Administrative Inquisitions? How Agencies Initiate, Conduct, and Conclude Investigations [2021 NLC]

In addition to formal rulemaking and case-by-case adjudication and enforcement, federal agencies have long employed a myriad of mechanisms to influence and punish private behavior. Their civil administrative investigations are unbounded by the procedural constraints of the Administrative Procedure Act, traditional transparency protections, or the redress afforded by timely judicial review. Civil administrative investigations can be not only onerous but also financially catastrophic, especially when the targets are small businesses and individuals. The abuse of agency investigative authority raises significant constitutional and statutory questions. Agencies have compelled information from investigative targets without the warrant the Fourth Amendment would require, and then converted the investigation from civil to criminal. Federal agencies have been imposing draconian conditions to end administrative investigations, like imposing "gag" orders that prohibit the target from disclosing the terms of the settlement, and requiring the target to make payments to agency-designated third parties in lieu of paying the statutorily prescribed fine into the Federal Treasury. These conditions are imposed without affording the investigative target the opportunity to meaningfully challenge the agency’s underlying authority to act or the tactics by which it acts.

This panel will explore the under-researched civil investigative and related activities of federal agencies and engage on their underlying legal authority to so act.

Featuring:

- Mr. Tyler S. Clarkson, Associate General Counsel, Synthetic Biology Company; Former Acting General Counsel, U.S. Department of Agriculture

- Prof. Aram Gavoor, Professorial Lecturer in Law, George Washington University Law School

- Prof. Richard J. Pierce, Lyle T. Alverson Professor of Law, George Washington University Law School

- Ms. Susan C. Rodriguez, Partner, McGuireWoods LLP

- Moderator: Hon. James C. Ho, U.S. Court of Appeals, Fifth Circuit

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