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203 Cards in this Set

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  • Back
Non-delegations doctrine
C must give an intelligible principle to guide the actions of the agency-Also called finding facts/filling details- Laws very rarely conflict with this-
Hampton v US-
S says set the air standards at level to protect the public health with an adequate margin of safety- This was well within the NDD
Legislative veto
-C can’t retain power to veto the decisions of admin agencies
INS v Chadha
One house veto violates the presentment/bi-cam clauses of Con- Once the power is delegated C must abide by the decisions)- Now a law with a quick tow house override with presentment would be ok
Clinton v Ny
Veto of one item is Un-C-Pres must return the whole bill, different than the spending bill provisions where the pres can refuse to spend all- here he is canceling an entire bill)
Appointment power-
Power to appoint the principal officers belongs to the President, Congress can vest power to appoint lower level inferior officers in the president, judiciary and heads of dept’s
Buckley v Valeo-
Congress can’t appoint FEC commissioner who has power to create/enforce rules-Too much of an executive-C appointees can only exercise the investigative/oversight role of C-
Removal powers-
Congress can only limit the power of the President to remove officers if it will not interfere in the performance of his C duties,
Morrison v Olson
- Ok for C to make removal of the IC only be for cause- won’t interfere with the president’s role-
- Congress can’t limit the removal of purely executive officers)
C's ability to remove executive officers
), Congress can’t reserve the power to remove executive officers beyond impeachment- Bowsher- Congress’s ability to remove the comptroller for cause ( and not HC and MD’s) was too much of an aggrandizement)
Overton Park
Court accepts JR ( not committed to discretion/no clear prohibition on review), Goes with A & C review ( SE is only available under rule making and when called for in the statute, DN is only for A’s that are inadequate and there are new issues), remands for determination of why the SOT made the decision-
Hearst/ Skidmore
Agencies interpretation is persuasive evidence/
Factors to consider under Skidmore
/ Court looks to thoroughness, validity, consistency, and persuasive factors to decide whether to follow-
Chevron Two step
1)Has Congress directly spoken on the issue( Is the statute ambiguous) 2) Is the decision a permissible construction of the statute( reasonable)(IN Chevron they find “source” ambiguous, and says that technical interpretation was acceptable)
Court says that the allowance for the agency to modify the filing requirement does not include a complete reversal- Word modify is not ambiguous so the agency gets no deference
Babbitt v Sweet Home
Word harm in ESA can include harm to habitat as well- Statute is ambiguous/interpretation is reasonable( ordinary understanding/furthers the purpose of the act/other parts of statutes),
FDA v Brown & Williamson
C has directly spoken on whether FDA has power to regulate tobacco(Objective of statute/Congress’s acquiescence in previous interpretation/Previous statements about importance of tobacco)
Mead wrinkle
Chevron only applies when it appears that Congress had delegated authority to the agency to make rules carrying force of law- Must look to the circumstances to decide if the ruling is entitled to deference-
Factors in Mead that led to no deference
amount of deference ordinarily given to the decision, number of decisions, whether they have precedential value w/in agency
Standards of review under APA 706
De novo, substantial evidence, aribtrary capricious, an abuse of discretion or not in accordance with the law
De novo review
Only applies in an Adjudication, & the facts are inadequate & issues that were not before the agency are raised in another proceeding
When does Substantial evidence apply
For formal rulemaking, when called for in the statute and for formal adjudication
SE standard
Could a reasonable person viewing all of the relevant evidence in the record find that a preponderance of the evidence supports the agency’s decision?
Universal Camera
Trial court must look at all of the evidence in the record, including the decision by the ALJ, when deciding if the decision is supported by SE
Benzene Case-
Decision to set the standard for benzene at 1 PPM was not supported SE. Burden of proof is on the promulgator and even though the standard is not a mathematical straight jacket, it needs to use reputable scientific data
AFL-CIO v Hodgson-
When the facts underlying a decisions are capable of being found by the court then they will weigh they by the SE standard, but When the decision is a mixture of facts and policy-SEC must ID all facts underlying the decision AND Identify when the decision is based on policy judgments that have no factual certainties and identify the considerations that he found persuasive
Definition of A & C review
Default standard of review under the statute- Thorough probing in-depth searching and careful review=’s HARD LOOK
State Farm
when the Agency has failed to consider an important aspect of the problem, then the decision is A & C-When the agency is changing course they must supply a reasoned analysis
Availability of JR- Jurisdiction-
May be in the statute, but most suits are filed under §1331-
When is the agency action subject to judicial review
Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. APA 704
What constitutes an agency action
Whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act”-
Norton v SUWA
Failure to protect wilderness area is not a final agency action- no identified failure to act ( no rule making, failure to make a decision, etc...)
Exceptions to judicial review
Statutory preclusion & when the action is committed to agency discretion by law
Johnson v Robison/Denmore v Hyung Joon Kim
- Court found Jxn stripping provisions(under any law administered by the administrator) do not strip the court of constitutional challenges
McNary v. Haitian-
P’s can challeng procedures used for SAW determination before deportation( as required in the statute) b/c the challenge is to the overall process, not the actual determination
Court will usually make people follow the procedural channels required by the statute- Shalala v. Illinois Council on Long Term Abuse-rejection of claim that channeling provision provided for other claims to be filed
Committed to agency discretion by law
There must be some law to apply
Webster v Doe
NSA gives the director discretion to fire people in interest of the US-This decision is not reviewable under the APA, BUT the constitutional claims can be answered-
Prosecutorial discretion
- Normally the AA has the power to decide when to proceed-
Exception to prosecutorial discretion
When the agency acts in clear violation of the statute
Leedom v Kyne-
Finding of violation despite the prosecutorial discretion presumption. NLRB ok’s representation of both pro and non pro workers in clear violation of statute
Dunlop v. Bachowski
S says that the SOL shall bring suit w/in 60 days once he finds PC-Court makes him give an answer as to why he hasn’t
Heckler v Chaney
Court refuses to allow suit challenging FDA’s failure to regulate drugs used to kill prisoners- Presumption of un-reviewability in cases of agency inaction- UNLESS that language in the statute rebuts this
Regulatory delay- APA 706
agency action unlawfully withheld or unreasonably delayed
Statute says that the agency WILL act based on evidence in front of them to set the standard for hexavalent chromium Means that once they have the evidence they must act- Took a really long time for them to do this though-Agency has a lot of discretion)
Resource allocation
Very strong presumption of unreviewabililty
Lincoln v Vigil
Even though the agency talked about doing something in its budget hearings, it had the discretion to decide not to-OK as long as they are within the statutory mandate
standing under the APA 702
People who have suffered a legal wrong b/c of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute"
Legal rights test
Before the APA the court looked to see whether the person had suffered a wrong to a legal interest. INcluded in 702
Alexander Sprunt v US
Shippers sued to challenge a ruling by the ICC that limited the amount of money they could charge to their competitors. Court said no standing b/c the statute only guaranteed a right to be charged a reasonable rate, and did not offer any protection for rates that would be charged to someone else
Tennessee Electric Power Co v TVA-
Court refused to allow competing private utilities to challenge the constitutionality of the act creating the TVA. Utilities could rely on state law to establish a right, but the state law did not ban competition among utilities
Chicago Junction test-
Railroad could challenge a merger among two other railroads, b.c such a merger would limit their right of access to terminals
FCC v Sanders Bros
Communications act was found to confer standing to sue b/c it allows , " any person aggrieved or whose interests are adversely affect by any decision of the Commission". This language allowed a competitor to sue when the FCC granted a license to a competitor
Challenge to SOL’s setting of the wage regions no good b/c no legal right-
Aggrieved w/in meaning of the statute
Look to the interests protected by the statute and see if the person suing is within the protected class
Ass’n Data Processors v Camp
-Data processors can sue when the Comptroller decides to let banks do DP, if they can't sue then who will
Barlow v Collins
Tenant farmers are in the class of protected people in a statute that dealt with subsidies for rent-
Clarke v Securities Industry Assn-
Court upheld a right to sue by securities brokers stating that the associations interest in restraining banks from trading securities is certain areas had a plausible relationship to the policies underlying the actions of the Banking ACT AND that the ZOI test was not especially demanding and did not require an indication of congressional intent to benefit the plaintiff-
Air Courier Conference of America v America Postal Workers Union-
Postal workers not in the class of people protected by the statute that disallowed any one else from doing overseas air shipment
Bennett v Spear
ranchers who are losing water b/c of decision by the DOI to decrease water b/c of an ES are in the class of people b/c the statute protects everyone( said any person could sue)
Standing requirements
Injury in fact, causation, redressability
Sierra Club v Costle
- No standing b/c they did not allege that they would be harmed ( although those who visited would),
Scrap decision-
Standing when ICC raises train rates for students who would see more trash in the park
Simon case
No standing for poor people who denied services when the RS decreases the amount of free services that they have to give away to get tax exempt- No redressability/causation-
Mass v EPA
Mass can sue the EPA for failing to look at CO2 levels b/c they lost coast line and regulating cars will help with this- litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.-
No standing for people who say they someday might go back to see the crocodiles-too general-no real redressability
Challenged action Must have an immediate and direct impact on the petitioning party
Finality requirement
refers to the requirement that the agency's decision making process have reached a natural resting place- Tentative or incomplete decisions may not be reviewed by the court/
Exhaustion requirement
steps that the petitioner must take as a precondition to securing judicial review-
Two part test for preenforcement challenge
Is it fit for judicial resolution? Harm that will accrue if we wait?
Abbott Labs v Gardner
Change to labeling laws can be challenged when it seems like it will have a huge impact on the business and would require a huge shift in resources
Toilet Goods I-
No PEC b/c court does not know how the new inspection regime will work out & enforcement will not seriously affect the way that they do business-
Toilet Goods II-
PEC ok b/c there will be serious harm to the company if they are forced to wait
Exhaustion outside the APA-
There is a predisposition to require this, but the court will look to equitable considerations to determine whether they should require this.
Myers v Bethlehem Shipping
E required when person refuse to file claim with NLRB b/c they want to make a commerce clause argument- Court says that a trial with the board is what Congress wanted and that they need it to establish facts
No E required when a rancher was suing to stop the SOA from suspending his license-too much harm to wait-
Futility exception
Litigants ofter claim that they should be excused from exhaustion when there is no doubt that the agency will decide against them- SCOTUS has approved but the lower courts construe this exception very narrowly
McCarthy v Madigan-
No need for Exhaustion where the Administrative Review did not provide for the relief that was being sought- here damages brought for prisoners-three considerations that weigh against E-Undue prejudice in subsequent action-doubt whether the AA is entitled to grant the relief-bias of the body
Exhaustion within the APA
Must be required in the statute OR the agency must have interpreted it to mean that. Also a requirement that the agency stay the order while they are considering the appeals.
Darby v Cisneros
Exhaustion must be spelled out
Sims v Apfel
Court rejected an issue exhaustion claim for SSA people, but can be used to deflect premature claims-
FTC v Standard Oil
Court refused to hear case when the only action that had been taken was a failure to dismiss the claim- Have to go through trial-
Exhaustion used to defeat a claim
McGee v United States- Board denies a CO claim. Does not appeal. Convicted for violating the draft laws. Court holds that failing to E the remedies under the AA barred him from raising the claim that he was incorrectly classified at his trial for failure to report

McKart v US- Court ruled the other way when the claim was not CO but rather that he should have been exempted b/c he was the sole son of a father killed in action- Court said it was based on interpretation of the statute and not on a factual problem
Offensive non-mutual collateral estoppel
1.If someone else wins on your issue, against an entity, then later when the same issue arises and you are suing that person you don’t have to demonstrate on that issue again-
2.They have lost on that issue- Not right to allow that person to fight over and over again-
US v Mendoza-
Offensive non-mutual collateral estoppel is not available against the gov't. Gov’t has a lot of reasons not to pursue an appeal( resources-may want to create a split-don’t want to tie their hands on this stuff)
Lopez v Heckler
9th circuit enjoined the S of H & HS from implementing a policy of ignoring court rulings by lower courts)
Londoner/bi-metallic distinction
Decision by an agency that affect a large class of people and are more akin to legislative decisions get no due process.
Londoner v Denver
City raised the property tax on one block in the city. Raise was based on the individual characteristics of the property involved. Court says that in this instance, when the decision will be helped by allowing the individuals a chance to comment on this stuff, then the court requires DP
Bi-Metallic v State Board of equalization-
Court held that the requirements of DP do not apply when the ruling affects the entire city of Denver. This is a political question-
Challenges to the way that an agency is proceeding ( RM or A)
If there is no guidance in the statute the court will likely issue a ruling that allows the agency the most flexibility-
National Petroleum Refiners v FTC
Court denies a claim that the FTC should have adjudicated when it had done so in the past-Rule making is more efficient and other parts of the statute acknowledged their ability to proceed by rule making-
NLRB v Weyman Gordon
Court says that a prospective ruling that has wide effect ( but not on the claimants in the suit) looks more like a rule and should have been done with rulemaking BUT it could be applied to this D b/c it was based on an individualized finding in their case-
SEC v Chenery
Application of a new rule to one person was ok b/c they are deciding a particular issue in a distinct case-
Majestic Weaving-
When the court changes rule in an adjudication the court will be very skeptical and may overrule based on the amount of reliance
NLR v Bell Aeroapace
Court says that the decision to proceed by RM or A is the agency’s b/c they have a lot of different groups/considerations. Case turned on whether a buyer was a manager within the meaning of the statute, and this is different in a lot of cases b/c it is based on the specific duties.
Ford Motor v FTC
Here RM is necessary b/c the rule has general applicability (related to an interpretation of the UCC that would apply across the board) and parties had no notice-
Weight Watchers v FTC
Court stated that failure to engage in rule making was to be accorded deference and that here there was a rational basis to proceed on a case by case basis b/c it left open the possibility of tailoring the relief sought to the individual circumstances presented.
Making policy by manual
Only allowed if there is no adverse effect on people, then it must be in the federal register
Morton v Ruiz
Manual said that NA’s who lived off the res get no benefits, but court says that they needed to have published in FR to do this AND that they had previously allowed non-Res NA’s to get benefit
Ogalala Sioux v Andrus-
Agency must follow its own rules-Court strikes a decision not in accord with the policy-
Court strikes a ruling by the BOIA to deport someone when their rules said that they needed to make this decision-
Schweiker v Hansen-
Agency can not be held accountable for failing to follow its own rules when it appears that they rules were for purely internal use-
US v Allegheny Steel-
No FRM required when the stature required them to decide AFTER HEARING- Not even a requirement that they proceed on the record-
US v Florida East Coast Ry
Statute that required decision after hearing-did not require a formal rulemaking- Can just mean an informal type of meeting
Requirements of APA 553
Notice/opportunity/concise general statement of basis for the decision
Requirements for notice
- does not require that the whole rule be published, just the substance of the rule or a description of the subjects and issues involved-
Logical outgrowth test
Notice is insufficient when the adopted rule is not a logical outgrowth of the proposed rule-
Chocolate manufacturers v Block
proposed rule talked about sugar content but said only good things about flavored milk-Adopted rule banned milk-Not a LO so bad-
US v Nova Scotia-
Agency can’t base the ruling on info not included in the notice. Agency never told the interested parties about a study that they used for the basis of the rule-This was bad-
Requirements for the Concise general statement of the basis and purpose for adopting the rule
Must include a careful identification of the reasons why they chose to follow one path over another but they do not have to reject every possible comment. Should address every major critique though.
Ex parte contacts in the rule making process
EPC’s are ok as long as they do not frustrate judicial review or raise serious questions of fairness-
Case gets remanded to find out what EPC’s the commission had and whether they formed the basis for their decision-EPC’s before notice are OK, after notice the EPC’s need to form a part of the record-
Political influence on administrative Policy-
Look to see what needs to be docketed- Just b/c political pressure is placed on the agency, this does not mean that the decision will be overturned- Must look to see that the administrator used acceptable criteria in deciding the rule.
Sierra Club v Costle
Agency engages in a lot of post-comment meetings with interested parties/congressmen-Statute required that all documents that are of central relevance to be placed in the docket-EPA has the discretion to decide what goes in-Only stuff from this meeting that needs to be in the docket is stuff that the EPA used as a basis for their decision-
Impartiality of the Rule Maker
Administrator should be disqualified only when(1) THERE HAS BEEN A CLEAR AND CONVINCING SHOWING THAT
Ass’n of National Advertisers v FTC
Fact that the head of the FTC had made public comments is not enough to get to a bias- We expect that the agency will have an idea about the proposed rule.
Hybrid Rulemaking
Refers to rulemaking procedures that go beyond what is required by the APA and the Con-Agencies are free to adopt additional procedures voluntarily, BUT courts are not authorized to require, beyond what is contained in the APA and the constitution, the courts’ notion of appropriate procedures-
Vermont Yankee
- Court rejects a finding by the DC that the procedures used by the agency( which complied with the APA) were not enough to ensure full consideration- Agencies have the freedom to choose their procedures and absent COMPELLING circumstances, the court can not make them do more-Unclear how this case affects other added procedures
Pension Benefit Guaranty v LTV CORP
VY is extended to the IA field as well
§ 553 exemptions
Interpretive rules, general statements of policy, or rules of agency organization, procedure or practice OR When the agency for good cause finds ( and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest-
Interpretive rules
Rule that clarifies a statutory term or simply explained something that was already required by the statute-
NFP v Sullivan
Agency can’t avoid N & C on a new rule when the previous rule used N & C and was argued by the agency as a proper construction before the SC-
Hoctor v DOA-
Posner says that a rule that essentially makes an arbitrary decision about a specific fact (here the height required to house dangerous animals) must go through the N & C-
Not an interpretive rule
Other possible formulations for an interpretive rule
Legislative rules- Things that affect the legal rights of others-Substantial impacts test-direct substantive effect on the public?
Lincoln v Vigil(exemption from 553)
Deciding to close the clinic is under the rules of agency organization-
Good Cause exception to 553 rulemaking
Impracticality, unnecessary, or contrary to the public interest- Agency has to give a reason that they have good cause, but if they fail to do so the court will look to see if there was good cause anyway-
Negotiated rulemaking-
- Process where the agency brings together all interested parties to try and come to an agreement on the rule. Agency can help out with paying the costs of those who are necessary, but can’t afford it. Agency takes the recommendation and then promulgates the rule must try and use the recommendation but they are not bound-
Pac Legal v Goyan-
In the FDA context the court said that the agency could not fund participation absent a clear statement of Congress that they were deviating from the norm that parties pay their own way in litigation)
USA Group Loan Services v Reilly-
Can’t argue that the rule was bad b/c the agency took an offer off the table and entered a rule that was much harsher- Decision was made on the record followed by N & C.
Center for law and Education v DOE-
No standing for people who complained about not getting on a panel. Causal connection between the composition of the panel and any concrete injuries was too attenuated to justify standing.
Ability to delegate adjudicative power to agencies under the Common law-
Public rights/private rights test-
New test for when Congress can delegate judicial authority to an agency
Four part test from Commodity Futures-One. Extent to which the essential attributes of judicial power are reserved to Art III courts
Two. Extent to which the non Art III forum exercises the range of jurisdiction and powers normally vested only in Art III courts
Three. Origins and importance of the right to be adjudicated
Four. Concerns that drove congress to depart from the Art III requirement
Commodity Futures Trading Commission v Schor-
Ok to allow CFTC to hear state law counter claims from the same Transaction or Occurrence- Factors in favor-Not required, JR is available, directly related to the COA arising under the statute—
Marathon Pipeline case-
Court strikes down rule in bankruptcy court that forced parties to argue all claims related to the bankruptcy in the B court. This violates ND in the judicial setting-
Tull v US
7th amendment requires a jury trial in case where the US seeks injunctive and civil money penalties under the CWA- but the judge can fashion relief once the jury finds fault
Granfinanciera v Nordberg-
Court found that a case arising out of a BR that involved someone being sued for fraudulent conveyances got a jury trial. If a statutory right is no closely intertwined with a federal regulatory program Congress has the power to enact, and if that right neither belongs to nor exists against the Federal gov't, then it must be adjudicated by an Art III court .If the right is legal then they get a jury under the 7th amendment.
New Property idea
Court gradually began to accept the idea that gov’t benefits could be considered to be property and therefore protected by the DP clause-
Goldberg v Kelly-
Court recognized that gov’t , benefits could be considered property, and that welfare people get a pre-termination hearing b/c of the harm they would suffer
Board of regents v roth
At will employee with no expectation of being kept on has no right to DP
Perry v Sinderman-
- University with no official tenure system but a an understanding that if you had been there long enough you would be kept creates a property interest-
Bishop v Wood-
- Ordinance that stated that people could be fired for failing to live up to their duties gives no property right
Things found to be Liberty interests
Paddling, Restraint/labeling as mentally ill, Reputation is not enough
Paul v Davis
Being listed as a shoplifter is reputation only,
Wisconsin v Constantineau-
When the flier stops the guy from buying booze then there is reputation plus-
DP in prison-
Transfer from a low security to high security prison (but not a super max)is not a liberty interest-NO right not to be sent to solitary
Meacham v Fano
Prisoners have not interest/right to stay in one prison or another
Wilkinson v Austin
Prisoners have a right not to be transferred to a super max prison when it would dramatically decrease their freedoms),
Sandin v. Connor-
Only a new restraint when it imposes atypical and significant hardship or inevitably affects the duration of the inmate’s sentence
Indirect benefits and Due process
Similar to the proximate cause analysis in torts
O’Bannon v Town Court Nursing
Residents in a Medicaid sponsored nursing home could not intervene in a hearing to revoke their accredidation- They only had a right to stay in an accredited home, not this specific home-Hahn
-Hahn v gottlieb-
Tenants not allowed to take part in landlord’s request for a rent increase.
Castle Rock v. Gonzales
- No property right in having someone arrested, the benefit is indirect and incidental
Schools and due process
Court has been resistant to add court like procedures in school decision
Goss v Lopez-
student must be able to offer their side of the story before they are suspended-
Ingraham v Right
Reliance on the tort system is ok in paddling when the abuses are not widespread and torts will act as an effective deterrentRegulatory
Brock v. roadway express-
Decision by SOL to have a company reinstate a whistleblower violated DP b/c the employer was not allowed to see the allegations against it or the evidence presented- They should have had an opportunity to respond
TVA v Whitman-
-Administrative compliance orders from the EPA can not have the force of law b/c the alleged violator is not given the right to hearing
Dusenbury v US-
Test for notice in the PDP analysis is the Mullane test- Whether the method of notification was reasonably calculated under all circumstances to provide actual notice to the person whose rights were adjudicated-
Superintendent v Hill
Prison officials decision to discipline a prisoner must be based on SOME EVIDENCE
Violations for negligence or intentional deprivations- Paratt/Hudson-
-No DP violation for negligence or intentional deprivations by prison officials b/c the problem was with unauthorized behavior not deficient procedures. The state tort system provided an adequate remedy
Tumey v Ohio-
Mayor’s salary is paid from fines imposed in cases where he was the judge- this is too close
Ward v Village of Monroeville-
Still bad when the fines go into the treasury- possibility that the interest would affect his decision-
Gibson v Berryhill
Board made up of independent optometrists could not make a decision about whether to let big box retailers do optometry-had a direct pecuniary effect,
In the AA setting there is only a PI when the money raised from the cases contributes in a meaningful way
Marshal v Jericho-
ALJ’s will not be swayed by the tiny amount that is raised by cases b/c they have a fixed salary-
Test for disqualification in the adjudication setting
is whether a disinterested observer may conclude that the agency has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it-
Cinderella Career and Finishing Schools v FTC-
FTC head who had made bad statements about the D sat on the board that decided the case, so the case has to be remanded
Withrow v Larkin
Combination of investigative and adjudicative functions is ok- A finding of PC has a different basis than a finding of liability so the decision in the first case will not taint the second one-
Cheney v US District Court- Scalia
Scalia argues for a distinction between cases dealing with the rights of an individual D and the national gpv’t as a whole-
Triggering language for the statutory hearing rights
Can be stated directly in the statute but if not, the court will look for the requirement of A hearing on the record- This parallels the language in the APA-
Portland Audobon Society v. ESC-
Statute required that the decision had to be determined on the record and after opportunity for an agency hearing so it triggers the statutory hearing righs
Portland Audobon Society v. ESC- Ex parte contacts ban
President is an interested person within the meaning of § 557, he is outside the agency, and disallowing him to make contacts will not violated SOP-
Usual remedy for an ex parte communications and factors to consider when determining the remedy
Remedy for EPC’s is usually to put the substance in the record and to allow the parties to rebut the assertions- Other factors to look for in a remedy: Gravity of the EPC's, influence they had, benefit to the party who made the contacts, contents known to opposing parties, would vacation serve a useful purpose-
Adjudication under the APA differs from court room trials in several ways-
Agency has the discretion to exclude irrelevant, immaterial and repetitious evidence-HS rules are more lenient b/c the ALJ is a professional
Cross examination under the APA
Cross Ex- Statute only allows CE as may be required for a full and true disclosure of the facts
-Richardson v Perales
SCOTUS said that it was ok to not have people to cross-ex when the reports relied on were routine, standard and unbiased
Requirements for Informal adjudication under the APA 555
) Prompt notice shall be given of the denial in whole or in part of a written application. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial.
-Ass’n of ALJ’s v Heckler-
Where the agency started a review program that scrutinized ALJ’s more when they granted benefits, the court found this to bee too biased but b/c they had changed the plan there was no relief-
Utica Packing v Block-
SOA exceeded his authority when he reassigned a case to a different judge because he did not agree with the outcome)
Ballard v Commissioners of the IRC
Tax Court could not suppress the original decision by the special trial judge
Bright line rules and adjudication
- Agency can decide that a set of issues are decided by policy( legislative facts) and make a bright line rule-
Heckler v Campbell-
- IT was ok to say that the judge had to use a chart to decide if there is a job in the national market, BUT they could not take away the power to decide if they were disabled under the statute-
Weineberger v Salfi-
Irrebuttable presumptions are not unconstitutional as long as Congress could rationally have concluded that a particular limitation or qualification would protect against its occurrence and that the expense and other difficulties of individual determinations justified the inherent imprecision of a prophylactic rule
Warrant requirement in administrative setting
State needs a warrant unless it is a heavily regulated industry. Warrant need not show a particularized finding of probable cause just that it was based on enforcement of the act and derived from neutral sources
Colonnade Catering Corp v US-
WL searches are ok in a liquor store,
US v Biswell-
WL searches ok in gun shops
Donovan v Dewey¬-
Mine safety act is specific enough to meet warrant requirement, NY
NY v Burger
Junkyards are pervasively regulated-
Marshall v Barlow’s Inc-
Need a warrant to inspect a business, but it need only show that it was based on enforcement of the act derived from neutral sources-
Duties imposed by the Freedom of information act
Unless one of the exemptions applies, each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.-
What is a record under the FOIA
Does not include personal records, but if there is personal stuff the court will order it disclosed with redactions
electronic calendars of administrators are records but, electronic appointment calendar of assistant administrator was not an “agency record” within the reach of the Freedom of Information Act (FOIA), given that the assistant administrator distributed his calendar only to his secretary and any temporary secretaries that filled in for his permanent secretary, and, there was no evidence that other employees, apart from his secretary, relied on his calendar.
Definition of withhold under the FOIA
Does not encompass records that the agency does not have in their actual possession, but could theoretically obtain
Kissinger v Reporters Committee for Freedom of the Press
Kissinger gives all of his personal papers to the national archives, so when they get the request they no longer have the documents in their possession.Court says that this is not withholding within the meaning of the statute-Possession or control is prerequisite
Exemptions from the FOIA
National defense, trade secrets, inter/intra agency memos not available if they would not be available by law, records compiled for law enforcement purposes, privacy interests
Exemption 5 from the FOIA-
Refers to materials that would be privileged-
Deliberative process exception-
Don’t want people to have access to stuff that reveals the process that the agency underwent- Fear of chilling the whole process-
NLRB v Sears-
Decision not to proceed will not expose deliberative process b/c the process is done, decision to proceed is protected
Work product under exemption 5
Categorically exempt-(5) only allows access to records that would routinely be available and WP is only available upon a showing of substantial need and therefore is not routinely available-
Judicial Watch v DOJ
Court says that the presidential communications privilege does not extend beyond the immediate communications involving the president and their closest advisors
Law enforcement exceptions under the FOIA-
Docs that could-
Interfere with enforcement proceedings, deprive a person of the right to a fair trial, be an unwarranted invasion of privacy, disclose the identity of a confidential informant, disclose techniques, or endanger the life/safety of any individual
FBI v Abramson-
Nixon gets the dirt on journalists from the FBI. People subpoena the records from the White House claiming the docs lose their exemption when used for a non-LE useCourt holds=Once the documents are compiled for law enforcement purposes, they do not lose their exemption b/c they are used in another inter-agency form)