Use of “Dear Colleague” letters as quasi-rules
Use of “Dear Colleague” Letters as Quasi-Rules: Overview
What Are “Dear Colleague” Letters?
“Dear Colleague” letters are official communications issued by federal agencies (like the Department of Education, the Department of Justice, or the Equal Employment Opportunity Commission).
They typically provide guidance, interpret agency regulations, announce enforcement priorities, or clarify policy.
These letters are not formally promulgated rules under the Administrative Procedure Act (APA); they often lack notice-and-comment rulemaking.
However, these letters sometimes have practical effect similar to rules, influencing how regulated parties behave or how agency officials enforce the law.
This raises administrative law questions about:
Whether these letters constitute “rules” subject to the APA.
Whether agencies can enforce standards announced only in these letters.
Whether reliance on them without formal rulemaking violates due process.
Key Legal Principles
Under the APA, “legislative rules” require formal notice-and-comment procedures.
Interpretive rules and policy statements may not require formal procedures but have less binding effect.
Courts evaluate whether an agency communication is a “rule” or a mere guidance document.
If a “Dear Colleague” letter effectively creates new rights or obligations, courts may treat it as a quasi-legislative rule, requiring compliance with the APA.
Case Law Illustrations: Detailed Explanation
1. United States v. Mead Corp., 533 U.S. 218 (2001)
Facts: This case involved a tariff classification ruling by the Customs Service. Though not a “Dear Colleague” letter case, it’s foundational for understanding when agency interpretations have the force of law.
Holding/Principle:
The Supreme Court held that not all agency actions are entitled to Chevron deference.
Only actions with the “force of law” (e.g., formal rules or adjudications) get Chevron deference.
Informal agency actions like guidance letters often receive Skidmore deference (respect based on persuasiveness).
Significance:
“Dear Colleague” letters, as informal agency guidance, typically do not have the force of law but may receive some deference depending on their persuasiveness.
2. National Mining Association v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014)
Facts: EPA issued a guidance letter about the regulation of certain pollutants. The industry challenged it as a de facto rule without notice-and-comment.
Ruling:
The court held that the guidance was not a legislative rule, so it did not require notice-and-comment.
However, the court warned agencies cannot use guidance to bypass rulemaking.
The letter was binding only to the extent the agency chooses to apply it consistently but is not law.
Significance:
Supports the idea that “Dear Colleague” letters are guidance, not rules.
Agencies cannot enforce them as binding law without formal rulemaking.
3. American Bar Association v. FTC, 636 F.2d 1300 (D.C. Cir. 1980)
Facts: FTC issued a policy statement impacting advertising practices without formal rulemaking.
Holding:
The court stated that if the policy effectively binds regulated parties or creates new obligations, it must be promulgated through formal rulemaking.
Otherwise, such communications are considered non-binding policy statements.
Significance:
If a “Dear Colleague” letter creates legal obligations, it must comply with APA rulemaking.
Otherwise, it remains advisory.
4. Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016)
Facts: DOE issued “Dear Colleague” letters about Title IX sexual harassment enforcement. Doe challenged the letters, arguing they created binding rules without APA compliance.
Ruling:
The court recognized these letters as enforcement guidance but not binding regulations.
Noted they significantly influence institutional behavior but do not have the force of law.
However, institutions relied heavily on the letters, raising fairness and due process concerns.
Significance:
“Dear Colleague” letters function as quasi-rules, influencing behavior but without formal rulemaking.
Courts remain sensitive to due process implications of agency reliance on such letters.
5. Perez v. Mortgage Bankers Association, 575 U.S. 92 (2015)
Facts: DOL rescinded a previously issued guidance without notice-and-comment.
Ruling:
The Supreme Court held agencies can issue, amend, or rescind interpretive rules and policy statements without notice-and-comment, but not legislative rules.
“Dear Colleague” letters fall into this category if they are interpretive or policy statements.
Significance:
Confirms that “Dear Colleague” letters are usually interpretive or policy guidance and not legislative rules.
Agencies have flexibility but must distinguish these from binding rules.
6. Jewell v. DEA, 727 F.3d 1086 (10th Cir. 2013)
Facts: DEA issued a letter interpreting drug regulations affecting licensees.
Ruling:
The court held the letter was an interpretive rule, not a legislative rule.
The agency did not have to use notice-and-comment but the letter was binding on licensees.
Courts look at the practical effect of the letter.
Significance:
Some “Dear Colleague” letters may be binding even if not formally rules.
Emphasizes pragmatic approach to administrative law.
Summary Table: “Dear Colleague” Letters as Quasi-Rules
| Case | Key Issue | Court Holding / Principle |
|---|---|---|
| United States v. Mead (2001) | When agency actions get Chevron deference | Informal guidance gets lesser deference, lacks force of law |
| Nat’l Mining Ass’n v. McCarthy (2014) | Guidance vs. legislative rule | Guidance letters are non-binding, cannot bypass rulemaking |
| ABA v. FTC (1980) | Binding effect of policy statements | Binding obligations require formal rulemaking |
| Doe v. Columbia Univ. (2016) | Enforcement guidance and due process | “Dear Colleague” letters influence behavior but aren’t law |
| Perez v. Mortgage Bankers (2015) | Rescission of guidance without notice | Agencies can issue/withdraw guidance without notice |
| Jewell v. DEA (2013) | Interpretive letter’s binding effect | Some letters can be binding, focus on practical effect |
Conclusion
“Dear Colleague” letters are widely used administrative tools to communicate agency interpretations and enforcement policies.
They generally do not have the force of law and are not subject to APA notice-and-comment.
However, when these letters impose new obligations or have binding practical effects, courts scrutinize them as quasi-rules.
Agencies must be careful not to use these letters to evade formal rulemaking or violate due process.
Courts balance agency flexibility with the need to protect regulated parties from surprise enforcement based on informal guidance.
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