We covered administrative law in Chapter 6. In this assignment, you will be the judge. Here is an edited opinionPreview the document involving an administrative law question. I have edited the opinion to provide you with the facts of the case and the applicable law. I have removed the court’s analysis and ultimate conclusion. As the judge, you are to provide the analysis and ultimate conclusion. Please read the edited opinion and then explain how you would rule if you were faced with this case. Your answer should provide your ultimate conclusion and then explain why you would rule that way. You do not need to restate or summarize the facts. You should only discuss the facts as is necessary to explain your reasoning for your ruling.

Administrative Law Lecture-part 1

Administrative Agencies
-administrative law refers to the powers and procedures of governmental administrative agencies.
-both deferral and state administrative agencies
-examples include the IRS, Securities and Exchange Commission, and the DEA.
-Four functions of administrative agencies:
1-promulgating rules
2-conducting formal adjudications
3-conducting investigations
4-taking informal discretionary actions

Rule Making:
-administrative agencies are the ones who make the regulations that we referred to when discussing the sources of law last week.
-when enacting a statue, Congress, as well as state legislatures, lack the time, resources, and at times, the expertise to set forth all the necessary guidance.
-therefore, the legislature will generally enact a statute of general principles and guidelines and then delegate to an administrative agency the responsibility of drafting and publishing regulatory guidance for that statue.
-once delegated, the administrative agency will first provide notice to the public of its internet to promulgate a rule and will the allow the public to submit comments on the proposed rule.
-thousands of comments are often submitted and can be very persuasive to the agency.
-comments usually identify a concern, explain the basis for the concern, then propose a solution.
-an agency may, but is not required to, have a public hearing on the proposed rule.
-the agency will then examine the comments and determine the final rule.
-if the initial comments caused substantial revision, the agency may seek public comments a second time.
-the agency will then publish a final rule in the Federal Register and codify the regulation in the Code of Federal Regulations.
-however, not all proposed rules will be published. Sometimes the agency will abandon the rule or never formally publish it.
-once a rule is published, it is a regulation.

Conducting formal adjudications
-at times, Congress gives administrative agencies the authority to resolve disputes.
-example: the DEA has the authority to determine whether or not a physician should be permitted to prescribe controlled substances.
-these adjudications are a court-like proceeding and are presided over by either an administrative law judge (ALJ) or one or more agency member.
-the person(s) presiding over the adjudication can administer oaths, has subpoenas powers, allow depositions, decide evidentiary issues (ex: what evidence to allow for consideration), and ultimately reach a decision on a dispute.
-before the hearing, the parties often engage in a discovery type phase- which may include interrogatories, requests for production, and depositions.
-the hearing is like a trial in that each side will present evidence to convince the person(s) presiding over the adjudication of their position. The parties will present witnesses who will be subject to cross examination.
-the notable difference between an administrative hearing and trial is that there is no jury.
-the administrative agencys decision is a final order that may be appeals to a court.
-some appeals are to the federal district courts and some appeals are directly to the Circuit Court of Appeals
-Judicial review of an agency adjudication is typically based on the administrative record. This means that the court only reviews the record as presented at the administrative agency. Witnesses are not presented.
-the courts review is usually limited to whether or not, asked on the evidence in the record, the administrative agency acted properly.
-there are limited exceptions to this general rule. Some statutes provide the court with authority to conduct a de novo review in which the action starts again from the beginning. There would be a discovery phase leading ultimately to a new trial (unless a settlement is reached).
-Judicial review is highly deferential to the administrative agency, which is consistent with the goal of relieving courts of making all adjudications (ex: preserving judicial resources)
-reasons courts have rejected agency action:
    -the agencys action exceeds the authority delegated to the administrative agency (ex:             the agency lacked authority for its action)
    -the agencys action is contrary or inconsistent with the statute.
    -the agency fails to adequately explain the basis for its decision (this demonstrating that     it considered all pertinent factors).

Administrative Law pt. 2

Conducting investigations
-in some statutes, congress has tasked the administrative agency with oversight responsibilities.
-that is, the administrative agency is responsible for ensuring that persons/entities are complying with applicable statutes/ and regulations.
-agencies have authority to conduct interviews, subpoena records, and perform searches.
-example: OSHA (Occupational Safety and Health Administration) has authority to inspect workplaces to ensure that employers are complying with minimum safety requirements.
-if the agency finds a violation, the agency may file an administrative suit seeking civil penalties or file a lawsuit in court seeking civil and or criminal penalties.
-administrative agencies are permitted to take informal action on small matters as opposed to cluttering courts with minor actions
-this category covers more agency functions, such as awarding governmental grants/loans, resolving tax disputes informally, determining and administering social security claims, granting licenses, leases, and permits, and negotiating and contracting for government.

Taking informal discretionary action
-in these actions, there are little formal rules/ procedures for agency to follow.
-this, at times, a quick resolution may be reached; however, at other times, one may ensure an endless mass of decisions and appeals.

Constitutional:
-as we just discussed earlier this week, the US constitution provided three branches of government, which have a system of checks and balances to limit authority and preserve liberty.
-Administrative agencies, however, are not a delineated branch in the constitution. Therefore, is the delegation of legislative and judicial power to administrative agencies constitutional?
-Yes, the US Supreme Court has upheld the power of administrative agencies.

Chevron Difference:
-the US Supreme Court has articulated a two phase inquiry to determine whether an administrative agencys interpretation should be considered:
    -Did congress address the issue directly in the statue?
        -if yes, then inquire stops because congressional intent must be followed.
-if the statute is either silent or ambiguous on issue, court must examine whether the agencys interpretation (as stated in regulation) was based on a permissible construction of the statute.
    -the court will defer to the agencys interpretation if it is reasonable or rationale
    -the age of the interpretation and the congressional action or lack thereof in response to     that interpretation can be instructive. For example, if Congress was aware of the             interpretation when it acted or refrained from nation, then it is presumed to have                 approved of the interpretation.
-judicial difference to administrative guidance is limited to administrative interpretations that have reached formal proceedings with the force of law.
-this included adjudications and regulations promulgated through formal public notice and rule making procedure.
-opinion letters, policy statements, and agency manuals are not entitled to this difference.

Review of informal discretionary acts:
-informal discretionary acts, if challenges, are ordinarily affirmed so long as the act is not arbitrary and capricious.
-that is, the action is considered valid so long as it has a rational basis.

Standing
-in order to seek judicial review of an agencys action, the plaintiff must have standing:
    -the plaintiff must have suffered an injury that is concrete and particularized and actual or imminent, not conjectural or hypothetical ;
    -the injury must be fairly traceable to the challenged action and
    -it must be likely- not speculative- that judicial action may redress the injury.
-without standing, the plaintiffs complaint will be dismissed.

Exhaustion of administrative remedies:
-before a court will review an agency action, the administrative agency process must generally be completed.
-the process is deemed completed once the plaintiff has pursued all avenues of relief before the administrative agency (ex: administrative action is final)
-courts have discretion to waive this requirement, and agency may waive not raising exhaustion as a defense.

Issue exhaustion
-courts review is generally limited to issues raised before the administrative agency
-in order for a court to consider an issue, the plaintiff must have raised that issue with the administrative agency and given the agency an opportunity to rule on the issue.

Ripeness
-courts will only consider issues that are ripe for a decision.
-that is, courts will not consider hypothetical issues.
-ripeness most often involves pre-enforcement challenges, which is a challenge to a regulation/interpretation before the agency has applied the rule to the plaintiff.
-agency action is ripe for review when the effect of the agency act is sufficiently direct and immediate.

Freedom of Information Act (FOIA)
-authorizes individuals to obtain copies of government records, including agency records.
-any citizen can request governmental records on any subject.
-example: request all documents pertaining to Patsy Smiths EEOC charge.
-there is no relevancy requirement
-government must respond within 20 days, although usually response is to inform you that additional time is needed to process request.
-confidentiality exists to protect some information via redaction or outright withholding.