Legal Memorandum: Issuance of a Permit and APA Provisions

Issue: If an agency issues a permit but one of the two applicants is not notified of its issuance, does this affect the permit’s effectiveness or validity?

Area of Law: Administrative Law, Administrative Law & Regulation (Federal and State)
Keywords: Issuance of permit; Prompt notice; Administrative Procedure Act (APA)
Jurisdiction:  Federal  
Cited Cases: 78 F. Supp. 309
Cited Statutes: 5 U.S.C. § 551, § 551(14), § 551(7),§ 551(6), § 551(9), § 551(8); 5 U.S.C. § 555(e)
Date: 11/01/2009

The federal Administrative Procedure Act (APA), codified at 5 U.S.C. § 551 et seq., makes clear that generally a government agency’s issuance of a “permit” is subject to APA provisions.  The definition sections of the APA provide that “agency action” includes issuance of an “order” (§ 551(14)), that an “order” is the result of the “adjudication process” (§ 551(7)), that this process specifically includes “licensing” (§ 551(6)), that “licensing” includes all or part of the agency process regarding the grant or denial of a license (§ 551(9)), and that a “license includes the whole or a part of an agency permit, . . . statutory exemption or other form of permission.” (§ 551(8) (emphasis added)).

The plain language of the APA requires that applicants be given “prompt notice” when there has been a “denial in whole or in part of a written application . . . in connection with any agency proceeding.”  5 U.S.C. § 555(e) (emphasis added).  However, examination of the APA reveals that there is no corresponding provision which requires that notice be given to applicants (or others) when a permit is issued.

In general, unless it is required by statute, an administrative body is not required to give notice to parties of the disposition of a proceeding.  See, e.g., Am. Fruit Growers, Inc. v. Lewis D. Goldstein Fruit & Produce Corp., 78 F. Supp. 309, 311 (E.D. Pa. 1948) (where statute does not mandate notice, no notice is required and “a duty is cast upon the litigants to watch […]

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