Administrative Law

When an agency promulgates a rule or issues an order, the agency is clearly engaging in what?

"Agency Action" This is important because Section 702 of the APA provides that "a person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."

What is the 4 part test for determining if an individual has standing?

(1) Has the Plaintiff suffered an injury, or is about to, (2) Caused by the alleged illegal action, and (3) would a favorable court decision remedy, or avoid, the injury (4) Prudential standing - NOT constitutionally based - Zone of Interests

What are the two conditions that must be met before an administrative rule-making may be overturned because of Congressional pressure?

(1) If the content of the pressure upon the Secretary is designed to force him to decide upon factors not made relevant by Congress in the applicable statute; and (2) If the Secretary's determination is affected by the extraneous considerations.

What are the 4 things needed for standing? (Like the other question bu simplified)

(1) Injury in fact (2) Causation (3) Redressability; and (4) Prudential Standing

What are the two types of administrative law?

(1) Law that governs agencies - Procedural Law - Substantive Law (2) Law that agencies make

What are the requirements for formal adjudication?

(1) Must give notice to the parties of its hearing, and offer an opportunity to reach a settlement. (2)Person presiding at the hearing cannot receive any ex parte communications. (3) Agency must conduct hearing in accordance with APA requirements.

What are the 4 elements of Jurisdiction?

(1) Standing (2) Court must have statutory grant of jurisdiction over the particular type of case (3) Plaintiff must state a cause of action (4) Claim must be ripe

What are the elements of jurisdiction?

(1) Standing - Including prudential standing - zone of interests (2) Court must have statutory grant of jurisdiction over the particular type of case (3)Plaintiff must state a cause of action (4) Claim must be ripe

What does the Substantial evidence standard apply to?

+ Both types of Rule-making: Formal and Informal Rule-making + Formal Adjudication

What are the two types of nonlegislative rules?

+ Interpretive rules + Statement of policy

What are the three main exceptions to the notice and comment requirement?

+ Rules of procedure + General statements of policy + Interpretive rules

Courts review agency action when it is alleged that the agency did what? (2 things)

+ The agency has incorrectly interpreted the governing statute; or + The agency's decision is arbitrary and capricious

Agencies get the most deference when?

+ When it is within their statute granted authority; + When it is within the agency's expertise

How are Secretaries of Executive agencies appointed?

- President appoints the heads with advice and consent of the Senate - They can be fired at will of the President

What do agencies do? (3 types)

1) Regulatory Agencies: regulate private conduct 2) Administer entitlements programs (Ex: Social security, medicare, welfare) 3) Everything Else (Ex: Nasa, IRS, USCIS)

What is a court required to consider when it is reviewing an agency decision?

A court is required when reviewing an agency decision to consider: (1) whether the agency acted within the scope of its authority; (2) whether the agency's actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; and (3) whether the agency's action met the necessary procedural requirements. (These are required by the APA)

Does school faculty need probable cause to strip search a student who they believe has drugs? Safford Unified School District v. Redding (2009)

A school-related strip search of an adolescent, conducted without probable cause, is unlawful under the Fourth Amendment.

What are interpretive rules?

A statement issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers.

What are policy statements?

A statement issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power. It announces that the agency intends to adopt a new duty in some future ad

What is the different between a subpoena and a search warrant?

A subpoena does not require judicial approval

Is a trial needed for informal rulemaking? Is notice and comment needed?

A trial is not needed for informal rulemaking but notice and comment is needed.

What does the APA require for formal adjudication?

APA requires the agency to use procedures that resemble a trial.

What is the importance of the zones of interests?

APA sec 702 authorizes lawsuits by persons who assert interests that are arguably within the zone of interests to be protected or regulated by the statute in question.

Adjudication is generally what?

Adjudication can generally be considered as everything that is not rulemaking.

What is the agency action of adjudication ?

Adjudication corresponds to the judicial function of the courts. Adjudication is applying an existing rule/statute to a set of facts to determine what outcome is required by the rule/statute. Short version: Applying law to facts to determine an outcome based on the law.

Which of the three agency actions would this fall under?: Determining the eligibility of an applicant for government benefits

Adjudication. In this situation you are applying the law (laws/statutes relating to eligibility for program) to a specific set of facts (depending on the situation of the applicant) and determining an outcome.

What are freestanding agencies?

Agencies that are not part of a Department

For an agency to win out in judicial review it should do what? (Important for exam)

Agency needs (1) a reasoned decision that (2) should be based on a review of all relevant factors in the record, (3) an absence of reliance on irrelevant factors, (4) there is a rational connection between the facts found and the decision. The decision has to be reasonable, made based on relevant factors, CANNOT be based on irrelevant factors, and there is a ration connection between the relevant factors and the decision.

What is Associational Standing?

An association can sue in its own name on behalf of one or more of the members if: (1) One of its members would have standing to bring the action, (2) The Lawsuit relates to the purposes of the organization, and (3) The injured doesn't have to be present to get relief

How does an agency get the authority to issue subpoenas?

Authority to issue subpoena must be conferred by statute.

What is the Contingency principle? (Delegation of Legislative Power)

Congress complies with the non-delegation doctrine when it establishes a policy and then directs the executive to implement the policy only if certain facts are true.

If Congress wants to preclude Judicial Review of agency action what must it do?

Congress must give clear and convincing evidence that it is meaning to preclude the judicial review. Has to be strong showing that judicial review is to be precluded by the statute/law.

How do agencies have the authority to make rules? (Rulemaking powers)

Congress or a State legislature establishes a legislative mandate for an agency when it creates the agency. The legislature can empower the agency to make rules ("power to fill up the details") in the mandate.

What is the purpose of the "intelligible principle" test?

Congress, according to the Constitution, has all legislative powers and can't give them away. However, Congress can give decision making power to agencies, as long as Congress has established an "intelligible principle" by which justices can determine whether the agency acted within its delegated authority. Congress can't just give up its power to other bodies. However, if Congress sets up a specific plan for the agency to follow then there won't be an issue.

Under the Substantial evidence standard, the court will uphold an agency rule if?

Court will uphold an agency rule if: + It finds the agency's decision to be reasonable; or + Record contains such evidence as a reasonable mind might accept as adequate to support a conclusion

When does a document become part of the public records? (Florida Public Records Act)

Documents can become public records when exhibited to public officials and revised as part of a bargaining process.

What are ex parte communications?

Ex parte communications are communications to someone involved in the decision-making process from an interested person outside the agency with respect to the merits of a particular case that are not made on the public record as to which all parties had notice.

When will ex parte communications violate due process?

Ex parte communications will violate due process when the communications introduce something new that will weigh in on the decision process and the public is unaware of it.

What are exemptions to the Freedom of Information Act?

Exemptions: 1. Classified info 2. Internal agency personal rules and practices 3. Information specifically exempted from disclosure by statute 4. Private commercial or trade secrets 5. Inter-agency or Intra-agency privileged communications 6. Personnel, medical, or similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy 7. Information complied for law enforcement purposes 8. Information related to reports for or by an agency involved in regulating financial institutions 9. Geological information concerning wells.

What is the Government in the Sunshine Act?

Federal sunshine requires that every portion of every meeting of an agency shall be open to public observations

What is the difference between the Public Records Act and FOIA?

Florida Public Records Act is at the state level. FOIA (Freedom of Information Act) is at the federal level.

What are the two types of rulemaking?

Formal rulemaking and informal rulemaking.

What does FOIA stand for?

Freedom of Information Act

How long does the Gov have to respond to a FOIA request?

Government should respond to a FOIA request within 20 days, but that time is constantly extended

Under the Public Records Act, when can a private institution be subject to it?

If a private institution is acting on behalf of a public agency, then it may be subject to the act. Use the Totality of the Factors/Circumstances Test to determine if the private entity is acting on behalf of the public agency.

What is the biggest exception for having to go through the rulemaking process?

If it deals with military or foreign affiars.

Section 707 of the APA excludes agency action from judicial review if what?

If the action is "committed to agency discretion by law." In other words: If a statute grants discretion to an agency, and the law does not establish a standard against which to assess the exercise of that discretion (so that a court can determine if there was an abuse of discretion), then Congress has committed that action to agency discretion by law.

How are notes/docs that are intended to be transmitted or used viewed under Florida Public Records Act?

If they are intended to be transmitted or used, they are likely subject to public records.

How do you cure an issue with an improper communication? (Florida Government in the Sunshine Act)

If you have an improper communication in Sunshine, cure it by disclosing the communication and then allowing further discussions so that after the disclosure, in effect, a new deliberative process takes place

What is the agency action of investigation?

Investigation is part of the executive branch function of law enforcement. During investigation, agencies determine whether someone may be in violation of an agency rule of the agency's legislative mandate.

What is the big picture definition of the Administrative Procedure Act (APA)?

It defines the procedural rights of persons outside of government and structures the manner in which persons inside government make decisions.

What does a subpoena force a party to do?

It forces a party to give documents/testimony.

Under Public Records Act, what is the totality of the factors test?

It is a test to determine if documents are subject to the act. (There are 9 factors but don't have to memorize for exam)

For an agency action to be final it must be what?

It must be an action by which rights or obligations have been determined, or from which legal consequences will flow.

Judicial powers extend to ___ and ___. (Constitutional Standing)

Judicial powers extend to cases and controversies.

What is the definition of "meeting" under the Government in the Sunshine Act

Meeting defined as at least a quorum of the members of the agency required to take action. It must involve deliberations that determine or result in the joint conduct or disposition of official agency business

What are the requirements of subpoena when an agency issues one?

Must be specific as to what is sought and the object of the subpoena must be relevant to subject matter that the agency is authorized to investigate

When determining if a decision is arbitrary and capricious, the court must consider?

Must consider whether: + The decision was based on a consideration of relevant factors, and + Whether there has been a clear error of judgement

In order to be adequate, such notice given by an agency to an adverse party must contain what? (John D Copanos..inc, v. FDA(1998))

Must contain enough information to provide the respondent a genuine opportunity to identify material issues of fact.

Do you need to comply with notice and comment requirements for procedural rules? What about for substantive rules?

No for procedural rules. Yes for substantive rules.

What does the 5th amendment prevent?

No person shall be compelled in any criminal case to be a witness against herself. It stops someone from having to act as a witness against their self.

Can an Administrative Law Judge second-guess, ignore, or invalidate the formally adopted legal positions of the agency?

No, because the Admin Law Judge (ALJ) is an employee of the agency. The agency adopted the rule, and it is conclusively presumed to be valid for purposes of the proceeding before the ALJ.

Can Congress allow the President to use Congress's lawmaking authority?

No.

Does a subpoena require probable cause?

No.

Does the fifth amendment apply to corporations?

No.

Can an agency hold a person in contempt?

No. An agency cannot hold a person in contempt (only court has contempt power), can only get a court to enforce a subpoena

Can Congress retain an active role in supervising officers tasked with executing the laws of the United States ?

No. Article II, Section 2 of the Constitution permits the President to appoint officers with the advice and consent of the Senate, but then explicitly states that Congress shall only be involved in removal of these officers through the impeachment process.

Can a custodian of the record for a corporation claim the 5th amendment?

No. Custodian of the records of an entity cannot claim 5th amendment for such papers, even if the act of producing them might be incriminatory, since the custodian holds such papers in a representative capacity.

Do Federal standing law apply to state courts?

No. Federal standing law does not apply in state courts, or in state administrative law. Most states have their own rules.

Do agencies have inherent authority to issue subpoenas?

No. Have to be authorized by a statute.

Hypo: Does a doctor have standing to sue to assert that a state law prohibiting the prescription of contraceptives violates the constitutional rights of his patients? (Tileston v. Ullman (1943))

No. He would not have standing since he is trying to sue on behalf of another person. (He was able to later show an injury in fact for himself based on a financial harm to him because of the law)

Does Congress have the power to remove presidentially appointed individuals?

No. However, Congress does have impeachment process for certain positions.

Do inferior officers have to be appointed by the President?

No. Inferior officers do not necessarily needs to be appointed by President, may be appointed by heads of departments

Does preparation of documents for submission to a public body make the documents into public records? (Florida Public Records Act)

No. Mere preparation of documents for submission to a public body does not create public records.

Can a court require an agency to use procedures more demanding than those required by statute or the constitution?

No. Reviewing courts are generally not allowed to impose additional procedural requirements on administrative agencies' rulemaking processes.

Are short-term notes usually subject to the Public Records Act?

No. Short-term notes that are not being communicated to anyone or meant to commemorate anything are not subject to public records act Once you transmit something (notes or drafts) it becomes public records

Can Congress appoint Officers?

No. The Appointments Clause vests the power to appoint "Officers of the United States" exclusively in the President.

Can agency's conduct issue subpoenas in the hope that some evidence of wrongdoing will surface?

No. While they dont have to show probable or reasonable cause. Fishing Expeditions are not allowed.

Does an individual, who has suffered no personal injury, have standing to litigate a generalized grievance against the government in federal court?

No. You have to have suffered a personal injury. Suffering a generalized grievance, where the harm is suffered equally by all citizens, does not give you standing.

Can a plaintiff asserts the right of a third person by suing for them? (Prudential Standing)

No. The requirement that a person cannot assert the rights of others reflects the Court's judgement that it is generally unsuitable to have someone litigate the rights of another person even if the potential plaintiff can claim an actual injury.

Do lawyers usually try to argue factual issues when in appellate court?

No. They try to avoid overturning factual findings of the lower court because the appellate court is highly deferential to the factual findings of the lower court.

When is notice considered to be adequate if there is a change being made to the original plan?

Notice is adequate if the changes in the original plan are "in character with the original scheme," and the final rule is a "logical outgrowth" of the notice and comments already given. The Logical Outgrowth Test

Only agency action which is _______ and for which there is no ________ is reviewable under the APA.

Only agency action which is specifically reviewable by statute and for which there is no adequate remedy in a court is reviewable under the APA.

What does the Government in the Sunshine Act apply to? (What type of agencies?)

Only applies to agencies headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such permission by the president with advice and consent of the senate

When must an agency comply with formal rulemaking?

Only if the statute explicitly requires it. If the statute does not explicitly require it then informal rulemaking can be used.

What is the Intelligible principle test? (Delegation of Legislative Power)

Permits the delegation of discretion, but requires an agency to make decisions which are consistent with the general policies defined by Congress. • Congress doesn't violate the prohibition against delegating its legislative authority as long as it sets the boundaries of the agency's authority • It is okay to find the principle in the legislative history b/c it is a way of interpreting the statute

Who is a principal officers?

Person who, regardless of title, has ultimate responsibility for implementing the decisions of the governing body, or for supervising the management, administration, or operation of the organization.

How do you determine if a plaintiff wins against the government (for the sake of getting attorney's fees)?

Prevailing party = Must succeed on any significant issue in the litigation but a technical victory may be so insignificant as to support prevailing party status Equal Access to Justice Act = If a plaintiff wins against the government, then plaintiff is awarded not only costs but also attorney's fees

Difference in availability of information between FOIA and the Public Records Act?

Public Records Act allows for greater availability of information than FOIA

Who mainly uses FOIA and Florida Public Records Act?

Reporters/Media use it alot to get information.

What does FOIA require?

Requires that agencies "upon request for records which reasonably describes such records and is made in accordance with published rules stating the time, place, fees and procedures to be followed, shall make the records promptly available to any person"

What does the Freedom of Information Act require?

Requires that agencies "upon request for records which reasonably describes such records and is made in accordance with published rules stating the time, place, fees and procedures to be followed, shall make the records promptly available to any person"

What is the agency action of rulemaking? What is the restriction on this power?

Rulemaking corresponds to legislative action. It is the promulgating of a regulation that has the same force and effect of law as if it was passed by congress or state legislature. Restriction: Rulemaking authority is limited to what the agency has been delegated. (Cannot make rules on things the agency hasn't been given authority to make rules on).

What are the 3 types of Agency actions?

Rulemaking; Adjudicating; and Investigating.

What is the standard that has to be met before issuing a search warrant? (repeat of another question just worded differently)

Search Warrant: Not mere suspicion and not probable cause of a crime/law being violated. The standard is: two components: (1) specific info that there is a violation; (2) agency has a neutral plan/methodology for inspecting businesses/individuals w/in it's scope of regulation

Who heads departments?

Secretaries.

What is the Florida Government in the Sunshine Act? How does it differ from the federal Sunshine Act?

Similar to the federal Sunshine Act, but any deliberation which does not involve all members of the organization is a considered a violation, which can be cured through disclosure and meaningful discussion

What are the two main tools used by Agencies in their investigation functions?

Subpoenas and Search Warrant

(Adjudication: Ex Parte Communications) Fundamental fairness requires that talks should be done how?

Talks should be done through the adversarial process. Need open and public proceedings. Communications after notice/comment are not good.

The purpose of the notice requirement of the APA is satisfied when? (Southwest Sunsites, inc. v. FTC (1986))

The APA notice requirement is satisfied if the party proceeded against: (1) understood the issue; and (2) was afforded full opportunity to justify his conduct.

The US Constitution says that (principal) officers are to be appointed by who?

The President.

If an agency wants to enforce an subpoena (that the party is not complying with) what can it do?

The agency would have to go to court to enforce the subpoena.

What is the border search doctrine?

The border search exception or doctrine is a doctrine that allows searches and seizures at international borders and their functional equivalent without a warrant or probable cause. The expectation of privacy is less at the border, the 4th Amendment balance between the interests of the government and the privacy right of the individual is also struck much more favorably to the government at the border. This balance at international borders means that routine searches are "reasonable" there, and therefore do not violate the 4th Amendment's proscription against "unreasonable searches and seizures".

What must the court analyze when deciding if an agency action was arbitrary and capricious?

The court must analyze whether the agency's decision was based on a consideration of all the relevant factors and whether there has been a clear error of judgment.

What is the Court's role during judicial review of agency action?

The court's role is not to weigh or re-weigh the evidence, but determine whether the agency decision meets the Substantial Evidence standard.

To have prudential standing, what can't the injury be?

The injury suffered cannot be a generalized grievance suffered equally by large numbers of people.

If there is conflicting evidence on appeal, who wins out over that dispute in fact?

The non-moving party. The person who moved to bring the issue to the appellate court does not win issues of disputed facts.

If an agency wants to get a search warrant what is required?

The standard is: two components: (1) specific info that there is a violation; (2) agency has a neutral plan/methodology for inspecting businesses/individuals w/in it's scope of regulation Requires that the agency have a neutral plan for inspections, and proof that the company to be inspected was selected according to that neutral plan (Barlow test)

What provision allows the President to remove officers?

There isn't one that allows it. Court decided that this is an inherent presidential power.

Who are Administrative Law Judges employees of?

They are employees of the agency for which they act as judges.

Under the Public Records Act, how are notes and drafts meant to transmit or commemorate info viewed?

They are viewed as part of the public record and subject to the act. This is because they are meant to be transferred and are written to commemorate info.

How are agencies even allowed to promulgate rules?

They have to authorized by Congress. Have to have explicit statutory authority.

What are the three requirements that have to be met before judicial review is allowed?

Three things must happened before Judicial review can be had: - Finality: There must be a final agency action - Exhaustion: A party must have had exhausted all administrative remedies - Ripeness: The action must be ripe for review

What is the time limit difference between FOIA and the Public Records Act?

Under FOIA, there is suppose to be an initial response within 20 days but is often extended. Under Florida's Public Records Act, the response must be much sooner, within a couple of days. FOIA (Fed level) - More relaxed, more time to respond Public Records Act (State level) - much more responsive and sooner

An appellate court will affirm a decision unless?

Unless the judges find that the decision by the lower court was arbitrary and capricious.

How can ex parte violations be cured?

Violations can be cured by placing the communications on the public record with notice to all parties, with the possibility of sanctions against the violator.

What must Congress do when it confers decision making authority to agencies?

When Congress confers decision making authority to agencies, it must set forth in a legislative act an intelligible principle to which the person or body authorized to act is directed to conform.

What happens if an ALJ hears post-hearing reports outside of the testimony adduced at the hearing? ((John D Copanos..inc, v. FDA(1998))

When an ALJ chooses to go outside the testimony adduced at the hearing in making a determination, the ALJ must afford the claimant not only an opportunity to comment and present evidence but also an opportunity to cross-examine the authors of any post-hearing reports, and must reopen the hearing for that purpose if requested.

What do courts review when reviewing an agency decision involving a mixed question of law and fact? (2 things)

When reviewing an agency decision involving a mixed question of law and fact, courts review: (1) the facts found by the agency to determine whether the agency's conclusion has "warrant in the record" and (2) the agency's explanation of its decision to determine whether the decision has a reasonable basis in law.

What is the Chevron 2 step?

When the Court is reviewing an agency's construction of a statute, the court asks: 1) Whether Congress has directly spoken to the precise question at issue; and (if answered yes then analysis is done, if answer is no then go to step 2) 2) if Congress has not, Whether the agency's answer is based on a permissible construction of the statute

What is the Equal Access for Justice Act?

When you are litigating against fed agency and win, you get costs and attorney's fees; unless gov can show that it's actions were substantially justified

What is the core question to ask about finality?

Whether the agency has completed its decision-making process, and whether the result of that process is one that will directly affect the parties.

Is the Substantial evidence standard highly deferential? Does the Court have to agree with the agency's interpretation?

Yes, the standard is highly deferential. No, the court does not have to agree with the agency's interpretation for the court to uphold it.

Are lobbyists allowed to talk to agencies to try to get them to act in a certain way?

Yes.

Can the President remove officers?

Yes.

Is there a presumption of Judicial review-ability?

Yes.

Could an action be voided if it is taken in violation of Florida's Government in the Sunshine act?

Yes. Actions taken in violation of the Government in the Sunshine are voidable

Are agency rules subject to judicial review? (When the agency uses its rulemaking authority)

Yes. Agency rules are subject to judicial review to ensure that a rule does not exceed an agency's statutory authority.

Can ex parte communications that take place after notice/comment be corrected?

Yes. They can be corrected by putting them on the record. Except meetings between executive agencies don't have to be put on the record. Alleged errors will only invalidate a rule if they are of central relevance to the outcome.

Does formal rulemaking and informal rulemaking have the same force of law? (Are they equally as powerful?)

Yes. They have the same force of law.

Do agency's have to explain when it rescinds a regulation? (Motor Vehicle Manufacturers v. State Farm (1983))

Yes. When an agency rescinds a regulation, it must explain the evidence underlying its decision, and offer a rational connection between facts found and the choice made.

Do agency's subpoena have force of law?

Yes. Even though they can be issued by the agency without going to the court, if the subpoena is not complied with the agency can go to court to have it enforced.

Is a judicial review of an agency action available if the statute that governs the agency action does not expressly provide for such review?

Yes. Judicial review of a final agency action by an affected individual will not be cut off unless Congress clearly intended to prevent such review. Under the Administrative Procedure Act, final review of an agency action is available when authorized by statute or when there is no other adequate remedy in court. The existence of a specific procedure for reviewing certain regulations other than those at issue here does not necessarily mean that Congress intended to bar other acts from judicial review.

What type of standing is the "zones of interests" test tied to?

Zone of interest is prudential standing

Does getting a search warrant require more than a subpoena?

yes.

Under the Public Records Act, what documents are subject to the act?

• All documents sent to public agency, government is subject to public records act • All personal docs sent inter-office are not • If private company is doing a lot more than just private functions (i.e. higher outside company to manage airport; airport is government owned/ran operation) private company makes itself subject to public records act