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36 Cards in this Set
- Front
- Back
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What's ultra vires in admin?
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agency must act w/in scope of their enabling statutes.
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what the rule for statutory interpretation as to scope?
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must be reasonable
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what are the constitutional limits to delegation?
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con limits delegation power. leg must provide adequate safeguards for use of power, define subject matter and provide intelligible puropose.
"What and When Test" |
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how is fairness of agency action defined?
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by the enabelling law, or the APA, and hte Constitution.
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3 areas of agency action have constitional concerns. what are they?
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investigation- unreasonable search and seizure
rule making- due process adjudication- due process |
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can agencies impose criminal penalties?
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no, just civil.
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when can agency process be suspended?
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in emergencies, temporarily, for good cause shown, adequate factual basis. (hepatitis in restraunt) must have hearing as soon as possible. look for hospitals, toxic substances, food and nursing homes.
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how can agencies investigate?
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through subpoena power and through physical inspection/search
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what are requrirements for agency subpoena power?
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must be authorized by law (not apa), must be constitionally used 1) can't be vague, 2) can't be irrelevant, 3) can't be unduly burdensome. (Agency must be reasonable, but heavy burden to challenge)
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What are requirements for agency searches?
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warrent required usually. must state scope, and agency must have reasonable basis (probable cause, but a systematic approach or plan is valid). (yearly grid of inspections of dry cleaners)
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what are exceptions to warrent requirement for agency searches?
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consent, emergency, plain view, authorized by statute (drugs, guns, alcohol in commercial enterprize which is heavilty regualted). statute must expressly authorize, give notice, and define scope.
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when is an agency engaged in rulemaking?
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when it issues a broad policy statement that is general in nature and prospective.
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when is it formal rulemaking and what happens?
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if statute says rules must be made "on record after opportunity for notice and comment", then you use adjudication stuff.
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what are requirements for rulemaking?
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adequate notice- published in register
opportunity for comment- at least written publication of final rule 30 days before effective date |
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what is the rulemaking bias standard?
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must not have "unalterably closed mind"
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when does informal rulemaking require oral hearing?
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when it applies to 1 or very few people, or rules are promulgated to resolve a particular dispute. adjudicative facts so due process requires oral hearing.
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What is adjudication?
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agency engaged in factfinding related to a specific disputel, and is issueing an order to be applied retroactively to resolve the dispute. (licensing is also adjudicative)
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what are the requirements of adjudication?
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adequate notice (time place nature of hearing)
must conduct hearing w. 1) all proper and necessary parties, 2) impartial decision maker (no prejudgment, no financial connection, can't be investigator), 3) based on reliable evidence, must be procedurally sufficient (right to counsel, discovery, oral argument, conf witn) |
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what are rules of evidence?
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not bound by formal rules of evidence- always state this in answer
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what's the deal with exparte communications in adjudication?
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if they are on the merits they must be in the record.
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what are facts noticed by the adjudicating agency?
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official notice- less than judicial- notice facts within expertise
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in adjudication there must be a decision- what are the elements?
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must issue written order based on record, order must contain facts, law and reason for decision.
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what additional challenges are their to adjucative procedure?
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constitional- due process- argue that life, liberty, and property intrest is involved., apply balancing test- government intrest, private interest, risk of error, state that due process requires the procedure denied. (not necessarily a full hearing though)
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What are the requirements for jduicial review
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A) jurisdiction- standing, exhaustion, ripeness, finality
b) scope- standard of review and deference |
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what are the requirements for standing?
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injury in fact (very broad like asthetic) which includes causation and redressibility
Zone of intrest- forseeability- party legislature intended to be affected |
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what are three special cases of standing?
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tax payer- unless challenging establishment clause spending
3rd party standing- associational standing |
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what needed for 3rd party standing?
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1)injured party has difficulty asserting rights
2) close relaionship between party in court & 3rd party, 3) 3rd party lacks resources to sue for themselves |
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what's needed for associational standing?
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1. members must otherwise have standing to sue in their own rights.
2. intrest association seeks to protect must be related to associations purpose 3. neither claim, nor relief must require participation of individual members (injunctive or declaratory not monetary relief). |
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exhaustion of remedies rule?
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must exhaust administrative remedies before going to court.
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what are exceptions to exhaustion requirement?
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1. futility or bias
2. irrepreable harm (mere money not enough) 3. issue of con law |
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what's ripeness?
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ripe only if 1) question presented to court is legal in nature 2) there would be a substantial hardship to petitioner if review was denied (don't want issue in vacume, want agency expertise)
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what's finality?
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agency action isn't final until all remedies are exhausted. always discuss with exhaustion or ripeness
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How does a court handle the merits of an appeal?
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Standard of review- rulemaking "arbitrary and capricious" also default rule and if no record below
Adjudication- substantial evidence based on record as a whole- (both based on reasonableness Deference- courts defer to agency fact finding. often give res judicata to adjudication Chevron |
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what's the mnemomic?
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Dus Ira Serfad
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dus ira serfad?
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delegation, ultra vires, statutory interpretation; investigation, rulemaking, adjudication; standing, exhaustion, ripeness, finality, arbitrary and capricious, deference
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top ten subjects
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10. emergency, investigations, finality,ultra vires, hearsay, standing, deference, standard of review, exhaustion of remedies, 1. due process
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