JUDICIAL REVIEW AND ACCOUNTABILITY

Exhaustion

100

What is the exhaustion doctrine? 

A person challenging an agency decision must first pursue the agency's available remedies before seeking judicial review. 

200

What are the pros and cons of exhaustion?

Pros 

1. Judicial efficiency 

2. deference to agency 

3. Protects agency authority 

Cons 

1. the cost and burden for the individuals filing the case 

300

Do claims brought under the APA require exhaustion? 

 A litigant seeking judicial review of a final action under the APA need not exhaust available admin remedies unless such exhaustion is expressly required by statute or agency rule (Darby). 

400

What is the test to determine if the court should require exhaustion, when the statute is silent? 

In deciding whether exhaustion is required, the court should balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion (McCarthy v. Madigan). 

500

What are the three (we really only learned about two) exceptions to judicially created exhaustion? 

1. McCarthy test (undue prejudice, relief, and bias)

2. Darby test

3. Thunder Basin Doctrine

• Outside the agency’s expertise
• Claims considered “wholly collateral” to a statute’s review provision.
• Where a finding of preclusion could foreclose all meaningful judicial review.

Standard of Review

100

What is the default standard of review? 

A&C

200

In what context, is the substantial evidence standard of review applied?

Adjudicatory hearings/ trial-like proceedings 

300

What do you look at to determine if a decision/action was A&C?

THE RECORD! Overton Park

400

What is the definition of substantial evidence? 

• Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
• The substantiality of evidence must take into account whatever in the record fairly detracts from its weight

Universal Camera Corp

500

What factors do we consider to determine if there are holes in the record, and therefore, the agency acted arbitrarily? 

1. The agency relied on factors which Congress has not intended it to consider. 

2. The agency entirely failed to consider an important aspect of the problem. 

3. The agency offered an explanation for its decision that runs counter to the evidence before the agency, or 

4. The agency decision is so implausible that it could not be ascribed to a difference in view or the product of agency expertise

5. Legitimate reliance on the rule 

Standard of Review 2

100

What APA decision is generally unreviewable? 

Decision not to take an enforcement action (Heckler v. Chaney). 

200

Is the denial of rulemaking petitions reviewable? 

Yes, if the reasons for the denial can be tested. It is subject to A&C standard of review (MA v. EPA). The reason for denying also needs to be more than a conclusory statement (Coinbase). 

300

If an agency repeals a rule, what must it do and what is the standard of review? 

Notice and comment is applicable to rescinding a rule, and the decision to rescind is subject to A&C standard of review (State Farm)

400

Why was the rule in Business Roundtable struck down?

• Enabling statutes or executive orders may require agencies to weigh the cost and benefits when they are engaged in rulemaking. The rule can then be challenged under the A&C standard of review if the cost benefit analysis was not done properly.
• The law was struck down because the SEC did not do the cost benefit analysis adequately – costs not considered, benefits overstated.

WE SHOULD ASSUME WE NEED TO DO THIS ON OUR EXAM. 

500

If the agency is interpreting a rule, what test is applied? 

Hint: this answer will also include a list of factors 

The court will defer to the agencies interpretation if the regulation is generally ambiguous and the agency's reading is reasonable. 

Whether it is reasonable:

• Interpretation must be made by the agency/official position, rather than any ad hoc statement.
• Must in some way implicate its substantive expertise.
• Must reflect fair and considered judgment.

FOIA

100

What must your FOIA request include? 

What record you are requesting -- you do not need to supply a reason for why you want the information unless exemption 6 or 7(c) apply. 

200

What was the very narrow holding in Favish?

The Court held FOIA recognizes surviving family members’ right to personal privacy with respect to their close relative’s death-scene images.

300

How do you exhaust under FOIA?

• Must notify the person making the request within 20 days (You can treat the lack of response as a denial).
• Must respond to any appeal in 20 days (You can treat the lack of response as a denial). 
• Appeal to Federal District Court in the district in which the complainant resides, or has his principal place of business, or in the District of Columbia

400

What are the FOIA exemptions? 

• (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential.
• (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
• (7)(c) records of information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information could reasonable be expected to constitute an unwarranted invasion of personal privacy.

500

If an exemption applies, what test is applied, and what clarification was made in AILA? 

Balance the significant public interest (reason for the info) against the privacy interests 

- the info must advance the interest 

- privacy interest requires an individual and not categorical inquiry (AILA). 

Review

100

What is the level of scrutiny/test for both central hudson and Zauderer and which is harder to meet?

• Central Hudson: a substantial government interest that is directly and materially advanced by the regulation. The requirement must be narrowly tailored (alternatives) -- HARDER
• Zauderer: Substantial government interest and the requirement must be reasonable related to that interest.

200

What are the 6 ways to challenge a subpoena?

1. Whether the subpoena is within the statutory authority of the agency 

2. Whether the information is reasonably relevant to the inquiry – tendency to show that a fact of consequence in the case is more or less likely. 

3. Whether the demand is unreasonably burdensome. 

4. Privileged information is generally not subject to disclosure – parties must produce a privileged log. 

5. Recent cases have suggested there may be privacy interests in information held by third parties. 

6. The “act of production” doctrine can provide some 5A protection for individuals (Hubbel).

300

Provide an overview of the APA and its requirements

Notice in the federal registrar 

• A statement of the time, place, and nature of public rule making proceedings;
• Reference to the legal authority under which the rule is proposed; and
• Either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Agency must consider and respond to all significant comments. 

Interested persons have the right to petition. 

Publication of a rule should not be less than 30 before its effective date. 

Final rule adopted has to be a logical outgrowth.

400

Provide an overview of SEC whistleblower program

Award for original info, led to successful enforcement, sanctions exceeding 1 mil 

Original information is derived from the independent knowledge or analysis of a whistleblower. Generally, does not include compliance officers, discovery during investigations, accountants, attorneys 

Cannot prevent an employee from whistleblowing and cannot retaliate against a whistleblower.

500

Explain the process of approaching/how to tackle a first amendment problem?

1. Compelled speech? 

2. Central Hudson or Zauderer? Advertising, protecting consumers, preventing deception? 

3. If Zauderer applies is it factual, unconroversial, and not unduly burdensome 

4. Apply the actual test to determine if the govt met their burden