SlideShare une entreprise Scribd logo
1  sur  19
Télécharger pour lire hors ligne
Agency Discretion
What is Discretion?
• Discretion is the power to make a choice among
different actions or alternatives.
• Agency discretion is necessary because laws may
not be detailed or specific enough to apply to an
individual action.
• Agencies use discretion primarily for informal
agency processes such as
• Processing claims
• Informal hearings
• Negotiations
What are dangers of agencydiscretion?
• If there is too much discretion, an agency
may become arbitrary and dictatorial
• If there is too little discretion, an agency may
become ineffective in in the daily decision-
making.
Safeguards against agency
discretion
• Constitutional protections
• Individual’s basic right to due process, fairness, and
search warrants
• Statutes
• Enabling act that specified the agency’s mission that is
limited to expertise.
• Politics
• Political pressure from politician that want to ensure
reelection.
Informal Actions
• How does discretion affect informal agency
decisions?
• The agency’s adaptation to chronological, societal, and
technological changes in areas delegated to the agency
in the enabling statute; and
• The agency’s choice of which process to use to adapt
to these changes that may become problems needing
agency solutions.
AdministrativeAgency and Discretion
A complaint is filed
Accept complaint
Agency Response
Options
Reject complaint
What are the facts? Are the facts documented?
Formal Actions
• Are agencies required to create written reports
of formal proceedings?
• This is part of agency discretion, especially if there is
not a statute to require such a procedure. Decisions
made by agency heads.
• Uniform Administrative Procedures Act – requires
administrative law judges to write a recommendation
for a final decision
Past Practice and Discretion
• Repeated decision-making creates past
practice, which allows for predictability and
regularity in similar future cases.
• Adhering to past practices also avoids
duplication of time and effort.
• Past practices also is a basis for creating of
agency standards and rules.
Past Practice and Discretion
• On the other hand, discretion allows agencies to
conform to acceptable conduct today that may
not have been considered acceptable previously
• If an agency decides not to adhere to past
practices, its decision should be reasonable and
based on a rational process.
• If not, the discretionary power will be
questioned and brought into court actions and
placed under scrutiny, which equals increased
judicial review.
Greater Boston Television Corp. v.
FCC, 444 F2d 841 (D.C. Cir. 1970)
• Deals with a change in agency procedures.
• FCC established new procedures for license
renewals from individual approach to a
comparative approach
• Court upheld the agency’s power of discretion.
An agency’s view of what is in the public interest
may change, either with or without a change in
circumstances. Agency discretion should be
reasonable and based on a rational process, if
not it can by place under scrutiny of judicial
review.
Abuse of Discretionary Power
• If an agency has abused its discretionary power, its
action are reviewable.
• Each agency should have an appeals process to rectify
concerns.
• Pursuant to the Administrative Procedures Act (APA), 5
USC §557(c)(1)(2) and (3):
• (c) Before a … decisions on agency review of the decision… the
parties are entitled to a reasonable opportunity to submit for
consideration…
(1) proposed findings and conclusions; or
(2) exceptions to the decisions…
(3) supporting reasons for the exceptions or proposed
findings or conclusions.
Abuse of Discretionary Power
• Once the agency appeal process has been
exhausted, an individual may file a petition with
the appropriate court.
• Action should depict
• What was the abuse?
• What law are you citing?
What Constitutes Abuse?
• The APA (at §706) states:
To the extent necessary to a decision and when
presented, the reviewing court shall decide all
relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or
applicability of the terms of an agency action. The
reviewing court shall –
(2) hold unlawful and set aside agency actions,
findings, and conclusions found to be –
(A) arbitrary, capricious, and abuse of
discretion, or otherwise not in accordance with law;
What Constitutes Abuse?
• Courts review abuse in accordance with the
Constitution, statutes, and cases.
• The court may decide to either:
• Remand (send back) to the agency
• Substitute its own decision in place of the agency
decision
Appeals within an Agency
• When an individual makes an appeal or request
for review within an agency, different agency
personnel than the one who rejected the claim
will review the action.
• Claims are usually heard by an administrative law
judge (ALJ)
• The ALJ will do one of two things:
• Review the evidence and give a decision
• Set up a hearing, possible request additional evidence.
At this point the claimant may appeal to the courts.
Court Review
• After a claimant has exhausted all processes of
review within the agency, the claimant may seek
judicial review, which is court examination of the
agency decision
• Agency rules or statutes will govern judicial
jurisdiction
• If a petition for court is accepted, the court will
review the record of the case, the evidence
presented to the agency, and the reasons for the
agency decision.
Court Review
• Issues not raised during agency decision may not
be raised at trial. Any new evidence will be sent
to the agency for review.
• When the court decision is made, the court
often remands the decision to the agency to
implement the court recommendations.
Cases Uphold Discretion
• Citizens to Preserve Overton Park, Inc. v. Volpe
• Court looked to whether the Secretary acted outside
of his scope of authority and whether his actions
followed the necessary procedural requirements
• Case was remanded back to District Court to make
these determinations.
• Heckler v. Chaney
• Whether agency’s decision not to act subject to
judicial review
• Ct held decision is not subject to judicial review under
the APA
Next Week – September 29, 2011
• Read Chapter 4
• Pay close attention to cases!!!
• Review TN Sunshine Law

Contenu connexe

Tendances (20)

Separation of powers
Separation of powersSeparation of powers
Separation of powers
 
JURISPRUDENCE
JURISPRUDENCEJURISPRUDENCE
JURISPRUDENCE
 
Theory of Seperation of Powers
Theory of Seperation of PowersTheory of Seperation of Powers
Theory of Seperation of Powers
 
Kelson pure theory
Kelson pure theoryKelson pure theory
Kelson pure theory
 
Principles Of Natural Justice In The Light Of Administrative Law
Principles Of Natural Justice In The Light Of Administrative LawPrinciples Of Natural Justice In The Light Of Administrative Law
Principles Of Natural Justice In The Light Of Administrative Law
 
UNDERSTANDING THE POLITICAL QUESTION DOCTRINE (P.Q.D)
UNDERSTANDING THE POLITICAL QUESTION DOCTRINE (P.Q.D)UNDERSTANDING THE POLITICAL QUESTION DOCTRINE (P.Q.D)
UNDERSTANDING THE POLITICAL QUESTION DOCTRINE (P.Q.D)
 
Judicial review
Judicial reviewJudicial review
Judicial review
 
Administrative Law : Concept, Theories, Development
Administrative Law : Concept, Theories, DevelopmentAdministrative Law : Concept, Theories, Development
Administrative Law : Concept, Theories, Development
 
Administrative law
Administrative lawAdministrative law
Administrative law
 
Pure theory of law
Pure theory of lawPure theory of law
Pure theory of law
 
School jurisprudence
School jurisprudenceSchool jurisprudence
School jurisprudence
 
Law_Bentham_Austin
Law_Bentham_AustinLaw_Bentham_Austin
Law_Bentham_Austin
 
Admin law powerpoint
Admin law powerpointAdmin law powerpoint
Admin law powerpoint
 
Collegium System of India
Collegium System of IndiaCollegium System of India
Collegium System of India
 
Administrative law
Administrative lawAdministrative law
Administrative law
 
Nemo iudex in causa sua
Nemo iudex in causa suaNemo iudex in causa sua
Nemo iudex in causa sua
 
Administrative law pratik
Administrative law pratikAdministrative law pratik
Administrative law pratik
 
Legislation and delegated legislation
Legislation and delegated legislationLegislation and delegated legislation
Legislation and delegated legislation
 
Judiciary of Nepal part 1
Judiciary of Nepal part 1 Judiciary of Nepal part 1
Judiciary of Nepal part 1
 
rule of law
rule of lawrule of law
rule of law
 

En vedette

Administrative discretion
Administrative discretionAdministrative discretion
Administrative discretionabhiruchi jain
 
Net essentials6e ch12
Net essentials6e ch12Net essentials6e ch12
Net essentials6e ch12APSU
 
Chapter 6.investigations and information planning
Chapter 6.investigations and information planningChapter 6.investigations and information planning
Chapter 6.investigations and information planningAPSU
 
Chapter 7.informal proceedings
Chapter 7.informal proceedingsChapter 7.informal proceedings
Chapter 7.informal proceedingsAPSU
 
Chapter 4 pp
Chapter 4 ppChapter 4 pp
Chapter 4 ppAPSU
 
Judicial review to discretionary power
Judicial review to discretionary powerJudicial review to discretionary power
Judicial review to discretionary powerFAROUQ
 
Chapter 8.administrative agency hearings
Chapter 8.administrative agency hearingsChapter 8.administrative agency hearings
Chapter 8.administrative agency hearingsAPSU
 
Chapter 5.agency rules and regulations(1)
Chapter 5.agency rules and regulations(1)Chapter 5.agency rules and regulations(1)
Chapter 5.agency rules and regulations(1)APSU
 
Net essentials6e ch5
Net essentials6e ch5Net essentials6e ch5
Net essentials6e ch5APSU
 
Module 2 patient transfers
Module 2 patient transfersModule 2 patient transfers
Module 2 patient transfersAPSU
 
Net essentials6e ch1
Net essentials6e ch1Net essentials6e ch1
Net essentials6e ch1APSU
 
Judicial review a power point presentation (1)
Judicial review   a power point presentation (1)Judicial review   a power point presentation (1)
Judicial review a power point presentation (1)awasalam
 
Administrative law complete_show3
Administrative law complete_show3Administrative law complete_show3
Administrative law complete_show3jzahrndt
 
Administrative law
Administrative lawAdministrative law
Administrative lawAjilal
 

En vedette (20)

Administrative discretion
Administrative discretionAdministrative discretion
Administrative discretion
 
Net essentials6e ch12
Net essentials6e ch12Net essentials6e ch12
Net essentials6e ch12
 
Chapter 6.investigations and information planning
Chapter 6.investigations and information planningChapter 6.investigations and information planning
Chapter 6.investigations and information planning
 
Chapter 7.informal proceedings
Chapter 7.informal proceedingsChapter 7.informal proceedings
Chapter 7.informal proceedings
 
Chapter 4 pp
Chapter 4 ppChapter 4 pp
Chapter 4 pp
 
Judicial review to discretionary power
Judicial review to discretionary powerJudicial review to discretionary power
Judicial review to discretionary power
 
No unfettered administrative Discretion
No unfettered administrative DiscretionNo unfettered administrative Discretion
No unfettered administrative Discretion
 
Chapter 8.administrative agency hearings
Chapter 8.administrative agency hearingsChapter 8.administrative agency hearings
Chapter 8.administrative agency hearings
 
Chapter 5.agency rules and regulations(1)
Chapter 5.agency rules and regulations(1)Chapter 5.agency rules and regulations(1)
Chapter 5.agency rules and regulations(1)
 
Chapter 9
Chapter 9Chapter 9
Chapter 9
 
Net essentials6e ch5
Net essentials6e ch5Net essentials6e ch5
Net essentials6e ch5
 
Module 2 patient transfers
Module 2 patient transfersModule 2 patient transfers
Module 2 patient transfers
 
Net essentials6e ch1
Net essentials6e ch1Net essentials6e ch1
Net essentials6e ch1
 
Administrative Law
Administrative LawAdministrative Law
Administrative Law
 
Judicial review a power point presentation (1)
Judicial review   a power point presentation (1)Judicial review   a power point presentation (1)
Judicial review a power point presentation (1)
 
Burden of proof
Burden of proofBurden of proof
Burden of proof
 
Administrative law complete_show3
Administrative law complete_show3Administrative law complete_show3
Administrative law complete_show3
 
Burden of proof
Burden of proofBurden of proof
Burden of proof
 
Administrative law
Administrative lawAdministrative law
Administrative law
 
Formal & informal organisational
Formal & informal organisationalFormal & informal organisational
Formal & informal organisational
 

Similaire à Chapter 3.agency discretion

Chapter 16 challenging_decisions_week_12
Chapter 16 challenging_decisions_week_12Chapter 16 challenging_decisions_week_12
Chapter 16 challenging_decisions_week_12Nyi Maw
 
The Intersection of Criminal and Administrative Law
The Intersection of Criminal and Administrative LawThe Intersection of Criminal and Administrative Law
The Intersection of Criminal and Administrative LawJustin Hein
 
Judicial control of the bureaucracy
Judicial control of the bureaucracyJudicial control of the bureaucracy
Judicial control of the bureaucracytaratoot
 
How Administrative Law is Affecting Your Case - Whether You Know it or Not!
How Administrative Law is Affecting Your Case - Whether You Know it or Not!How Administrative Law is Affecting Your Case - Whether You Know it or Not!
How Administrative Law is Affecting Your Case - Whether You Know it or Not!Justin Hein
 
ADMINISTRATIVE LAW & ADMINISTRATIVE AGENCIES
ADMINISTRATIVE LAW  & ADMINISTRATIVE AGENCIESADMINISTRATIVE LAW  & ADMINISTRATIVE AGENCIES
ADMINISTRATIVE LAW & ADMINISTRATIVE AGENCIESArnold Rodriguez
 
Between a Rock and a Hard Place - When Criminal Law Overlaps Administrative Law
Between a Rock and a Hard Place - When Criminal Law Overlaps Administrative LawBetween a Rock and a Hard Place - When Criminal Law Overlaps Administrative Law
Between a Rock and a Hard Place - When Criminal Law Overlaps Administrative LawJustin Hein
 
Chapter 9.access to judicial review
Chapter 9.access to judicial reviewChapter 9.access to judicial review
Chapter 9.access to judicial reviewAPSU
 
Adjudication
AdjudicationAdjudication
Adjudicationtaratoot
 
Rulemaking
RulemakingRulemaking
Rulemakingtaratoot
 
Chapter 8 9_advocacy_abct_week_8
Chapter 8 9_advocacy_abct_week_8Chapter 8 9_advocacy_abct_week_8
Chapter 8 9_advocacy_abct_week_8Nyi Maw
 
Between a Rock and a Hard Place – When Criminal Law Overlaps Administrative Law
Between a Rock and a Hard Place – When Criminal Law Overlaps Administrative LawBetween a Rock and a Hard Place – When Criminal Law Overlaps Administrative Law
Between a Rock and a Hard Place – When Criminal Law Overlaps Administrative LawJustin Hein
 
New Judge Mentor Program Presentation
New Judge Mentor Program PresentationNew Judge Mentor Program Presentation
New Judge Mentor Program PresentationWASCJA
 
Remedial Law Rule 65 estopia updated
 Remedial Law Rule 65 estopia updated Remedial Law Rule 65 estopia updated
Remedial Law Rule 65 estopia updatedLawrence Villamar
 
Remedial Law Rule 65 estopia
Remedial Law Rule 65 estopia Remedial Law Rule 65 estopia
Remedial Law Rule 65 estopia Lawrence Villamar
 
Rules on Civil Procedure Rule 65 Certiorari
Rules on Civil Procedure Rule 65 CertiorariRules on Civil Procedure Rule 65 Certiorari
Rules on Civil Procedure Rule 65 CertiorariLawrence Villamar
 
The Intersection of Criminal and Administrative Law
The Intersection of Criminal and Administrative LawThe Intersection of Criminal and Administrative Law
The Intersection of Criminal and Administrative LawJustin Hein
 
U402part a theadversarysystem
U402part a theadversarysystemU402part a theadversarysystem
U402part a theadversarysystemCrystal Delosa
 
What is Judicial Review Sprott Lab Rels June 16 2012
What is Judicial Review Sprott Lab Rels June 16 2012What is Judicial Review Sprott Lab Rels June 16 2012
What is Judicial Review Sprott Lab Rels June 16 2012lgarib
 
The Anatomy of a Commercial Arbitration - An Arbitration from Start to Finish
The Anatomy of a Commercial Arbitration - An Arbitration from Start to FinishThe Anatomy of a Commercial Arbitration - An Arbitration from Start to Finish
The Anatomy of a Commercial Arbitration - An Arbitration from Start to FinishNow Dentons
 
NYC Airbnb Laws & Admin Hearing Crash Course with Attorney Brandon McKenzie
NYC Airbnb Laws & Admin Hearing Crash Course with Attorney Brandon McKenzieNYC Airbnb Laws & Admin Hearing Crash Course with Attorney Brandon McKenzie
NYC Airbnb Laws & Admin Hearing Crash Course with Attorney Brandon McKenzieMichael McKay
 

Similaire à Chapter 3.agency discretion (20)

Chapter 16 challenging_decisions_week_12
Chapter 16 challenging_decisions_week_12Chapter 16 challenging_decisions_week_12
Chapter 16 challenging_decisions_week_12
 
The Intersection of Criminal and Administrative Law
The Intersection of Criminal and Administrative LawThe Intersection of Criminal and Administrative Law
The Intersection of Criminal and Administrative Law
 
Judicial control of the bureaucracy
Judicial control of the bureaucracyJudicial control of the bureaucracy
Judicial control of the bureaucracy
 
How Administrative Law is Affecting Your Case - Whether You Know it or Not!
How Administrative Law is Affecting Your Case - Whether You Know it or Not!How Administrative Law is Affecting Your Case - Whether You Know it or Not!
How Administrative Law is Affecting Your Case - Whether You Know it or Not!
 
ADMINISTRATIVE LAW & ADMINISTRATIVE AGENCIES
ADMINISTRATIVE LAW  & ADMINISTRATIVE AGENCIESADMINISTRATIVE LAW  & ADMINISTRATIVE AGENCIES
ADMINISTRATIVE LAW & ADMINISTRATIVE AGENCIES
 
Between a Rock and a Hard Place - When Criminal Law Overlaps Administrative Law
Between a Rock and a Hard Place - When Criminal Law Overlaps Administrative LawBetween a Rock and a Hard Place - When Criminal Law Overlaps Administrative Law
Between a Rock and a Hard Place - When Criminal Law Overlaps Administrative Law
 
Chapter 9.access to judicial review
Chapter 9.access to judicial reviewChapter 9.access to judicial review
Chapter 9.access to judicial review
 
Adjudication
AdjudicationAdjudication
Adjudication
 
Rulemaking
RulemakingRulemaking
Rulemaking
 
Chapter 8 9_advocacy_abct_week_8
Chapter 8 9_advocacy_abct_week_8Chapter 8 9_advocacy_abct_week_8
Chapter 8 9_advocacy_abct_week_8
 
Between a Rock and a Hard Place – When Criminal Law Overlaps Administrative Law
Between a Rock and a Hard Place – When Criminal Law Overlaps Administrative LawBetween a Rock and a Hard Place – When Criminal Law Overlaps Administrative Law
Between a Rock and a Hard Place – When Criminal Law Overlaps Administrative Law
 
New Judge Mentor Program Presentation
New Judge Mentor Program PresentationNew Judge Mentor Program Presentation
New Judge Mentor Program Presentation
 
Remedial Law Rule 65 estopia updated
 Remedial Law Rule 65 estopia updated Remedial Law Rule 65 estopia updated
Remedial Law Rule 65 estopia updated
 
Remedial Law Rule 65 estopia
Remedial Law Rule 65 estopia Remedial Law Rule 65 estopia
Remedial Law Rule 65 estopia
 
Rules on Civil Procedure Rule 65 Certiorari
Rules on Civil Procedure Rule 65 CertiorariRules on Civil Procedure Rule 65 Certiorari
Rules on Civil Procedure Rule 65 Certiorari
 
The Intersection of Criminal and Administrative Law
The Intersection of Criminal and Administrative LawThe Intersection of Criminal and Administrative Law
The Intersection of Criminal and Administrative Law
 
U402part a theadversarysystem
U402part a theadversarysystemU402part a theadversarysystem
U402part a theadversarysystem
 
What is Judicial Review Sprott Lab Rels June 16 2012
What is Judicial Review Sprott Lab Rels June 16 2012What is Judicial Review Sprott Lab Rels June 16 2012
What is Judicial Review Sprott Lab Rels June 16 2012
 
The Anatomy of a Commercial Arbitration - An Arbitration from Start to Finish
The Anatomy of a Commercial Arbitration - An Arbitration from Start to FinishThe Anatomy of a Commercial Arbitration - An Arbitration from Start to Finish
The Anatomy of a Commercial Arbitration - An Arbitration from Start to Finish
 
NYC Airbnb Laws & Admin Hearing Crash Course with Attorney Brandon McKenzie
NYC Airbnb Laws & Admin Hearing Crash Course with Attorney Brandon McKenzieNYC Airbnb Laws & Admin Hearing Crash Course with Attorney Brandon McKenzie
NYC Airbnb Laws & Admin Hearing Crash Course with Attorney Brandon McKenzie
 

Plus de APSU

Net essentials6e ch13
Net essentials6e ch13Net essentials6e ch13
Net essentials6e ch13APSU
 
Net essentials6e ch11
Net essentials6e ch11Net essentials6e ch11
Net essentials6e ch11APSU
 
Net essentials6e ch9
Net essentials6e ch9Net essentials6e ch9
Net essentials6e ch9APSU
 
Net essentials6e ch10
Net essentials6e ch10Net essentials6e ch10
Net essentials6e ch10APSU
 
Net essentials6e ch9
Net essentials6e ch9Net essentials6e ch9
Net essentials6e ch9APSU
 
Net essentials6e ch8
Net essentials6e ch8Net essentials6e ch8
Net essentials6e ch8APSU
 
Net essentials6e ch7
Net essentials6e ch7Net essentials6e ch7
Net essentials6e ch7APSU
 
Net essentials6e ch6
Net essentials6e ch6Net essentials6e ch6
Net essentials6e ch6APSU
 
Net essentials6e ch4
Net essentials6e ch4Net essentials6e ch4
Net essentials6e ch4APSU
 
Net essentials6e ch3
Net essentials6e ch3Net essentials6e ch3
Net essentials6e ch3APSU
 
Net essentials6e ch2
Net essentials6e ch2Net essentials6e ch2
Net essentials6e ch2APSU
 
Chapter2.development of administrative law
Chapter2.development of administrative lawChapter2.development of administrative law
Chapter2.development of administrative lawAPSU
 
Chapter1.admin law&adminagency
Chapter1.admin law&adminagencyChapter1.admin law&adminagency
Chapter1.admin law&adminagencyAPSU
 
Chapter1
Chapter1Chapter1
Chapter1APSU
 
Logi pp 1
Logi pp 1Logi pp 1
Logi pp 1APSU
 
Unit 1
Unit 1Unit 1
Unit 1APSU
 
Time management
Time managementTime management
Time managementAPSU
 
Research
ResearchResearch
ResearchAPSU
 
21st century learner
21st century learner21st century learner
21st century learnerAPSU
 
21st century learner
21st century learner21st century learner
21st century learnerAPSU
 

Plus de APSU (20)

Net essentials6e ch13
Net essentials6e ch13Net essentials6e ch13
Net essentials6e ch13
 
Net essentials6e ch11
Net essentials6e ch11Net essentials6e ch11
Net essentials6e ch11
 
Net essentials6e ch9
Net essentials6e ch9Net essentials6e ch9
Net essentials6e ch9
 
Net essentials6e ch10
Net essentials6e ch10Net essentials6e ch10
Net essentials6e ch10
 
Net essentials6e ch9
Net essentials6e ch9Net essentials6e ch9
Net essentials6e ch9
 
Net essentials6e ch8
Net essentials6e ch8Net essentials6e ch8
Net essentials6e ch8
 
Net essentials6e ch7
Net essentials6e ch7Net essentials6e ch7
Net essentials6e ch7
 
Net essentials6e ch6
Net essentials6e ch6Net essentials6e ch6
Net essentials6e ch6
 
Net essentials6e ch4
Net essentials6e ch4Net essentials6e ch4
Net essentials6e ch4
 
Net essentials6e ch3
Net essentials6e ch3Net essentials6e ch3
Net essentials6e ch3
 
Net essentials6e ch2
Net essentials6e ch2Net essentials6e ch2
Net essentials6e ch2
 
Chapter2.development of administrative law
Chapter2.development of administrative lawChapter2.development of administrative law
Chapter2.development of administrative law
 
Chapter1.admin law&adminagency
Chapter1.admin law&adminagencyChapter1.admin law&adminagency
Chapter1.admin law&adminagency
 
Chapter1
Chapter1Chapter1
Chapter1
 
Logi pp 1
Logi pp 1Logi pp 1
Logi pp 1
 
Unit 1
Unit 1Unit 1
Unit 1
 
Time management
Time managementTime management
Time management
 
Research
ResearchResearch
Research
 
21st century learner
21st century learner21st century learner
21st century learner
 
21st century learner
21st century learner21st century learner
21st century learner
 

Dernier

M-2- General Reactions of amino acids.pptx
M-2- General Reactions of amino acids.pptxM-2- General Reactions of amino acids.pptx
M-2- General Reactions of amino acids.pptxDr. Santhosh Kumar. N
 
PISA-VET launch_El Iza Mohamedou_19 March 2024.pptx
PISA-VET launch_El Iza Mohamedou_19 March 2024.pptxPISA-VET launch_El Iza Mohamedou_19 March 2024.pptx
PISA-VET launch_El Iza Mohamedou_19 March 2024.pptxEduSkills OECD
 
How to Show Error_Warning Messages in Odoo 17
How to Show Error_Warning Messages in Odoo 17How to Show Error_Warning Messages in Odoo 17
How to Show Error_Warning Messages in Odoo 17Celine George
 
How to Add a New Field in Existing Kanban View in Odoo 17
How to Add a New Field in Existing Kanban View in Odoo 17How to Add a New Field in Existing Kanban View in Odoo 17
How to Add a New Field in Existing Kanban View in Odoo 17Celine George
 
Quality Assurance_GOOD LABORATORY PRACTICE
Quality Assurance_GOOD LABORATORY PRACTICEQuality Assurance_GOOD LABORATORY PRACTICE
Quality Assurance_GOOD LABORATORY PRACTICESayali Powar
 
The Stolen Bacillus by Herbert George Wells
The Stolen Bacillus by Herbert George WellsThe Stolen Bacillus by Herbert George Wells
The Stolen Bacillus by Herbert George WellsEugene Lysak
 
CAULIFLOWER BREEDING 1 Parmar pptx
CAULIFLOWER BREEDING 1 Parmar pptxCAULIFLOWER BREEDING 1 Parmar pptx
CAULIFLOWER BREEDING 1 Parmar pptxSaurabhParmar42
 
How to Manage Cross-Selling in Odoo 17 Sales
How to Manage Cross-Selling in Odoo 17 SalesHow to Manage Cross-Selling in Odoo 17 Sales
How to Manage Cross-Selling in Odoo 17 SalesCeline George
 
2024.03.23 What do successful readers do - Sandy Millin for PARK.pptx
2024.03.23 What do successful readers do - Sandy Millin for PARK.pptx2024.03.23 What do successful readers do - Sandy Millin for PARK.pptx
2024.03.23 What do successful readers do - Sandy Millin for PARK.pptxSandy Millin
 
What is the Future of QuickBooks DeskTop?
What is the Future of QuickBooks DeskTop?What is the Future of QuickBooks DeskTop?
What is the Future of QuickBooks DeskTop?TechSoup
 
The basics of sentences session 10pptx.pptx
The basics of sentences session 10pptx.pptxThe basics of sentences session 10pptx.pptx
The basics of sentences session 10pptx.pptxheathfieldcps1
 
Benefits & Challenges of Inclusive Education
Benefits & Challenges of Inclusive EducationBenefits & Challenges of Inclusive Education
Benefits & Challenges of Inclusive EducationMJDuyan
 
How to Make a Field read-only in Odoo 17
How to Make a Field read-only in Odoo 17How to Make a Field read-only in Odoo 17
How to Make a Field read-only in Odoo 17Celine George
 
5 charts on South Africa as a source country for international student recrui...
5 charts on South Africa as a source country for international student recrui...5 charts on South Africa as a source country for international student recrui...
5 charts on South Africa as a source country for international student recrui...CaraSkikne1
 
3.21.24 The Origins of Black Power.pptx
3.21.24  The Origins of Black Power.pptx3.21.24  The Origins of Black Power.pptx
3.21.24 The Origins of Black Power.pptxmary850239
 
Presentation on the Basics of Writing. Writing a Paragraph
Presentation on the Basics of Writing. Writing a ParagraphPresentation on the Basics of Writing. Writing a Paragraph
Presentation on the Basics of Writing. Writing a ParagraphNetziValdelomar1
 
Patient Counselling. Definition of patient counseling; steps involved in pati...
Patient Counselling. Definition of patient counseling; steps involved in pati...Patient Counselling. Definition of patient counseling; steps involved in pati...
Patient Counselling. Definition of patient counseling; steps involved in pati...raviapr7
 
CapTechU Doctoral Presentation -March 2024 slides.pptx
CapTechU Doctoral Presentation -March 2024 slides.pptxCapTechU Doctoral Presentation -March 2024 slides.pptx
CapTechU Doctoral Presentation -March 2024 slides.pptxCapitolTechU
 
General views of Histopathology and step
General views of Histopathology and stepGeneral views of Histopathology and step
General views of Histopathology and stepobaje godwin sunday
 

Dernier (20)

M-2- General Reactions of amino acids.pptx
M-2- General Reactions of amino acids.pptxM-2- General Reactions of amino acids.pptx
M-2- General Reactions of amino acids.pptx
 
PISA-VET launch_El Iza Mohamedou_19 March 2024.pptx
PISA-VET launch_El Iza Mohamedou_19 March 2024.pptxPISA-VET launch_El Iza Mohamedou_19 March 2024.pptx
PISA-VET launch_El Iza Mohamedou_19 March 2024.pptx
 
How to Show Error_Warning Messages in Odoo 17
How to Show Error_Warning Messages in Odoo 17How to Show Error_Warning Messages in Odoo 17
How to Show Error_Warning Messages in Odoo 17
 
How to Add a New Field in Existing Kanban View in Odoo 17
How to Add a New Field in Existing Kanban View in Odoo 17How to Add a New Field in Existing Kanban View in Odoo 17
How to Add a New Field in Existing Kanban View in Odoo 17
 
Quality Assurance_GOOD LABORATORY PRACTICE
Quality Assurance_GOOD LABORATORY PRACTICEQuality Assurance_GOOD LABORATORY PRACTICE
Quality Assurance_GOOD LABORATORY PRACTICE
 
The Stolen Bacillus by Herbert George Wells
The Stolen Bacillus by Herbert George WellsThe Stolen Bacillus by Herbert George Wells
The Stolen Bacillus by Herbert George Wells
 
CAULIFLOWER BREEDING 1 Parmar pptx
CAULIFLOWER BREEDING 1 Parmar pptxCAULIFLOWER BREEDING 1 Parmar pptx
CAULIFLOWER BREEDING 1 Parmar pptx
 
How to Manage Cross-Selling in Odoo 17 Sales
How to Manage Cross-Selling in Odoo 17 SalesHow to Manage Cross-Selling in Odoo 17 Sales
How to Manage Cross-Selling in Odoo 17 Sales
 
2024.03.23 What do successful readers do - Sandy Millin for PARK.pptx
2024.03.23 What do successful readers do - Sandy Millin for PARK.pptx2024.03.23 What do successful readers do - Sandy Millin for PARK.pptx
2024.03.23 What do successful readers do - Sandy Millin for PARK.pptx
 
What is the Future of QuickBooks DeskTop?
What is the Future of QuickBooks DeskTop?What is the Future of QuickBooks DeskTop?
What is the Future of QuickBooks DeskTop?
 
The basics of sentences session 10pptx.pptx
The basics of sentences session 10pptx.pptxThe basics of sentences session 10pptx.pptx
The basics of sentences session 10pptx.pptx
 
Prelims of Kant get Marx 2.0: a general politics quiz
Prelims of Kant get Marx 2.0: a general politics quizPrelims of Kant get Marx 2.0: a general politics quiz
Prelims of Kant get Marx 2.0: a general politics quiz
 
Benefits & Challenges of Inclusive Education
Benefits & Challenges of Inclusive EducationBenefits & Challenges of Inclusive Education
Benefits & Challenges of Inclusive Education
 
How to Make a Field read-only in Odoo 17
How to Make a Field read-only in Odoo 17How to Make a Field read-only in Odoo 17
How to Make a Field read-only in Odoo 17
 
5 charts on South Africa as a source country for international student recrui...
5 charts on South Africa as a source country for international student recrui...5 charts on South Africa as a source country for international student recrui...
5 charts on South Africa as a source country for international student recrui...
 
3.21.24 The Origins of Black Power.pptx
3.21.24  The Origins of Black Power.pptx3.21.24  The Origins of Black Power.pptx
3.21.24 The Origins of Black Power.pptx
 
Presentation on the Basics of Writing. Writing a Paragraph
Presentation on the Basics of Writing. Writing a ParagraphPresentation on the Basics of Writing. Writing a Paragraph
Presentation on the Basics of Writing. Writing a Paragraph
 
Patient Counselling. Definition of patient counseling; steps involved in pati...
Patient Counselling. Definition of patient counseling; steps involved in pati...Patient Counselling. Definition of patient counseling; steps involved in pati...
Patient Counselling. Definition of patient counseling; steps involved in pati...
 
CapTechU Doctoral Presentation -March 2024 slides.pptx
CapTechU Doctoral Presentation -March 2024 slides.pptxCapTechU Doctoral Presentation -March 2024 slides.pptx
CapTechU Doctoral Presentation -March 2024 slides.pptx
 
General views of Histopathology and step
General views of Histopathology and stepGeneral views of Histopathology and step
General views of Histopathology and step
 

Chapter 3.agency discretion

  • 2. What is Discretion? • Discretion is the power to make a choice among different actions or alternatives. • Agency discretion is necessary because laws may not be detailed or specific enough to apply to an individual action. • Agencies use discretion primarily for informal agency processes such as • Processing claims • Informal hearings • Negotiations
  • 3. What are dangers of agencydiscretion? • If there is too much discretion, an agency may become arbitrary and dictatorial • If there is too little discretion, an agency may become ineffective in in the daily decision- making.
  • 4. Safeguards against agency discretion • Constitutional protections • Individual’s basic right to due process, fairness, and search warrants • Statutes • Enabling act that specified the agency’s mission that is limited to expertise. • Politics • Political pressure from politician that want to ensure reelection.
  • 5. Informal Actions • How does discretion affect informal agency decisions? • The agency’s adaptation to chronological, societal, and technological changes in areas delegated to the agency in the enabling statute; and • The agency’s choice of which process to use to adapt to these changes that may become problems needing agency solutions.
  • 6. AdministrativeAgency and Discretion A complaint is filed Accept complaint Agency Response Options Reject complaint What are the facts? Are the facts documented?
  • 7. Formal Actions • Are agencies required to create written reports of formal proceedings? • This is part of agency discretion, especially if there is not a statute to require such a procedure. Decisions made by agency heads. • Uniform Administrative Procedures Act – requires administrative law judges to write a recommendation for a final decision
  • 8. Past Practice and Discretion • Repeated decision-making creates past practice, which allows for predictability and regularity in similar future cases. • Adhering to past practices also avoids duplication of time and effort. • Past practices also is a basis for creating of agency standards and rules.
  • 9. Past Practice and Discretion • On the other hand, discretion allows agencies to conform to acceptable conduct today that may not have been considered acceptable previously • If an agency decides not to adhere to past practices, its decision should be reasonable and based on a rational process. • If not, the discretionary power will be questioned and brought into court actions and placed under scrutiny, which equals increased judicial review.
  • 10. Greater Boston Television Corp. v. FCC, 444 F2d 841 (D.C. Cir. 1970) • Deals with a change in agency procedures. • FCC established new procedures for license renewals from individual approach to a comparative approach • Court upheld the agency’s power of discretion. An agency’s view of what is in the public interest may change, either with or without a change in circumstances. Agency discretion should be reasonable and based on a rational process, if not it can by place under scrutiny of judicial review.
  • 11. Abuse of Discretionary Power • If an agency has abused its discretionary power, its action are reviewable. • Each agency should have an appeals process to rectify concerns. • Pursuant to the Administrative Procedures Act (APA), 5 USC §557(c)(1)(2) and (3): • (c) Before a … decisions on agency review of the decision… the parties are entitled to a reasonable opportunity to submit for consideration… (1) proposed findings and conclusions; or (2) exceptions to the decisions… (3) supporting reasons for the exceptions or proposed findings or conclusions.
  • 12. Abuse of Discretionary Power • Once the agency appeal process has been exhausted, an individual may file a petition with the appropriate court. • Action should depict • What was the abuse? • What law are you citing?
  • 13. What Constitutes Abuse? • The APA (at §706) states: To the extent necessary to a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall – (2) hold unlawful and set aside agency actions, findings, and conclusions found to be – (A) arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law;
  • 14. What Constitutes Abuse? • Courts review abuse in accordance with the Constitution, statutes, and cases. • The court may decide to either: • Remand (send back) to the agency • Substitute its own decision in place of the agency decision
  • 15. Appeals within an Agency • When an individual makes an appeal or request for review within an agency, different agency personnel than the one who rejected the claim will review the action. • Claims are usually heard by an administrative law judge (ALJ) • The ALJ will do one of two things: • Review the evidence and give a decision • Set up a hearing, possible request additional evidence. At this point the claimant may appeal to the courts.
  • 16. Court Review • After a claimant has exhausted all processes of review within the agency, the claimant may seek judicial review, which is court examination of the agency decision • Agency rules or statutes will govern judicial jurisdiction • If a petition for court is accepted, the court will review the record of the case, the evidence presented to the agency, and the reasons for the agency decision.
  • 17. Court Review • Issues not raised during agency decision may not be raised at trial. Any new evidence will be sent to the agency for review. • When the court decision is made, the court often remands the decision to the agency to implement the court recommendations.
  • 18. Cases Uphold Discretion • Citizens to Preserve Overton Park, Inc. v. Volpe • Court looked to whether the Secretary acted outside of his scope of authority and whether his actions followed the necessary procedural requirements • Case was remanded back to District Court to make these determinations. • Heckler v. Chaney • Whether agency’s decision not to act subject to judicial review • Ct held decision is not subject to judicial review under the APA
  • 19. Next Week – September 29, 2011 • Read Chapter 4 • Pay close attention to cases!!! • Review TN Sunshine Law