test analysis - grabbag

Question 1

What is the reviewability analysis on essays

Answer 1

standing (con + prudential), cause of action (701) - i.e. agency action but not expressly or implicitly precluded, and timing doctrines: 1) finality 2) exhaustion 3)

Question 2

analysis for ripeness on essays

Answer 2

discuss both the facts vs law dichotomy (what is left to develop?)
also
it is a balancing test b/w the agency and the party

Question 3

analysis for finality

Answer 3

is it “definitive of the agency’s position” and do legal consequences flow

Question 4

what exceptions are there to a party being allowed to use estoppel?

Answer 4

criminal proceedings or state court – also may be reasonable reliance if the person is high up (not a hotline or something)

Question 5

analysis for challenging notice for an interpretive something or other

Answer 5

establishing three factors: that party had no notice, that the party
suffered a substantial and retroactive penalty, and that the agency’s interpretation was not “fairly
obvious.”

Question 6

Explain the Walton test.

Answer 6

The Walton test applies to agency interpretations of statutes by means of informal adjudications
that lack the force of law, or by non-legislative rules (which always lack the force of law). The
test determines whether the deference due the agency is determined under Chevron or Skidmore.
Under Walton, the Court examines the centrality of the gap in the statute (seemingly the most
important factor), the expertise of the agency, and the amount of attention the agency gave the
issue. If these factors are present/positive then the use of Chevron is warranted. Interpretations of
gaps that are not central, outside the agency’s area of expertise, and/or not given enough
attention will instead get Skidmore

Question 7

. Give a complete account of the remedies available when there is an ex parte communication
in a formal adjudication between the adjudicator and interested persons outside the agency.

Answer 7

APA § 557(d) specifies two remedies for such ex parte communications. The more common
(indeed, automatic) one is disclosure—putting the communication into the record. A more severe
remedy may be available: a show-cause hearing in which the improper communicator must show
why the adjudication’s result should not be altered to his or her detriment. This remedy is only
available when the improper communicator is a party, and where this remedy is determined to be
appropriate.
There is a third remedy, not mentioned in § 557: an article III court reviewing the matter can
vacate and remand the adjudication if the decision making process was so irrevocably tainted
that the resulting judgment was unfair. Factors that make this remedy appropriate include: (1) the
gravity of the contacts; (2) whether they influenced the decision; (3) whether the improper
communicator benefited; (4) whether adverse parties did not know about it; and (5) the most
important factor, whether remand would serve a useful purpose

Question 8

Analysis of ZOI

Answer 8

Is this the type of person covered under the statute – the “what” not the “who” of the statute, only needs to be shown “arguably”

Question 9

Analysis when you have someone challenging a question of fact in front of an ALJ

Answer 9

You use a SE std (which is quantitative)
The ALJ you have inferences (testmonial and derivative)
The proponent has the burden of proof
Is it reasonable – unsupported, random?
Finally you have to have “substantial evidence” under 556 as well - is any of the evidence lacking qualitative value

Question 10

When there are ex parte contacts in a formal adjudication how are inside treated?

Answer 10

4. Section 554(d) limits contacts from interested parties inside the agency. An ALJ is insulated from contact with the agency’s advocates. This does not apply to the heads of the agency, however, as they have to run the place and can’t really be insulated from anyone. Remedies for violations here are disclosure or vacating the result, but not the show-cause remedy from § 557.

Question 11

How does Kalt define injuries for a DP claim

Answer 11

A liberty or property interest is harder to show. A property interest most simply involves actual, tangible property, but it can also be an entitlement to a government benefit, or a legitimate, not-unilateral expectation of a guaranteed benefit.

A liberty interest most simply involves physical restraint, but it can also involve “freedoms” like pursuing a particular profession. In the subset of cases where a liberty interest is being impeded by a reputational harm (i.e., a stigma), the reputational harm must be accompanied by a “plus”: some official action by the agency, like formal discipline.

Question 12

What are the Skidmore factors

Answer 12

dependent ‘upon the thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control’; in this way, the appropriate measure of deference will be accorded the ‘body of experience and informed judgment’ that such interpretations often embody.

Question 13

What is the EAJA income limit

Answer 13

2 mil

Question 14

1. Discuss the Chadha case. What did the Court reject? What was the rule that the Court announced? Was the Court being formalist or functionalist? Why does the rule in Chadha not invalidate ordinary legislative rulemaking?

Answer 14

Chadha rejected the legislative veto, a procedure in which one or two chambers in Congress can overrule decisions by executive agencies. The rule is that if an action is “legislative” in nature, it must be approved in identical form in both houses and accepted by the President (or vetoed but the veto overridden). In other words, the Court took a formalist view of the Constitution’s bicameralism and presentment requirement by forbidding any alternative processes.

To be legislative in nature, an action must have the purpose and effect of altering legal rights, duties, and relations. Legislative rulemaking would seem to meet this definition, but the Court does not apply Chadha there because the Court accepts that rulemaking is not independent legislative action. Rather, it is pursuant to a congressional delegation of quasi-legislative power that is constrained by an intelligible principle.

Question 15

3. To what does the Paperwork Reduction Act apply? What does it require?

Answer 15

The PRA applies to any reporting requirement that affects ten or more people (besides criminal investigations and civil discovery). It requires the agency that is proposing the reporting requirement to put it through notice and comment. It also requires the agency to critically analyze the requirement to make sure that it is necessary, compatible with existing requirements, makes allowances for small businesses, and is not unduly confusing.
The Office of Management and Budget must review all of this, and the agency must respond to OMB’s comments. If OMB approves the reporting requirement, it assigns a control number to it. If the form lacks the control number, the regulated entity cannot be penalized for failing to comply with it (though it can be penalized if there is some other source of the duty to report).

Question 16

5. What are ALJs? What are their duties and powers and protections? What important limits are there on their powers?

Answer 16

ALJs are administrative law judges. They participate in formal adjudications, not informal ones. Some agencies use an ALJ to preside over and make final decisions for formal adjudications; others have the ALJ compile a record and propose a disposition to the head(s) of the agency; still others have the ALJ decide formal adjudications but allow internal appeals; some agencies don’t use ALJs at all.

ALJs have most of the procedural powers of an article III judge but cannot strike down statutes, the agency’s regulations, or the agency’s interpretations of either.

Although ALJs are employed by the agency, they are insulated from some hierarchical control over their output. They are also kept insulated from the part of the agency (if there is one) that advocates the agency’s position before them. Finally, ALJs are also kept insulated from ex parte communications in adversarial cases.

Question 17

How do you tell is a rule is interpretive or legislative

Answer 17

. An interpretive rule is determined to be such by looking at two factors. First, does the agency characterize it as one? (This obviously cannot be dispositive.) Second, what is the source of the duty placed on the regulated entity? If the rule really is an interpretive rule, the actual duty at issue will come from the statute or legislative rule that the IR interprets

Question 18

What are the key words for ZOI

Answer 18

In context of entire statutory scheme
the “what” and not the “who”
Just needs to be “arguable”

Question 19

The ripeness checklist

Answer 19

ready for judicial consideration
weighing test
facts vs laws - what is left to put into thte record because of THIS cause of action