d 1037, 1045 (D.C. Cir. 1987).
Perhaps because of this difficulty, or perhaps for more nefarious reasons, agencies
continue to promulgate legislative rules under the guise of being mere guidance, without
following the notice-and-comment requirements of the APA. Accordingly, courts have often
struck down such rules. See, e.g., Mendoza, 754 F.3d at 1025 (vacating guidance documents as
legislative rules that failed to comply with APA notice-and-comment requirements); Elec.
Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 8 (D.C. Cir. 2011) (same); Hemp
Indus. Ass’n v. Drug Enforcement Admin., 333 F.3d 1082, 1091 (9th Cir. 2003) (same); Nat’l
Family Planning & Reprod. Health Ass’n, Inc. v. Sullivan, 979 F.2d 227, 231 (D.C. Cir. 1992)
(same). This has included rules issued by the Department of Education. See, e.g., Texas v. United
States, 201 F. Supp. 3d 810, 825 (N.D. Tex. 2016) (vacating Department “guidance” as improper
final rule), appeal dismissed, by 2017 WL 7000562 (5th Cir. Mar. 3, 2017).
But the prevalence of court invalidation of improper guidance vastly understates the
problem, as “extralegal” agency action “usually occurs out of view.” Hamburger, supra, at 260.
“To escape even the notice-and-comment requirement for lawmaking interpretation, agencies
increasingly make law simply by declaring their views about what the public should do.” Id. at
114. Such improper guidance statements are often deliberate “evasions” of legal requirements,
and “an end run around [an agency’s] other modes of lawmaking.” Ibid. (internal citation and
quotation marks omitted). In many instances, an agency’s “guidance” is actually a means of
“extralegal lawmaking.” Id. at 115.
Agencies have strong incentives to resort to this kind of extralegal lawmaking. The
“absence of a notice-and-comment obligation makes the process of issuing interpretive rules
comparatively easier for agencies than issuing legislative rules.” Perez, 135 S. Ct. at 1204. An
agency operating in this fashion can issue rules “quickly and inexpensively without following
any statutorily prescribed procedures.” Appalachian Power Co., 208 F.3d at 1020. But, this
results in a scenario where “[l]aw is made, without notice and comment, without public
participation, and without publication in the Federal Register or the Code of Federal
More troubling, “[w]hen agencies want to impose restrictions they cannot openly adopt
as administrative rules, and that they cannot plausibly call ‘interpretation,’ they typically place
the restrictions in guidance, advice, or other informal directives.” Hamburger, supra, at 260. This
is “a sort of extortion,” because an agency can secure compliance by “threatening” enforcement
or other regulatory action, even if the agency has no genuine authority to act in the first place. Id.
at 260-61. An agency’s informal “views about what the public should do,” almost always comes
“with the unmistakable hint that it is advisable to comply.” Id. at 114-15.
This extortion is enabled, primarily, by the unreviewability of improper guidance. Indeed,
an agency often realizes that “another advantage” to issuing guidance documents, is
“immunizing its lawmaking from judicial review.” Appalachian Power Co., 208 F.3d at 1020.
As discussed above, legislative rules will be only be invalidated for failure to conform to the
notice-and-comment process after they have been determined to be legislative in the first place.
This is neither a simple nor quick task.
Simultaneously, even invalid, binding, legislative rules may escape judicial review. The
APA typically allows review only of “final agency action.” 5 U.S.C. § 704. “[T]wo conditions
must be satisfied for agency action to be ‘final’: First, the action must mark the consummation of
the agency’s decisionmaking process. And second, the action must be one by which rights or
obligations have been determined, or from which legal consequences will flow.” Bennett v.
Spear, 520 U.S. 154, 177-78 (1997) (internal citations and quotation marks omitted).
But “an agency’s action is not necessarily final merely because it is binding.”
Appalachian Power Co., 208 F.3d at 1022. An initial or interim ruling, even one that binds,
“does not mark the consummation of agency decisionmaking” and thus might not constitute final
agency action. Soundboard Ass’n v. Fed. Trade Comm’n, 888 F.3d 1261, 1271 (D.C. Cir. 2018);
see also Ctr. for Food Safety v. Burwell, 126 F. Supp. 3d 114, 118 (D.D.C. 2015) (Contreras, J.)
(discussing binding “Interim Policy” of agency that was in effect for 17 years but evaded judicial
review as non-final action).
Aside from finality concerns, courts rarely consider the genuinely coercive effects of
guidance documents as sufficiently binding to permit review. For example, a warning letter
issued by an agency to a party, alleging a violation of a regulation, and even threatening the
initiation of enforcement action, will not establish sufficient concrete “legal consequences”
sufficient to permit review of final agency action. Holistic Candlers & Consumers Ass’n v. Food
& Drug Admin., 664 F.3d 940, 944 (D.C. Cir. 2012). Indeed, “practical consequences, such as
the threat of having to defend itself in an administrative hearing should the agency actually
decide to pursue enforcement, are insufficient to bring an agency’s conduct under [a court’s]
purview.” Indep. Equip. Dealers Ass’n v. Envtl. Prot. Agency, 372 F.3d 420, 428 (D.C. Cir.
2004) (internal citation and quotation marks omitted). Even to the extent that such action coerces
compliance from a regulated entity, and even to the extent this might result in “a dramatic impact
on the [affected] industry,” it still may not be considered final action subject to review.
Soundboard Ass’n, 888 F.3d at 1272; see also Nat’l Mining Ass’n, 758 F.3d at 253 (agency
action is not final even if a regulated entity “really has no choice when faced with 
‘recommendations’ except to fold,” and might “feel pressure to voluntarily conform their
behavior because the writing is on the wall”).
This use of guidance thus results in “commonplace and dangerous” abuses of
administrative power, and “often leaves Americans at the mercy of administrative agencies.”
Hamburger, supra, at 260, 335. “It allows agencies to exercise a profound under-the-table power,
far greater than the above-board government powers, even greater than the above-board
administrative powers, and agencies thuggishly use it to secure what they euphemistically call
‘cooperation.’” Id. at 335. This results in an “evasion” of the Constitution, and an affront to the
basic premise that laws can only be made by the Congress. Id. at 113-14; see also La. Pub. Serv.
Comm’n, 476 U.S. at 374. It is also statutorily forbidden. Mendoza, 754 F.3d at 1021. And it
often results in violations of the due process of law. Hamburger, supra, at 241, 353. But, perhaps
by design, such improper agency conduct routinely occurs without any hope of judicial
intervention. See Appalachian Power Co., 208 F.3d at 1020.
B. Responses to These Problems So Far
1. The Bulletin for Agency Good Guidance Practices
On January 18, 2007, the Office of Management and Budget for the Executive Office of
the President, addressed the ongoing problem caused by the issuance of “poorly designed or
improperly implemented” “guidance documents” from administrative entities. Office of Mgmt.
& Budget, Executive Office of the President, Final Bulletin for Agency Good Guidance
Practices, 72 Fed. Reg. 3432, 3432 (Jan. 18, 2007) (OMB Bulletin). OMB explained that many
stakeholders had ongoing “[c]oncern about whether agencies” had been improperly issuing
guidance documents that actually “establish new policy positions that the agency treats as
binding,” without following the notice-and-comment requirements of the APA. Id. at 3433. In
addition to promulgating formal rules with the effect of law, many “agencies increasingly have
relied on guidance documents to inform the public and to provide direction to their staffs.” Id. at
3432. While the bulletin characterized this practice as generally positive, it noted that many
guidance documents do “not receive the benefit of careful consideration accorded under the
procedures for regulatory development and review.” Ibid. Worse, “[b]ecause it is procedurally
easier to issue guidance documents, there also may be an incentive for regulators to issue
guidance documents in lieu of regulations.” Ibid. Some of these guidance documents also
improperly “establish new policy positions that the agency treats as binding,” despite failures to
comply with the APA’s notice-and-comment and judicial review provisions. Id. at 3433.
To combat this problem, OMB issued its Final Bulletin to help ensure that guidance
documents issued by Executive Branch departments and agencies under the OMB’s management
would not improperly issue “legally binding requirements.” Ibid.
First, the OMB Bulletin directed each agency to “develop or have written procedures for
the approval of significant guidance documents,” in order to “ensure that the issuance of
significant guidance documents is approved by appropriate senior agency officials.” Id. at 3436,
The OMB Bulletin also suggested that each significant guidance document adhere to the
a. Include the term ‘‘guidance’’ or its functional equivalent;
b. Identify the agenc(ies) or office(s) issuing the document;
c. Identify the activity to which and the persons to whom the significant guidance
d. Include the date of issuance;
e. Note if it is a revision to a previously issued guidance document and, if so,
identify the document that it replaces;
f. Provide the title of the document, and any document identification number, if one
g. Include the citation to the statutory provision or regulation (in Code of Federal
Regulations format) which it applies to or interprets; and
h. Not include mandatory language such as ‘‘shall,’’ ‘‘must,’’ ‘‘required’’ or
‘‘requirement,’’ unless the agency is using these words to describe a statutory or
regulatory requirement, or the language is addressed to agency staff and will not
foreclose agency consideration of positions advanced by affected private parties.
Id. at 3440.
Finally, the OMB Bulletin suggested that each agency establish procedures for improving
public access and feedback for significant guidance documents. Ibid. In the case of
“economically significant guidance documents,” these suggestions included following noticeand-comment
procedures in certain cases. Id. at 3438.
The OMB Bulletin was limited in two important ways. First, it only applied to the
issuance of “significant guidance documents” by Executive Branch agencies. Id. at 3432. This
was defined as a “document disseminated to regulated entities or the general public that may
reasonably be anticipated to: (i) Lead to an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State, local, or tribal governments
or communities; (ii) Create a serious inconsistency or otherwise interfere with an action taken or
planned by another agency; (iii) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients thereof; or (iv) Raise novel
legal or policy issues arising out of legal mandates[.]” Id. at 3439.
Second, the OMB Bulletin did not create any means of review or redress should agencies
choose to disregard it. Id. at 3439. Under a heading entitled “Judicial Review,” the Bulletin
provided that it was meant only “to improve the internal management of the Executive Branch
and is not intended to, and does not, create any right or benefit, substantive or procedural,
enforceable at law or in equity, against the United States, its agencies or other entities, its
officers or employees, or any other person.” Ibid.
2. Department of Justice’s Policy Memos
Following the OMB Bulletin’s lead more than a decade later, on November 16, 2017,
Attorney General Jeff Sessions issued a memorandum for all Justice Department components
entitled Prohibition on Improper Guidance Documents (Sessions Memo). This memo
immediately prohibited all Department of Justice components from issuing agency guidance
documents that “purport to create rights or obligations binding on persons or entities outside the
Executive Branch.” Id. at 1, available at https://www.justice.gov/opa/pressrelease/file/1012271/download.
The Sessions Memo explained that “the Department has in the past published guidance
documents—or similar instruments of future effect by other names, such as letters to regulated
entities—that effectively bind private parties without undergoing the rulemaking process.” Ibid.
It also explained that guidance documents might improperly “be used for the purpose of coercing
persons or entities outside the federal government into taking any action or refraining from
taking any action beyond what is required by the terms of the applicable statute or regulation.”
Ibid. This practice often evaded “notice-and-comment” rules “required by law,” and deprived the
agencies “of more complete information about a proposed rule’s effects than the agency could
ascertain on its own.” Ibid.
The new policy prohibited any agency operating within the Department of Justice from
using regulatory guidance “as a substitute for rulemaking.” Ibid. As such, guidance documents
would no longer be promulgated that either “impose new requirements on entities outside the
Executive Branch,” or “create binding standards by which the Department will determine
compliance with existing regulatory or statutory requirements.” Ibid. Future guidance documents
would only be issued to “educate regulated parties through plain-language restatements of
existing legal requirements or provide non-binding advice on technical issues through examples
or practices to guide the application or interpretation of statutes and regulations.” Ibid.
To support these goals, Attorney General Sessions set out the following five “principles”
to which all components “should adhere” “when issuing guidelines”:
 Guidance documents should identify themselves as guidance, disclaim any
force or effect of law, and avoid language suggesting that the public has obligations
that go beyond those set forth in the applicable statutes or legislative rules.
 Guidance documents should clearly state that they are not final agency actions,
have no legally binding effect on persons or entities outside the federal govern
 Guidance documents should not use mandatory language such as “shall,”
“must,” “required,” or “requirement” to direct parties outside the federal
government to take or refrain from taking action, except when restating—with
citations to statutes, regulations, or binding judicial precedent—clear mandates
contained in a statute or regulation. In all cases, guidance documents should clearly
identify the underlying law that they are explaining.
 To the extent guidance documents set out voluntary standards (e.g.,
recommended practices), they should clearly state that compliance with those
standards is voluntary and that noncompliance will not, in itself, result in any
Id. at 2.
The memo also defined “guidance documents” to include “any Department statements of
general applicability and future effect, whether styled as guidance or otherwise that are designed
to advise parties outside the federal Executive Branch about legal rights and obligations falling
within the Department’s regulatory or enforcement authority.” Ibid. Notably, this definition
excluded “internal directives [and] memoranda.” Id. at 2-3.
In accordance with this new policy, the Attorney General also directed the Justice
Department’s Regulatory Reform Task Force “to work with components to identify existing
guidance documents that should be repealed, replaced, or modified in light of these principles.”
Id. at 2.
Finally, the memo made clear that it “is an internal Department of Justice policy directed
at Department components and employees. As such, it is not intended to, does not, and may not
be relied upon to, create any rights, substantive or procedural, enforceable at law by any party in
any matter civil or criminal.” Id. at 3.
Just over a month later, the Attorney General announced that he was applying his
November memo and “rescinding 25 [guidance] documents that were unnecessary, inconsistent
with existing law, or otherwise improper.” Press Release, Attorney General Jeff Sessions
Rescinds 25 Guidance Documents, Department of Justice, Office of Public Affairs, Press Release
No. 17-1469 (Dec. 21, 2017) available at https://www.justice.gov/opa/pr/attorney-general-jeffsessions-rescinds-25-guidance-documents.
Then on July 3, 2018, the Attorney General rescinded
24 more improper guidance documents. Press Release, Attorney General Jeff Sessions Rescinds
24 Guidance Documents, Department of Justice, Office of Public Affairs, Press Release No. 18-
883 (July 3, 2018) available at https://www.justice.gov/opa/pr/attorney-general-jeff-sessionsrescinds-24-guidance-documents.
The Attorney General also said that the Department would
“continu[e] its review of existing guidance documents to repeal, replace, or modify.” Ibid.
On January 25, 2018, Associate Attorney General Rachel Brand, who was then the chair
of the Department’s Regulatory Reform Task Force, issued a memorandum entitled Limiting Use
of Agency Guidance Documents in Affirmative Civil Enforcement Cases (Brand Memo), for all
Justice Department litigators. This memo echoed the Sessions Memo’s concerns that Justice
Department agencies had previously issued “guidance documents that purport to create rights or
obligations binding on persons or entities outside the Executive Branch.” Id. at 1, available at
AAG Brand therefore directed that for all affirmative civil enforcement (ACE) cases,
“the Department may not use its enforcement authority to effectively convert agency guidance
documents into binding rules.” Id. at 2. To accomplish this goal, the Brand Memo went farther
than the Sessions Memo, and applied to “guide Department litigators in determining the legal
relevance of other agencies’ guidance documents,” including the Department of Education. Id. at
1 (emphasis added). Further, ACE litigators were also prohibited from “us[ing] noncompliance
with guidance documents as a basis for proving violations of applicable law.” Id. at 2. “That a
party fails to comply with agency guidance expanding upon statutory or regulatory requirements
does not mean that the party violated those underlying legal requirements; agency guidance
documents cannot create any additional legal obligations.” Ibid.
As with the Sessions Memo, the Brand Memo contained an elaborate disclaimer carefully
setting out that it had no binding effect on any party outside the Department of Justice. “As such,
it is not intended to, does not, and may not be relied upon to, create any rights, substantive or
procedural, enforceable at law by any party in any matter civil or criminal.” Ibid.
3. The Department of Education’s Review of Guidance
The Department has also taken preliminary steps to adopt similar policies. In 2017, the
Department convened a Regulatory Reform Task Force, led by Robert S. Eitel, Senior Counsel
to the Secretary of Education, to review agency guidance practices (among other instructions).
Robert S. Eitel, Senior Counsel to the Secretary, U.S. Dep’t of Ed., Hearing Before the Comm.
on Oversight and Governmental Reform, Subcomm. on Intergovernmental Affairs, & Subcomm.
on Healthcare, Benefits, and Administrative Rules, U.S. House of Rep., at 3 (Nov. 14, 2017),
available at https://oversight.house.gov/wp-content/uploads/2017/11/Eitel_Testimony_IGAHCBAR-Reg.-Task-Forces-II.pdf
(Eitel Testimony). As a part of that review, the Department
published a request for commentary concerning its use of guidance documents and requesting
that stakeholders identify Department guidance that should be repealed. Dep’t of Ed., Evaluation
of Existing Regulations, 82 Fed. Reg. 28431 (June 22, 2017). The Department further “identified
1,772 policy-oriented guidance documents across the Department,” with an eye toward
reviewing them for potential repeal. Id. at 4. And, by October of 2017, the Department had
identified nearly 600 guidance documents that it determined should be rescinded. U.S. Dep’t of
Ed., Regulatory Reform Task Force Status Report, at 4-5 (October 18, 2017) available at
While the Department has not set formal policy in the same way as the Department of
Justice, it has demonstrated a firm commitment to reforming its use of guidance. And, the
Department has indicated publicly that it intends to continue these reform efforts in the future.
See Eitel Testimony, at 4.
C. The Need for the Rule – Meta-Guidance Is Insufficient
Given the legal background set out above, the various reform efforts outlined above are
important measures to rein in improper guidance documents. In particular, the OMB Bulletin and
the Sessions and Brand Memos, clearly identify some of the worst features of the guidance
problem and provide a good start in the broader regulatory reform effort. However, even these
documents do not go far enough to combat the pernicious harms caused by binding guidance,
primarily because they constitute, at most, mere guidance on guidance. While these metaguidance
documents advance essential points, and identify regulatory pathologies, they
ultimately constitute nothing more than temporary policy announcements within their supervised
agencies. Hence, they should not be the sole model for this Department’s reform efforts.
In order to truly solve the underlying problems, the Department should take the lead in
the regulatory reform effort and issue binding and final rules prohibiting any Department
component from issuing, relying on, or defending improper agency guidance.
1 The proposed internal rule would be controlling only within the Department and is not strictly a “substantive” or
“legislative rule” as that term is otherwise used in this document. NCLA invokes the Secretary’s authority to issue
“regulations governing the manner of operation of … the Department” and those “necessary or appropriate to
administer and manage the functions of the Secretary or the Department.” 20 U.S.C. §§ 1221e-3, 3474. Such rules
should be considered “housekeeping” rules that have a controlling effect within the Department but cannot bind
parties outside the Department without an additional grant of rulemaking authority. Chrysler Corp., 441 U.S. at 310-
The first and most significant problem with the previously-issued meta-guidance documents is
that none has any permanent or binding effect. Even though the OMB Bulletin was issued
following notice-and-comment proceedings, it nevertheless serves only as a guide for good
agency practice in future contexts. It provides non-binding suggestions for good practice, and
specifically disclaims the creation of “any right or benefit, substantive or procedural, enforceable
at law or in equity, against the United States, its agencies or other entities, its officers or
employees, or any other person.” OMB Bulletin, 72 Fed. Reg. at 3439. In other words, to the
extent that the OMB Bulletin might be ignored, an affected party has no means of redress. And,
notably, since the OMB Bulletin was issued, Executive Branch agency action has been
promulgated in apparent defiance of the bulletin. See, e.g., Elec. Privacy Info. Ctr., 653 F.3d at 8
(invalidating Department of Homeland Security rule as legislative rule that failed to comply with
APA notice-and-comment requirements); Hemp Indus. Ass’n, 333 F.3d at 1091 (same for DEA
rule); Texas v. United States, 201 F. Supp. 3d at 825 (N.D. Tex. 2016) (same for Department of
Education rule). Further, to the extent that improper guidance may escape judicial review for
other reasons, one may only guess how many other improper guidance documents have been
issued notwithstanding the bulletin. See, e.g., Soundboard Ass’n, 888 F.3d at 1271-73 (agency
documents issued in 2009 and 2016 could not be reviewed even if “regulated entities could assert
a dramatic impact on their industry” resulting from the documents).
The Sessions and Brand Memos, which do not even purport to apply to this Department,
suffer from this same defect. In fact, both disclaim that those documents even rise to the level of
“guidance” at all, and insist instead that they are mere “internal directives [and] memoranda.”
Sessions Memo at 2-3; Brand Memo at 1. Thus, to the extent offices or individuals within the
Department of Justice ignore these guidelines, they could “not be relied upon to, create any
rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal.”
Sessions Memo at 3; Brand Memo at 2.
Aside from constituting little more than noble policy goals, any of these documents could
also be immediately rescinded at any time, and without seeking any input from affected entities.
While the OMB Bulletin followed notice-and-comment procedures, it was not required to have
done so, because it was not a binding legislative rule. See 5 U.S.C. § 553(b). And, if a new
administration chose to summarily rescind it, it would be entitled to do so without any formal
procedures. See Perez, 135 S. Ct. at 1203 (agency action not subject to mandatory notice-andcomment
procedures may be altered or rescinded at will). So too could the Sessions and Brand
Memos be rescinded with little notice or fanfare.
Next, none of these efforts solved the underlying problem that prior, improperly-issued
guidance documents evaded judicial review—and continue to do so. As discussed, even where
“regulated entities could assert a dramatic impact on their industry,” and even when such agency
guidance is actually improper legislative rulemaking, it may nevertheless escape judicial review
as non-final action. See Soundboard Ass’n, 888 F.3d at 1272. Add to this list the fact that an
agency action might also violate the OMB Bulletin, and the result still remains the same. But the
inability to subject the action to judicial review can have momentous, and even disastrous,
consequences for regulated industries that might “feel pressure to voluntarily conform their
behavior because the writing is on the wall.” Nat’l Mining Ass’n, 758 F.3d at 253.
Finally, even to the extent that the documents genuinely confine improper rulemaking,
each contains significant limitations to its scope. The OMB Bulletin only applies to “significant
guidance” documents issued by the limited number of “Executive Branch departments and
agencies,” not to independent agencies. OMB Bulletin, 72 Fed. Reg. at 3433, 3436. Similarly,
the Sessions Memo only applies to a subset of Department of Justice actions. Sessions Memo at
1. And while the Brand Memo has some effect when external agency guidance documents are
relevant to DOJ action, it is still confined to an extremely narrow class of future “affirmative
civil enforcement” cases. Brand Memo at 1.
D. Text of the Proposed Rule
Section 1: Requirements for Issuance of Legislative Rules
a. Neither the Department of Education nor any office
operating within the Department may issue any “legislative rule”
without complying with all requirements set out in 5 U.S.C. § 553.
b. Any pronouncement from the Department or any office
operating within the Department that is not a “legislative rule”
i. Identify itself as “guidance” or its functional
equivalent, or as an internal regulation of the Department
authorized by 20 U.S.C. § 1221e-3 or 20 U.S.C. § 3474;
ii. Disclaim any force or effect of law;
iii. Prominently state that it has no legally binding
effect on persons or entities outside the agency or office itself;
iv. Not be used for purposes of coercing persons or
entities outside the agency or office itself into taking any action or
refraining from taking any action beyond what is already required
by the terms of the applicable statute; and
v. Not use mandatory language such as “shall,”
“must,” “required,” or “requirement” to direct parties outside the
federal government to take or refrain from taking action, except
when restating—with citations to statutes or binding judicial
precedent—clear mandates contained in a statute;
c. A regulated entity’s noncompliance with any agency
pronouncement other than a “legislative rule,” issued from any
agency (whether or not the agency or office is operating within the
Department), may not be considered by any entity within the
Department in determining whether to institute an enforcement
action or as a basis for proving or adjudicating any violation of
d. No office operating within the Department may apply
any “legislative rule,” as defined by this rule, issued by the
Department or any other agency, no matter how styled, which has
not complied with all requirements set out in 5 U.S.C. § 553.
e. No office operating within the Department may defend
the validity of any “legislative rule,” as defined by this rule, issued
by the Department or any other agency, no matter how styled,
which has not complied with all requirements set out in 5 U.S.C. §
553, in any court or administrative proceeding.
Section 2: Judicial Review
a. Any “interested party” may petition any office operating
within the Department to determine whether a prior agency
pronouncement, no matter how styled, is a “legislative rule” as
defined by this rule.
b. Such a petition for review shall be filed in writing with
the agency or office, pursuant to the procedures set out in
compliance with 5 U.S.C. § 553(e).
c. Any office operating within the Department must
respond to such a petition for review within 60 calendar days of
receipt of the petition.
d. The office operating within the Department must
respond by either:
i. Rescinding the prior agency pronouncement; or
ii. Denying the petition for review on the basis that
the agency pronouncement under review did not constitute a
“legislative rule,” or on the basis that the agency pronouncement
was adopted in compliance with all of the requirements set out in 5
U.S.C. § 553.
e. Any agency determination under section (d) must be
made in writing and must be promptly made publicly available and
must include a formal statement of reasons for determining that the
pronouncement under review does or does not constitute a
“legislative rule,” or does or does not comply with 5 U.S.C. § 553.
f. If the office fails to respond to a petition for review
within the 60-day period, such an action shall constitute a denial of
the petition on the basis that the agency pronouncement under
review did not constitute a “legislative rule.”
g. If any agency or office pronouncement is determined to
not be a “legislative rule” under parts (d), (e) or (f), the agency or
office shall promptly announce that the pronouncement has no
h. Any agency pronouncement, action or inaction set out in
parts (d), (e), (f) or (g), shall constitute final agency action under 5
U.S.C. § 704, and shall be subject to review pursuant to 5 U.S.C.
i. For purposes of this rule, no matter how styled or when
issued and irrespective of any other agency determination, the
issuance of any “legislative rule” by any agency or office operating
within the Department shall be deemed final agency action under 5
U.S.C. § 704.
Section 3: Definitions
a. For purposes of this rule, the term “legislative rule”
means any pronouncement or action from any covered agency or
office that purports to:
i. Impose legally binding duties on entities outside
the covered agency or office;
ii. Impose new requirements on entities outside the
covered agency or office;
iii. Create binding standards by which the covered
agency or office will determine compliance with existing statutory
or regulatory requirements; or
iv. Adopt a position on the binding duties of entities
outside the covered agency or office that is new, that is
inconsistent with existing regulations, or that otherwise effects a
substantive change in existing law;
b. For purposes of this rule, the term “interested person”
has the same meaning used in 5 U.S.C. §§ 553, 555; provided that
a person may be “interested” regardless of whether they would
otherwise have standing under Article III of the United States
Constitution to challenge an agency action.
E. Benefits of the Rule
The proposed rule furthers the policy objectives of the OMB Bulletin, the Sessions and
Brand Memos, and the Department’s own regulatory reform efforts, but it also addresses the
significant limitations of those reforms.
Substantively, many of the proposed rule’s edicts are found either in existing law or the
OMB Bulletin and Sessions and Brand Memos. Consistent with these sources, Section 3(a)
adopts a comprehensive definition of the term “legislative rule,” which accurately encompasses
the binding and coercive nature of such agency action, regardless of how it might be styled.
Section 1(b) also adopts clear rules for how other Departmental agency actions must be
undertaken and prohibits improper attempts at evading formal rulemaking procedures.
But the proposed rule also fixes the gaps in those other policy statements. First, and most
significantly, as a final rule, the proposed rule is binding and may not be rescinded at will.
Section 1(a) directs that agencies may not bypass formal procedures when issuing legislative
rules. Section 1(b) further sets out mandatory requirements for informal agency action. Section
1(c) also forbids improper coercive action. To that end, this section prohibits the Department
from considering a party’s decision to abstain from non-binding suggestions in guidance as
somehow constituting evidence of a violation of an actual legal obligation, or as a basis for
instituting an enforcement action. Section 1(d) prohibits the Department from applying any
agency’s legislative rules that do not conform to 5 U.S.C. § 553. Finally, Section 1(e) prohibits
2 See Animal Legal Def. Fund, Inc. v. Vilsack, 237 F. Supp. 3d 15, 21 (D.D.C. 2017) (Cooper, J.) (a party may be an
“interested person” under the APA even without Article III standing).
the Department from defending the validity of improper agency guidance, whether or not it was
promulgated within the Department. These requirements are binding on the covered entities.
Critically, this proposed rule also creates a means to enforce these requirements, which
applies to both new rules and those already in existence. Section 2 empowers interested parties to
alert covered agencies or offices to improper action, whenever issued, and allows the agency or
office to rescind such action without complication. This provision efficiently allows those most
affected by agency action to share their institutional knowledge with the agency, and it also
allows the agency to efficiently correct improper actions.
But if this voluntary process fails, Section 2 also allows an interested person the
opportunity to petition for judicial review. If an agency believes that its action is appropriate
under this rule, it need only say so pursuant to Section 2(d), and explain why its action does not
constitute improper legislative rulemaking. Sections 2(d), (e), (f) and (h) set out a process by
which a court may decide this legal issue on the merits. Sections 2(g) and (h) also resolve the
difficult finality question that commonly allows improper legislative rulemaking to evade
judicial oversight. Section 2(g) designates an agency’s decision on a petition for review as final,
thus establishing a concrete cause of action. Section 2(h), meanwhile, resolves the problem that
may exist when agency action is improperly binding, but nevertheless evades review because it
is not yet final, by deeming any binding action necessarily one that is also final.
Americans should never be “at the mercy” of the whims of administrative agencies, set
out in extralegal and extortionate “guidance” for approved behavior. Hamburger, supra, at 260.
These threats to liberty are unlawful and unconstitutional and are among the very worst
perpetrated by the administrative state. The Department of Education should enact clear rules
that respect the limits set by the APA and the Constitution. The Department should therefore
formally and permanently commit to prohibiting the issuance, reliance on, or defense of
improper agency guidance, and promulgate the proposed rule set out in this petition.
New Civil Liberties Alliance
P.O. Box 19005
Washington, DC 20036-9005