Administrative Law Bar

Front 1

Types of Law

Back 1

1) Fed/State CON
2) OAPA
3) FAPA
4) Ag's own stat/regs

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RM

Back 2

-Fed: prospectively by RM or case-by-case adjudication
-OR: RM

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Agency creation/delegation

Back 3

-Leg creates Ag thru enabling legislation.
-Improper delegation comes from failing to delegate power w/some minimal direction in statute/leg his.
-Ultra Vires: Agency action went beyond power given in enabling leg

Front 4

Excluded from RM

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1) Statements of Internal Ag Policy
2) Interpretive and Policy Statements
3) Permissible construction of stat/prior rule
4) Rule has no practical impact on a client

Front 5

Federal RM

Back 5

3 types:
1) Formal RM: "on the record" after a trial-like hearing
2) Informal RM: N+C. Notice published in Federal Register of PR's terms, description of PR's subjects & issues. Comment: in writing
3) Hybrid RM: formal & informal- statute adds add'l procedures to FAPA.

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OR RM

Back 6

OR is only N+C
1) Notice to public: published in Sec of State Bulletin, at least 21 days before rule's effective date, apprise general public of PR
2) Content of Notice: PR's SM & Purpose, statutory authority, need, Fiscal Impact Statement, Time/place/manner for public comment IN WRITING, and request for alternative options for achieving goals.
3) Comment in writing, unless 10 or more people request, then oral testimony at public hearing.
4) File the final rule.
5) EXCEPTION: Emergency- skip N+C if emergency AND fialure to act quickly will seriously prejudice the public. 180 days.
6) Challenging: 2 yr SOL, challenge ultra vires/UNCON/ or procedural, "any person/organization adversely affected by the rule, was a party to Ag proceeding, or a specific statute grants org standing, may file in OR Ct of Ap, using authorizing statute, rule, doc's showing procedural compliance.

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Agency Defenses

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1) TR in emergency
2) Fed Formal RM wasn't req b/c didn't say "on the record"
3) Not a Rule: Internal Agency Policy
4) SOL

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Adjudication

Back 8

-Acting like a ct in deciding case involving specific individual/business.
-"on the record after opportunity for Ag hearing."
-DP issues: 5th, 14th

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Adjudication: Fed Rights

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1) Fed CON Right to Hearing: "on the record after opportunity for Ag hearing."
2) CON Right to hearing: Ag action denied life/liberty/property interest, Agency action will be based on adjudicative facts, and No Emergency exists.

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Adjudication: OR Right

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1) Test: Ag statute/rules say "contested case hearing" or "trial-type hearing".
2) If no authorizing language, is there CON right?

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Fed Formal Hearing procedures

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1) "on the record"
2) Written Notice of time/place/nature of hearing, authority/jxn, fact+law asserted
3) Proof: ANY reliable, probative, and sub. ev admissible, even HS if not unfair
4) Testimony, cross, oral arg, admit doc's, etc.
5) Ex Parte communications w/decision maker: prohibits ex parte re merits. Remedy: disclose on-the-record and give both parties opportunity to respond.
6) Decision makers: impartial, no deference to ALJ except credibility
7) Final Order in detailed writing

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OR Agency Hearing procedures

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1) "contested case" or "trial-type" hearing
2) Notice
3) Right to counsel
4) Discovery relaxed rules
5) Ex Parte contacts must be on-the-record
6) Unbiased decision maker
7) Final Order in writing
8) Sub. ev on record to support decision.
9) EMERGENCY Suspension of Business License: OAPA pre-hearing suspension where "danger to public health/safety", if order served personally/registered/certified mail.

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CON Right to Hearing

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1) Notice: reas notice to interested parties of time/place of hearing
2) Opportunity to be Heard: how much process due-
a) Individual interest in property/liberty
b) Risk of erroneous deprivation
c) Govtal interest (cost of add'l process)
3) Impartial decision maker
4) Pre-deprivational hearing depends on how critical benefit is to survival.

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Informal Adjudication

Back 14

Ag discretion & CON balancing test

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Records

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Agency can req govtal regulated businesses to keep records by statute b/c quasi-public, not private records

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Searches & Inspections

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1) Private areas req a W by 4th Am, but < PC.
2) EXCEPTIONS to W req: heavily regulated business, search in business's public area, or non-intrusive inspection
3) Illegally seized ev admissible in civil if benefits outweigh exclusion benefits.

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Subpoenas

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Agency must have specific statutory authority to subpoena witnesses and documents.
1) BUT, 4th doesn't bar subpoenas if: inquiry w/in Ag's statutory authority, specific + not excessively vague, reas relevant to matter investigated, and not UB on person/business.

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Obtaining information from Agencies

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1) FOIA: Agency must supply identifiable doc's promptly to any person requesting them. EXCEPTIONS: personnel records, confidential business info, law enforcemt investigation, work product.
2) Sunshine Act: all meetings must be announced 1 wek in advance and be open to public if Agency has 2 or more members.

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Judicial Review of Agency Action: Standing

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1) FED: inj-in-fact, causation, redressability
2) OR: "adversely affected/aggrieved", party to Agency proceeding. Org's don't have representational standing.

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Judicial Review of Agency Action: When

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1) SOL: OR: RM- 2yrs, Adjud- 60 days from written decision.
2) Finality: appeal from final written order
3) Exhaustion: use all internal Agency review procedures before Ct, UNLESS motion for reconsider of Ag final order isn't required, or, admin remedy inadequate/futile/irreparable harm.
4) Ripeness: genuine controversy, not hypothetical

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Judicial Review of Agency Action: Where

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1) FED: where statute says so or Ct of App. If not final, D.Ct for declaratory/injxn relief
2) OR: Ct of App, unless no need for exhaustion (D.Ct)

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Judicial Review: Exceptions

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SOL, Finality, Exhaustion, Ripeness

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Judicial Review: Review Stds

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1) Factual Findings:
a) Formal: sub. ev in the record
b) Informal: abuse of discretion (A+C)
2) Legal Conclusions: de novo, unless Agency interpreting own statute (Chevron deference: ambiguous? If ambig, then reas?)