What is Adminstrative Law---governs agencies and the law that agencies make---provides a means to influence the agencys decision

or may give a basis for challenging a decision---an Administrative Agency is a governmental entity that possesses one or more of the powers tha thave traditionally been associated with th three separate branches Agency---according to 551 means each authority of the Govt of the US, whether or not it is within or subject to review by another agency, but does not include: Congress, the courts of the US; the govts of the territories or possessions of the US; the govt of DC---the President is not an Agency --Independent agencies--freestanding agencies that are not apart of a dept; less influenced by the President---Executive agenciesinfluenced by Presidential power/orders---cabinent is appointed at Presidents leisure Departments---agencies; have the highest status; initiative to make agencies into depts to give them greater importance, or downgrade to give lesser importance Order--- a final disposition of an agency in a matter other than rule making but including licensing Adjudication---the process of formulating an order, any agency process that results in a final disposition, which is not rulemaking---investigations or information gatherings can be incidental to adjudication or rulemaking AGENCY STRUCTURE---separation of powers is a necessary condition to avoid the conflicts of interest between law makers, enforcers, and deciders that would arise if each could invade the others functionsseparation is not express is in the Constitution, but there is an implicit requirement that the major powers be separate --Formalistic Approachinsists that a doctrine of rigid separation be used to create clear, strict boundaries b/w the branches; approach usually taken when SCt. concludes a govt structure is unconstitutional --Functional Approachdoctrine that the Constitution is a grand design, and not a prescription of government, and should be flexible and adaptable ; Ct determines whether Congress has gone too far in commingling powers by use the core function test: test approves commingling along as one branchs exercise of a power does not jeopardize the core function of another --Delegation of Legislative PowerA legislative body may delegate to an agency the power to make substantive law (the rules are not legislation, but have the full effect and force of law)for the new rule to operate as law it must 1) be within the authority of the agency 2) promulgated according to specified procedures; and 3) Constitutional ---FAILURE OR REFUSAL to promulgate a rule may be an abuse of discretion, or it may violate DP --Courts have justified delegation of legislative powers through the intelligble principle approach which permits the delegation of discretion as long as the agencies decisions are consistent with the general policies defined by Congress (sets boundaries on the agencys authority---Congress cannot give itself the power to override portions of law that it passedAll versions of the legislative veto are unconstitutional--Congress may not legislate on a case-by-case basis after delegating a responsibility to the Executive Branch WHITMAN V. AMERICAN TRUCKING---the Clean Air Act required the Administrator of the EPA (D) to promulgate rules regarding air pollution, and the rules were challenged as an unconstitutional delegation of legislative authority. The Act provided that the regulations were to be such as were, in the judgment of the Administrator; the Administrator revised the standards for a particular matter and ozone. American Trucking challenged revised standards.**RULEA Congressional grant of rulemaking authority is not an unconstitutional delegation of legislative authority if the statute has an intelligble principle to guide the exercises of the authority INTERNATIONAL UNION---representative organizations from industry and labor challenge the OSHAs regulations promulgated under federal statutes entitled Control of Hazardous Energy Sources (Lockout/Tagout) as an unconstitutional delegation of congressional authority. The regulation was aimed out reducing the amount of accidents caused by ordinary industrial equipment that may suddenly move and injure workers. Under 6(b)(5) of the OSA, OSHAs discretion is limited to set standards that deal with toxic materials or harmful physical agents, but OSHA interprets 6(b)(5) as aaplying only to health standards, not safety standards. **RULEThe judiciary will interpret legislation delegating power to govt agencies in a manner that limits agency discretion so as to avoid conflict with the Constitutions nondelegation principle, if such an interpretation is reasonably possible. --Ct. upheld OSHAs interpretation under 3(8) which allows OSHA to promulgate occupational and safety standards that are reasonably necessary or appropriate (this sets a standard).---Cost-Benefit Analysisrequires identifying values for lost years of human life and for suffering and other losses from non-fatal injuries and balancing such values against the financial cost of imposing safety regulations. Delegation of Judicial Powerinvolves the right to hear, consider, and determine questions in controversyJudicial power is vested in one Supreme Court and such inferior courts as determined by Congress. The court has rejected the literalistic view that only Article III courts can exercise the judicial power of the US --Agency case decisions are binding unless set aside by a reviewing court --Usually persons with a dispute cannot force an agency to adjudicate (discretion) --De Novo review of an agency decision is rare because it undermines Administrative agency concepts COMMODITY V. SCHORSchor is challenging Commoditys exercise of jurisdiction over the common law counterclaim of Schors broker after the Commodity Commission ruled against him on all claims arising out of investment dealings with the broker. **RULECongress may authorize an agency to exercise jurisidiction over narrow classes of common law claims, at the option of the parties, arising incident to the agencys primary adjudicative function so long as the jurisdictional grant does not create a substantial threat to the separation of powers ---a strict reading of Article III would foreclose a grant of judicial power to an agency. Although private rights may be involved, the Courts see no objection to administrative adjudication of private rights so long as Congress allowed full judicial review of the agencys legal conclusion and deferential judicial review of the agencys factual findings. Here Schor waived his full right to a full trial before an Article III Court by expressly demanding that the broker proceed on his CC in the reparations proceeding rather than the District court. Schor only got upset when he rcvd a disfavorable decision from the agency.

SEVENTH AMENDMENTwhen Congress establishes a preference for no jury trial, a party can contest the decision as a violation of the 7th Amendment (provides that In suits at acommon law, where the value in controversy shall exceed $20, the right to trial by jury shall be preserved)--when Congress creates new statutory public rights, it may assign their adjudication to an administrative agency with which a jury trial would be incompatible, without violating the 7threason is because that administrative adjudication of public rights does not constitute a suit at common law or in the nature of such a suit---a jury trial is required if Ps COA historically is one that was a legal claim at common law, or if the COA was unknown at common law, if the action is analogous to a legal action at common lawthere is no right to a jury trial for claims that seek injunctive relief or specific performance --Atlas Roofing defined a public right case as one which arises between the government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative depts. --ATLAS ROOFING V. OSHRCthe jury is not the exclusive mechanism for fact finding in civil cases Legislative Vetoviolates the requirements of presentment and bicameralism IMMIGRATION V CHADHAChadha over stayed his student visa, but was allowed to stay in the US by the INS. Pursuant to immigration law, the HR overruled the INS forcing Chadha to seek relief from the judiciary. Under the Immigration Act, the decision of the Atty General will stand unless either the Senator the HR passess a resolution stating in substance that it does not favor the suspension of such deportation within two sessions of Congress from the date of the AGs report to Congress. HR passed a resolution of disapproval, without debate or recorded vote. Chadha then brought suit. **RULEOnce Congress delegates authority to a government agency, it may not legislatively overrule or veto decisions made by the agency pursuant to the delegated authority without following the constitutional procedures of bicameralism and presenation mandatory for enacting legislation---rulemaking vetoes are unconstitutional3 Ways to look at the issue: (1) majority viewthe legislative veto is an unconstitutional bypass of the process set forth in Article I, (2) Jusitce Whites approachthe Constitution is silent as to the issue of the legislative veto, and because the Atty Gen is representative of the Executive branch, presentment is satisfied...and because either side of Congress can pass a resolution, the purpose of bicameralism is satisfied, and (3) all constitutional requirements were met when the Act was first passed --SEVERALBILITY/SEPARABLITYthe issue of how much of a provision is unconstitutional APPOINTMENT POWERArt.II states that only the President can appoint with the advice of the Senate principle officers of the US Congress cannot itself remove officers that perform executive functions --In Myers, the Court stated that Congress cannot restrict the power of the president to remove an officer who performed purely executive functions (President can remove EO w/out cause)--President does not have unbridled discretion to remove independent counsel from office even though the position is purely executive (officers of independent agencies) BUCKLEY V. VALEOCongress created the Fedl Election Commission with 6 voting commissioners. The President was given power to appoint only two of the commissioners, a provision being challenged as a violation of the Appointments Clause. Congress implemented the FEC Act after the Watergate Scandal to provide oversight of the campaign process. The provision allowing for the appointment of 4 of the 6 commissioners by persons other than the President was challenged as a violation of the Clause and the attendant separation of powers doctrine. **RULEAll Officers if the US, or those who exercise substantial power in enforcing the laws through the use of criminal and civil legal proceedings, must be appointed by the President pursuant to the Appointments Clause, regardless of which branch created the office. MORRISON V. OLSONOlson challenges a provision of the Ethics in Government Act allowing court in the fedl judiciary to appoint a special prosecutor in the executive branch who is removable by the President only with good cause.**RULECongress may restrict the Presidents ability to terminate the employment of an official whose functions are purely executive to instances of good cause so long as such provision does not interfere with the Presidents exercise of the executive power or the Presidents constitutional duty to faithfully execute the laws --In Humphreys the Court ruled that the Pres does not have ulimited removal power with respect to officers of quasi-legislative or quasi-judicial agencies created by the Congress---the good cause standard is equivalent to the statutory protections enjoyed by many independent agency heads; thus the removal protections applicable to traditional independent agencies would also pass muster under Morrison analysis BOWSHER V. SYNARCongress passed a law giving the Comptroller General, effectively a congressionally controlled official, powers to interpret and execute the laws provisions. The law is being challenged as a constitutional violation of separation of powers doctrine**RULESeparation of powers concerns bar Congress from vesting in itself the power to remove, through means other than the impeachment power, officials possessing authority to interpret and execute the laws ---the Constitution does not allow an active role for Congress in the supervision of officers charged with the execution of the laws it enacts. It is the Pres role to appoint Officers of the US. Once the appointment has been made and confirmed, the Const explicitly provides for removal of Officers of the US by Congress only upon the process of impeachment by the HR and conviction by the Senate. RULEMAKINGAgency process for formulating, amending, or repealing a ruleprocess normally begins when an agency considers whether to propose a rule, and it may not end until there has been judicial review of the promulgated rule --Formal Rulemakinggoverned by 556 and 557requires a trial type proceeding to promulgate a rule US V. ALLEGHENYAfter the Fedl agency regulating railroad rates enacted some rules without hearing, dissatisfied railroad users sued, contending formal rulemaking and a hearing were required**RULEFORMAL RULEMAKING, per APA 556-57, is required only when an agencys enabling legislation specifies (i) there must be a hearing, and (ii) the hearing must be on the record ---a statute may require a hearing, but may not require that it be on the record (which would not trigger formal rulemaking) FR is like FA, only slightly less cumbersome than adversarial litigation. FR is rarely required and may be dispensed with even if the statute requires a hearing, but does not specify that hearing must be on the record. IFR is preferred over FR because often times, an agencys rulemaking often involves making policy choices, whose correctness often cannot be proven/disproven abso-

lutely in a court-like setting, especially where they involve predictions rather than past factual events. Another reason is that courts are aware of how adjudicative lawmakings cost can exceed the rules importance. US V. FLORIDA EAST COAST RR CO. while the ICCs enabling statute requires rate regulations be made after the hearing, the ICC made rules after accepting only written comments. Regulated railroads sued, contending this hearing was inadequate. **RULEStatutory provisions requiring a hearing do not trigger formal rulemaking, and the hearing sometimes need not include the right to present evidence orally, cross-examine witnesses, or present oral arguments to the agency. ---statutory provisions calls for a hearing it does not always trigger formal rulemaking, and the hearing sometimes need not include the right to present evidence orally, cross-examine witnesses, or present oral arguments to the agency. The Court fails to define hearing specifically, noting its procedural requirements vary, depending on how much procedural protection is necessary. The Courts dicta suggests that rulemaking that is applicable to a general class almost never requires a full adjudication-style hearing. VERMONT YANKEE V. NATURAL RESOURCESWhen an agency enacted atomic energy rules without allowing discovery or cross-examination of experts, an anti-nuke group challenged a procedure as denying meaninful participation.**RULECourts reviewing agency rulemaking procedures cannot impose additional procedural rights, absent constitutional constraints or extremely compelling circumstances ---agencies have discretion to grant additional procedural rights, but reviewing courts cannot. --Informal Rulemakinggoverned by 553most common; only subject to the notice and comment procedures required by 553 and must be accompanied by a statement of basis and purpose when they are promulgted CHOCOLATE V. BLOCKThe agency administering subsidized food proposed a rule disallowing high-sugar cereals (but continuing to allow flavored milk), yet after receiving comments, it enacted a final rule disallowing chocolate milk. Chocolate milk makers sued, claiming insufficient notice. There was never a discussion about removing chocolate milk from the list, only cereal and juice. **RULEIf a proposed rule is later revised, the original notice was adequate if the revisions are in character with the original scheme, and the final rule is a logical outgrowth of the notice. ---allows agencies can promulgate a final rule that is somewhat different from the proposed rule ---logical outgrowth rule attempts to protect affected parties from being bound by unexpecteed alterations without notice HBO v. FCCan agency initiated rulemaking about cable TV standards, accepted comments through the end of the comment period, then solicited and received hundreds of off-the record communications from cable companies.**RULEwhen private parties/lobbyist attempt to communicate with agency officials off the public record, then (i) communications received before the formal notice need not to be included in the public record, unless the communication formed the basis for agency action, (ii) once a notice of proposed rulemaking is issued, all agency officials should refuse to discuss rulemaking proceedings with interested parties or agents, and (iii) if ex parte communications occur, their documentation/summarized transcript should be placed in the public file immediately ---rule suggests that informal contacts b/w agencies and the public are appropriate and accepted, as long as they do not frustrate judicial review or suggest unfairness, and as long as the information gathered is disclosed eventuallythis case is no longer good law SIERRA CLUB V. COSTLE---When the EPA lowered emissions standards after accepting post-comment period comments, and then having off-record meetings with lobbyists, politicians, and the President, environmentalists challenged the rules procedural validity**RULETHE EPA, in rulemaking(i) may accept comments submitted after the comment period, without giving notice, and refuse to docket such late comments if they are not of central relevance to the rulemaking, (ii) may have off-record meetings after the comment period with lobbyist and politicians, and refuse to docket the transcript of such meetings with other Executive Branch officials, White House officials, or the President, and must not docket those meetings transcripts unless information or data from them formed the basis for the rule. ---represents the latest stand on informal lobbying, adopting tolerant anything goes policy toward informal, after-hours, and undocumented and political arm-twistingcontrasts with HBO --Hybrid Rulemakinggoverned by 553 with heightened requirementswhen Congress has imposed additional procedures or substituted different procedures, beyond those required by the APA APA RULEMAKING PROCEDURES EXCEPTIONS---General ExceptionsNone of section 553 applies to rules involving military or foreign affiars functions and rules involving agency management or personnel, or involving public property, loans, grants, benefits, or contracts; rules involving public property -public lands, grants, benefits (SSS, Medicare, Medicaid), and contracts--Some rules are exempt from 553, but exempt from 552(Freedom of Information ActFOIA)contains the general requirement that substantive rules of general applicability adopted as authorized by law and each amendment, revision, or repeal of the foregoing be published in the Federal Register for the guidance of the public. ---552 states that if an agency fails to publish with the FR, persons without notice would not be adversely affected by the rule---Exceptions from Notice and Commentssection 553 also has exemptions for the N&C for (i) rules of agency organization, procedure, or practice (ii) interpretive rules, (iii) general statements of policy, and (iv) other rules for which notice and public procedure are impracticable, unnecessary, or contrary to the public interest --(iv) requires good cause for invoking the exception and to publish that finding and the reasons with the rule --impracticablemeans a situation in which the due and required execution of the agency functions would be unadvoidably prevented by its undertaking public rule-making procedures --unnecessaryas far as the public is concerned; if a minor or merely technical amendment in which the public is not particularly interested were involved

--Public Interestrequires that public rulemaking procedures shall not prevent an agency from operatiing and that, on the other hand, lack of public interest in rulemaking warrants an agency to dispense with public procedure AMERICAN HOSPITAL V. BOWENwhen the Fedl agency authorized to oversee Medicare hired private doctors to audit hospitals Medicare fraud, it enacted audit procedures without public notice or formal rulemaking. The hospitals sued to void the procedures, claiming necessary notice and comment was omitted **RULEAgencies procedural rules are exempt from APA Sect. 553s notice and comment requirements if they do not suggest approval/disapproval of certain behavior, even if the procedural change affects parties rights ---procedural rules are exempt, presumably because (i) agencies should have autonomy to set their own procedures, and (ii) agencies internal procedures affect the general public so little that few would care about the response or bother to comment --procedural ruleone that does not legalize or forbid any act, although they may affect parties rights AIR TRANSPORT ASSN V. DEPT. OF TRANSPORTATIONThe Fedl aviation-safety agency increased civil penalities and changed administratitve adjudication procedures without prior notice and comment, contending the rules were exempt as procedural. **RULEAgencies rules are deemed procedural (and thus exempt from 553s notice and comment) only if they do not substantially alter the rights or interest of regulated parties ---The penalty rules were not merely procedural; here the penalty rules substantially alter civil defendants right to an administrative adjudication, since the penalty rules may restrict Ds right to notice and hearing before being fined. (This rule was soon overruled, it contradicted American Hospital) ---notice and comment must precede promulgation of rules JEM BROADCASTING V FCCthe Fedl radio-licensing agency adopted rules without notice and comment whereby license applications containing errors were summarily rejected. When an applicants ambiguous application was rejected, it sued to declare the rules void. **RULEFor APA 553 purposes, agency rules are deemed procedural if the rules substantive effects on parties rights are too minor to justify notice and comments inefficiency and expense --- a rule is not automatically deemed substantive just because it affects outcomes; what matters is the effects degree. The hard look rules did not change the substantive standards whereby the FCC evaluates licence applications. Although advancing the deadlines denies applicants the chance to correct errors, the court found that the opportunity to amend was not so significant that it requires the FCC to conduct notice and comment rulemaking, especially in light of the FCCs weighty interest in efficiency. ---Abandons prior cases that attempted to formulate a bright-line distinction between substantive and procedural rules. ---Whether N&C is required now balances the extent of the rules effect on parties right against the cost of N&C, in efficiency and moneyif the impairment is too minor, then no N&C will be required RULEMAKING INTIATIONAn agency may act pursuant to a statutory command, in response to staff recommendations, as a result of petition from an interested person, or from political pressure from the legislative or the executive branches, or through lobbyist --Thomas O. McGarity, The Internal Structure of EPA Rulemakingdiscusses how agencies are organized (p.53) PETITION FOR RULEMAKINGThe APA provides that each agency shall give an interested person the right to petition for issuance, amendment, or repeal of a rule. APA also mandates that prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding and the notice shall be accompanied by a brief statement of the grounds for denial. --Under 555, an agency cannot ignore a petition for rulemaking since it must give prompt notice...of the denial and to accompany the notice with a brief statement of the grounds for the denial. filing a petition is a way to force some action out of an agency --if the agency grants the petition and proceeds to RM, then no issue for judicial review arises, but if the agency does not respond to the petition w/in a reasonable time, or if the agency rejects the petition, the petitioner can seek JR under the APA --Agency inactionunder 551(13) defined to include failure to actSection 706 provides that the reviewing court shall compel agency action unlawfully withheld or unreasonably delayed. TELECOMMUNICATIONS V. FCCWhen the FCCs investigation of phone customers overhcharges produced no result in 5 years, a customer advocacy group sought judicial review over the FCCs unreasonable delay--**RULEIf a person petitions an administrative agency for rulemaking, but the agency fails to respond within a reasonable time, the petitioner may seek judicial review of the unreasonable delay, and obtain either mandamus or continuing court jurisdiction until final agency disposition. ---Generally, allowing administrative agencies to reach a decision permits the agency to develop a factual record, apply its full expertise to the petition, and avoid piecemeal appeals. However, when the interlocutory appeal is a claim of unreasonable agency delay, courts should exercise their jurisdiction. --Denial of Petitionif the agency denies the petition because, conceding the facts in the petition, the agency does not have the legal authority to adopt the rule requested (issue is does the agency have the authority or not?) If the agency denies the petition b/c its view is diff from the petitioners view, then the issue is factual, or perhaps judgmental --common basis for denial of a petition could be that the issue is simply not important enough, given the agencys resources and priorities, to justify rulemaking at the time ARKANSAS POWER&LIGHT V. ICCCoal-consuming power companies filed a rulemaking petition with the agency responsible for regulating railroad rates, demanding an extensive study which would locate the cheapest coal-shipping RR routes for them. When the agency refused, contending rulemaking was too cumbersome and individual adjudication was more efficient, the companies

sought review. **RULEWhen agencies deny a rulemaking petition, courts will overrule their decision only if (a) the agency did not adequately explain the facts and policies it relied on, or (b) the facts cited have no basis ---there was no basis to compel rulemaking. ICC was not unreasonable in concluding that developing a national database is unnecessarily cumbersome, because it would require many RRs, whether operating efficiently or inefficiently, to produce data which might never be used...etc. NORTHERN SPOTTED OWL---When environmentalist petitioned the FWC agency to declare an owl endangered, the agency gathered overwhelming scientific evidence proving it was endangered, but denied the petition. Environmentalists sought judicial review, contending the agencys decision was illegal or arbitrary.**RULEagencys rulemaking actions are judicially reviewable under the arbitrary and capricious standard, meaning courts must defer to the agencys expertise unless it failed to articulate a satisfactory explanation...including a rational connection between the facts found and the choice made. ---Ds documents lack any expert analysis supporting its conclusion; all expert opinion is entirely to the contrary --- arbitrary and capricious standard is the most common standard of review for all agency actions. Courts are expected to defer to agencies and presume their conclusions are correct if the agency gives a reason and the reason somehow supports the conclusion. However, this case adds that the court should also do its own searching and careful substantial injury into the factsparticularly highly technical facts (which the court is presumbly not especially well equipped to evaluate). ADJUDICATIONDefined as the process for formulating an order, any agency process that results in a final disposition, which is not rulemaking---includes administrative proceedings that are hardly distinguishable from judicial proceedings, with an agency attorney who prosecutes a person for violating the law and who seeks an administrative order that is the equivalent of an injunction and penalties an agency must justify why it choses the type of adjudication it uses (when in doubtstatutory ambiguity) --Orderfinal disposition of an agency in a matter other than rulemaking but including licensing [551(6)] --Formal Adjudicationgoverned by section 554, 556, and 557 --554 contains some of the procedures required in formal adjudication, states that it applies in every case of adjudication required by statute to be determined on the record after an opportunity for an agency hearing, with certain exeptionsif section 554 applies, it invokes 556 and 557; if 554 does not apply, then it is only governed by the minimal requirements in 555 and 558, whatever due process or some other statute might requireInformal Adjudication --Informal Adjudicationthe agency must make a decison on the facts of a particular case, but the agency is not required by any statute to base its decision in that case on a formal record compiled after an opportunity for a formal hearing SEACOAST ANTI-POLLUTION V. COSTLEEnvironmental groups challenged a decision made by the EPA after a public service company applied to the EPA for permission to discharge heated water from its nuclear generator into the Gulf of Maine**RULE The APA applies to proceedings held pursuant to section 402 ofthe Federal Pollution Control Act ---Both sections 316(a) and 402(a)(1) of the FWPCA provide for public hearings, but neither states that the hearing must be on the record. It is believed that, with respect to adjudication, the specific statutory requirement of a hearing, without anything more, carries with it the further requirement decision on the evidence adduced at the hearing. ---From the beginning, the court rejected the magic words approach used in past cases, refusing to declare that only the precise words on the record could trigger APA procedures. The court instead determined that the APAs applicability turned on the substantive nature of the hearing Congress intended to provide. 1th Circuit. This is a functional approach. CITY OF WEST CHICAGO V. US NRCThe plaintiff contends that the defendant violated the Atomic Energy Act of 1954 by denying its request for a formal, trial type hearing **RULEFormal hearings are not statutorily required for amendments to materials licenses ---The AEA clearly requires NRC to grant a hearing if requested in any proceeding for the granting, suspending, revoking, or amending of any license or construction permit. The City argues that NRC must hold a formal hearing, NRC argues that it may hold an informal hearing in which it request and considers written materials. --The Court held that an informal hearing was sufficient because Congress must clearly indicate its intent to trigger a formal hearing, and there is no indication of such intentdidnt want to overformalize the licensing process 7th Circuit. CHEMICAL WASTE MANAGEMENT V. US EPATwo waste management companies seek review of EPA regulations that establish informal procedures for adminstrative hearings concerning the issuance of corrective actions orders **RULEThe EPA is not required to use formal procedures for administrative hearings concerning the issuance of corrective action orders ---Under Chevron, it is not our office to presume that statutory reference to a hearing, without more specific guidance from Congress, evinces an intention to require formal adjudication, since such presumption would arrogate to the court what is clearly the perogative of the agency, that is, to bring its own expertise to bear upon the resolution of ambiguities in the statute that Congress has charged it to adminster. D.C. Circuit Two-step process: first, where Congress has directly spoken to the precise question at issue, effect must be given to the unambiguously expressed intent of Congress.

Second, where the statute is silent or ambiguous with respect to the specific issue, the court must ask whether the agencys answer is based on a permissible construction of the statute. If so, then the court must defer to the agencys construction.

--NoticeThe APA requires that the proceedings begin with notice that includes the time, place, and manner of the hearing; the legal authority for the hearing, and the matters of fact and law asserted by whoever is bringing the proceeding [554(b)] --Intervenorswhere persons who are not parties want to participate in the proceeding to affect its outcome the APA states that as far as orderly conduct of public business permits, an interested person may appear before an agency in a proceeding. [555(b)] --Issue is whether the right to appear means the right to intervene or right to be an amicusif intervention, the person can appeal an adverse decision, but if amicus the person cannot appeal --if a person has standing to appeal the decision of the agency, as a matter of the case and controversy requirements of the Constitution, the person has a right to intervene --SettlementAPA has always provided that there should be an opportunity before a hearing for the parties to settle or adjust their dispute [554(c), 556(c)(6)Congress enacted the Administrative Dispute Resolution Act in 1990 to amend the APA to give special emphasis to alternative dispute resolution or ADR --the amendments authorize agencies to use a number of different ADR techniques, including settlement, mini-trial, concilation, mediation, and arbitrationADR is never required, nor can it be forced on any party --ALJsif there is a hearing, the APA states that one of three entities must oversee the taking of evidence: (i) the agency, (ii) one or more members of the body that comprises the agency, (iii) or one or more ALJs [556(b)] An ALJ can administer oaths, issue subponeas authorized by law, rule on offers of proof and receive relevant evidence, take depositions or have depositions taken, regulate the course of the hearing, hold conferences for settlement, dispose of procedural requests, and take other action authorized by agency rule [556(c)] ---ALJs are employees of the agency for which they act as judges which cause tension with the notion of the ALJ being a nuetral decision maker ---ACUS (Administrative Conference of the US) acknowledged that the role of ALJs as independent fact finders requires that they be protected from agency pressure in making their decisions, but it also recognized that agencies hace a legitimate interest in being able to manage their employees, including ALJs, to ensure that the adjudicatory system is efficient and fairrecommended a Chief ALJ to evaluate the ALJ and provide guidlines ---The APA prohibits an agency employee engaged in investigation or prosecution of a case from participating or advising in the ALJs decision, recommended decision, or agency review of that decision except as witness or counsel in the public proceedings (known as separation of functionsseparating the prosecution from the adjudicative functions within the agency) --Three Exceptions to separation of functions [554(d)(A)-(C)]: (i) initial licensing, (ii) proceedings involving the validity or application of rates or practices of public utilities or common carriers, and (iii) the head of the agency or the members of commission boards ---ALJs are subject to disqualification for personal bias or other reason from heraring a case, but does not specify a standard 556(b) ---ALJ cannot second guess, ignore, or invalidate the firnakky adopted legal positions of the agency, b/c the ALJ is an employee of the agency --Split Enforcement ArrangementInstances where Congress has split the prosecutorial and adjudicative functions; the rationale is to protect employers from any possible bias that the Dept of Labor might have regarding the adjudication of safety or health violations in workplace or mines --Burden of Proofthe APA specifies that the proponent has the burden of persuasion rather than the burden of production [556(d)]the APA requires that an agencys decision be supported by and in accordance with the reliable, probative, and substantial evidence ---substantial evidencerelates to the evidence that is perceived by the fact finder and not by a reviewing courtdoes not refer to the amount of evidence, but the quality of evidence (preponderance) --mere uncorroborated hearsay or rumor does not constitute substantial evidence however, the APA clearly authorized the admission of hearsay evidence and other evidence that might be excluded under the Federal Rules of Evidence, as long as the evidence is not irrelevant, immaterial, or unduly repetitious; HOWEVER, in some situations, where the nature of the hearsay is relatively reliable, probative, and substantial, such as a doctors report, it can form the basis of a decision --Residuim Ruleprohibited a decision based soley upon hearsay evidence --Testimony and Documentsthe APA entitles parties to present their case by oral or documentary evidence, to submit rebuttal evidence, and to conduct cross examination, although agency only has to permit such cross-examination as may be required for a full and true disclosure of the facts. ---in adjudications involving claims for $$ or benefits or applications for initial licenses, the agency is allowed to provide for the submission of evidence in written form, rather than orally only reason is b/c in those types of cases there are not normally adverse parties involved in the adjudication; it is only a party submitting evidence in its support w/out any other party contesting it --The Record and Ex Parte Communicationsthe transcript of testimoney and exhibits, together with any papers filed in the proceeding, constitutes the exclusive record for decision [556(e)]what marks formal adjudication and rulemaking

---Ex Parte Communicationscommunications to someone involved in the decisional process from an interested person outside the agency with respect to the merits of a particular case that not made on the public record as to which all parties had notice ---EPCs prohibted to protect the exclusivity of the record as a basis of decision [557(d)] ---Violations are to be cured by placing the communications on the public record with notice to all parties, with the possibility of sanctions against the violator ---prohibition only reaches ex parte communications with persons outside the agency554(d) contains a provision that prohibits an ALJ from consulting a person or party on a fact in issue, unless on notce and opportunity for all parties to participate (advise on laws, but not facts as longs as person wsa not engaged in the prosecution or investigation) --Appealsthe ALJs initial order/decision becomes final unless a party appeals the decision or an agency official with the discretion to review the decision decides to do sothe APA states that the agency has all the powers which it would have in making the intial decision (appeals board/head decides the case de novo) NLRB V. LOCAL UNIONThe NLRB petitions for enforcement of its oder which invalidates part of Local 25s collective bargaining agreement. **RULEAn ALJ may not sua sponte raise an issue that was not previously raised in the complaint, in the briefs, or in oral argument, and when no evidence was presented concerning the issue **ANALYSISFailure to provide notice of an administrative proceeding is a jurisidictional defect that invalidates the administrative action until the defect is cured. Administrative pleadings, however, are liberally construed and easily amended, since the Union was not properly advised to enable them to prepare a defense, proper notice was not given SOUTHWEST SUNSITES V. FTCthe FTC found that the defendants violated the FTC Act by engaging in unfair and deceptive practices in their sales of undeveloped land.**RULEthe purpose of the notice requirement in the APA is satisfied if the party proceeded against understood the issue and was afforded full opportunity to justify his conduct, even if the legal standard for adjudicating his conduct changed during the course of the hearing--The basis of Southwests argument is that the application of the new deception standard violated the APA b/c it did not timely inform them of the matters of fact and law asserted. The new standard imposed a greater standard on the P and not Southwest so the argument failed. COPANOS V FDAA drug manufacturer is challenging the FDAs decision to withdraw its approvals of the manufacturers applications for new drug products**RULEWhen the FDA issues Notice of Opportunity for Hearing, its summary judgment procedures are available if the requesting party fails to rais issues of fact based upon the evidence submitted ---The purpose of notice under the Due Process Clause of the Constitution is to apprise the affected individual of, and permit adequate preparation for, an impending hearing. The notice requirement thus informs the parties of the substantive issues that will be involved. The possibility of summary action makes the requiremen of due notice especially important. The notice in this case reasonably informed Kanasco of the matters that the hearing would address, but Kanasco failed to comply. WALLACE V BOWDENThe plaintiff is challenging the ALJs decision denying him disability benefits based upon medical reports obtained outside of his hearing which he was unable to cross-examine.**RULEWhen an ALJ chooses to go outside the testimony adduced at the hearing in making a determination, the ALJ must afford the claimant not only an opportunity to comment and present evidence, but also an opportunity to cross-examine the authors of any post-hearing reports when such cross-examination is necessary to the full presentation of the case, and must reopen the hearing for that purpose if requested.---In this case, the reports created by the consulting physician were substantially relied on by the ALJ both in his determination that Wallaces impairments did not meet or equal the listings and his determination that Wallace was not so impaired that he could not do sedentary work. The reports were given greater weight than that of the examining physician in determining Wallaces capacity to do sedentary work. should have been given opportunity to cross-examine EX PARTE COMMUNICATIONSthere is no similar bar concerning ex parte contacts in informal rulemaking/adjudication PATCO V FLRAPATCO (Professional Air Traffic Controller Org) is challenging the FLRAs (Fedl Labor Relations Authoity) revocation of PATCOs status as exclusive bargaining representative for the air traffic controllers after PATCO called a nationwide strike of air traffic controllers against the FAA.**RULEWhen an agency proceedings have been blemished by ex parte communications, a court must consider whether, as a result of the improper ex parte communications, the agencys decisionmaking process was irrevocably tainted so as to make the ultimate judgment of the agency unfair. ---improper ex parte communications make a decision voidable, but not necessarily void ---remedies: (1) put it on the record, and (2)violating party show cause why claim shouldnt be dismissed, denied, or disregarded ---ex parte communications undermine the on the record requirement which is to ensure fairness to the litigants STONE V FEDERAL DEPOSIT INSURANCE CORP.The plaintiff seeks review of a decision upholding his termination from employment, claiming that harmful error occurred in the removal proceedings because the deciding official received ex parte communications (Stone signed his own doctor notes, two officials sent documents recommending his dismissal off record) **RULE The intro of new and material info by means of ex parte communications to a deciding official in an administrative proceeding undermines public employees constitutional due process guarantee of notice and the opportunity to respond ---it is a fundamental requirement that an individual have the opportunity to present testimony as to why a proposed action should not be taken. A tenured employee is entitled to tell his side of the story. Due Process Hearingsthe DP Clause provides that no person shall be deprived of life, liberty, or property without due process of lawDoes DP Clause apply at all?If so, what procedures are required? DP Clause requires the government to hold some type of hearing before it deprives an individual of life, liberty, or property based on the resolution of disputed factual issues pertaining to that person.

Individualized decisionmakingindividualized deprivations of property or liberty require DP, and policy-based depriviations affecting a class of individuals do not LONDONER V DENVERA landowner challenged a tax assessed by the city to his property for improvements to a street which abutted his land**RULEwhere a legislature delegates the authority to assess taxes, due process of law requires that, before the tax becomes irrevocably fixed, the tax payer have notice and opportunity to be heard ---The key quality identified in this case is whether a person is exceptionally affected, in each case on individual grounds. In this case, the assessments against each individual varied according to how each persons property was separately benefited. This assessment was subject to due process. Since, as a matter of fact, no opportunity for hearing was afforded, the assessment was not constitutionally permissable. BI METALLIC V STATE BOARD OF EQUALIZATIONA property owner brought suit to enjoin an order increasing property values by 40%, thereby increasing tax obligations, because the plainitiff was not given an opportunity to be heard as it claims is its constitutional right. ** RULEConstitution does not require all public acts to be done in town meetings or an assembly of the entire population---no due process when it is class wide action because of practicality (everyone cant be heard) BOARD OF REGENTS V ROTHAn assistant professor brought suit against the University for a violation of his 14th Amendment rights after his employment contract term expired and he was not subsequently rehired for a new term. **RULEA person must have a legitimate claim of entitlement in order to have a property interest in a benefit, and a right to procedural due process ---The State, in declining to rehire Roth, did not make any charge against him that might seriously damage his standing and associations in the community; there was no suggestion that the State imposed a stigma or disability on him that foreclosed his freedom to take advantage of other employment opportunities. ---A court must first determine whether that interest may be classified as life, liberty, or property. Since Roth had no property interest in being rehired by the University, the Court correctly held that there was no due process violation under the Constitution. PAUL V DAVISA man identified ina flyer the police created naming potential shoplifters which was then circulated to local merchants, brought an action claiming he was impermissibly deprived of some liberty protected by the 14th Amendment **RULEReputation alonE, apart from some more tangible interest, is neither liberty nor property by itself sufficient to invoke the procedural protection of the DP ClauseSTIMULUS PLUS---classical defamation case; harmful government action must not only damage a persons reputation, but it must also expose the person to some other disability, such as the loss of a job, in order to invoke due process protection. CODD V VELGERThe plaintiff alleged he had been wrongly dismissed without a hearinG or a statment of reasons after material was placed in his file that he held a gun to his head in an attempted suicide. Because he held only a probationary position, he had no property interest in the position, but he alleged he was entitled to a hearing due to the stigmatizing effect of certain material placed by the police dept in his personnel file. **RULEThere must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employees reputation in order for a hearing to be mandated under the DP Clause. ---When it appears from the reasons and facts supporting the request for the hearing that there is no genuine and substantial issue of fact, there is no due process claim to a hearing. The fact of Ps attempted suicide was Velgars ground for dismissal, and he never disputed the fact. ---According to Justice Stewarts dissent, the Courts decision implies that a discharged employee has no right to a hearing unless the charges against him are false; This would represent extreme departure from the basic legal principle that the guilty as well as the innocent are entitled to fair trial. SHANDS V CITY OF KENNETTFour fireman were fired for insubordination and misconduct, and they allege that theIr DP was violated because they were not given a hearing. **RULEAn employees liberty interest is implicated where the employer levels accusations at the employee that are so damaging as to make it difficult or impossible for the employee to escape the stigma of those charges ---the District Court held that the statements made against the fireman did not rise to the level of stigma required to implicate the constitutionally protected liberty interestthe charge wouldnt affect future employment opportunities. WHAT HEARING PROCEDURES MUST BE USEDIn Goldberg V. Kelly the court held that for cases such as the termination of welfare benefits, the court held that DP required an evidentiary hearing before termination, because welfare was the last safety net, and termination deprives the recepient of the very means by which to live why he waits. MATTHEWS V ELDRIDGEA disabled worker filed suit after disability benefits were terminated without an evidentiary hearing, claiming that due process requires a pretermination hearing. **RULEAn evidentiary hearing is not required prior to the termination of disability benefits under the DP Clause of the 5th Amendment ---DP is flexible and calls for such procedural protections as the particular situation demands. Must consider the (i) private interest that will be affected by the official action; (ii) the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (iii) the Govts interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Elgibility for disability benefits is not based on financial needinterest is preventing interruption. At some point the benefit of an additional safeguard to the individual affected by the administrative action and to society in terms of increased assurance that the action is just, may be outweighed by the cost. BOARD OF CURATORS V HOROWITZA medical student claims she was denied procedural due process by not receiving a formal hearing prior to her being dismissed from school for poor academic performance. **RULEDP does not require a formal hearing before a student is dismissed for failure to meet academic standards.Academic evaluations of a student, in contrast to disciplinary determinations, bear little resemblance to the judicial and administrative fact-finding proceedings to which we have traditionally attached a full-hearing requirementThe student was given adequate notice of the schools dissatisfacton even if she did have a property or liberty interest.

OSTEEN V. HENLEYA college student filed suit after he was expelled for fighting, claiming that his right to counsel at the hearing was denied. **RULEThe DP Clause of the 14th Amendment does not confer a right to counsel in student disciplinary proceedings at most a student has a right to seek the advice of a lawyer. The lawyer need be allowed to actually attend the hearing. In the context of public education, the adversarial, trial-type model of DP simply overwhelms the proceedings. Having a lawyer participate would actually cost more than it would save in educational effectiveness. The college would have to hire its own lawyer, and judges would have to be brought in to administer the proceedings. The cost and complexity of the proceedings would be substantial, which would only be detrimental to the goals of discipline. NEUTRAL DECISION MAKERone of the basic requirements of due process WITHROW V. LARKINA medical examinering Board appeals a district courts decision finding that the combination in the Board of prosecutorial and judicial functions was unconstitutional as a violation of due process guarantees.**RULEIt is not unconstitutional for agencies to perform both investigative and prosecutorial functions in an administrative proceedings. This case is significant because the Court finally addresses the constitutionality of the combination of legislative, prosecutorial, adjudicatory, and investigtative functions. The Court in this decision authorizes a much broader combination of functions than does the APAthey said it was more effective CHOICE OF PROCEDURAL AND NONLEGISLATIVE RULESAn agency can make a decision through adjudication that is binding on the parties to the adjudication and may be precedent with respect to non parties in future adjudicationsit can promulgate a rule that is binding on all subjects to the ruleor it can promulgate a nonlegislative rule --Nonlegislative rulean agency pronouncement that advises the public of hte agencys view on an issuedoes not have legal binding effect on third parties, but still fit the APAs definition of rule --Rulemeans the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy... [551(4)] --Legislative rulerules adopted by the notice and comment processare legally binding Types of Nonlegislative rules: interpretative rules and general statements of policy---both are exempt from notice and comment procedures of Section 553 OPTION ONE: Advantages and Disadvantages of AdjudicationAgencies can use adjudication or rulemaking to determine what acts are unfair or deceptive in part --Rulemaking has only a prospective effectavoids the problem that adjudication focuses only on one defendantall competitors are bound to follow the new policyopens up the process of agency policy innovation to a broad range of criticism, advice, and data that is ordinarily less likely to be forthcoming in adjudication proceedingscan establish bright-line policy, which is clearer and more precise than a policy developed on a case-by-case basis, increasing the level of compliance **CONS: makes the adjudicative process inflexible and incapable of dealing with many of the specialized problems which arise --Adjudicatory orders are only legally binding on the entity against which it is issuedsome principles need to be developed more before coming rulesproblems may arise in a case which the administrative agency could not reasonably forsee, which must be solved despite the absence of a relevant general rulethe agency may not have had sufficient experience with a particular problem to warrant rigidfying its tentative judgment into a hard and fast ruleproblem may be specialized or varying in nature as to be impossible of capture within the boundaries of a general ruleproceedings against an individual is significantly less expensiveagency gets to pick its defendantgives retroactive effect NLRB V. BELL AEROSPACE CO.The NLRB previously adopted a narrower definition of which employees could unionize. When the NLRB changed the rule in adjudication, an employer sued to require public rulemaking instead **RULEAgencies have discretion to adopt rules through adjudication rather than rulemaking, unless granting adjudications retroactive remedy would be unfair. **ANALYSIS-Agencies have discretion to choose between rulemaking and adjudication. In some situations, rulemaking by adjudication would amount to abuse of discretion, or violation of the NLRA. In this case, nothing justified a conclusion that the agency abused its discretion. Also, adjudication is deemed appropriate because formulating a generally-applicable rule on whether thousands of corporate buyers are managerial employees is impossible, since each companys business has different tasks. RETAIL WHOLSALE DEPT V NLRBWhen the NLRB suddenly changed policies after an adjudication, requiring bosses to re-hire fired strikers, it applied the rule retroactively. **RULEcourts may refuse to enforce agencies retroactive adjudicatory orders, if retroactivity is unfair.In deciding whether to grant retroactive force to newly-adopted rules, courts must balance retroactivity against the mischief of producing a result...which violates the statutory purpose or legal principles. Courts should consider factors including (i) whether the case is one of first impression (ii) whether the new rule departs abruptly from settled practice (iii) the extent to which the defendant relied on the old rule, (iv) the retroactive orders burden on the defendant, and (v) the statutory interest in applying the new rule despite reliance. OPTION 2: RULEMAKINGIf an agency can engage in rulemaking and adjudication, it can adopt a new policy and make it legally binding through rulemaking and then enforce it through adjudication if necessaryan agency has the auithority to promulgate legislative rules if Congress has given it the power to do sostatutes or regulations may give individuals a right to formal adjudication, by adopting a legislative rule, an agency may be able to restrict the scope of the right --Retroactive RulemakingAn agencys power to issue rules is limited to the authority delegated by Congress, and agencies do not have the power to give rule retroactive effect without express grant of authority from Congress

GEC V. US EPAWhen the EPA fined a polluter under a creative interpretation of its regulations, the polluter claimed the fine violated due process **RULEDP prohibits agencies from fining or convincing those who violate rules so ambiguous they do not identify the prosecuted conduct with ascertainable certainity ---If a regulation is not significantly clear to warn parties what is required or forbidden, agencies may not deprive them of property by imposing civil or criminal liability. If a statement binds an agency only, it is not a general statement of policy, and thus is void if lacking notice and comment. --general statement of policydefined by case law as an agency statement that has the possibility to not be binding as written. OPTION 3: NONLEGISLATIVE RULESinterpretive rules and statements of policy are exempt from 553, the APA does impose some requirements concerning the publication; these rules warn the public of an agency interpretation or policya party might challenge the rule on the ground that the pronouncement is really a legislative rule (entity would argue that the rule is invalid because the agency failed to use notice and comment)issues arise concerning what are the consequences when a member of the public relies on this statement and then the government later refuses to follow it (must determine if theres a remedy for ind.) -interpretive rulea statement issued by an agency toadvoce the public of an agencys construction of the statutes and rules which it administers -policy statementstatement issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise discretionary power. --Advantagesefficient b/c they are not subject to the procedural requirements of the APA, and are generally exempt from the various other statutory and administrative procedures applicable to rulemakingbeneficial b/c it informs the public as to the agencys views and intentions, and can be used as a magagement tool to issue guidance to agency employees, thereby ensuring centralized policy control and administrative uniformity --Disadvantagescan be adopted without public input (because of time and expense to challenge, public may simply comply) finality and ripeness issues; if review is not sought or unavailable, members of the public will have no opportunity to contest the rulean agency may treat a nonlegislative rule as binding on members of the publicpersons can be adversely affected by reliance AMERICAN HOSPITAL V. BOWENWhen the Fedl agency authorized to over-see Medicare hired private doctors to audit hospitals Medicare fraud; it set auditors qualifications/procedures without notice and comment, contending they were exempt as general statements of policy.**RULEAgencies, general statements of policy are exempt from APA 553s notice and comment if they (i) do not presently impose rights/obligations, and (ii) leave the agency free to exercise discretion. AMERICAN MINING V. MINE SAFETY AND HEALTH ADMINA statute required mines to report miners diagnoses of diease. When the mine-safety defined diagnosis, the mining industry challenged it as a legislative rule requiring notice and comment. **RULEAgency rules are deemed interpretive if they have no legal effect, meaning either (i) without the rule, there would be no adequate legislative basis for agency action, (ii) the agency never published the rule in the Code of Federal Registration, (iii) the agency never invoked its general legislative authority explicitly, and (iv) the rule does not amend prior legislative rules. METROPOLITAN V DAVILAWhen an agency interpreted a statute to require school districts to keep providing special education to students who are expelled, the agency challenged the interpretation as legislative. **RULEAgency rules are deemed legislative if they have no legal effect, considering the agencys characterization and whether they interpret existing laws or create new law. ALASKA PROFESSIONAL HUNTERS ASSOCIATION V. FEDERAL AVIATION ADMINWhen the FAA changed a longstanding regulatroy interpretation exempting hunting-guid pilots from licensing, the industry sued to require rulemaking. **RULEIf an agency gives its regulations an authoritative interpretation, it can change that interpretation only through rulemaking. ASSOCIATION OF AMERICAN RR V. DOTWhen an agency interpretd railroad safety regulations requiring railroads to tell dispatchers exactly where track repair was inprogress, the railroad industry sued, demanding notice and comment. **RULERegulation entities must show actual reliance on an agencys interpretation to require that it can be changed through notice and comment HECKLER V. COMMUNITY HEALTH SERVICESWhen a govt agent mistakenly advised a nursing service the govt would reimburse extra expenses, the service sued to estop the government from demanding refunds. **RULEFor a governmental agents mistaken advice to estop the govt, the agent must at least have misrepresented facts upon which another relied reasonably, to his detriment.--The government is rarely estopped by its agents interpretation of policy. This holding applies to cases where a government agency gives a one-time interpretation, rather than an authoritative or semi-official interpretive rule. OFFICE OF PERSONNEL MANAGEMENT V RICHMOND When the Navys mistaken advice caused a pensioner to forfeit his benefits, he sued to require the govt to pay him anyway. **RULEEstoppel cannot force the Govt to make payments not authorized by statute. APPEAL OF ENO (New Hampshire Dept. of Employment Services)A state unemployment office accepted an applicants assertions she was seeking work for 11 weeks then rejected her application, finding she wasnt looking hard enough. **RULEA state agency cannot deny benefits if its employees conduct led claimants to believe they were elgible REVIEWABILITYFocuses on what is necessary for one to obtain judicial review and the various legal arguments that may be raised in order to have a plaintoffs case dismissed without reaching the meritsfirst question is whether the court has jurisdiction STANDINGthe plaintiff must be the appropriate person to bring the actionif standing exists, court must have a statutory grant of jurisdiction of the particular case type-- U.S. Const. Art. III, 2 limits federal power to cases and controversies

-28 U.S.C.A. 1331---The District Courts shall have original jurisdiction of all civil actions arising under the Consitution, laws, or treaties of the United States---APA itself does not grant jurisdiction Plaintiff must have a cause of action---statute granting the plaintiff some judicially enforceable rightAPAs section 702 is the fall-back provision, it establishes a cause of action for a person suffering legal wrong because of agency action, or adversely affected by agency action within the meaning of a relevant statute. referred to as non-statutory review --P must meet 5 requirements established by the APA to successfuly assert a COA under the APA: 1. Agency must have perfomed an agency action as defined by 5 USC 551(13)the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act 2. Appeal must be one that is not excluded from review---Section 701 states that the APAs judicial review provisions do not apply to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law. 3. Limited to persons suffering legal wrong or those adversely affected or aggrieved...within the meaning of a relevant statute. -legal wrong means an action by the govt that interferes with a persons constitutional, statutory, or common law rights -adversely affected or aggrieved concerns persons who assert interests that are arguably within the zone of interests to be protected or regulated by the statute...in question 4. Section 704 provides that only agency action specifically reviewable by statute or final agency action for which there is no adequate remedy in a court is reviewable---Finality---intended to promote against piece meal lititgation by requiring persons to wait until an agency has reached its final decision in the matter 5. Section 704 also states that an agency action is final for purpose of judicial review even if a person has not appealed within an agency, unless the agency by rule requires such an appeal and stays its action pending that appeal, in which case the action would be final only after the conclusion of that appeal---exhaustion of remedies RIPENESSis the case in a posture appropriate for judicial determination---courts do not want to unnecessarily interfere with in the administratitve processIf review is not ripe, persons subject to the litigation woud have to wait until the agency enforces the regulation against them, and then they cou obtain judicial review of the regulation as a defenst to the enforcement action STANDINGthere must be Injury-in-Fact, no generalized grievancesFederal tax payers are not deemed to be injured by an agencys action simply because they involve the illegal expenditure of federal fundsCausation and Redressabilityperson can demonstrate that the injury is the result of the government action and that a favorable court decision would remedy the injury Associational/representational standingpublic interest and environmental groups can sue on behalf of members if: (1) One of its members would have standing to bring the suit (2) The lawsuit relates to the purposes of the organization, and (3) Neither the claim asserted nor the relief requested requires the participation of individual members (not for damages) LUJAN V DEFENDERS OF WILDLIFEWhen Congress passed a statute protecting edangered animals, it authorized any person to sue the administrative agency for violating it. When wildlife activist sued, the agency claimed they lacked standing **RULE For plaintiffs to have standing to sue in federal courts, they must (i) suffer an actual or imminent injury in fact, which (ii) was caused by the defendants actions, and (iii) is redressable by the courts FEDERAL ELECTION COMMISSION V AKINSA voter claims standing to challenge the federal election agencys decision to exempt a Jewish political group from disclosure**RULEIf an agency decision deprives voters of disclosure mandated by statute, then any voter has standing to challenge itprudential standing requirements are satisfied if Ps asserted injury is arguably within the zone of interest protected by the regulated statute in question AIR COURIER OF AMERICA V AMERICAN POSTAL WORKERS UNIONWhen the Postal Service allowed some competition by private couriers, postal employees sued, claiming the statutes were intended to guarantee their employment **RULEPlaintiffs asserting standing under APA 702 must prove the agencys challenged action caused an injury-in-fact which is within the zone of interest which was intended to be protected by the relevant statute, or a closely-related statute NATIONAL CREDIT UNION ADMIN V FIRST NATIONAL BANK & TRUST COWhen an agencys regulatory interpretation allows credit unions to compete more effectively with banks, a bank claims standing to challenge it **RULEThe zone of interest test should include all interest that the statute arguably protects, even if Congress never intended to protect those interests--Under this rule, an injury effectively confers standing if the statute conferred some articulable benefit on the plaintiff, since if the plaintiff received some sort of protection, thenit may be argued that he was an intended beneficiarybasically, anyone who gains benefit from a statute would have standing, whether Congress actually attended him to or not (does a way the traditional zone of interest test TIMING3 principles impact on the timing of judicial review: 1) FINALITY---a person can obtain judicial review only of final agency actions unless Congress has authorized review at an earlier stage, 2) EXHAUSTION---a party MAY have to exhaust any administrative remedies as a prerequisite to judicial review, and 3) RIPENESS---a party can obtain judicial review of any agency action only if that action is ripe for review -Finalitysection 704 states that agency action made reviewable by statute and final agency action for there is no adequate remedy in a court are judicially reviewableWhere a particular statute specifically provides for judicial review of agency action, then review proceeds pursuant to that statute, NOT the APAwhere there is NO particular statutory provision for judicial review, Section 704 restricts review to final agency action for which there is no other adequate remedy. TAYLOR-CALLAHAN V DOLEWhen the Labor Dept changed its overtime policy, requiring a district to start paying probation officers overtime, the district challenged the opinion as a final rulemaking action **RULECourts deciding whether an agency action is final may consider factors including whether it (a) is a definitive statement of the agencys position, (b) has the status of law, with penalties for noncompliance, (c) impacts plaintiffs directly and immediately, (d) necessitates immediate compliance, (e) is situation-specific, (f) is intended as a determination of the agencys position at the highes...level which will affect an industry group, (g)was issued by the agencys head, and/or (h) leaves no administrative remedy whereby to overturn it

APPALACHIAN POWER CO V EPAWhen the EPA issued an informal bulletin setting guidleines for states pollution monitoring, polluters challenge the bulletin as final and binding **RULEAgencies nonlegislative rules are reviewable if they are effectively final and binding -Exhaustionstates that a plainitff must use all available remedies within the agency before seeking judicial review McCARTHY V MADIGANA prisoner suing hisjail for money damages over unconstitutionally denying medical treatment seeks to bypass the prisons internal grievance system, contending it cannot award monetary compensation **RULEPs challenging agency actions must exhaust all available intra-agency appeals before suing in federal court, unless requiring exhaustion, would, on balance, prejudice the particular Ps claim more than it safeguards the agencys authority and promotes judicial efficiencyif the agencys remedies cannot grant the relief requested, P is not required to exhaust DARBY V CISNEROSA housing developer appealing his suspension claims the APA precludes discretionary application of the exhaustion doctrine **RULEIf agency action is challenged under APA procedures, exhaustion is not required unless mandated by statute or regulation -Ripenessdeals with an attempt to obtain pre-enforcement judicial reviewAbbot Lab used the doctrine to deny an environmental group the ability to obtain judicial review of a forest plan before it was put to effect ABBOTT LABORATORIES V GARDNERWhen the agency overseeing drug labeling required greater disclosure than mandated by statute, the industry sued. The agency claims the statute makes its decision implicity unreviewable.**RULEAll agency are presumed judicially-reviewable, unless the agency offers clear and convincing evidence Congress intended to preclude review OHIO FORESTRY ASSOCIATION V SIERRA CLUBWhen the federal forests agency approved a forest for logging, subject to more specific environmental studies treehuggers sue, claiming ripeness **RULEJudges have discretion to dismiss cases for lacking ripeness if, on balance, the cases fitness for immediate consideration outweights the harm to parties from delaying consideration. JUDICIAL REVIEW OF RULEMAKINGThe federal judiciary has no authority to improve upon APA minimum rulemaking procedures when those procedures were complimented by silence in the agency legislationany additional rulemaking procedures must be proposed by legislation or the Constitution, not the judiciaryif an agency denies a petition for rulemaking under 553(e) the court can become involved --the agencys denial would constitute agency action under 551(3), which becomes subject to judicial review under 701-706 --on review, court would determine whether the agency gave an adequate explaination denying the petition, required by 555(e) --then the court would see if the denial was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance w/law under 702(2)(A) --ordinarily the matter would be remanded to the agency, but in exceptional cases the court may order the agency to grant the petition pursuant to court authority under 706(1) [to compel an agency action unlawfully withheld] CHEVRONWhen the EPA interpreted the Clean Air Act to allow polluting factories to add new equipment while keeping pollution levels constant, environmentalist claim the Act should be interpreted to reduce pollution **RULEIf an agencys interpretation of its enabling state is challenged, (i) reviewing courts must first independently determin if the statute clearly requires or forbids the agencys interpretation, then (ii) if the statute is ambiguous, courts must uphold the agencys interpretation if it is a permissable construction of the statuteAccording to Chevron, a court will defer to an agencys statutory interpretation if it concludes that a statutory term is ambiguous and that the agencys interpretation of the term is reasonable or permissable. after this case, the courts confronted whether the Chevron deference applied to an agenys interpretation of a statute if the agency did not use rulemaking to adopt the interpretation MOTOR VEHICLE MANUFACTURERES V STATE FARMWhen an agency first enacted a rule that cars be equipped with airbags or passive seatbelts, then rescinded the rile, an auto insurer challenged the rescission as arbitrary and capricious **RULEAn agencies rescission of their own rules are reviewable under the arbitrary and capricious standard, meaning they must be rational, based on relevant considerations, and within the agencys statutorily authority JUDICIAL REVIEW OF ADJUDICATIONafter an agency has rendered a decision in an adjudicstion, a disappointed party may sue for judicial review of that decisionSection 706 of the APA specifies the grounds for judicial review of any agency action, and a litigant might be able to challenge the agencys adjudicatory decision on any of the grounds listed in the APA --Substantial Evidence Standard706(2)(E) provides that agency action is to be held unlawful if it is unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute.standard only applies to formal agency action, and used primarily for the review of formal adjudications, and is a highly deferential standardequivvalent of the evidence necessart to withstand a motion for directed verdict --Congress has merely made it clear that a reviewing court is not barred from setting aside a Boad decision when it cannot conscientiously find that evidence supporting that decision is substantial, when viewing in a light that the record in its entirely furnishes, including the body of evidence opposed to the Boards review --court/court standardclearly erroneous standard, addresses whether a reviewing judge has a definite and firm conviction that an error has been committed--court/agency standardrequires a court whether a reasonable mind might accept a particular evidentiary record as adequate to support a conclusionless strict than the court/court standard Substantial Evidence and ALJswhen an ALJ has made a decision that includes findings of facts and conclusions of law that is consistent with the agency, there is no particular problem, but when the ALJ and agency findings are inconsistent, the question arises how the reviewing court should treat the ALJs findings

--under 557, the agency in making its decision on reviw has all the powers which it would have in making the initial decisionagency makes its decision de novo and that the agency is not required to defer to the ALJs findings and conclusions ALJ can receive credibility based on the demeanor of the witness PENASQUITOS VILLAGE V. NLRBthe NRLB reversed the decision of an ALJ, and instead held that the defendant wrongfully discharged two employees in violation of the National Labor Relations Act **RULEWhile ALJs determinations are not conclusive on the NLRB, the special deference afforded the ALJs factual determinations based on testimonial inferences will weigh heavily in the review of a contrary finding by the NLRB Judicial review of an agency decision is similar to an appeal of a trial courts decision to an appellate court. Even if the court itself may have decided the case differently, if it finds, based on the record before it, that the agency decision was reasonable based on the evidence before it, it must defer to the ALJs decision. JACKSON V VETERANS ADMINISTRATIONA supervisor was fired for sexual harassment of a subordinate employee, after he kissed her on one occassion, and asked her for kisses on other occassions. **RULEWhen a finding by an agencys presiding official has been reversed by the board, a court will not sustain the boards decision unless it has articulated a sound reason, based on the record, for its contrary evaluation of the testimonial evidence MIXED QUESTIONS OF LAW AND FACTthe substantial evidence standard applies when there is a dispute concerning the facts found by the agencyif there is a legal issue, a different standard appliessection 706 authorizes a court to hold unlawful and set aside agency action that is unconstitutional, in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, or otherwise not in accordance with law. Question of factrelates to disputed facts and the resolution of the dispute doesnt require reference to the statute under which the agency is operating--Legal Issuean issue that can be resolved without any consideration of the facts in a particular case NLRB V. HEARSTFour newspaper publishers refused to bargain collectively with a union representing newsboys who distributed newspapers, claiming that the newsboys were not employees within hte meaning of the NLRA.the act requires employers to engage in collective bargaining with their employees, but Congress did not define the scope of the term employee **RULE The NLRBs determination that specified persons are employees under the NLRA is to be accepted if it has warrant in the record and a reasonable basis in lawThis case is important because the Court recognized its limited role in reviewing a case with an issue of mixed law and fact. The court recognized that its job was simply to look to the record to confirm that the NLRB made a deci sion that had support in the law. The Court was not required to limit and define the term employee. That determination was left primarily to the NLRB, as Congress created this agency to adminster the Act. EVENING STAR NEWSPAPER CO V. KEMPAn employer was held liable for compensation to an employees widow after one of its delivery drivers was killed when his gun, which was being handled by a co-worker, went off. **RULEThe rule of judicial review requires that the inferences drawn by the ALJ are to be accepted unless they are irrational or unsupported by substantial evidence on the record as a whole. if an ALJs decision is supported bu the evidence as a whole and is not inconsistent with the law, it should be upheld. ARBITRARY AND CAPRICIOUS REVIEWSection 706(2)(F) provides for the courts to determine the facts independently by authorizing a court to overturn an agency decision if it is unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. (review when there is no formalized record) OVERTON PARKThe plaintiffs contend that the defendant violated Federal statutes by authorizing the expenditure of federal funds for the construction of a highway through a public park**RULESection 706 of the APA requires that, in reviewing an administrative decision, the Court must determine whether the Administrator (1) acted within the scope of his authority, (2) made a choice which was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and (3) followed the necessary procedural requirements--an agencys decision must be w/in the scope of its lawful authority, and logical and rationale, subject to reasoned decisionmaking--courts apply the arbitrary and capricious standard in the same maner of informak rulemaking and formal adjudication YSPES-PRADO V INSA permanent-resident alien is challenging his deportation, after he was refused waiver of deportation and the judge failed to offer a reasoned explaination for the denial **RULEin making a discretionary decision, an agency must indicate how it weighed the factors involved, and how it arrived at its conclusionunder the APA, the arbitrary and capricious scope of review requires an agency to articulate a satisfactory explanation for its action incluiding a rational connection b/w facts found and the choice made. Courts now apply this standard in informal rulemaking and adjudicationsit still an abuse f discretion if an agency arbitrarily makes a reasonable decision DAVILA-BARDALES V INSA 15 yr old boy entered the country illegally, and is now challenging a deportation order because the INS considered unlawful evidnce in its immigration hearing.**RULEWhere the INS seeks to establish alienage based on alleged admissions during the interrogation of an unaccompanied minor, it must present evidence to demonstrate that the interview was conducted in a noncoercive environment and tha the minor was competent to respond to the questions. JUDICIAL DEFERENCEaddresses whether the level of deference that a court gives to a decision vary according to the type of action that the agency used to adopt the decision SKIDMORE V. SWIFT & CO employees sued Swift when it refused to pay them for overtime for being around the premises in case a fire broke out to after normal hours. Both the trial court and the court of appeals determined that the employees were not entitled to overtime pay, and neither court took into account an interpretive bulletinissued by the Administrator of Wate and Hour Divisionof the Dept of Labor which indicated when the Act required overtime pay for inactive duty. The Supreme Coourt reversed the decision and remanded back to the Court of Appeals because of this failure. --Skidmore Deferencelesser levelcourts should take the Administrators interpretation into account; the weight of the judgment will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control. CHRISTENSEN V HARRIS COUNTYinvovled a dispute between deputy sheriffs and their employer, Harris County concerning overtime pay. To avoid paying its employees for unused comp time, Harrison County adopted a policy requiring its employees to schedulre time off in order to reduce the amount of accrued compensatory time. The deputy sheriffs sued, claiming that the FLSA

prohibits such a policy. the statute was silent on the issue, and the Court determined that the better reading of the statute allowed employers like Harrison County to compel the use of the compensatory time. Deputies argued that Chevron required the Court to defer to an opinion letter, adopted by the Dept. of Labor without use of nitce and comment rulemaking, which took the position that FLSA permits an employer to comepl the use of comp time only if an employee has agreed in advance to the practice. ---the Court disagreed that Chevron explaining the opinion letters are interpretations and are entitled to respect only to the extent that those interpretations hace the power to persuade wasnt persuasive under the Skidmore ---Justice Scalia dissented stating that Chevron should apply to any authoratitve agency interpretation of an ambiguous statutory provision administered by the agency ---for some time it was intepreted that if a Court had definitevely decided that interpretations containd in informal pronouncements would not qualify for Chevron deference US V MEAD CORPThe Customs Service issued a ruling letter classifying planners as diaries, and Mead challenged that ruling. Ruling letters were the official position of the Custom Sercice on a question and were binding on all Custom Service personnel until modified or revoked. the court held that the ruling letter was not entitled to Chevron deference, because the rulings were not issued after notice and comment rulemaking. The federal circuit made its own interpretation and did not give the Customs Service ruling any deference. **RULEAdministrative implementation of a statutory provision is entitled to Chevron deference if Congress delegted to the agency authority to make rules with the force of law, and if the agency interpretation was promulgated in the exercise of that authority BARHNART V WALTONWaltons application for social security disability benefits was denied because he was out of work for only 11 months**RULEAn agencys interpretation of a statute that is silent or ambiguous on a certain issue will be sustained if the statute does not unambiguously forbid the interpretation for other reasons INSPECTIONS, REPORTS, AND SUBPONEASHow agencies obtain info to perform their functions--an agencys authority to inspect is defined in its enabling act4th Amendment provides: the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized CAMARA V MUNICIPAL COURTA San Fransico resident was charged with violating the citys municipal code when he refused to allow city building inspectors to enter his apartment without a warrantRULEAdministrative searches are significant intrusions upon the interest protected by the 4th Amend safeguards when they are conducted without either consent or a search warrant Persuasive factors: (1) such programs have a long history of judicial and public acceptance, (2)public interest demands that all dangerous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results, and (3) b/c the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's privacy--Camara decision was extended to administrative inspections of commercial buildings because a "businessman, like the occupant of a resident, has a constitutional right to go about his business free from unreasonable official entries upon his private property." ---The court generally agreed that exceptions were in order where an administrative search was of an industry that has long been subject to close government regulation. The theory was that a person entering such a business had a reduced expectation of privacy. ---Later cases introduced a 3-part test: (1) Do the searches serve an important government purpose, (2) Are warrantless searches necessary to achieve that purpose, (3) does the statute authorizing the searches provide protections substituting for a warrant providing notice of searches to the owner, limiting the scope of the search, and limiting the discretion of the inspecting officer TRINITY INDUSTRIES V OSHRCa lawsuit ensued when OSHA attempted to use an employee complaint about certain specific workplace safety violations to justify a full-scale administrative inspectionof a companys entire workplaceRULEWhen OSHA inspection is prompted by a complaint regarding certain specific workplace health and safety violations, OSHA is not permitted to make a comprehensive insopection of the alleged violators worksite, but can only make inspections that bear an appropriate relationship to the violation alleged Legal remedies to illegal inspectionsliability under tort law, federal law, the Constitution, and the exclusionary rule IN RE TRINITY INDUSTRIES, INCA manufacturer was fined $10,000 per day for not allowing OSHA inspectors to enter and inspect its factory facilitiesRULEAn administrative search warrant whose probable cause is grounded in a showing that reasonable legislative or admnistrative standards for conducting an inspection are satisfied with respect to a particular company will only withstand judicial scrutiny if the plan pursuant to which the warrant is to be issued is based on specific neutral criteria and the warrant application adequately establishes that the particular company was selected for inspection pursuant to an application of the plans neutral critieria --To determine whether a warrant application meets the "administrative plan" criterion, the magistrate must apply a two-part test: (1) the magistrate must determine that the plan pursuant to which the warrant is to be issued is based on specific, "neutral" criteria and (2) the magistrate must determine that the warrant application clearly and adequately establishes that the particular company was selected for inspection pursuant to an application of the plan's neutral criteria. --To determine whether the first prong has been met, the warrant application must contain adequate information from which the magistrate properly may assess the inspection plan's neutrality.--The adequacy determination is to be made by examining the inspection plan itself to ascertain that it contains the requisite neutral criteria and as a whole is susceptible of neutral non-arbitrary application. --In order to satisfy the second prong, the warrant application need only contain a description of the procedure used in selecting a particular company for inspection (i.e. describe how the establishment lists and inspection registers in question were complied and how a company was chosen for inspection from among those contained on the register.) US V. JANISA defendant in a civil tax suit brought by the US govt objected to the IRS use of evidence illegally obtained by police who were executing a defective search warrant in an unrelated criminal caseRULEEvidence illegally seized by law enforcement and inadmissable in criminal proceedings is admissible in subsequent civil proceedings b/c to exclude it from these civil proceedings would provide no different effect to those who illegally seized it

--If the exclusionary rule is the "strong medicine" that its proponents claim it to be, then its use in the situations in which it is now applied must be assumed to be a substantial and efficient deterrent. Assuming this efficacy, the additional marginal deterrence provided by forbidding a different sovereign from using the evidence in a civil proceeding surely does not outweigh the cost to society of extending the rule to that situation. If, on the other hand, the exclusionary rule does not result in appreciable deterrence, then, clearly, its use in the instant situation is unwarranted. (BALANCE B/W COSTS AND BENEFIT TEST) --Exclusion from federal civil proceedings of evidence unlawfully seized by a state criminal enforcement officer has not been shown to have a sufficient likelihood of deterring the conduct of the state police so that it outweighs the societal costs imposed by the exclusion. INS V. LOPEZ-MENDOZAA dispute arose when the INS introduced an illegally-obtained confession in a deportation proceeding RULEThe exclusionary rule does not apply in INS civil deportation hearings RECORD KEEPING AND REPORT REQUIREMENTS--Recordkeeping requirements imposed on persons, as one system by which government may be able to generate information, are usually imposed by regulation--If expressly provided by statute, agencies can issue subpoenas, Courts also have the power to issue subpoenas Subpoenas as testificandum--requires the person to come and testify--Subpoenas duces tecum-- requires the person to come and bring something with him, usually documents Statutory Authority-- When the reporting or recordkeeping requirement is imposed by regulation, the agency need not show express authority for that requirement--Rather, the authority may be implied by the statute creating the regulatory program. --If, however, the agency wishes to issue a subpoena or report order or simply to impose a reporting requirement by letter, the authority must be express--NO IMPLIED AUTHORITY to issue subpoenas --Moreover, statutes granting subpoena power contain their own limitations as to what may be subpoenaed Administrative Procedure Act--when an agency imposes a reporting or recordkeeping requirement by rule, the rulemaking requirements of the APA obviously apply--In in re FTC Line the court held that information gathering was not required to be done by rulemaking The Paperwork Reduction Act--when an agency wishes to impose a reporting or recordkeeping requirement on 10 or more persons, the Paperwork Reduction Act (44 USCA 3501) imposes substantive and procedural requirements on the agencyExemptions: collections of information during a federal criminal investigation, In the course of any judicial action to which the United States or an agency is a party, During any administrative action or investigation by an agency directed against specific person, performed by intelligence agencies, or by compulsory process under Antitrust Civil Process Act or Section 13 of the Federal Trade Commission Improvements Act --Look at 44 USCA 3506(a)(2) and (c)(1)--Look at pg 613 in book for further details Fourth Amendment--in its early decisions, the U.S. Supreme Court interpreted the 4th amendment broadly to limit the power of administrative agencies to subpoena information--Leading case --> Federal Trade Commission --In Oklahoma Press Publishing Co. the court held probable cause was not necessary because neither the statute not the 4th Amendment required it. --There was no 4th amendment requirement because an agency subpoena involves less of an invasion of privacy than an actual search FREESE V. FEDERAL DEPOSIT INSURANCE CORP.When the New Hampshire Savings Bank went into receivership, the FDIC initiated investigation into potential wrongdoing by the banks former officers and directors and issued subpoenas as a part of that investigation--RULEAn agency subponea is enforceable only if it is issued for a proper purpose, the information sought is relevant to that purpose and is adequately described within the subponea, and the proper procedures have been followed in the issuance of the subponea ADAMS V FTCA dairy company resisted compliance with subponeas issued by the FTC--RULEthe 4th Amendment places some important restrictions on what an administrative agency can ask for in a subpoena duces tecum BRASWELL V USThe President of two related corporations chose not to comply with subponea issued to him in his capacity as president on the ground that the corporations production of the requested documents would incriminate him personally RULE Regardless of whether it is addressed to a corporation or to an individual in his or her capacity as records custodian may not resist a subponea for corporate records on 5th Amendment grounds SMITH V RICHERTAn Indiana man was jailed when he failed to produce tax documents t the government in compliance with a subponea issued by the State of Indiana--RULEThe required-records doctrine is inapplicable in cases in which the production of personal tax records would have testimonial force incriminating of the taxpayer, and in such cases production is excused by the self-incrimination clause --An agency subpoena is enforceable is the subpoena is issued for a proper purpose authorized by Congress, if the information sought is relevant to that purpose and is adequately described within the subpoena, and the statutory procedures have been followed in the subpoena's issuance---An affidavit from a government official is sufficient to establish a prima facie showing that the requirements have been met---Government agencies may not use their subpoena powers for improper purpose---May not freely peruse personal financial records in order to determine the party's financial ability to satisfy a judgment Fifth Amendment --In addition to 4th amendment constraints, government efforts to compel the disclosure of information are subject to the 5th amendment's protection against self-incrimination, which provides that no person "shall be compelled in any criminal case to be a witness against himself."--Nether courts, agencies, nor Congress can compel a person to testify in a way that incriminates that person, unless the person is given immunity from prosecution on that evidence ---Limitations on 5th Amendments: (1) corporation cannot resist production of records upon the ground of self-incrimination whereas an individual may stand upon his constitutional rights as a citizen, the corporation is a creature of the stateUnincorporated groups likewise are not protected by the self-incrimination clause (2) when the government seeks documents from a non-natural person, the natural person who must respond for the organization cannot claim a personal privilege for the organization's documents, even though those documents might incriminate the person (3)even when the documents sought are those of an individual (or sole proprietorship), the 5th amendment provides only little more protection (4) even when records are not required to be kept by the government, the court has indicated that requiring the production of already created documents is not self-incrimina-

tion within the meaning of the 5th amendment, because that amendment goes to compelled testimony, and compelling the production of already existing documents is not compelling testimony