CHP 17 LAW

Review Prohibited by Statute

-Congress may specify in the statute which court has jurisdiction for review -Can prohibit certain judicial review

Controls on Agency Powers

-Direct controls -Indirect controls

Lujan v. Defenders of Wildlife "LEGAL STANDING"

-Environmental groups argued that U.S. should stop providing aid to Egypt to build dams on Nile River. Building of dams endangers the rare Nile crocodile. Groups asserted providing aid should comply with U.S. Endangered Species Act. Court held: Plaintiffs lacked standing and have suffered no "injury in fact". Concern about crocodiles in Egypt is too remote. Disagreement with agency policy is not equal to an injury. **no standing because there was no injury; outside US don't have a standing**

Reviewability

-Review of Substantive Determination -Review of Statutory Interpretation -Review Prohibited by Statute -Review of Procedural Requirements

"You Wanted the Information This Decade?"

An open-government advocacy group's survey of agencies showed: Eight had Freedom of Information Act requests unresolved after more than a decade. FOIA requires resolution within 20 days Allows a 10-day extension under "unusual circumstances." Sioux City, Iowa requested documents for the Postal Service regarding its decision to move some jobs away from Sioux City. The Postal Service estimated that the fee for providing the documents would be $831,000.

Indirect Controls

*Freedom of Information Act*: makes the most documents held by federal agencies available to the public; Unless the document falls within certain exempted categories, it must be released upon request from a citizen -exempted are trade secrets, national security, anything with personal privacy *Privacy Act*: gives citizens input about what information is collected about them and how that information is used; notice and prior consent are required before an agency can disclose information that concerns and identifies an individual *Government in the Sunshine Act*: limits secret meetings by agencies; the public is entitled to at least one week's notice of time, place, and subject matter of agency meetings

Administrative Regulatory Powers

*Legislative Power* (Rulemaking): Develop rules to implement the agency's regulatory policies *Investigative Power*: Obtain needed information to ensure that the statute and agency rules are observed *Adjudicatory Power:* Resolves disputes and violations through a judicial type of proceeding *Enforcement Power*: Impose sanctions to encourage compliance with statutes, an agency's rules, and an agency's adjudicatory outcomes -all powers of the 3 branches of the government are incorporated into an agency

Administrative Law

-Administrative law consists of legal rules that define authority and structure of an agency that then issue regulations *-Sources include:* -The enabling statutes of administrative agencies -The Administrative Procedures Act -Rules issued by administrative agencies -Court decisions reviewing the validity of agency actions -The APA determines the primary structure of administrative law; defines procedural rules and formalities for federal agencies -An agency must abide by APA requirements -Congress may impose different requirements than the APA

Enforcement Power

-Agencies have an array of enforcement tools in civil and criminal penalties, plus the use of injunctions -Possible sanctions: -Prohibitions, requirements, limitations affecting the freedom of a person -Withholding of relief -Imposition of a penalty or fine -Destruction, taking, seizing, or withholding of property -Assessment of damages, reimbursement, restitution, compensation, costs, charges, or fees -Requirement, revocation, suspension of license *Informal procedures*: tests, inspections, permits, negotiations, advice, settlements *Formal procedures*: adjudicatory hearings. Businesses sometimes request a jury at an administrative hearing. **Formal are hearings; informal are they have you do a test apply for a permit, not a court hearing**

Enforcing Rules

-Agencies must gather information and investigate violations -Agencies investigate through: 1) Regulated businesses are required to self-report and monitor their own behavior -Businesses argue that reporting self-incriminating evidence violates the 5th Ammendment 2) Direct observation determines if a business is following the law -no warrant is required if evidence is obtained from an "open-field" observation, that is if evidence is gathered by an inspector through observations from areas where the public has access 3) Agency obtains information through *subpoena* power: a legal instrument that directs the person receiving it to appear at a specified time and place to testify or to produce documents

Direct controls

-Congressional budget process -*Agency Appropriations & Reporting Requirements*: Congress requires agencies to report on programs and activities on a regular basis; Congressional committees frequently hold oversight hearings; Administrative agencies frequently submit annual budget requests for review by the president and Congress -*Cost-Benefit and Risk Analysis*: requires agencies to weigh the costs and benefits of new regulations; when the costs exceed the benefits derived from a regulation, the regulation is more easily challenged for reasonableness ex: Example: Office of Management and Budget may send proposed regulation back to agency if scientific, technical and economic information standards are not met *Presidential Executive Orders*: instructing tasks to be undertaken by agencies ex: President Johnson's order to agencies re: affirmative action programs

Dow Chemical v. US

-Dow denies EPA entry to its complex for an on-site inspection. EPA hires commercial aerial photographer who uses a precision mapping camera to view 2000-acre outdoor manufacturing facility area. Dow claims there is a 4th Amendment Constitutional violation re: warrantless search & seizure. District Court rules for Dow; Court of Appeals reverses for EPA. *Supreme Court HOLDS: Aerial photographs from navigable airspace are not a 4th Amendment violation. Photographing is lawful, if area is observable by the general public. However, cannot "penetrate walls"; that would violate trade secrets or confidentiality. Use of highly sophisticated technology is questionable as well. This concept is changing as technology is becoming more and more available to the public. * **There is going to be some kind of outer picture taking of violations attached listening device to see if they are violating of any agency that is illegal outside is fine but other is not **

Adjudicatory Hearing

-Formal agency process under APA rules -follows rules similar to those followed in a trial, but is somewhat less formal in terms of procedure and evidence -Initiated by the agency filing a complaint -The business must respond to the complaint that alleges violation of the law enforced by the agency; If matter is not settled by negotiation, a hearing may be necessary -*Administrative law judge*: from the agency presides over the hearing; a civil service employee of the agency, usually a staff attorney -Witnesses may be cross examined, but procedure is less formal than a court trial -The hearing must meet due process guarantees of the Constitution, but there is no right to a jury trial

Rule Making

-Formal rules or regulations -Policy guidance documents-assist those regulated on how to comply with the law *Substantive or Legislative Rules* -regulations with the same force as statutes of Congress -Agency usually must give public notice of these types of rules and give parties opportunity for written comment *Interpretative Rules* -Statements issued by an agency to provide guidance regarding interpretation of a substantive rule or a statute -These rules may be created without public notice *Procedural Rules* -Rules that outline the method of agency operation -Procedures used to deal with the public regarding enforcement, investigation and adjudicatory review

Agency Hearings & the Right to Trial By Jury

-Hearings are held before administrative law judge -Administrative law judge is not an independent judge but an employee of the agency where the case is reviewed *-Question:* Is there a right to trial by jury at such hearings? *-Answer:* The Supreme Court has held that there is NO right to a jury trial since these are neither criminal nor common-law cases

"Give Us All Your Imported Goods So We Can "Protect" Consumers"

-Jenny Wang owns 6 small grocery stores in Beijing. Every year she must take one of each imported food products she sells in her stores to the Bureau of Quality and Technical Supervision. Box of Kellogg's Fruit Loops goes along with a slice of Danish Blue Cheese. A couple of thousand of goods are worth over $1,000 in U.S. dollars. The Bureau keeps it all. The goods all passed customs and quarantine upon entry into the country, but the government still demands small entrepreneurs to comply with regulations. Regulation clearly designed to drive up the cost of buying imported goods. No such "safety inspection" is imposed on goods produced in the country.

Black Beauty Coal Company v. Federal Mine Safety and Health Review Commission

-Mine Safety and Health Administration (MSHA) inspector Franklin entered mine in Indiana - Operated by Black Beauty. Company assigned Hammond to escort Franklin. Franklin entered the mine; smelled burning coal; asked miners about it. One miner, Vogel, said he had smelled about 30 minutes before. Investigation continued; nothing found; no problem reported. Franklin proceeded and found place where conveyor belt dumped coal on another belt. Rip in guard sheet. Pile of coal 2' x 2' x 5' was packed around transfer spot. Franklin thought it had begun to burn. Hammond said he would have someone fix the problem. Franklin said shut down belts. Hammond refused - he didn't see evidence of fire. Franklin issued citation for "high negligence." MSHA send Black Beauty a proposed penalty assessment. Black Beauty rejected proposal. Chose to contest the matter with and administrative law judge (ALJ). ALJ agreed with the MSHA and imposed $70,000 fine due to "high negligence". Black Beauty petitioned court for review of ALJ decision. §75.400 prohibits accumulations of coal dust, but not mere spillages. Accumulation: "reasonably prudent person, familiar with the mining industry . . . would have recognized the hazardous condition. . . ." ALJ found none of evidence explained the smell of burning coal that occurred 30 minutes before Franklin's arrival. "High Negligence" finding based on: (1) Black Beauty had been cited for several past accumulations of violations (included belt line accumulations); (2) Burning smell existed for significant time period; (3) Villain "should have . . . seen and noted" coal turning in the tail roller; and (4) Vogel & others did not alert management after noticing burning smell. HELD: Petition for review denied.

General Principles of 4th Amendment Search & Seizure Guidelines of Administrative Agencies

-Need warrant: "Routine inspections" -Administrative warrants are simple to obtain -No warrant: "Open field observation" -No warrant: Consent by management for agency to look over or search the premises -No warrant: Closely regulated industries; Pharmaceuticals industry; Nuclear facility

"Do Old Regulations Apply to New Forms of Competition?"

-Problems with regulating technology related to the Internet (how do you regulate what you do not know?) -If a new technology is not covered in a regulation that governs existing competitors, are the new competitors covered? new technology is not covered by the consisting regulation -Existing firms want new competitors subject to the same rules -Problem: If the way the regulations are written does not envision new inventions-are they really covered under the regulations?

Rulemaking Procedure

-Proposed rule drafted by the agency staff -Reviewed internally and approved by the head of the agency -After a new rule is approved and published in the Federal Register for public inspection, interested parties may submit written comments about the rule -The public comment period is usually 60 to 90 days, after which the agency reviews the comments and finalizes the rule -One an agency issues a final rule, it may be appealed to the agency itself, after which appeal is made to the US Court of Appeals -Courts will respect rule as long as it is reasonable under language of Congressional statute

Really Important Regulations and Reports

-Texas State Library and Commission studied the filing of reports to the state -Concluded that 1,600 reports filed annually -Of those reports 400 duplicated another report -Filed even though receiving agency was no longer in existence OR -Were so trivial that no one ever read the report -shows are they are highly inefficient

Chevron, USA, Inc. v. Natural Resources Defense Council, Inc.

-The Clean Air Act requires states with "nonattainment" (dirty air) areas to create permit program Program regulates "new or modified major stationary sources" of air pollution EPA regs. state a plant with multiple sources of pollution are treated as one source of pollution This is the "Bubble Concept" - it's as if multiple sources are under a "bubble" The whole "bubble" is measured (rather than each source) National Resources Defense Council (NRDC) challenged EPA's "Bubble Rule" Said rule was inconsistent with Clean Air Act Court of Appeals overturned the EPA regulation Decision was appealed *HELD: Reversed. Regulation is appropriate. Two questions are asked: 1. Has Congress directly spoken to the precise question at issue? 2. If statute is silent or ambiguous re: an issue, was the agency's answer based on permissible construction of the statute? Agencies are allowed to fill gaps left by Congress Unless agency decisions are "arbitrary, capricious or manifestly contrary" to statute, regulations will be given controlling weight Legislative delegation may be implicit or explicit - often implicit Court usually defers to administrative interpretations Question here is not whether the "Bubble Concept" is inappropriate Question is if Administrator's view is appropriate and reasonable regarding the Bubble Program EPA's use of the concept is reasonable policy for it to make. The Bubble Program stays!

Ripeness doctrine

-The agency action must be final to warrant judicial review under the *ripeness doctrine*: concerns whether an agency action is final so as to allow judicial review; that is, agency decisions are not completely finalized are not ripe for review because they could be changed -its so ready because its gone through everything it possibly could go through in the; ripe and ready to put through judicial process

5th Amendment Self Incrimination Concerns of Business

-This privilege applies to individuals -Privilege does not apply to corporations or other legal entities -Corporations MUST produce documents requested by an administrative agency -If business doesn't comply, they will receive fines and penalties for non-reporting under the law -If they DO comply, information may incriminate business or persons within an organization -Sometimes compliance places business "between a rock and a hard place" -No 5th Amendment in self discrimination

"Administrative Agencies in Japan"

-Very regulated -Administrative "guidance system" -They only give "guidance by direction" or "suggestions" -Have "requests" -Give "warnings" -Give "encouragement" -Theoretically, businesses are not forced to comply -If businesses don't comply, however, they may be subtle, unrelated ways that make doing business more difficult -"Voluntary" nature of the system "saves face" for everyone -Unlike the US, a Japanese agency does not actually confront violators -The Japanese judiciary has a "hands-off" policy toward this administrative guidance system and its effects on businesses

Creating An Administrative Agency

-an *administrative agency* is an authority of the government created to administer a particular law. -Congress gives an agency power and authority through *legislative delegation* -Congress delegates power to the agency to perform the regulatory purpose -Congressional statute delegates powers to the agency through an *enabling statute* -Administrative agencies are created when a problem requires expertise and supervision -If voters/businesses unhappy with regs., can pressure their representatives in Congress to make changes

Review of Substantive Determination

-generally gets the lowest scope of judicial review -the courts yield to the agency's judgement in technical and scientific matters in working out the details of regulations -The courts generally do not find that an agency's actions or decisions are *arbitrary and capricious*, or an abuse of discretion, or rulemaking is vague or unduly burdensome on business

Review of Statutory Interpretation

-given greater scope of review -The courts determine whether the agency has gone beyond the authority it was granted by Congress

Review of Procedural Requirements

-gives the most intense scope of review -Courts will ensure that an agency has not acted unfairly or disregarded procedures (has not violated "procedural fair play")

Exhaustion doctrine

-requires a party to complete all agency appeals procedures before turning to a court for review; that is, parties may not go to the courts until they have exhausted all agency review procedures regarding a new rule or a disciplinary action; an action must be considered final by an agency before proceeding to court

Judicial Review

-the APA sets the procedural requirements for a party seeking court of appeals review of an agency decision -The appeal is referred to as *judicial review* -*Jurisdiction*: the party challenging an agency action must select a court that has authority to hear the case; most regulatory statutes declare which court has jurisdiction to review agency actions -An agency action that is challenged must be *reviewable* by the courts -A party must have *standing* to seek court review of an agency action; federal courts cannot hear complaints from parties who have no direct stake in a real dispute or who raise only hypothetical questions; the right to review to parties who can show an injury recognized by law as being entitled to protection

"Regulators Protecting Consumers?"

Japan has regulations that claim to protect consumers However sometimes regulations appear to do the opposite Japan's antitrust "watchdog" is the Fair Trade Commission Does not allow retailers to give discounts below the list price on CDs, books or magazines Discount coupons may not be issued because they may "confuse" consumers One Japanese retailer tried to import small, plastic food containers from Thailand The customs agency required every carton to be opened and containers and lids tested to make sure they worked Now the company buys containers made in Japan These do not have to be tested They cost consumers 3-4 times as much as the "untrustworthy" imports

Question on Test--Case

The question on the exam will be about the EPA giving a definition of "polluting" by a company that must travel by horseback through a designated Wilderness Area. The EPA sent out the definition to companies that polluting included horse defecation in such areas. Therefore an oil and gas company that was going to go through a Wilderness Area to do some seismic work, had to take extra horses along to clean up and bag any of the horses defecation and place the bags on the extra horses while in those areas. The "poop" must then be properly disposed of once the horses returned to their origin. (True story!) When you see this question, the EPA issued an "interpretive rule" of "pollution of Wilderness Areas."