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Management 311 > MGMT 311 Exam 2 - FLASHCARDS - Chapter 23 > Flashcards

MGMT 311 Exam 2 - FLASHCARDS - Chapter 23

1
Q

What main power does an administrative agency have?

A

Enabling legislation

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2
Q

True or false: administrative agencies exist across all areas of government?

A

TRUE

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3
Q

What is enabling legislation?

A

specifies the name, purposes, functions, and powers of the agency being created.

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4
Q

What is an example of enabling legislation?

A

Federal Trade Commission (FTC)

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5
Q

What does the FTC act allow the Federal Trade Commision to do?

A
  1. Create “rules and regulations for the purpose of carrying out the Act.”
  2. Conduct investigations of business practices.
  3. Obtain reports from interstate corporations concerning their business practices.
  4. Investigate possible violations of federal antitrust statutes. (The FTC shares this task with the Antitrust Division of the U.S. Department of Justice.)
  5. Publish findings of its investigations.
  6. Recommend new legislation.
  7. Hold trial-like hearings to resolve certain trade disputes that involve FTC regulations or federal antitrust laws.
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6
Q

What agencies are formed to help the President carry out executive functions? They include the cabinet departments of the executive branch

A

Executive agencies

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7
Q

What agencies are outside the major executive departments?

A

Independent regulatory agencies

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8
Q

True or false: Congress enacts statutes, and sometimes statutes create administrative agencies to help carry out the rules in the statute?

A

TRUE

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9
Q

True or false: the president’s power is less in independent regulatory agencies?

A

TRUE

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10
Q

What are the three main powers of administrative agencies??

A

rulemaking, enforcement, and adjudication.

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11
Q

What is the administrative process?

A

The procedure used by administrative agencies in fulfilling their three basic functions: 1. rulemaking, 2. enforcement, and 3. adjudication.

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12
Q

What must happen prior to the adjudicatory hearing?

A

Prior to the hearing, the parties are permitted to undertake discovery, which may involve depositions, interrogatories, and requests for documents or other information. The discovery process usually is not quite as extensive as it would be in a court proceeding

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13
Q

True or false: A hearing must comply with the procedural requirements of the APA and must also meet the constitutional standards of due process?

A

TRUE

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14
Q

What is a difference between trials and administrative agency hearings?

A

Normally much more information, including hearsay (secondhand information), can be introduced as evidence during an administrative hearing

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15
Q

What are executive controls of agencies?

A

The executive branch of government exercises control over agencies both through the president’s power to appoint federal officers and through the president’s veto power.

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16
Q

What are legislative controls of agencies?

A

Congress gives power to an agency through enabling legislation and can take power away—or even abolish an agency altogether—through subsequent legislation. Congress has the authority to investigate the implementation of its laws and the agencies that it has created.

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17
Q

What are judicial controls of agencies?

A

Judicial branch has the power to review decisions coming out of the administrative law courts from these agencies

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18
Q

What is the exhaustion doctrine?

A

The principle that a complaining party normally must have exhausted all available administrative remedies before seeking judicial review.

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19
Q

What is the Administrative Procedure Act (APA)?

A

Under this standard, parties can challenge regulations as contrary to law or as so irrational that they are arbitrary and capricious. Congress thought we needed to have more procedural controls

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20
Q

What can an agency do that makes a rule arbitrary and capricious?

A

Failed to provide a rational explanation for its decision.

Changed its prior policy without justification.

Considered legally inappropriate factors.

Entirely failed to consider a relevant factor.

Rendered a decision plainly contrary to the evidence.

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21
Q

What is the first part of the administrative process?

A

Rulemaking

22
Q

What is rulemaking?

A

The APA defines a “rule” as “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law and policy.”. Rules made by agencies go through a notice and comment rulemaking process.

23
Q

What is an administrative rulemaking procedure that involves the publication of a notice of a proposed rulemaking in the Federal Register, a comment period for interested parties to express their views on the proposed rule, and the publication of the agency’s final rule in the Federal Register?

A

Notice and comment rulemaking?

24
Q

What is the notice of the proposed rulemaking?

A

The notice states where and when the proceedings will be held, the agency’s legal authority for making the rule (usually its enabling legislation), and the terms or subject matter of the rule. The agency must also make available to the public certain other information, such as the key scientific data underlying the proposal.

25
Q

Where is the notice of any proposed rule published?

A

Federal register

26
Q

What is the comment period of rulemaking?

A

You are given an opportunity to comment in writing or orally

27
Q

Where is the final rule republished?

A

In the code of federal regulations

28
Q

What do interpretive rules do?

A

interpretive rules simply declare policy and do not affect legal rights or obligations

29
Q

What do administrative inspections and tests cover?

A

cover a wide range of activities, including safety inspections of underground coal mines, safety tests of commercial equipment and automobiles, and environmental monitoring of factory emissions.

30
Q

What is a subpoena?

A

legal document that requires a person or entity to appear in court or other legal proceedings to testify or produce evidence. Subpoenas are typically requested by attorneys and issued by the court.

31
Q

What is subpoena ad testificandum?

A

The subpoena ad testificandum (“to testify”) is an ordinary subpoena. It is a writ, or order, compelling a witness to appear at an agency hearing.

32
Q

What is subpoena duces tecum?

A

The subpoena duces tecum (“bring it with you”) compels an individual or organization to hand over books, papers, records, or documents to the agency.

33
Q

What is adjudication?

A

The process of resolving a dispute by presenting evidence and arguments before a neutral third party decision maker in a court or an administrative law proceeding

34
Q

What are negotiated settlements?

A

Negotiations may involve a simple conversation or a series of informal conferences. Whatever form the negotiations take, their purpose is to rectify the problem to the agency’s satisfaction and eliminate the need for additional proceedings.

35
Q

What is a formal complaint?

A

If a settlement cannot be reached, the agency may issue a formal complaint against the suspected violator.

36
Q

What is the role of the administrative law judge (ALJ)?

A

An ALJ presides over the hearing and has the power to administer oaths, take testimony, rule on questions of evidence, and make determinations of fact

37
Q

Is the administrative law judge an independent judge?

A

No

38
Q

What does the APA require in regards to the ALJ?

A

The APA requires that the ALJ be separate from an agency’s investigative and prosecutorial staff. The APA also prohibits private communications between the ALJ and any party to an agency proceeding, including the agency and the company involved. Finally, provisions of the APA protect the ALJ from agency disciplinary actions unless the agency can show good cause for such an action.

39
Q

When is the ALJ’s decision the final decision?

A

If no party appeals

40
Q

What is an initial order?

A

becomes final unless it is appealed. Either party can appeal the ALJ’s decision to the board or commission that governs the agency. If displeased with the result, the party can appeal that decision to a federal appellate court

41
Q

What is a final order?

A

If no party appeals the case, the ALJ’s decision becomes the final order of the agency. The ALJ’s decision also becomes final if a party appeals and the commission and the court decline to review the case.

42
Q

What might the court consider if an agency is demanding too much in pursuing information as part of an investigation?

A

The purpose of the investigation. An investigation must have a legitimate purpose.

The relevance of the information being sought.

The specificity of the demand for testimony or documents.

The burden of the demand on the party from whom the information is sought.

43
Q

When is information relevant?

A

Information is relevant if it reveals that the law is being violated or if it assures the agency that the law is not being violated.

44
Q

What amendment protects against unreasonable searches and seizures by requiring that in most instances a physical search for evidence must be conducted under the authority of a search warrant?

A

Fourth amendment

45
Q

What is an order directing law enforcement officials to search a specific place for a specific item and seize it for the agency?

A

Search warrant

46
Q

Dion is head of the National Security Agency, a subagency of the Department of Defense. Dion has held the position for years and feels comfortable that he is secure in his position. However, after Dion holds a press conference where he directly contradicts a statement the president made, he receives a letter from the president removing him from his position. Dion objects to the firing, stating that he can only be removed from office “for good cause.” If Dion sues for being wrongfully removed from office, he will

win because the president can only remove officers of executive federal agencies for good cause.

win because Congress is the entity with the authority to remove officers of executive federal agencies.

lose because only Congress can remove officers of executive federal agencies and only for good cause.

lose because the president has the power to appoint and remove officers of executive federal agencies.

A

lose because the president has the power to appoint and remove officers of executive federal agencies.

47
Q

Roger has worked for an agency, the Federal Reserve, for 10 years. Recently, Roger has heard rumors that multiple employees have contracted COVID-19, a highly contagious and potentially dangerous disease, although they have recovered completely. Nevertheless, Roger is still concerned about being around these people, so Roger asks his employer, the Federal Reserve, for a list of these employees. The Federal Reserve refuses, so Roger files a Freedom of Information Act (FOIA) request for the information. Under the FOIA, will the Federal Reserve provide Roger this list?

No, this information is confidential and personal.

Yes, providing this information does not violate normal agency policies.

Yes, Roger has a good reason for requesting this information.

No, because as a current employee of an agency, the Federal Reserve, Roger cannot file a FOIA request with the Federal Reserve.

A

No, this information is confidential and personal.

48
Q

Rhea, a 45-year-old supervisor in a women’s retail clothing store, recently learned that a younger co-worker was promoted to a position she had applied for. Rhea has more experience and more time with the company and has always gotten excellent scores in her annual reviews. Rhea files an action with the Equal Employment Opportunity Commission (EEOC) for age discrimination. The Administrative Law Judge (ALJ) issues an order in favor of Rhea. This decision of the ALJ is

the final order in the case unless the store appeals.

only a temporary order unless either party appeals.

only a temporary order; there will always be a different final order.

the final order in the case unless Rhea appeals.

A

the final order in the case unless the store appeals.

49
Q

Harold is the owner of Fairway Lawn Service, which provides lawn-care services to residential and commercial customers. Harold regularly sprays his customers’ lawns with a pesticide that contains glyphosate. The Environmental Protection Agency (EPA) issues a citation to Harold for commercial use of the pesticide. The EPA says glyphosate can only be used in residential applications. Harold knows that this has not been the law in the past, so he searches the EPA website for information about glyphosate. Harold finds nothing that indicates glyphosate cannot be used in commercial applications, so Harold demands a hearing to dispute the citation he has been issued. Harold will probably

win because Harold’s use of glyphosate would be grandfathered in.

lose because as a commercial lawn care provider, Harold must stay abreast of current research on pesticides.

lose because the EPA is not required to give notice before it changes environmental rules.

win because the EPA did not give notice of the rule change regarding glyphosate.

A

win because the EPA did not give notice of the rule change regarding glyphosate.

50
Q

Phyllis has worked as a mechanic for Boeing Corporation for the last 10 years. Phyllis recently found out she is pregnant, so she requests a transfer to another position that does not require as much lifting. Boeing refuses to transfer Phyllis and fires her instead. Phyllis files a complaint with the EEOC for a violation of the Pregnancy Discrimination Act, and that agency, the EEOC, decides the case in Boeing’s favor. After exhausting all administrative remedies, Phyllis files a lawsuit in federal court, which will

show no deference to the decision of the agency on either questions of law or fact; the court may substitute its judgment for that of the agency.

show deference to the decision of the agency on questions of law only, upholding it unless the decision is unreasonable.

show deference to the agency’s decision on both questions of law and fact, upholding the decision unless it is unreasonable.

show deference to the decision of the agency on questions of fact only, upholding it unless the decision is unreasonable.

A

show deference to the agency’s decision on both questions of law and fact, upholding the decision unless it is unreasonable.

Management 311 (25 decks)

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