law school outline: administrative law

I. Types of administrative agencies
A. Categories
1. Executive Departments: Headed by members of President�s political party. Includes Department of Defense, Department of Commerce, Department of the Interior, etc.
2. Independent: Headed by multimember group, members of which can only be removed for cause (or when term expires). Includes FCC, FDIC, FTC, NLRB, SEC, etc.
3. Corporations: Not an agency at all, and not subject to APA. Includes Amtrak, Legal Services Corporation, etc.
B. Functions
1. Regulatory: Regulating private conduct. Mitigating market imperfections, i.e. inadequate consumer informaiton, insufficient competition and spillover costs (pollution, dangerous conditions).
2. Administer entitlement programs
3. Takes burden off of legislature.
II. History
A. Pre-1875: Didn�t really exist because nothing to administer
B. 1875-1900: States began regulation of railroad, grain elevators and other natural monopolies. In 1887, the Interstate Commerce Commission was created to regulate railroads (prices) due to corruption and monopolies.
C. Early 20th Century: Courts began to limit administrative power, requiring clear legislative mandate. Also required procedures to limit agency�s to scope of legislative mandate. Also required availability and facilitation of judicial review.
D. New Deal: Additional programs resulted in new and larger agencies, with broader delegations of power. Courts initially disfavored agencies, but backed down when press and congress cried, and Roosevelt tried to pack the court.
E. Post WWII: As the economy improved, the need for the New Deal programs reduced. Disputes between friends and foes of New Deal resulted in APA. Courts began stricter scrutiny.
F. 1962-1980: Feeling that agencies had failed in their missions for various reasons. Yet birth of many new agencies. Additional procedural safeguards (due process). Deregulation (airplanes, utilities, communication). Courts extended judicial review rights to those who didn�t previously have standing (public interest groups). Right of public to be involved in hearings developed.
G. Post-1980: Cost-benefit analysis favored to make sure decisions of agencies were good. Courts reducing their strictness of supervision.
III. Rulemaking (quasi-legislative authority)
A. Congress gives agencies the ability to make rules and regulations relevent to that agency; power is limited by scope of enabling statute.
1. Rule is an agency statement of future effect. Retroactivity is not allowed unless Congress specifically permits, because of due process requirement of notice.
2. Does not apply to military, foreign affairs, matters relating to agency management or personnel or to public property, loans, grants, public benefits or contracts. Reason: Rule is not restricting liberty of private persons. However, many agencies which are exempt have waived the exemption.
B. Source
1. Required by Congress. If the agency�s rule is required by statute, changing the rule will require changing the statute.
2. Staff recommendations
3. Political pressure, such as failure to respond to problem.
4. Executive Order
5. Lobbyists (may have restrictions or registration requirements)
6. Public policy advocacy
a) Try to talk with agency about proposal. Preferably the person who can write the rule and will advocate for you.
b) File rulemaking petitions for issuance, amendment or repeal of a rule.
c) Notice of denial within reasonable time.
d) Judicial review upon:
(1) Unreasonable delay after petition filed. Compel rulemaking proceedings in extremely rare circumstances. Preferential to remand to agency. [State system has 30 days to respond]
(2) Notice of denial of rulemaking petition. Ensure agency has adequately explained facts and policy relied on, and that the choice made has rational basis to facts based in the record.
(a) Standard is "arbitrary and capricious",
"abuse of discretion", or in contravention of statute.
(b) Judicial deference to agency decisions, but not blindness.
C. Formats
1. Informal
a) Publish Notice of Proposed Rulemaking in Federal Register or give actual notice.
(1) Exception for interpretive rules, general statements of policy; rules of agency organization, procedure and practice [doesn�t substantially alter rights of regulated parties, including the public]; or when for good cause notice is impracticable, unnecessary, contrary to public interest. Rules made pursuant to an exception must still be published in the Federal Register.
(2) Notice gives an opportunity for input, pro and con, and legitimizes the process amongst the regulated parties.
(3) Must give adequate (relatively unambiguous) notice to the parties to be affected by the final rule that their interests are at steak, otherwise no liability.
(4) Must include terms or substance of proposed rule or description of subjects and issues involved.
b) Give interested persons an opportunity to participate in the rulemaking through submission of written data and optional oral presentations.
(1) Agencies can fact-find by relying on sources other than affected parties, such as published literature.
(2) No time limit specified.
(3) Post-comment period ex parte contacts are prohibited only in the case of formal rulemaking, when expressly prohibited by law, or when rulemaking involves conflicting claims to a valuable privilege (property interest). Communications of "central relevance" must be included on the public record.
c) Incorporate rules adopted in a concise general statement of basis and purpose into the Federal Register.
(1) If not published in Federal Register (constructive notice), then rule not binding on unless actual notice on affected parties..
(2) Agency must have adequate reasons for adoption of regulation.
(3) Final rule must be a "logical outgrowth" of the proposed rule and comments and not dramatically alter the proposed rule. Otherwise, the parties affected by a final rule may not have been put on notice that their interests were at steak.
(4) Must include necessary disclosures, such as background data and methodology. Otherwise, courts will remand for new notice and comment period.
d) Federal government then collects rules and publishes them annually in the CFR.
2. Hybrid: Informal + some other requirements specified by Congress, Executive Order, or the agency, but "hearing" alone isn�t specific enough to trigger. These requirements are often not judicially enforced. The drawback of these increased procedural requirements is that they make the agency less efficient.
a) Environmental Impact Statements prior to significant effect on environment.
b) Regulatory Flexibility Analysis prior to significant economic impact on small businesses, organizations or governments, and consider less burdensome alternatives.
c) Paperwork Reduction Analysis prior to imposing reporting or recordkeeping requirement on persons. Office of Information and Regulatory Affairs (OIRA) must approve. Agency must publish control number on information requests.
d) EO 12291 & 12866: Cost/Benefit analysis required for "major" rules. OIRA responsible for compliance.
e) Unfunded Mandates Reform Act: Requires agency to evaluate least costly or burdensome alternatives when mandate would cost over $100M/yr on state or local government.
f) Negotiated Rulemaking Act: Agency publicly meets with parties prior to NPRM to draft the proposed rule. Provides a good way to get the parties to legitimize the rule (and therefore not sue), but nonparties don�t have legitimization. Final responsibility remains with agency, and the agency must look out for the interests of the public. Doesn�t work when no one is willing to budge.
3. Formal
a) Only used when agency mandate requires rules to be made "on the record" (or substantially similar) in addition to a hearing. No one really likes formal rulemaking - takes too much time and resources.
b) Procedure: Agency must provide notice (as in informal rulemaking, but no exceptions apply). Then agency must use same type of trial used for formal adjudications, rather than comment period and statement of basis and purpose.
D. Jucidial review, based on:
1. Constitution
2. Statute governing agencies conduct (enabling statute)
a) Statutory Interpretation (Chevron two-step)
(1) Is the intent of Congress clear in the statute (as opposed to ambiguous)? Look at the text (plain meaning) of the statute and the legislative history.
(2) If not, agency�s answer must be based on a permissible interpretation of the statute, with a deference to administrative interpretation.
b) Substantive Decisions
(1) Scope of review
(a) Informal Rulemaking: "Arbitrary, capricious, abuse of discretion" standard. Uphold if decision rationally based on consideration of relevant factors in the record without clear error of judgment. Decision need be only reasonable � not the best.
(b) Formal Rulemaking: "Substantial evidence" standard. Uphold if decision is reasonable, in light of record, even if court would have made different choice.
(2) Record to be reviewed: Information agency actually considered in making decision. Includes Federal Register notices (proposal and final), comments submitted, and any studies or data considered.
(3) Obligation of agency to explain decision: Agency must provide "adequate reasons" for adoption of rule. Lack of adequate reasons means action is arbitrary and capricious. Court usually remands.
3. Agency�s rules and regulations
4. Procedural statutes (Administrative Procedural Act)
5. Judicial decisions
E. California
1. State APA applies (almost always) when:
a) Agency intends "rule" (broad) to apply generally, rather than in a specific case; and
b) Rule implements, interprets or makes specific the law enforced or administered by the agency, or governs the agency�s procedure.
c) Exceptions
(1) Internal management.
(2) No implied exceptions.
(3) Orders on cases, advice letters to parties, nonbonding policy manual summarizing orders or advice letters.
2. Procedure
a) Public notice in Notice Register
(1) At least 45 days before rulemaking.
(2) Including text of proposed regulation with initial statement of reasons, analysis of unfounded mandates, business impact, reporting requirements, and no less burdensome alternative.
(3) Personal notice must be provided to people who request such notice in advance.
b) Comment period of at least 45 days, then agency must summarize and respond to the comments.
c) Agency may hold hearing (optional).
d) At this point, agency may decide:
(1) Not to adopt the regulation (in which case the process dies)
(2) Modify the proposed regulation (minor changes require 15 day notice, major changes require the process to start anew)
(3) Pass the record without changes to the OAL (including petitions received, data relied upon, and transcript of hearing).
e) OAL reviews regulation for necessity, consistency, clarity, rulemaking authority, reference to specific statute which is being affected, nonduplication, and compliance with APA.
(1) OAL also has review function and can force agencies to comply with procedure.
(2) Substantive problems require agency to start over. Procedural problems (i.e. no table of contents) get bounced back, but agency just has to cure � not start over.
f) Once adopted, a final statement of reasons must be filed with the Office, including an update of the information contained in initial statement of reasons, unfounded mandate report, no less burdensome alternative.
g) Regulations must be published in California Regulatory Code Supplement.
IV. Adjudication (hearings; quasi-judicatory)
A. Not all agencies have adjudication power.
B. Hearing
1. Type of hearing indicated by enabling statute, or if silent, then Chevron Two-Step, although some circuits have held that if statute is silent, informal defaults, and other circuits have held that if statute mentions "judicial review", then formal applies.
2. Formal
a) Notice of time, place and manner of hearing, legal authority for hearing, matters of fact and law asserted and at issue.
b) Intervention by similarly situated interested parties.
c) Opportunity for settlement, including voluntary ADR.
d) Hearing before ALJ, agency administrator or board.
(1) Representation by counsel, or representative (if permitted by agency).
(2) ALJ must permit cross-examination of evidence which he relies upon in making his decision.
(3) Subpoena power
(4) ALJ is an employee of agency but agency cannot take action against ALJ.
(5) Burden of proof on agency to preponderance of evidence.
(6) Agency can override ALJ�s decision on their own motion, and make a new decision from scratch.
(7) ALJ cannot declare a law unconstitutional � they have to follow the statute.
(8) Decision (order) must be based exclusively on the entire record (hearing transcript and documentary evidence), be supported by and in accordance with the reliable, probative and substantial evidence, and be issued promptly with brief statement of grounds for decision.
(a) Ex parte contacts (off the record)
(i) Applies to communications between interested persons (very, very broad, including agency staff who advocate on behalf of the agency) both inside and outside the agency.
(ii) Status reports OK
(iii) No communication on merits
(iv) Remedy is to put it on the record
(v) Decision isn�t void b/c of ex parte communication unless decision making process is irrevocably tainted
(a) Gravity of communication (including relevance to subject).
(b) Effect on ultimate decision
(c) Contents unknown to opposing parties
(d) Benefits of vacating the decision
(b) Force of law as if it had been made by a court.
(c) Applies existing rule or statute to a set of facts to determine what outcome is required by rule or statute.
(d) Often published in Federal Register
e) Appeal to judicial review
3. Informal: No procedures specified in APA, but can be specified by agency in CFR. If due process applies, some sort of hearing may be required. Ex parte contacts are ok, unless the hearing is an adversarial hearing, in which case all discussions must be on the record.
4. Due Process
a) Applies when
(1) State action;
(2) Individualized decisionmaking; and
(a) As opposed to policy-based deprivations affecting a class of individuals.
(b) Taxation: States have few restrictions, but subordinate bodies with delegated powers must give taxpayer an opportunity to be heard when very small number of people affected.
(3) Deprivation of property or liberty interest
(a) Property interest: Legitimate or statutory claim of entitlement requires hearing before termination. (Goldberg v. Kelly)
(i) Welfare benefits
(ii) But not employment, without specified term.
(b) Liberty interest
(i) Disability that forecloses specific employment opportunities.
(a) Revocation or denial of a professional license
(b) False stigmatization of a person such that they can�t get another job. Remedy is right to refuse the charge.
(ii) Deprivation of a right which has been affirmatively granted by the government.
(4) Process required
(a) Factors (Matthews v. Eldridge)
(i) Significance of private interest
(ii) Risk of erroneous deprivation
(iii) Probable value of additional process
(iv) Government�s interest, including financial and administrative costs
(v) [Exigent circumstances]
(b) Welfare recipient has right to notice and full hearing before termination due to exigency of circumstance, but SSI/SSDI recipient does not have right to hearing until after.
(c) Student suspended for discipline has right to notice of charges, explanation of evidence, and right to present his own evidence at informal hearing. Academic performance suspension doesn�t require a hearing � just notice and review by school. No right to counsel present.
(d) Investigatory panel can be the same as the adjudicatory panel so long as they aren�t prejudiced by the investigation.
(i) APA requires that the investigatory staff not have ex parte contacts with the adjudicatory people. However, the board can both investigate and adjudicate.
C. Judicial review
1. Scope
a) Compel agency action unlawfully withheld or unreasonably delayed
b) Set aside agency action found by substantial inquiry to be:
(1) Arbitrary, capricious (explain factors, procedure, how they arrived at conclusion; in line with precedent), abuse of discretion, otherwise not in accordance with the law, or failed to meet statutory, procedural or constitutional requirements.
(2) Unsupported by substantial evidence (formal hearings only)
(3) Unwarranted by the facts to the extent that the facts are subject to trial de novo (adjudicatory action when agency fact finding procedures are inadequate � Supreme Court has basically eliminated this).
2. Credibility
a) Deference given to ALJ�s findings based on direct observations of demeanor, so long as not arbitrary or capricious.
b) Deference given to agency�s findings based on credibility inferred from factual testimony (e.g. lies).
c) If the agency overrules the ALJ, they must articulate a sound reason for disagreeing with ALJ�s assessment of credibility.
D. California
1. Local
a) Local procedures
b) Due process
2. State
a) Enabling statute dictates which procedures apply.
b) Informal
(1) Adjudicatory bill of rights
(2) Agency�s enabling statute
(3) Due process
c) Formal
(1) Enabling statute
(2) APA formal hearing requirements
(3) Adjudicatory bill of rights
(4) Proposed decision
(5) Appeal to board
3. Adjudicatory bill of rights
a) Notice
b) Opportunity to be heard
c) Make available governing procedures and if formal APA applies
d) Public hearing
e) Adjudicatory function separate from investigation and decision making
f) Proceeding officer disqualified if bias or prejudice
g) Written decision on the record, including statement of factual and legal basis of decision
h) Can�t rely on decision as precident unless designated as such
i) Ex-parte contacts restricted
j) Language assistance
4. Judicial review standard
a) Board decisions must render findings to support their rulings.
b) Standard where fundamental vested right (property or liberty interest): Court can exercise independent judgment and weigh evidence de novo.
c) Standard in all other cases: Whether, in light of the whole record, substantial evidence supports the findings of the board and whether the findings support the board�s actions ("bridging the analytical gap").
E. As Rulemaking
1. Creation of rules should be accomplished through rulemaking procedures due to increased public participation, but agencies have discretion to create rules through adjudications (it�s quicker). Factors in determining if the new rule can be applied to the party in the case (Chenery):
a) Agency may not be able to draft a general rule, due to specializaton of the problems.
b) Agency may not have foreseen the problem.
c) Equitable balance between mischief of party vs. harm to party.
2. Applying a new rule on past behavior (retroactive): Use Chenery balance test.
3. Applying a new rule on new behavior: Supreme Court has said that a rule created in adjudication can only be applied in case of first impression � not subsequent cases (therefore there really isn�t adjudicative rulemaking), although the court was not a majority.
4. California: Agency must designate decision as precedence for it to apply to TPs.
V. Policy making
A. Creation
1. No notice and comment required, although most states are contra, and California requires the full rulemaking process.
2. Publication in Federal Register required
3. Reliance
a) Rules are nonbonding on parties or agency, but most people follow them, because they indicate the agency�s intentions, and expensive to fight. However, the agency can disown a nonlegislative rule without notice, therefore reliance may cause problems.
b) Government is generally immune from estoppel claims, unless relying party had a right to look to source for guidance, and guidance deprived party of fair warning (traditional notions of fairness) or due process (must have liberty/property interest). Cannot claim estoppel when there is a statute which proscribes the conduct.
4. If the policy is actually a "rule" (quite broad), and the APA procedures weren�t followed, the rule is invalid.
B. Interpretative rules
1. Advise the public of how the agency interprets the statutes and rules which it administers. Can be worded as a binding duty, even though technically it isn�t.
2. How an agency interprets its own regulations is given a high level of deference unless plainly wrong. However, if a party acting in good faith is unable to identify with ascertainable certainty the standards with which the agency intends the party to conform, then the party lacks notice, and cannot be liable.
3. Can be used in enforcement action.
4. Factors in determining if actually rulemaking, and therefore subject to APA rulemaking procedures:
a) When an agency has no rulemaking power, all rules issued are interpretive.
b) Agency�s characterization of actions is indicative, but not dispositive.
c) Level of duty created
(1) Nonrulemaking: Clarification; opinion about meaning of statute or regulation.
(2) Rulemaking: Creation of entirely new law, right, or duty.
C. General statements of policy
1. Advise the public on how the agency proposes to exercise a discretionary power. Can�t be worded in binding language.
2. Rulemaking if agency imposes a new duty on party or agency, versus merely announcing intention to impose new duty at some future time.
VI. Investigations
A. Subpoena power
B. Congress can authorize agency to compel regulated entities to file periodic or special reports with agency.
C. Inspections
VII. Judicial review
A. Usually done by US Court of Appeals for the D.C. Circuit.
B. Not prohibited in agency�s mandate (unusual)
C. Reviewability
1. Scope: Only that which p has claimed before the administrative agency.
2. Standing
a) Summary: Has the plaintiff suffered an injury (or about to suffer) caused by the alleged illegal action, and which a favorable court decision would remedy.
b) Injury-in-fact
(1) Direct
(a) Environment: p must use area affected � not an area in the vicinity, and/or concrete plans to do so in the future.
(b) Not a generalized grievance suffered equally by large numbers of people.
(c) Not asserting rights of third-person.
(d) Association
(i) One of its members would have standing
(ii) Lawsuit relates to purposes of organization
(iii) Neither claim nor relief requires participation of individual members
(2) Imminent
(3) Legally protected interest. [Procedural injury requires concrete interest.]
c) Causation and redressability
(1) Was the injury the result of the government action?
(2) Could a favorable court decision remedy the injury?
3. Grant of jurisdiction
4. Cause of action
a) Statute granting judicially enforceable right.
(1) "Citizen suit" provovisions (granting anyone affected by the violation to sue) can be unconstitutionally overbroad in that they don�t require injury-in-fact.
b) APA �702 grants COA to a person suffering either
(1) A legal wrong because of agency action; or
(2) Adversely affected by agency within the meaning of relevant statute. p must be within the "zone of interests" sought to be protected by the violated (and other very closely connected relevant) statute(s).
(a) Presumption in favor of allowing judicial review.
(b) If p is not the subject of the contested regulatory action, p �s interests must be within the purposes of the statute such that it can be reasonably assumed that Congress intended to permit the suit, or when violation of due process would result.
(3) Restrictions
(a) Action which is statutorily excluded or limited from review (preclusion statutes are interpreted restrictively): Suit barred only when �fairly discernible� that Congress did not intend for p �s suit.
(i) Express language, including omissions.
(ii) Statutory structure
(iii) Objectives
(iv) Legislative history: Intent must be particularly clear in the case of precluding judicial review of constitutional claims.
(v) Nature of administrative action
(b) Action which is (1) statutorily committed to agency discretion and (2) where no meaningful standard exists in the law.
(i) [But an abuse of discretion can be reviewed and set aside per APA �706]
(ii) Meaningful standard: Factors or objectives specified in the statute by which to judge agency�s action.
(iii) Rebuttable presumption that agency has unreviewable discretion in deciding to make or not make enforcement [and possibly other] actions. Rebut by showing meaningful statutory standard.
(iv) Constitutional claims are not precluded without a "hightened showing" that Congress clearly intends the claim to be unreviewable. Even that would likely be unconstitutional.
(c) Agency action must be final (unless statute provides otherwise)
(i) An action must have been taken by the agency.
(ii) Agency must have completed its decision making process and will have an effect on the parties.
(iii) Decision on the merits.
(iv) Impact suffiently direct and immediate; direct effect on day-to-day business; not a ruling of subordinate official or tentative, procedural, preliminary or intermediate ruling.
(v) Administrative inaction is an action only if it has the same impact on rights of parties as a denial of relief.
(d) p must have exhausted agency remedies
(i) Exceptions
(a) If exhausting the remedies would preclude p from judicial review
(b) If agency cannot provide adequate remedy.
(c) If not required by statute or agency rule.
(ii) Balance interest of individual in promote judicial forum vs. institutional interests favoring exhaustion (efficiency).
(iii) NB: It may be risky not to simultaneously file in federal court, due to statute of limitations.
(e) Action must be ripe for review
(i) Generally limits p �s ability to obtain pre-enforcement or pre-application judicial review.
(ii) Not ripe when agency decision is not concrete, doesn�t affect day-to-day affairs, is informal, or tentative.
(iii) Balance fitness of issues for judicial decision vs hardship to parties of withholding court consideration.
D. Practicalities
1. Alternatives to litigation?
2. Rule vulnerable to challenge?
3. What results can be obtained?
a) Agency or court can stay agency actions pending judicial review.
4. Cost/benefit analysis. Is a suit brought in order to delay a rule ethical (zealously represent client vs. frivolous litigation and Rule 11)?
a) Cost determination: Size of regulatory record on a given issue, and whether further appeals will be necessary.
VIII. Delegation
A. Congress� power
1. Source for delegation: "Necessary and proper" clause.
2. Nondelegation doctrine: The three branches of the government have constitutionally separate functions, and must be kept separate.
3. Supreme court has almost always upheld delegation of powers.
a) Formal strict-interpretation approach: Is the delegated power being exercised in by inappropriate branch.
b) Functional approach: Framers contemplated some commingling of the branches. Delegation must not infringe upon or jeopardize another branch�s core functions.
c) Intelligible principle test: The delegation must be accompanied by intelligible principles which limit the delegated power and give standards and direction as to what discretion the agency has.
B. Judicial power
1. Article III: Establishes judicial power in Supreme Court and inferior courts created by Congress.
a) Congress can severely limit the judicial review available for decisions made by non-Article III judges, such as ALJ�s.
b) Public rights: When the government is being sued, Congress may assign to an ALJ and limit judicial review.
c) Private rights (and practically speaking, most public rights): Article III does apply and judicial review is available.
(1) When agency has been delegated power to adjudicate private rights, and both parties agree to let the agency adjudicate their claim, Congress may limit judicial review, and the parties are stuck with the judgment of the agency.
(a) Based on principles of waiver and consent of the parties.
(b) Factor in deciding constitutionality is if the agency�s power overreaches into the powers of the Article III courts, thus threatening separation of powers.
2. 7th Amendment: Right to jury trial for common law disputes valued over $20. "Common law disputes" really only encompasses private rights. Public right trials usually have no jury trial because they usually aren�t based in common law, and are usually statutory challenges. Exception: When Congress requires judicial adjudication of statutory public rights which were traditionally a common law claim (in 1791), a jury trial may be required.
C. Legislative Veto
1. Constitution requires that all legislation be passed by both Houses and presented to the President. Actions which Congress takes which are essentially legislative in purpose (altering legal rights, duties and relations of persons outside the legislative branch) must be passed by both branches and presented to the President.
2. Congress was requiring agencies to submit proposed rulemaking to the House before the rule became effective, giving Congress the opportunity to affirmatively restrict or stop the rule. This was the legislative veto. SC held that this is unconstitutional, and that once Congress delegates its authority, Congress must abide by the delegation.
3. As work-arounds
a) The House now uses "Correction Day" to fast-track legislation (which is presented to the President) to alter agency "mistakes".
b) As a result of the Contract With America, Congress can also write in the agency statute in a legislative veto requiring agency to submit a rule to Congress before it will become effective, and Congress has 60 days to fast-track a joint resolution of disapproval for the President�s signature. Exception if economic impact < $100M, and when President certifies immediate implementation necessary for health or safety emergency. This satisfies the Constitutional requirements of bicameralism and presentment.
D. Separation of powers
1. One branch cannot exercise control or ultimate authority over another branch. One branch can appoint an official into another branch, but only with balancing test, and not when "incongruous".
2. President has the power to nominate and appoint (with Senate consent) Officers of the US.
a) Officers: Have significant authority pursuant to federal law, and are often engaging in administrative, adjudicative, legislative, or enforcement functions.
b) President has the power to remove inferior officers, but Officers can be removed by impeachment and conviction only. If Congress retains removal power of an inferior officer, that officer cannot work outside of the legislative branch.
3. Congress appoints inferior officers, or delegates to the President, departments, or Judiciary.
a) Inferior officers
(1) Do the types of things that Congress itself could do, but not things that Congress is unable to do (i.e. executive or judicial functions).
(2) Often have an investigative or informative function.
(3) Removable by higher executive branch official.
(4) Duties are limited in scope, jurisdiction, and tenure.
b) Congress can fix the period of appointment and forbid removal except for cause, but cannot itself remove appointments.
IX. Freedom Of Information Act (APA �552)
A. Requires disclosure of records in agency control and possession
1. Adjudicatory decisions cannot be used as precident unless available for disclosure or actual knowledge.
2. Disclosure must occur within 20 days (30 at latest) after request, although almost none of the agencies are able to comply with this.
3. Factors in determining if the record is an agency record:
a) Agency created or obtains; and
b) Agency in control of materials at time of request.
4. Personal vs. agency
a) Purpose
b) Actual use
c) Used by other employees
d) Author and other employees relied on it for business purposes
e) Examples
(1) Telephone message slips: Not a record.
(2) Daily agendas: Yes a record.
(3) Appointment calendars: Not a record.
B. Upon request containing reasonable description, in accordance with published rules re: time, place, fees and procedure.
1. Request should reference the FOIA
2. No showing of need required.
3. Commercial purposes: Fees can be charged for search, duplication and review.
4. Noncommercial use by news media, educational, or scientific organization: Duplicating fee only.
5. None of the above: Search and duplication fees only.
6. If disclosure is strongly in the public interest, no fees.
7. No fee for first two hours of search and first 100 pages of duplication whenever it�s for noncommercial use.
C. Exceptions (deletion if reasonably segregable)
1. Purpose: Encourage voluntary disclosure to the government by assuring the information will remain confidential, thus allowing the government to use the information.
2. Classified information
a) Glomar denial: Agency can state it "could neither confirm nor deny the existence of any such records" if denying the request would confirm the existence of records, and that itself would disclose classified information.
b) Test for confidentiality of information required to be disclosed:
(1) Disclosure would impair government�s ability to obtain the information in the future [seems to contradict "required" disclosure]; or
(2) Disclosure would cause substantial harm to competitive position of person from whom information was obtained.
c) Test for confidentiality of information voluntarily disclosed: If the provider would not customarily make the information available to the public.
3. Internal agency personnel rules and practices
4. Statutorily exempt
5. Private commercial or trade secret information
a) Upon request for confidential commercial information, agency must give information provider (the company) notice of the request, and a reasonable period of time to object to disclosure, including grounds for objection. Information provider may bring a "reverse-FOIA" suit and request an injunction prohibiting the agency from disclosing the information.
b) Information must be a trade secret, commercial information, or financial information; which was obtained from a person (not government generated) and privileged or confidential.
6. Inter- or intra-agency privileged communications
a) Executive privileged material
b) Attorney work product
c) Attorney-client confidential communications
d) Confidential commercial information of the government itself
e) Factual statements made to air crash investigators.
7. Personnel, medical or similar files if unwarranted invasion of privacy, such as detailed records on an identifiable individual (not corporations or businesses).
8. Information compiled for law enforcement purposes, if:
a) Interfere with enforcement proceedings
b) Deprive person of fair trial
c) Unwarranted invasion of privacy
d) Disclose identity of confidential source
e) Disclose confidential techniques and procedures
f) Endanger a life
9. Reports regulating financial institutions
10. Geological information re: wells (oil wells)
D. Judicial review
1. If agency fails to comply, agency has burden of proof. Court can order attorney�s fees and costs to prevailing p .
2. Discovery: Agency must provide court and p with index of withheld records, including description of document and justification of grounds for withholding. (Vaughn index)
E. State version, which is extremely similar to the federal law: California Public Records Act. Fee is limited to direct cost of duplication

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