9:20 - Blog closed
Questions are indented, my answers are flush. I am now adding new material at the top.
> I'm having trouble seeing the practical differences between a Bivens
> action and a 1983 action. I assume that qualified immunity
> only applies
> in 1983. But it seems that suing someone acting under color of state
> law under 1983 and suing an officer who used his federal authority to
> intentionally deprive of a constitutional right under the
> Bivens holding
> lead to the same ability to sue. Are there any big implications I'm
> missing and need to think more about? Is it that Bivens doesn't focus
> on the official capacity of the actor?...
You have most of the important points - one is state, one is federal, one is a direct constitutional action, one is a constitutional action enabled by a statute. Immunity is key in both, and is similar. Are the remedies the same? What is the significance of Bivens not being an official capacity action, as compared to 1983?
> Is an Administrative judge someone like an inspector, i.e. someone who
> does informal adjudications? or is it an article III judge? I
> think the
> former, but couldn't find it anywhere.
Right, someone at an agency who does adjudications but who does not get the protections of an ALJ. In a sense, an inspector would be an administrative judge.
> I'm confused about the result of a court saying "no law to apply" or
> "standardless delegation."
> The global warming hypo in your answer on exam blog seems to fit
> perfectly the definition given right before it for "no law to apply,"
> yet it says "standardless delegation." Are the two things actually the
> same, but the court calling it one thing or another affects
> the result?
> In other words, in that situation, if the court said "no law
> to apply,"
> would EPA be estopped from enforcing its rules before it got further
> direction from Congress? Yet if the court wanted to find for
> EPA, could
> they say it fit step 1 (that Congress was specific enough in that it
> directed EPA to fix global warming) and was reasonable under step 2?
They are closely related, and could be used interchangeably. Standardless delegation by congress can result in the court finding there is no law to apply and thus that it cannot evaluate the regulations proposed by the agency, which would defeat them. But you can imagine situations were there is standardless delegation but the agency promulgates such narrow, reasonable rules that the court would uphold them as clearly within the general powers of the agency. We see this in old public health laws where the delegation of authority is very broad and without guidance, but the agency rules are something simple like requiring smallpox vaccines.
> I am not clear on exactly what this question means:
> "Discuss waivers of rules, when they should be granted, and what
> political and due process problems they raise."
> Are you talking about waiver of rule-making procedures (as is
> touched on
> in the question preceding this one in the study guide) or are you
> talking about an agency agreeing to waive a rule as to a
> specific party
> so as to avoid fallout?
The second. We did not talk about it in class much, but the question is whether an agency should be able to waive a notice and comment rule for certain parties. Why might that be a legal problem? Why would that raise fairness and due process issues?
> I have a question about executive v. congressional agencies.
> Correct me
> when I go wrong:
> SEC- congressional, run by a board (etc) and has legislative and
> quasi-judicial power (but not enforcement).
> EPA- Same.... but I thought the head of the EPA was appointed by the
> president, wouldn't' that automatically make it executive?
You need to think a lot harder about what constitutes enforcement - what would legislative and quasi-judicial power be if not enforcement? Think about how the SEC differs from the CBO, which is a congressional agency.
> For the exam, should we focus on memorizing case names other than the
> major ones (Wooley, Bonvillian etc)? I noted that on a previous test
> there was a "name that case" section and I just wanted to make sure I
> didn't focus my attention where it wasn't necessary! Thank
> you so much!
No name that case section. Be guided by the study questions as to what case names are important.
> Also, a few of us were wondering, what is the plan of action for the
> final if it snows? Take-Home "notice and comment"? Or will it
> simply be
> rescheduled pending (law school) administrative adjudication? :)
We are at the mercy of the central panel, but the Chancellor assures us that exams will be delayed if there is more than 2 feet of snow. Watch your email for law school broadcasts about any changes in exam schedules.
> I've got a question about ALJs in LA agencies v federal
> agencies. Here's what I think I know (I'll keep it brief): in
> federal agencies, the ALJs are in house and the agency, if it
> is unhappy with the ruling, can do its own de novo review and
> come to a different conclusion. This can then be appealed by
> the regulated party to the district court, which will
> consider the ALJ's findings as part of the record. If the
> regulated party is unhappy with the ALJ's finding, it can
> appeal directly to the district court.
The agency does not do a de novo review because the ALJ's findings are part of the record and have to be considered. But the agency can reevaluate the ALJ's conclusions, and can add new material to the record in reaching its own decision. As for appeal - where do you appeal a trial court decision? Is the agency's ruling like a trial court decision? Generally you are going to be in circuit court, unless the court is going to do its own fact finding.
> Question: Why can't the agency appeal the ALJ's finding to
> the district court?
The legislature passed a law stopping them.
> is this a case where the Legislature, in
> "fixing" a problem simply overlooked that it was creating a
> new problem?
Depends on whether you think the legislature is dumb or biased against the agency, but they intended to screw the agency.
> Also, because federal agencies can't appeal ALJ
> rulings (because they're in house and all they have to do is
> make their own finding), is it that agency appeal of ALJ
> findings just never came up when the Leg. was drafting the new system?
Nope, the antiregulatory lobbies made sure they put it in the law.
> Also, about the perverse incentive: how does the agency "get
> into the district court" and get around ALJs altogether?
In many cases the agency can elect whether it wants to go directly to court for enforcement, or go to an ALJ. Usually, they would prefer the ALJ because it is faster and easier, but not in the LA system.
> I think there is a typo on Part 2 of the exam questions.
> "Why was the LA Legislature able to take away the power of
> the Insurance
> Commissioner to "
Why was the LA Legislature able to take away the power of the Insurance Commissioner to appeal ALJ decisions to the courts?
Thanks for bringing it to my attention!
> When you ask about the difference between an Article III jury
> trial and an ALJ hearing in reviewing evidence, do you mean
> during the proceeding itself (i.e., what evidence the
> court/hearing can consider) or on the record
> post-trial/hearing (i.e., the standard of review)? I'm
> assuming the former, but wanted to be sure.
The former - how does the procedure of the two trials differ.
> I’m having trouble answering this question: How does the
> standardless delegation relate to “no law to apply” and the
> refusal of the court to defer to the agency?
> From what I can tell, the “no law to apply” doctrine means
> that Congress has not delegated this power to an agency.
> There is no law to apply which would justify this power, and
> therefore the agency has to go back to Congress to get this
> power. On the other hand, the “standardless” doctrine means
> that Congress has delegated this power to the agency, but we
> aren’t sure what the extent of this power is, and therefore
> we use Chevron review.
If Congress has not delegated the power to the agency, the court's review stops at Chevron step 1 - the agency does not have the power, so the court need go no further. But that is not called no law to apply. If it were called anything, it might be no law at all.:-) No law to apply is when Congress clearly gave the agency the power, but did not give it any direction. As a hypo, say congress passes a law that Obama signs, tell the EPA to "fix global warming," with no details - standardless delegation. The EPA then promulgates rules to change the entire US economy. When these are challenged in court for overreaching the agency's power, how will the court know if the agency has exceeded its power?
> I am still a little confused about the Wooley/ Bonnvillian
> holdings. I know you addressed this in class but for some reason I am
> still confused. Is the reason they are inconsistent because
> the crux of
> the Wooley holding relies on the fact that there isn't a violation of
> the separation of powers because the ALJ's decisions are merely
> quasi-judicial because they are unenforceable, and then
> Bonnvillian held
> that they were enforceable as a matter of law (seemingly making them a
> violation of the separation of powers according to Wooley)? My notes
> seem to indicate that, but when I asked a few others in the class they
> seemed to say that Bonnvillian held that the ALJs decisions were
> unenforceable. I realize that the Bonnvillian court refused
> to grant the
> mandamus but I thought that was because the requirements of
> the mandamus
> weren't met, and they still held that the ALJ decisions were
> as a matter of law.
You are on the right track. The key is the second Bonvillian, you are exactly right about the first one.
> Does the "qualified immunity" defense apply to only 1983 and Bivens
> actions (while the "discretionary authority exception" only apples to
> FTCA actions)?? Or is there some overlap between the three immunities
> that I am missing?
You are correct. There are situations where the analysis of a qualified immunity claim looks about the same as the analysis of a discretionary authority claim - say if they are both based on the authority under a statute - but they are separate and distinct, tied to their respective causes of action.
> How does compromise resulting from bicameralism and presentment affect
> the politics of Congress? I assume that it fosters compromise
> and tones
> down political rhetoric (at least theoretically) that would
> not seen if
> there was a unicameral legislature. Is that correct?
The question should read:
Why is bicameralism critical to the compromise behind the different ways of allocation representation in the house and senate?
("the" was left out) What was the great compromise, i.e., how does the selection of the two houses of congress differ and why does that represent the great compromise? How does that compromise affect the politics of the two houses, i.e., how does the power of the states shift in the different houses?
> In regards to the question why a post-termination hearing was ok in
> Matthews and not Goldberg, I am lacking notes. But, from my Con Law II
> class I have as the answer:
> "The court thought a post-termination (and not a pre-termination
> hearing) was proper in Matthews because welfare benefits are the last
> social safety net to protect needy persons, while there are
> other social
> safety nets available to disabled persons that lose their disability
> benefits." Is this the proper rationale for the distinction?
No, that has little to do with the courts ruling in Matthews. Think about the key principle that comes out of Matthews - how did the court's analysis of due process shift in Matthews from the Warren Court emphasis on individual rights to the modern notion of administrative due process?
> * I am not sure if I have the answers correct for the following
> question, "Why would an agency want to use an interpretive rule rather
> than a legislative rule?" Is this correct? This is as much that I have
> been able to glean from my notes:
> * It would encourage voluntary compliance with the
> legislative rule
> * It allows the agency to avoid the costly and time
> consuming procedural requirements for notice and comment rulemaking
Those are both true, but are there other reasons an agency might not want to use notice and comment rulemaking, beyond the delay/cost?
> I am having a hard time distinguishing between the questions
> "What is the benefit to the regulated parties of having interpretive
> rule" and "What is the downside of preventing agencies from using
> interpretive rules?" It seems they are two questions with the same
> answer. For the first question (benefits to regulated
> parties) I have in
> my notes that it provides quidance to the parties, thus reducing the
> need for agencies to engage in a large amount of inspection and
In states that have limited the power to agencies to use interpretive rules, it was the regulated parties who pushed for the limits. Why would they do that, i.e., would they really want more inspection and enforcement? What would really happen, thinking also of your answer from the questions above.
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