Administrative Law (5402)
Fall 2010
Exam Blog

I will post questions from students here so everyone can benefit from the answers. I will also include exam tips and clarifications of questions. The blog will close the evening before the exam. New material will be added at the top.

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1) Can groups ever sue the government on behalf of unrelated third parties? Why would such a group want to do this? As a sort of indirect opinion letter for common activities that the group is involved in?

Look at the test for associations to have standing - could an unrelated party meet the standard? OTOH, since associations are free to modify their purposes, if the association wanted to represent that party, it could probably figure out a way to bring the party under its umbrella.

2) Would it be accurate to say that a reviewing court, when looking at an agency's factual determinations, asks whether an agency was arbitrary/capricious in finding or not finding a preponderance of the evidence?

I think you are confusing standards of proof in trials and standards of review. Is preponderance of the evidence an agency standard at all? What is the standard the agency has to meet in its record for the court to find that it was not arbitrary and capricious?

3) Is it accurate to say that for both a federal and a Louisiana ALJ decision, that decision is most persuasive to the courts when it is accompanied by a complete record? What about the level of specialty/expertise of the ALJ (for feds, because Louisiana DAL ALJs are never specialists, right?)

Think about what you mean by a complete record. The court only sees what is in the record. If the record is incomplete, can the court even evaluate the agency's actions? What would the court do then to make the agency fix the record? Whether the record is complete or incomplete is separate from whether it is persuasive. Since agency expertise is one of the factors justifying deference, should the state courts give as much deference to the agency as the federal courts?

4) Would it be accurate to say that "hard look" is a review of an agency's process, whereas plain deference to agency decision making is purely about the reasonableness of the decision regardless of the process?

Can the decision be reasonable if the process is not? Remember those employment hearing cases - the plaintiff often got an hearing, even thought there are few cases in which anyone believed it make any difference in the outcome. But you have the right sense of hard look as being a more picky look at the process and at the documentation in the record. So procedure always matters and is always considered, but hard look does not cut the agency any slack.

5) From the oyster case, when you ask what a "non-discretionary function" is, couldn't you just say this is "legislative mandate," or is there a particular name that I can't find?

Legislative mandate is certainly one way to show it a non-discretionary function. Remember ministerial functions?

6) Does "character of the waters" in Central Green refer to their source? Or how they got to where they caused damage? Is there a kind of foreseeability issue here?

The court is pretty clear about what it means.when you read the last couple of paragraphs together.

7) Did the Graci plaintiffs lose on remand because of the discretionary function doctrine?

Yes. The court found that the Corps build the canal as directed by Congress, so that there was no evidence to show that the Corps had been negligent. Congress might have been wrong, or even stupid, but as long as the Corps was following Congressional direction, it is not negligent.

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1) In LA, after Wooley, Bonvillian, and the legislative amendments, it has been established that agencies have no right to appeal an unfavorable state ALJ decision. Could the state agency seek any kind of review, even a declaratory judgment against the ALJ order, or is the agency bound no matter what?

Look at the slide about Wooley on remand. Then go tell the head of the ethics board about his chances on appeal.:-)

2) Am I correct that there are three unresolved issues in ALJ enforcement after the legislative amendment in response to Wooley: 1) Whether a trial court will order enforcement, such as a writ of mandamus, 2) if the party even has to get a writ of mandamus or a declaratory judgment, or is the agency bound to comply by the amendment, and 3) the constitutionality of any of these options on the separation of state powers, considering that such enforcement power undermines the LASC's constitutional reasoning in Wooley?

Bonvillian I and II answer the first 2 questions. Only the LA SC can answer the third.

3) In an informal adjudication, does the burden of proof remain with the APA default, the "proponent of the order", or does it not matter so long as it complies with procedural due process?

It has to stay the same in order to comply with procedural due process. But what is confusing is whether the burden means much in practical terms when the court is going to defer to the agency.

4) Finally, when considering formal and informal rulemakings and adjudications, I am confused of the necessity of the record. In formal proceedings, the APA requires the agency to substantiate its findings in the record. While this is not required for informal rulemakings and adjudications, it is effectively mandatory because the only thing a a reviewing court will consider is the record, right?

Overton Park was an informal process. What did the court make the secretary do? That should reassure you.

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Exam tip one - some study questions require independent thought and the application of common sense. Do not be afraid to use these tools.

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The MWAA case has a whole slide dedicated to it but I do not see any questions addressing it in the review questions. For this and similar cases that are not in the review questions, should we worry less about them in studying for the exam?

The only case names you need to worry about remembering are those specifically mentioned in the slides. While older exams had a "name that case" section, I no longer do that.

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One of your study questions is: what is Sec 706's basic standard for reviewing facts determined by an agency. What exactly do you mean by "basic standard?" The statute lists both "substantial evidence" and "arbitrary and capricious." I know that the standard used in formal rulemaking and adjudications is substantial evidence whereas the standard for informal proceedings is arbitrary and capricious review. I'm guessing the "basic standard" is substantial evidence? ... I forgot to add that the majority of agency action, as I understand it, is done "informally." Moreover, Slide 22 for Chapter 7 that arbitrary and capricious review is the "most common standard." Is this a hint to my question?

Yes.

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> I am struggling a little trying to answer your question in chapter 6 about whether compliance orders are ripe. I know that in Standard Oil the court held that a decision to investigate couldn't be final agency action, because the agency had only determined that they had "reason to believe" that Standard Oil was engaged in illegal practices, and they had only decided to investigate, not take any kind of enforcement action. So I guess the argument would be that this case is distinguishable because here the agency has decided when it issued the compliance order that the company is in violation of the law?

Your client is in the sugar business and has an EPA permit for discharging waste water from a sugar mill. The EPA sends a letter to your client saying that the EPA has determined that your client is discharging too much waste sugar in the water and that your client needs to comply with its permit or the EPA will take further action. What are your client's options? Is there anything to contest? What should your client do if it believes it is complying with the permit? If it is not complying? Is there anything ripe for the court?