Administrative Law

Front 1

How to identify an administrative law bar question:

Back 1

1) is there a state or federal "agency" named in the question (boards, dpts, commission); or 2) has the OR legislature or US Congress given authority in a statute to an agency?

Front 2

What are the different applicable laws in admin law?

Back 2

1) federal or state constitution; 2) OAPA; or 3) FAPA

Front 3

What are the 3 different Agency Actions?

Back 3

1) Rulemaking 2) Adjudication 3) Investigation

Front 4

Legislation that creates an agency is called:

Back 4

enabling legislation

Front 5

Enabling leg. must have:

Back 5

standards

Front 6

W/o standards, agency action can be:

Back 6

voided

Front 7

When an agency action goes beyond the power it is given in its enabling leg. that's called:

Back 7

ultra vires

Front 8

When an agency in the bar problem is implementing legislative policy in a statute, discuss:

Back 8

1) improper delegation of authority in the enabling statute; and/or 2) Ultra vires

Front 9

Actions excluded from rulemaking procedures:

Back 9

1) internal agency policy; 2)interpretive and policy stmnts; 3)permissible construction of statute or prior rule; 4) rule as no practical impact on any client

Front 10

What is the test of when to apply formal rulemaking procedures?

Back 10

The specific agency statute in the problem will say: the agency can only make rules "ON THE RECORD" after a hearing

Front 11

FAPA Informal Rulemaking requirements:

Back 11

1) NOTICE to the public in the Federal Register of terms of proposed rule & description of subjects/issues; 2) public right to COMMENT, writing only; 3) PUBLISH final rule in Fed. Reg w/ stmt of basis and purpose

Front 12

OAPA Informal Rulemaking requirements (only method):

Back 12

1) NOTICE in Secretary of State Bulletin, at least 21 days before effective date; 2) Content: subject matter & purpose, authority, need, fiscal impact, TPM of public comment, request for alternatives; 3) Public COMMENT, writing only unless 10+ people request oral; 4) File the final rule.

Front 13

Exception to the OAPA rule making requirement:

Back 13

Temporary Rules: can skip notice and comment if an emergency and failure to act will result in serious prejudice to public. Only lasts 180 days

Front 14

Who has Standing to challenge an OR Agency rule making PROCEDURE

Back 14

Any person and any organization (if org was adversely affected by rule, was a party to agency proceeding, or if specific statute grants it)

Front 15

Where to challenge an OR agency rule making PROCEDURE and other limitations

Back 15

File directly with Oregon Court of Appeals; Record on appeal limited to authorizing statute, rule & docs showing procedural compliance; 2 yr SoL

Front 16

2 kinds of challenges to a rule:

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SUBSTANTIVE: the rule is ultra vires or unconstitutional. PROCEDURAL: the agency did not comply with the APA notice and comment reqs.

Front 17

Agency DEFENSES for failure to comply w/ procedures:

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1) temporary rule; 2) formal procedure not needed, statute didn't say "on the record"; 3) internal agency policy; 4) 2 yr SoL has run

Front 18

What are the two issues in agency adjudications:

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Does the client in the problem have a right to a hearing at all? If so, did the agency hearing have enough PROCESS to be fair?

Front 19

How does the client know whether he has a right to an admin hearing?

Back 19

1) language of the specific agency authorizing statute; 2) Constitution: Procedural Due Process in the 5th and 14th amendments

Front 20

When does the client have a constitutional right to a hearing?

Back 20

If agency has denied a life, liberty or property interest and agency action will be based on adjudicative facts (who what when where how...) and no emergency exists.

Front 21

Magic words triggering FORMAL HEARING for FAPA and OAPA

Back 21

FAPA: "on the record after...hearing" (same as for rulemaking). OAPA: "contested case hearing" or "trial type hearing" required.

Front 22

What are the FAPA minimum procedural rights for formal hearings? (7)

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1)Written notice of: time place & nature; authority and jd; matters of fact and law asserted. 2) Proof: reliable, probative and substantial evidence. 3) Rules of evidence: generally not applicable, hearsay allowed if probative and not unfair, inadmissible if privileged, irrelevant, immaterial or repetitious 4) Right to examine and x-exam witnesses, present testimony & arguments orally, admit docs, etc. 5) No ex parte communication. 6) Decision Makers: no deference due except credibility determinations; bias and prejudgment not allowed. 7) Final order must be in writing, detailed enough to permits review by courts

Front 23

What are the OAPA minimum procedural rights for formal hearings?

Back 23

1. written notice (same as FAPA). 2. right to counsel. 3. discovery 4. no ex parte, if occurs, put on record (FAPA) 5. relaxed rules of evidence 6. oral argument 7. right to examine Ws 8. unbiased decision maker 9. final order in writing w/ details 10. substantial evidence on the record to support decision 11. right to judicial review

Front 24

OAPA admissibility of evidence standard:

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allowed if "relied upon by reasonably prudent persons in the conduct of their serious affairs"

Front 25

Hearsay admissibility in OAPA hearings:

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If it is the only evidence, may not constitute "substantial evidence" especially if consequences are great.

Front 26

Constitutional Due Process Reqs for hearings:

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1. Notice 2. Opportunity to be heard 3. Impartial decision maker.

Front 27

What is the balancing test for opportunity to be heard?

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1. individual interest (property, liberty, etc) 2. risk of erroneous deprivation & extent to which more process safeguards would reduce that risk 3. governmental interest (usually cost) of additional process

Front 28

When is a predeprivation hearing required?

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Balancing test: the more critical the benefit being taken away by the agency is for survival, the more likely the court is to require a pre-termination hearing

Front 29

5th Amendment bars agencies from requiring businesses to keep records when:

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1. no statute requires it 2. there are no "public aspects" to the info 3. agency is only requiring this of a selective group inherently suspect of crime. EXCEPTION: agency may require gov regulated biz keep records because they are "quasi-public" records

Front 30

When does the 4th Amendment require a warrant prior to search by agency?

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1. for non public area of biz (but lesser standard of probably cause) 2. agency must sow: reason to inspect this category of biz

Front 31

Exceptions to search warrant requirement for agency search:

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1. heavily regulated biz 2. search is in a public area of the biz, or 3. non-intrusive inspection

Front 32

The 4th Amendment does not bar subpoenas when:

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1. inquiry is within agency's authority (by statute) 2. subpoena is specific and not excessively vague 3. it is reasonably relevant 4. not an undue burden on person or biz.

Front 33

Two ways to obtain info from agencies:

Back 33

Freedom of Information Act & Sunshine Act.

Front 34

Sunshine Act:

Back 34

Applies to agencies with 2+ members, requires all meetings be announced one week in advance and be open to the public.

Front 35

Exceptions to Right of Judicial Review:

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1. appellant lacks standing 2. has missed the statute of limitations 3. does not have final agency decision 4. has not exhausted administrative remedies 5. it's not ripe for review

Front 36

Federal Agency, constitutional standard for standing:

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Injury in fact + causation + redressibilty

Front 37

OAPA Statute of Limitations

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Rulemaking: 2yrs for procedural errors. Adjudication: 60 days.

Front 38

Exceptions to the exhaustion requirement for appealing to court:

Back 38

The administrative remedy is inadequate or futile, or will result in irreparable harm. (NOTE: an agency hearing cannot overturn or change an agency reg., so if challenging constitutionality can go right to court OR if hearing wouldn't take place until too late.

Front 39

Where do you seek review:

Back 39

FEDERAL: 1. where agency statute says 2. if statute is silent, FAPA says court of appeals on final agency order, or 3. if not final order, Fed. district court for declaratory or injunctive relief.
OAPA: 1. appeals of final agency orders --> OR Court of Appeals; 2. If no need to exhaust --> state circuit court

Front 40

FAPA and OAPA: Review of FACTUAL findings

Back 40

1. Formal rule making and adjudication: findings must be supported by substantial evidence in the hearing record. TEST: Record as a whole would permit a reasonable person to make the finding. INFORMAL: test is abuse of discretion.

Front 41

Review of LEGAL conclusions

Back 41

1. Agency interpreting own statute: Courts will give deference to agency's reasonable construction of an unambiguous statute implemented by that agency. 2. Otherwise, no deference. Error of Law standard. Reviewing court may decide de novo whether law was applied correctly.