Administrative Law

Hearsay evidence generally is not permitted in administrative hearings

False

The decisions of most administrative agencies are reviewed de novo on the record

False

When the rule of a specific federal agency permit non-lawyers to practice before it, this rule may be abrogated by state statute.

False

The rulemaking proceedings of a federal administrative agency connot be reviewed per se by the U.S. Supreme Court because rulemaking proceedings do not generate a record to review.

True

If a petitioner is successful in a reverse FOIA suit the result is that

the agency is enjoined from supplying specific information to others

Unless extenstion is granted, how long does a federal agency have to comply with an FOIA request

10 days

An agency rule or regulation must be published at least _____ days before it takes effect.

30

Enabling Act

A statute passed by Congress which created the agency and determines its structure, functions, powers, and operational standards.

Which of the following applies to all administratiev agencies: EPA APA SPA ABA

APA

Unreviewable Agency Decisions

APA provides two exceptions when judicial review is not available (1) to the extent that statutes preclude judicial review (2) to the extent that the action is committed - left - to agency discretion.

Formal Rulemaking

APA requires formal rulemaking when the agency's enabling act requires its act be made "on the record" Trial-type proceeding

Administrative Procedure Act

Adopted in 1946 - the systems of safeguards or controls against abuses of power by an administrative agency. Establishing procedures that must be followed when the agency engages in it's quasi-judicial and quasi-legaslative functions.Regulates dissemination of information.

Investigation Powers

Agencies with investigation powers can compel the disclosure of evidence or testimony.

Ex Parte Communication

Between agency decision-makers and "interested persons" both inside and outside the agency are generally prohibited.

Administrative hearing officers generally must have the same qualifications as federal judges

False

Appellate review of administrative agencies decisions generally are similar in scope to appellate review of a trial court's decision

False

E.O. 12991 requires all administrative agencies to perform a cost-benefit analysis before adopting any rules or regulations

False

EXACTA, makes rules concerning employment that will bring bring heavy financial burdens to a business. If ABC Fruit Company charges that the regulations will force it to delcare bankrupcty, the agent must provide a trial-type hearing and must all cross-examination of its experts in connected with adoption of its regulations

False

Federal administrative agencies typically follow the same rules of evidence in adjudication proceedings as federal courts follow in trials

False

If an agency relies upon its own expertise iin reaching an adjudication in a specific case, it must enter such expert opinion(s) as part of the record in a particular hearing

False

Indenpendent agencies are not subject to the same type of judicial review as are executive agencies

False

Nonlawyers are permitted to represent persons appearing before all administrative agencies

False

Reviewing courts typically give great deference to the legal issues decided by an administrative agency as part of its quasi-judicial function

False

Under the APA, an individual who performs a prosecutorial function in an adjudication proceeding generally may not participate in the decision reached by the administrative agency

False

When a federal agency is given discretion to dedcide certain matters, those discretions in which discretion is used never may be reviewed on appeal

False

Administrative agency decisions must be supported by clear and convincing evidence

False - reliable, probative, substantial evidence

Appellate review board

In some agencies, the head of the agency appoints special staff to handle administrative appeals

Petition for Review

Most enabling acts provide that a final decision may be appeals by filing the petition for review in a federal court of appeals

Informal Rulemaking

Notice and Comment procedures. Announce the proposed rule and give interested parties an opportunity to file written comments. No hearing required, but agency may hold hearing.

Required Reports

Only idividuals are protected by the 5th amendment. Organizations and business are not protected.

Executive Oversight

President can appoint or remove heads of many agencies; President appoints commissioners; Budget process - OMB; E.O. 12291 forbids agencies to adopt regulations whose costs exceed their benefit; Can control litigation that affects agencies through the Dept. of Justice.

The Doctrine of Separation of Functions

Prohibits only those combinations that create a bias in the performance of adjudication functions.

Due Process

Requires some sort of hearing

Federal Question

Seeks a declaratory judgement or injunction relief or both

Legislative Rule

Sometimes called a substantive rule or agency-made law, is made according to the agency's delegated authority to make quasi-legislative rules.

Reserse-FOIA Suits

Suit against the government attempting to block the government's release of information

Federal administrative agencies receive their authority to act from

Their enabling statutes

Administrative Sanctions

They may impose sanctions, BUT NO SANCTION CAN INCLLUDE IMPRISONMENT

Adjudicative Facts

Those which can be proved by objective evidence. They answer the questions who, what, where, when, how

A federal agency may refuse to issue or renew licenses for failure to provide requested information.

True

A scintilla of evidence will support an agency's decision on a particular matter for purposed of appellate review

True

A sunset law is one that terminates and agency's authority after a stated period of time unless Congress re-adopts the agency's enabling act

True

All federal administrative agencies are governed by the APA, in addition to their own rules and regulations.

True

An ALJ and a hearing officer typically perform the same functions

True

An agency decision is carpricious if changes a precedent established by past agency decisions and is based on no prior agency policy or rule and is irrational

True

At the federal level, notice of proposed rulemaking must be published in the Federal Register

True

Because judicial oversight exists, it is permissible for many agencies for the charging offier and the hearing offier to be the same person

True

Before a person may appeal the decision of the agency, she must be able to demonstrate to the reviewing court that she has exhausted all administrative remedies

True

By authority of Congress, the president may create an administrative agency by executive order

True

Damages may be awarded under the Federal Tort Claims Act for false imprisonment by federal law enforcement officers

True

EXACTA announces that it will permit only written comments, with no opportunity for ABC Fruit Co. or anyone else to make oral arguements. If ABC files suits to contest this procedure, it will not win.

True

Eviction from public housing is a sufficient invasion of privacy interests by evicting administrative agency that requires a trial-type hearing

True

Federal administrative agencies are not required to use formal rulemaking procedure unless Congress uses the term "hearing on the record" in its enabling acts

True

Independent agencies typically possess both quasi-legislative and quasi-judicial functions

True

Review of agency decision by appellate courts is based upon the record made at the administrative hearing

True

The APA requires a federal agency to include in its rules a statement of the bases and purposes of its rules

True

The FOIA requires the federal government to disclose all information properly requested unless a specific exemption applies

True

The Sunshine Act requires that advisory committees must hold open meetings

True

The agency decision is arbitrary if it is based on no prior policy or rule and is irrational

True

The agency that regulates unfair labor practices in relation to collective bargaining units is the National Labor Relations Board

True

The burden of proof in an agency hearing typically is borne by the individual or the business before the agency

True

An administrative agency is

a governmental unit charged with responsibility to implement and administer statutes adopted by a legislative body - Congress at the federal level.

Legal Issue

a rule based upon social choice made by a source outside the administrative process

Policy Issue

a rule based upon social choice made by sources inside the administrative process

The organizing document of a local government that authorizes that government to exist and states its authority is

charter

one side only

ex parte

Administrative Agency Rules emanate

federal Constitution; federal statutes - such as enabling acts, the Administrative Procedure Act, and the Freedom of Information Act - and the rules, regulations, and decisions generated by the agencies themselves.

An agency action that is outside the scope of _______ is said to be ______________.

it's enabling act; ultra vires

Hybrid Rulemaking

limited cross-examination - augmented the "notice and comment" by allowing limited cross-examination - ENDED

Informal Adjudication

no trial

Most agency rulemaking requires, at minimum

notice and comment

The rulemaking function of most administrative agencies requires

notice and comment

When an administrative agency's decision is appealed, the most typical standard of review is

on the record

right to an invention for twenty years

patent

law adopted by state or federal legislature

statute

attempt to overthrow the government

treason

Which of the following powers may be exercised by most administrative agencies: rulemaking adjudicative legislative two of the above three of ther above

two of the above - rulemaking, adjudicative

A court commanding a public official to do that which he or she is required to do is a

writ of mandamus

Nonstatutaory review

Arises when (1) Congress has failed to provide statutory procedure in the enabling act; or (2) when the prescrived procedure cannot provide adequate relief

Adjudication Powers

As part of agencies quasi-judicial power theses agencies can make decisions which have nearly the same force as the law.

Congress may include a provision which makes certain administrative acts subject to legislative veto

False

If a federal agency elects to prosecute some violators of its regulations and not to prosecute others, such a decision likely will be found arbitrary and capricious by a reviewing court

False

One generally can tell whether a federal administrative agency is an independent agency or an executive agency by its name

False

Raising the rent of a public housing tenant is a sufficient invasion of privacy interests by the supervisory administrative agency that requires a trial-type hearing

False

Exceptions to warrant requirement

1. Emergency searches; 2. Consent; 3. Public View; 4. Closely regulated business

Exemptions from the Freedom of Information Act

1. Secrecy 2.Personnel 3. Statutory nondisclosure 4. Private business information 5. Agency Memoranda 6. Personal Privacy 7. Investigation records 8. Financial Institutions 9. Geological Exploration

Agency's Methods used to Compel

1. Those who deal with an agency on a regular basis may comply 2. An agency may encourage compliance by refusing to accept an application for a license or benefit 3. Issue administrative subpoenas 4. IRS may issue and administrative summons for information 5. Agency may seek to inspect provate premisis, but this method may require a warrant 6. An agency may require reports - which may be enforced by a fine or nonrenewal of a license for noncompliance

The APA requires certain formalities for formal, hybrid, and informal rulemaking

False

Preponderance of Substantial Evidence

APA requires that a decision be supported by reliable, probative, and substantial evidence

Under the Privacy Act agency disclosures of records retreivable by a person's name is forbidden to anyone other than person to whom the record relates

False

When publications of a rule or regulation is required, the publication must appear in the

Federal Register

Hybrid Rulemaking

Few agencies use hybrid. It includes all procedures of informal rulemaking plus additional procedures required by the agency's enabling act.

Rulemaking Powers

Agencies with rulemaking powers can create regulations - if they comply with procedural requirements - regulations have the force of law.

Cease-and-Desist Order

Allows the violator to discontinue offending conduct or practices before more serious sanctions are imposed

Dessemination of Information

An agency may release information - even in adverse information - as a method of enforcing its laws or as a means of preventing law violations by others.

Premsises Inspection

An agency's demand for inspection may be scrutinized more closely than any other request for information.

Intelligible Standards

Congress can set itelligible standards and policies with administrative agencies adopting the specific rules to carry out those standards and policies

Legislative Oversight

Congress creates them and can remove them. Can expand or restrict powers; Can limit appropriations; Watchdog committees; Some agency heads must be approved by Senate

Hearing on the Record

Congress must use this terms if it intends to require formal rulemaking to be used by administrative agencies.

Formal Adjudication

Consists of procedures that are nearly identical to those used in a civil trial.

Safeguards

Controls such as procedural due process, adoption of standards by the administrative agency, and judicial review

Independent Agencies

Designed to function without excessive political pressures, are created by Congress and are governed by a commission or board appointed by the President, subject to confirmation by the Senate.

Administrative agencies may obtain informaion from private citizens or from businesses through the Freedom of Information Act

False

An agency may impose criminal sanctions against a named defendant

False

Discretion

Freedom of administrator or an administrative board or commission to make decisions

What term is required in an enabling act before a reviewing court will enforce formal rulemaking procedures?

Hearing on the record

Formal Rulemaking

Hearing where interested parties can appear and cross-examine witnesses. Congress generally avoids formal rulemaking.

Investigation

If an agency is authorized to compel persons to turn over information - it is authorized to engage in investigation.

Rulemaking

If an agency is authorized to create regulations or supplement or to clarify its statutory mandate - it is authorized to engage in rulemaking.

Adjudication

If an agency is authorized to determine - judge - whether a party is in compliance with the agency's statutory mandate or with its regulations, it is authorized to engage in adjudication.

Informal Rulemaking

Informal notice and comment (1) notice (2) opportunity to comment (3) statement of reasons (4) publication

Non-legislative Rules

Interpretations, policy, statements, guidelines, rulings. They do not carry the force of law but may be pursuasive.

Administrative Law

Is a law practice specialty area which deals with those legal rules that create, affect, and are generated by administrative agencies.

Regulatory Agency

Is given comprehensive authority to oversee a wide spectrum of economic activities of a specific industry. Licensing; Ratemaking; and Business Practices

Judicial Oversight

Judicial review to determine the validity of agency action under the Consititution, statutes, and agency's own regulations.

Delegation Doctrine

Judicially enforced principle which reflects the type and degree of legislative power that Congress may deligate

Subpeona

May be granted to an agency through judicial proceeding. Agency rules typically provide method for obtaining a subpoena and provide limitations

Negotiated Rulemaking

May be used to expedite rulemaking if the major interests are represented and are willing to negotiate

Informal Adjudication

Means that either (1) Congress has not created any procedural requirements for adjudications or (2) Congress requires only a few procedures.

Legislative Vetoes

NO LONGER EXISTS

Privacy Act

Requires an agency to divulge any record to a person that is filed for purposes of retrieval under that person's name. IT FORBIDS DISCLOSURE of records under the agency's control which are retrievable under a person's name unless they are one of the 11 categories mandating disclosure.

Sunshine Act

Requires any agency headed by a multiple-member commission to give notice and meet in public when the body has formal authority to make decisions.

Freedom of Information Act

Requires disclosure of all governmental information unless exempted by the Act

Federal Advisory Committee Act FACA

Requires federal advisory committees to meet in open session

Ethics Government Act

Seeks to prevent government employees from performing their duties in such a way to enhance their opportunity for private employment when their terms are ended.

Statutory Requirements

Statutes guarantee an opportunity to be heard. Typically, these statutes include the federal Administrative Procedure Act; agency's enabling act; or some combinations.

Appellate review of an administrative agency decision will result in affirmance of the agency's decision if the record shows that the decision was based upon:

Substantial evidence

Motion to Quash

The respondent to the subpoena may file a motion to quash requesting that the agency limit or nullify the subpoena.

A federal administrative agency may institute nee policy either by rulemaking proceedings or by adjudication

True

A federal agency may obtain information through a summons, a subpoena, or a warrant

True

A suspension of licenses previously granted may be reviewed by a court of law.

True

Agency rulemaking may be formal, informal, hybrid, or negotiated.

True

An agency may formulate administrative law by adopting rules and regulations and adjudication

True

As a general rule, an ALJ may not consult with a nonwitness concerning an issue of fact without first providing notice and an opportunity for all other parties to participate

True

As a general rule, memoranda between agency officials are not required to be disclosed under FOIA

True

Before an agency rule may be given the force of law, the agency must publish the rule before it is adopted; allow opportunity for public comment; and publish the rule after it is adopted

True

Even though a reviewing court reverses an administrative action in a case, that judicial decision may not change the agency's general policies in relation to future cases

True

The Sunshine Act Requires agencies headed by a commission or board to meet in public

True

The doctrine of the separation of functions in administrative law applioes to an agency's adjudication proceeding but does not apply to its rulemaking proceeding

True

When quasi-judicial decisions arise as issues of fact, rather than issues of law, withing an agency's area of expertise, courts are less likely to reconsider the evidence in such a way as to second-guess the agency.

True

Nonregulatory Agency

Typically - but not always - dispense money to promote social and economic welfare in the forms of government insurance and pensions.

Executive Agencies

Units within the executive branch of government that are typically headed by one individual who is appointed by the President. Generally have more restricted power that independent agencies. Yet IRS and SSA have tremendous power.

Legislative Facts

can be proved by objective evidence and resolve broad, social questions

Procedural Issues

rules which dictate the methods or steps ised to reach an administrative decision

Mandamus

seeks to compel and official to perform a duty that is owed to the complaining party

Consent Decree

similar to a stipulated judgement or plea bargain

When consitutional objections are raised within an administrative proceeding concerning an agency's rules or procedures, that issue will be decided initially by

the appellate court

Formal Adjudication

trial