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Understanding Administrative Law in Preparation for the Exam

I developed these questions to be a general review of the book.  They are organized by topic, not necessarily in the same order as the book.  These questions are intended to help you integrate the materials from the book and the classroom into a coherent view of administrative law.  They are the principles I would expect you to use in answering questions on the exam.

Governmental Organization

The starting point for administrative law is separation of powers in the federal government, and how this differs in the states.

Why do we have separation of powers?

What are the three branches of the federal government?

What are bicameralism and presentment and how are they relevant to agency overview?

Discuss the legal issues in Chadha and how they were resolved, and what effect this might have on Congress delegating power to agencies?

What are the unique powers of each branch and each house of Congress?

How are agencies formed?

What direct and indirect powers does Congress have over agencies? Include examples and cases, and explain why are many of these very hard to attack through litigation.

What is standardless delegation and why does congress sometimes use it?

What is the relationship between the president and the agencies represented in the cabinet?

Who are officers of the U.S.; how are they appointed, and how can they be removed?  Be specific about controlling clauses in the Constitution and critical case precedent.

How can the president exercise direct control over agency practice? (Include executive orders in general, OIRA, OMB, and Ex. Order 12866.)

Explain, with examples, how independent agencies differ from cabinet level agencies.

Explain the policy implications of independent agencies and how they challenge separation of powers.

Explain the policy arguments for and against political control of agencies by Congress and the president.

How does separation of powers differ in the states?

How does the role of the Attorney General of Louisiana differ from the Attorney General of the United states as relates to separation of powers?

Why is the underlying issue in the Wooley case?

What did Wooley leave unresolved?

What was the "quasi-judicial" analysis in Wooley?

Why is the LA SC's definition of a judge and an ALJ circular?

How are federal agencies different from state agencies, and how does this affect the discretion that the courts and legislatures grant to agencies?

Explain how federal enforcement differs from local enforcement.

Use local food sanitation as an example to explain how local enforcement works and unique problems posed by local agency actions.  Include issues such as the problems posed by having to go to court, legal representation being controlled by its city or county legal office, review by city council or county commission, pay and expertise, and any other factors that are important to understanding how local enforcement works.

What separation of powers issues were raised by Katrina?

Adjudications

What are the key federal APA sections that govern adjudications and what does each provide?  (You do not need to know the specific state APA provisions.)

What are Article III judges, how are they selected, disciplined, removed, and what are their powers?

Discuss in detail how ALJs differ from Article III judges and the allowable review of the behavior of ALJ's.   Include selection, retention, and assignment of work.

Using examples from specific cases, explain how to tell adjudication from rulemaking within the context of deciding whether an individual has a right to be heard because his interests are at stake. (Remember Londoner and Bimetallic)

What is the "new property"?

Explain the procedural rights established in Goldberg v. Kelly, how they differ from the rights given indigent criminal defendants, and how the rights are specifically tailored to the special problems posed in providing due process to an indigent welfare population.

How does Matthews v. Eldridge modify Goldberg and why did the court limit the Goldberg rights?

Explain, with examples from specific cases, how the courts have further limited due process rights to contest welfare benefits, including why there are no due process rights to challenge the 1996 Welfare Reform Act.

Using City of West Chicago v. NRC and the siting of a national nuclear waste dump as examples, discuss the use of the hearing process by NGOs and local governments to affect federally regulated environmental projects that they oppose.

Discuss the due process rights of public employees when they are fired or disciplined.

Discuss the issue of bias in administrative adjudications, why it is more severe than for Article III trials, and the rights of parties to have an impartial decision maker.  Be specific, with examples and cases.

Must agencies separate their functions into investigation, prosecution, and decisionmaking?

Discuss ex parte contacts in adjudications, including contact between agency staff, decision makers, parties, and interested persons.  Use examples from specific cases and address whether decision makers have to be hermits.

What are the evidentiary issues in hearings?  Be sure to address the residuum rule, hearsay and substantial evidence, hearsay and confrontation, and burden of persuasion. 

How do agencies gather information?  What are the due process rights for agency subpoenas and how do these differ from criminal law due process rights?   How might this cause problems in a Medicare billing investigation where the agency is investigating for civil penalties and DOJ wants to prosecute?

When does self-incrimination apply to documents?

When does self-incrimination apply in administrative searches? How can you cure the problem?

Why don't administrative searches violate the 4th amendment?

What are area warrants used for, why are they required, and how do they differ from criminal law warrants?

What are the requirements for deciding if a business is pervasively regulated?  How do warrant requirements differ for these businesses?

Discuss the problem of agencies taking official notice of information, how this can influence the defendant's due process rights, and how the record is the key to resolving these problems.  Explain how these issues played out in Franz v. Board of Medical Quality Assurance  and how the court resolved them.

What are the requirements for a record of an adjudication and how are they reviewed by the courts?

Using specific case examples, discuss the problem of Congress trying to influence adjudications.

How can rulemaking be used to improve the efficiency of adjudications?

Explain the different ways an agency may use the AJ or ALJ's opinion in arriving at a final holding in an adjudication.  How do these differ from rulings by Art. III judges?

Explain how res judicata, stare decisis, and equitable estoppel apply to holdings in adjudications.

Explain how inspections substitute for adjudications.

Rulemaking

What is rulemaking?

What is rulemaking a favored policy?  Be specific and explain how rulemaking improves the efficiency of government and makes it easier for regulated industries and individuals to know their duties.

What are the downsides of rulemaking and how can it undermine democracy?

What are the key Federal APA sections dealing with rule making and what do they provide?

What are the requirements for notice and comment rulemaking, i.e., which APA sections govern it and what does the agency have to do to promulgate a proper rule.

Can a rule be retroactive?

Can the record for a rule be supplemented after the original publication?

What about in response to comments?

What is a formal rulemaking, when is it required, and why is it so disfavored by the courts.

Discuss the analysis used to determine whether an agency document is a rule, requiring notice and comment, or an interpretive guideline or a policy statement. What is the role of agency discretion in this analysis?

What are the requirements for proving proper notice of the contents of a rule?  Be specific, using Chocolate Manufacturers Ass'n v. Block as a example,  and also explain the interplay between the agency's formal notice and the comments it receives. 

What about when the agency relies on scientific data?  What is the public entitled to in the register posting?

What is hybrid rulemaking?

Explain the significance of Vermont Yankee v. NRDC for hybrid rulemaking.

Discuss the limitations on ex parte communications and political influence in rulemaking, including how Sierra Club v. Costle modified the law from Volpe.

How are the problems of bias and prejudice different in rulemaking as opposed to adjudications?

Why should the agency explain the basis for a rule?

What are the exemptions from rulemaking?  Discuss specific situations and cases.

Discuss rulemaking petitions and the extent of the court's power to force an agency to make a rule.

Discuss waivers of rules, when they should be granted, and what political and due process problems they raise.

Discuss rulemaking for emergency situations and what accommodations can be made to traditional notice and comment.

Discuss cost benefit analysis and the conflict between Goldberg v. Kelly and Matthews v. Eldridge.  How did the courts expand Matthews in later cases?  How does this fit in with discretionary decisionmaking as a defense to tort claims?

Scope of Judicial Review

Define and distinguish these standards for review of agency findings of fact: Trial de novo; Independent judgment on the evidence; Clearly erroneous; Substantial evidence; Some evidence; and Facts not reviewable at all.

When a hearing officer is overruled by the agency, how should the reviewing court treat the ALJ's opinion - discuss Universal Camera Corp. v. NLRB in your answer.

How should the courts treat the agency's interpretation of what the law means?  What are the three tests and what do they mean?

What were the facts of Chevron U.S.A., Inc. v. Natural Resources Defense Council and how is the resolution in Chevron an example of the Chevron two step?

What factors should indicate to a reviewing court that an agency interpretation of law is probably correct?

What is legislative history and how can it be manipulated?

What happened in Salameda v. Immigration and Naturalization Service?

Under the ABA interpretation, agency action should be set aside for what 8 reasons?

Explain why Motor Vehicles Manufacturers Assoc. V State Farm is important and how it fits into the larger seatbelt regulatory picture.

What is hard look review?

What is the trade off between standards of review and agency flexibility?

What are the pros and cons of hard and soft look review?

Remedies and Reviewability of Agency Decisions

What is the general rule on which actions are reviewed by district courts and which are reviewed by circuit courts?

What are the three general jurisdiction statutes for getting into court when Congress does not specify an appeal mechanism, and what does each apply to?

When can you remove challenges of state agency actions to federal court?

Discuss injunction, mandamus, certiorari, and habeas corpus, the standards for relief under them and when you would use them.

Discuss the federal tort claims act, what it applies to, and the discretionary function defense.

Who can be sued and for what under 42 USC 1983? 

Discuss absolute versus qualified immunity, with examples.

What is the Equal access to Justice Act?

Discuss preclusion of judicial review.

Discuss APA 701 and the reviewability of matters that are reserved to agency discretion.

What does the "no law to apply" doctrine mean in the context of review of discretionary agency actions?

Review the different cases we discussed involving prisons and prisoners and figure out the rights of prisoners to get review of prison decisions affecting them.

Standing to Seek judicial Review and the Timing of Judicial Review

What is standing?

Discuss and distinguish the injury in fact and zone of interest tests.

Discuss the standing of federal agencies to contest the actions of other agencies.

What is the irreducible minimum for standing?

May congress give anyone standing to sue and why?

Why is the standard for the necessary allegations for standing different at the summary judgment rather than the motion to dismiss stage?

When can associations sue on behalf of their members?

When can groups sue for third parties who are not members of their group?

Discuss tax payer standing in state and federal actions.

Does congress have standing to sue to overturn its own laws?

Discuss: final order rule; ripeness; facial challenge; exhaustion of remedies; and primary jurisdiction.

Discuss pre-enforcement review, contrasting Abbot Labs with Toilet Products.

How does pre-enforcement review help the beneficiaries of regulations?

What is the finality problem with reviewing non-legislative rules, i.e., guidelines, letter rulings, etc.?  Give an example of when a letter was found to be final action.

Have the courts expanded or narrowed Abbott Labs?  Why?

What are the ways to attack regulations if they are not applied to your client and the initial statutory review period has passed?

Why is getting an injunction critical to pre-enforcement review?

What are the factors the court should consider in reviewing a request for an injunction in a pre-enforcement challenge case?

What is exhaustion of remedies and what does McCarthy v. Madigan tell us about the standards?

What are the factors to balance in exhaustion cases?

What is the futility doctrine and how do you satisfy it?

When can exhaustion result in preclusion and what choice of remedies problem does this pose to counsel?

Do plaintiffs bringing 1983 claims have to exhaust state administrative proceedings?  Why or why not?

When does the primary jurisdiction doctrine come up?

How do the primary jurisdiction doctrine and exhaustion differ?

What are the standards the court should use when deciding whether to defer to an agency in a primary jurisdiction case?

Governmental Liability

What is sovereign immunity?

What is the court of claims?

What is a tort claims act and why were they passed?

What cases do tort claims acts exclude?

What does Dalehite tell us about the limits on the tort claims act?

What were the lessons of Berkowitz and Varig Airlines?

What does oyster law tell us about discretionary authority and Louisiana law?

What are the legal effects of the abolishment of sovereign immunity in LA?

What defenses remain?

How did these play out in the Saden case?

What about the Flood Control Act of 1928?

Can you explain the basics of suing the governments for damages caused by levee and pump failure during Katrina?

FOIA

What is the policy behind FOIA?

How is FOIA different from discovery?

Why would you use FOIA instead of discovery?

What are the exceptions to FOIA access? (Be specific)

What is reverse FOIA?

What are Sunshine Acts?

What is a meeting under a Sunshine Act and why is the definition important? 

How do Moberg and FCC v. ITT differ in their definitions of meetings?

How do agencies try to get around Sunshine acts?

What are the basic provisions of the Federal Advisory Committee Act (FACA)?

How does the FACA potentially violate separation of powers?

End

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