Admin Law Sample Answer Summer 09

Admin Law Sample Answer Summer 09 - ID...

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Unformatted text preview: ID: Admin_Law_SMO9_Final (Farmer) Matt Farmer 1) First, the question must be answered: is review available? and if so, what process is due? An aggrieved party is presumptively entitled to judicial review unless an exception under 701a applies. We look first to the enabling act to determine whether it requires an adjudicatory hearing. The statute specifically precludes review, and makes no other provision for agency adjudication process. Chester will challenge the choice of the agency procedure as denying his right to due process. Chester will challenge the agency action of denying him his means to make a living. Does Mathews require greater process? Chester will challenge this statute on the grounds that it requires greater due process such as the right to review by an article III court because it threatens his protected interest of his livelihood. He will argue that a person's right to engage in their occupation has been held to be a property interest. Failure to provide greater process is overly restrictive and he should be given an opportunity to show why the rule shouldn't apply to him. He will also argue that because the property interest at stake is his livelihood or his ability to practice a trade or profession, he should be afforded a pre-deprivation hearing under Mathews v. Eldridge. Applying the Mathews factors, a court would look at whether the party's interest is substantial. Here, Chester makes a living off of his porn site. He might be able to make a living doing something else, but if this is his long time profession, he may not have the skills to enter the regular workforce and he could lose his home and lifestyle. We don't have enough information about how much he relies on the $75K a year. On the other hand, lots of us live on less than that and do just fine. He might have to move to a smaller house and cut down on his hand cream budget but his ability to make a living would not be eradicated. He could direct movies or take tickets at a theater with his skills from the porno biz. This interest is relatively unimportant. Page 1 of 7 (Question 1 continued) ID: Admin_Law*SMO9_Final (Farmer) Matt Farmer The second factor is whether the existing procedures are adequate to avoid a high risk of error. Chester would argue that the agency adjudication is inadequate from the get go because the procedure doesn't even provide for a statement to be submitted by the aggrieved party. There is no opportunity for Chester to argue to anyone why his business does not fall under the rule. The agency would argue that porn is porn and there is no chance of error because when it comes to porn, it knows it when it sees it. This is a very weak argument for the agency. The third factor is the government's interest in minimizing the process. Government resources could best be allocated to research and development in the area of child psychology to ensure the agency keeps current with the effects of pornography on children and others. The process it has is so minimal that it does not need to spend hardly any resources on the investigation and adjudication of individual circumstances. Chester will argue that, as such, the agency has wiggle room to expand its process to include at least some sort of fact gathering and evidence weighing process. The agency would disagree that any fiarther process is due because when it comes to porn, it knows it when it sees it. Overall, Chester would be in a better position to prevail because he has been deprived of all process and a court would find that the statute violates due process under Mathews. SEEA will challenge the rulemaking procedures used by F APC and so will Flynt see Flynt discussion below. Page 2 of 7 (Question 1 contin ued) ID: - Admin_Law_SMO9__Final (Farmer) Matt Farmer Flynt will challenge the use of the manual as an abuse of prosecutorial discretion. However, Flynt’s major problem is a matter of ripeness for himself. An agency action is not reviewable generally until it appears that the agency's actions are complete such as when the agency tries to enforce a rule it created. Notwithstanding the fact that Flynt is not with standing (ha ha), it appears that the agency has not tried to enforce the rule against him. He can be very upset, but no action has been taken against him yet. Rulemaking He may try to attack the statutory basis for the rulemaking by claiming that the agency failed to consider all relevant factors in promulgating its rule. Flynt will call this a formal rulemaking procedure and under the formal rulemaking procedures of the APA, the substantial evidence standard applies to agency formal adjudication and formal rulemaking. Here, the agency did undertake the notice and comment period for the rules to define pornography. It solicited input from interested parties and considered studies, opinions and other evidence before it made its rule. But it failed to have an evidentiary closed hearing. It is not likely that the rulemaking procedures were formal. In informal rulemaking, the agency is require to give notice, provide opportunity for comment and the rule should consider the whole record. F lynt will argue that it did not consider the relevant factors of the lack of injury porn does to kids as shown by psycholgist reports. Also , flynt will argue that the statement with the rulemaking failed to address the issue of the economic impact to the porn industry. It will probably be held that the agency did not address the important issues raised by Mr. F lynt and the court will send it back to be reopened and done over. Page 3 of 7 (Question 1 continued) ID: Admin_Law_SMO9_Final (Farmer) Matt Farmer Torn will challenge the fact that he was not selected as the FAPC director under both an Appointments clause violation and a separation of powers violation. Does the appoinment of the directors violate the Appointments Clause of the Constitution? The appointments clause provides for appointment of officers of the U.S. by the president with confirmation of the Senate. The APPTS clause applies to officials who exercise authority pursuant to the laws of the U.S. These include high level officials such as department heads who are directly below the president. The determinative factor is whether the official will exercise authority under the laws of the U.S. Here, the directors have been appointed by the president and confirmed by both houses. Tom may scream and yell all he wants, but the directors were properly appointed. No violation of APPTS clause. Does the delegation of authority to FAPC Violate the non-delegation doctrine? The non-delegation doctrine prohibits congress from delgating excessive legislative discretion to the executive branch. Delegations of discretionary authority are permissible so long as congress made the legislative decisions and the agency filled up the details. The discretion the agency enjoys is not legislative but is supposed to be discretion inherent in the execution of the laws. So long as Congress lays down an intelligible principle to which the body authorized to act is directed to conform, the delegation will pass muster. Although there have been many attacks on the non-delegation doctrine, courts have not found a violation since about the thirties. Here, Congress set out specific guidelines for the purpose and authority of the agency. The intelligible principle is that the agency is charged with protecting children from the evils of porn. Torn may argue that the statute is too vague and the agency enjoys standardless prosecutorial discretion by its being able to institute penalties, fines, sanctions, and shut down websites with broad authority. However, the agency will argue that unlike the Benzene case, Congress has set out guidelines specifying when the agency should act - it must act against those who threaten to Page 4 of 7 ( Question 1 continued) ID: Admin_Law_SMO9_Final (Farmer) Matt Farmer expose children under 18 and others to pornography. This would be sufficient to guide the agency. Tom will say that the agency's guidelines leave almost all discretion to the directors and therefore, the whole existence of the commission is unconstitutional. However, the act need not be so specific and the agency is in a better position given its expertise in the field to develop additional rules to fill up the gaps. Tom's challenge will likely fail because of the very easy standard to meet — the intelligible principle. MAP will challenge the agency's failure to take action against Playboy.com Agency enforcement and prosecutorial discretion unless an enablling act contains standards under which an agency i srequired to prosecute a violator or regulate in an area, a decision not to is unreviewable. Courts have concluded that the agency should be left to decide which actions present the best use of agency resources. The standard for deciding whether a court should preclude an agency from enforcing an order or order an agency to enforce an order is "patent abuse of discretion" and as long as the agency can articulate a rational basis for its actions or inactions, the action or inaction will be upheld. MAP will argue that the agency should act agsinst Playboy because they are engaged in the same violation as Chester and possibly SEEA. MAP will argue that failure to prosecute would subvert Congress's intent to restrict children's access to porn. Agency will argue that the statute speaks for itself and it can't possible go after every violator at once. Everyone will challenge the Commission's delegation of legislative and adjudicatory authority under the separation of powers doctrine. Page 5 of 7 (Question 1 continued) ID: Admin_Law_SMO9_Final (Farmer) Matt Farmer Also, Chester and SEEA will challenge the validity of the policy manual as Violating rulemaking standards. The manual seems to contain regulations and policies with the force of law which would require a court to review the procedures under the Chevron standard. The agency will argue that the rules are simply interpretive of the statute sections 102 and 106 and therefore allowed greater deference under Chevron. The parties will argue that first, the manual was not published in the Federal Register and therefore cannot be enforced against anyone without actual knowledge of the rules. Courts have held that publication is essential even under APA's informal rulemaking procedures and reequires notice by publication in the Fed Reg, opportunity to comment, and publicaton of final rule that is the logical outgrowth of the original proposal. Agency will rely on its absolute authority to create rules in furtherance of its statutory goals and under this, it has authority to interpret the statute with great deference. Applying Chevron, first, has Congress spoken on the issue? The statute is silent on the procedures and penalties allowed. Second, is the agency's interpretation sufficiently rational to a court is precluded from substitutting its own judgment for that of the agency? Agency would argue that to keep violators from continuing to break the law, a heavy penalty should be assessed and the statute allows the agency to set the penalties. The aggrieved parties will argue that the rules are non-interpretive prosecutorial type rules which requires a review under an abuse of discretion standard. Since the rules have no real basis for its rules, it may well fall under the abuse of discretion standard especially considering the degree of abuse of discretion in promulgating Rules 1 and 2. Chester and SEEA would also argue that these rules have no real relation to the statute and are simply arbitrary. Further, the fact that the rules were promulgated in a very informal fashion: (the agency just made them up and published manuals for its offices) that the rules are only entitled to Skidmore Page 6 of 7 ( Question 1 continued) ID: Admin_Law_SMO9_Final (Farmer) Matt Farmer deference which relies on the degree to which the agency reasoning is persuasive. Here, the agency offers little in the way of reasoning, it just imposes fines and penalties. It states there is no other way to carry out its functions. However, since the rules have significant monetary penalties of $1 OK a day for violators, they have the force of law and the process did not conform to formal rulemaking procedures. Page 7 of 7 ID: Admin_Law_SMO9_Final (Farmer) Matt Farmer END OF EXAM Page 1 of 1 ...
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