If you have questions while preparing for the exam, email me. I will answer you and share the answers here so everyone will benefit.
In response to the study question:
After a legislative rule has been in place for several months, are there limits on challenging it in court?
Your powerpoint said to challenge the procedure quickly. At what point can you no longer challenge the procedure and can only challenge the published basis?
It will be determined by the enabling statute. In many cases it is 60 days.
admin 2016 exam question 3
- For the employees in roth and sindermann, was a contract/implied contract needed to find a violation of due process because they were private employees of a university? Further, since the driver in this case is a government employee of a state university, does this mean he gets due process rights simply because he’s an employee of the government? And if so, since there may be a factual dispute in this case as to whether the employee was “found to be using illegal drugs at work” does this mean that he gets a post deprivation hearing to contest the firing?
These are the questions you should be raising and analyzing when you have an employee firing. There is no bright line analysis – you have to use the facts to support your arguments.
- Further, in regards to the constitutionality of the search and the exclusionary rule, I have from my book notes that in INS v. Mendoza, the court held that the evidence from an illegal search was allowed to be used in a deportation proceeding. I understand that the distinction is one of prevention and punishment, so in this case, would the firing be more of a punishment as opposed to using the evidence to prevent an employee from violating the school’s policy, and thus, the school would not be able to fire (punish) based upon illegally obtained evidence from a criminal search?
In the punishment v prevention argument, punishment means being put in prison for punishment, as opposed to be put in prison to keep you from hurting other people. It does not apply to being mean to someone with administrative process.
- Also, does the fact that this is a regular police officer and not a school police officer make a difference? I thought that administrative searches only apply to agencies and inspectors and the like. Is this an administrative search? Or is the only relevance the fact that the criminal search resulted in illegally obtained evidence being used in the firing of the state employee?
That is what you need to think through for the question.
> The study guide for Chapter 8 asks what is the area warrant the See court came up with and when the See court said a warrant is not needed.
> I have read See and cannot find these answers. I have found the answers in Camara, but I just want to make sure that I am not missing anything from See.
Sorry for the confusion – See incorporates Camera and extends it to businesses.
> I am trying to understand the differences between the FTCA and LA tort claims. I understand that the FTCA has a broad notion of discretionary function, and that LA’s is much narrower. Does this mean it’s easier for LA state agencies to violate their discretionary function (agency’s have less discretion), and therefore subject the state to more liability? Or is it the alternative?
While the court in Gregor says that the DFE in LA is different from in the FTCA, does it ever show us how it is different? We do know that in LA, if the court finds that an action is not subject to the TCA and is thus outside the DFE, there are no limits on liability. In the federal system, if you fall outside of the FTCA, you cannot sue at all. So there are many more situations where agencies can be sued successfully in LA.
> If Gregor was analyzed under Berkowitz, what is the LA discretionary function standard or analysis?
If Berkowitz applies, do you even get to the DFE?
Thinking about the Mead Case
In the Mead case, there were notice and comment regulations that established tariff levels for different categories of imported trade goods. For years, the Treasury Department put day-timers into a category that did not have an import tariff. It then issued a letter that moved day-timers into a different category that did have a tariff. The deference question is over the letter that moved day-timers from one category to another. It is not over whether the categories themselves can be changed. Thus we have a letter ruling that the agency can change at any time – meaning that the agency is not bound by the letter ruling. When thinking about the court’s ruling on why the agency in Mead does not get deference, think about how this letter ruling is different from notice and comment rules.
> I was having a hard time figuring out what would
> happen if we were to apply R.S. 49:992(B)(2) to
> the governor’s office. I initially thought it would turn
> out the way Moore and Pope turned out.
> But I couldn’t come up with a definitive answer.
I assume that you are looking at the guide to reading the case:
You need to read it in context for the case paragraphs discussing the issue:
 In an adjudication commenced by the division, the administrative law judge shall issue the final decision or order, whether or not on rehearing, and the agency shall have no authority to override such decision or order.
 The enactment of this provision represents a change in our law. It has been explained by a former professor of law as follows:
 This is a remarkable provision. It makes an ALJ’s decision unreviewable by the agency itself. This means, in contrast to our years of believing that executive agencies should appropriately promulgate and enforce regulations, the ultimate power to interpret agency regulations and to enforce or not enforce laws and regulations has been turned over to the state’s ALJs. No longer do agency heads have the ability to reverse — under any circumstances, with or without explanation — an ALJ’s decision.
In the context of discussing the case, my intent was to raise the question of whether the Legislature could take away the governor’s power to contest ALJ actions. This would be pushing separation of powers.
More generally, use the final study guides as posted on the exam page for review. You do not need the level of detail that are in the guides for reading the cases.
Several students are confused over the difference between firing a public employee and not renewing the contract of a public employee. The Perry/Sinderman cases were the about whether there was a continued expectation of employment once the original term of employment had expired. That gets into the contract/practices analysis. If you fire a government employee before their normal term of employment has expired, or if they do not have a normal term of employment, they are entitled to know why they were fired, and to not be fired for an improper reason. That may or may not trigger a hearing, based on whether there are factual questions or mitigation questions. This is implied by constitutional due process rights and does not have to be part of an employment contract.
> I was looking through the study guides and I was curious as to what the
> purpose of the “Evaluation questions” is in relation to the broader questions
> asked first.
The learning objectives are general topics that you should be understand. The evaluation questions that explore those topics in specific detail to help you decide if you do understand the general topics.
#1 tip – Read the question carefully and make sure you are answering what I asked. No points for extraneous material.
#2 tip – For my exams, and probably for all length limited exams, stick to answering the question. Restating the question and reviewing the general area of the law just uses your words. I do not give points for general information, only information that answers the specific question.
#3 tip – Read the whole exam before answering any questions. Later questions may trigger thoughts that will help you answer earlier questions.