Exam 17: The Regulatory Process

Which of the following conditions will lead to the courts not finding an agency's actions to be arbitrary, capricious, or an abuse of discretion:

In Lone Mountain Processing v. Secretary of Labor, a mining firm railed to respond to a citation from the Mine Safety and Health Administration (MSHA) for regulatory violations within 30 days, so the citations became final. The firm protested the refusal to reconsider the matter after 30 days. The appeals court held that the agency was inconsistent in when it allowed review, which was arbitrary and capricious, so review would be granted.

Once an agency has been granted authority to control an area of concern, such as the EPA controls certain pollution, Congress may not interfere with agency functions.

In Invention Submission v. Rogan, the Patent and Trademark Office (PTO) used a testimonial from a client of Invention Submission (IS) as an example of someone who felt abused by a patent-marketing scheme. IS had not been convicted of wrongdoing so it sued the PTO for violating the Administrative Procedure Act (APA) by using that example in its advertising campaign about patent-marketing scams. The appeals court held that the PTO's campaign:

Substantive or legislative rules are in the public record for inspection before they become final.

Which of these is not a procedural requirement for judicial review of an agency decision:

The ____ prevents unnecessary lawsuits by giving the agency the full chance to get the decision right.

Unlike with cases heard in a federal courtroom, the administrative law judge presiding over a hearing at an administrative agency:

Fact Pattern 15-1 Congress creates the Federal Authority on Homelessness (FAH) and gave it broad powers to issue regulations, conduct searches, investigate areas where homelessness is a particular problem, and bring actions against those who discriminate against the homeless, or fail to follow FAH regulations. In March 2009, FAH issued a rule that businesses with 15 or more employees cannot discriminate against the homeless in employment. The regulation states that businesses must take steps to recruit homeless people as employees and must provide homeless employees with adequate shelter. No public hearings are held and the final rule was published in the Federal Register in June, 2009. In October, 2009 FAH inspectors arrive at Elroy's Tackle Shop in Eureka, California. Elroy employs 18 people, including clerks, cashiers, and fishing guides. The inspectors ask Elroy what steps he has taken to hire a homeless person. He tells the inspectors that he has taken no steps, they fine him $5000 and inform him that he had better take such steps soon. Elroy did not know FAH existed or that he had a duty to try to hire homeless people. He calls his attorney, Maia, and asks her what to do. She suggests that he file a complaint stating that FAH failed to follow proper procedures when it issued the rule. -Refer to Fact Pattern 15-1. The FAH agents need which of the following to inspect the premises of Elroy's Tackle Shop legally?

Administrative agencies are created when:

When an agency issues a substantive rule, it is generally required by the APA to:

Fact Pattern 15-1 Congress creates the Federal Authority on Homelessness (FAH) and gave it broad powers to issue regulations, conduct searches, investigate areas where homelessness is a particular problem, and bring actions against those who discriminate against the homeless, or fail to follow FAH regulations. In March 2009, FAH issued a rule that businesses with 15 or more employees cannot discriminate against the homeless in employment. The regulation states that businesses must take steps to recruit homeless people as employees and must provide homeless employees with adequate shelter. No public hearings are held and the final rule was published in the Federal Register in June, 2009. In October, 2009 FAH inspectors arrive at Elroy's Tackle Shop in Eureka, California. Elroy employs 18 people, including clerks, cashiers, and fishing guides. The inspectors ask Elroy what steps he has taken to hire a homeless person. He tells the inspectors that he has taken no steps, they fine him $5000 and inform him that he had better take such steps soon. Elroy did not know FAH existed or that he had a duty to try to hire homeless people. He calls his attorney, Maia, and asks her what to do. She suggests that he file a complaint stating that FAH failed to follow proper procedures when it issued the rule. -Refer to Fact Pattern 15-1. Before Elroy can take his case to court, which of the following procedural requirements must he meet?

Once a business is subject to a regulation, an agency does not need a subpoena to obtain records relevant to following the regulation.

A(n) ____ is an authority of the government, other than a legislature or a court, created to administer a particular law.

The procedural requirement of ____ requires that the complaining party may seek judicial review only in courts that have power to hear the case.

The ____ requires that unless an exception applies, notice and prior consent are required before an agency can disclose information that concerns and identifies an individual.

As agency regulatory activities have expanded, agencies have relied more heavily on:

Administrative law judges are appointed by the president with the consent of the Senate for 10 year terms of office.

Businesses do not have to comply with subpoenas from regulatory agencies, they must come from a U.S. Attorney to be fully enforceable.

The procedural requirement of ____ requires that a party seeking judicial review must have sought relief through all possible agency appeal processes before seeking review by the courts.