Chapter 43

Subpoena duces tecum

"To bring it with you" (compels individual or organization to hand over books, papers, records, or documents to an agency)

Subpoena ad testificandum

"To testify" (writ or order compelling a witness to appear at an agency hearing)

Agencies Can Conduct Warrantless Searches in the Following Situations:

1) Highly regulated industries (firearms or liquor) 2) Hazardous industries (coal mines) 3) Emergency Situations

To Determine Whether an Agency Is Abusing Its Discretion in Pursuing Information, a Court May Consider Such Factors as the Following:

1) Purpose of the investigation 2) Relevance of information being sought 3) Specificity of the demand for testimony or documents 4) Burden of the demand on the party from whom the information is sought

Two basic types of subpoena

1) Subpoena ad testificandum 2) Subpoena duces tecum

Steps of a formal administrative adjudication

Complaint --> Answer --> Hearing before Administrative Law Judge --> Order of Administrative Law Judge --> Appeal to Governing Board of Agency --> Final Agency Order --> Appropriate Court for Review of Agency Decision --> Court Order

What situation can a warrant-less search be conducted?

Emergency situations

True or False: The administrative law judge and the agency's investigative and prosecutorial staff are basically one integrated unit.

False (Hint: APA requires the ALJ be separate from an agency's investigative and prosecutorial staff)

True or False: Every administrative hearing procedure must be exactly the same as legislated by Congress.

False (Hint: The hearing itself must comply with the procedural requirements of the APA and must also meet the constitutional standards of due process)

True or False: Before any on-site investigation by a federal administrative agency, most businesses resist those inspections by going to an appeals court.

False (Hint: When a firm thinks an agency's request is unreasonable and may be detrimental to a firm's interest, they may refuse to comply with the request.)

What type of industry: coal mines

Hazardous industries

What type of industry: firearms or liquor

Highly regulated industries

Initial Order

In the context of administrative law, an agency's disposition in a matter other than rulemaking. And administrative law judge's initial order becomes final unless it is appealed.

Who are the members of juries in administrative hearings?

No one, because there are no juries.

Administrative Law Judge

One who presides over an administrative agency hearing and who has the power to administer oaths, take testimony, rule on questions of evidence, and make determination of facts.

The FDA is investigating Shari's Cosmetics for possible violation of purity regulations. The FDA wants Yasmin, their lead chemist for the company, to testify at an administrative hearing. Yasmin refuses, so the FDA issues what type of subpoena?

Subpoena ad testificandum

What happens when no party appeals an adjudication?

The ALJ's decision becomes the final order of the agency

Final Order

The final decision of an administrative agency of an issue. If no appeal is taken, or if the case is not reviewed or considered anew by the agency commission, the administrative law judge's initial order becomes the final order of the agency.

Adjudication

The process of resolving a dispute by presenting evidence and arguments before a neutral decision maker.

True or False: When a negotiated settlement cannot be reached, the agency may issue a formal complaint against the suspected violator.

True

One important difference between formal litigation in a court and an administrative hearing before an administrative law judge (ALJ) is that:

an administrative hearing can admit hearsay as evidence.

Charges that an individual or a firm has violated an administrative rule are first brought before ______

an administrative law judge (ALJ)

The EPA wants to ensure that Delmar Oil Company is in compliance with federal environmental rules regarding cleanup of oil and gasoline spills. In order to do so, it:

can conduct an on-site inspection.

The Bureau of Alcohol, Tobacco, and Firearms suspects that Pawn Shoppe, Inc. is violating firearms regulations. To obtain evidence, the bureau:

can search the premises and seize evidence without a search warrant.

Private communications between the ALJ and any party to the agency proceedings are known as ____ communications.

ex parte

Following a hearing, an administrative law judge (ALJ) first issues a

initial order

The EPA conducts meetings to discuss the possibility of creating additional regulations within the next five years. Under the Government in the Sunshine Act, the meetings _____________

may be closed to the public

The Freedom of Information Act exempts records pertaining to

national security

The EPA and Zenith Dry Cleaners are negotiating a settlement for alleged violations of federal emissions standards. The EPA issues subpoenas duces tecum for all of Zenith's financial records for the past two years and orders Zenith to pay the costs. Zenith challenges the subpoena on the basis that:

the agency's request is unrelated to the emission violation and instead is aimed at pressuring Zenith into a settlement