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53 Cards in this Set
- Front
- Back
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Under the nondelegation doctrine, Congress can't ___ but instead must ___ |
Can't give all its power away But must give specific direction (intelligible principle) |
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In writing an agency's organic act, Congress may limit agency power by ___ or ___ |
Setting a standard Limiting the power (e.g. no enforcement power) |
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An ultra vires action is one challenging ___ |
The agency action is beyond its authority; court will set aside the action. |
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The executive power must ___ that laws are faithfully executed |
Take care |
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President may appoint ___ with the ___ of the senate. |
Superior officers With the advice and consent of the senate |
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Congress may ___ the appointment of ___ officers with ___ |
Vest the appointment Of inferior officers With the President, Courts, or Department heads |
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An inferior officer is one who ___ |
Has limited tenure Can be removed by another Has limited duties |
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The President's power of ___ is inferred by the ___ clause |
Removal Take Care clause |
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Congress may limit the removal of ___ to ___ or ___ |
All officers To for cause Or at will |
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A rule is ___, is generally ___, acts to ___ or ___, and looks to the ___ |
Whole or part of agency statement Is generally applicable to all Acts to implement or interpret Looks to the future |
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legislative rules, also known as... |
Notice & comment rules Informal rules 553 rules Substantive rules binding rules |
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Interpretive rules work to ___ standards, announce ___, and are ___ |
Clarify or explain standards Announce agency policy Are non binding |
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General statement of policy announce ___ and are ___ |
Announce how an agency plans to exercise authority. Are non binding |
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Procedural rules govern ___ |
the agency's own conduct (e.g. how to do permit requests) |
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An adjudication is ___ that look to the ___ in order to __ |
Agency process or formulation of an order Look to the past Resolve disputes & penalize individuals
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Due process concerns are raised when there is ___, ___ in dispute, and either a ___ or ___ interest |
State action Facts in dispute Property or liberty interest |
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Property interest examples Liberty interest examples |
Property: real property, chattel, benefits, tenured job (not an at-will job) Liberty: freedom, severe reputational harm, freedom from school suspension |
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To determine whether there is process due, the agency will balance these three things: |
1. The party's interest 2. The government's interest 3. Risk of erroneous deprivation avoided by additional process |
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Formal adjudication is required when the organic act says ___ |
A hearing on the record must be provided. |
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A contested case is requires when |
-The constitution or statute requires a hearing -The agency has discretion to suspend/revoke a right/privilege -Denies/suspends a license and person demands a hearing -The rule/order provides for a hearing
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Prior to the hearing, the agency must ___ |
Serve or mail written notice |
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The notice in a contested case must include |
1. Time & place 2. Statement of authority and jdx 3. Statement of the issues to be covered 4. P can have counsel 5. P has the right to respond 6. Discovery permitted, describe procedures, title & function of presiding officer |
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The notice of the right to a hearing must include |
1. Statement of P's right to hearing 2. Time & place 3. Statement of authority and jdx 4. Refer to the legal sections involved 5. Short & plain statement of the matter 6. Whether and how a default may be entered. 7. If there is to be a penalty, include the 20 day timeframe to request a hearing |
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Evidence rules |
Becomes part of the record Burden on the proponent to offer & prove Hearsay is admissible Irrelevant, repetitive, immaterial is inadmissible Ex parte communications must go on record |
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Facts may be noticed ___ or if within ___ |
Judicially noticed Or if within the special knowledge of the agency or hearing officer |
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An adverse default order is allowed only when there is a ___ on record |
Prima facie case |
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A proposed order is finalized ___ days after service |
30 days |
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An adverse order must be ___, with ___ and ___, and must cite ___. |
Must be in writing With findings of facts and conclusions of law Must cite the statute under which can appeal |
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Civil penalties are payable ___ days after the order is final, or ___, or __ |
10 days after final order Or, by law Or, on appeal |
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Notice of rulemaking must give a minimum of ___ notice in the ___, ___ days to those who ___, and ___ to ___ |
Minimum of 21 days before effective In the Secretary of State Bulletin 28 days to those who requested notice 49 days to some legislators |
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The notice for rulemaking must include |
1. Caption 2. Objective statement summarizing subject 3. Time, place, manner where can present views 4. Cite statutory authority 5. Cite statute that rule will implement 6. Statement of need & how need will be met 7. Documents relied on 8. Fiscal impact 9. Requesting public comment on other options should consider |
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To satisfy the comment requirements, the agency must |
1. Give reasonable opportunity for public comment 2. Provide a copy of the rule or explain where to obtain 3. Hold hearing on date, time, place announced in notice 4. Informal is okay, but must allow oral or written comment at minimum 5. Statement on small business impact (if apply) |
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An ___ is required if requested by ___ or by a group of ___ |
An oral hearing 10 people Group with 10 members |
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Give notice of the hearing ___ days to the requestor and ___ days in the ___ |
21 days before to the requestor 14 days in the Bulletin |
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If a person petitions for a rule to be adopted, amended, or repealed, the agency must deny or begin rulemaking in ___ days. |
90 days |
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Review rules every ___ to determine ___ |
Every 5 years Determine if had intended effect Fiscal impact over or underestimated If changes in law require repeal/amendment Whether the rule is still needed |
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Emergency rules are those ___ and are allowed if ___, but expire in ___, though the agency may initiate rulemaking to permanently adopt |
Without notice and hearing If serious prejudice to public interest or parties Expires in 180 days |
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The presumption of judicial review is rebutted by... |
1. Statute precludes review 2. The action is committed to agency discretion by law (CIA can fire whoever whenever deems necessary/advisable in US interest)
But, constitutionality is always reviewable |
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Standing limited to ___, meaning there is a ___, ___ that is ___, and ___ meaning ___.
Prudential standing asks ___ |
Cases and controversies Meaning a concrete and particularized injury Causation: the injury fairly traceable to the axn Redressability meaning the court can solve
Prudential: zone of interest, congress intended to protect this type of plaintiff from this type of harm |
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In representational standing, a group needs ___, the ___ is ___ to the lawsuit, and ___ |
Needs a member who has standing on his own The mission is relevant to the lawsuit And the member need not be a party |
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A ___ action is the ___ and ___ P has ___ all remedies when ___ A case is ___ when it is ___ and ___ |
Final action is consummation of agency decision Exhausted all remedies when tried all procedures below Ripe when fit for judicial resolution and impose hardship on plaintiff if withold review |
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Review of... -Constitutional issues -Ultra vires actions -APA procedures -Questions of fact -Questions of reasoning/judgment/discretion -Statutory construction -Statutory interpretation |
-Always reviewable, whether contrary to right, power, priv, immunity -Hold unlawful -Set aside axns/findings that did not follow procedure -Arb/cap, unsupp by subst evi, or de novo -Arb/cap -de novo -Chevron |
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Arbitrary, capricious, abuse of discretion |
-Is there a rational connection? -Arb/cap if: -considered factors unintended by congress -failed to consider important aspect of problem -explanation runs counter to evidence -so implausible that can't be difference of views or from agency expertise |
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Substantial evidence |
-In light of whole record -Evidence exists -Reasonable mind would accept -As supportive of agency's conclusion |
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Chevron |
1. Is the statute ambiguous? If Congress spoke to precise issue, that is interpretation. If ambiguous, go to step 2. 2. Is the agency's interpretation reasonable. Highly deferential. |
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Judicial review available for ___, but must be only ___, on showing agency proceeding ___, or that party will ___ |
Anyone screwed by agency Only on final order On showing agency proceeding w/o prob cause Or party will really suffer if can't get review |
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In contested cases, a party may petition the ___ within ___ of when ___. This does not ___, but the agency may ___ if ___. Denial of ___ is reviewable by ___. |
Can petition Ct of App in 60d of order served. Does not stay order Agency may stay if irrep harm to party and colorable claim of error. Denial of petition to stay is reviewable by Ct of App. |
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Oregon review of all cases... -Final order -Wrong interpretation of law -Discretion outside the agency's delegation -Discretion inconsistent with rule, policy, or prior practice and unexplained -Discretion violates constitution or statute -Order not supported by subst evi |
-Review the record, can't substitute own judgment -Set aside, modify, remand -Remand appropriate -Remand appropriate -Remand appropriate -Set aside or remand |
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In other cases, the party may petition either ___ or ___, and must file within ___ of ___. The petition must state ___, ___, ___. |
Petition either Circ Ct of Marion County Or, county court where party resides or has principle business office File within 60d of when order served. State nature of interest, facts showing agency wrong, grounds for reversal. |
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The agency may access informatioin by 1. ___, where constitutional issues are ___ 2. ___, where individuals can ___, but ___ 3. ___. |
1. Require reports by entities (no constitutional issues) or go inspect (need warrant, but low standard) 2. Subpoena, individuals can invoke 5th, but corporations cannot 3. Get comments from notice & comment |
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The public may access information by 1. ___ 2. ___ But examptions are ___, ___, and ___, though the agency can release the info and just ___ |
FOIA request Federal Register Exempt for classified, confidential business information, medical recores But can just redact the exemptions |
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The purpose of the Open Meetings Act is to ___. -A meeting is ___ -A governing body of a public body is ___ and must be ___ -If by telephone or e-communication, must ___ -Give notice of meeting ___ -Emergency meetings are ___, but must ___ |
-Purpose to keep public informed and aware -Meeting is when there is a quorum -Gov body of public body is when 2+ members with authority meet, must be open -If telephone, establish place where public can listen -Give 24h notice -Emergency mtgs allowed, but must explain in the minutes why couldn't give 24h notice |
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-The Open Records Act allows ___ -Exemptions are ___, ___, ___, and ___ -If written request, agency must ___ -If agency denies inspection or obtain, a party may ___ |
-Allows inspection/copying of public records, without stating a need -Pending litigation, trade secrets, criminal investigations, personnel discipline actions -Must respond as practicable without unreasonable delay -Can petition agency to review the record to determine whether may be withheld |
