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Administrative Law Flashcards

1
Q

What are the two steps to a bar question on administrative law?

A

(1) What did the agency do wrong from the individual/business perspective?
(2) What defenses are available to the agency action from the agency perspective?

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2
Q

How do you identify an administrative law bar question?

A

(1) Is there a state/federal agency named in the question?
(2) Has the Oregon legislature or US Congress given authority in a statute to an agency to implement a policy by writing rules, imposing penalties, or hearing appeals of individuals/corporations affected by the statute?

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3
Q

What is the basic factual structure of an administrative law bar question?

A

(1) Societal problem and legislative delegation to agency
(2) Agency makes rules
(3) Person/business violates rules and agency investigates
(4) Person appeals to agency and loses
(5) Person goes to court

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4
Q

Which laws apply to which administrative law questions?

A

Federal or State Constitution:

(1) Due process clause, to see if hearing was fair
(2) Standing, ripeness
(3) Investigations - search and seizure

Oregon Administrative Procedures Act (OAPA)

(1) Were state agency procedures followed?
(2) All actions by Oregon state Agencies

Federal Administrative Procedures Act (FAPA)
(1) Federal agency actions

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5
Q

What are the three basic things that OAPA does?

A

(1) Procedures for writing rules/regulations
(2) How to conduct administrative hearings
(3) Tells courts how/when it can review agency regulations and hearing decisions

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6
Q

What are the three actions that administrative agencies take?

A

(1) Rulemaking - act like legislature
(2) Adjudication - act like court
(3) Investigation - act like cops

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7
Q

What is the tip-off that there is a rulemaking issue in the question?

A

(1) Legislature passes a statute that empowers an agency to implement a program/policy by making rules

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8
Q

What is the standard for proper delegation by the legislature to an administrative agency?

A

minimal direction in the statute or even its legislative history about the nature of the agency’s power and who is to exercise it

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9
Q

What is an “ultra vires” action by an agency?

A

Agency action that goes beyond the power it is given by the enabling legislation

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10
Q

What are the two ways that federal agencies may make policies?

A

(1) Writing Rules
(2) Case-by-case adjudication, BUT:

Case-by-case method struck down when:

(1) party detrimentally relies on prior agency decision, and
(2) hardship on the party is greater than the public harm, and it was an innocent act

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11
Q

In what ways may Oregon administrative agencies make rules?

A

Writing rules is the only acceptable method.

Adjudication method is not allowed for Oregon agencies.

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12
Q

What counts as a “rule” for administrative law purposes?

A

A statement of general applicability and future effect prescribing or interpreting law, policy, or procedure.

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13
Q

What are four examples of actions that are NOT within the “rulemaking” procedures?

A

(1) Statements of internal agency policy
(2) Interpretive and policy statements
(3) Permissible construction of statute or prior rule
(4) Rule has no practical impact on any client

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14
Q

What is the effect of failing to follow the proper administrative procedures in rulemaking (comment and notice)?

A

The action is void.

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15
Q

What are the FAPA rulemaking procedures?

A

Two Methods:

(1) Formal Rule Making:
- (a) Hold trial-like procedure to write the rule
- (b) “on the record after a hearing” = need formal rule making

(2) Informal Rulemaking Requirements:
- (a) Notice published in federal register; description of the issues in the rule
- (b) Comment: public can comment, in writing; not right to oral testimony or present witnesses
- (c) Publish the final rule in the federal register w/ concise statement of the basis of the rule and its purpose

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16
Q

What are the requirements for informal rule making under FAPA?

A

(1) Notice published in the federal register w/ a description of the issues in the proposed rule
(2) Public may comment in writing
(3) Publication of the final rule in the federal register with a concise statement of the basis of the rule and its purpose

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17
Q

When should you discuss hybrid rule making under FAPA?

A

Only if the enabling legislation has specific procedures that are different than the typical two methods of rule making under FAPA

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18
Q

What are the requirements for rule making under OAPA?

A

Informal Rule Making Requirements:
(1) Notice in the Secretary of State bulletin, at least 21 days before the effective date of the rule

(2) Public Comment: in writing, but-
- (a) If 10 or more people request, agency must provide for oral testimony at a public hearing

(3) File the final rule

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19
Q

Under OAPA, what content must public notice of a proposed rule contain?

A

(1) Subject matter and purpose of rule
(2) statutory authority for rule
(3) need for rule
(4) fiscal impact statement
(5) time, place, manner for public comment in writing
(6) request for public comment on possible alternative options for achieving the goals of the rule

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20
Q

What is the exception to the OAPA Rulemaking requirements?

A

Temporary Rules may be issued w/o notice and comment IF:

(1) there is an emergency, and
(2) failure to act will result in serious prejudice to the public, and
(3) the rule will only last 180 days, maximum

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21
Q

Who has standing to challenge an Oregon Agency rulemaking procedure?

A

(1) Any person, or
(2) Any organization that was adversely affected by the rule or was a party to the agency proceeding, or if specific statute grants organizational standing

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22
Q

Where does a challenger file a challenge to an Oregon Agency rulemaking procedure?

A

Files directly to the Oregon Court of Appeals

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23
Q

If a challenger challenges the procedures used to create a rule under OAPA to the Oregon Court of Appeals, what is the record used?

A

Record is limited to:

(1) the authorizing statute
(2) The rule itself
(3) the documents showing procedural compliance with OAPA

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24
Q

What is the statute of limitations for challenging a rule under OAPA?

A

2 years from the date the rule goes into effect

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25
Q

What are the types of challenges are there to an administrative rule under OAPA?

A

(1) Substantive - ultra vires action or unconstitutional, or

(2) Procedural; agency did not comply with OAPA’s notice and comment requirements

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26
Q

What are the two issues in agency adjudications?

A

(1) Does the person have a right to a hearing at all?

(2) If yes, did the agency hearing have enough PROCESS to be fair?

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27
Q

How does a person know whether they have a right to a hearing in agency adjudications?

A

Neither FAPA nor OAPA give a right to a hearing, so

(1) what language was used when the agency was authorized action under the enabling legislation?
(2) Procedural due process of the 5th and 14th Amendments

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28
Q

When is there a right to an administrative hearing in front of Federal Agencies?

A

(1) If authorizing statute or rule says “On the record after an opportunity for an agency hearing,” or
(2) if there is a constitutional right to a hearing

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29
Q

When is there a constitutional right to a hearing before a Federal Agency?

A

Test:

(1) Did the agency action deny a LIFE, LIBERTY, OR PROPERTY interest?
(2) If yes, was the agency action based on adjudicative facts?
(3) If yes, was there an existing emergency?

If yes to first 2 and no to last one, then there is a right to a hearing.

30
Q

When is there a right to a hearing in front of an Oregon agency?

A

Test:

(1) Authorizing agency statute/rule says “contested case or trial-type hearing” is required, or
(2) Is there a constitutional right to a hearing - same test as with federal agency right to hearing.

31
Q

Do public assistance recipients have a constitutional right to a hearing for loss of a property interest? What about applicants for public assistance that are denied?

A

Public assistance recipients - yes

Public assistance applicants - no

32
Q

If the person has a right to a formal administrative hearing, what are the minimum procedural rights of those formal hearings?

A

Same for FAPA and OAPA:

(1) Written notice: time, place, authority, jurisdiction, matters of fact/law asserted
(2) Proof: admissibility of evidence standard = reliable, probative, substantial evidence
(3) Rules of evidence are generally not applicable
(4) Right to examine, cross-examine, oral testimony, admit documents
(5) Final order detailing the decision; enough detail to permit review by the courts

33
Q

What is the rule regarding ex-parte communications during a formal administrative hearing?

A

Ex parte communications are prohibited during formal hearings.

34
Q

During formal administrative hearings, what level of deference is given to the decisions of ALJs?

A

None, except regarding credibility determinations.

35
Q

What is the OAPA rule regarding Emergency Suspensions of Business Licenses?

A

(1) OAPA allows for pre-hearing suspension of license only where it would be a “danger to public health or safety”
(2) Emergency suspensions orders must be served PERSONALLY or registered or certified mail to the person whose license is being suspended.

36
Q

What are the constitutional due process requirements for an administrative hearing?

A

(1) reasonable notice
(2) an opportunity to be heard, and
(3) an impartial hearing decision maker

37
Q

What are the balancing factors for determining whether there was a constitutionally required “opportunity to be heard” during an administrative hearing?

A

Balancing factors:

1) individual interests of the party
(2) Risk of erroneous deprivation of interests
(3) government interest ($$$

38
Q

What is the general rule about when a predeprivation hearing is required?

A

The more critical the benefit being taken away is for SURVIVAL, the more likely the court is to require a pre-termination hearing.

39
Q

Can agencies require businesses to keep records?

A

Yes, except 5th Amendment bars requirements when:

(1) no statute requires the records,
(2) there are no “public aspects” to the info demanded, or
(3) the agency is only requiring this of a selective group inherently suspect of crime

40
Q

Under the 4th Amendment, when is a warrant required for an agency to perform a search?

A

Searches of nonpublic areas of a business, but

a lesser standard of probable cause is required.

41
Q

What are the exceptions to the typical rule regarding needing a warrant to search nonpublic business areas?

A

(1) heavily regulated businesses (gun shops, massage parlors, liquor stores), or
(2) nonintrusive inspection

42
Q

Is evidence seized through an illegal agency search still admissible in an administrative hearing?

A

Yes, if benefits of admitting outweigh the benefits of excluding.

43
Q

When may an agency subpoena something/someone?

A

Requirements:

(1) inquiry is w/in agency’s authority,
(2) subpoena is specific (not excessively vague),
(3) request is reasonably relevant to the matter being investigated, and
(4) no undue burden on the person/business

44
Q

What are the rules regarding obtaining information from administrative agencies?

A

Freedom of Information Act:

(1) Agencies must supply identifiable documents promptly to any person requesting, EXCEPT:
(2) personnel records, confidential business information, law enforcement investigation, work product

45
Q

What is the Sunshine Act?

A

(1) Applies to agencies w/ 2+ members, and

(2) requires that all meetings be announced one week in advance and be open to the public

46
Q

What are the requirements for going to court over an administrative agency decision?

A

Must:

(1) Have standing
(2) Be w/in the statute of limitations
(3) have a final agency decision to appeal
(4) have exhausted the administrative remedies, and
(5) issue must be ripe for review

47
Q

Who has standing to appeal the decision of a federal agency action?

A

Constitutional standard of standing:

(1) injury in fact
(2) causation
(3) redressability

48
Q

Who has standing to appeal a decision of an Oregon agency?

A

OAPA Standing:

(1) any person adversely affected or aggrieved, or
(2) any party to an agency proceeding

Organizations: no representational standing

49
Q

Under the OAPA, what is the time frame for appealing a decision to court?

A

Rulemaking Procedures: 2 year SOL

Adjudication decision: 60 days from written final decision

50
Q

What is the exception to the exhaustion requirement?

A

Don’t have to exhaust administrative remedies IF:

(1) administrative remedy is inadequate/futile, OR
(2) waiting will result in irreparable harm

51
Q

Before taking an administrative decision to the Oregon Court of Appeals, is a motion for reconsideration required?

A

No, unless a specific agency rule says so

52
Q

What is the test for ripeness when determining standing to take an agency action to court?

A

Ripe = genuine controversy, not abstract or hypothetical

53
Q

In what federal court does someone go to seek review of an administrative agency action?

A

(1) If specific agency statute designates a court, go there
(2) FAPA:
- (a) final agency order? go to Ct. of Appeals
- (b) not final order? go to District Court for declaratory and injunctive relief

54
Q

In what Oregon court does someone go to seek review of an administrative agency action?

A

(1) Appeal of final agency order? Court of Appeals

(2) If didn’t exhaust admin remedies, go to Circuit Court

55
Q

Under FAPA and OAPA, what is the standard of review of factual findings during Formal Administrative Rule making and Adjudication?

A

Fairly deferential: “Substantial Evidence”

Taken as a whole, the record would permit a reasonable person to make the finding.

56
Q

Under FAPA and OAPA, what is the standard of review of factual findings during informal administrative proceedings?

A

Highly deferential: “Abuse of discretion,”

“arbitrary and capricious”

57
Q

What level of deference will courts give to legal conclusions by administrative agencies?

A

None (de novo review), except:
(1) Courts will give deference to an agency’s reasonable construction of an AMBIGUOUS REGULATION implemented BY THAT AGENCY (agency’s own rules)

58
Q

What legislative actions are typically deemed to be invalid delegations?

A

(1) delegation to private parties
(2) delegation of power to tax
(3) delegation of power to determine what transactions are taxable

59
Q

May a corporation or union plead the 5th Amendment’s protection against self incrimination during agency investigations?

A

No.

60
Q

What are the notice timing rules for Oregon administrative rule making?

A

Agency must provide notice of the proposed rule by:

(1) publishing in secretary of state’s bulletin at least 21 days before effective date
(2) 28 days notice to persons who have requested notice in writing, and
(3) 49 days notice by email to certain legislators and legislative committees specified by OAPA

61
Q

What are “adjudicative facts” (as opposed to legislative facts)?

A

Adjudicative facts concern individual parties (e.g. when, how, etc.)

Legislative facts are facts relied on by a legislative body (economics, welfare, etc.) relating to no particular individual and are used for policy decisions.

62
Q

For purposes of determining whether there is a right to a formal hearing, what are “liberty” or “property” interests?

A

Liberty interest = those rights directly protected by the Constitution (vote, travel, etc.)

Property interest = any interest that a person has acquired in specific benefits and to which that person has a legitimate claim of entitlement under the source of law from which the claim arises.

63
Q

What is typically the burden of proof during agency adjudication?

A

Preponderance of the evidence

64
Q

Do normal rules of Evidence apply to administrative hearings?

A

No. Evidence must be RELIABLE, PROBATIVE, AND SUBSTANTIAL.

Hearsay may be admitted, based on following balancing factors:

(1) importance of the hearsay to the determination
(2) the availability of the declarant, and
(3) trustworthiness of the hearsay

65
Q

What are the requirements for judicial review of an agency action?

A

(1) Statute doesn’t clearly prohibit review
(2) π has standing
(3) π has exhausted all administrative remedies
(4) Agency issued a final order
(5) Administrative policy is ripe for review

66
Q

When a court is reviewing an agency RULE, what are the steps (questions) it will take to analyze?

A

(1) Does rule violate any constitutional provision?
(2) Does rule exceed statutory authority of the agency?
(3) Did the agency violate its applicable procedural requirements?

If no to all above, then rule will be upheld.

67
Q

When a court is reviewing an agency ORDER, what are the steps (questions) it will take to analzye?

A

(1) Is the order beyond the scope of authority delegated to the agency?
(2) Is the order inconsistent with a constitutional or statutory provision?
(3) Is the order inconsistent with an agency rule, officially stated position, or prior practice, and did the agency fail to explain the inconsistency?
(4) Is the order not based on substantial evidence in the record?

If Yes to ANY of the above, the agency order should be set aside or remanded. Otherwise, agency order should NOT be overturned.

68
Q

When can a business license be suspended without a hearing?

A

Only for “danger to public health or safety.”

69
Q

When a business license is suspended pre-hearing, what notice is required?

A

Notice must include:

(1) a statement of the party’s right to a hearing, or a statement of the time/place of the hearing,
(2) a statement of authority and jurisdiction under which the hearing is to be held,
(3) a reference to the particular sections of statutes and rules involved, and
(4) a short and plain statement of the matters asserted or charged.

70
Q

What evidence is required for a proper agency adjudication?

A

Substantial evidence in the record on which a reasonably prudent person would rely in conducting that person’s serious affairs.

71
Q

What is required for an agency’s final order?

A

Must be reduced to writing, or else it isn’t a final order.

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