Administrative Law - Fall 2005

Administrative Law - Fall 2005

Administrative Law - Fall 2006 1 Introduction 2 Text

Administrative Law and Regulatory Policy, Sixth Edition by Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein (2006) - ISBN: 0735556067 You get to see what adlaw looks like from inside the United States Supreme Court The text focuses more on regulatory practice than jurisprudence The text will be supplemented with more practical materials on the WWW 3 Course WWW Site

See link: http://biotech.law.lsu.edu/Courses /adlawf06/index.htm 4 Electronic Classroom Participation We will use electronic polling devices as part of class participation

(Assuming they work) I will issue them next class You pick up yours at the beginning of class and drop it off at the end of class These let you answer multiple choice questions The answers to these questions count towards the final grade, up to plus or minus 0.3 points 5 Administrative Law Administrative law governs the organization and functioning of government agencies, and how their

actions are reviewed by the courts. Federal administrative law governs agencies such as HHS and the IRS. Each state has its own version of administrative law governing its own state agencies. 6 Administrative Procedure Act (APA)

The set of laws in each state and the federal government that specifies how the agencies in that jurisdiction carry out basic functions such as rule making, adjudications, and how citizens can petition the agencies. The APA only applies if the legislature has not made special rules for a given agency. APA http://biotech.law.lsu.edu/Courses/stud 7 y_aids/adlaw/551.htm Non-Agencies and

Administrative Law The President is not an agency. The military is a quasi-agency An agency for many organizational and procurement purposes Not an agency for military actions DOJ, police departments, and courts Agencies for basic governance Not agencies for their substantive criminal law work.

8 Organization and Control of Administrative Agencies 9 What are the Roles of Agencies?

Agencies carry out government policy Federal Agencies HHS FDA Department of Defense State Agencies Health Department Department of Revenue Local Agencies City Health Department County Hospital District 10

Public Health as the First Administrative Law The colonial governments provided public health services that were taken over by the states after independence. Public health service hospitals and quarantine stations were established by the first US Congress.

City and state Boards of Health are among the first government agencies. 11 Separation of Powers The Constitutions of the federal and state government establish the structure of government. The US and State Governments are

divided Into three branches: Legislative Branch Executive Branch Judicial Branch While state governments all follow the three branch model, their organizations different significantly. 12 Agencies are Established by the Legislatures

The agency enabling statute establishes the agency's: Powers and Duties Organization Funding Standards for Judicial Review of the Agency's Actions Some state agencies are established by the state constitution or later constitutional amendments. 13 Delegation of Power to the Agency

General Grant of Power The legislature can give the agency broad powers with little specific direction. Broad powers allow flexibility Specific Grants of Power The legislature can give the agency very specific direction powers and duties. This limits flexibility but assures that the legislative policy is followed.

Contingent Grants of Power The legislature can give the agency powers that are triggered by specific events. Some emergency powers are triggered by a disaster declaration. 14 Executive Control Federal Agencies All enforcement agencies are in the Executive

branch. Congress can control agencies that only do studies and investigations, such as the Congressional Budget Office. States have several elected executives that control agencies, not a single head like the president. The governor controls most agencies. The attorney general controls the legal office. Other state offices, like state auditor, also have elected heads. 15 Independent Agencies

Independent agencies are run by boards or commissions. Members have fixed terms and can only be removed for bad conduct. Terms are staggered Federal Appointed by the President Securities and Exchange Commission is an example

State Can be appointed by the governor or other elected officials Can be statewide or local Boards of Health are appointed to hire and supervise the health director to reduce political pressure on the agency. 16 Agencies are the Vehicle for Carrying out Public Policy

Enforcement policy When does a business get a second chance and when do they get closed? When do you use quarantine and isolation? Fiscal policy Which diseases do you investigate when you have limited staff? What programs are cut when the budget is cut? 17

Changing Agency Policy Executive branch control Replace the agency director Use Executive Orders to direct agency policy Legislature Change the enabling law Increase or eliminate the funding for agency

functions Citizens Petition the agency to change and participate in pubic hearings Lobby the executive and legislature Elect different politicians in the executive and legislature 18 Federal, State, and Local Relations

Federal control of state and local government Congress can preempt state laws to assure uniform policy. Congress can make state funding contingent on adoption certain policies. States have different models of local control The legislature determines the allocation of powers. Some state health departments control the

local departments. Some local departments are independent. 19 Carrying Out Agency Policy 20 Administrative Rules The Legislature can delegate the power to

make rules to the agency Some agencies do not have rulemaking authority Rules cannot exceed the authority in the agency's enabling legislation or the Constitution Properly promulgated rules have the same effect as statutes Must give the public notice of proposed rules Must allow and consider public comment

21 Why Make Rules? National standards can be adopted through agency rules, harmonizing practice across jurisdictions National building codes

CDC guidelines on food sanitation Recommendations of the Advisory Committee on Immunization Practices Rules give the public and regulated parties guidance Rules limit the issues that can be reviewed by the courts 22 Public Participation in Rulemaking

Proposed rules must be published for public comment. The agency must take written comments. Some states require public hearings if requested by enough people. Federal agencies sometimes use public hearings on important policy issues.

The agency must review and consider the comments. 23 When Agencies Make Decisions - Adjudications How is an adjudication different from a rule? Rules apply to everyone in the affected class. Adjudications decide questions in individual

cases and only bind those parties. Parties to an adjudication are entitled to be heard. Adjudications may include oral hearings. Some adjudications are done on written documents only. 24 Administrative Law Judge (ALJ)

A fact-finder in the administrative law system. ALJs usually act as inquisitorial judges and try to assure that the case is fairly presented and decided. ALJ's do not make final decisions but make recommended rulings to the agency. 25 How are ALJs Different from Judges?

What does the judge know? Administrative law judges (ALJs) may use their own knowledge of the subject. Judges can be disqualified if they know about the subject. Conflict of Interests ALJs often know the parties and may have worked on the case. Judges in courts cannot know the case or the parties. 26

The Adversary (Court) System Judges act as referees and decide whether the lawyers are proceeding by the rules of procedure and evidence. If the attorney makes a mistake, such as neglecting important issues, the judge does not intervene.

While Louisiana has a civil law tradition, it uses common law adversarial courts. 27 The Inquisitorial (Agency) System The role of the judge is to make sure that the case is presented properly and that the result is just. The judge may ask questions and

review the evidence and can help an attorney to protect the client. Inquisitorial courts are used in many civil law countries. Agency adjudications look like the civil law systems in Europe 28 How are Adjudications different from Judicial Opinions?

ALJs are primarily fact finders. ALJs often follow Attorney General Opinions. Judge decide legal questions on their own. ALJ decisions are recommendations to the agency and may be changed by the agency. An adjudication is not binding in other cases. Court decisions can be binding on lower courts. 29

Agency Enforcement Tools 30 Permits and Licenses You have to show you have met the standards set by law or regulation before you get the license or permit. Standards must be clear. Must treat all applicants equally.

Conditioned on accepting enforcement standards You agree to be bound by the administrative rules. You must allow inspections during business hours. Licenses and permits can be revoked without a court order 31 Inspections are Adjudications

The inspector determines the facts through the inspection. The defendant may present its case explaining the problem during the inspection. The inspector must provide a written record. Local government often allows appeals to the city council. The courts will defer to the inspector's findings if the case is appealed to the courts.

32 Administrative Searches License and permit holders may be inspected without a warrant. Other inspections may require an administrative warrant.

Requirements for an administrative warrant. Unlike criminal warrants, administrative warrants do not require probable cause. They require a list of the addresses to be searched and the reasons for the search. Administrative searches cannot be used when a criminal warrant is necessary. 33 Administrative Orders

The first step in enforcement is to issue an order explaining the violation and how to correct it Most persons comply with the order and this ends the problem If the person does not comply, the order proves that the person was on notice of the problem In some cases there may also be a fine for not complying with the order If the target of the order does not comply, then the department must seek a judicial order to force compliance Most agencies cannot make arrests or use force

Violating a court order allows the courts to use their powers, which include fines and imprisonment for contempt 34 Court Orders Injunctions Orders to prevent an actions, such as operating a restaurant Temporary injunctions can be issued in emergencies

when there is not enough time for notice and a full hearing Permanent injunctions require notice to the affected party and an opportunity for that party to be hear in court Personal restriction orders These order individuals to refrain from dangerous behavior These can require treatment, such as participating in directly observed TB treatment They can limit activities, such as preventing a typhoid carrier from working in food service 35

The Advisory and Consultative Role There are some agencies that do not have enforcement powers They do research and education They shape policy by funding other agencies or private projects

The CDC is a non-enforcement agency The CDC's primary role is providing guidance to state and local health departments Most guidance is voluntary, but can be tied to the receipt of grant funds State and local health departments Departments with enforcement powers also have an important research and educational role This includes epidemiology, health education, and technical assistance to businesses such as restaurants

36 Acting in an Emergency State and local health departments historically had broad emergency powers. The courts recognize that public health powers must be construed broadly in an emergency Unless limited by the legislature, they may act without special laws. Limits on Emergency Actions

Knowing what to do is more important than the law. Emergency actions must be grounded in good public health practice. Large scale restrictions, such as evacuations or quarantine, depend on public cooperation. 37 Judicial Review 38 Standards for Judicial Review of Agency Activities

Does the activity violate the US constitution or treaties? Does a state agency activity violate the state constitution? Is the agency activity allowed by the

agency's enabling act? Is the activity prohibited by other laws? Is the agency following its own rules? 39 What if the Law is not Clear? Traditional public health laws give the agency broad powers without detailed statutory guidance

Courts use a standard from an environmental law case, Chevron v. NRDC, to decide if the agency action is legal The first step is to determine if the law clearly prohibits the agency action If the law would allow the action, then the second step is to decide if the agency action is reasonable in light of the objectives of the law If the action is reasonable under the statute, then it is allowed 40 Courts Defer to Agency Policy Decisions

"It is not the function of a court to determine whether the public policy that finds expression in legislation of this order is well or ill conceived. The judicial function is exhausted with the discovery that the relation between means and end is not wholly vain and fanciful, an illusory pretense. Within the field where men of reason may reasonably differ, the legislature must have its way." (Williams v. Mayor of Baltimore, 289 U.S. 36, 42 (1933) 41 Why Do the Courts Defer to

the Agency? Efficiency Legislatures do not have the expertise to draft detailed directions for the health department Broad authority lets the agency use its own expertise

Flexibility Health departments must deal with new conditions and emergencies that were not anticipated by the legislature Speed If the courts required specific laws for all actions, it would take months to years to get laws passed for new problems 42 Can the Court Change the Agency Decision?

If the court finds the agency action is illegal, it can prevent the agency from acting. A federal court cannot change an agency ruling, only block it and send it back to the agency for reconsideration. Some state courts can change the agency ruling and substitute their new ruling.

43 The Legislature Sets the Standard for Judicial Review of Facts De Novo Review

The court ignores the agency decision Review on the Record The court uses the record of the agency proceeding but makes an independent review Deference to the Agency The court upholds the agency decision unless it is arbitrary and capricious This is the usual standard for review No Review In some cases, such as the smallpox compensation fund, the legislature does not

allow judicial review of the agency decision 44 Exhaustion of Remedies Many agencies provide an internal appeals or review process for agency decisions The courts require that persons who want to challenge agency actions in court first go through all the agency appeals

The court does not require exhaustion of the agency process if the agency is acting illegally If the litigant goes directly to court and the court decides the action was legal, it will be too late to finish the agency process 45 Public Access to Agency Information 46

Freedom of Information Acts Provide public access to information held by agencies Have exceptions to protect trade secrets and information that will affect agency function or public safety Modified by state and federal privacy laws to protect personal

information 47 Open Meetings Laws Provide for public attendance at agency governing body meetings. Require public notice of meetings Allow for closed meetings on personnel matters and other

topics such as bids that require secrecy 48 The Non-Delegation Doctrine - the Old Cases Was Congress meant to be the only source of

law? Were the courts meant to be the only bodies that made trial like decisions? The constitution is ambiguous because the founders did not foresee a large and active federal government While the courts complained, they did not hold laws delegating power unconstitutional 49 The Non-Delegation Doctrine - the New Deal

Franklin Roosevelt was elected to end the Great Depression Roosevelt was bitterly hated by many business and moneyed interests Roosevelt was the first president to use government spending and public works to try to stimulate the economy Roosevelt also set up agencies such as the SEC to regulate business and encouraged others such as the FCC to be more aggressive

50 Court Packing Plan 1935 - Supreme Court struck provisions of the National Industrial Recovery Act, arguing that Congress had exceeding its powers in setting up the agency Roosevelt Threatened to Pack the Court with additional members until he got a majority "Switch in time saves nine" The Court did not strike any more laws on a

delegation theory. 51 Transformation of the Delegation Question The United States Supreme Court moved from questions about the power to delegate to whether Congress had given sufficiently clear guidance to allow the agency to act 52 What is the Real Question?

The agency can act on a very vague delegation authority The question becomes whether the statutes purpose is too vague to allow judicial review What standards must the court use to decide if the agency has overstepped its delegated powers? If the law is too broad, can the court determine the intent of Congress? 53

What has Replaced the Delegation Question? Does the law provide an "intelligible principle that can be judicially reviewed" End of the Non-Delegation Wars When we get to judicial review, we will explore what constitutes a sufficient intelligible principle 54 The Appointments Process

The ultimate control over an agency is through hiring and firing agency personnel, or at least through having that option available There are few cases on the appointments process so the constitutional limitations are unclear More critically, all of the decisions are split courts, which highlights the constitutional ambiguity Most of these cases could have been decided the other way and probably not have fundamentally changed the

government 55 Art II, sec. 2, cl 2 - the Appointments Clause "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. 56

Officers of the United States Appointed by the president with advice and consent of the senate Major policy role and answer to the president 57 Inferior offices Can be appointed by the president, the department heads, or the courts No advice and consent

58 Limitations in the Enabling Legislation Congress creates and shapes the executive branch Without specific appropriations, there would be no White House and the president would have to rent space from his own pocket Congress follows the Constitutional guidelines for

appointments Congress makes the close calls Congress can impose additional requirements Limitations on who can be appointed as in the FEC Limitations on removal, as in independent agencies 59 Tenure of Office Act 1867

If Congress is silent on removal, the officer serves at the discretion of the President This Act limited the right of presidents to remove cabinet members without the consent of the Senate President Andrew Johnson removed the Secretary of War Was impeached, but not removed by one vote There are now no limitations on removal of Cabinet Officers 60 Myers v. US, 272 US 52 (1926)

Why all this concern about postmasters? President Wilson discharged an Oregon postmaster without cause Postmaster sued for back pay under a law passed after the Tenure in Office Act that required the senate to approve appointment and removal of postmasters Chief Justice and Ex-President Taft wrote the opinion, which found that the Tenure in Office Act and related

acts an unconstitutional limit on presidential power. 61 Humphreys Executor v. US, 295 US 602 (1935) Less than 10 years later, Meyers is again at issue - what is the political change over that period? Why was the FTC controversial at that time? What was the restriction on removing FTC

commissioners? As a post-Myer's requirement, congress only allowed FTC commissioners to be removed for good cause 62 Myers Redux How did the lawsuit arise? President fired Humphrey from the FTC

Humphrey died and his executor sued for the pay for the rest of his term Did the court change its view on the removal power? The court said this exceeded the president's power What type of agency does this create? This is the first case to really recognize the independent agency 63 Why did the court allow this status for the FTC?

The court explains that the FTC exists to carry out specific policies spelled out by congress and is not meant to an arm of the executive branch The court focuses on the quasi-judicial functions of the agency, which were more unusual at the time, but are no longer limited to independent agencies This quasi-judicial analysis has not been important in the latter cases 64

Weiner v. US, 357 US 349 (1958) War Claims Commission What was the role of the commission? What was the statutory provision for removal? Why did Eisenhower want to remove the commissioner? 65 What is the Justification for Limiting the

President's Removal Power? What politically important decisions does the commission make? Why would congress want to limit the president's authority over the commissioner? What did the court decide about the President's right to remove a commissioner? 66

When can the President Remove an Independent Agency Commissioner? In theory the president could state a cause and fire a commissioner, but it has not happened It has not been an issue because they get hounded out of office if there is cause 67 What are the Implications of an

Independent Agency? Who really controls an independent agency? Does this subvert separation of powers? What is the ultimate political control? What would be the result of allowing the president to remove commissioners and replace them with his own? How does this work in agencies under executive

control? 68 Civil Service Congress developed the Civil Service to protect workers from losing their jobs every time the administration changed Most personnel are civil service and can only be fired for cause with due process Limited due process for security agencies This was carried over and broadened in the Homeland Security Agency 69

Pros and Cons of the Civil Service Why is important to you if you want to be a government lawyer? What are the problems with the system? How high should it go? Career track problem for senior people without lucrative outside jobs Health Directors 70 INS v. Chadha, 462 U.S. 919 (1983)

This is an important case about the relationship between Congress and agencies What is the legislative veto as used in this case? Why was it efficient from the point of view of congress? The legislative veto was very common at the time Chadha was decided 71

Background on Deportation What is the agency? Why did Congress give the DOJ the right to decide whether aliens should be allowed to stay in the U.S.? Why did they want to retain a say in deportation proceedings? Why is Congress ambivalent about deportation? 72 Chadhas Situation Did Chadha enter the country legally?

How did he become deportable? The DOJ had the discretion under 244 to stay deportation 73 Statutory Standard to Stay Deportation ( 244)

has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." 74 Legislative Veto DOJ did stay deportation What is the role of the House of

Representatives in the law challenged by Chadha ? If they had not acted, would Chadha have been able to stay in the country? 75 Standing The DOJ joined Chadha in challenging the law Why did this produce a "case and controversy"

issue? What is the purpose of the case and controversy provision? Who is the real adverse party in Chadha? 76 How Broad is the Congressional Power over Aliens? "To establish an uniform Rule of Naturalization," combined with the Necessary and Proper Clause, grants it unreviewable authority over the regulation

of aliens. 77 What is the argument that this is a good law? "Since 1932, when the first veto provision was enacted into law, 295 congressional veto-type procedures have been inserted in 196 different statutes as follows: from 1932 to 1939, five statutes were affected; from 1940-49, nineteen statutes; between 1950-59, thirty-four statutes; and from 1960-69, forty-nine. From the year 1970

through 1975, at least one hundred sixty-three such provisions visions were included in eightynine laws." 78 What if it is a good law? ... the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives -- or the hallmarks -- of democratic

government and our inquiry is sharpened rather than blunted by the fact that congressional veto provisions are appearing with increasing frequency in statutes which delegate authority to executive and independent agencies 79 What is the Constitutional Process for Enacting a Law? 80 Bicameralism What was the Great Compromise? Why was it critical to the ratification of the

constitution? How is the senate different from the house? Why is bicameralism key to making the Great Compromise work? 81 Checks and Balances How is does bicameralism it fit into the checks and balances of the US Constitution? Does the constitution require the states to have bicameral legislatures? How does the legislative veto violate

bicameralism? How might presenting this to the senate have changed the proceedings? 82 Presidential Veto Why does the constitution give the president a veto? Who did they have in mind as president when they put the veto in? What can Congress do it the president vetoes a bill?

83 Presentment Clause What is the presidents role once legislation has passed the house and senate? What if he does not sign it? pocket veto - The Constitution grants the President 10 days to review a measure passed by the Congress. If the President has not signed the

bill after 10 days, it becomes law without his signature. However, if Congress adjourns during the 10-day period, the bill does not become law. 84 When may Houses of Congress Act Unilaterally?

(a) The House of Representatives alone was given the power to initiate impeachments. Art. I, 2, cl. 5; (b) The Senate alone was given the power to conduct trials following impeachment on charges initiated by the House and to convict following trial. Art. I, 3, cl. 6; (c) The Senate alone was given final unreviewable power to approve or to disapprove Presidential appointments. Art. II, 2, cl. 2; (d) The Senate alone was given unreviewable power to ratify treaties negotiated by the President. Art. II, 2, cl. 2. 85 What is the significance of these narrow exceptions?

86 The Ruling Why did the court find this was a major constitutional issue? What did the court rule? Has this crippled government function? Does it strengthen agency powers? 87 Post-Chadha Congress enacted a law requiring notice of certain agency actions and created a delay

in their implementation to allow it to pass a law to override them It is much harder to do, which leaves the agencies more latitude than before Chadha 88 Bowsher v. Synar, 478 US 714 (1986) May Congress control the removal of an officer with executive branch functions?

What is the general power of congress to remove executive and judicial officers? 89 What is the Separation of Powers Issue? What did the Comptroller General do that effected

the president's powers? Why does this create a separation of powers issue? What if Comptroller only prepared a report to congress? What did the court find? 90 President Nixon and the Origin of the Independent Counsel The Saturday night massacre Why do the liberals really hate Bork? He carried out Nixon's order to fire Cox Nixon's firing of the independent prosecutor was the background for this law

91 What was Clinton's biggest political mistake? Not vetoing the renewal of the Independent counsel law Hubris - it had been attacking Republicans and he was going to have the most ethical administration in history 92

Morrison v. Olson, 487 US 654 (1988) Morrison was being investigated by the independent counsel He claimed that the office was unconstitutional because the independent counsel was not under the control of the president. 93 Appointing the Independent Counsel The AG requests an independent counsel Who makes the appointment?

Three judge panel appoints the counsel Can the Independent Counsel be removed by someone under the control of the president? The AG can remove for good cause, mental disability, or other good reasons 94 What was the key issue in Olson? Key issue is the limitation of the removal power to good cause, rather than at-will Does this impermissibly interfere with the

president's power to carry out the laws? Majority says no, rejects the use of "quasilegislative/quasi-judicial" labels and focuses on separation of powers 95 How did the court modify Myers/Humphrey? Changed to a core function standard Is it an "inferior" official - yes, because of the limited mandate

Is this a critical area for the president to control the exercise of discretion? - no, that is why it is independent Does the president retain enough control? yes, good cause is good enough, and this exercised through someone (AG) the president controls 96 Intimidation by the IC

Scalia sees this as a stark limitation on the president's power to exclusively control the executive branch He points out that while the IC may not intimidate the president, it will affect executive branch officers who are subject to what seems political prosecution 97 Was Scalia Right?

What was he worried about as regards the power of the office? He stresses the broad powers of the IC What would it cost you to be investigated? Was Scalia right about the impact of the IC? How did Reno solve the problem for Gore? Reno figured out how to solve the problem there is no review of her refusal to appoint an IC 98 Mistretta v. US 1989

This case attacked the US Sentencing Commission as an impermissible limitation on the Judicial Branch What was the purpose of the US Sentencing Commission? Meant as a liberal attack on disparate sentencing that resulted in the poor and minorities receiving longer sentences, 99 How did the Sentencing Commission Affect Sentencing?

All sentences were made longer and the judges lost discretion to shorten them. While white collar criminals did more jail time, drug offenders and the like did a lot more time. Also limited and eliminated various ways to shorten a sentence. 100 The Mistretta Ruling

The Court upheld this commission because of its peculiar nature, finding that it did not unduly affect the judicial branch Is there any right to judicial discretion? Probably limited by the power of congress to set sentences - nothing says judges are allowed sentencing discretion The sentencing guidelines have been limited in a later case. 101

Summing Up 102 Inferring Tenure What is the assumption if there is no term of office? If there is no term of office, the starting assumption is that the official serves at

the pleasure of the executive What if it says good cause? This is true even if there are conditions such as good cause on removal otherwise the official could stay in office forever 103 How does this change if there is a term of office? If there is a term of office, then there is stronger

argument that the executive cannot remove at will, but this really depends on the court deciding whether there is a policy reason that the appointment should have some freedom from executive control Thus independent agencies would get more protection than the executive's staff 104 105 Delegation of Adjudicatory Power to Agencies This mirrors some of the issues raised by the delegation of rulemaking powers

Can Congress delegate the right to decide individual disputes to agencies? This is not a critical issue for this course 106 Article III Judges Protections Lifetime tenure Cannot reduce salary Cannot fire, only impeach Cannot discipline Why do we have these protections?

107 How are ALJs different? Civil service protections Can be fired Can have salary lowered, but hard to do this Can set work standards and discipline How are the pressures different than those on an Article III judge? 108

Adjudication of Public Rights Public rights have an evolving definition One definition is that these are rights created by congress, such as the right to government land or welfare benefits One set of cases indicates that since Congress creates these rights, they can set how they are awarded Congress can set up compensation that is not related to real facts Remember this later when we see the "bitter with the sweet" doctrine

109 Can an Agency Adjudicate Private Claims? The United States Supreme Court invalidated a law letting bankruptcy judges decide contract issues in 1982 because it was not reviewable by an Art. III judge This was a narrow plurality decision driven by the broad powers of bankruptcy courts It has been implicitly limited by later cases 110

Commodity Futures Trading Commission v. Schor CFTC can adjudicate disputes between clients and brokers, and award damages Can also adjudicate counterclaims because otherwise everything would go do court 111 Does Adjudication of Private Claims Violate Separation of Powers? A key question becomes the appeal rights to the courts Orders must be enforced by the courts, so

they can be reviewed Decisions are subject to judicial review We will see this in the judicial review section as a debate over the proper record for review 112 Right to Jury Trial

There is a right to a jury trial for certain federal civil matters that were part of the common law when the Constitution was adopted The courts have construed these rights narrowly, limiting them to their historical antecedents, such as maritime cases Many states do not allow adjudication of private disputes under state constitutional open courts provisions LA had to have a constitutional amendment to allow worker's compensation 113

Limitations on Adjudication An agency cannot imprison someone as a punishment Under federal and some state laws, a person can be imprisoned for violating an agency regulation Must get a criminal trial Regulation must pass the vagueness test 114 State v. Broom, 439 So.2d 357 (La. 1983)

Defendant was prosecuted for violating the Louisiana Explosives Code Challenged on void for vagueness and on nondelegation theories On first review, the LA SC rejected the challenges and found that he could be prosecuted for violating an agency regulations On rehearing, the Court found that prosecuting on an agency rule violated separation of powers 115

State Separation of Powers Wooley v. State Farm Fire and Cas . Ins. Co., 893 So.2d 746 (La. 2005) 116 State Regulation of Insurance McCarron-Ferguson Act - 1945 With a few exceptions, leaves the regulation of insurance to the states

Insurers are organized by state States do not have the information or expertise to do the job Limits the risk sharing to small pools ERISA is the big exception - no regulation at all Exempts insurance companies from antitrust laws Allows collusive action between the independent companies 117 Office of Insurance Commissioner

Who served as Insurance Commissioner prior to 1956? What did the constitutional amendment of 1960 provide? What powers and duties did the 1973 constitution provide to the insurance commissioner? Any problems with office over the past few commissioners? 118

ALJs in LA Prior to the creation of DAL, did the LA APA have specific provisions authorizing ALJs? Who employed them at this time? Were there uniform criteria for selection? Should there be? Should they be lawyers? 119 Key Provisions of the DAL - 1995

The DAL shall handle all adjudications required by the LAPA, that the ALJ shall issue the final decision or order and the agency shall have no authority to override the decision or order, no agency or official thereof shall be entitled to judicial review of an adjudication. that the governor shall appoint, and the Senate confirm, a director for DAL, who, in turn, shall employ the ALJs, and that the current ALJs employed by the various affected agencies shall be

transferred to and employed in the DAL. (Some agencies such as medical licensing are excluded) 120 Key Questions Why go to a central panel of ALJs? Why are the different backgrounds of the ALJs an

issue? Why does finality mean now that the ALJs are deciding legal and not just factual questions? What do other states and the feds do? What is the effect of having the ALJ bind the agency without appeal, while allowing the regulated party to appeal to the courts? 121 Courts in LA

Article V, sec. 1 vests the judicial power of the state in the courts making up the judicial branch of government, the supreme court, courts of appeal, district courts, and other constitutionallyauthorized courts. Further, La. Const. art. V, sec. 22(A) provides that all judges shall be elected. Finally, Article V, sec. 16 grants district courts original jurisdiction of all civil and criminal matters and appellate jurisdiction as provided by law. While a court's jurisdiction and judicial power traditionally flow from these constitutional grants, Article II, secs. 1 and 2 also establish the basis for inherent judicial powers which are not specifically enumerated in the constitution. 122 How are Agencies Hybrids?

What are the legislative functions of an agency? What are the executive functions? What are the judicial functions? Why are these only "quasi-judicial"? What would be the problem if they were really judicial? Does this make "quasi-judicial" a circular

definition? 123 Are DAL ALJs Judges - District Court Opinion? What factors did the district court focus on? Are these really legal factors? Why are they politically significant? 124 The Nature of the ALJ Decision in Wooley

What issue was before the ALJ? Is this an appropriate question for an ALJ? Did the court see the ALJs deciding these cases as acting as a part of the Department of Insurance? Why is this a critical part of the opinion? 125

What did the LA Supreme Court Find? DEQ decisions are not part of the traditional civil court matters as defined in the 1973 constitution. The testimony in the record reveals that ALJs do not have the power to enforce their decisions and orders, a power that unquestionably lies in Article V courts. The ALJs simply are not constitutionally allowed to

exercise the judicial power of the state and Act 739 does not impermissibly attempt to authorize the exercise of judicial power. The ALJs make administrative law rulings that are not subject to enforcement and do not have the force of law. 126 Enforcement

Who does have the enforcement power? What did the legislature intend for the agency to do with the ALJ's ruling? Did the court ignore the plain language of the law? What would they have to rule if they read the law the way legislature intended? Why would they dodge this? 127 You Are Counsel for State Farm

What are you worried that the agency will do? How would you have to fight that? What court would you end up in? Can you mandamus the agency to approve it? Bonvillian v. Department of Ins., 906 So.2d 596, 20040332 (La.App. 1 Cir. 05) Do you tell them to go ahead and use the policy based on the ALJ's ruling? What about the res judicata act? 128

Does the Res Judicata Statute, La. R.S. 13:4231, Apply? Pursuant to this statute, then, a second action is precluded when all of the following criteria are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of

the first litigation. Burguieres v. Pollingue, 02-1385, p. 8 (La. 2/25/03), 843 So.2d 1049, 1053. Judgment by whom? 129 Changing this Ruling Can the legislature change the Wooley decision by statute?

What about the law they just passed saying we really mean it? What was declared unconstitutional in Moore v. Roemer? How was that fixed? Has the legislature tried this with Wooley? 130 What about Limiting Appeals by the Commissioner?

How does this limit the power of the commissioner, assuming that the ALJ's opinion means anything? What is the commissioner's legal argument for declaring this part of the law unconstitutional? What does the court say about the legislature's authority to limit the office of Insurance Commissioner? 131 Does The Commissioner Have Another Way to Get Into Court?

What is a declaratory ruling? Why would it be exactly on point in this case? Has the legislature prevented the commissioner from requesting one? Could the legislature block this avenue of appeal? This was remanded to the Appeals Court 132 Wooley v. State Farm Fire and Cas. Ins. Co., 928 So.2d 618, 2005-1490 (La.App. 1 Cir.

2/10/06) On Remand: The "existing facts" of the present controversy, for our purposes, are simply these: The ALJ made an adjudication that the RCU form met La. R.S. 22:621's requirement of compliance with law, an adjudication which is not subject to judicial review at the request of the Commissioner and with which the Commissioner is now bound by law to comply. A litigant not asserting a substantial existing legal right is without standing to seek a declaratory judgment, and such lack of standing renders any judicial opinion sought an impermissible

advisory opinion. Such is the present position of the Commissioner. 133 Where does the Remand Leave the Case? What is at issue before the Commissioner right now? Do you want an ALJ deciding these issues? 134

135 Critiques of Regulatory Policy 136 Regulatory Successes FDA since 1900

Environmental regulation Through the 1980s Workplace safety Civil rights 137 Regulations that Did Not Work so Well Airline rates and routes Trucking rates and routes

Telecommunications Who wins and who loses in economic regulations? Small towns and rural areas Unions Big business 138 Are We Better Off? What has improved over the past 50 years?

Health? Racism? Do more people have more stuff? What does it mean to be poor in the US over the past 50 years? What has gotten worse? Income disparities? Role of expectations? 139 Why Doesn't the Public Trust Agencies?

What are examples of public distrust of agencies? Are these justified? What is the impact of this distrust? Why don't people want to pay taxes? 140 FDA

Drug lag? What are the tradeoffs in FDA regulation? Safety Effectiveness Should cost be part of the equation? Why are consumers in a poor position to judge drugs? Background Information? Timeframe of action? Comparison with other drugs? Why not let the market sort it out? 141 Health Care as a Regulated Industry

What are the problems facing health care in the US? What has happened to nature of disease over the past 100 years? How does this complicate health care policy? What does this tell us about the Charity Hospital system? What are the financial incentives in health care? 142 How is Ethanol a Regulatory Problem?

143 Cost Benefit Analysis How much should we spend to save a life? How much to prevent injury? How much should personal responsibility matter? personal protective gear? 144

CBA Costs - Table 3-1 - p. 151 What is the problem with lives saved analysis? Are they the same lives for different risks? What about disability? What are the most cost effective regulations? Interesting that vaccinations and clean drinking water are not here 145 Could We Spend the Money More Wisely?

What type of risks do we spend the most on with the least return? Asbestos abatement of stable asbestos in buildings Superfund risks Overstated health risks - LA cancer corridor What risks get the least attention? Smoking? Immunizations? Primary care? 146

What is the Cost of Unemployment? Economic costs to the individual Lost opportunities for your children Lost of assets, making recovery harder Health costs Stress Reduced access to care Self-esteem

Crime 147 Should we do CBA at All? Why not prevent all possible risks? What are the trade offs? How does the US concern with risks affect our cost of business production? When can preventing one risk cause another?

Natural pesticides Smaller, lighter cars More expensive power? 148 Non-Agency Regulation: Tort and Compensation Law

How is tort law a regulatory process? Is it a democratic process? What is the public input? Who protects the public's interest in tort cases? What are the standards for scientific decisionmaking? Breast implants? Erin Brockovich? What are the standards for CBA? What if later evidence shows that the verdict or settlement was wrong? 149

Should We Control Personal Risk Decisions? Should consumers have the right to buy much cheaper and better mileage cars that are less safe? Should consumers have the right to use unapproved drugs? What if they are dying? What about not getting their kids vaccinated?

Smoking? Smoking dope? 150 Impossible Tasks Why do legislatures give agencies impossible tasks? What are the possible agency responses?

What is the conflict between LSU owning both the charity hospital system and the medical school? What about the state regulating state owned hospitals? 151 Civic Republicanism

How can agencies be better representatives for the whole population than are the elected officials? What are the pressures on elected officials? How are these different for agencies? Independent agencies? Should there be more public participation? Should congress and the executive have to disclose all contacts with the agency? 152 Regulatory Alternatives 153 Economic incentives and Taxes for

Environmental Risks Tradeable permits for a fixed amount of pollution Would require the government to decide how much pollution is OK, not to just focus on process Lets industry see who can do it the most efficiently What if you are downwind? Does an aggregate reduction, which benefits more people, make you any happier?

154 Collective bargaining for working conditions and safety What are the limits on this? How could we change them? Is this a good idea? 155 Negative income tax rather than

Government Benefits Proposed by Nixon Why might a conservative argue for this? Should we let people choose what to do with their money? Who could benefit? What are the benefits in administrative costs over the current benefits system?

What are the problems? 156 What about Natural Monopolies? What are natural monopolies? Why not allow cable companies to compete for business in a given community? How can natural monopolies change with time?

Telephones? IBM mainframe computers? Can antitrust laws be an alternative? 157 Agency Personnel Issues How does political control conflict with agency expertise? What are the problems with attracting good people to agencies? Could these be changed?

Will strict conflict of interest rules make agencies work better? Do you need industry expertise in the agency? FDA? Do you want people to stay in the agency for their whole life? 158 Assignment for Thursday: Should We Rebuild New Orleans?

Would NO be in better or worse funding position if they had properly evacuated the folks before Katrina? What is the CBA for real evacuations? What is the CBA? What are the trade-offs? Who should pay What about the responsibilities of the homeowners? Should we bail them out? How much do you want to pay? What about coastal erosion and subsidence? Should we rebuild before it is safe?

If we do not rebuild, what happens to the CBA? 159 160 Judicial Review 161 Key Questions

When and why should the courts defer to the agency's decision? What can the court do when it rejects the agency's decision? Federal v. state What is the proper standard of review for agency actions? What is the law versus fact distinction? 162 What is the Court Reviewing? - The Agency Record

The agency develops a written record of the proceedings before it This is like a trial transcript in that once it is completed, it cannot be supplemented on judicial review The courts review agency actions as they would trial court rulings, unless it is de novo review In most cases rejecting an agency's decision or action, the court remands for that the agency can cure the record This means going back and supplying the missing

evidence 163 Types of Judicial Review of Agency Fact Finding Congress is free to set the standards of review for agency fact finding If Congress does not set a standard, then the default is provided by the APA 164

Trial De Novo You start over at the trial court Agency findings can be used as evidence, but there is no deference to the agency FOIA Used more by the states than the feds 165

Independent Judgment on the Evidence Decide on the agency record, but do not defer to the agency's interpretation of the record Sort of like appeals in LA 166 Clearly Erroneous

Definite and firm conviction that a mistake has been made on the facts or policy Same as reviewing a verdict by a trial judge without a jury 167 Substantial Evidence - Formal Adjudications and Rulemaking

Formal proceedings are rare Could a reasonable person have reached the same conclusion? Standard for reviewing a jury verdict or for taking a case from the jury 706(2)(E) - only applies to formal adjudications and formal rulemaking Should a jury get more or less deference than an agency?

168 Substantial Evidence - Informal Adjudications and Rulemaking Almost everything is informal 706(2)(A) Arbitrary and capricious or abuse of discretion Same assessment of reasonableness as 706(2)(E), so the result is about the same as the substantial evidence test used for formal proceedings

169 Some Evidence Scintilla test The agency needs to show even less than in the substantial evidence standard Only limited use 170

Facts Not Reviewable At All Congress can prevent certain types of judicial review Compensation decisions under the Smallpox Vaccine Compensation Act are not reviewable Enabling law is always reviewable unless Congress has taken away the court's subject matter jurisdiction 171

Labor Politics What is the history of labor unions? Coal mines Steel Why would Congress want to encourage labor unions in 1935? Why were unions unpopular with industry? 172

National Labor Relations Board (NLRB) Created by the Wagner Act of 1935 Classic New Deal agency Modified by the Taft-Hartley Act and other laws Structured to encourage unions Independent agency run by a commission Presidents can only replace commissioners as their term expire This means that the commission is often out of step with the current administrative

173 How has the Role of Unions Changed? Why happened in the 1960s and 1970s to discredit labor unions? What happened to core unionized industries?

What is the effect of global competition? What is the only remaining stronghold of unions? Why? What political issues may strengthen unions? 174 Effect of Politics on the NLRB Congress is not supportive of the NLRB's original

mission Most of the workforce is not unionized Congress has not changed the statutory presumptions underlying the NLRB Union/Management relations are very political Thus NLRB decisions are very political The NLRB does not like to make clear rules that Congress might change 175 Universal Camera Corp. v. NLRB, 340 US 474 (1951)

Employer fires chairman after he testified at an NLRB meeting What did the hearing officer do? Believed the company and did not reinstate him What did the NLRB do? NLRB rejects the hearing officer's finding Reinstated the chairman with back pay 176 What is the key legal issue before the court?

Should the court reviewing the NLRB's action consider the hearing officer's recommendation? Is the agency bound by the hearing examiner's opinion? Should the court look only to the part of the record that the agency relies on for their decision or the record as a whole? Court says you have to look at the whole record, including the ALJ's findings 177

When Are the ALJ's Findings Most Persuasive? What type of rulings by an ALJ carry the most weight with the court when there is conflict between the ALJ and the agency? How should the agency handle such conflicts in the record? 178 Deference to Agency Factfinding

Why should the courts defer to agency factfinding? How does the expertise of the ALJ and agency decisionmakers differ from the judges? What about the practical concerns? How about the LA problem of final decisions being made by non-expert ALJs? 179

Allentown Mack v NLRB, 522 US 359 (1998) Recertification election politics Why create a presumption against letting employers force recertification elections? What are the pressures on employees when a union is seeking a certification election? What were the facts that the NLRB was reviewing? 180

Standard of Proof Did the NLRB say that it had a presumption against recertification elections and thus required a high standard of proof for employers contesting elections? What was the practical effect of its factfinding? Why did this lead the majority to reject its ruling

and remand for further review by the agency? Why does the dissent say this is a problem for agency factfinding? 181 Burdens Burden of Persuasion Always stays with the person who loses if that issue is found against them

Burden of Production Shifts once the other side has put on evidence of their prima facie case While the APA is not clear on this, the courts have held that persons challenging agency actions retain both burdens 182 Zhen Li Iao v. Gonzales, 400 F3rd 530 (2005)

What is the regulatory conflict for immigration judges? How many people in China follow Falun Gong What is the implication if the court finds that they all have a reasonable fear of persecution? Is this what Congress and the Administration want? What did this immigration judge rule? 183 Reviewing Policy in the Guise of Facts

What did Posner think the judge should have done? What sort of factors did Posner want considered? In another case Posner found that delay alone was enough to let the alien stay Is this the fault of the agency or does it reflect a Congressional policy? Should the courts use judicial review to challenge Congressional policy? 184

Questions of Law Should a Court Defer to an Agency's Interpretation of Law? Why? How should the courts treat the agency's legal interpretations? 185 Ratemaking Cases

Very controversial in the early days Seen as a constitutional fact problem Did the rate confiscate the regulated party's property? No longer controversial The courts almost always defer to the ratemaking agency unless it is acting unlawfully 186 U.S. v. Fifty-Three Eclectus Parrots, 685

F2d 1131 (1982) Is the determination of whether a parrot species is wild a factual or a legal decision? Since there was a statutory definition of wild, and the defendant could not rebut its application, the court found that this was a legal question Why are mixed law and fact questions subject to manipulation by the courts? 187

Skidmore v. Swift & Co., 323 U.S. 134 (1944) We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.

188 Next Stop - Chevron 189 Background on Rulemaking 190 Administrative Rules

The Legislature can delegate the power to make rules to the agency Some agencies do not have rulemaking authority Rules cannot exceed the authority in the agency's enabling legislation or the Constitution Properly promulgated rules have the same effect as statutes 191 The Agency as Legislature The shift from adjudications to rulemaking started in the 1950s The courts try to allow an agency to

make rules Parallels the growth of state and federal agencies 192 How do you make a Rule? Publish the proposed rule and what it is based on

for public comment The Federal Register and LA Register are where rules are published first Review and address public comments and publish these along with any modifications in the rule Codify the rule after it is effective Rules are Codified in Code of Federal Regulation and the LA Administrative Code 193 How do Rules Differ from Adjudications? 194 Participation and Generality

Allow Public Participation Adjudications are limited to the parties Allow Political input Rulemaking is a public process which allows politicians input Appropriate Procedure Adjudications are tied to specific facts and parties Rules are generally applicable, although they may be

very specific 195 Prospective v. Retrospective Retroactivity Adjudications are based on things that have already happened Adjudications can be treated as treated as precedent, but this is not binding

Adjudications are driven by the available cases Rules are prospective Not bound by existing facts 196 Uniformity Adjudications, like trials, are driven by specific facts and can treat similar situations differently Rules set up a general framework that treats all parties uniformly Rules are the fairest way to make big

regulatory changes 197 Adoption of National Standards National standards can be adopted through agency rules, harmonizing practice across jurisdictions National building codes CDC guidelines on food sanitation

Recommendations of the Advisory Committee on Immunization Practices LA should adopt building codes 198 Agency Efficiency While a rulemaking can be expensive and time consuming, it can settle issues across a large number of adjudications Rulemaking can also eliminate many hearings by resolving factual questions

In disability case, rules can be used to establish what constitutes a disability, rather than making it as case by case determination. 199 Better Guidance for the Public Rules are published and codified State rules were hard to find, but the Internet is making this better Agency adjudications, especially at the state level, are often not published There may be no transcript of the full adjudication Rules are binding

200 Agency Oversight You can control the outcome of rulemaking much easier than that of adjudication Not Dependant on ALJs Why is this especially important in LA? More input from across the agency Directly controlled by agency policy makers 201 Downside of Rulemaking

Adjudications can be more flexible in the individual cases Rules can be so abstract or overbroad that they are expensive or difficult to follow Adjudications are useful when you are not sure what the rule should be and need more info and a chance to experiment

Does not do away with the need for adjudications 202 Rulemaking Ossification Rulemaking has gotten so complex and time consuming it has lost some of its value

Rulemaking can go on for years What is the legal value of a proposed rule that has not been finalized? This was the problem for the anti-kickback regulations Complicated by regulatory conflict and incompetent agency practice The courts and legislature have increased the burden on rulemaking 203 What is a Rule? 204

Definition of a Rule APA 551(4) (4) 'rule' means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future

of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing; Not a clear definition Things that are not adjudications or licensing 205 State Definitions Critical term is general applicability Property tax assessment for your house is an adjudication Standards for conducting an assement

and the tax rate are rules. If you do not get a hearing, it is probably a rule 206 LA Definition 6) "Rule" means each agency statement, guide, or requirement for conduct or action, exclusive of those regulating only the internal management of the agency and those purporting to adopt, increase, or

decrease any fees imposed on the affairs, actions, or persons regulated by the agency, which has general applicability and the effect of implementing or interpreting substantive law or policy, or which prescribes the procedure or practice requirements of the agency. "Rule" includes, but is not limited to, any provision for fines, prices or penalties, the attainment or loss of preferential status, and the criteria or qualifications for licensure or certification by an agency. A rule may be of general applicability even though it may not apply to the entire state, provided its form is general and it is capable of being applied to every member of an identifiable class. The term includes the amendment or repeal of an existing rule but does not include declaratory rulings or orders or any fees. 207 What if it is not a Rule?

Interpretive Guidance Does not need notice and comment It is only explaining the law Prosecution guidelines are classic examples 208 Is it an Interpretative Rule? (Mead)

Do they have legal effect? The legally binding test Does the agency treat them as binding? Key - are there cases when they do not follow them? Does the agency call them interpretations when it publishes them? Do they conflict with previous rules?

209 Prospectivity and Retroactivity Legislation is often retroactive - Superfund Rules are not supposed to be retroactive, but what does that mean? I cannot go back and say that you can no longer get paid for in office chemotheraphy and then ask for a refund

I can say you can no longer get paid for in office chemo and make your investment in your stand alone cancer center worthless Only real limit is ex post facto provision in the Constitution 210 Can Interpretative Guidance be Retroactive? Why does this ban on retroactive rules not apply to interpretive rules? How is this like the court system when a judge finds a new tort cause of action? Could congress create an exception to the APA and allow a retrospective rule?

211 Exemptions to Notice and Comment Requirements Is notice and comment a constitutional requirement? 212 Military and foreign affairs

Why exempt these? Limiting the term of residence for Iranian nationals after the hostage incident National security issues? Extending asylum to persons who subject to reproductive restrictions in China Was this just an individual benefit or part of a foreign policy? 213 Agency Procedures

Like the code of civil procedure Does not change the substantive rights of the parties Does not change the regulated behavior, only the process in agency procedures 214 Actions where Secrecy is Important

Wage and price controls Bidding on contracts Negotiations on land purchases and sales 215 Emergency Proceedings

Emergency Rules http://www.state.la.us/osr/osr.htm Interim Final Rules Published and in effect, but will be modified after comments are in. Calculations and other non-discretionary rules Technical corrections Can require notice and comment if the correction causes a different result 216 217 Chevron U.S.A., Inc. v. NRDC, 467 US 837

(1984) - 560 Very important case Deals with the review process when it is alleged that the agency has overstepped its statutory authority What was the issue? Whether the EPA had the authority under the Clean Air Act to use the "bubble" approach to stationary sources, i.e., treating one plant as a single source, which gave more flexibility in trading off emissions between different processes in the plant 218

Chevron Step One Did congress give specific guidance in the statute? This can be positive or negative - i.e., the statute might allow the action, or clearly prohibit it 219 Chevron Step Two

If congress did not speak directly to the issue, is the agency's interpretation reasonable under the general intent of the enabling act? 220 Did Congress speak directly to this issue? Why did Congress want to balance in enforcing the Clean Air Act?

The economic interest in continued industrial development and cleaning up the environment Why did Congress not spell out how it wanted the law to be enforced? Requires changing technical expertise Political Hot Potato 221 How do you decide congressional intent? What is in the law itself? What is in the formal legislative history, i.e., committee documents and the like? What was said at hearings on the statute?

222 How can legislative history be manipulated? Ever see those speeches to an empty chamber? You can introduce reports that were never approved or reviewed by a committee

The committee can mask its view of the law with bogus history Scalia usually is against legislative history and Breyer is for it, but in some cases like the FDA Tobacco Case they switch roles. 223 What did the Court Rule? What did the court find in step two about the legality of the EPA standard? The bubble was OK How is step two very much like the arbitrary and capricious standard?

224 How are Courts and Agencies Different? What does the United States Supreme Court say is different about the roles of courts and agencies in resolving political questions? The court must be neutral The agency should carry out the executive's policies 225 What factors indicate to the court that the agency is probably correct?

226 1) Procedure - was there a full notice and comment process, which would tend to identify legal problems 227 2) Thoroughness of consideration - how well does the agency make and document its rational for the

interpretation? 228 3) Contemporaneous Construction - does the interpretation date back to the drafting of the law and was the agency involved in the drafting? 229 4) Long-standing construction

230 5) Consistency - is it consistent with the agency's interpretation of similar laws? 231 6) Reliance - have people been relying on the interpretation?

232 7) Reenactment - did congress endorse the interpretation in some manner? This usually happens by congress knowing about the interpretation while it is amending the law, and

not changing the law to block the interpretation. 233 234 UNITED STATES v. MEAD CORP., 121 S.Ct. 2164 (2001) Does a tariff classification ruling by the United States Customs Service deserves judicial deference?

235 How the classifications done? Customs reclassified Daytimers as diaries This was done by a letter, which did not go through notice and comment Mead protested, and the circuit court said the letter was not entitled to Chevron deference 236

United States Supreme Court Adjudication and notice and comment proceeding are clear evidence that congress expected the agency to fill in the law and that the court should defer to the agency Was this notice and comment? The court says that there can be deference in other circumstances, and tries to define those 237

How did the Agency treat its own ruling? "Customs has regarded a classification as conclusive only as between itself and the importer to whom it was issued, and even then only until Customs has given advance notice of intended change. Other importers are in fact warned against assuming any right of detrimental reliance. Why should this matter?

238 What does the ruling's "persuasiveness" mean? "A classification ruling in this situation may therefore at least seek a respect proportional to its "power to persuade." Such a ruling may surely claim the merit of its writer's thoroughness, logic and expertness, its fit with prior interpretations, and any other sources of weight. 239

Where does persuasiveness leave the Circuit Court? This leaves the appeals court with the burden of figuring out how to deal with the ruling in a fashion that does not defer to the agency, but does recognize the agency's expertise and knowledge 240 Why does Scalia reject the majority's rule?

Some decisions that are neither informal rulemaking nor formal adjudication are required to be made personally by a Cabinet Secretary, without any prescribed procedures Is it conceivable that decisions specifically committed to these high-level officers are meant to be accorded no deference, while decisions by an administrative law judge left in place without further discretionary agency review, see 5 U.S.C. 557(b), are authoritative? This seems to me quite absurd, and not at all in accord

with any plausible actual intent of Congress. 241 Congressional Intent This fits with Scalia's general view that the courts should not try to read the mind of congress and

should defer to the agency if there is an ambiguity. If congress is unhappy with that, they should change the law. Are you comfortable with deferring as much as Scalia wants to? Does he really mean it? 242 243 Babbitt. Sweet Home, 515 US 687 (1995)

Spotted Owl Case Classic question of agency interpretation of a broad delegation of authority Does the statutory prohibition on the taking of endangered animals include destroying their habitat so that it causes direct injury to the endangered animals? 244 Majority Opinion

Focuses on the broad powers given the secretary of the interior Looks at the intent of congress to protect the animals Finds that the secretary's interpretation of protecting the animals includes protecting the environment is reasonable 245 Dissent - Scalia

Scalia, the hunter, reads the statute literally: Taking means shooting them, putting them in the pot, eating them. At least, taking means directly takings actions against the animals, not the environment Makes the economic argument that this was level of disruption was not intended by congress Says congress can by the land if it wants to protect the habitat 246

What is the Balancing by Congress? What was the endangered species act intended to protect? What does it usually protect? Would Congress have passed a law to protect these? What about environment? Why hasn't congress "fixed" the act to overturn this ruling?

247 MCI Telecommunications Corp. v. American Tel. & Tel. Co., 512 U.S. 218 (1994) FCC case Agency modified tariff system (rate approval system) to exclude smaller carriers Majority said this failed Chevron I

The act exceeded the agency's statutory powers The dissent saw this as just another interpretation problem Valid under the power to improve competition 248 Public Citizen v. Young, 831 F.2d 1108, (D.C.Cir. 1987) The Delaney Clause Can the FDA create a de minimis test to all the use of food additives that do not satisfy the Delaney Clause?

249 Delaney Clause What does the legislative history show about the congressional intent for the Delaney Clause? Why would Congress adopt this standard? Is it scientifically absurd?

Peanut butter Most plants Given this intent, what must the court rule? Must these dyes be immediately banned? 250 251 Tobacco in the Colonies

What was the role of tobacco in the colonial period? How was smoking viewed by most people in the 1950s? What happened in 1964? Why is it so hard to quit smoking? 252 Federal Cigarette Labeling and Advertising Act - 1965/1969

Required hazard labeling on cigarettes Banned cigarette advertising in electronic medial regulated by the FCC Why not ban it everywhere? Prevented state additional requirements Which requirements were they worried about? What happened in torts in 1965? What about non-tort concerns? 253 Public Health Impact of Tobacco

#1 preventable cause of illness #1 problem is heart disease 6 out of 7 smokers do not live to get lung cancer Emphysema is the big lung issue - nasty way to live, then you die Slow progress in limiting smoking May have plateaued after the tobacco settlement

254 In Defense of Tobacco Limits retirement Saves Medicare and Social Security Great for private pension plans as well Tobacco will reduce life-time health care costs if you smoke enough Ideally you will also eat a lot of burgers

Improves job opportunities for young, cheaper workers 255 Politics of FDA Chairman Kessler was appointed by Bush I Liked publicity Wanted to keep his job when Clinton can into office Banned silicone breast implants - just to be safe

Made 4.5 billion for trial lawyers and got to keep his job 256 FDA v. Brown & Williamson Tobacco Corp. The FDA decided to regulate tobacco What was the politics? What had it said about tobacco regulation over the past 50 years? 257

FDA Authority Anything sold in interstate commerce with the intent to affect the structure or function of the body is a drug Drugs must be proven safe and effective 258 FDA Regulation of Tobacco

Does it fit within the definition of a drug? What would be the effect of applying the safe and effective test to tobacco? Does this create a regulatory paradox? How is it different from chemotherapy? 259 Statutory Provisions

The Act prohibits "[t]he introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adultered or misbranded." 21 U. S. C. 331(a) 352(j) deems a drug or device misbranded "[i]f it is dangerous to health when used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof." 260 Tobacco Labeling

Second, a drug or device is misbranded under the Act "[u]nless its labeling bears ... adequate directions for use ... in such manner and form, as are necessary for the protection of users," except where such directions are "not necessary for the protection of the public health." 352(f)(1). Is it possible to label tobacco so it can be used safely? 261 Chevron - Step One

Does tobacco fall under the statute? Is it specifically named? Is it specifically prohibited? Why is there a question of ambiguity in what the statute means? Doesn't tobacco affect the body? 262 Chevron Step Two

What was congressional intent? What is the evidence that congress did not intend for the FDA to regulation tobacco? Alternative regulatory schemes and agencies? Renewed and expanded the FDA Act without addressing tobacco 263 United States Supreme Court Opinion

The majority (Scalia) said this was evidence that Congress did not intend for the FDA to regulate tobacco, and that such intent trumped Chevron Minority (Breyer) said just look at the law Politics trumps principle 264 Lorillard Tobacco Company v. Reilly, 533 U.S. 525 (2001)

What is MA trying to do? Types of Preemption Explicit Implicit How is the United States Supreme Court's preemption analysis similar to a Chevron analysis? 265 Preemption Language

Congress unequivocally precludes the requirement of any additional statements on cigarette packages beyond those provided in 1333. 15 U. S. C. 1334(a). Congress further precludes States or localities from imposing any requirement or prohibition based on smoking and health with respect to the advertising and promotion of cigarettes. 1334(b). 266 What did Congress Intend with the Cigarette Labeling Act?

What was MA's defense against preemption? What did the court find was the congressional intent? The context in which Congress crafted the current pre-emption provision leads us to conclude that Congress prohibited state cigarette advertising regulations motivated by concerns about smoking and health. 267 Justice Steven's Irony

Justice Stevens finds it ironic that we conclude that "federal law precludes States and localities from protecting children from dangerous products within 1,000 feet of a school," in light of our prior conclusion that the "Federal Government lacks the constitutional authority to impose a similarly-motivated ban" in United States v. Lopez, 514 U. S. 549 (1995). Why is this case different? What could the state do? 268 Smokeless Tobacco and Cigars

Are these covered by the Act? Why? What does the court see as the limitation on state regulation of their advertising? What is the state's justification for limiting advertising near schools? Why was 1000 feet too far?

269 Actions v. Speech Could the state ban the sale of tobacco to minors? Can it ban the use unattended sales such as vending machines?

Can it ban tobacco sales entirely? Why is this different from bans on advertising? Could Congress preempt state bans on tobacco sales? 270 What Should We Do About Tobacco Use?

What is the public interest? What are the individual liberties issues? Are the other substances people want to use that we ban? Is tobacco different in any physiological, as opposed to political sense? How well do the other bans work? What are the unintended consequences? 271 What About Obesity? 272

Overton Park v. Volpe - United States Supreme Court 1971 Road through the park case What was the protest - why did the citizens say this was an improper decision? Citizens protested, said the statute only allowed this if there was no feasible and prudent alternative route What was wrong with the record?

Secretary gave no reasons 273 Feasible and Prudent?? What does feasible mean? How can it conflict with prudent? Why is it always cheaper and easier to build roads through parks and public lands?

Who are the opposing constituencies? What indicates that this is a compromise law? 274 District Court District court gave Secretary a summary judgment, affirmed by the Cir. These were based in part on briefs that went beyond the original record 275 Standard of Review

Is this a rule making? Is it an adjudication, i.e., was there a trial type proceeding? What about the public hearings? Were they to make decisions or to take input? Were they done by the feds at all? Did the stature require de novo review? 276 What is the Hard Look Review?

"thorough, probing, in-depth review" Hard look kicks in after Chevron step 1 The court still defers to the agency's policy making role The court looks hard to make sure the agency considered all the relevant factors in making the policy Is this really meddling in policy making? What is the cost to the agency of reviewing lots of factors in depth to satisfy the court? 277

United States Supreme Court The United States Supreme Court said that the secretary did not have to make formal findings The record needed to support the action and it could not be supplemented by briefs. If the secretary does not make findings, then the district court has two alternatives: Remand, or Require testimony of agency decisionmakers,

effectively building the missing record Why is the second alternative not attractive to the agency? 278 Environmental Regulation Permitting new stuff What is the effect of delay here?

Enforcing rules against old stuff Who pushes for delay here? Why is it harder to push for action than for delay? Why could the environmentalists get the court to push the agency in the regulators? 279 Atomic Power What are the fears? Administrative delay stopped the industry Hugely expensive plants whose profitability

depended on rate setting decisions that are subject to politics What new concerns has shifted environmental fears since the 1980s? 280 The Evolution of Policy as Politics Change 281 The Seat Belt Saga

First, there is popular concern about accidents Then interest groups Individual stories - MADD is an example Nader and Public Interest Unsafe at any Speed - 1965 Insurance industry 282 The Seat Belt Saga II

Then Congress passes the Traffic and Motor Vehicle Safety Act 1967 - regulation requiring seatbelts 1972 - realized that people were not wearing the seatbelts Regulation requiring automatic seatbelts or airbags by 1975 283 The Seat Belt Saga III

Required cars between 1973 and 1975 to have automatic seatbelts or ignition interlocks Chrysler v. DOT affirmed the regs Industry choose interlocks - why? 1974 - Congress passed a law banning regs requiring interlocks and said that all future regs on passive restraints had to be submitted to Congress for legislative veto Chada killed that

284 The Seat Belt Saga IV DOT under Ford withdrew the regs DOT under Carter (a few months later) passed new passive restraint regs for 1982 and Congress did not veto them 1979 - Regs were affirmed in Pacific Legal Foundation v. DOT

285 The Seat Belt Saga V 1981 - DOT under Reagan withdrew the regs because the car companies were going to use automatic seatbelts that could be disconnected. 1983 - Motor Vehicles Manufacturers Assoc. v. State Farm hit the United States Supreme Court 286

Motor Vehicle Manufacturers v State Farm Mutual Auto Why does State Farm care? What was the key agency law issue in this case? How was this relevant to the transition from Clinton to Bush? How did it drive the midnight rulemaking? What was the rationale for the court's ruling? How is this different from saying that agencies are

bound by precedent? 287 The Seat Belt Saga VI 1984 - DOT (Libby Dole) promulgated a reg requiring automatic seatbelts or airbags in all cars after 1989, unless

2/3 of the population were covered by state seatbelt laws, and the laws met certain criteria What did some states do? $5 penalty No stop No meaningful seatbelt defense Most State laws did not meet the criteria 288 The Seat Belt Saga VII

1997 - most newer cars had airbags 1998 - airbags kill grannies and little kids! Nothing new - known at the time Save many more 1999 - You can get your airbag disconnected Products liability issues? 289 What Else Affects Automobile Safety?

Drunk driving laws? Anti-lock brakes? Stability control systems? Speeding? Why not lower speed limits? Where do most accidents happen? Limits on teen age drivers? 290 Regulation of Automobile Gas Mileage

What are the benefits of reduced oil consumption? For individuals? For the country? How do you make cars more efficient? What are the trade-offs? Convenience Cost/safety What limits safety of SUVs? 291 Corrosion Proof Fittings v. U.S. E.P.A., 947

F.2d. 1201 (1991) Rulemaking under the Toxic Substances Control Act This act is not self-implementing Nothing is regulated until the agency set standards How long was this rule in process? 292 What are the Requirements of the Act?

"Reasonable basis" to believe that there is an "unreasonable risk of injury" What do you consider to decide if the risk is unreasonable? Does this mean no risk? The regulation must be "the least burdensome" What is the burden on the agency when it bans something? 293 Cost/Risk/Benefit

What is asbestos really good for? What are the potential risks for substituting other materials? Do we know that these materials are safe? Ever work with fiberglass insulation? How many lives were they going to say?

What was this going to cost? Why did the agency really ban asbestos? 294 Judicial Review Why is it easier for the court to second-guess the agency than for the agency to do the cost benefit analysis?

Can any risk/cost/benefit analysis be complete? What are the conflicts between discounting to present day costs and trying to monetize future life savings? What was the long term impact of the agency getting hammered in this case? How about when the Corp got hammered over the environmental impact statement for Lake Pontchartrain flood gates? 295 296 Changing the Rules 297

Basic Principle Agencies are bound by their own rules and adjudications until they change them They are free to change them, but must explain the reasons The reasons must meet the arbitrary and capricious or substantial evidence test

298 Civil v. Criminal Prosecutions Criminal courts may read the law differently than the agency 299 Estoppel Can the agency create situations through mistake or policy that do not follow the law, but are

binding? 300 Agency Personnel Give the Wrong Advice Why should we care? Should the agency be bound? What problems would this cause? Unequal application of the law?

Potential for corruption? What holding the agency bound improve advice? What is the alternative for the agency? 301 The Agency Acts Against the Law Same assumption - not binding First, there must be reliance to raise the issue

This happened in the S&L cases The courts will look for another theory to support the agency's action In the S&L cases, the courts found that the agency created a contractual obligation, which was binding 302 Making the Case for Your Client Is this a rule that the agency can waive?

Would allowing the exception create fairness issues? Allowing a benefits application to be filed late Allowing a competitive license or bid to be filed late What is the impact on the client? More slack in immigration, for example 303 Res Judicata - General Rules for Private Parties

Same parties, same facts You are bound Issue preculusion - Same parties, same issue Bound on the issue 304 Res Judicata Policy issues An agency can be involved in thousands of

cases around the US The same issue and parties can arise in different courts District judges have different abilities and politics What would be the impact of allowing res judicata? 305 Nonacquiescence

The agency is bound by the decision in the district, or in the circuit if a circuit case The agency may disregard or relitigate the issue in other districts or circuits, even against the same parties, if there is jurisdiction Once the United States Supreme Court rules, the agency is bound What are the politics in deciding whether to appeal? When will the agency choose to not appeal? How should this affect their win-lose record? 306 Prospectivity and Retroactivity

307 Basic Principles Retroactive criminal laws are unconstitutional Retroactive civil laws are disfavored Congress must specifically intend retroactivity Can still be unconstitutional depending on what they affect

Retroactive procedural rules are usually OK Reinterpretations of the law with retroactive effects are common 308 Adjudications Older cases No retroactive application Can only change the rule going forward Does not apply if there is no old rule

New Cases More latitude for adjudications to retroactively change rules, but still disfavored NLRB does not want to make rules 309 Rules Intended to prospective only Congress can allow retrospective rules to correct

problems Tax loopholes Less likely to be applied to innocent parties Can reaudit and the like Not applicable if there is no old rule Not applicable to changes in interpretation of the law 310 Primary and Secondary Primary retroactivity I cannot go back and say that you can no

longer get paid for in office chemotheraphy and then ask for a refund for past payments Secondary retroactivity I can stop paying for in office chemo in the future and make your investment in your stand alone cancer center worthless 311 Bowen v. Georgetown University Hospital

Feds change the way reimbursement is calculated on Medicare costs What was the retroactive effect of this rule? Did the court accept this? What if the "conditions of participation" say that you are subject to retrospective rule changes which require refunds? The court in a later case found that there could be changes in the way that base year calculations were done, even though these changed past bills 312 313

Exceptions to Notice and Comment Requirements Interpretive Rules Policy Statements Rules of agency organization, procedure, or practice Technical calculations Emergencies

314 American Hospital Association v. Bowen, 834 F.2d 1037 (1978) Did the agency violate notice and comment provisions in setting out the rules for PROs? 315 Interpretive Rules

Telling what the statute means Not binding on the agency Only binding on the parties to the extent that the courts follow it 316 Substantive (legislative) rules Grant rights, impose obligations, or change existing rules that do so

Bind the agency and the parties until changed Is a rule substantive just because it has a big impact? 317 Policy Statements A hypothetical plan for rationing natural gas in a shortage was a policy statement

Not binding Guidelines on citing OSHA violations, with the clear statement and policy that these were only examples that did not bind the agency Parole board rules that changed parole eligibility based on good time needed notice and comment 318 Appalachian Power v. EPA, 208 F.3rd 1015 (2000)

Guidelines for state compliance plan did not bind EPA EPA treated them as binding on the states This needed notice and comment Even if the agency can change the guidelines, if they are binding on the field offices, this is legislative rule 319 Community Nutrition Institute v. Young, 818 F.2d 943 (1987)

FDA action levels for aflatoxin Trigger level for adulteration Manufacturers must follow these or risk FDA action Used as a standard for judging blending strategies Court found that these needed notice and comment Starr, in dissent, argued that this would make it difficult for the FDA to carry out its role since there were so many toxic substances and that standards could change based on new information 320

Professionals & Patients for Customized Care v. Shalala, 56 F.3d 592 (1995) FDA issues guidelines to determine if a pharmacy's compounding violates the drug manufacturing rules Based on a 9 factor analysis Upheld because it was not binding and was just used to evaluate practices

Might also be seen as just reminding the pharmacies of what the law is 321 Interpretations If the agency could enforce the content of the regulation based on the statute or previous regulations, it is probably interpretive If it modifies the statute or regulation, it needs

notice and comment Like policy statements, the use by the agency is critical 322 Cathouse Case - Hoctor v. Department of Agriculture, 82 F.3d 165 (1996) Congress says the USDA should require dangerous animals to be properly confined

USDA has a rule saying animals need to be properly confined It has a guidance memo that says that dangerous animals must be behind an 8 foot perimeter fence 323 What are plaintiff's pets and how tall is the fence?

Plaintiff has ligons, tigers, lions, and who knows what else behind a 6 foot fence Why does plaintiff say the rule cannot be enforced against him? What do you think about the rule? 6 foot high enough for you? 324 What is the key issue?

Does the statute itself allow USDA to establish standards for escape enclosures? If so, then the memo is just a valid interpretation of the statute Why does the court focus on the set height? Limits discretion How does the court say the agency might have used the number? We know cats can jump 8 feet, so it has to be at least that high

325 What did the court do? What if they decide to use 8 feet after notice and comment? What if the agency does away with the guideline and says the inspector will use his best judgment?

Should the reviewing judge have to stand outside the fence with a hungry cat on the inside? 326 Procedural Rules Exempted from notice and comment How far do they go in changing substantive rights?

FAA penalty rules, which also affected the adjudication process for violates, were found to be substantive NRC was allowed to change it process for granting extensions for filing interventions Perhaps because they did not need to allow them at all? OSHA could not claim a rule was not binding because the party could escape it by changing their practices 327 Good Cause Exemptions Reviewed these at the beginning of this section

328 Policy Issues What is the impact of heightened judicial review of rule making? What did we see in the Regulators? How is this more problematic today? Why does spreading the process across more than one presidency cause problems?

329 Negotiated Rulemaking What is reg-neg?

How do you set it up? Why do it? Do you still have to do notice and comment? How does notice and comment prevent the agency from being bound by reg-neg agreements? What is the representation problem in reg-neg? Who do you think got left out in the woodstove reg-neg? Why? 330 Official Notice and Information in the Record

(Do not worry about the individual cases) What is judicial notice? How is it limited? Can judges take note of scientific facts such as the best treatment for hypertension? How about the weather on a given day in the past? 331 Agency Notice

Why should agencies be granted greater latitude in taking notice of information? Why not? How does this affect the record? What must the record show when the agency takes notice so that the court can properly review the decision? Assume that a board of medical examiner, made of physicians, takes note of basic medical standards in a disciplinary action What would the court need to see to review this? 332 Off the Record Proceedings and Ex Parte Contacts

Why are these banned in trials? How are agency proceedings different? What is the special problem of small or specialized agencies? 333 551 - (14) 'ex parte communication' means an oral or written communication not on the public record

with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this subchapter. 334 557 - (d) (d)(1) In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law (A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency,

administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding; (B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding; (C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding: 335

556 (d) - Penalty (d) ... The agency may, to the extent consistent with the interests of justice and the policy of the underlying statutes administered by the agency, consider a violation of section 557(d) of this title sufficient grounds for a decision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur. ... 336 Professional Air Traffic Control Organizations v. Federal Labor Relations Authority, 685 F.2d

547 (1982) What was the poetic justice of the PATCO strike and dissolution? They were the first union to back Regan What was the reason for the strike? Pay and working conditions Not enough controllers Even less afterwards - fired the ones who would not come back to work 337

What are the three critical factors of the ban in 557(d) Only applies to "interested persons" Excludes requests for status reports How can these really be nudges to the agency in particular direction? Applies to more than facts in issue, extends to anything about the merits of the proceeding

338 What are the remedies? Disclosure of the contact and its content Striking the claim of the violating party if it cannot show why the contact was not a problem Does the court have to overturn the agency's action or remand if there is an improper contact?

No, it is voidable Court has a lot of discretion to make sure that justice is done and the agency can function 339 What about Shanker? Why is he an interested person? AFL-CIO had filed a brief and he is tied to them What if you, J. Random law student, sit next to Applewhaite on the plane and urge him to fire PATCO because it will be good for lawyers to

have another big case to fight? 340 The Problem of Ongoing Contacts - Louisiana Producers v. FERC, 958 F.2d 1101 (1992) Permit process for a big ticket pipeline One party had contacts with the agency outside of

the hearing process The agency argued that this was related to general issues before the agency and not the permit Court allowed this, but it is a constant problem when a given business or person has multiple dealings with the agency 341 What about Rulemaking?

Why is the ex parte problem different in rulemaking? What was the court concerned about in Home Box Office v. FCC? Why is the date of issue of the notice of rulemaking important? What can the agency do before that date? How was this limited by ACT v. FCC? Competing proposals, not just policy debates How does judging the rule on the record solve this? 342 DC Federation of Civic Associations v.

Volpe How did Congress lean on the agency in this case? Did the APA ex parte rule apply? Why did the court remand? 343 Volpe Test

The Volpe test for whether a rulemaking may be overturned solely on evidence of Congressional pressure 1) was there specific pressure on the agency to consider improper factors? 2) did the agency in fact change its mind because of these considerations? How can the agency defend itself from a Volpe attack? 344 Congressional Oversight

Hearings Cannot interfere with ongoing adjudications Can inquire into agency practices and grill employees Status Reports May ask for status reports, which tells the agency Congress is watching Often done to help constituents with personal problems such as SS - Congressional Casework 345 Sierra Club v. Costle

Sierra Club claimed senator Bird coerced the EPA on coal burning power plant standards Why would Senator Bird care about this? What should Congress do if it does not like ex parte contacts in rulemaking? 346 What did the Court Rule when it applied Volpe to this Case? No problem with the contacts because Congress should be involved in such policy decisions

What if Byrd said he could cut off funding to the agency and get everyone fired? 347 Portland Audubon Society What did they rule could be done in Oregon? Who was the ex parte contact? Why were the plaintiffs concerned?

348 What is the president's role in rulemaking? Controls and supervises executive branch decisionmaking How is the role different in adjudications? When should the president's contacts be documented? When the statute requires that they be

docketed If the rule is based on factual information that comes from such a meeting. 349 350 Takings Review

What is a "taking"? What due process is involved? What about compensation? How is compensation measured? What is a regulatory taking? 351 Rights v. Privileges - History

Traditional view was that you had to provide due process and perhaps compensation for taking a right or property Did not need to provide due process for not granting or for terminating a government benefit Government benefits were construed broadly - going to a state college You could condition these are restrictions that would otherwise be impermissible Professional licensing was more like a right Treated government like the private sector 352 New Property v. Old Property

How are the rights different for new property versus old property? What if I take your medical license, versus taking your land? What if I abolish your job or your welfare entitlement? How strong is the notion of new property?

353 Timing of Hearings - North American Cold Storage What type of property is at issue? New property or old property? Why does the city want to do? Why? Is this a taking?

Compensation analysis Public use analysis 354 What Process was the Defendant Entitled To? What process did the city provide?

What process did the defendant claim he was entitled to? What process does the court say is constitutionally mandated? What is their rationale? What is defendant's remedy if the city is wrong? 355 The pre-1996 Welfare System

What is the general attitude toward people on Welfare? How was this reflected in the administration of the welfare programs? What was AFDC? What were the unintended consequences of the welfare system? 356 Goldberg v. Kelly 357 Statutory Entitlements

What makes a benefit an entitlement? What is a matrix regulation? 358 Matrix Regulation Test 1 Test 2 Claimant Status

Income less than Income less than x $3000 for family $6000 for family of 2 of 4 Assets less than $2000 Head of household is disabled x 359

Why a Hearing? Why couldn't plaintiff hire an attorney and file a written response to the termination letter? What could she do at a hearing that she could not do in writing? Why wasn't a post-termination hearing enough?

Why didn't the state want to give everyone a hearing? 360 Goldberg Rights - I 1) timely and adequate notice 2) oral presentation of arguments 3) oral presentation of evidence 4) confronting adverse witnesses

5) cross-examination of adverse witnesses 361 Goldberg Rights - II

6) disclosure to the claimant of opposing evidence 7) the right to retain an attorney (no appointed counsel) 8) a determination on the record of the hearing 9) record of reasons and evidence relied on; and 10) an impartial decision maker 362 Costs of Goldberg

What does granting these hearings do to the cost of removing someone from welfare? What does this do to the global cost of the benefits system? What does it do to the balance of benefits costs to administration costs? What expectation does it create for welfare recipients? 363

The 1996 Act Who pushed for welfare reform? What does the new name for AFDC TANF - Temporary assistance for Needy Families What does the name change tell you about the change in philosophy? How does this affect future Goldberg actions?

364 Employment Hearings Only government employees have constitutional rights to a hearing and due process State rights are defined by the state law, not the US constitution, and can be broader than the US rights States can create rights to employment due

process for private employers 365 Boards of Regents v Roth What were the terms of the contract? Why did he claim he was fired? Is this before the court?

What process did he want? Did the university claim he had done anything wrong? Could this have changed the result? Did he get the hearing? 366 Goldsmith v. Board of Tax Appeals (not in the book) Plaintiff claims he met the set standards Like an entitlement

If the government has set standards you meet, you get a hearing 367 Perry v. Sinderman Facts Taught for 10 years University policy was to not fire without cause after 7 years

Fired without cause What process did he want? What did the court think? 368 Homeland Security and the CIA One of the big fights over the Homeland Security Bill was the employee rights Security agency personnel are subject to firing without stated cause and get no hearing.

The Homeland Security Act extends the definition of a national security job to many more employees, who thus lose civil service protection Why do this? Is this a good idea? 369 Putting Limits on the New Property What due process limits can the state put on new property it creates by statute or regulations? 370 Cleveland Board of Education v.

Loudermill What was the statutory limitation on firing these employees? What sort of employment expectation does this create? Is this enough to create a property right?

What due process did the state provide for these employees who were being fired? Is this consistent with Sinderman? 371 Loudermill at the United States Supreme Court

Why did the state say it did not need to follow Sinderman? How is this supported by the "bitter with the sweet" doctrine? Does the United States Supreme Court buy this argument? What would be the result if the Court had bought the "bitter with the sweet" doctrine? Overrules Arnett 372 Job Security in Public Workplaces

What is the traditional trade-off between a public job and a private job? How can job security for government employees hurt the general public? What has been the trend for job security in private employment? What is the cost of reducing job security for public employees? 373

Are medical and legal licenses new property? What due process rights would you expect if the state were revoking your license to practice? Would you expect the same rights if the state did not let you take the bar exam? What does this tell you about your conduct before you are licensed?

374 American Manufacturers Mutual Insurance Co. v. Sullivan (1999) PA Comp law require employers to pay reasonable and necessary medical bills

Plaintiffs wanted them paid up front, employers wanted them to prove the necessity and reasonableness first Plaintiffs say this is a termination of benefits and they want due process Court says they were not yet qualified and must prove eligibility 375 LA Law Note - Title 49, Chapter 13, 961. Licenses C. No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of

agency proceedings, the agency gives notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee is given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined. 376 Discussion Problem 1

Assume you are the state health officer What are your alternative careers? How would limited job security affect your ability to protect the public's health? What interest groups must you satisfy? Which are strongest in LA? 377 Discussion Problem 2

How does electing prosecutors affect the way they do their job? Is the prosecutors job just to get the most convictions as possible? How does this lead to innocent men on death row? Would it be better to have career prosecutors?

378 Rethinking Goldberg When do you get your hearing? 379 Social Security Disability Basic Procedure drill - I

Get a form the office What is the illness, the work history, the doc? SSI orders records A doc at SSI at Disability Determination Service - run by state as contractor - makes a determination Sends to regional office Regional office pays, QA, or denies Ask for reconsideration This is all done with records 380

Social Security Disability Basic Procedure drill - II At the state level, the examiner can call the patient's doc At the fed level, the expert is bound by the patient's doc Most problems arise because of poor documentation Applicants can submit new info and get a new evaluation

After denial, you can ask for a hearing before ALJ At the hearing stage, you ask for an expedited review if the case is clear ALJ's decision is final 381 Volume of Claims How many claims does SSA decide every year? How big is the disability system (SSD)? Why is this important background for Matthews v.

Eldridge 382 Matthews v. Eldridge (1976) Why does SSD require periodic review of benefits? When does SSD provide a hearing?

What if the claimant is successful at the hearing? How long can this take? Why does the Court find this is less critical than in Goldberg? 383 What does plaintiff want? What data is used for making disability determinations?

Who would be the witnesses and how is their information collected? Does the claimant's testimony matter? How does this change the equities of Goldberg? Why is the administrative decisionmaker less prone to make errors in this case than in Goldberg? 384 Cost Benefit Analysis

What are the Mathews factors? C = P x V Cost = Probability of increased accuracy versus Value of the benefit How would you apply these factors to Matthews? Does plaintiff get his pre-termination hearing? What about other administrative decisions? 385 386 387 Freedom of Information Act

388 Key Documents President Johnsons Proclamation on the signing of the original act in 1967 The Congressional Guide to FOIA Sec. 552 FOIA 389

President Johnsons Statement This legislation springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the Nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest. 390 Countervailing Interest in Privacy

At the same time, the welfare of the Nation or the rights of individuals may require that some documents not be made available. 391 National Security As long as threats to peace exist, for example, there must be military secrets. 392

Citizen Complaints and Information A citizen must be able in confidence to complain to his Government and to provide information, just as he is -- and should be -- free to confide in the press without fear of reprisal or of being required to reveal or discuss his sources. 393 Personnel Information Fairness to individuals also requires that

information accumulated in personnel files be protected from disclosure. 394 Government Operations Officials within Government must be able to communicate with one another fully and frankly without publicity. They cannot operate effectively if required to disclose information prematurely or to make public investigative files and internal instructions that guide them in arriving at their decisions

395 Who Uses FOIA and Why? Reporters Businesses Lawyers NGOs Citizens

396 Burden of Proof How did the passage of the FOIA change the burden of proof for persons seeking information from the government? 397 Need to Know

What are allowable purposes for requesting information under FOIA? What are disallowed purposes? 398 Interpreting the Law The DOJ issued an opinion on 12 Oct 2001 saying that agencies could withhold information if there

was a sound legal basis for doing so Why do you think this was issued? What did Congress say about this interpretation? 399 Court Ordered Discovery

Usually only in litigation Must lead to admissible evidence Limited ability to get info from non-parties Puts other side on notice of what you are looking Constrained by limits in the rules of civil procedure and in local court rules How is FOIA different from discovery in litigation? 400 The Scope of the FOIA The Federal Freedom of Information Act applies to documents held by agencies of the executive

branch of the Federal Government. The executive branch includes cabinet departments, military departments, government corporations, government controlled corporations, independent regulatory agencies, and other establishments in the executive branch. 401 Who is Exempted? The FOIA does not apply to elected officials of the Federal Government, including the President, Vice

President, Senators, and Representatives. Papers of ex-presidents are covered to some extent The FOIA does not apply to the Federal judiciary. 402 Private Persons The FOIA does not apply to private companies; persons who receive Federal contracts or grants; private organizations; or State or local

governments. The Shelby Amendments allow FOIA access to data produced by universities on federal grants 403 Information or Records?

The FOIA provides that a requester may ask for records rather than information. An agency is only required to look for an existing record or document An agency is not obliged to create a new record to comply with a request. An agency is neither required to collect information it does not have, nor must an agency do research or analyze data for a requester. 404 Computer Records

When records are maintained in a computer, an agency is required to retrieve information in response to a FOIA request. The process of retrieving the information may result in the creation of a new document when the data is printed out on paper or written on computer tape or disk. Since this may be the only way computerized data can be disclosed, agencies are required to provide the data even if it means a new document must be created. 405 Specificity

The law requires that each request must reasonably describe the records being sought. This means that a request must be specific enough to permit a professional employee of the agency who is familiar with the subject matter to locate the record in a reasonable period of time. 406 Agency Organization of Records

What if you ask for all the records about toxic wastes 3 miles from a specific school and the agency only has the data by state and political subdivision? How should you frame requests when you do not know the specific records you need? 407 Making a Request

Is there a central clearinghouse? The US Government Manual The request letter should be addressed to the agency's FOIA officer or to the head of the agency. The envelope containing the written request should be marked ``Freedom of Information Act Request'' in the lower left-hand corner. 408 Basic Elements of a Request

First, the letter should state that the request is being made under the Freedom of Information Act. Second, the request should identify the records that are being sought as specifically as possible. Third, the name and address of the requester must be included. 409 Optional Items

Your phone number email? How much you are willing to pay Why you should get a discount The format you want Reasons for expedited processing 410 Fees

First, fees can be imposed to recover the cost of copying documents. Second, fees can also be imposed to recover the costs of searching for documents. Third, fees can be charged to recover review costs. Review is the process of examining documents to determine whether any portion is exempt from disclosure. 411

Categories of Requestors 412 News and Educational A requester in this category who is not seeking records for commercial use can only be billed for reasonable standard document duplication charges. A request for information from a representative of the news media is not considered to be for commercial use if

the request is in support of a news gathering or dissemination function. 413 Commercial The second category includes FOIA requesters seeking records for commercial use. Commercial use is not defined in the law, but it

generally includes profitmaking activities. A commercial user can be charged reasonable standard charges for document duplication, search, and review. 414 Everybody Else People seeking information for personal use, public interest groups, and nonprofit organizations are examples of requesters who fall

into the third group. Charges for these requesters are limited to reasonable standard charges for document duplication and search. Review costs may not be charged. 415 Small Requests Small requests are free for a requester in the first

and third categories. This includes all requesters except commercial users. There is no charge for the first 2 hours of search time and for the first 100 pages of documents. A noncommercial requester who limits a request to a small number of easily found records will not pay any fees at all. 416 Fee Waivers Fees now must be waived or reduced if disclosure of the information is in the public interest because it is likely to contribute significantly to public

understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. 417 How Long Does the Agency Have? Under the 1996 amendments to the FOIA, each agency is required to determine within 20 days (excluding Saturdays, Sundays, and legal holidays) after the receipt of a request whether

to comply with the request. The FOIA permits an agency to extend the time limits up to 10 days in unusual circumstances. 418 What if They Ignore You? However, as a practical matter, there is little that a requester can do about it. The courts have been reluctant to provide relief solely because the FOIA's time limits have not been met. 419

Administrative Appeals of Denials of Documents or Fee Waivers A requester may appeal the denial of a request for a document or for a fee waiver. A requester may contest the type or amount of fees that were charged.

A requester may appeal any other type of adverse determination. A requester can also appeal because the agency failed to conduct an adequate search for the documents that were requested. 420 Filing the Administrative Appeal An appeal is filed by sending a letter to the head

of the agency. The letter must identify the FOIA request that is being appealed. The envelope containing the letter of appeal should be marked in the lower left-hand corner with the words Freedom of Information Act Appeal. 421 Form of the Appeal

An appeal will normally include the requester's arguments supporting disclosure of the documents. A requester may include any facts or any arguments supporting the case for reversing the initial decision. However, an appeal letter does not have to contain any arguments at all. It is sufficient to state that the agency's initial decision is being appealed. 422 Judicial Appeal

When an administrative appeal is denied, a requester has the right to appeal the denial in court. A FOIA appeal lawsuit can be filed in the U.S. District Court in the district where the requester lives. The requester can also file suit in the district where the documents are located or in the District of Columbia.

423 What is the Standard for Review? In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. 424

When does the Court Defer to the Agency? In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B). 425 How Does the Court Decide if the

Document is Exempt? In camera review This prevents the plaintiff from being able to attack the claim because he has no information about the documents being withheld Vaughn list (Vaughn v. Rosen, 484 F2d 820 (1974) Agency must list and describe the documents and explain why it is claiming an exemption 426 The Burden Of Justifying The Withholding

Of Documents Is On The Government How does this combine with de novo review to make this proceedings complicated and expensive for the government? How does this lead to the Taj Mahal of unintended consequences? 427 FOIA Exemptions

There are 9 classes of documents that the agency may refuse to produce This is a discretionary decision unless other law further restricts disclosure For example, there are additional law protecting trade secrets and classified materials 428 FOIA Exclusions - What if the Agency Does Not Want to Admit the Document Exists?

Ordinarily, any proper request must receive an answer stating whether there is any responsive information, even if the requested information is exempt from disclosure. In some narrow circumstances, acknowledgement of the existence of a record can produce consequences similar to those resulting from disclosure of the record itself. Admitting you have a record about a confidential informant would give away the identity 429 What if You Ask for an Excluded Record?

The exclusions allow an agency to treat certain exempt records as if the records were not subject to the FOIA. An agency is not required to confirm the existence of three specific categories of records. If these records are requested, the agency may respond that there are no disclosable records responsive to the request. 430 Glomar Response

As you may know, a "Glomar" response is an agency's express refusal even to confirm or deny the existence of any records responsive to a FOIA request. This type of response was first judicially recognized in the national security context. Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (raising issue of whether CIA could refuse to confirm or deny its ties to Howard Hughes' submarine retrieval ship, the Glomar Explorer). Although the "Glomarization" principle originated in a FOIA exemption (1) case, it can be applied in cases involving other FOIA exemptions as well, in particular privacy exemptions (6) and (7)(C). A "Glomar" response can be justified only when the confirmation or denial of the existence of responsive records would, in and of

itself, reveal exempt information. (DOJ memo) 431 Exemption 1.--Classified Documents The first FOIA exemption permits the withholding of properly classified documents. Information may be classified in the interest of national defense or foreign policy. The government will often refuse to confirm or deny if the record even exists.

432 Exemption 2.--Internal Personnel Rules and Practices The second FOIA exemption covers matters that are related solely to an agency's internal personnel rules and practices. 433 2 Types of Documents Exempted

First, information relating to personnel rules or internal agency practices is exempt if it is a trivial administrative matter of no genuine public interest. Second, an internal administrative manual can be exempt if disclosure would risk circumvention of law or agency regulations. In order to fall into this category, the material will normally have to regulate internal agency conduct rather than public behavior. 434

Exemption 3.--Information Exempt Under Other Laws The third exemption incorporates into the FOIA other laws that restrict the availability of information. To qualify under this exemption, a statute must require that matters be withheld from the public in such a manner as to leave no discretion to the agency. IRS records are one example 435

Exemption 4.--Confidential Business Information Trade secrets Confidential business information The courts have held that data qualifies for withholding if disclosure by the government would be likely to harm the competitive position of the person who submitted the information.

Information may also be withheld if disclosure would be likely to impair the government's ability to obtain similar information in the future. (Do not worry about the Trade Secret/Critical Mass distinction) 436 Confidential Private Information Chrysler Corp. v. Brown Chrysler wanted to enjoin the release of info by government Does the APA create a direct right to enjoin such disclosures? How could the APA be used to support the injunction?

Sec 10 of the APA which prohibits agency actions contrary to law 437 Are trade secret protections absolute? Court also said that the protection of the trade secret act is not absolute, but the agency must show some legal basis for releasing otherwise protected info When might the agency release trade secret information? Congress does this for toxics in some cases

438 Releasing Proprietary Corporate Data What is the key to deciding whether the data will be released? Was the data is provided voluntarily or under compulsion? When is voluntary info covered? If it would not ordinarily be available to

the public 439 When is compelled info covered? If it would cause significant harm if not released What are examples where Congress has compelled disclosure? MSD and community notification act under EPA Do the companies have to be notified first? By executive order, companies must be notified

when the agency wants to divulge their info. 440 Clinical Trial Data The FDA is under pressure to release clinical trial data submitted for new drug approvals There are concerns that drug companies are overstating the benefits and understating the risks of drugs What are the FOIA issues? How could the agency solve these?

441 Exemption 5.--Internal Government Communications The FOIA's fifth exemption applies to internal government documents. An example is a letter from one government department

to another about a joint decision that has not yet been made. Another example is a memorandum from an agency employee to his supervisor describing options for conducting the agency's business. Include lawyer client privilege 442 Protecting Deliberation- NLRB v. Sears, Roebuck & Co. What does the regional office do when there is an

unfair labor practices complaint it does not want to adjudicate? The office of counsel makes the final decision in an appeal memorandum Who does it ask for advice and what does it get? When the regional office is considering such a request it gets an advice memorandum from counsel 443 What did Sears want?

Sears wanted documents exchanged between the NLRB counsel and the regional offices What privilege did the NLRB claim? Agency claimed (b)(5) agency memorandum privilege 444 Why did Sears say it did not apply? Sears says these reflect policies already adopted by the agency and thus are not subject to this

exception because they do not further agency consultation. What presidential privilege does this resemble? Exemption 5 mirrors the executive privilege to not disclose certain documents in litigation 445 When does this Exemption Apply?

To fall into the exemption, the documents must be part of the agency decisionmaking process What does the court want to protect? The courts want to protect the "frank discussion of legal and policy matters" so that agencies will not be completely swayed by public opinion What else does Exemption 5 cover? Exemption 5 also covers attorney work product 446 What is the key test?

Are the they pre-decisional documents or documents that implement or explain the decision? 447 Why do advice and appeals memos not fall under 5? They are not sent until Counsel makes its

decision on not filing a complaint, and thus do not fall under 5 What about memos which direct the filing of a claim? They just initiate the process and are clearly part of an ongoing transaction which includes further decisionmaking and legal advice, thus they are subject to 5 448 What if exempt materials are used as part of a record for a ruling? Materials that might be sec 5 exempt lose their exemption if the agency relies on them as part of the record for a ruling

If the agency then finds it cannot release them, the record for the rule would fail 449 Exemption 6.--Personal Privacy The sixth exemption covers personnel, medical, and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. 450

Interpretation This exemption protects the privacy interests of individuals by allowing an agency to withhold personal data kept in government files. "which would constitute a clearly unwarranted invasion of personal privacy" Allows release of info which is not so intrusive Only individuals have privacy interests. Corporations and other legal persons have no privacy rights under the sixth exemption.

451 Problem What about personnel files of supreme court nominees? Can the government withhold them even if the person says it is OK to release them? Tape of the last minutes of the space shuttle? Why would the paper want the tape when they had the transcript? 452

Exemption 7.--Law Enforcement The seventh exemption allows agencies to withhold law enforcement records in order to protect the law enforcement process from interference. 453 Types of Interference I

A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information

compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, 454 Types of Interference II (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure

could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual 455 Why Have This List? This was added in 1974 Why 1974?

The previous provision was short, but gave the government very broad discretion to withhold anything that touched on law enforcement This list was meant to limit discretion and encourage the release of information 456 What is a Law Enforcement Purpose? Remember that law enforcement agencies are also big employers with extensive non-law enforcement activities 457

What are the Privacy Interests? The FBI collects lots of raw info on people Why not release it to the newspapers? What about "rap" sheets? 458 Exemption 8.--Financial Institutions

The eighth exemption protects information that is contained in or related to examination, operating, or condition reports prepared by or for a bank supervisory agency such as the Federal Deposit Insurance Corporation, the Federal Reserve, or similar agencies. 459 Exemption 9.--Geological Information The ninth FOIA exemption covers geological and

geophysical information, data, and maps about wells. This exemption is rarely used - but LA and Texas would be good places to find it used, if anywhere. 460 The Privacy Act - Access to Your Own Records

The Privacy Act of 1974 provides safeguards against an invasion of privacy through the misuse of records by Federal agencies. In general, the act allows a citizen to learn how records are collected, maintained, used, and disseminated by the Federal Government. The act also permits an individual to gain access to most personal information maintained by Federal agencies and to seek amendment of any inaccurate, incomplete, untimely, or irrelevant information. 461 The Privacy Act Policy

Why is it important for you to get access to the information the government keeps about you? Why might you want to challenge the accuracy of information in government files? Why is it important that the Privacy Act requires agencies to publish descriptions of the systems they use to keep records? 462 The Computer Matching and Privacy

Protection Act of 1988 The Computer Matching and Privacy Protection Act of 1988 amended the Privacy Act by adding new provisions regulating the use of computer matching. If the government already has the information, why is computer matching a big issue? 463 Can You Just Ask for All of Records the

Government Has? There is no central index of Federal Government records about individuals. An individual who wants to inspect records about himself or herself must first identify which agency has the records. 464 Getting Other Peoples Records

A request for access under the Privacy Act can only be made by the subject of the record. An individual cannot make a request under the Privacy Act for a record about another person. The only exception is for a parent or legal guardian who may request records on behalf of a minor or a person who has been declared incompetent. It is a crime to knowingly and willfully request or obtain

records under the Privacy Act under false pretenses. 465 Privacy Act Process This mirrors FOIA Process We will not cover this in any more detail 466 Sunshine/Open Meeting Acts

Why have these laws? What are the benefits? What are the costs? What does a Baton Rouge School Board meeting look like? 467 State vs. Federal Law

How broad are the state laws as compared to the federal law? Federal law has 10 exemptions Federal law and exemptions Most of the states are broader 468 How do agencies try to get around Sunshine acts?

Work off written documents - remember the exemption for intra-agency memos? Meet in groups of two Have staff do the meetings and then rubber stamp the results 469 What is a meeting?

Why is this a critical definition? What did the Moberg case find? The Moberg case found that the critical definition was whether there was a quorum present of either the governing body or its committees, unless it was a social or chance gathering Could you set the quorum very high, assuming you could ever get them together when you needed to act? 470

FCC v. ITT? The United States Supreme Court used a narrower definition under the federal law in FCC v. ITT They are only meeting when they are deciding. They can get together privately when they are receiving information and having informal background discussions 471 What do you tell your clients? Comply with notice

Do not make the decisions at the background sessions Clearly separate them, at least in time. 472 Sanctions What sanctions can you get if prevail on a claim that a meeting should have been open? You can get attorney's fees if you prevail on a claim that a meeting should have

been open 473 Can the federal court overturn actions because of improperly closed meetings? Federal law does not allow the court to overturn an agency action because a meeting was improperly closed Some states do allow this, plus providing other penalties 474 475

Administrative Searches The Lessons from See and Camara More Information on Administrative Searches 476 Administrative Searches and Terrorism

Post 9/11, the distinction between administrative law and criminal law has been blurred The Bush administration is calling for administrative search warrant powers to investigate terrorism During the post-Katrina searches for bodies, police confiscated fire-arms they found This set of slides discusses how administrative searches differ from criminal law searches 477 Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 478 Criminal Law What does the 4th Amendment require for searches to find evidence in criminal

prosecutions? Warrant that specifically describes the premises to be searched and what is being sought Probable cause based on reliable information Judicial approval 479 What are the exceptions? Plain view

Telephoto lenses? Space cameras? Infrared? How did you get where are you viewing from? Hot pursuit Securing the scene to prevent injuries 480 Camara V. Municipal Court, 387 U.S. 523 (1 967)

Where did this happen? San Francisco What violations were the housing inspectors looking for? Violation of the occupancy permit What crime was defendant charged with? Not allowing the inspection 481 The Municipal Ordinance "Sec. 503 RIGHT TO ENTER BUILDING. Authorized employees of the City departments or

City agencies, so far as may be necessary for the performance of their duties, shall, upon presentation of proper credentials, have the right to enter, at reasonable times, any building, structure, or premises in the City to perform any duty imposed upon them by the Municipal Code." 482 The Writ of Prohibition What are the defendant's allegations of unconstitutional actions?

Unconstitutional search under the 4th Amendment, as applied to the states by the 14th Amendment Not granted by the state courts 483 Frank v. Maryland, 359 U.S. 360 (1959) "In Frank v. Maryland, this Court upheld the conviction of one who refused to permit a warrantless inspection of private premises for the purposes of locating and abating a suspected public nuisance." (Camara)

484 The Frank Rule ...municipal fire, health, and housing inspection programs "touch at most upon the periphery of the important interests safeguarded by the Fourteenth Amendment's protection against official intrusion," because the inspections are merely to determine whether physical conditions exist which do not comply with minimum standards prescribed in local regulatory ordinances.

485 The Fourth Amendment Does the text of the Fourth Amendment distinguish between criminal and administrative searches? Were the Drafters of the Constitution familiar with administrative searches? Can you think of examples of colonial administrative law? 486

Why is the Intent of the Search Critical? Since the inspector does not ask that the property owner open his doors to a search for "evidence of criminal action" which may be used to secure the owner's criminal conviction, historic interests of "self-protection" jointly protected by the Fourth and Fifth Amendments are said not to be involved, but only the less intense "right to be secure from intrusion into personal privacy." (Camara) 487

Criminal Law Nexus Can administrative violations lead to criminal prosecution? What bind does this put a property owned in who wants to challenge the authority of the inspector? How does the Camara court think this changes the Frank balancing factors? 488

Does a Warrant Requirement Mean No Sea rches? In assessing whether the public interest demands creation of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.

(Camara) 489 Standards for Criminal Probable Cause "For example, in a criminal investigation, the police may undertake to recover specific stolen or contraband goods. But that public interest would hardly justify a sweeping search of an entire city conducted in the hope that these goods might be found. Consequently, a search for these goods, even with a warrant, is "reasonable" only when there is "probable cause" to believe that they will be uncovered in a particular dwelling."

490 Government Interest in Public Health Sear ches The primary governmental interest at stake is to prevent even the unintentional development of conditions which are hazardous to public health and safety. Because fires and epidemics may ravage large urban areas, because unsightly conditions adversely affect the economic values of neighboring structures, numerous courts have

upheld the police power of municipalities to impose and enforce such minimum standards even upon existing structures. 491 General Versus Specific Probable Cause There is unanimous agreement among those most familiar with this field that the only effective way to seek universal compliance with the minimum standards required by municipal codes is through routine periodic

inspections of all structures. It is here that the probable cause debate is focused, for the agency's decision to conduct an area inspection is unavoidably based on its appraisal of conditions in the area as a whole, not on its knowledge of conditions in each particular building. 492 Factors Supporting General Probable Cau se

First, such programs have a long history of judicial and public acceptance. Second, the public interest demands that all dangerous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results. Finally, because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's privacy. 493

The Frank Consensus "Time and experience have forcefully taught that the power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance to the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of the safeguards necessary for a search of evidence of criminal acts." 494 Prevention v. Punishment

"The need for preventive action is great, and city after city has seen this need and granted the power of inspection to its health officials; and these inspections are apparently welcomed by all but an insignificant few. Certainly, the nature of our society has not vitiated the need for inspections first thought necessary 158 years ago, nor has experience revealed any abuse or inroad on freedom in meeting this need by means that history and dominant public opinion have sanctioned." 495 Standards for an Area Warrant

Such standards, which will vary with the municipal program being enforced, may be based upon: the passage of time the nature of the building (e. g., a multi-family apartment house) the condition of the entire area [T]hey will not necessarily depend upon specific knowledge of the condition of the particular dwelling. 496 Emergency Exceptions

[N]othing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations 497 Examples of Emergencies

North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (seizure of unwholesome food); Jacobson v. Massachusetts, 197 U.S. 11 (compulsory smallpox vaccination); Compagnie Francaise v. Board of Health, 186 U.S. 380 (health quarantine); Kroplin v. Truax, 119 Ohio St. 610, 165 N. E. 498 (summary destruction of tubercular cattle) 498 Practical Considerations

When does the Court say is the time to get an area warrant? Why would this be burdensome to the agency? What would you suggest as an alternative? 499 See v. Seattle, 387 U.S. 541 (1967)

Routine fire inspection of a commercial warehouse Done as part of a city-wide sweep Owner was prosecuted for refusing to allow the inspection 500 Key Question Do business establishments have a diminished

expectation of privacy under the 4th Amendment? "The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. " 501 Further Gloss on Area Warrant "But the decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement officer in the field. "

502 The Dissent Today the Court renders this municipal experience, which dates back to Colonial days, for naught by overruling Frank v. Maryland and by striking down hundreds of city ordinances throughout the country and jeopardizing thereby the health, welfare, and safety of literally millions of people. 503 Predicted Impact

But this is not all. It prostitutes the command of the Fourth Amendment that "no Warrants shall issue, but upon probable cause" and sets up in the health and safety codes area inspection a newfangled "warrant" system that is entirely foreign to Fourth Amendment standards. It is regrettable that the Court wipes out such a long and widely accepted practice and creates in its place such enormous confusion in all of our towns and metropolitan cities in one fell swoop. 504

State Law Limitations See and Camara only deal with the US Constitutional Issues Some state constitutions have greater protection s and the legislatures can enact greater protection s City of Seattle v. McCready , 123 Wash. 2d 260, 868 P.2d 134 (Wa. 1994) Rejects general area warrants

505 U.S. v. Biswell, 406 U.S. 311 (1972) Federally licensed gun dealer Police officer and federal treasury agent show up and ask to see the books and the storeroom Owner consents and they find an illegal weapon Owner is prosecuted and attacks the search as not having even an area warrant

506 Pervasively Regulated Industries When a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection. Each licensee is annually furnished with a revised compilation of ordinances that describe his obligations

and define the inspector's authority. The dealer is not left to wonder about the purposes of the inspector or the limits of his task. (Biswell) 507 New York v. Burger, 482 U.S. 691 (1987) Search of junk yard for stolen goods Lower court excluding the evidence "the fundamental defect [of 415-a5] . . . is that [it] authorize[s] searches undertaken solely to uncover evidence of criminality and not to enforce a

comprehensive regulatory scheme. The asserted 'administrative schem[e]' here [is], in reality, designed simply to give the police an expedient means of enforcing penal sanctions for possession of stolen property." 508 Does the History of the Regulations Matter? Firearms and alcohol have always been regulated We pointed out that the doctrine is essentially defined by "the pervasiveness and regularity of the federal

regulation" and the effect of such regulation upon an owner's expectation of privacy. See id., at 600, 606. We observed, however, that "the duration of a particular regulatory scheme" would remain an "important factor" in deciding whether a warrantless inspection pursuant to the scheme is permissible. (United States Supreme Court in Burger) 509 Alternative Standard ...where the privacy interests of the owner are weakened and the government interests in

regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment. (Burger) 510 Criteria for Searches of Regulated Industries 511 Substantial Government Interests

First, there must be a "substantial" government interest that informs the regulatory scheme pursuant to which the inspection is made. ("substantial federal interest in improving the health and safety conditions in the Nation's underground and surface mines"); (regulation of firearms is "of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders"); (federal interest "in protecting the revenue against various types of fraud").

512 "Necessary to further [the] regulatory scheme." For example, in Dewey we recognized that forcing mine inspectors to obtain a warrant before every inspection might alert mine owners or operators to the impending inspection, thereby frustrating the purposes of the Mine Safety and Health Act -to detect and thus to deter safety and health violations. 513 Must be a constitutionally adequate

substitute for a warrant In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. 514 What is necessary to substitute for a warrant?

To perform this first function, the statute must be "sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes." In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be "carefully limited in time, place, and scope." 515

How Do These Apply to Burger? 516 One First, the State has a substantial interest in regulating the vehicle-dismantling and automobile-junkyard industry because motor vehicle theft has increased in the State and because the problem of theft is associated with this industry. 517

Two Second, regulation of the vehicle-dismantling industry reasonably serves the State's substantial interest in eradicating automobile theft. It is well established that the theft problem can be addressed effectively by controlling the receiver of, or market in, stolen property. 518 Three

Finally, the "time, place, and scope" of the inspection is limited The officers are allowed to conduct an inspection only "during [the] regular and usual business hours." The inspections can be made only of vehicle-dismantling and related industries. And the permissible scope of these searches is narrowly defined:

the inspectors may examine the records, as well as "any vehicles or parts of vehicles which are subject to the record keeping requirements of this section and which are on the premises." 519 Licenses and Permits Restaurant license, elevator license, shellfish processing license Issued on set criteria established through

stature or regulation Can require consent to searches as a condition of licensure Restaurant licenses - any time during regular business hours 520 Are these pervasively regulated industries? Substantial Government Interests? Necessary to further the regulatory scheme?

Must be a constitutionally adequate substitute for a warrant? 521 What about Evidence of Unrelated Crime? What if the housing inspector finds your stash of stolen DVD players What if the restaurant inspector finds the cook's

stash of cocaine? What did Camara say? Finally, because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's privacy. 522 Administrative Searches and Terrorism

How would administrative search authority change the way searches are done for terrorist activities? What is the constitutional justification for such searches, under the See and Camara rulings? What implications would such searches have for later criminal prosecutions? 523 Stigma Carry over from last readings 524

Paul v. Davis Paul v. Davis let the sheriff give out a list of "active shoplifters" even if defendant had not been convicted yet. The court distinguished Constantineau: Said that there was a stigma because drunks could not buy alcohol. What did Justice Brennan say this would allow the states

to do? Have commissions do ex parte trials as long as all they did was public condemnation, such as calling the person a Communist or a traitor. 525 Public Child Abuse Registries Valmonte v. Bane, 18 F.3d 992 (2nd Cir.(N.Y.) 1994) Plaintiff was put on the child abuse register because of a complaint

Employers were required to check this list Court found that this deserved a hearing Siegert v. Gilley, 500 U.S. 226 (1991) Defamatory job recommendations from Government employer Not a constitutional violation 526 Perverts R/US WWW Sites

Privacy loses to security United States Supreme Court recently ruled that persons convicted of even minor sex related crimes, such as public indecency as teenagers, could be put on a state WWW site without a hearing. Connecticut Dept. of Public Safety v. Doe, 123 S.Ct. 1160, 71 USLW 4125, 71 USLW 4158 (2003) Smith v. Doe, 123 S.Ct. 1140, 71 USLW 4182 (2003) Claimed this was police power prevention, not punishment 527 What is the Role of Hearings? How do we balance agency costs and efficiency against individual rights and

community perception of fairness? 528 Social Security Disability Basic Procedure drill - I

Get a form the office What is the illness, the work history, the doc? SSI orders records A doc at SSI at Disability Determination Service - run by state as contractor - makes a determination Sends to regional office Regional office pays, QA, or denies Ask for reconsideration This is all done with records 529 Social Security Disability Basic Procedure drill - II

At the state level, the examiner can call the patient's doc At the fed level, the expert is bound by the patient's doc Most problems arise because of poor documentation Applicants can submit new info and get a new evaluation After denial, you can ask for a hearing before ALJ At the hearing stage, you ask for an expedited review if the case is clear

ALJ's decision is final 530 Volume of Claims How many claims does SSA decide every year? How big is the disability system (SSD)? Why is this important background for Matthews v. Eldridge 531

Matthews v. Eldridge (1976) Why does SSD require periodic review of benefits? When does SSD provide a hearing? What if the claimant is successful at the hearing? How long can this take? Why does the Court find this is less critical than

in Goldberg? 532 What does plaintiff want? What data is used for making disability determinations? Who would be the witnesses and how is their information collected? Does the claimant's testimony matter?

How does this change the equities of Goldberg? Why is the administrative decisionmaker less prone to make errors in this case than in Goldberg? 533 Cost Benefit Analysis What are the Mathews factors? C = P x V Cost = Probability of increased accuracy

versus Value of the benefit How would you apply these factors to Matthews? Does plaintiff get his pre-termination hearing? 534 What Other Issues are at Stake? Is it possible to really assign numeric values to these parameters and do a rigorous comparison? Is accuracy the only criteria?

Are jury trials accurate in this sense? Why do we have them? Why does it matter what the public thinks of the process? 535 Right to Counsel in Administrative Hearings

Was there a right to appointed counsel in Goldberg? Where there any limitations on her hiring a lawyer? Why was that unrealistic for her? Can the government limit your ability to privately retain counsel? 536 Walters v. National Ass'n of Radiation Survivors

Upholds $10 limit on attorney's fees in VA proceedings When was this passed? What was the intent at the time? What is the effect in 1985? No attorney representation 537 Why does the VA not like Attorneys?

Just gum up the machine Do not increase accuracy Who does represent veterans? Lay persons from support organizations Any evidence attorneys would do better? 538 Representing Veterans before the VA

This case is still good law, making it very difficult for veterans to fight claims denials. You can get fees when you file in Ct Ap Vet Claims Limit of 20% in the regulations Review of fee agreements by the court of vet apps Fees available if position of DVA was not justified hard to prove See: http://www.vetadvocates.com/ if you are interested in representing veterans before the VA. 539 Ingraham v. Wright

Paddling school kids What is the alleged harm? What are the alleged constitutional law violations? Why isn't paddling cruel and unusual? 540 Administrative Costs

What do the plaintiffs really want? How will requiring a hearing before paddling advance their ultimate goal? 541 Goss Style Give and Take Goss was the suspension case Got informal give and take before suspension

No confronting witnesses No counsel How is Goss distinguishable from Ingram? 542 How is the Mathews analysis used in Ingraham? What is the cost of a hearing?

What is the potential benefit? Was there evidence of widespread problems? Why did the court talk about the open nature of schools? Would paddling in prison be different? Why is there little chance for error? Why not even a Goss hearing in Ingram? 543 What are Alternative Remedies?

Tort claims under state law Negligence Intentional torts May be immune 42 USC 1983 claims What would you need to show to make an alternative claim? 544 Tort Remedies as Due Process What are the limitations on a tort remedy as a substitute for due process? How do you pay for tort law?

What are the potential recoveries? What is the timeframe? What about governmental immunity? How would tort law work in these cases? 545 Contract Remedies - Lujan v. G & G, 121 S.Ct. 1446 (2001)

State contract terms required contractors to pay prevailing wage rates If there was a dispute, the state would withhold the payments until the dispute was settled Plaintiff claimed this was deprivation of property without a hearing Do they get a hearing? If not, what is the remedy? 546 Academic decisionmaking

Why is there a greater due process right for nonacademic discipline than for academic failure? What does the Board of Curators of the U. of Mo. V. Horowitz (Horowitz case) tell us about due process rights for students who are flunked out and why? What should you do if you are representing such a student? 547 Club Misty v. Lanski, 208 F2d 615 (7th Cir 2000)

Why are there special considerations in analyzing liquor sales under the constitution? What is local option on liquor sales? Why was allowing local voters to cancel a specific liquor license problematic? What process would be necessary if the voters elected a politician who ran on a platform of closing the same joint?

548 When is a Hearing Right Meaningless? 549 Parratt v. Taylor Prison negligently lost plaintiff's hobby kit Why was a hearing meaningless in this case? Is a state tort claim a meaningful remedy?

What remedy would you set up? 550 Hudson v. Palmer Guard intentionally destroyed prisoner's stuff Why was a hearing meaningless in this case? How can due process be satisfied? What are the appropriate remedies? Should the prison pay for the inmate's stuff?

551 Daniels v. Williams Jail prisoner slips on pillow on stairs Sues for 1983 due process deprivation for injury What does the court say satisfies the due process requirement? NB - Things like negligent prison health care are

actionable as cruel and unusual punishment, not due process violations 552 Zinermon v. Burch Negligence as sham to avoid due process

State fails to give mental patient statutory due process before locking him up Defendant hospital claimed this was negligent and thus the only remedy was state tort law Was he locked up for a long time? How does this affect the defense? What did the court say about the "I forgot to get him a hearing defense?" 553 Problems - 699

Review and be prepared to discuss Towing Dr. Smith's car The White House Press Pass The Suspension Hearing 554 Hearings and Accuracy of Agency Proceedings

Assume that 60% of contested proceedings that are appealed to an ALJ are found in the claimants' favor Does this show that the decisionmaking is wrong more often than it is right? What other information do you need? Why might judges have a different review standard than the case worker? 555 Alternatives to Hearings

How are regulations an alternative to hearings? Why are they more rigid? In what sense are they fairer? What about ombudsmen? Why do congresspersons like for agencies to make mistakes? What is the separation of powers issue? 556 557 Administrative Law - 24 Oct 2006

558 Agency Organization Traditional Government Functions Legislative (Rulemaking) Judicial (Adjudication) Executive (Prosecution) Why are the separated by the Constitution? What is the problem of combining them in an agency?

559 Constitutional v. APA Limits on Combining Functions in Adjudications The APA provides that should be some separation of functions in adjudications to reduce the conflict between prosecuting and judging a case This is not a constitutional requirement The United States Supreme Court will allow a decisionmaker to have other roles There are limits - you have to argue that the

facts make the appearance of conflict overwhelming 560 Protections for ALJs Civil Service protections Cannot be assigned other duties - no cleaning the toilet if the Secretary does not like your rulings

Nash v. Bown, 869 F2d 675 (Cir2 1989) Can have performance goals Cannot have decisional quotas What if quality control guidelines are biased toward supporting the agency position? 561 Bias by Agency Heads - Withrow v. Larkin 421 US 35 (1975)

Medical board case Same agency investigated the case, then pulled the doc's license No problem, at the constitutional level Is there something special about a medical board case? Who usually sits on a medical board? What is the notice and record issue? 562 Criminal and Civil Law Parallels in

Withrow Criminal law judges may rule on probable cause warrants and then also preside over the case resulting from the warrant Civil law judges make many decisions in pretrial proceedings that would bias their ruling in the case The problem is that there is a jury making the final decision in these cases, not the judge

563 Valley v. Rapides Parish School Bd., 118 F.3d 1047 (Cir5 1997) Firing a school superintendent In sum, the record in the case unfolds like a soap opera. The respective views of the parties were regularly aired out in the print and broadcast media in the Rapides Parish area. One need only make a cursory review of the exhibits and the testimony to get a clear impression of the rancor and deeply held views of the aforementioned school board members prior to the discharge hearing.

Indeed, the district court's sparing recitation of the facts underlying its ruling was a tacit acknowledgment of the general public's and the school board's awareness of the details of the accusations in the case. 564 Court Ruling Upheld an injunction reinstating the superintendent until the board could give an unbiased hearing No hint from the court about how that might be

done. 565 FTC v. Cement Institute, 333 US 683 (1948) FTC issued reports criticizing a certain method of cost analysis Plaintiff argued that this showed that the commissioners were biased against their

business, which relied on this method Court said this would prevent the agency from carrying out its legilative mandate 566 American Cyanmid v. FTC, 363 F2d 757 (Cir6 1966)

Chairman of the FTC had investigated drug company while counsel of a senate committee When the FTC investigated a complaint on the same subject against a drug company, the hearing examiner ruled for the drug company The Chairman participated in the commission's overturning of the hearing officer, but his vote was not critical The court found that his participation biased the outcome Would it have mattered if he had done the same at the FTC? 567 568

Association of National Advertisers , Inc. v. FTC FTC is adopting rules on TV advertising directed at children Chairman has written and spoken at length on the evils of TV ads aimed at children Plaintiffs seek to disqualify him because of bias What happened in Cinderella? Cinderella disqualified the same Chairman from participating in an adjudication because he had

prejudged some of the facts. 569 Is the Standard Different for Rulemaking? Clear and convincing evidence that he has an unalterably closed mind on matters critical to the rulemaking. 570 Can the District Court make this into an Adjudication?

Said there were aspects of an adjudication to this rule making because there was a limited statutory right of cross examination Did the circuit court buy this? Rejected because modifications of rulemaking procedures do not make them adjudications 571 How did the Court Characterize the Commissioner's Comments? Discussion and advocacy What is it going to take to disqualify an

agency head from a rulemaking? Charlton Heston as head of BATF? 572 Pillsbury Co. v. FTC

What was the FTC concerned about? Monopoly power in flour How did Congress interfere with the agency action? What did Senator Kefauver say? The court found this improper meddling Congress may not require testimony on ongoing adjudications Congress may request information as part of its congressional casework 573 Principle of Necessity

What is the Principle of Necessity? Why is the important for small agencies? 574 Gibson v. Berryhill, 411 US 564 (1973) Optometry board was all independent practitioners

Made it unprofessional for optometrists to work for employers Why? Court disqualified the whole agency Necessity does not cover illegal behavior What if they got the legislature to pass a law preventing employee optometrists? 575 Successor Cases

Gibson was an extreme case Financial conflicts are only one factor to consider, not the determining factor Must make a strong factual argument 576 Morgan I Statute required a formal rulemaking

Looks like a formal adjudication The Secretary had the power to make the decision Plaintiffs' submitted written briefs to the agency Asst. Secretary conducted the hearing and made recommendations to the secretary Secretary made the decision based on the recommendations 577 How is this Different from a Trial?

What did plaintiffs claim about the Secretary's decision? Did the court allow the Secretary to make the decision if he did not conduct the hearing? What did it require him to do? Why would this be a problem in a modern cabinet level agency? This was limited in subsequent cases, which found that the court should not inquire into the thinking of the secretary, but only look at the record 578 What can the Secretary Do?

Delegate the right to decide Not always permitted Adjudications often make policy, which the secretary should control Make the hearing officer's decision final after 30 and intervene if the case is important to policy

Set up an internal appeal process to flag important cases Decide the case on an executive summary Approve regulations based on expert staff recommendations 579 580 Judicial Review 581 Basic Requirements

Court must have jurisdiction Plaintiff must state a recognized cause of action and seek a recognized remedy This is the rub in most of the environmental cases - what is the plaintiff's interest? Must be a real case and controversy Supreme Court does not give advisory opinions States often do 582

Explicit statutory review provisions in the enabling act Should review be by trial courts or appeals courts? What do what best? Which courts usually get rules and final orders? Why? What usually goes to the trial (district courts? 583 No explicit statutory review in the

enabling act See other examples in the book. 584 28 USC 1361 Gives district courts jurisdiction over mandamus to require an officer or employee of the US or an agency to perform a duty owed the plaintiff

585 42 USC 1343 Jurisdiction to hear cases under 42 USC 1983 and other civil rights statutes (mostly about state officials) 586 28 USC 2241-2255 Habeas Corpus

587 28 USC 1331 Actions arising under federal law, constitution, treaties, etc. Gets most federal agency actions

Plaintiff can sue where the defendant resides, the cause of action arose, or the plaintiff resides, unless real property is involved Once 1331 is invoked, the APA 701-706 controls No $10,000 minimum for jurisdiction for agency law or federal questions in general 588 Jurisdiction as a Defendant While not the best way to get into court, you always get to defend yourself if the agency drags you into court

Unconstitutional actions? Beyond statutory authority? Arbitrary or capricious action? 589 Court Orders 590 Injunctions What is an injunction? An order forbidding someone to do something

What do you usually have to show to get a temporary one? Irreparable harm Good chance of prevailing on the merits You then have a hearing on the merits for a permanent injunction 591 Is there a right to an injunction? No right to an injunction The Court balances the plaintiff's interests

with those of the government 592 Declaratory Judgment What is a declaratory judgment? Why are injunctions and declaratory judgments the same for agencies? You can either enjoin the agency for acting or ask that the agency's action be declared illegal 593

Mandamus If you are trying to make someone do something, then the court may call this a mandamus Why is making the agency do something much more politically complicated? Because in most federal cases courts cannot substitute their decisions for the agency's decision Not such a problem in state cases 594

Remember Marbury v. Madison? Started with Marbury v. Madison, which asked Madison to issue Marbury's judicial commission 595 Discretionary versus Ministerial Act What must the agency do versus what may the agency do Why does this matter for both injunctions and tort claims act cases?

Courts will not order discretionary actions, nor hold the agency liable for them in damages. Big deal in state tort law in most states 596 Who has Federal Jurisdiction on Mandamus? Traditionally limited to courts within the District of Columbia Now any court can do it, but they are difficult to get

597 What is the best way for plaintiffs to force an agency to act? Ask for an injunction under 28 USC 1331, using the language of APA Sec 706(1) which allows a court to compel an agency action unlawfully withheld. 598 Habeas Corpus

Literally, Bring me the body Provided in the Constitution Does not depend on state law Allows someone being held by the state to require their keeper to bring them before a judge and justify their confinement Suspended by Lincoln during the civil war Rejected by the court 599

What must the State Show in a Habeas Corpus Hearing? The legal authority for the confinement The factual basis for the confinement In administrative proceedings, the standard for review is arbitrary and capricious, unless

otherwise specified in statute How might it be very important for bioterrorism and homeland security? Is there a right to bail in administrative detentions? 600 Tort Liability of Officials What happens if you sue federal officials for common law torts? Common law torts against federal officials are dismissed and brought against the

government under the FTCA 601 When can federal officials be personally liable? Under Bivens, a cause of action for damages can be brought against federal agents who violate constitutional rights.

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Constitutional torts are actions outside the scope of employment Ruby Ridge 602 Suing State Officials What is the jurisdictional requirement for a 42 USC 1983 action? Acting under color of state law State and local officials Local government Not state government itself

11th Amendment 603 Immunity from Liability Why is personal immunity critical to government function? Absolute v. qualified immunity 1) Prosecutors and adjudicators (ALJs) get absolute immunity from damage suits 2) everyone else gets qualified immunity Federal rules for qualified immunity are the same as those for state officials under 1983

604 What does the president and his aides get? Nixon established that the president and aids get absolute immunity for highly sensitive activities while in office Clinton established that presidents are still liable

to suit for actions taken before they are president It is assumed that presidents would be liable for ordinary torts while in office, but the claim might be put on hold until the term was over. 605 What is the test for qualified immunity? Is the conduct "objectively reasonable"? There can only be liability for constitutional violations if the right is "clearly established You can get an injunction for a constitutional violation when you cannot get damages Thus you could enjoin a violation without being able to collect damages

606 Exceptions to the Federal Tort Claims Act http:// biotech.law.lsu.edu/cases/immunity/ftca_exceptio ns.htm 607 Comparing 42 USC 1983 and Tort Claims Acts

Review this table http://biotech.law.lsu.edu/cases/immunity/FTC_v_ 1983.htm 608 609 Suing the Federal Government 610

History Traditional Sovereign Immunity US Constitution "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." U.S. Const. art. I, 9. All compensation had to be by private bills What problems do private bills pose? 611

Court of Claims 1855 Administrative tribunal to review claims and make recommendations to Congress Later Congress made the decisions binding Not an Art II court

Like bankruptcy courts Appeal to the Federal circuit and the United States Supreme Court Contracts, tax refunds, takings - not torts 612 Federal Tort Claims Act Went into effect in 1945 All private bills before then

Allowed tort claims Significant exceptions http:// biotech.law.lsu.edu/cases/immunity/ftca_excep tions.htm 613 Dalehite v. U.S., 346 U.S. 15 (1953)

Texas City Disaster http://www.local1259iaff.org/disaster.html Why is the TVA producing ammonium nitrate fertilizer? Why were they producing it during the war? Where is it going? Why might a ship also be carrying explosives? 614 The General Claim The negligence charged was that the United States, without definitive investigation of FGAN properties, shipped or permitted shipment to a

congested area without warning of the possibility of explosion under certain conditions. The District Court accepted this theory. 615 Specific Findings by the Trial Court the Government had been careless in drafting and adopting the fertilizer export plan as a whole,

specific negligence in various phases of the manufacturing process, and those which emphasized official dereliction of duty in failing to police the shipboard loading. 616 The Statute (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the

failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 617 What is the Intent of this Provision? What is a discretionary function? Why do we limit claims based on government

decisionmaking? What are the consequences for allowing litigants to challenge government polices? How does this mirror juridical review of rules and adjudications? What is the remedy for bad decisions? What about compensation? 618 The United States Supreme Court Ruling What did the United States Supreme Court rule about the government's actions in this case?

619 Allen v. United States, 816 F.2d 1417 (10th Cir. 1987) - The Clears up the Cloud How did the government put these people at risk? Did the government deny that they caused any

injuries? Was this an accident? What did the government intend to do? What is the discretionary authority issue and how was it resolved? What do you do if you do not like this? 620 Berkovitz by Berkovitz v. U.S., 486 U.S. 531 (1988) What was the product in Berkovitz? What did the FDA regulations require? What did the plaintiffs claim the FDA failed to do?

What was the FDAs defense? 621 Polio Vaccine Cases Salk vaccine Dead virus - supposedly Sabin vaccine Live, attenuated vaccine Gives a mild infection

Can spread to others - which is good What if someone is immunosuppressed? 622 Cutter Incident During the first wave of vaccinations when the vaccine became available in 1955 Some vaccine was not killed and children became infected Remember, there is still polio in the community at this time

First vaccine litigation Real injuries, but a real benefit 623 Post Cutter Incident Undermined confidence in vaccines 402 A made vaccine cases easier to prove There was some natural spread from Sabin virus Swine Flu vaccine came along in 1975 and might have caused a neurologic disease

624 Swine Flu 1974-75 flu season New strain of flu that was thought to resemble the 1918-1919 Spanish Influenza Feds did a massive vaccine campaign

Companies demanded immunity for lawsuits Congress let plaintiffs substitute the feds as plaintiff, and allowed strict liability theories 625 Swine Flu - Legal Consequences Huge incentive to find injuries

Diagnosis of Guillain-Barre syndrome was ambiguous No lab test vague finding in all but the extreme cases Docs were encouraged to make the diagnosis Maybe the first big injury case where plaintiff's attorneys shaped the epidemiology and perception of the disease Berkovitz happened in this climate - 1979 626 Varig Airlines (in Berkovitz) What was the injury in Varig Airlines? What did the enabling act require the agency to do? What did the regs require? How are the regs in Berkovitz different from

those in Varig Airlines? 627 Agency Liability Why was the FDA liable in Berkovitz? How could the FDA have worded the regulations to avoid this sort of liability? Why might that have raised a red flag during notice and comment? LA follows Berkovitz (added 31 Oct)

628 Bird Flu What are the legal issues? How can the feds deal with these? What about rolling an experimental vaccine? What if the feds make you take the experimental vaccine?

What does Jacobson tell us? And it harms you? What does Allen tell us? 629 Leleux v. United States, 178 F.3d 750 (5th Cir. 1999) What are the facts? What disease did she claim she caught?

Did she consent to the sex? Why is that critical to an FTCA claim? Did she consent to the disease? Why does that cause problems with the FTCA? 630 Can the Government Be Liable When the Case Involves Battery? Sheridan v. United States, 487 U.S. 392 (1988) Government assumed a duty to restrain a an intoxicated, armed serviceman

Government did not carry out this duty properly Did the case depend on the serviceman being a government employee? What if he had been a civilian? 631 Contrast Leleux with Sheridan If the recruiter were not a government employee, would plaintiff have case against the government?

How does this differ from Sheridan? 632 633 Getting into Court Last week we talked about the statutes that provide jurisdiction to get into court at all If you can get into court, then there are three more hurdles:

Preclusion - has Congress limited judicial review of certain matters? Standing - does your client have the right interest to bring the case? Exhaustion of remedies - are you finished with the agency? 634 Basic Constitutional Question Unresolved

Except for certain cases which the Constitution gives to the United States Supreme Court, all of the jurisdiction of the federal courts was granted by Congress Can Congress take away long-standing jurisdiction? Can Congress take away jurisdiction over basic constitutional rights like habeas corpus? 635 Preclusion of Judicial Review What is the effect of precluding judicial review? Is this favored by the courts? Where does Matthews v. Eldridge come in?

When would you expect the courts to be most open to preclusion of review? 636 When is Preclusion a Good Policy? The president's decision to accept or reject a list of base

closings An agency's decision to quit funding a health program out of lump sum appropriations An agency's refusal to reconsider its own decisions The CIA director's decision to fire an employee when the statute says he can do so whenever such termination is necessary or advisable in the interests of the united states (the decision was reviewable on constitutional grounds) 637 What are You Really Asking the Court to Review? The key in cases where preclusion is an

issue is what you really want reviewed. Is it a fact found by the agency? An exercise of agency discretion? Whether the agency is acting beyond its legal authority? Whether the agency is acting constitutionally? 638 Statutory Limits on Judicial Review

The courts read statutory limits on judicial review very narrowly Abbott stated the modern policy There should be agency review unless the statute clearly precludes review Even when the statute seems to preclude review, the courts will often allow review anyway. 639 Bowen v. Michigan Academy of Family Physicians

Dispute over the policy on the payment rate for Medicare Claims Individual claims are decided by private contractors called fiscal intermediaries Why did congress preclude review of individual claims decisions? What is the Matthews analysis? What is the distinction between reviewing the regs and reviewing the individual claims? 640 Limiting Review of Regulations

Congress can put a statute of limitations on the review of regs Often 60 days What if do not know about the applicability of the reg until later? What cannot be precluded? 641 Committed to Agency Discretion

The statute may also preclude judicial review by committing the matter to agency discretion This is a broad limitation on review and is construed narrowly. 642 Classic Examples

Prosecutorial discretion Can you sue prosecutors to force them to bring prosecutions? Can you think of a possible exception? Agency enforcement decisions What was the prisoners claim in Heckler v. Chaney? (Court could have dodged on a medical practice argument) What will you have to show to get a court to force action? 643 Modern Formulation for Committed to Agency Discretion: No Law to Apply

Judicial review must be based on some standard Constitutional cases are decided by reference to the constitution Chevron cases are decided by looking at the enabling act giving the agency power If the agency action satisfies both of these, then further review depends on finding criteria to evaluate the agency action 644 Agency Discretion Implies Freedom to Decide

Why is the problem of no law to apply the real reason why the courts do not review discretionary actions? This is the key to discretion cases, esp. cases like Heckler v Chaney, where there is no statute or regulation to set the standard of conduct Why does this make it nearly impossible to review an agency's discretionary failure to act? 645

What Can You Do if the Agency Claims it does not have to Act? (i) is it really discretionary? (ii) is it based on a erroneous legal determination? (iii) does the statute allow a private right of action against the regulated party, say for adverse health

effects? (iv) you can petition the agency to promulgate a rule requiring the action (v) use political power to force the agency to act 646 Standing 647 The Constitutional minimum for standing Case or Controversy

1) injury in fact that is a) concrete and particularized and b) actual or imminent, not conjectural or hypothetical 2) causal connection between the injury and conduct complained of, it must not be due to the action of some third party not before the court 3) it must be likely, not speculative, that the injury will be redressed by a favorable decision 648 702. Right of review

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. 649 Injury in Fact and Zone of Interest Tests How personal does the injury have to be? This is the core of many environmental actions, but is also a key issue in the business world

Should Sun have the right to contest an FTC settlement with Microsoft? 650 Association of Data Processing Service Orgs. V. Camp Comptroller of the Currency allowed national

banks to offer data processes services. Plaintiffs, who represent other data processors, claim this violates the national bank act First question - is there injury in fact? 651 Second question - is this interest within the zone of interests meant to be protected by the law?

APA 702 - "aggrieved by agency action within the meaning of a relevant statute" Must the injury be economic? Flast - - first amendment challenges to school prayer What is the statutory issue? The act says banks can only do banking services for banks Could be to protect bank customers, not competitors of banks 652 What does the court say about the purpose of the statute?

Does give standing to competitors since it directly implicates their business Could the court have decided this differently? Doesnt every regulation that affects a business also affects its competitors? 653 Third question - has judicial review been precluded?

Preclusion is an extreme result The court will seldom find that review is precluded unless it is specifically provided for by the statute No preclusion provisions in the national bank act 654 Air Courier v. American Postal Workers Union

Private Express Statute - Gives USPS a monopoly on first class mail USPS wants to suspend it to allow courier services like Fed Ex Union fights this, says it will reduce jobs in the USPS 655 Why is the date the act was passed important to determining Congressional intent?

Act was passed in 1792 - no postal workers What did the court determine was the purpose of the act? Why was this an important purpose? Were the postal workers in the zone of interest? 656 Does Congress or the Constitution

Control Zone of Interest? (corrected) Congress can control this aspect of standing, making it broad or narrow in the enabling act If Congress is silent, then 702 controls 657 How was this illustrated in Sierra Club v. Morton (1972)?

The Sierra club cannot sue to preserve historic values just because it is interested in them. Must show that a member has independent standing 658 What did Congress do with standing in the Endangered Species Act? Allowed "any citizen" to sue to enjoin certain actions under the act What was the effect of this provision on the zone of interest test? Court said this abolished the zone of interest test in these situations

Zone of interest is more difficult for the courts to determine than injury in fact 659 Lujan v. Defenders of Wildlife Plaintiff went to Sri Lanka and saw endangered animals and was upset and they want to go back

and see the animals again Plaintiffs argue ecosystem standing Everything is connected together so everyone has standing Does the court buy this? 660 Animal Law

Should animals have standing? What about very smart monkeys? What about people who empathize with animals? Rat Case Could Congress grant animals standing, with a guardian ad litem, perhaps? Could Louisiana? 661 Associations

What are the requirements for an association to have standing? a) at least one of their members has standing b) the interests the association seeks to protect are germane to the association's purpose c) neither the claim nor the relief requires the participation of individual members in the lawsuit. Why is this critical for civil rights and environmental groups? 662 Tax Payer Actions

Most states allow tax payers to contest what they claim are illegal expenditures of tax funds Do the federal courts? The feds do not, except in very narrow circumstances Why not? Would be a vehicle for contesting all government action 663 Standing of Government Agencies

In state law, many states allow agencies to contest the rulings of other agencies. AG's Office in LA Federal agencies can do the same only if there is specific statutory authorization Otherwise, "an agency in its governmental capacity is not "adversely affected or aggrieved" by other agency regulations. This driven by the different separation of powers issues in states v. the feds

664 665 Review Injury in fact Zone of injury Redressiblity 666

Hospitals and Charitable Care Economic incentives to provide care to the poor Hill-Burton IRS regulations on non-profit status State exemptions from property and other taxes, based on IRS determinations What if the IRS or the state does not try to enforce these rules? What is the impact of the community on tax exemption?

667 Simon v. Eastern Kentucky Welfare Rights Organization, 426 US 26 (1976) Can a citizens organization qualify for standing to challenge an IRS policy that they claim fails to require adequate amounts of charitable care? The members argued that they were in the zone of interest and had suffered individual injury because they have been denied charitable care.

668 What is the Nexus with the IRS Policy? The majority opinion found that there was no direct link between the hospital decision to deny care in an individual case and the IRS policy. Plaintiffs failed to show that the decision was based solely on tax considerations and that it would be different if the IRS policy was changed Justice Brennan was worried that by resting the claim on injury in fact that Congress could not change the result

669 Duke Power v. CESG, 438 US 59 (1978) Plaintiffs lives near an atomic power plant They claimed that the Price-Anderson Act unconstitutionally denied them common law tort remedies The court found that their being exposed to the

thermal pollution and the aesthetic aspects of the plant constituted injury in fact They lost anyway - no constitutional right to a tort remedy 670 Lujan v. Defenders of Wildlife, Round II Plaintiffs wanted to change the policy of federal agencies that supported programs in foreign countries that

harmed endangered animals They argued that these programs should have to be reviewed by EPA for compliance with the endangered species act The court found that forcing this review would not assure that the US would not fund the project, and the even if the US pulled out, whether the project would stop 671 Steel Company v. Citizens for a Better Environment, 523 US 83 (1998)

This arises under the law that requires industries to provide information to the community about toxic chemicals they use The company failed to provide info in the past, but is now in compliance The plaintiffs sue under the jurisdiction granted by the statute for compensation for private parties injured by industries regulated by the statute 672 Is there a Redressible Injury?

The act provided for fines to be paid to the government, but since it was not a private attorney general provision, the plaintiffs could not collect these The plaintiffs argued that should be paid for the cost of the litigation, but the court said that would be bootstrapping. Other damages were based on deterring future bad conduct, but there was no claim of a continuing violation The concurrence argued that punishment could be

considered compensation, but still found that these plaintiffs did not state a redressible injury. 673 Friends of the Earth v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000) Environmental plaintiffs who suffered injury in fact from mercury discharges into a river had standing to seek civil penalties that would be paid to the U.S. treasury.

Unlike Steel Company, the plaintiffs were seeking to deter probable future misconduct and the payment of civil penalties would be likely to deter future violations. The dissent argued that the deterrent came from the availability of civil penalties, not their imposition. The lawyering difference was making the case that the violations were part of a long term problem, not a single infraction 674 Why is Redressibility a Jurisprudential Problem?

Is the issue whether the plaintiff can show a specific, individualized injury? In Laidlaw, specific plaintiffs claimed they were harmed by the damage to river In Eastern Kentucky, the plaintiffs were attacking a general policy, not a specific revenue ruling against a specific hospital Should the court be looking harder at the Congressional policy behind the act? (Breyer) 675 In FEC v. Akins, 524 U.S. 11 (1998)

FEC refused to treat the American Israel Public Affairs Committee (AIPAC) as a "political committee" that is regulated under the Act Akins filed a complaint with the FEC but the complaint was dismissed. The statute allowed "any person" who believes a violation of the Act has occurred to file a complaint before the Commission and further allowed "any person aggrieved" by a Commission decision dismissing a complaint to seek judicial review of the dismissal.

676 Is Akin's Claim Redressible? What is the injury? Akins was deprived of information to which he is entitled by statute and which he will use to evaluate candidates for public office. The Court held that Akins had standing to challenge the FEC decision.

This was based on the specific statutory purpose of providing this info and the specific injury to Akins, even though his injury was no different than that of other voters. 677 Thought Question

What is really being addressed by allowing standing for procedural errors? What is the injury when there is failure to file an environmental impact statement? Why don't plaintiffs have to show that the result would have been different? Is this like other due process claims? 678 Congressional Standing What happened in Raines v. Byrd (1997)?

Congressmen wanted to contest the line item veto Court said no direct interest, so no standing What is another way the court could have avoided deciding this case? Political question 679 Qui Tam Actions Citizens stand in for the US Assert the claim of the US

Collect a bounty 680 Review of Standing Injury in fact Zone of Interest Congressional grant of interest Injury must be particularized Causation

Redressiblity 681 Associational Standing At least on member must have standing Must be consistent with the goals of the organization Must not require specific damage calculations or facts

682 683 Is Your Claim Ready for Prime Time? Ripeness Finality Exhaustion 684

Ripeness Ripeness, finality, and exhaustion are hard to separate in many cases Ripeness is whether it is the appropriate time for the court to review the claim APA The APA is silent on ripeness and exhaustion However, APA 704 only authorizes the review of final agency actions 685

Instant Ripeness The agency has brought an enforcement action against your client The agency has promulgated an unconstitutional regulation 686 CBS v. U.S., 316 U.S. 407 (1942)

FCC issues a regulation restricting the network exclusivity provisions in affiliate contracts with radio stations CBS says that this will cause the affiliates to demand different terms in their contracts, and thus the dispute is ripe because they are harmed The FCC says it will not be ripe until there is an enforcement action 687 Is the Regulation Ready for Review?

The FCC says it is just policy, and no more reviewable than a press release Think about this in terms of the modern cases The court finds that it is final and that it is affects the behavior of the regulated party What would the affiliate station lawyer say about the reg? It is self-enforcing in that the parties must change their behavior or risk legal action 688

Frozen Foods Express v. US, 351 US 40 (1956) The Court found that a 71 page report detailing the ICC's interpretation of a narrow statutory provision was reviewable. This was despite the agency arguing that the

interpretation was not binding Remember, however, that getting the right to stay in court is not the same as winning. This is also a legal question, which the courts are more likely to review 689 Abbot Labs v. Gardner What did the statute require?

Generic names had to be on labels and other printed material What did the FDA require through a regulation? FDA promulgated a reg that required that the generic name of a drug be used every time the brand name was This is facial challenge 690 Why did Abbot and others want preenforcement judicial review? Compliance would be very costly, but they could

not risk the enforcement penalty. Abbot claimed great hardship if it had to choose between complying and getting nailed for a violation Think about relabeling stuff in inventory, and how much stuff you have to thow out because it expires while you are working out the new label 691 What did plaintiffs argue was wrong with the regulation? Overstepped agency authority

Why did the FDA claim the action was not ripe? FDA claimed it was not ripe because it had not been applied to any given product 692 What is the first question in a ripeness analysis? First question is always - does the enabling act limit pre-enforcement review? 693

What is the test? What is the fitness of the issue for review? What is the harm from not doing pre-enforcement review? Is this a question of law or fact? Does it depend on agency discretion? 694

Does defendant have a significant injury? Must the petitioner make significant changes in its behavior or risk severe penalties? Is there an alternative means of review - say through an agency process? 695 Toilet Goods v. Gardner

FDA required inspector access to the plants as a condition of certification of the safety of the agents in the product 696 How was the injury requirement different in this case and Abbott? In this case the court said the injury requirement was not met - what would it cost to let the inspector in?

What is the equitable problem with defendant's complaint? More to the point - why would you want to exclude the inspector? 697 Gardner v. Toilet Goods Companion case Did the agency exceed its authority in a regulation establishing definitions for food additives?

This is like Abbott 698 Policy Implications How does expanding pre-enforcement review interfere with agency practice? Is it better for regulated parties to be allowed preenforcement review? What is the downside of post-enforcement review?

699 Statutory Limits Congress can encourage pre-enforcement review by requiring that challenges to discretionary judgment in making a reg be brought within 60-90 days after the order is final Can you attack the reg later? If the agency brings an enforcement action, you can challenge the then You can ask for a new or changed reg and appeal

the denial 700 What if Your Client Did not Know About the Reg? Just not knowing is not enough Must show that you client had a good reason for not knowing or that the agency blocked his efforts to get into court

What if the agency changed the definitional section years later, make all of the reg apply to your client? 701 High or Low Point National Automatic Laundry v. Shultz, 443 F2d 689 (1971) The court allowed the review of an advisory letter 702 Why Does Hardship Matter?

If the matter is otherwise reviewable, why does it matter if there is hardship? Shouldnt the court go ahead and review the agency action when it is ready, without regard to hardship? 703 NPHA v. Interior, 538 US 803 (2003)

Court backs down from National Automatic Lanudry Finds the hardship is important in judicial economy Finds that making the defendant wait until there is an enforcement action allows the agency to add more factual material to the record, facilitating review 704 Finality

What are the requirements for a final order under sec. 704 of the APA? 1) the action must mark the consummation of the agency's decisionmaking process - it must not be tentative or interlocutory 2) it must be one by which legal rights and obligations have been determined or from which legal consequences will flow 705 How does the court distinguish finality from exhaustion? You have nothing left to do, but the agency is not finished

Court says 704 specifically allows intermediate agency actions to be reviewed when the final action is reviewed. 706 FTC v. Standard Oil of California (1980) (not in the book) FTC issued a complaint saying it had reason to believe that the oil companies were engaging in

unlawful competition Why does Socal want to contest this intermediate finding? United States Supreme Court said it had to be a final action or otherwise reviewable under 704 707 Western Illinois Home Health Care v. Herman, 150 F3rd 659 (1998) Asst. District Director sent a letter to a regulated

party probably an administrative order The party moved for review Was it final? Not tentative or interlocutory Established legal duties with penalties Thus was final for review purposes 708 What is the Catch 22 in Franklin v. MA?

What if the agency action must be approved by the president? The census is only a recommendation by the agency to the president, so it is not final The order is not final until approved The president's decision cannot reviewed under the APA because he is not an agency 709 710 Finality

What are the requirements for a final order under sec. 704 of the APA? 1) the action must mark the consummation of the agency's decisionmaking process - it must not be tentative or interlocutory 2) it must be one by which legal rights and obligations have been determined or from which legal consequences will flow 711 FTC v. Standard Oil of California (1980) (not in the book)

FTC issued a complaint saying it had reason to believe that the oil companies were engaging in unlawful competition Why does Socal want to contest this intermediate finding? United States Supreme Court said it had to be a final action or otherwise reviewable under 704 712 Western Illinois Home Health Care v. Herman, 150 F3rd 659 (1998)

Asst. District Director sent a letter to a regulated party probably an administrative order The party moved for review Was it final? Not tentative or interlocutory Established legal duties with penalties Thus was final for review purposes 713 What is the Catch 22 in Franklin v. MA?

What if the agency action must be approved by the president? The census is only a recommendation by the agency to the president, so it is not final The order is not final until approved The president's decision cannot reviewed under the APA because he is not an agency 714 Is administrative delay enough to justify finality?

Delay alone is not enough to justify finality Congress must set some deadlines before the court can force an agency to speed up Agencies get to decide how to allocate their resources 715 Exhaustion of Administrative Remedies

Somewhat like the final order doctrine The litigant still has agency appeals left and the agency might change its mind 716 Questions of Law If it is only a question of law with no facts in dispute, then you do not need to exhaust the agency process

Constitutional Claims Claims of acting beyond the statutory authority Claims of improper rulemaking What is the risk? If the court disagrees, you have waived your right to the agency process 717 How does the court distinguish finality from exhaustion? You have nothing left to do, but the agency is not finished Court says 704 specifically allows intermediate agency actions to be reviewed when the final action is reviewed.

718 McCarthy v. Madigan (Exhaustion/Alternative Remedies) NOTE - This case has been overruled by statute for prisoners. It is still good law in other situations.

Federal prisoner brought Bivens action seeking only money damages for denial of medical care. Why Bivens? Was that remedy available from the prison administrative grievance process? 719 The Exhaustion Issue What can the prisoner gain by exhausting his administrative remedies? How does the prison appeals process burden the

inmate? Lots of short deadlines increase the chance he will screw-up and lose the right to the claim 720 What are the twin purposes of the exhaustion doctrine? 721 Preserves agency authority

Most important when the issue is one of agency discretion Lets the agency have a chance to rule and perhaps correct the problem Prevents end runs on the agency which can weaken the agency's effectiveness 722 Judicial efficiency

The agency might moot the controversy Builds the record for review 723 What is the most important way to know if exhaustion applies in the federal system? Whether Congress requires it in the enabling act Did Congress require exhaustion for prisoner Biven's claims? No

724 Does the prisoner have to exhaust his remedies? Why does seeking access to medical care increase the chance that the prisoner can skip the appeals process? Does not directly implicate prison discipline

Will the record of the appeals process assist the court in making its decision? No, it will not develop a detailed factual record. 725 What is the futility doctrine and how do you satisfy it?

You argue that there is no chance the agency will rule for you Need specific factual allegations, not just a hunch or guess What does this look like from other areas of adlaw? The Closed Mind Problem in adjudications 726 Review of Exhaustion 727 What are the factors to balance in exhaustion cases?

728 1) the nature and severity of the harm from delay 729 2) the need for agency expertise in solving the problem 730 3) the nature of the issues involved

731 4) the adequacy of the agency remedy in relation to the plaintiff's claim 732 5) is the claim serious or just a delaying tactic? 733 6) the apparent clarity or doubt as to the resolution of the merits of the claim

734 7) the extent to which exhaustion is futile 735 8) the plaintiff's excuse for not exhausting the remedy, other than futility 736 Primary Jurisdiction 737

How do primary jurisdiction and exhaustion differ? Exhaustion is when the agency has primary jurisdiction and the court is recognizing it Primary jurisdiction is when the court and the agency both could hear the case and the court defers to the agency 738 What are the standards courts use to

determine primary jurisdiction? 1) need for uniform results 2) need for agency expertise 3) that the agency may resolve the issue in a way that will obviate later judicial review. May courts defer to agency findings in criminal cases? There is no bar to the court deferring to an agency proceeding in criminal cases.

739 Nader v. Allegheny Airlines, Inc., 426 U.S. 290 (1976) Do not bump Ralph! There is another case where they bumped a federal judge Why was his fraudulent misrepresentation claim outside of the agency's review? Common law remedies were preserved The agency did not require over-booking

He did not attack any agency regs 740 End of Slides 741

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