Spring 2014 – Richards
1. What are the
president's options on vetoing legislation and how may congress override a
Veto it, or not sign it and it
expires after 10 days if Congress is not in session.
Congress can override a veto with a 2/3 vote in each house.
2. What is the
modern test for whether the delegation of power to an agency has been properly
done? If the court cannot find enough evidence of congressional intent, does
the court treat it as an unconstitutional delegation or is there now another
Is there enough direction
(intelligible principle) to the agency that the court can determine whether the
agency is acting correctly? (Is there law to apply?)
Now the court just finds that the
law does not give the agency the power to act.
3. What has
congress done to allow it to review proposed rules before they go into effect?
What must congress do if wants to block a rule?
It passed a law requiring notice to
congress before a new rule goes into effect.
It must pass a law by both houses, get it signed or override the president’s
4. How does the
DAL legislation change the relationship between the agency and the ALJ, i.e.,
how is the LA ALJ system now different from the Federal system?
In Louisiana, the ALJs are not in
the agency and no longer have expertise.
The ALJ’s decision is binding on
the agency. The agency cannot appeal the decision to the courts. In the federal
system, the ALJ’s decision is a recommendation to the agency, which the agency
can modify or reject.
5. How do the
Vesting and Take Care Clauses create the core of the president's domestic
The executive Power shall be vested
in a President of the United States of America.
he shall take Care that the Laws be faithfully
6. How did Humphrey's
Executor lead to independent agencies?
It allowed congress to limit the
removal of officers of the united states who head
agencies by giving them terms of office they serve unless removed for cause.
This eliminates the president’s direct control over the agency.
7. How do
independent agencies challenge the theory of separation of powers? (not one sentence)
While in the executive branch, the
president cannot directly control them because he cannot replace the agency
head. Thus the agency is as much controlled by Congress as the president. This
undermines the competition between branches that is intended to the government
8. What is the
APA definition of a rule?
‘‘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
and includes the approval or prescription
for the future of rates, wages, corporate or financial structures or
reorganizations thereof, prices, facilities, appliances, services, or
allowances therefor or of valuations, costs, or accounting, or practices
bearing on the foregoing.
9. How do we
know whether we are looking at a rule or an adjudication?
Prospective and general application
Retrospective and specific parties – adjudication – except licensing and
10. What is
required for Sec. 554 notice?
time, place, and nature of the hearing;
(2) the legal authority and jurisdiction under which the hearing is to be held;
(3) the matters of fact and law asserted.
11. How does an
inquisitorial process (agency adjudication) differ from an adversarial (court)
ALJs - expertise ALJs use this
expertise to assure that the adjudication properly develops the factual record.
Since the ALJ is expert and there is no jury, admission of expert evidence is
Article III judges impartial, no expertise in the subject matter, refer
attorneys who develop the record through the adversarial process. Article III
judges can be disqualified for specific knowledge of the facts in a case.
12. Why is the
problem of ex parte contacts different for ALJs and Article III judges?
Article III trials depend on all
evidence being presented through the adversary process, with the judge bringing
no special expertise to the trial. ALJs generally decide cases based on their
expertise and the trials are inquisitorial so they do not depend on adversaries
presenting evidence to a judge with no knowledge of the subject.
13. How does the
policy for admitting evidence differ between an Article III jury trial and an
ALJ hearing? How is this changed when it is an Article III non-jury trial?
The code of evidence in jury trials
is intended to prevent the jury from being misled by inflammatory evidence, or
evidence that does not have a proper legal predicate. It also limits the
admission of certain kinds of evidence, such as hearsay, that can used with fewer restrictions in an administrative hearing.
The ALJ can use his/her own expertise to evidence so most evidence is
Article 3 judge trial also allows more evidence in.
14. Who has the
burden of proof in an administrative proceeding? How do you determine who this
The moving party
The party seeking a change in status.
15. How are the
legal standards for initial licensing different from a license review or
The license seeker has the burden
of proof and thus can be excluded for not meeting the standards without any
specific due process.
The state is the moving party in a removal process and
provide a hearing before taking a license. It harder
to take a license away than to deny a license.
16. How did the
LA SC explain why LA ALJs are not Article V judges and thus do not need to be
elected? What did issue Wooley leave unresolved that lead to the Bonvillian cases?
The LA SC found that ALJs did not
issue final, enforceable decisions, and thus were not judges in the sense of
Article V. The problem arises when the ALJ grants a license or permit, and the
agency will not honor it.
17. Assume that
governor and legislature of Louisiana, following the philosophy of Milton
Freedman (a noted free market economist) decide to abolish law licenses and
allow anyone to practice law. Do you have any constitutional entitlement to
compensation as a licensed lawyer? Think carefully and explain the
constitutional basis, if any, for this being different from abolishing a
While a license holder has due
process rights if the government removes his license, there would be no due
process rights if the state allowed more people to practice law, i.e.,
abolished license requirements. You still get to practice. In the same way, you
can remove all welfare benefits without triggering due process concerns.
18. Explain each
of the three Matthews factors and how the test works.
(C)ost of added process
(P)robability of increased accuracy
(V)alue of the benefit/cost of error.
C < P x V – you only get the added process if the cost is less than the
potential harm from the mistakes that would be prevented.
19. How does the
Matthews analysis dovetail with discretionary decisionmaking as a defense to
tort claims against the agency?
Matthews recognizes that agencies
have to make difficult political choices that harm individuals
to keep the system working and/or
keep within the funds provided by Congress. Discretionary authority then
provides a defense against plaintiffs who argue that the agency could have done
more to prevent injuries, which would undermine the agency’s ability to make
these political choices.
20. Even if the
basic facts are not in issue, what does Loudermill
tell us about facts in mitigation and explanation? When are mitigation and
A person being fired can request a
hearing over mitigation and explanation when the facts before the decisionmaker
do not require that the employee must be fired. As long as the factfinder has
the right to exercise discretion and not fire/discipline the employee, then the
employee is entitled to a hearing because it could affect the result.
21. What if
government employer gives an employee a bad recommendation that causes him to
lose a subsequent job? Is this stigma+? What would the employee have to show to
An accurate employee evaluation is
not defamation and does not trigger a right to a hearing. The employee must
show that the evaluation is false or that the employer has otherwise acted in
bad faith to get to stigma+. (van Heerden case) Recovering
damages would probably require showing that the employer knowingly made a false
22. Melissa is
accused of stealing from another student's locker and is expelled from law
school - does she get a hearing? Is the analysis different for flunking out
versus being expelled for stealing? Why?
She would get a hearing to
determine the facts before being expelled for stealing. This hearing
requirement can be satisfied by a criminal law conviction, rather the school
conducting a hearing. If you flunk out, there is no right to a hearing because
there would be no facts in issue – you do not get to contest the grades.
23. What does it
mean for an agency to take official notice of information? How can this affect
the impartiality of the proceeding? How does this complicate the defendant's
ability to get proper judicial review of the process?
Official notice - agency accepts as
true information from outside sources without cross-examination. It can be a
problem if the agency does not identify the information it is using so that the
plaintiff can ask the court to review it in subsequent judicial actions. The
agency should document all the information it uses in the record, including
reliance on the expert knowledge of the board members.
24. Why is
separation of functions a problem for agencies such as the FCC where decisions
are made by the commissioners themselves? What does APA section 554(d) provide
in these circumstances?
The commissioners may carry out
more than one function, which would create separation of function problems
under the APA, except that Section 554(d) exempts the members of the commission
happened in Texaco, Inc. v. FTC, 336 F.2d 754 (D.C. Cir. 1964) that
allowed defendants to challenge the decisionmaker? How might this have affected
the comments by the EPA Secretary about the BP spill?
The Chair of the FTC identified
Texaco as a wrongdoer while there was an ongoing proceeding against Texaco.
Given that EPA has been involved in a proceeding against BP, the EPA secretary
could not come out in the press and declare BP guilty.
26. What rights
does a prisoner retain and why should we care?
Free exercise of
religion, subject to safety and discipline requirements. Due process for actions that affect time
served and perhaps unusual confinement conditions. Some right
to communicate to with the outside world. Right to legal materials so
they can represent themselves.
We should care because prisoner rights are a check on abusive prison
27. How can you
use rulemaking to narrow the issues in adjudications? What is an example from
disability law? From our discussion of food inspections?
Rulemaking can establish factual
standards which would otherwise have to be established each time during
adjudications. In disability law, the agency established a list of conditions
that would qualify as a disability without having to prove how they effected the individual claimant. In restraint inspections,
the temperature for food and the like are established by rules so they cannot
be argued about in the appeals of inspections.
28. How does
"substantial impact" test differ from the "legally binding effect"
test? Illustrate this with an example.
Does the guideline substantially
change the regulated party’s rights? – wetlands
definition that calls into question whether the land can be developed.
Does the agency need the guideline to enforce the law? – list
29. Why did the
court in Chamber of Commerce v. U.S. Dept. of Labor, 174 F.3d 206 (D.C.
Cir. 1999) find that promising to reduce inspections for complying firms was
If there are significant benefits
available only through a voluntary compliance program, then it is not really
voluntary and may require statutory or rule authorization. This would be a
30. What are the
requirements for Federal notice and comment (informal) rulemaking?
Publish the proposed rule, its
supporting materials, and the agency’s legal authority for making the rule.
Take public comments on the proposed rule.
Review and answer comments.
Publish the final rule or propose a modified rule.
31. What are the
requirements for proving proper notice of the contents of a rule? Be specific,
using Chocolate Manufacturers Ass'n v. Block as
The final rule must be the logical
outgrowth of the proposed rule. In Chocolate, the proposed rule set standards
for sugared cereal, mentioned but did not regulate the sugar in juice, but did
not mention flavored milk. The court found that this was not sufficient notice
and struck the rule.
32. When the
agency relies on scientific evidence to support the record for a rule, what
must be published in the register? Is the public entitled to the raw data
behind the study the agency relies on? What is the significance of the Shelby
The agency does not have to publish
the raw data, but must provide the citations for any published papers it relies
on. It must explain how the evidence supports the rule. If the raw data is held
by the agency, it may be obtained by FOIA. If it is in the hands of university
scientists who received federal money, it can be obtained through the Shelby
33. Are contacts
with the President ex parte contacts? Are they improper? How did the court
resolve the issue in Sierra Club v. Costle?
At least as regards non-independent
agencies, contacts with the President are not ex parte contacts because he is
the supervisor of the agency. But they must be published or docketed.
34. What are the
two permits that are necessary to build and operate a nuclear power plant? How
did anti-nuclear activists use the administrative process to attack nuclear
power plant construction? What was done recently to streamline the process for
permitting a nuclear power plant?
The construction permit and the
operating permit. When these were separate, anti-nuclear power activists sued
over the public input provisions for these permits and delayed the operation of
the reactor and thus when it would start to pay off. The permits were combined
and the public participation was dramatically shortened.
35. When does
the APA allow legislative rules to be made without notice and comment? (Excluding formal rulemaking.)
military or foreign affairs function of the United States; or
(2) a matter relating to agency management or personnel or to public property,
loans, grants, benefits, or contracts.
Emergency rules when properly justified in the record.
36. What is
OIRA? What is its role in rulemaking? Which agencies is it able to control?
Which agencies are beyond its control?
Information and Regulatory Affairs. Created by an executive order. Part of OMB. It
reviews all rules with an impact of 100 million or a substantial impact on any
sector of the economy. It does CBA, assures that rules do not conflict across
agencies, and that they are politically acceptable.
It does not reach independent agencies.
37. What is an
unfunded mandate? What are examples? Why are unfunded mandates politically
An unfunded mandate is a law or
regulation that has significant regulatory costs to states, local government,
or individuals which the federal government does not fund.
The ADA, wetlands regulation, etc.
They can force regulated parties to spend money for the public good that the
government does not have to spend directly. The costs can hurt small businesses
and local government.
[NB – Medicare is not an unfunded mandate, it is a fully funded federal
only program. Medicaid is not an unfunded mandate, it is a voluntary federal
spending program that provides matching money if states want it. Social
Security is not an unfunded mandate, it is a tax supported pension system fully
funded by the feds.]
rights plaintiffs claim that non-profit hospital does not provide adequate
indigent medical care to justify its non-profit tax exemption. They ask the IRS
to cancel the hospital's non-profit status. What are they trying to accomplish?
What are the standing issues with this case? (Eastern Kentucky)
- It was conceded that the low-income persons were harmed by the failure of the
hospital to treat them for free. However, there was no evidence that this
injury was caused by or fairly traceable to the alleged unlawful agency action
- the failure to withdraw the hospital's tax-exempt status.
39. How does
zone of interests limit standing? How was the zone of interest different
between Hazardous Waste Treatment Council v. Thomas, 885 F.2d 918 (D.C.
Cir. 1989) and Honeywell International, Inc. v. EPA, 374 F.3d 1363 (D.C.
Zone of interest requires plaintiff
to show he is the beneficiary of the law. In Hazardous Waste, the waste
treatment companies wanted to force the EPA to require more rigorous treatment
The court did not find that they had standing because this was a CBA decision
by the EPA. Honeywell was an attempt to keep a new CFC substitute off the
market, The court found that the statute limited the
agency's discretion and allowed the case.
40. In Mass v
EPA, what was the evidence before the court that showed that congress
had been aware of global warming?
National Climate Program Act of
Global Climate Protection Act of 1987
EPA observed that Congress "was well aware of the global climate change
issue when it last comprehensively amended the [Clean Air Act] in 1990,"
yet it declined to adopt a proposed amendment establishing binding emissions
limitations. Congress instead chose to authorize further investigation into
pre-enforcement review, contrasting Abbott Labs with Toilet Products.
The regulation in Abbott Labs would
have required costly changes in product packaging and the risks of waiting for
an enforcement action were very high. In Toilet Products the manufacturers did
not need to make any changes, just let in inspectors. That would be challenged
without high risk.
There was a significant risk of imminent harm to the regulated party in Abbott
but not in Toilet Products.
42. Assume that
an agency makes a finding that no regulation is necessary on the energy use of
kitchen appliances, and that finding then preempts states from passing their
laws or regulations on the subject. Would this require notice and comment, and,
if so, what would need to be published?
It would require notice and
comment. It would have to publish its model and the assumptions before the
conclusion. It would have to explain why it determined that failure to have an
energy saving standard would not affect the environment.
43. Does going
first matter? (Brand X) Assume that a court interprets a statute before
an agency promulgates regulation under the statute. What would the court need
to say about the interpretation to preempt a subsequent regulation by the
agency that would conflict with the court's interpretation? Assuming that the
court did not say this, must this court defer to the agency if the agency goes
against the court's original ruling when it promulgates the regulation?
The key question is whether the
court has said its interpretation is the only interpretation. If not, then the
agency is free to propose a rule with a different interpretation. The court
would then have to consider the rule under Chevron or Barnhart and rule with
the agency if it is a valid interpretation.
back to criminal/constitutional law - what do you file if you think your client
is being illegally detained on an administrative order? How would you justify
the Guantanamo detentions if you were the DOJ when the ACLU used this device to
claim that that these detainees were being held unconstitutionally?
You would argue that they are being administratively
detained because they pose an ongoing threat to the public. They are not being
detained as a punishment. This would be OK under the president’s national
45. Assume OSHA
has a warrant for a limited search of a business, but goes beyond the limits of
the warrant. What can the evidence found in the areas beyond the reach of the
search warrant be used for? What use did the court exclude for the evidence?
How does the basic rational for differentiating criminal and administrative
searches undermine the rational for a strict exclusionary rule for
The court ruled that the evidence
could be used as the basis for an order to fix things, but not as the basis for
a fine. If the purpose is protecting the public welfare and not punishment,
there is no need to have an exclusionary rule because the regulated party’s
rights are not being seriously curtailed.
46. How is
sovereign immunity different in Louisiana from the federal model? How does this
difference affect the construction of the federal versus state tort claims act,
i.e., how is a statute in dereliction of immunity construed differently from a
statute creating immunity? (In practical terms, if something is excluded from
the statute, how is the outcome different under LA versus federal law?)
Louisiana does not have sovereign
LA courts construe the LATCA to allow claims against the state.
Fed courts construe the FTCA against claims.
If an action falls outside the LTCA, then there are no limits on it.
If an action falls outside the FTCA, it is generally barred.
47. What is the
Court of Claims and what type of claims does it deal with?
A quasi-judicial court like the
Bankruptcy court, established under Article I, not Article III court. Judges
have a fixed term rather than lifetime appointment. Their decisions are reviewable
by article III courts. Contract claims, taking claims, financial disputes.
48. What is the
legal test for qualified immunity? How does immunity provided by qualified
immunity differ from the discretionary function exception? Is it broader or
conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known”
You cannot violate a law under discretionary function, even if you do not know
49. In the movie
Well Founded Fear, one of the AJs who was interviewed
retired after the movie was done. Name or describe the agent.
Bow tie, tall, glasses Gerald
Brown, or anything else that demonstrated that you watched the movie.