Climate Change Project

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Exam Blog

Administrative Law - Spring 2009

Questions are flush, my answers are indented.


I have a question about the wording of one of the review questions which reads " When a hearing officer is overruled by the agency, how should the reviewing court treat the ALJ's opinion?" By 'agency' overruling the hearing officer, do you mean 'ALJ' overruling the hearing officer? Or does this question contemplate three distinct decisionmakers?

The hearing officer is the ALJ in this question. The question goes to how the court treats the ALJ opinion, which will be part of the agency record on appeal to the courts.



I am not sure if I missed it in the book, slides, or even the internet but the five questions spanning subpoenas I cannot seem to find answers for anywhere (including fellow classmates). If you could provide some answers or directions I would greatly appreciate it.

Review this section of chapter 8: C. Fifth Amendment Limits on Reporting Requirements and Subpoenas


I am confused about no law to apply in the case about the FDA and lethal injections.

You should always think about the "no law to apply" doctrine from the perspective of the court reviewing the action, or failure to act. When an agency wants to do something, the court has to have enough direction from Congress to evaluate whether the agency is properly carrying out the Congressional mandate. If the delegation is too general, the court cannot determine if the agency is acting properly. OTOH, if the agency is refusing to act, as when the FDA refused to stop the use of regulated drugs for lethal injections, the court will not force the agency to act unless the law is clear and gives the agency no discretion. Thus there was no law to force the FDA to act.


How does "assignment of work" differ for Art. III judges vs. ALJ's?

Who does an ALJ work for? Where do they get their work? Can you rate their work? How does this compare with an Article III judge?

What are the adjudication record requirements?

What is the purpose of the record? What does the court need to properly review the agency action?

Max you can win in Due Process case?

Think about the job loss cases - does getting a hearing atomically get you your job back?

How can rulemaking narrow issues for adjudication?  I know we had a specific example in the case, but can't for the life of me find it!

Keep looking.

I don't understand the context of last question on study guide 1: Discuss waivers of rules, when they should be granted, and what political and due process problems they raise.

Fair question - since I do clearly remember covering this, ignore it.

Can you contest opinion letter to 3rd party?

Look at the discussion in the book about National Automatic Laundry and Cleaning Council v. Shultz, 443 F.2d 689 (D.C. Cir. 1971).

What does altman tell us?

How did the court analyze qualified immunity for dog catchers?

How was FTCA amended after Bivens?  Added intentional torts by law enforcement officers.  Is there more?

No, but what are the implications of for reducing the number of Bivens actions as compared to before the amendments?

What does oyster case tell us about discretionary authority under LA law?

Does LA seem to follow the standards are the federal courts?


What are situations when an individual does not have rights against a third party subpoena? Are these the same situations as apply to third party reporting?

Review this section of chapter 8: C. Fifth Amendment Limits on Reporting Requirements and Subpoenas

When does exhaustion result in preclusion? Is this a reference to the Sims case dealing with issue exhaustion?

Yes, it is an issue in Sims. The idea is that when the agency requires issue exhaustion and the regulated party does not present all the issues to agency, then these issues will not be reviewed by the courts.


In class you told us not to worry about the delegation doctrine. I think there’s even a slide that says the book covers it in great deal but we don’t have to worry about it. Should I worry about the study questions on the delegation doctrine?

You need to know that it was a problem, and how it was solved. In a nutshell, to coin a phrase, in the old days, the Supreme Court believed that there were limits to how much legislative power could be delegated to an agency. See below.


> 8. What is the "no law to apply" doctrine and how did it resolve the
> delegation doctrine problem?
> #8 - Aren't these essentially the same issues? "no law to apply" is an
> overly broad statute or regulation and the "delegation problem" is an
> unconstitutional overly broad grant of power. I don't understand how
> one can resolve the other.

In the old days, when Congress delegated too much power to an agency, i.e., too much freedom to pass its own laws through regulations, the court would declare the statute unconstitutional as violating the delegation clause.

Once the court accepted that it was constitutional to delegate power to an agency, there were still situations where Congress gave the agency too much power by sufficiently spelling out in the statute what the agency was to accomplish under the statute. Rather than declare the statute unconstitutional, the court rules that the statute does not provide enough law for the agency do know its role and for the court to evaluate that role, i.e., that there is no law to apply. So the agency still must go back to Congress for more direction, but the court does not have to be in a constitutional fight with Congress. This solves the problem of striking down the law without questioning the general authority of Congress to delegate power. It just requires Congress to be more specific.

> 11. Discuss mandamus, including the standards for relief and when you
> would use it.
> > #11 - When/where did we discuss mandamus? I'm struggling with finding
> information.

Bonvillian v. Dep't of Insurance, 906 So.2d 596 (La.App. Cir.1 2005) and after remand and appeal - Bonvillian, round II, 2008 CA 0591

> May congress give anyone standing to sue?
> How does this satisfy Injury, Causation, and Redressability?
> I think I understand that the answer to #1 is "Yes", but #2?

Think about the Endangered Species Act. Do you have to personally kiss a snail darter to bring the case? These must always be Injury, Causation, and Redressability, but the person bring the suit does not have to personally suffer the injury. Congress can give standing to sue on behalf of others, on behalf of the government (qui tam actions), or on behalf of society (Endangered Species Act)


For the past 2 days I have been trying to answer the questions that you posted on you website as our exam review. I am finding this task very difficult. I have read the E&E book cover to cover twice, and I have read the assigned cases, yet I am still finding that answering these questions to be difficult, and is seems like you have yet to post the other half of the questions. Should I be concerned? Do you have any suggestions for the best way to study for your test? Maybe look at the old tests? Is the format of your test going to be like 2004 where you ask 20 questions about specific cases looking for case names? Or more like 2005 and 2006?

My guess is that you are overreading the questions. I have posted two additional exams to the archive, 2007 with answers, and 2008. The answers to 2007 are as terse as can be while still answering the question, I would not expect a student to be as well focused. The exam will resemble these, and I think seeing the answers will help you better understand what I am looking for. Previous exams, which focused more on cases, where taught from different materials.






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