Challenging Rulemaking Flashcards
1
Q
Who Has Standing
A
Any person, organization who is adversely affected or was a party to the agency proceeding OR if specific statute grants organizational standing
2
Q
Where to File Challenge
A
Oregon Court of Appeals/Federal Court of Appeals
3
Q
Record on Appeal
A
Limited to authorizing statutes, rule, documents showing procedural compliance
4
Q
Timing
A
2 years SOL, from date rule went into effect
5
Q
Challenges
A
Substantive rules is: ultra vires, unconstitutional (no statute of limitations)
Procedural: agency did not comply with APA notice and comment requirements
6
Q
Typical Defenses to Challenge
A
Temporary Rule in face of emergency, No formal rulemaking requirement because statute lacked “magic words”, Just an internal agency policy NOT A RULE, challenge is beyond 2 years.
