> I asked you in class about the extent of agency subpoenas for our
> exam, and you told me to e-mail you the questions from the review that
> dealt with the topic to see if they are relevant to our class. These
> are those questions.
> 1. What are the due process rights for agency subpoenas
> and how do these differ from criminal due process rights? How might
> this cause problems in a Medicare billing investigation where the
> agency is investigating for civil penalties and the DOJ wants to
> I found in the E&E book that the 4th amendment applies to subpoenas,
> limiting it much like a search warrant. See Morton Salt. As for
> criminal due process rights, I do not know if there are any subpoena
> 4th amendment constraints. I know there are for warrants. In the
> Medicare situation, is the problem that an agency may be able to
> obtain a subpoena for documents for the purpose of information
> gathering that the DOJ would be unable to procure through a warrant
> for the purpose of criminal prosecution (for want of probable cause) –
> thus the DOJ would not be able to use the agency’s information due to
> the exclusionary rule?
> 2. When does self-incrimination apply to documents
> We did not cover this in class. Is it relevant to our course?
We did cover it - Chapter 8, part II, and in the book - see Marchetti, and surrounding materials.
> 3. When does self-incrimination apply in administrative
> searches? How can you cure the problem?
> Isn’t self-incrimination an oral statement from an alleged offender?
> Or, does self-incrimination mean finding evidence of a crime when on
> the property during an administrative search? Doesn’t the “plain view”
> exception to the exclusionary rule apply? By curing the problem (in
> favor of the searchees) , do you mean eliminating all of the
> exceptions to the exclusionary rule for administrative searches – i.e.
> always exclude “incriminating” stuff?
First, does the 5th amendment usually apply to documents - your first statement is correct. But when can a document become incriminating - Look at Marchetti and think more generally about how a document can be incriminating. Can just knowing that a document exists be incriminating?
> 1. With respect to agencies taking official notice of information, is
> the problem that it influences the defendant’s due process rights
> because he is not confronted with evidence against him so that he can
> attempt to rebut it?
> Is the record the key to resolving the problem because, if the
> officially noticed information is in the record, the defendant can
> rebut the information on appeal?
> 2. In court, is the record of an appeal reviewed de novo? I know FOIA
> cases are reviewed de novo, but are all agency decisions reviewed de
Review the materials on judicial review. We talked about this quite a bit. Key is that it is the legislature's call.
> 1) I am very confused as to how independent agencies came
> to being, and what distinguishes them from other agencies.
> Can Congress specify that it has authority to remove any agency head,
> or is that power only given to the president unless it is a case of
> independent agencies?
> a. How can officers of the US be removed?
This is pretty fundamental. Review the materials and notes on the appointments process.
> 2) How does federal enforcement differ from local
> enforcement? You told us to use local food sanitation as an example.
> In this question, are you just getting at the idea that because of the
> lack of funding and the immense number of agencies in LA, that the
> local agencies don't have the manpower to go to court all the time and
> since manpower is low, the training is lacking so the expertise
> suffers as a result? Further since review is done by the city council
> and county commission, there is a risk of corruption in that the
> council might okay things the agency does that aren't up to normal
> standards because they are their buddies. Is this what you are
> getting at? How does local food sanitation tie in?
You get the basic idea. Limited resources, informal review, no good control on ex parte contacts, etc.
> 3) I am having a hard time determining how Sierra Club
> modified the law from Volpe - it seems like Sierra Club just applied
> the test from Volpe without modification.
This is discussed in Chapter 5 of the E&E - why did the court reach different results?
> 4) What do you mean when you ask:
> a. 1 -- "how does the notice provision in rulemaking
> change the issues in ex parte communications?" and
> b. 2 -- "how does the notice requirement eliminate the ex
> parte communications issues for communications before the promulgation
> of the rule?"
Think about why do we care about ex parte communications. Why is it different in rulemaking than in trials?
> 5) I also can't find anywhere in my materials information
> on the waiver of rules, when they should be granted, and what
> political and due process issues arise. Does this refer to emergency
> rulemaking where you do the notice and comment after the rule is put
> into effect?
This deals with whether agencies should provide a process for waiving rules. We did not discuss it and do not worry about it.
> 6) What later cases are you talking about when you say
> that the court expanded on Matthews in later cases? How does Matthews
> apply to discretionary decisionmaking as a defense to tort claims -
> does this just mean that the court will allow the agency to do a cost
> benefit analysis and even if that results in harm, the court will
> uphold the defense as long as what the agency did was reasonable?
Think about the later cases that applied Matthews - how was it used to justify the results in these cases? What is the test for a proper discretionary action? How does Matthews satisfy that?
> 7) What is the third general jurisdiction statute for
> getting into court? I have 1331 and 2342…is the third the agency's
> enabling statute itself?
> 8) Did we talk about how you remove challenges of state
> agency actions to federal court? Wouldn't you just follow the federal
> civ. Pro. Rules on removal?
We did not talk about this much - that is good enough.
> 9) I don't think we talked about injunctions, mandamus,
> certiorari, habeas, or the standards of relief under them - am I
Mandamus was part of the Wooley discussion, but you do not need to know more than what it is. We did mention injunctions - but no more than you should know from procedure. You do not need to know about certiorari or habeas corpus.
> 10) I also don't think we discussed the differing
> allegations necessary for standing at the summary judgment phase and
> at the motion to dismiss phase.
We did discuss this in class, but again, it is just simple procedure.
> 11) Is ripeness constitutional? The book states that it
> remains a matter of common or judge-made law that is jurisdictional -
> doesn't this mean that it is not constitutional? However, I feel like
> a case must be ripe in order to present a case or controversy. Which
> is it?
That is what you have to figure out.
> 12) In class, I think you said that Abbott was different
> than Toilet Goods because Abbott dealt with health and safety. We
> also discussed how in health and safety cases, it is hard for a
> business to get an injunction because the agency has a right to
> protect the public. Didn't Abbott just involve labeling of drugs, not
> the drugs being dangerous themselves…so it was not really health and
> safety issue?
> Thus Abbott was able to get an injunction because the cost of changing
> he labels would have been out of this world. In Toilet Goods on the
> other hand, the court found that there wasn't an immediate legal duty
> to change their primary conduct. It was merely conditional because it
> only arose if the inspector sought access to the facility.
Close. Think about the standards for an injunction as well, plus remember the ripeness analysis.
> 13) When you asked us how we know if exhaustion of remedies
> is an issue in a case, were you wanting us to talk about the fact that
> if exhaustion is not required by statute or rule it is not required?
> However, don't courts impose the common law requirement of exhaustion?
> Or do you mean that we should know that exhaustion is an issue in any
> case really where there is no "enforcement" so called by the agency -
> such as an opinion letter (i.e. any action that isn't clearly a final
> agency action)?
You need to review what the courts look to when they are deciding if exhaustion is required.
> 14) What are the factors to balance in exhaustion cases? I
> can't find this anywhere in my notes or in the slides.
You have to think about this - what does the plaintiff have to argue to the court to try to avoid being dismissed for not exhausting his remedies.
> 15) I also don't know what you are getting at when you ask
> about exhaustion resulting in preclusion and the remedy problem that
> causes for counsel. Is this referring to a collateral estoppel type
> problem or what?
What is the effect of preclusion? What might the plaintiff lose if he does opt for the agency process over the courts?
> I'm a little confused on how to determine which actions are
> reviewed by district courts and which are reviewed by circuit
> courts. I believe it normally goes to the circuit court
> unless there is an issue that triggers jurisdiction in
> district court.
Think about the role of the district versus circuit courts. District courts can take testimony and conduct factfinding, while cir courts can only review an existing record. This will guide you as to what goes where - is there a completed record, or will the court have to consider additional evidence? Of course, Congress can set the reviewing court by statute, and often does.
> Also, the question asking us to discuss rulemaking petition
> and the extent of the court's power to force an agency to make a rule.
> 1. What is a rulemaking petition?
Remember we talked about the APA providing that an individual can ask an agency to make a rule? That is a rulemaking petition. Think about that duties it triggers for the agency and how you might use it to get the court to rule on the agency's authority.
> 2. Does this have to do w/ the Motor Vehicle Manufacturer
> case, this case had to deal w/ an agency repealing a rule.
> I was hoping you would be willing to inform the class whether we will have a "Name that Case Section" as you have had in years past. In speaking with some of my ad law classmates we agreed that it would in some way change the way we studied (in that we would possibly need to focus on the facts of the case more).
No name that case. Does not mean you can forget the name of major cases like Chadha.:-)
Out of town. Will catch up on any email in the evening. Please try to have all questions in by Tuesday morning.
When the court finds the legislature has not provided enough direction to allow the court to review the agency's action - the result of a standardless delegation - it says there is "no law to apply."
> 1. I understand that standardless delegation is when
> congress is presented with a hard policy choice and instead
> of making the rule themselves they delegate broad authority
> to the agency to do so. I also understand that this broad
> grant of power can cause problems with the court system due
> to its lack of specificity. In terms of Chevron, would
> standardless delegation pose a problem because the statue
> doesn't meet step 1 because it is too ambiguous and a court
> couldn't give deference under step 2 due to this same
> ambiguity? Is that what you were trying to get at in your
> study questions?
The tension with delegation of authority is that the more general delegation, the greater the agency's powers, until the point comes where the court cannot tell what the agency is supposed to do. So a broad grant of authority becomes standardless delegation when a court is asked to review the agency's actions and cannot find a standard (congressional intent) to judge it against. Probably better to think of it as pre-Chevron - if the court cannot figure out what Congress wants, they cannot tell if it the agency's actions is permitted or prohibited in step 1.
To be clear - this is very rare, and is important only because it provides a way for a court to strike a statute without delaying with the old delegation doctrine.
> 2. When you asked us to talk about the direct and indirect
> powers congress has over agencies, what cases would you like
> us to talk about? In my outline I talked about Chadha.
Congressional powers are not about cases, except to the extent that Chadha found that the legislative veto was unconstitutional. Think about how agencies are funded and formed about the congressional oversight powers. Pillsbury is another example where the courts found a limit to congressinal powers.
> 3. In the Court of claims process, when could parties
> challenge the Court's recommendation to congress? Could they
> appeal the recommendation itself or only appeal once the
> recommendation was rubberstamped by congress?
This is beyound the scope of the course. The court of claims info was only historical background to the tort claims act.
> 4. What is the lesson behind Berkovitz and Varig? I figured
> the lesson was that the agency could create a rule in its
> discretion that would put people at risk if it was a reasoned
> policy choice, but you have to follow your regulations and
> enabling statute. Is that correct? Does the Oyster case tell
> us the same thing about LA? I understand that LA follows
> Berkovitz but couldn't see how the Oyster case conveyed
> Berkovitz's lesson.
Think about what the courts said about the valid reach of discretionary action and how it is limited by statutes and regulations. Why did DHH's claim of discretionary authority fail in the same way that the FDA's claim did?
> 5. Regarding the legal effects of the abolishment of
> sovereign immunity in LA --- do you just want us to know that
> since SI has been abolished we can sue the state, although
> payment is still an issue? Also, you asked about what
> defenses remained today. I didn't understand what you were
> referring to. I didn't have anything about defenses in my notes.
SI is only relevant in the context of the tort claims act, where the issue is how the discretionary authority defense works in LA. In this context, the abolishment of SI does not affect the outcomes of the cases.
> Can/Will you explain how Matthews v. Eldridge modified
> Goldberg v. Kelly and how the Court limited the Goldberg rights?
Think about all the rights the court granted the plaintiff in Goldberg, rights which were not balanced against the cost of providing the rights and how this might affect the benefits systems. How did Matthews change how the court looked at the due process rights of government beneficiaries? How were the rights for the plaintiffs in Matthews more limited than in Goldberg?
> I was looking through the added questions and have some
> notes about licensing. One of the questions asks about the
> difference between licensing as a lawyer and licensing as a
> tv station. I think the difference between the two is that a
> tv license may be adversarial between potential applicants
> due to the limited number of licenses.
We talked about this briefly in class - that is about the right level of detail. The key issue is that the agency can develop competitive procedures when it is allocating limited licenses. In the usual license situation, if you meet the criteria you get the license. For TV, the FTC considers public interest and allows the public to contest license proceedings.
> Also, I think the process for revocation or suspension
> of a license is the same in both Louisiana and the federal
> system. In both system, absent willful disregard, or public
> health or safety concerns, the licensee is required to
> receive notice of the allegations and an opportunity to
> respond and demonstrate compliance. Are there additional
> procedures in Louisiana before a license can be revoked?
Look at the LA Statute on license revocation that is in the slides. It provides for an informal process to allow the licensee to be contest the charges before the formal license revocation begins. In other systems, your first notice can be the notice of the revocation hearing.
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