Smith and Robersons Business Law 17Th Edition Mann Solutions Manual Full Chapter PDF

CHAPTER 5 ADMINISTRATIVE LAW 1
Solution Manual for Smith and Robersons Business

Law 17th Edition Mann Roberts 1337094757
9781337094757
Full download link at:
Solution manual: https://testbankpack.com/p/solution-manual-for-smith-and-robersons-
business-law-17th-edition-mann-roberts-1337094757-9781337094757/
Test bank: https://testbankpack.com/p/test-bank-for-smith-and-robersons-business-law-
17th-edition-mann-roberts-1337094757-9781337094757/
Chapter 5
ADMINISTRATIVE LAW
Operation of Administrative Agencies [5-1] Judicial Review [5-2a]

Rulemaking [5-1a] General Requirements
Legislative Rules Questions of Law
Interpretive Rules Questions of Fact
Procedural Rules Legislative Control [5-2b]
Enforcement [5-1b] Executive Branch Control [5-2c]
Adjudication [5-1c] Disclosure of Information [5-2d]
Limits on Administrative Agencies [5-2] Freedom of Information Act
Privacy Act
Government in the Sunshine Act
Cases in This Chapter

Mayo Foundation for Medical Education and Sackett v. Environmental Protection Agency
Research v. United States FCC v. Fox Television Stations
Perez v. Mortgage Bankers Ass’n.
Chapter Outcomes
After reading and studying this chapter, the student should be able to:
 Explain the three basic functions of administrative agencies.
 Distinguish among the three types of rules promulgated by administrative
agencies.
 Explain the difference between formal and informal methods of adjudication.
 Identify (1) the questions of law determined by a court in conducting a review of
a rule or order of an administrative agency and (2) the three standards of judicial
review of factual determinations made by administrative agencies.
 Describe the limitations imposed on administrative agencies by the legislative
branch, the executive branch, and the legally required disclosure of information.
© 2018 Cengage Learning. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or
in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-
protected website or school-approved learning management system for classroom use.
TEACHING NOTES
Administrative law is the branch of public law created by administrative agencies as
rules, regulations, orders, and decisions to carry out the regulatory powers and duties of
those agencies. Administrative agencies are governmental entities (other than courts
and legislatures) that have authority to affect the rights of private parties. They are
referred to as commission, board, department, agency administration, bureau or office.
They regulate important matters of national safety, welfare and convenience.
Much of federal, state, and local law in this country is established by administrative
agencies, which leads some to criticize the power vested in this “fourth branch of
government.” Administrative agencies serve an important function, however, relieving
the legislative branch from the daunting task of considering every aspect of a specific
problem in order to address it. Instead, legislators can pass an enabling statute and
create an agency for the task.
*** Chapter Outcome ***

Explain the three basic functions of administrative agencies.
5-1 OPERATION OF ADMINISTRATIVE AGENCIES

Most administrative agencies perform all three of the basic functions of government: (1)
making rules; (2) enforcing law; and (3) adjudicating controversies. Administrative
process refers to activities in which agencies engage while carrying out rulemaking,
enforcement, and adjudicative functions.
Congress passed the Administrative Procedure Act (APA) in 1946 to address issues
raised by operation of agencies without checks and balances found in the legislative,
executive and judicial branches.
*** Chapter Outcomes ***

Distinguish among three types of rules promulgated by administrative agencies.
Explain the difference between formal and informal methods of adjudication.
5-1a Rulemaking
Under the APA a rule is "the whole or a part of an agency statement of general or
particular applicability and future effect designed to implement, interpret, or process law
or policy."
Legislative Rules — often called regulations, are substantive rules issued by an
administrative agency under the authority delegated to it by the legislature. Legislative
rules have the force of law in contrast to interpretive and procedural rules. Most must
be promulgated in accordance with the informal rulemaking procedures of the APA,
which require prior notice, an opportunity for participation, and publication of a final
draft. Formal rulemaking is more complex and involves finding facts, applying legal
rules to the facts, and formulating orders. It requires opportunity for a hearing, with
testimony and cross-examination of witnesses. Hybrid rulemaking is a procedure that
incorporates some of the requirements of formal rulemaking without being as complex.
In 1990, Congress enacted the Negotiated Rulemaking Act which authorizes, but does
not require, agencies to use negotiated rulemaking. The negotiated agreement would
become the basis for the proposed regulation. Interpretive and procedural rules are
exempt from the APA.
CASE 5-1
MAYO FOUNDATION FOR MEDICAL EDUCATION AND
RESEARCH v. UNITED STATES
Supreme Court of the United States, 2011
562 U.S. ____, 131 S.CT. 704, 178 L.ED.2D 588
http://scholar.google.com/scholar_case?q=131+S.+Ct.+704&hl=en&as_sdt=2,34&case=3055490070969307951
&scilh=0
Roberts, C. J.
Most doctors who graduate from medical school in the United States pursue additional
education in a specialty to become board certified to practice in that field. Petitioners Mayo
Foundation for Medical Education and Research, Mayo Clinic, and the Regents of the
University of Minnesota (collectively Mayo) offer medical residency programs that provide
such instruction. Mayo’s residency programs, which usually last three to five years, train
doctors primarily through hands-on experience. Residents often spend between 50 and 80
hours a week caring for patients, typically examining and diagnosing them, prescribing
medication, recommending plans of care, and performing certain procedures. Residents are
generally supervised in this work by more senior residents and by faculty members known
as attending physicians. In 2005, Mayo paid its residents annual “stipends” ranging between
$41,000 and $56,000 and provided them with health insurance, malpractice insurance, and
paid vacation time.
Mayo residents also take part in “a formal and structured educational program.”
[Citation.] Residents are assigned textbooks and journal articles to read and are expected to
attend weekly lectures and other conferences. Residents also take written exams and are
evaluated by the attending faculty physicians. But the parties do not dispute that the bulk of
residents’ time is spent caring for patients.
Through the Social Security Act and related legislation, Congress has created a
comprehensive national insurance system that provides benefits for retired workers, disabled
workers, unemployed workers, and their families. [Citation.] Congress funds Social Security
by taxing both employers and employees under FICA on the wages employees earn.
[Citations.] Congress has defined “wages” broadly, to encompass “all remuneration for
employment.” § 3121(a). The term “employment” has a similarly broad reach, extending to
“any service, of whatever nature, performed . . . by an employee for the person employing
him.” § 3121(b).
Congress has, however, exempted certain categories of service and individuals from
FICA’s [and Social Security Act] demands. As relevant here, Congress has excluded from
taxation “service performed in the employ of … a school, college, or university … if such
service is performed by a student who is enrolled and regularly attending classes at such
school, college, or university.” § 3121(b)(10). ***
***
On December 21, 2004, the Department adopted an amended rule prescribing that an
employee’s service is “incident” to his studies only when “[t]he educational aspect of the
relationship between the employer and the employee, as compared to the service aspect of
the relationship, [is] predominant.” [Citation.] The rule categorically provides that “[t]he
services of a full-time employee”—as defined by the employer’s policies, but in any event
including any employee normally scheduled to work 40 hours or more per week—“are not
incident to and for the purpose of pursuing a course of study.” [Citation,] (the full-time
employee rule). The amended provision clarifies that the Department’s analysis “is not
affected by the fact that the services performed . . . may have an educational, instructional,
or training aspect.” [Citation.] The rule also includes as an example the case of “Employee
E,” who is employed by “University V” as a medical resident. [Citation.] Because Employee
E’s “normal work schedule calls for [him] to perform services 40 or more hours per week,”
the rule provides that his service is “not incident to and for the purpose of pursuing a course
of study,” and he accordingly is not an exempt “student” under § 3121(b)(10). [Citation.]
After the Department promulgated the full-time employee rule, Mayo filed suit
seeking a refund of the money it had withheld and paid on its residents’ stipends during the
second quarter of 2005. [Citation.] Mayo asserted that its residents were exempt under §
3121(b)(10) and that the Treasury Department’s fulltime employee rule was invalid.
[The District Court granted Mayo’s motion for summary judgment. The Government
appealed, and the Court of Appeals reversed.]
We granted Mayo’s petition for certiorari. [Citation.]
We begin our analysis with the first step of the two-part framework announced in
Chevron [USA Inc. v. Natural Resources Defense Council, Inc.], [citation], and ask whether
Congress has “directly addressed the precise question at issue.” We agree with the Court of
Appeals that Congress has not done so. The statute does not define the term “student,” and
does not otherwise attend to the precise question whether medical residents are subject to
FICA. [Citation.]
***
In the typical case, such an ambiguity would lead us inexorably to Chevron step two,
under which we may not disturb an agency rule unless it is “‘arbitrary or capricious in
substance, or manifestly contrary to the statute.’” [Citation.] In this case, however, the
parties disagree over the proper framework for evaluating an ambiguous provision of the
Internal Revenue Code.
***
The principles underlying our decision in Chevron apply with full force in the tax
context. Chevron recognized that “[t]he power of an administrative agency to administer a
congressionally created … program necessarily requires the formulation of policy and the
making of rules to fill any gap left, implicitly or explicitly, by Congress.” [Citation.] * * *
Filling gaps in the Internal Revenue Code plainly requires the Treasury Department to make
interpretive choices for statutory implementation at least as complex as the ones other
agencies must make in administering their statutes. [Citation.] We see no reason why our
review of tax regulations should not be guided by agency expertise pursuant to Chevron to
the same extent as our review of other regulations.
* * * We have held that Chevron deference is appropriate “when it appears that
Congress delegated authority to the agency generally to make rules carrying the force of
law, and that the agency interpretation claiming deference was promulgated in the exercise
of that authority.” * * *
* * * The Department issued the full-time employee rule pursuant to the explicit
authorization to “prescribe all needful rules and regulations for the enforcement” of the
Internal Revenue Code. [Citation.] * * *
***
The full-time employee rule easily satisfies the second step of Chevron, which asks
whether the Department’s rule is a “reasonable interpretation” of the enacted text. [Citation.]
To begin, Mayo accepts that “the ‘educational aspect of the relationship between the
employer and the employee, as compared to the service aspect of the relationship, [must] be
predominant’” in order for an individual to qualify for the exemption. [Citation.] Mayo
objects, however, to the Department’s conclusion that residents who work more than 40
hours per week categorically cannot satisfy that requirement. Because residents’
employment is itself educational, Mayo argues, the hours a resident spends working make
him “more of a student, not less of one.” [Citation.] Mayo contends that the Treasury
Department should be required to engage in a case-by-case inquiry into “what [each]
employee does [in his service] and why” he does it. [Citation.] Mayo also objects that the
Department has drawn an arbitrary distinction between “hands-on training” and “classroom
instruction.” [Citation.]
We disagree. Regulation, like legislation, often requires drawing lines. Mayo does
not dispute that the Treasury Department reasonably sought a way to distinguish between
workers who study and students who work, [citation]. * * * The Department reasonably
concluded that its full-time employee rule would “improve administrability,” [citation], and
it thereby “has avoided the wasteful litigation and continuing uncertainty that would
inevitably accompany any purely case-by-case approach” like the one Mayo advocates,
[citation].
***
We do not doubt that Mayo’s residents are engaged in a valuable educational pursuit or
that they are students of their craft. The question whether they are “students” for purposes of
§ 3121, however, is a different matter. Because it is one to which Congress has not directly
spoken, and because the Treasury Department’s rule is a reasonable construction of what
Congress has said, the judgment of the Court of Appeals must be affirmed.
Interpretive Rules — are statements issued by an administrative agency indicating its

construction of its governing statute; not automatically binding on private parties or the
courts.
Procedural Rules — are rules issued by an administrative agency establishing its
organization, method of operation, and rules of conduct for practicing before it.
CASE 5-2
PEREZ v. MORTGAGE BANKERS ASS’N.
575 U.S.____, 135 S.Ct. 1199, 191 L.Ed.2d 186

Sotomayor, J.
These cases began as a dispute over efforts by the Department of Labor to determine
whether mortgage-loan officers are covered by the Fair Labor Standards Act of 1938
(FLSA), [citation]. [This statute is discussed in Chapter 42.] The FLSA “establishe[s] a
minimum wage and overtime compensation for each hour worked in excess of 40 hours in
each workweek” for many employees. [Citation.] Certain classes of employees, however,
are exempt from these provisions. Among these exempt individuals are those “employed in
a bona fide executive, administrative, or professional capacity ... or in the capacity of outside
salesman ….” [Citation.] The exemption for such employees is known as the
“administrative” exemption.
The FLSA grants the Secretary of Labor authority to “defin[e]” and “delimi[t]” the
categories of exempt administrative employees. [Citation.] The Secretary’s current
regulations regarding the administrative exemption were promulgated in 2004 As relevant
here, the 2004 regulations differed from the previous regulations [issued in 1999 and 2001]
in that they contained a new section providing several examples of exempt administrative
employees. [Citation.] One of the examples is “[e]mployees in the financial services
industry,” who, depending on the nature of their day-to-day work, “generally meet the duties
requirements for the administrative exception.” [Citation.] The financial services example
ends with a caveat, noting that “an employee whose primary duty is selling financial
products does not qualify for the administrative exemption.” [Citation.]
[In 2006, the Department issued an opinion letter finding that mortgage-loan officers fell
within the administrative exemption. In 2010, however, the Wage and Hour Division again
altered its interpretation of the FLSA’s administrative exemption as it applied to mortgage-
loan officers, concluding that mortgage-loan officers “have a primary duty of making sales
for their employers, and, therefore, do not qualify” for the administrative exemption. The
Department accordingly withdrew its 2006 opinion letter. Like the 1999, 2001, and 2006
opinion letters, the 2010 Administrator’s Interpretation was issued without notice or an
opportunity for comment.
MBA filed a complaint in federal District Court challenging the 2010 Administrator’s
Interpretation. MBA contended that the 2010 Administrator’s Interpretation was
procedurally invalid in light of the D.C. Circuit’s decision in Paralyzed Veterans, which
holds that an agency must use notice-and-comment procedures when an agency wishes to
issue a new interpretation of a regulation that deviates significantly from a previously
adopted interpretation. The District Court granted summary judgment to the Department. On
appeal, the D.C. Circuit applied Paralyzed Veterans and reversed. The Department appealed
to the U.S. Supreme Court.]
When a federal administrative agency first issues a rule interpreting one of its regulations, it
is generally not required to follow the notice-and-comment rulemaking procedures of the
Administrative Procedure Act (APA or Act). [Citation.] The United States Court of Appeals
for the District of Columbia Circuit has nevertheless held, in a line of cases beginning with
Paralyzed Veterans of Am. v. D.C. Arena L. P., [citation], that an agency must use the
APA’s notice-and-comment procedures when it wishes to issue a new interpretation of a
regulation that deviates significantly from one the agency has previously adopted. The
question in these cases is whether the rule announced in Paralyzed Veterans is consistent
with the APA. We hold that it is not.
The APA establishes the procedures federal administrative agencies use for “rule making,”
defined as the process of “formulating, amending, or repealing a rule.” [Citation.] “Rule,” in
turn, is defined broadly to include “statement [s] of general or particular applicability and
future effect” that are designed to “implement, interpret, or prescribe law or policy.”
[Citation.]
Section 4 of the APA, [citation], prescribes a three-step procedure for so-called “notice-and-
comment rule-making.” First, the agency must issue a “[g]eneral notice of proposed rule
making,” ordinarily by publication in the Federal Register. [Citation.] Second, if “notice [is]
required,” the agency must “give interested persons an opportunity to participate in the rule
making through submission of written data, views, or arguments.” [Citation.] An agency
must consider and respond to significant comments received during the period for public
comment. [Citation.] Third, when the agency promulgates the final rule, it must include in
the rule’s text “a concise general statement of [its] basis and purpose.” [Citation.] Rules
issued through the notice-and-comment process are often referred to as “legislative rules”
because they have the “force and effect of law.” [Citation.]
Not all “rules” must be issued through the notice-and-comment process. Section 4(b)(A) of
the APA provides that, unless another statute states otherwise, the notice-and-comment
requirement “does not apply” to “interpretative rules, general statements of policy, or rules
of agency organization, procedure, or practice.” [Citation.] The term “interpretative rule,” or
“interpretive rule,” is not further defined by the APA, *** it suffices to say that the critical
feature of interpretive rules is that they are “issued by an agency to advise the public of the
agency’s construction of the statutes and rules which it administers.” [Citation.] The absence
of a notice-and-comment obligation makes the process of issuing interpretive rules
comparatively easier for agencies than issuing legislative rules. But that convenience comes
at a price: Interpretive rules “do not have the force and effect of law and are not accorded
that weight in the adjudicatory process.” [Citation.]
***
*** This exemption of interpretive rules from the notice-and-comment process is
categorical, and it is fatal to the rule announced in Paralyzed Veterans.
Rather than examining the exemption for interpretive rules contained in §4(b)(A) of the
APA, the D.C. Circuit in Paralyzed Veterans focused its attention on §1 of the Act. That
section defines “rule making” to include not only the initial issuance of new rules, but also
“repeal[s]” or “amend[ments]” of existing rules. [Citation.] Because notice-and-comment
requirements may apply even to these later agency actions, the court reasoned, “allow[ing]
an agency to make a fundamental change in its interpretation of a substantive regulation
without notice and comment” would undermine the APA’s procedural framework.
[Citation.]
*** Because an agency is not required to use notice-and-comment procedures to issue an
initial interpretive rule, it is also not required to use those procedures when it amends or
repeals that interpretive rule.
The straightforward reading of the APA we now adopt harmonizes with longstanding
principles of our administrative law jurisprudence. Time and again, we have reiterated that
the APA “sets forth the full extent of judicial authority to review executive agency action for
procedural correctness.” Fox Television Stations, Inc., [citation]. Beyond the APA’s
minimum requirements, courts lack authority “to impose upon [an] agency its own notion of
which procedures are ‘best’ or most likely to further some vague, undefined public good.”
[Citation.] To do otherwise would violate “the very basic tenet of administrative law that
agencies should be free to fashion their own rules of procedure.” [Citation.]
These foundational principles apply with equal force to the APA’s procedures for
rulemaking. We explained in [citation] that §4 of the Act “established the maximum
procedural requirements which Congress was willing to have the courts impose upon
agencies in conducting rulemaking procedures.” [Citation.] “Agencies are free to grant
additional procedural rights in the exercise of their discretion, but reviewing courts are
generally not free to impose them if the agencies have not chosen to grant them.” [Citation.]
The Paralyzed Veterans doctrine creates just such a judge-made procedural right: the right to
notice and an opportunity to comment when an agency changes its interpretation of one of
the regulations it enforces. That requirement may be wise policy. Or it may not. Regardless,
imposing such an obligation is the responsibility of Congress or the administrative agencies,
not the courts. We trust that Congress weighed the costs and benefits of placing more
rigorous procedural restrictions on the issuance of interpretive rules. [Citation.] In the end,
Congress decided to adopt standards that permit agencies to promulgate freely such rules—
whether or not they are consistent with earlier interpretations. That the D.C. Circuit would
have struck the balance differently does not permit that court or this one to overturn
Congress’ contrary judgment. [Citation.]
***
For the foregoing reasons, the judgment of the United States Court of Appeals for the
District of Columbia Circuit is reversed.
5-1b Enforcement
Agencies are also empowered to investigate certain conduct to determine whether the
statute or the agency's legislative rules have been violated. Agencies have traditionally
been accorded great discretion to compel disclosure of information, subject to
constitutional limitations.
5-1c Adjudication
After concluding an investigation, the agency may use formal or informal methods to
resolve the matter. Informal procedures, which include advising, negotiating and
settling, constitute the majority of administrative adjudication.
In 1990, Congress enacted the Administrative Dispute Resolution Act to authorize and
encourage Federal agencies to use mediation, conciliation, arbitration and other dispute
resolution techniques.
The formal procedure by which an agency resolves a matter (called adjudication)
involves finding facts, applying legal rules, and formulating orders. An order is the final
disposition made by an agency.
NOTE: See the textbook for a detailed description of the process involved in adjudication.
5-2 LIMITS ON ADMINISTRATIVE AGENCIES

An important and fundamental part of administrative law is the limits imposed by judicial
review by the courts upon the activities of administrative agencies. Courts are not
supposed to substitute their judgment on matters of policy for the agency's judgment,
but the legislature and the executive branch may address the wisdom of an agency's
action. Legally required public disclosure of agency actions provides further protection
for the public.
NOTE: See Figure 5-1: Limits on Administrative Agencies.
5-2a Judicial Review

Judicial review, the process by which courts examine governmental action, is available
unless precluded by statute; it acts as a control on a particular rule of an agency. A
court may either compel agency action unlawfully withheld or set aside impermissible
agency action.
General Requirements — Parties seeking judicial review must have been injured by
the agency action (called “having standing”) and must have exhausted administrative
remedies.
CASE 5-3
SACKETT v. ENVIRONMENTAL PROTECTION AGENCY
566 U.S. ___, 132 S.CT. 1367, 182 L.Ed.2d 367

http://scholar.google.com/scholar_case?q=132+S.CT.+1367&hl=en&as_sdt=2,34&case=136637982858045144
73&scilh=0
Scalia, J.
[The Clean Water Act (Act) prohibits “the discharge of any pollutant by any person,”
without a permit, into the “navigable waters,” which the Act defines as “the waters of the
United States.” If the Environmental Protection Agency (EPA) determines that any person is
in violation of this restriction, the Act directs the agency either to issue a compliance order
or to initiate a civil enforcement action. When the EPA prevails in a civil action, the Act
provides for a civil penalty not to exceed $37,500 per day for each violation. According to
the government, when the EPA prevails against any person who has been issued a
compliance order but has failed to comply, that amount is increased to $75,000.
The Sacketts own a two-thirds-acre residential lot in Bonner County, Idaho. Their
property lies just north of Priest Lake, but it is separated from the lake by several lots
containing permanent structures. In preparation for constructing a house, the Sacketts filled
in part of their lot with dirt and rock. Some months later, they received from the EPA a
compliance order, which stated that their residential lot contained navigable waters and that
their construction project violated the Act by placing fill material on the property. On that
basis the order directs them immediately to restore the property pursuant to an EPA work
plan and to provide the EPA with access to the site and all records and documents related to
the conditions at the site.
The Sacketts, who do not believe that their property is subject to the Act, asked the
EPA for a hearing, but that request was denied. They then brought an action in the U.S.
District Court for the District of Idaho, seeking declaratory and injunctive relief. Their
complaint contended that the EPA’s issuance of the compliance order was “arbitrary [and]
capricious” under the Administrative Procedure Act (APA) and that it deprived them of
“life, liberty, or property, without due process of law,” in violation of the Fifth Amendment.
The District Court dismissed the claims for want of subject-matter jurisdiction. The U.S.
Court of Appeals for the Ninth Circuit affirmed, concluding that the Act “preclude[s] pre-
enforcement judicial review of compliance orders” and that such preclusion does not violate
the Fifth Amendment’s due process guarantee. The U.S. Supreme Court granted certiorari.]
The Sacketts brought suit under Chapter 7 of the APA, which provides for judicial
review of “final agency action for which there is no other adequate remedy in a court.”
[Citation.] We consider first whether the compliance order is final agency action. There is
no doubt it is agency action, which the APA defines as including even a “failure to act.”
[Citation.] But is it final? It has all of the hallmarks of APA finality that our opinions
establish. Through the order, the EPA “‘determined’” “‘rights or obligations.’” [Citation.] *
* * Also, “‘legal consequences . . . flow’” from issuance of the order. [Citation.] * * *
The issuance of the compliance order also marks the “‘consummation’” of the
agency’s decisionmaking process. [Citation.] As the Sacketts learned when they
unsuccessfully sought a hearing, the “Findings and Conclusions” that the compliance order
contained were not subject to further agency review. * * *
The APA’s judicial review provision also requires that the person seeking APA
review of final agency action have “no other adequate remedy in a court,” [Citation.] In
Clean Water Act enforcement cases, judicial review ordinarily comes by way of a civil
action brought by the EPA under [citation]. But the Sacketts cannot initiate that process, and
each day they wait for the agency to drop the hammer, they accrue * * * an additional
$75,000 in potential liability. The other possible route to judicial review—applying to the
Corps of Engineers for a permit and then filing suit under the APA if a permit is denied—
will not serve either. * * *
Nothing in the Clean Water Act expressly precludes judicial review under the APA
or otherwise. But in determining “[w]hether and to what extent a particular statute precludes
judicial review,” we do not look “only [to] its express language.” [Citation.] The APA, we
have said, creates a “presumption favoring judicial review of administrative action,” but as
with most presumptions, this one “may be overcome by inferences of intent drawn from the
statutory scheme as a whole. The Government offers several reasons why the statutory
scheme of the Clean Water Act precludes review. [The Supreme Court found that these
arguments did not support an inference that the Clean Water Act’s statutory scheme
precluded APA review.]
***
We conclude that the compliance order in this case is final agency action for which
there is no adequate remedy other than APA review, and that the Clean Water Act does not
preclude that review. We therefore reverse the judgment of the Court of Appeals and remand
the case for further proceedings consistent with this opinion.

Identify the questions of law determined by a court in conducting
a review of a rule or order of an administrative agency.
Questions of Law — The scope of judicial review is limited to determining whether the
agency has: (1) exceeded its authority; (2) properly interpreted the applicable law; (3)
violated any constitutional provision; or (4) acted contrary to the procedural
requirements of the law.
CASE 5-4
FCC v. FOX TELEVISION STATIONS, INC.
556 U.S. 502, 129 S.Ct. 1800, 173 L.Ed.2d 738
http://scholar.google.com/scholar_case?q=129+S.CT.+1800&hl=en&as_sdt=2,34&case=210370906257487361
7&scilh=0
Scalia, J.
Federal law prohibits the broadcasting of “any … indecent … language,” [citation], which
includes expletives referring to sexual or excretory activity or organs, see [citation]. This
case concerns the adequacy of the Federal Communications Commission’s explanation of its
decision that this sometimes forbids the broadcasting of indecent expletives even when the
offensive words are not repeated.
***
* * * Congress has given the Commission various means of enforcing the indecency ban,
including civil fines, see § 503(b)(1), and license revocations or the denial of license
renewals, [citation].
The Commission first invoked the statutory ban on indecent broadcasts in 1975,
declaring a daytime broadcast of George Carlin’s “Filthy Words” monologue actionably
indecent. [Citation.] At that time, the Commission announced the definition of indecent
speech that it uses to this day, prohibiting “language that describes, in terms patently
offensive as measured by contemporary community standards for the broadcast medium,
sexual or excretory activities or organs, at times of the day when there is a reasonable risk
that children may be in the audience.” [Citation.]
***
In the ensuing years, the Commission took a cautious, but gradually expanding,
approach to enforcing the statutory prohibition against indecent broadcasts. * * *
Although the Commission had expanded its enforcement beyond the “repetitive use of
specific words or phrases,” it preserved a distinction between literal and nonliteral (or
“expletive”) uses of evocative language. [Citation.] The Commission explained that each
literal “description or depiction of sexual or excretory functions must be examined in
context to determine whether it is patently offensive,” but that “deliberate and repetitive use
… is a requisite to a finding of indecency” when a complaint focuses solely on the use of
nonliteral expletives. [Citation.]
In 2004, the Commission took one step further by declaring for the first time that a
nonliteral (expletive) use of the F- and S-Words could be actionably indecent, even when the
word is used only once. The first order to this effect dealt with an NBC broadcast of the
Golden Globe Awards, in the performer Bono commented, “‘This is really, really, f* * *ing
brilliant.’” * * *
***
This case concerns utterances in two live broadcasts aired by Fox Television Stations,
Inc., and its affiliates prior to the Commission’s Golden Globes Order. The first occurred
during the 2002 Billboard Music Awards, when the singer Cher exclaimed, “I’ve also had
critics for the last 40 years saying that I was on my way out every year. Right. So f* * *
‘em.” [Citation.] The second involved a segment of the 2003 Billboard Music Awards,
during the presentation of an award by Nicole Richie and Paris Hilton, principals in a Fox
television series called “The Simple Life.” Ms. Hilton began their interchange by reminding
Ms. Richie to “watch the bad language,” but Ms. Richie proceeded to ask the audience,
“Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow s* * * out of a
Prada purse? It’s not so f* * *ing simple.” [Citation.] Following each of these broadcasts,
the Commission received numerous complaints from parents whose children were exposed
to the language.
On March 15, 2006, the Commission released Notices of Apparent Liability for a
number of broadcasts that the Commission deemed actionably indecent, including the two
described above. [Citation.] * * *
The order first explained that both broadcasts fell comfortably within the subject-matter
scope of the Commission’s indecency test because the 2003 broadcast involved a literal
description of excrement and both broadcasts invoked the “F-Word,” which inherently has a
sexual connotation. [Citation.] The order next determined that the broadcasts were patently
offensive under community standards for the medium.
***
The order explained that the Commission’s prior “strict dichotomy between ‘expletives’
and ‘descriptions or depictions of sexual or excretory functions’ is artificial and does not
make sense in light of the fact that an ‘expletive’s’ power to offend derives from its sexual
or excretory meaning.” * * * Although the Commission determined that Fox encouraged the
offensive language by using suggestive scripting in the 2003 broadcast, and unreasonably
failed to take adequate precautions in both broadcasts, [citation], the order * * * declined to
impose any forfeiture or other sanction for either of the broadcasts, [citation].
* * * The [Second Circuit] Court of Appeals reversed the agency’s orders, finding the
Commission’s reasoning inadequate under the Administrative Procedure Act. [Citation.] The
majority was “skeptical that the Commission [could] provide a reasoned explanation for its
‘fleeting expletive’ regime that would pass constitutional muster,” but it declined to reach
the constitutional question. [Citation.] We granted certiorari, [citation].
The Administrative Procedure Act, [citation], which sets forth the full extent of judicial
authority to review executive agency action for procedural correctness, [citation], permits
(insofar as relevant here) the setting aside of agency action that is “arbitrary” or
“capricious,” [citation]. Under what we have called this “narrow” standard of review, we
insist that an agency “examine the relevant data and articulate a satisfactory explanation for
its action.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile
Ins. Co., [citation]. We have made clear, however, that “a court is not to substitute its
judgment for that of the agency,” [citation], and should “uphold a decision of less than ideal
clarity if the agency’s path may reasonably be discerned,” [citation].
In overturning the Commission’s judgment, the Court of Appeals here relied in part on
Circuit precedent requiring a more substantial explanation for agency action that changes
prior policy. * * *
We find no basis in the Administrative Procedure Act or in our opinions for a
requirement that all agency change be subjected to more searching review. * * * The statute
makes no distinction, however, between initial agency action and subsequent agency action
undoing or revising that action.
To be sure, the requirement that an agency provide reasoned explanation for its action
would ordinarily demand that it display awareness that it is changing position. An agency
may not, for example, depart from a prior policy sub silentio or simply disregard rules that
are still on the books. [Citation.] And of course the agency must show that there are good
reasons for the new policy. But it need not demonstrate to a court’s satisfaction that the
reasons for the new policy are better than the reasons for the old one; it suffices that the new
policy is permissible under the statute, that there are good reasons for it, and that the agency
believes it to be better, which the conscious change of course adequately indicates. This
means that the agency need not always provide a more detailed justification than what
would suffice for a new policy created on a blank slate. * * * In such cases it is not that
further justification is demanded by the mere fact of policy change; but that a reasoned
explanation is needed for disregarding facts and circumstances that underlay or were
engendered by the prior policy.
Judged under the above described standards, the Commission’s new enforcement policy
and its order finding the broadcasts actionably indecent were neither arbitrary nor
capricious. First, the Commission forthrightly acknowledged that its recent actions have
broken new ground, taking account of inconsistent “prior Commission and staff action” and
explicitly disavowing them as “no longer good law.” [Citation.] * * * There is no doubt that
the Commission knew it was making a change. That is why it declined to assess penalties *
* *.
Moreover, the agency’s reasons for expanding the scope of its enforcement activity were
entirely rational. * * * Even isolated utterances can be made in “pander[ing,] … vulgar and
shocking” manners, [citation], and can constitute harmful “‘first blow[s]’” to children,
[citation]. It is surely rational (if not inescapable) to believe that a safe harbor for single
words would “likely lead to more widespread use of the offensive language.” [Citation.]
***
The judgment of the United States Court of Appeals for the Second Circuit is reversed,
and the case is remanded for further proceedings consistent with this opinion.
[In deciding this case on remand, the Second Circuit Court of Appeals found the FCC’s
policy unconstitutionally vague and invalidated it in its entirety. The U.S. Supreme Court
vacated the Second Circuit’s decision but ruled against the FCC’s imposing sanctions
against Fox. The Supreme Court explained that under the Due Process Clause laws must
give fair notice of conduct that is forbidden or required and laws that are impermissibly
vague must be invalidated. The Court held that because the FCC failed to give Fox fair
notice prior to the broadcasts in question that fleeting expletives could be found actionably
indecent, the FCC’s standards as applied to these broadcasts were vague, and therefore the
FCC’s orders must be set aside. The Supreme Court noted that its decision (1) does not
address the First Amendment implications of the FCC’s indecency policy; (2) leaves the
FCC free to modify its current indecency policy in light of its determination of the public
interest and applicable legal requirements; and (3) leaves the courts free to review the
current policy or any modified policy in light of its content and application. FCC v. Fox
Television Stations, Inc., 567 U. S. ____, 132 S. Ct. 2307, 183 L. Ed. 2d 234 (2012).]

List the three standards of judicial review of factual determination made by administrative agencies.
Questions of Fact — When reviewing questions of fact, courts use one of these tests:
(1) the arbitrary and capricious test, which requires only that the agency had a
rational basis for its decision, (2) the substantial evidence test, which requires that the
conclusions reached are supported by "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion" or (3) in rare cases (only when the
Another random document with
no related content on Scribd:
The Project Gutenberg eBook of Christmas
carols
This ebook is for the use of anyone anywhere in the United
States and most other parts of the world at no cost and with
almost no restrictions whatsoever. You may copy it, give it away
or re-use it under the terms of the Project Gutenberg License
included with this ebook or online at www.gutenberg.org. If you
are not located in the United States, you will have to check the
laws of the country where you are located before using this
eBook.
Title: Christmas carols

Old English carols for Christmas and other festivals
Contributor: Lucy Etheldred Broadwood
Editor: L. Edna Walter
Illustrator: J. H. Hartley
Release date: December 23, 2023 [eBook #72492]
Language: English
Original publication: New York: The MacMillian Company, 1922
Credits: Robin Monks, Linda Cantoni, and the Online Distributed

Proofreading Team at https://www.pgdp.net (This file
was produced from images generously made available
by The Internet Archive)
*** START OF THE PROJECT GUTENBERG EBOOK CHRISTMAS

CAROLS ***
Transcriber’s Note: In the HTML version of this e-book, you can click on the [Listen] link to
hear an mp3 audio file of the carol. Click on the [MusicXML] link to download the notation
in MusicXML format. These music files are the music transcriber’s interpretation of the
printed notation and are placed in the public domain.
CHRISTMAS CAROLS
CONTENTS
IN THE SAME SERIES.
ENGLISH NURSERY
RHYMES.
Selected and Edited by L. EDNA

WALTER. B.Sc.
Harmonized by LUCY E.
BROADWOOD.
Illustrated by DOROTHY M.
WHEELER.
Containing 32 full-page
illustrations in colour, decorative
borders, and about 60
decorative headings and tail-
pieces. Demy 4to (11½ × 8¾
inches).
SONGS FROM
ALICE IN
WONDERLAND
AND
THROUGH THE
LOOKING-GLASS.
Words by LEWIS CARROLL.
Music by LUCY E. BROADWOOD.
Illustrations by CHARLES
FOLKARD.
Containing 12 full-page
illustrations in colour, decorative
borders, and many small
illustrations. Demy 4to, cloth.
Published by A. & C. BLACK, Ltd., 4, 5, & 6, Soho

Square, London, W.1.
CHRISTMAS
CAROLS
Old English Carols for
Christmas and other
Festivals.
SELECTED AND EDITED BY
L. EDNA WALTER M.B.E., B.Sc.,
A.C.G.I.
HARMONISED BY
LUCY E. BROADWOOD
ILLUSTRATED BY
J.H. HARTLEY
NEW YORK: THE MACMILLAN COMPANY,

FIFTH AVENUE.
LONDON: A. & C. BLACK, LIMITED, 4, 5, & 6,
SOHO SQUARE.
This book is dedicated to

ELIZABETH
because she rather liked it.
Published, Autumn, 1922.

FOREWORD
Special times or events have been celebrated from time immemorial

by feasting, dancing, and singing. Often the dancers formed a ring
and sang as they danced, first the dance and later the song being
called a carol. The carol was not always strictly religious, although in
the old times both the singing and dancing often took place in
cathedrals and churches. Some of the carols that we still know are
connected with times before the Christian era. They have now lost
their dance and the melody has changed, but the ideas are very
ancient. The Holly and the Ivy suggest the old Druids, and we still
put up Holly and Ivy in our houses just as people did before the time
of Christ. We put them up at Christmas, and we sing the carol at
Christmas—but the idea at the back of it is older than Christmas, for
the Church accepted all that was found to be of value in the old
customs, and adapted them to set forth the newer faith. The carrying
in of the Boar’s Head is an old ceremony, too. It was considered a
Royal Dish, and Henry II. ordered it to appear at a special feast
which he gave in honour of his son.
In the old days people thought of the New Year as the time when the
trees and flowers began to come out—that is about May Day—so
the May Day Carols celebrate the New Year’s Day of ever so long
ago. Gradually, however, carols have centred more and more round
events in the life of Christ, and especially round the wonderful story
of His Birth. Many of them have just been handed on from one
person to another through hundreds of years, some have only been
written down at all during the last century. For example, the version
given here of the “Black Decree” was sung into my phonograph by
an old man of seventy-five. All the carols chosen for this book are
those which have been sung through many, many years at times of
festival and mirth (note how often food and drink are referred to), so
don’t expect them to be pious in the modern way or to be at all like
our present-day hymns.
The Publishers desire to acknowledge their indebtedness to Miss
Lucy E. Broadwood for kindly permitting them to reproduce in this
collection the following carols from her ENGLISH TRADITIONAL
SONGS AND CAROLS: “King Pharaoh,” “The Moon Shines Bright,”
“The Sussex Mummers’ Carol,” and “I’ve been Rambling all the
Night.” Also to Miss A.G. Gilchrist for the “Pace Egging Song” and
“The Seven Joys of Mary,” and to the Rev. S. Baring-Gould and his
publishers (Messrs. Methuen & Co., Ltd.) for the “Somersetshire
Wassail” from A GARLAND OF COUNTRY SONG.
CONTENTS
PAGE
GOOD KING WENCESLAS 12
AS JOSEPH WAS A-WALKING 14
CHRISTMAS DAY IN THE MORNING 15
GOD REST YOU MERRY, GENTLEMEN 16
THE HOLY WELL 18
THE FIRST NOWELL 20
THE CHERRY TREE CAROL 23
DIVES AND LAZARUS 24
THE HOLLY AND THE IVY 25
A VIRGIN MOST PURE 26
THE WASSAIL SONG. Part I. 28
THE WASSAIL SONG. Part II. 29
THE BOAR’S HEAD CAROL 30
ALL THAT ARE TO MIRTH INCLINED 33
KING PHARAOH: Part I. The Miracle of the Cock 34
KING PHARAOH: Part II. The Miraculous Harvest 37
THE BLACK DECREE 38
SOMERSETSHIRE WASSAIL 40
A CHILD THIS DAY IS BORN 43
THE MOON SHINES BRIGHT 44
A CAROL FOR TWELFTH DAY 47
THE LORD AT FIRST DID ADAM MAKE 48
THE SEVEN JOYS OF MARY 50
THE SUSSEX MUMMERS’ CAROL 52
AS I SAT ON A SUNNY BANK 53
PACE-EGGING SONG 54
I’VE BEEN RAMBLING ALL THE NIGHT 57
GOOD CHRISTIAN MEN, REJOICE 58
ILLUSTRATIONS IN COLOUR
BY
J.H. HARTLEY
Page and Monarch forth they went Frontispiece

PAGE
In fields where they lay keeping their sheep 21

Mary said to cherry tree, “Bow down to my
22
knee”
The Boar’s head in hand bear I 31
Let all your songs and praises be unto His
32
Heavenly Majesty
“Say, where did you come from, good man?” 35
“Come, husbandman,” cried Jesus, “cast all your
36
seed away”
O maid, fair maid, in holland smock 41
Glad tidings to all men 42
Awake, Awake, good people all! 45
For I perforce must take my leave of all my
46
dainty cheer
Oh, here come we jolly boys, all of one mind 55
A branch of May, my dear, I say, before your
56
door I stand
Now to the Lord sing praises, all you within this On the
place Cover
Good King Wenceslas

Smith and Robersons Business Law 17Th Edition Mann Solutions Manual Full Chapter PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Smith and Robersons Business Law 17Th Edition Mann Solutions Manual Full Chapter PDF

Uploaded by

Copyright:

Available Formats

CHAPTER 5 ADMINISTRATIVE LAW 1

Solution Manual for Smith and Robersons Business

Operation of Administrative Agencies [5-1] Judicial Review [5-2a]

Cases in This Chapter

*** Chapter Outcome ***

5-1 OPERATION OF ADMINISTRATIVE AGENCIES

*** Chapter Outcomes ***

Interpretive Rules — are statements issued by an administrative agency indicating its

575 U.S.____, 135 S.Ct. 1199, 191 L.Ed.2d 186

5-2 LIMITS ON ADMINISTRATIVE AGENCIES

5-2a Judicial Review

566 U.S. ___, 132 S.CT. 1367, 182 L.Ed.2d 367

*** Chapter Outcome ***

*** Chapter Outcome ***

Title: Christmas carols

Contributor: Lucy Etheldred Broadwood

Editor: L. Edna Walter

Release date: December 23, 2023 [eBook #72492]

Original publication: New York: The MacMillian Company, 1922

Credits: Robin Monks, Linda Cantoni, and the Online Distributed

*** START OF THE PROJECT GUTENBERG EBOOK CHRISTMAS

IN THE SAME SERIES.

Selected and Edited by L. EDNA

Published by A. & C. BLACK, Ltd., 4, 5, & 6, Soho

NEW YORK: THE MACMILLAN COMPANY,

This book is dedicated to

Published, Autumn, 1922.

Special times or events have been celebrated from time immemorial

Page and Monarch forth they went Frontispiece

In fields where they lay keeping their sheep 21

You might also like

* Chapter Outcome *

* Chapter Outcomes *

* Chapter Outcome *

* Chapter Outcome *