Term
| Rule making vs. adjudication - it may be adjudication if there are a limited number of people involved. |
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Definition
| Londoner v. Denver - tax lines |
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Term
| Even if only 1 party is effected, it may still be rulemaking rather than adjudication. |
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Definition
| Anaconda Co. v. Rucklshaus - environmental rule. |
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Term
| It may be rulemaking if it is a policy determination - no facts involved |
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Definition
| Bi-metallic investment co. v. State board of equaliation - gov't raised taxes a certain amount in a pre-defined geographic area. |
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Term
| Policies = rulemaking, facts = adjucation. |
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Definition
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Term
| If there i sno effort to single out a particular plaintiff for special consideration based on peculiar circumstances, it may be rulemaing. |
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Definition
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Term
| For issues of fact, use the "substantial evidence" test. |
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Definition
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Term
| What does substantial evidence mean? |
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Definition
| More than a mere scintilla - such relevant evidence as a reasonable mind might accept as adequate. Similar to the test applied when reviewing a jury decision. |
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Term
| In applying the substantial evidence test, look at the entirety fo the record, not just supporting bits. |
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Definition
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Term
| In reviewing for substantial evidence, if the agency head overturned the ALJ, that's a 'minus" |
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Definition
| Aylett v. Secretary of HUD |
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Term
| Interpretations that don't have the force of law are entitled to Skidmore deference only. |
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Definition
| Christensen v. Harris County. |
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Term
| What is Skidmore deference |
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Definition
| means that the decision is entitled to respect, not full blown Chevron deference. |
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Term
| A decision may be raised to chevron deference if Congress could have expected the agency to speak with the force of law on that issue |
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Definition
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Term
| Reviewing adjudication - apply the arbitrary & Capricious test |
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Definition
| Citizens to Preserve Overton Park v. Volpe |
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Term
| Rulemaking decisions should be reviewed with the A&C test |
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Definition
| Motor Vehicle Manuf. Ass'n v. State Farm |
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Term
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Definition
| There must be a satisfactory explanation including a "rational connection between the facts found and the choice made." Examining for clear error in judgment. |
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Term
| Statutory preclusion - there is a strong presumption against it, but it can happen if there is specific language or obvious legislative history. |
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Definition
| Bowen v. Michigan Academy of Family Physicians |
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Term
| An action is "committed to agency discretion", and is thus unreviewable, when there is no guideline for the agency to follow in enforcement. |
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Definition
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Term
| Circumventing committed to agency discretion |
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Definition
| challenge fact findings, or challenge on constitutional grounds via Webster v. Doe. |
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Term
| An agency will be held accountable for inaction pursuant to 706(1) when it fails to take a DISCRETE action that it is REQUIRED to take. |
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Definition
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Term
| In action is a very hard burden to overcome - courts are pretty deferential to the agency's decision not to expend resources in a given way. |
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Definition
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Term
| In order to have standing, you must have three criterion |
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Definition
| Injury, causation, redressability. Lujan v. Defenders of Wildlife |
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Term
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Definition
| Hunt v. Washington State Apple advertising commission - one or more of the members has standing, interests the associations seeks to protect are germane to the purpose, and the claim nor relief require the individual's participation. |
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Term
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Definition
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Term
| An agency decision must be final. What does that mean |
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Definition
| definitive statement of position, and having a direct and/or immediate effect on day to day operations. FTC v. SOCAL |
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Term
| Finality can be waived if there is risk of substantial harm |
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Definition
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Term
| There must be an exhaustion of administrative remedies |
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Definition
| Portela-Conzalez v. Secretary of Navy |
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Term
| 3 exceptions to exhaustion of remedies |
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Definition
| McCarthy v. Madigan - When delay threatens to prejudice future action (irreparable harm), if there is substantial doubt the agency can grant redress, if there is objectively verifiable proof of agency taint. |
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Term
| Two issues to be considered for ripeness |
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Definition
| Abbott laboratories v. Gardner - fitness of issues for judicial decision, hardship to the parties of witholding court consideration |
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Term
| Ripeness - courts have a preference for immediate reviewability of rules that have legal force |
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Definition
| Cement Kiln Recycling v. EPA |
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Term
| "property" and 'liberties" protected by the 14th amendment should be liberally construed |
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Definition
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Term
| In order for a liberty to be implicated... |
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Definition
| there must be some lasting effect on the P. Roth |
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Term
| In order for property to be implicated... |
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Definition
| there must be more than a unilateral expectation to the property - there must be a legit claim to it. Roth. |
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Term
| A property interest must have some monetary value |
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Definition
| Town of Castle Rock v. Gonzales |
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Term
| There is no property or liberty interest in police protection |
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Definition
| Town of Castle Rock v. Gonzales |
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Term
| A statute can create a property interest |
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Definition
| Board of Education v. Loudermill |
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Term
| State difference in liberty/property interests |
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Definition
| There is no Roth Rule, and discretionary termination can trigger a due process hearing. |
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Term
| Due process for deprivation of a protected interest can be met with less than a full hearing, subject to 3 criterion |
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Definition
| Mathews v. Eldridge - Private interest in losing the benefit, risk of a false termination, burden on the public of increasing process, including cost of pre-termination hearings. |
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Term
| There is NEVER a right to a hearing unless there is a relevant issue of material fact |
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Definition
| CN. Dept. of public safety v. doe |
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Term
| Mathews analysis applies to elements of a hearing |
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Definition
| Ingraham v. Wright - paddled children sought additional procedural safeguards; they were not granted |
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Term
| Actions which do not cause lasting harm will be left to solve via tort, rather than judicial review |
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Definition
| Parratt v. Taylor (destruction of prisoner property) |
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Term
| Due Process doesn't require a hearing in situations of contract breach |
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Definition
| Lujan v. G&G Fire sprinklers |
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Term
| The critical phrase to trigger formal adjudication under the APA is... |
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Definition
| "formal adjudication" - Dominion energy, otherwise grant Chevron deference. |
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Term
| States and formal adjudcation |
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Definition
| They usually grant ful review - Metsch v. University of Florida |
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Term
| An agency may deny adjudcation if there exists a rule that directly addreses the issue that would be present in adjudication |
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Definition
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Term
| Workaround if a rule pre-empts adjudication |
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Definition
| challenge the rule as A&C - Sullivan v. Zebley |
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Term
| Personal responsibility in adjudication |
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Definition
| The one who decides must hear. Morgan v. United States |
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Term
| Ex parte contacts in adjudication |
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Definition
| 557(d) prohibits such contacts relevant to the merits of the proceeding between the decision maker and an interested party. |
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Term
| Ex parte contacts are bad even if the APA doesn't apply |
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Definition
| Idaho Historic Preservation Council |
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Term
| Ex Parte contacts should be liberally construed to protect appearance of impropriety |
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Definition
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Term
| In ex parte contacts, the president is always an interested party |
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Definition
| Portland Audubon Socity v. Endangered Species committee |
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Term
| When is political oversight in adjudication bad? |
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Definition
| when it focuses on the decisional processes of a commissioner in a case which is pending before it. Pillsbury v. FTC |
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Term
| Courts have been reluctant to apply political oversight in adjudication bad b/c.... |
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Definition
| The legislator already has plenty of ways to mess with the agency if they want. DCP Farms v. Yeutter. |
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Term
| There must be separation fo functions between adversary and adjudicator, and ex parte contacts between teh groups is bad. |
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Definition
| Department of Alcoholic Beverage Control v. Quantanar |
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Term
| Exceptions to the separation of functions rule |
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Definition
| Communications re: uncontroversial procedural matters, and a decision maker can receive advise from a NONADVERSARIAL personnel |
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Term
| 554(d)(1) prevents the ALJ from hearing advice on factual issues from ANY staff member. |
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Definition
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Term
| Bias in adjudication test... |
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Definition
| If a disinterested observer may conclude that there was some prejudgment. Cinderella Career and Finishing Schools v. FTC |
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Term
| The Courts may hold an entire agency from hearing a case if there is systemic bias |
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Definition
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Term
| Discovery - agencies need a basis other than the APA to compel production of information. |
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Definition
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Term
| Parties may be forced to comply with an information request if there is a decreased expectation of privacy for them. |
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Definition
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Term
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Definition
| No 5th amendment protection for corporations, or for people in corporations. Braswell v. United States |
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Term
| There is no 5th amendment privilege if the documents are mandatory. |
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Definition
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Term
| There are requirements for agencies to explain their reasons |
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Definition
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Term
| For rationale, a summary of evidence is sufficient |
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Definition
| AT&T Wireles v. City Council of VA Beach |
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Term
| Post Hoc justification is insufficient |
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Definition
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Term
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Definition
| Foote's Dixie Dandy, Inc. v. McHenry |
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Term
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Definition
| If the final rule is a logical outgrowth of the original notice. Chocolate Manuf. Ass'n v. Block |
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Term
| As long as the issue is in the original notice, it may be sufficient for final notice |
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Definition
| Long Island Care at Home v. Coke |
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Term
| Hybrid Rulemaking - the court cannot require anything more than bare minimum of APA |
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Definition
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Term
| Role of Agency head in rulemaking - |
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Definition
| agency head must understand contents of material to make an informed decision. Mass. State Pharma Ass'n |
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Term
| Ex Parte contacts are perfectly ok, so long as they're docketed. |
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Definition
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Term
| Standard for bias in rulemaking |
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Definition
| unalterably closed mind - Ass'n of Nat'l Advertisers v. FTC |
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Term
| Findings and reasons in rulemaking |
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Definition
| There must be a "concise general statement" of basis and purpose. |
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Term
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Definition
| is usually not deeply questioned, but it does happen - corrosion proof fittings v. EPA |
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Term
| Good cause exemption to notice and comment |
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Definition
| 553(b) - health and safety concerns - Jifry v. FAA |
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Term
| Good Cause exemption - standard method |
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Definition
| Direct final rulemaking - agency publishes rule, and it goes into effect as long as there are no negative comments |
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Term
| Exempted subject matter - agency management |
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Definition
| APA 553(a)(2) - doesn't apply to rules that have a substantial effect on people outside the gov't - Tunik v. MSPB |
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Term
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Definition
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Term
| Exempt subject matter - military |
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Definition
| Doesn't apply to military contractors - Independent Guard Ass'n v. O'Leary |
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Term
| Legislative vs. Non-legislative rule |
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Definition
| Legislative rules are binding on private persons, the agency and courts. Non legislative can have a constraining effect, but aren't BINDING. |
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Term
| Policy statement - starting point |
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Definition
| the agency characterization of the rule - Professionals and patients for customized care v. Shalala |
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Term
| Factors for policy statement determination |
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Definition
| Agency characterization, binding effect (both in theory and practically), and degree of discretion allowed agency. |
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Term
| Interpretive Rules are exempted - non-interpretive rules include things that are consistent, but not derived from, the statute |
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Definition
| Hoctor v. US Department of Agriculture (the fence case) |
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Term
| There isn't much required rulemaking |
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Definition
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Term
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Definition
| Whether the case is one of first impression, whether there is an abrupt departure, extent of reliance on prior law, degree of burden imposed on party, statutory interest in applying the new rule. Retail, Wholesale & Dept. store union v. NLRB |
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Term
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Definition
| A response must be grounded in authorizing statute - Mass v. EPA |
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Term
| Petition response -how permissive are the courts? |
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Definition
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Term
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Definition
| The agency must state a rationale responding to the waiver in some way. Wait v. FCC |
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Term
| The court can examine a denial - they cannot be an abuse of discretion |
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Definition
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Term
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Definition
| Iowa waiver applicants must show by "clear and convincing evidence" that the waiver would not "prejudice the substantial legal rights" of anyone. |
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Term
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Definition
| intellgible principle - Whitman v. American Trucking |
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Term
| Court response to non-delegation |
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Definition
| Narrowly construe to save the statute - AFLCIO v. American Petroleum Institute |
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Term
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Definition
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Term
| The Legislature cannot appoint the heads of executive agencies |
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Definition
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Term
| Inferior officers can be appointed by Courts or heads of departments. Who are inferior officers? |
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Definition
| those whose work is directed and supervised at some level by others who are appointed by presidential nomination. Edmond v. United States |
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Term
| Special Courts created by statute can appoint inferior officers |
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Definition
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Term
| The president may not fire an agency head without cause |
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Definition
| Humphrey's Executor v. United States |
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Term
| The executuve may fire whoever they want, to the degree the president's inability to remove would interfere with their ability to operate |
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Definition
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Term
| If an official has legislative functions, it may NOT be removed by the legislature. |
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Definition
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