Term
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Definition
| The statute creating an agency usually sets out substantive law and often sets out organizational and procedural law for the agency. |
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Term
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Definition
Legislature may only create administrative agencies with the power to make rules within a statutory scheme that provides ADEQUATE STANDARDS.
Example: public convenience, interest, or necessity. |
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Term
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Definition
| Administrative agencies have the power to adjudicate cases involving public rights. Public rights are usually those in which a governmental agency is a party. |
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Term
| Substantive Limitations on Agency Power |
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Definition
1. Substantive due process
2. Express constitutional provisions
3. Statutory powers
4. APA: arbitrary, capricious, and abuse of discretion |
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Term
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Definition
1. Subpoena power
2. Required reports
3. Physical inspections or
4. Hearings |
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Term
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Definition
1. Within agency authority
2. Is the demand too indefinite?
3. Is the information sought reasonably relevant? |
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Term
| Subpoena power: jurisdiction |
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Definition
Subject matter (Power)
Personal jurisdiction not required
Must State Purpose
Cannot harass or intimidate |
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Term
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Definition
1. Subpoena is not specific
2. Agency lacks jurisdiction |
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Term
| Privilege Against Self Incrimination |
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Definition
1. A witness's 5th Amendment privilege to refuse to answer specific questions on the grounds of self-incrimination is available in agency investigations
Mere fact that requested documents might incriminate the person producing them does not give the target or request privilege not to produce |
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Term
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Definition
| Right of people to be secure . . . against unreasonable searches and seizures. |
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Term
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Definition
Houses: Lesser standard for probable cause.
Test: it is likely that violations exist. |
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Term
| 4th Amendment: Business Premises |
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Definition
Officials may enter public business premises and act upon their observations
Nonpublic business premises normally cannot be inspected without warrant
Closely regulated information |
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Term
| Use of information from unlawful searches and arrests |
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Definition
Evidence seized in an unlawful search or arrest, which would would be excluded in criminal proceedings, is generally admissible in administrative proceedings
Test is to weight the benefits of including and excluding evidence |
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Term
| Investigations: Right to Counsel |
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Definition
A person compelled to appear before in person before an agency or representative thereof is entitled to be accompanies, represented, and advised by counsel
*APA does not compel a right to cross-examine in investigation |
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Term
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Definition
| Agencies can subpoena witnesses on behalf of private parties subject to investigation |
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Term
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Definition
Provides a comprehensive statement of the rights of private parties to obtain information in the possession of the government
No explanation need be given as to why information is sought |
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Term
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Definition
1. Publication of where information may be obtained
2. Provide option for public inspection
3. Request |
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Term
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Definition
1. National defense or foreign policy 2. Internal polices and rules 3. Specifically exempted from disclosure
4. Trade secret 5. An interagency memorandum 6. Invasion of privacy
7. Record compiled for law enforcement purposes 8. Financial institutions
9. Geographic information re: wells |
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Term
| Government in the Sunshine Act |
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Definition
| Requires all meetings of members of such agencies to be open to the public with exceptions somewhat akin to FOIA |
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Term
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Definition
1. General applicability
2. Future effect
3. Whether it implements, interprets, or prescribes law, policy, or procedure |
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Term
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Definition
| agency process for formulating amending or repealing a rule |
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Term
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Definition
| Whole or a part of a final disposition, whether affirmative negative, injunctive, or declaratory in form, of an agency in a matter other than rulemaking |
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Term
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Definition
| the agency process for the formlation of an oder |
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Term
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Definition
As agency action expressed in writing. It does not include tentative or preliminary agency statements that:
1. Precede final agency action;
2. Do not preclude further agency consideration |
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Term
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Definition
1. Statutory authority
2. Implied authority: "power of an administrative agency to administer a congressionally created and funded program necessarily requires formulation of policy" |
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Term
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Definition
| Legislative rules are the product of the exercise of legislative power by an agency pursuant to an express or implied grant of authority from the legislature to make them. |
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Term
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Definition
| Interpretive rules are interpretations of the meaning of a statute or a legislative rule befoe that question is authortiatively settled by the courts |
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Term
| General Statements of Policy |
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Definition
| General statements of policy indicated how an agency intends to exercise his discretion |
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Term
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Definition
| Rules govern the organization and procedure of an agency (internal affairs) set forth the procedure available to the public when dealing with the agency |
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Term
| Rulemaking vs. Adjudication |
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Definition
Chenrey: question of whether policy was set by rulemaking or adjudication was within the informed discretion of the agency
Rulemaking Required:
1. Detrimental reliance
2. Disproportionate Hardship
3. Prospective Application |
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Term
| Informal Rulemaking: Notice |
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Definition
Notice of proposed rulemaking must be published in the Federal Register.
Must include:
1. time/place/nature of proceedings
2. a reference to legal authority
3. terms of proposed rule or a description of issues |
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Term
| Informal Rulemaking: Comment |
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Definition
| Interested parties have a right to participate in the rulemaking process by submitting written data or arguments |
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Term
| Informal Rulemaking: Promulgation of Rule |
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Definition
1. Concise general statement of basis and purpose
2. 30 days before effective
3. 553(e) requires that an agency give an interest person a right to petition |
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Term
| Informal rulemaking: exceptions |
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Definition
1. Military or foreign functions
2. Internal rules
3. Matters relating to public property, loans, grants, contracts
4. Interpretive rules; general statements of policy; or rules of agency organization, procedure, or practice
Good cause, impracticable, unnecessary or contrary to public interest |
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Term
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Definition
"On the record after opportunity for an agency hearing"
Trial type |
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Term
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Definition
| APA reflects the maximum procedural requirements Congress was willing to have courts impose on agencies in conducting rulemaking |
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Term
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Definition
| A specific statute may expressly or by judicial interpretation impose further or different procedural requirements than either of the APA models. |
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Term
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Definition
1. Federal Regulatory Flexibility Act
2. Congressional Review of Agency Rulemaking
3. Paperwork Reduction Act
4. Unfunded Mandates Reform |
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Term
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Definition
| Oregon only has informal rulemaking |
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Term
Oregon Rulemaking
Notice: Timing |
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Definition
The agency must provide notice:
at least 21 days before effective date in bulletin
28 days notice to people who have requested notice
49 days notice to certain legislators |
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Term
Oregon Rulemaking
Notice: Content |
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Definition
1. Subject matter and purpose of intended action
2. Time/place/manner can comment
3. Statutory authority
4. Need for rule
5. Documents relied
6. Fiscal impact statement
7. Request for public comment
8. Advisory committee? |
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Term
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Definition
Allow interested persons reasonable opportunity to submit written comments and data.
If commentator's request, 21-90 day extension |
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Term
Oregon Rulemaking
Hearing |
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Definition
| If 10 or more persons, or an association with 10 or more persons request, agency must provide a hearing |
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Term
Oregon Rulemaking
Temporary Rules |
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Definition
Agency can adopt rules for 180 days
Reasons for: failure to act promptly will result in serious prejudice to public or the interest of the parties concerned |
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Term
Oregon Rulemaking
Petition for Rulemaking |
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Definition
| Interested persons may file a petition requesting the promulgation, amendment, or repeal of a rule |
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Term
| Sources of Right to Hearing |
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Definition
1. Due Process Clause of the Constitution
2. An express or implied statutory directive
3. Agency rules
4. A contractual agreement |
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Term
| Distinction between rulemaking and adjudication |
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Definition
Rulemaking generally involves proceedings for the purpose of promulgating policy rules with future effect
Adjudication involves proceedings designed to adjudicate disputed facts in particular cases |
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Term
Adjudication:
Right to hearing |
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Definition
1. Material adjudicative facts are in dispute
2. A protected liberty or property interest is involved
3. No emergency or other special exists
Hearing triggers issue of timing and scope. |
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Term
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Definition
Fundamental: rights to vote, travel, marry, privacy and speak freely
Reputation: Stigma plus |
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Term
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Definition
Actual ownership of real estate or property
Also, legitimate claim of entitlement to it
No liberty/property
Loss of public, at will job
Discretionary commutation of sentence |
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Term
Form and Timing:
Matthews v. Eldridge |
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Definition
1. Private interest affected by action
1A: Drastic: cutoff or disability payments discharge of govt employee
2. Risk of erroneous deprivation
3. Government interest |
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Term
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Definition
On the record after opportunity for agency hearing:
1. Proponent has proof burden
2. Must be based on whole record
3. Each party has right to present case
4. Cross examine, rebuttal evidence |
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Term
| Trial Type Hearing: written evidence |
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Definition
| All of part of the evidence may be required by the agency to be submitted in written form only in rule making, in initial license applications, and in determining claims for money or benefit. |
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Term
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Definition
Informal: no specific statutory provisions deal with the procedural requirements for informal adjudication
Formal: Costed case hearing |
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Term
| Adjudication Process: Notice |
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Definition
APA 554:
time place and nature of hearing
legal authority and jurisdiction under which hearing is held
Matters of fact and law |
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Term
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Definition
When two mutually exclusive applications are filed, consolidated hearings or comparative hearings must be held
ex: two stations applying for one frequency |
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Term
| Adjudication Process: Exclusiveness of Record |
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Definition
Generally, fact finder must consider only evidence on the record
An agency can use expertise in evaluating evidence
APA: transcript of testimony and exhibits together with all papers and requests filed in the proceeding, constituting exclusive record
Agency files: additional hearing for dispute + no prejudice |
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Term
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Definition
"Reliable, probative, and substatntial"
AKA preponderance of evidence
Hearsay okay as long as reliable
Reliable hearsay is sufficient |
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Term
| Factors Considered in permitting hearsay |
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Definition
1. Whether adjudicative facts critical to determination that are subject to hearsay
2. Whether the declarnt is available or unavailable as a witness
3. Trustworthiness of hearsay evidence |
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Term
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Definition
ALJS (formal) / AJ (informal)
Preside over action, issue subpoenas, making evidentiary and other rulings, preparing findings of fact and conclusions of law, making recommendation |
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Term
| Initial Decision Reviewed By Agency Head |
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Definition
On review of the initial decision, the agency head have all the powers they would have had in making initial decision.
On issues of credibility, the decision of the hearing officer is entitled to some weight because it is part of the record
Factual determinations are reversible |
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Term
| Substitution of Hearings Officers |
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Definition
| The same officer who presides at the hearings must take the recommended or initial decision unless he becomes unavailable to agency |
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Term
| Presumption of Regularity of Proceedings |
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Definition
| The Presumption of regularity supports the official acts of officers, and in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties |
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Term
| Consultation of Decision makers with parties |
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Definition
| 554d prohibits the hearing examiner from consulting a person or party on a fact in issue unless the person is on notice and there is opportunity for participation. |
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Term
| Consultation with Investigative or Prosecuting Staff |
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Definition
| An employee or agent engaged in the performance of investigative prosecuting functions for an agency in a case may not, participate or advise in decision, recomend decision, or review. |
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Term
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Definition
"An impartial decision maker is essential"
Bias, prejudice against, or favoritism is grounds for disqualification
Pecuniary interest = clear disqulification |
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Term
| Congressional Interference |
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Definition
| There is no error if members of Congress merely express their opinions in connection with a case, but excessive pressure may require reversal of the agency action |
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Term
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Definition
1. If ex parte communications regarding the merits are shown, the court may set aside the decision
Trial Type proceedings: requires disclosure on the record and subject to objection
Rulemaking
Informal: less troublesome, like legislators
Formal: prohibited |
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Term
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Definition
"Findings and conclusions and the reasons or basis therefor, on all material issues of fact, law or discretion, presented on the record
Findings must be sufficiently detailed so that a reviewing court can determine what the agency decided and why |
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Term
| Failure of Agency to Follow Own Rules |
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Definition
When rules protect a party, an agency is not free to depart from rules
Convenience of agency, agency is free to ignore the rule |
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Term
| APA Permits Retained Counsel |
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Definition
| A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented and advised by counsel, or if permitted, a representative. |
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Term
| Contested Case Procedures: Notice |
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Definition
All parties must be served with notice:
1. Statement of right to hearing
2. Specifying time within which a hearing must be requested
3. Time and place of hearing
4. Legal authority for hearing
5. A statement of matters asserted
6. Governing procedures |
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Term
| Contested Case: Representation |
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Definition
Agency and parties may be represented by counsel or non-lawyer representative
Representatives may present evidence, examine witnesses, application of statute
CANNOT MAKE LEGAL ARGUMENTS |
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Term
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Definition
| All evidence relied upon by reasonably prudent persons in the conduct of their serious affairs is admissible |
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Term
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Definition
| If the method of obtaining judicial review is provided, it is exclusive and must be followed |
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Term
| Jurisdictional requirements |
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Definition
In federal court, jurisdiction must be based on federal statute
Federal question |
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Term
| Limitation on review: unreviewability |
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Definition
APA 704: All final agency action is judicially reviewable whether made reviewable by statute or not.
However, judicial review is not available if statutes preclude judicial review or agency action is committed to agency discretionary by law. |
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Term
| Presumption of Reviewability |
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Definition
There is a well established presumption of review ability.
THERE MUST BE CLEAR EVIDENCE OF INTENT TO PRECLUDE REVIEW. |
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Term
| Agency Declines to Undertake Enforcement |
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Definition
| Court has found the agency decision not to proceed to be a decision committed to agency discretion |
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Term
| Exhaustion of Administrative Remedies |
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Definition
No one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.
APA: exhaustion is REQUIRED ONLY when the relevant statute or agency rules mandate it |
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Term
| Exhaustion of Administrative Remedies: Exceptions |
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Definition
1. Unconstitutionality of basic statute
2. Clear lack of jurisdiciton
3. Futility of Proceeding further
4. Unreasonable delay
5. Contrary to Congressional intent
6. Unusual irreparable injury |
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Term
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Definition
| Agency action made review able by statute and final agency action for which there is no adequate remedy in court are subject to judicial review. |
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Term
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Definition
Whether a matter is ripe for review depends on the hardship to appellant from further delay and the fitness of the issues for immediate review.
The ripeness doctrine is designed to avoid litigating in the abstact. |
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Term
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Definition
| When a court has concurrent original jurisdiction with an administrative agency, issues that under regulatory scheme have been placed within the special competence of that agency will be referred to that agency for its initial judgment. |
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Term
| Obstacles to Judicial Review in Oregon: |
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Definition
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Term
| Judicial Review in Oregon: Standing |
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Definition
1. Adversely affected or aggrieved
2. Party to an agency proceeding.
Organizations do not have organizational standing under OAPA. But, have standing if individual standing criteria are met. |
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Term
| Judicial Review in Oregon: Standing + Justiciablity |
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Definition
| A matter is justiciable if it will have some practical effect on the rights of the parties. Justiciabiility includes issues of mootness, ripeness, adversity, and standing. |
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Term
| Judicial Review in Oregon: Finality |
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Definition
Exceptions:
1. Agency is proceeding without probable cause or
2. the person is seeking review will suffer substantial and irreparable harm. |
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Term
| Failure to take agency action |
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Definition
A claim that agency action was unlawfully withheld only if plaintiff asserts that the agency:
1. Failed to take a discrete action
2. That the agency was LEGALLY REQUIRED to take |
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Term
| Reviewing Adjudicative Facts |
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Definition
Substantial Evidence Test AND
Arbitrary and Capricious Test (on the record or without) |
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Term
| Reviewing decisions as to law |
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Definition
The reviewing court may substitute its judgment for an erroneous decision of an agency as reflected in APA section 706(2)
Ex.: Jurisdiction OR Procedure |
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Term
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Definition
| It must be enough to justify if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for jury |
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Term
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Definition
| Agency must consider whole record rather than simply evidence tending to support finding |
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Term
| Arbitrary and Capricious Test: Nonrecord |
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Definition
Agency must articulate a rational connection between facts found and the choice made
Examples: considering irrelevant facts, decision runs contrary to evidence, implausible |
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Term
| Arbitrary and Capricious: Inquiry |
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Definition
1. Was the scope of authority exceeded?
2. Was there a clear error of judgment?
3. Was procedure followed? |
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Term
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Definition
| When a reviewing agency's interpretation of a statute that the agency regularly administers the agency interpretation will be revered by the court only if the agency interpretation is contrary to legislative intent or impermissible |
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Term
| Mixed questions of law and fact |
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Definition
Apply substantial evidence to facts and
independent judgment on questions of law |
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Term
| Legislative Rules: Grounds for Invalidation |
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Definition
1. Whether the rule is within grant of authority
2. Whether the rule was promulgated to proper procedure
3. Whether the rule is arbitrary or capricious (rational basis) |
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Term
| Judicial Review of Rule making in Oregon |
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Definition
ANY PERSON
may petition the court of appeals to review the validity of a rule, unless that person is already a party to a contested case in which the validity of the rule may be determined by a court. |
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Term
| Judicial Review of Rule making in Oregon (Scope) |
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Definition
Review is limited to statutory provisions authorizing rule AND
copies of all documents requirements to demonstrate compliance with the notice and other procedural requirements of the Oregon APA |
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Term
| Judicial Review of Rulemaking in Oregon (Invalidation) |
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Definition
1. Violates constitutional provisions
2. Exceeds the statutory authority of agency or
3. Was adopted in violation of procedures |
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Term
| Judicial Review of Orders from Contested Case Hearings |
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Definition
Standard:
1. Beyond scope of authority delegated to agency
2. Inconsistent with constitutional or statutory provision
3. Inconsistent with agency rule, position, or prior practice
4. Not based on substantial evidence |
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Term
| Judicial Review of Orders in Other than Contested Cases |
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Definition
| The Circuit court reviews orders resulting from proceedings other than contested case proceedings. |
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