Administrative Law
Spring 2014 – Richards

1. What are the president's options on vetoing legislation and how may congress override a veto?

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 solution?

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 veto.

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 powers?

The executive Power shall be vested in a President of the United States of America.
he shall take Care that the Laws be faithfully executed
Unitary executive

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 honest.

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 – rule
Retrospective and specific parties – adjudication – except licensing and permitting

10. What is required for Sec. 554 notice?

(1) the time, place, and nature of the hearing;
(2) the legal authority and jurisdiction under which the hearing is to be held; and
(3) the matters of fact and law asserted.

11. How does an inquisitorial process (agency adjudication) differ from an adversarial (court) trial?

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 simpler.

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 admissible.
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 party is?

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 revocation?

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 welfare program.

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 explanation relevant?

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 get stigma+?

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 allegation.

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 themselves.

25. What 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 conditions.

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 of pollutants.

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 improper?

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 substantial effect.

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 an example.

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 Amendments?

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 Amendment.

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.)

(1) a 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.
Technical corrections

36. What is OIRA? What is its role in rulemaking? Which agencies is it able to control? Which agencies are beyond its control?

Office of 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 controversial?

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.]

38. Indigent 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)

Redressability/causation - 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. Cir. 2004)?

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 of waste.
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 1978
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 climate change.

41. Discuss 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.

44. Thinking 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?

Habeas corpus
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 security power.

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 administrative searches?

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 immunity.
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 narrower?

their 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 about it.

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.