Ultra Vires Case Study

Discussion
Ultra Vires Issues Cueto may have a potential claim that the OER’s interpretation of the enabling act and ensuing actions exceeded the authority delegated to the OER by Congress. The OER’s notice of liability refers to Section (3) of the statute, and requires the OER to provide to Cueto “notice of the factual basis for the finding.” However, Cueto may argue that the OER failed to comply with this provision of their own enabling statute. The OER’s notice simply related to Cueto that their liability was assumed due to Cueto’s ownership of the pipeline. If Cueto was to challenge the notice per Sections (3) and (4) of the statute, it is highly unlikely the OER’s only evidence at the hearing would be Cueto’s ownership of the pipeline. It is reasonable to interpret that the “factual basis” described in the statute for Cueto’s liability that would be required for the OER to prevail at the hearing is the same or similar factual basis the OER must provide to a responsible party upon notice. If simply noting Cueto’s ownership of the

Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof. 5 U.S.C. § 556(d). Here, the OER has not provided Cueto with the factual basis for their action; however, regardless of the evidence the OER possesses, Cueto is still entitled to adjudication per the enabling statute. Cueto would be unwise to accept the OER’s penalties without demanding the OER present their evidence (or lack thereof) of Cueto’s liability. Additionally, a party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. 5 U.S.C. § 556(d). Even if the OER does present compelling evidence, Cueto has the opportunity during adjudication to potentially disprove or scrutinize the OER’s