Languages
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Legal
Can divide our semester up into 3 parts ----- See PowerpointCan bring our casebook and any outlines we have prepared
Design & Political ControlI.
the constitutional and procedural law that regulates agencies of government other than legislatures and courts
The source of agency powers◊
The exercise of agency powers◊
The control of agency powers by the legislature, the executive, and the judiciary ◊
It is about …
Admin Law is…
Identification of a problem
Agency is one possible response ◊
Identification of possibile solutions
Identification of stakeholders and their interests
Why Agencies?
An agency has its origin in enabling legislation
Line or independent agency? ►
Single or collective head?►
Issues of form◊
Research and publicity ►
Rulemaking ►
Licensing ►
Investigation and enforcement ►
Adjudication ►
Ratemaking►
Issues of Function◊
That legislation has to deal with:
Design
Lesson 1 - Introduction
Moribund at federal level○
Alive and well at the state level○
The premise that a legislature may delegate its powers to an agency only under carefully controlled conditions expressly set out in the enabling act
•
Has its origin in separation of powers•
One constraint on the legislation is the Non-delegation Doctrine
Enabling Legislation
Allocation of Powers
federal
state
local
legislative executive judicial
F E D E R A L I S M
H O M E R U L E
SEPARATION OF POWERS
Allocation of Powers
Lesson 2 - Delegation Doctrine
Form of exam will be about the same as ones on TWEN
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State Fed
Rule
Adj
We will get the full instructions and the common fact pattern a few days before the exam…some facts that are more discreet will not be given
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FINAL EXAM:
Final ReviewWednesday, December 01, 201010:35 AM
FINAL Page 1
Separation of Powers
localpeople
local
state
national
LEG
EXEC
JUD
checks and balances
legislative review of rules (lesson 16) ○
oversight ○
investigation ○
funding ○
direct contact or “case work”○
legislative veto (next slide) •Legislative controls take various forms
Forms
INS v. Chadha (no legislative veto at federal level)
Ohio allows; Kentucky prohibits•Legislative veto may be permissible at state level
Legislative Veto
Lesson 3 - Legislative Control
Presidents and governors indirectly control agencies through their powers to appoint and remove officials who execute the laws and exert influence through executive oversight
•
Contrast the effect of unitary and plural executives •Legislative encroachments include independent counsel laws, dismissal or for cause, and appointment for terms
•
Fewer forms of executive control
FormsLesson 4 - Executive Control
Slides on Open Records and Open Meetings Acts available in Briefing Book on TWEN
Open GovernmentLesson 5 - Citizen Control
The public? The government as a whole? The branch? The agency? Its officers? •Identification of the client of the government lawyer
Promote administration policy? Serve the public interest? Just a hired gun?•The lawyer’s obligations
Officer holders; political and policy advisors•Lawyers in non-traditional roles
Challenges
Model Rule 1.13: “A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.”
Restatement (3d) of the Law Governing Lawyers, : No universal definition of the client of a government lawyer is possible. (Section 97, comment c)
Ethics
Lesson 6 - Control By Lawyers
Exercise of Agency PowersII.
Londoner and Bi-Metallic•Rulemaking is comprehensive; adjudication is incremental•Rulemaking involves “legislative facts”; adjudication involves adjudicative facts•Difference between “rule” and “order”•Adjudication and rulemaking each has its advantages and disadvantages•
Rulemaking/Adjudication Distinction
APA 551(4) •MSAPA 1-102(10) •KRS 13A.010(2) •ORC 119.01(C)•
Rule defined•
Order defined •
Definitions
Lesson 7 - Rulemaking Adjudication
FINAL Page 2
APA 551(6)•MSAPA 1-102(5)•KRS 13B.010(6) (“final order”)•ORC 119.01(D) (“adjudication”)•
Order defined •
Participation by all affected parties•Apt procedure for questions of policy•Applies prospectively•Uniformly binds classes of persons•Regularized process for political input•Agency is in control of its agenda•Obviates need for re-litigation•Rules are widely published and accessible•Easier executive and legislative oversight•
Advantages of Rulemaking•
Allows agency to make law step by step•Allows agency to handle the new and unexpected•Often less expensive and time consuming than rulemaking•No need to resolve internal agency disputes•Resolves ambiguities in laws and rules•
Advantages of Adjudication•
Ordinarily the option to proceed by rulemaking or adjudication is the agency’s•In states, agencies may have to proceed by rule (as in Kentucky) •
Agency Choice•
Constitution•
Generic acts (APA, NEPA)•Enabling acts•
Statutes•
Agency rules•Executive orders•Common law•
Sources of Procedural Requirements
Dignitary function•Acceptability•Accuracy•Consistency•Empowerment•Improve decisions and the exercise of discretion•Improve judicial review•
Purposes of Due Process
Deprivations of life, liberty, property•To what does it apply?•
Matthews balancing•What procedures does it require?•
Pre-deprivation, post-deprivation, both•When must the agency supply those procedures?•
Due Process Clause Analysis
Traditional forms of property (e.g., right to own and use goods)•“New property” (e.g., entitlements, tenure)•
Loudermill•
Property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.”
•
Statute that creates property cannot prescribe the procedure for taking it away.•
Property Interests
Traditional forms of property (e.g., right to own and use goods)•“New property” (e.g., entitlements, tenure)•
Loudermill•
Property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.”
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Statute that creates property cannot prescribe the procedure for taking it away.•
Liberty Interests
Exclude the interest from property or liberty•Describe due process are variable rather than fixed and dependent on the context•Identify the action in question as generalized, not particularized or as something other than a deprivation
•
Means courts use to limit the procedural requirements imposed by due process•Limitations by Courts
Lesson 8 - Adjudication: Is Process Due?
“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Matthews v. Eldridge
•How Much Process is Due?
Used for both what (elements of a hearing) and when (pre-deprivation, post-deprivation)•
private interest that will be affected by the official action•risk of an erroneous deprivation and the probable value of additional procedure•government’s interest, including fiscal and administrative burdens•
Three factors:•
Balancing Test
Unbiased tribunal•Notice of the proposed action and the grounds asserted for it•
Elements of a Hearing
Lesson 9 - Adjudication: How Much Process Is Due?
FINAL Page 3
Notice of the proposed action and the grounds asserted for it•Opportunity to present reasons why proposed action should not be taken•The right to call witnesses•Testimony under oath•The right to know the evidence against you•Right to have a decision based exclusively on the record•Right to counsel•Making of a record•Availability of reasons for decision•Public attendance•Judicial review•
formal adjudication is not required absent clear indication of Congressional intent•Federal: magic words - “on the record”•
State: most states require an external source to trigger; MSAPA 4-101 has an inclusive definition•
Statutory Right to a Hearing
Agency need not provide an adjudicatory hearing on an issue already addressed by rule.•Points up interplay between rulemaking and adjudication•
Limiting Issues
Lesson 10 - Statutory Hearing Rights
The one who decides must hear?•Intermediate reports•Exclusive record•
Conflict between institutional and judicial decision making models•Decision Making
Problem rooted in the combination of legislative, executive, and judicial authority in the “Fourth Branch”
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Adversaries can’t be decision makers or advisors to decision makers•Exception: rule of necessity•
Separation of Functions
APA 556(b) permits removal for personal bias or other disqualification (pecuniary interest)•Pre-decisional bias (prejudgment) versus bias at hearing (personal animus?)•
Bias
Further conflict between institutional and judicial models of agency adjudication•Refers to contacts with persons outside the agency (recall separation of functions)•
Ex Parte Contracts
APA 557(d) - interested persons can include members of Congress•Legislative Pressure
Lesson 11 - Quasi-Judicial Decisions
Administrative searches•Investigative subpoenas•Reports and filings•
Power to Obtain Information
To conduct a valid search requires consent, a warrant, exigent circumstances, or an exception permitting a warrantless search
•
Lower threshold than criminal warrant•Warrant requires probable cause “in the administrative sense”•
Exigent circumstances = emergency•Exceptions for “pervasively regulated businesses”•
Administrative Searches
(1) must be for a legislatively authorized purpose, (2) information sought must be relevant to the authorized purpose, (3) information must not be in agency’s possession, (4) information must be adequately described, and (5) proper procedures must be followed
•
No showing of probable cause is necessary•
Investigative Subpoenas
Typically required of regulated parties by enabling acts•No testimonial privilege in records required to be prepared and maintained•
Reports & Filings
Rules of evidence not strictly applied•Residuum rule•
Evidence•
Analogous to judicial notice in civil litigation•Reflects application of agency expertise•
Official notice•
Hearing Phase
Lesson 12 - Pre-Hearing & Hearing
Findings of fact and conclusions of law•Res judicata and collateral estoppel•Stare decisis•Equitable estoppel•***********We were gonna go back to this after A Well Founded Fear exercise but didn’t b/c of problems so not as much emphasis on this part.**********
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Post-Hearing PhaseLesson 13 Decision & Effect
Lesson 14 & 15 - A Well Founded Fear
Executive Order 12866•Regulatory analysis•
Cost-benefit analysis•Ohio JCARR•Kentucky ARRC•
Review of RulesLesson 16 - Oversight
FINAL Page 4
Kentucky ARRC•
Executive Orders •Executive Oversight •
Congressional Review Act •ARRS in Kentucky •JCARR in Ohio•
Legislative Oversight •
Oversight
Informal (notice and comment) rulemaking•Formal (trial-type) rulemaking•Hybrid rulemaking•
Rulemaking procedures:•Implementation
APA 553; MSAPA Article III•Adequate notice•Reasonable time for comment•Federal rule: final rule must be the “logical outgrowth” of notice and comment•State (MSAPA) rule: final rule must not be “substantially different” from proposed rule•
Informal Rulemaking
Triggered by “magic words”•“When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection [553(c)].”
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Formal Rulemaking
Vermont Yankee v. NRDC•In the absence of constitutional constraints or extremely compelling circumstances, a court may not impose rulemaking procedures on an agency beyond those set out in section 553.
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Agency can impose hybrid rulemaking on itself•
Hybrid Rulemaking
Lesson 17 - Initiating Rulemaking
role of agency head •ex parte communications •bias and prejudgment •ethical obligations of government attorneys•
Procedural regularity•
Findings and reasons•Issuance and publication•
Rulemaking
APA 553(c)•MSAPA 3-106(c)•
Agency decision makers must actually consider the written and oral submissions received in the course of the rulemaking
•Agency Head
Problem of the captive agency•Can’t take the politics out of politics•
Ex Parte Communications
Presumption of regularity•“Unalterably closed mind” standard•“The legitimate functions of a policymaker, unlike an adjudicator, demand interchange and discussion about important issues. We must not impose judicial roles upon administrators when they perform functions very different from those of judges.” p. 281
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Bias
satisfies legislative mandate •facilitates meaningful judicial review•allows more informed scrutiny by Leg •induces reasonable (not arbitrary and capricious) action •introduces predictability •promotes public confidence •
Fulfills several functions:•Findings & Reasons
Lesson 18 - Rulemaking: Decisional Processes
Under APA and MSAPA, rules don’t take effect immediately•
three tests (next slide)•Duty to publish a rule that “adversely affects substantive rights”•
Issuance & Publication
An unpublished interpretation affects substantive rights when it changes existing rules, policy, or practice
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Consider whether the interpretation deviates from the plain meaning of the statute or regulation at issue
•
An agency rule is substantive if it is of binding force and narrowly limits administrative discretion•
Three Tests
Lesson 19 - Rulemaking: Issuance
Good cause•Exempted subject matter•Rules of procedure•Nonlegislative rules•
Exemptions from rule making•Implementation
impracticable, unnecessary, or contrary to the public interest•APA 553(b); MSAPA 3-108 •
Good Cause Exemptions
Lesson 20 - Exemptions
FINAL Page 5
impracticable, unnecessary, or contrary to the public interest•
KRS 13A.170, 13A.190•ORC 119.03(F), 119.04•
Emergency rules:•
APA 553(a)(1) - military or foreign affairs•APA 553(a)(2) - agency management or personnel or public property, loans, grants, or contracts•MSAPA 3-116 - ten exceptions•
Exempted Subject Matter
APA 553(b): does not apply to “rules of agency organization, procedure, or practice”•“When a proposed regulation of general applicability has a substantial impact on regulated industry . . . notice and opportunity for comment should first be provided. Karst Metals, p. 334
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State APAs don’t contain this exemption•
Rules of Procedure
Legislative rules are rules issued by an agency pursuant to an express or implied grant of authority to issue rules with the force of law.
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Non-legislative rules are not based upon delegated authority and do not have the force of law.•Non-legislative rules generally divided into “interpretive rules” and “general statements of policy”•
Non-Legislative Rules
statements operate only prospectively•statements must not establish a “binding norm” or be “finally determinative of the issues or rights to which addressed”
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APA 553 exception for “general statements of policy” applies where: •Policy Statements
At the extremes:•Rule is not interpretive where statute authorizes an agency to impose a duty and where absent the rule the legislative basis for enforcement would be inadequate.
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Rule is clearly interpretive if the agency has no rulemaking authority with respect to the subject area of the rule.
•
Interpretive Rules
Lesson 21 - Non-Legislative Rules
Control Through the CourtsIII.
Review of findings of basic fact•Review of issues of legal interpretation•Review of discretionary determinations in adjudication (lesson 24)•Review of discretionary determinations in rulemaking (lesson 24)•
Review on the Merits
Trial de novo•Independent judgment on the evidence•Clearly erroneous•Substantial evidence•Some evidence•Facts not reviewable at all•Standards above make sense only in relation to each other•
Scope of Review
Court must look at the whole record, not just the part that supports the agency•Substantial evidence test•
Requires “a definite and firm conviction that a mistake has been committed”•Clearly erroneous test•
Findings of Basic Fact
Approach in most states•Weak deference•
Approach in the federal courts (Chevron) and in some states•Strong deference •
Issues of Legal Interpretation
Lesson 22 - Judicial Review I
“First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter. . . .”
•Chevron Step I
If, however, the court determines Congress has not directly addressed the precise question at issue, . . . the question for the court is whether the agency’s answer is bases on a permissible construction of the statute.
•Chevron Step II
Chevron applied to a legislative rule•Skidmore deference applies to less formal agency pronouncements (interpretive rules and policy statements)
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But see Mead (“Did Congress expect the agency to be able to speak with the force of law?”)
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Treats the agency interpretation as relevant, but court need not uphold it unless the court is persuaded that agency is correct
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Skidmore Deference
Lesson 23 - Judicial Review II
Used to review both formal and informal adjudications•Used to review sanctions, purposes of action, justifications, proportionality, etc.•
Arbirtrary and capricious test•
Ask: what are the boundaries of the agency’s discretionary power?•Touchstone is reasonableness•
Review of Discretion in Adjudication
Review of Discretion in Rulemaking
Lesson 24 - Judicial Review III
FINAL Page 6
Same arbitrary and capricious test•Hard look review (federal approach) vs. soft look review (state approach)•Hard look: court closely scrutinizes to make sure that the agency carefully deliberated and offered detailed explanations for its actions
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Soft look: extremely deferential – upholds action if there is any conceivable basis for it•
Review of Discretion in Rulemaking
Injunction and declaratory judgment•
Mandamus•Certiorari•Procendendo•Prohibition•habeas corpus•quo warranto•
Extraordinary writs •
Causes of Action
No inherent right to appeal•Explicit statutory review procedures•
CPLR Article 78•Administrative procedure statutes •
28 USC 1331•No explicit statutory review procedure •
Jurisdiction
Federal: presumption of reviewability•States: vary considerably in their approaches to judicial review•
Preclusion of Review
No law to apply•Agency has broad discretion to marshal its limited resources•
Commitment to Agency Discretion
Failure to act is a kind of agency action for the purpose of the APA•Reviewable only where it involves a failure to act that is legally required•
Agency Inaction & Delay
Lesson 25 - Remedies
Does a party have a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of the controversy?
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To satisfy constitutional minimum, plaintiff must demonstrate 1) and injury in fact that is 2) fairly traceable to the actions of the defendant and 3) can be redressed by a favorable decision.
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No third party claims•No raising generalized grievances•Be within the statutory zone of interests•
Prudential considerations•
Litigant must assert his own legal rights and interests and cannot rest his claim on legal rights and interests of third parties (exception for civil rights)
•Third party standing•
StandingLesson 26 - Getting Into Court
Finality: Courts only review “final orders.”•Ripeness: Issues must be sufficiently mature•Exhaustion: Whether a person currently before an agency must stay within the agency•Primary jurisdiction: Whether the dispute must be given to an agency first and taken to court after agency action is concluded
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TimingLesson 27 - Staying In Court
FINAL Page 7
We're not going to study substantive law but law that is common to all agencies-
Chapter 1 IntroductionTuesday, August 17, 20109:27 PM
Ch.1 Page 8
Admin agencies are units of government other than the legislature or the courts•Agencies usually have legal power to affect the rights or duties of persons outside the government•Agencies administer or execute law under powers delegated to them by statute•Most agencies are regulatory meaning that they enforce a mandatory scheme of prohibitions or obligations, such as environmental protection or local planning and zoning…other agencies are benefactory, meaning that they disburse benefits such as welfare of Social Security
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Admin law deals with the legal principles common to all admin agencies, including the procedures that agencies use to carry out their functions and the principles of judicial review of agency actions
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§1.1 Administrative Agencies & Administrative Law
§1.1 Administrative Agencies & Administrative LawFriday, August 20, 20109:50 PM
Ch.1 Page 9
NO NOTES•§1.2 Reasons for Studying Administrative Law
§1.2 Reasons for Studying Administrative LawFriday, August 20, 20109:53 PM
Ch.1 Page 10
This book constantly compares state & federal materials•State admin law is important in its own right•Many differences between federal and state admin law•
§1.3 State & Federal Administrative Law
§1.3 State & Federal Administrative LawFriday, August 20, 20109:54 PM
Ch.1 Page 11
Principal sources of admin law are federal and state constitutions, statutes, and judge-made common law•Of special importance are admin procedure acts (APAs)•APAs are general meaning they apply to most agencies rather than just one or a few•
Enacted in 1946 and established fundamental relationship btw regulatory agencies and those whom they regulate
Landmark [federal APA] was the bill of rights for the new regulatory state•
State acts usually apply to most or all agencies of the state but do not cover local agencies
APAs of more than half of the states are based in whole or in part on the 1961 Model State APA (MSAPA)
Most state APAs enacted btw 1955 and 1980•
§1.4 Administrative Procedure Acts
§1.4 Administrative Procedure ActsFriday, August 20, 20109:54 PM
Ch.1 Page 12
Suppose state legislature has been deluged with complaints about unfair practices in the auto insurance industry…legislature isn't sure exactly what prolem is…enacts vague statute prohibiting unfair and discriminatory auto insurances practices….Act creates an agency called Auto Insurance Commission (AIC) to enforce it since it won't enforce itself
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Research & Publicityi.Rulemaking --> Act will authorize AIC to adopt rules to ID and prohibit unfair/discriminatory practices (i.e. no different premiums for different zip codes)
ii.
Licensing --> statute creating AIC may authorize it to license auto insurance companies or insurance brokers…AIC will issue rules establishing the qualifications for obtaining a licesne (Such as financial qualifications, education, experience, or an exam)…the rules will also specify what licensees may & may not do and will set forth sanctions for violating the rules, such as revocation of the licenses
iii.
Investigation & Law Enforcement --> if a violation is detected, the agency must be empowered to initiate enforcement action, because statutes and rules will not enforce themselves, and members of the public may lack the resources, the will, or the information to do so
iv.
Adjudication --> an adjudication is an agency determination of particular applicability that affects the legal rights or duties of a specified person (as distinguished from rules which have general applicability)…for example AIC might adjudicate whether license of particular insurance company should be suspended or revoked b/c of a violation of AIC rules
v.
Ratemaking --> admin price fixing is common technique, particularly in situations of natural monopoly like local phones, gas, electric, cable tv or when market failures of one sort or another are thought to prevent the market from functioning properly (i.e. rent control)
vi.
Judicial Review --> judicial review of admin action occurs frequently…broadly speaking courts review final agency action (both rules and adjudication) for errors of law and for reasonableness in finding facts or exercising discretion
vii.
Legislature & Executive Review --> both the legislature and executive branches of government scrutinize agency actions…legislature investigates agency action and often amends or repeals agency enabling statutes….governor will appoint the head or heads of AIC and governor's staff will keep track of AICs activities…governor may have authority to remove AIC agency heads for any reason….however if AIC is an independent agency then governor can remove heads only for good cause….statute may also give governor authority to delay or veto agency rules….governors have substantial control over AICs budget; they can request budges increases or decreases and in many states have a line item veto that can be used to decrease agency's current spending
viii.
How will AIC go about enforcing the statute?•
§1.5 A Snapshot of the Administrative Process
§1.5 A Snapshot of the Administrative ProcessFriday, August 20, 201010:04 PM
Ch.1 Page 13
Admin process should be lawful and fair and produce accurate results at acceptable cost•Process must strive for legitimacy, meaning that exercise of power by admin agencies is recognized by regulated parties and the community at large as politically acceptable
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Legislature can and often does control agency action through oversight, new legislation, or cutting the budget…at both federal and state levels the executive branch has numerous tools to scrutinize and control agency rulemaking, up to and including removal of the agency heads
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§1.6 Agency Legitimacy & Administrative Law
§1.6 Agency Legitimacy & Administrative LawFriday, August 20, 201010:20 PM
Ch.1 Page 14
Chapter 7 Control of Agencies by the Political Branches of GovernmentFriday, August 20, 201010:24 PM
Ch.7 Page 15
An examination of the role of political bodes in controlling agency action requires consideration of two fundamental constitutional principles: separation of powers and checks and balances
•§7.1 Introduction
§7.1 IntroductionFriday, August 20, 201010:25 PM
Ch.7 Page 16
§7.2 Delegation of Legislative Power to Agencies
Despite the necessary and proper clause, however, the nondelegation doctrine maintains that Congress' power to delegate its legislative authority is limited
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Nondelegation doctrine invokes both separation of powers and checks and balances argument….separation of powers argument is that the Constitution assigned all legislative power to the legislature; therefore Congress cannot transfer any part of that power to administrative agencies…checks and balances argument recognizes that delegation to agencies may be inevitable, but insists that the legislature impose adequate limits on the discretion such agencies can exercise
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§7.2.1 The Nondelegation Doctrine & Federal Agencies
Marshall field & Co. v. Clark, 143 US 649 (1892) sounded themes of both separation of powers and checks and balances….a statute empowering the President to raise tariffs and suspend trade with foreign countries "for such time as he shall deem just"….the President was to take this action if he deemed the tariffs imposed by such countries on American goods to be unequal and unreasonable
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Power given to President in the Field case above was far more significant than a mere power to "ascertain the fact" of whether a "given contingency" had occurred. It was indeed "the making of law"…a decision about whether foreign tariffs are unequal and unreasonable, and thus justify retaliation, calls for subtle judgment and entails deeply political as well as economic calculations
•
From time of Field case until 1930s Supreme Court continued to assert that a nondelegation doctrine existed yet it upheld every delegation in a line of cases that involved steadily more sweeping transfers of power to federal agencies….in those cases, the Court applied the nondelegation doctrine by attempting to ascertain whether Congress had established an "intelligible principle" or a "primary standard" to guide the delegate in making the decision….the most frequently cited case is J.W. Hampton Jr. & Co. v. United States, 276 U.S. 394 (1928) which noted that "if Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [regulate] is directed to conform, such legislative action is not a forbidden delegation of legislative power."
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In 1935 the Supreme Court twice held statutes unconstitutional under the nondelegation doctrine…it was an early New Deal Measure….these cases were the first and last Supreme Court decisions to overturn statutes as invalid legislative delegations to administrative agencies
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Another example is "hot oil" where new oil discoveries in Texas led to massive overproduction lest other producers deplete the oil pool…in Panama Refining Co. v. Ryan, 293 US 388 (1935) the Supreme Court invalidated tis deldgation
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The second decision invlidated a much more important and vastly more sweeping decision….codes of fair competition in Section 3 of the NIRA which said President could prescribe max and min prices to be charged, wages, hours and working conditions of labor, levels of production, and many other competitive practices which previously had been determined by market forces…violations of a code were a criminal offense….in A.L.A. Schecter Poultry Corp. v. US, 295 US 495 (1935), the Supreme Court invalidated §3 under the nondelegation doctrine….Supreme Court held unanimously that the delegation to the President to adopt "codes of fair competition" was invalid because NIRA lacked an adequate standard to govern the drafting of codes
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§7.2.1a From Field to the New Deal
Following Schecter and Panama decisions the Supreme Court returned to its pre-1930s practice of giving lip service to the nondelegation doctrine, while upholding ever more sweeping and vaue delegations…for example, in Yakus v. United States, 321 US 414 (1944), the Court upheld (with a single dissent) a delegation in the Emergency Price Control Act of 1942 to the Price Administrator to fix max prices….like NIRA, the 1942 Act was designed to deal comprehensively with an economic emergenc - in this case, the inflationary spiral generated by WWII….Yakus was convicted of selling beef for a price in excess of a ceiling set by Administrator…Court distinguished Schecter on ground that NIRA failed to provide standards for codes of fair competition and b/c the delegation to write codes was to private companies in industries to be regulated rather than public officials
•§7.2.1b From the New Deal to the Present
Despite Supreme Court's post 1935 practice of never invalidating a delagtion, a number of minority opinions have argued that doctrine still exists and should be aplied…other decisions narrowly construe statutes to avoid delegation problems
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In American Trucking, the Supreme Court declared that the nondelegation doctrine still exists, but it passed up an opportunity to actually apply it
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§7.2.1c Revival of the Nondelegation Doctrine?
Facts of the Case:Acting under authority of the Occupational Safety and Health Act of 1970, the Secretary of Labor, after having demonstrated a link between exposure to benzene and leukemia, set a standard reducing the airborne concentrations of benzene to which workers could be exposed. The standard reduced the allowable amount from 10 parts per million (ppm) to one ppm. This case was decided together with Marshall v. American Petroleum Institute.
Question:Did the Secretary exceed his authority to set standards?
Conclusion:Yes. The Court agreed with the Court of Appeals that the Secretary had acted without knowledge that the new standard was necessary to "provide safe and healthful employment" as mandated by the Act. Nothing in OSHA's administrative record indicated that exposure to benzene at 10 ppm
Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980)•
Professor's Notes:Delegating statute must have intelligible standard to guide decision maker for federal laws
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§7.2 Delegation of Legislative Power to AgenciesFriday, August 20, 201010:25 PM
Ch.7 Page 17
the Act. Nothing in OSHA's administrative record indicated that exposure to benzene at 10 ppm would cause leukemia and that exposure to one ppm would not. Since the Secretary had not made a threshold finding that exposure to 10 ppm posed significant health risks, he was powerless to promulgate the new standard.
Facts of the Case:Whitman v. American Trucking Ass'ns, Inc., 531 U.S. 457 (2001)•
Section 109(a) of the Clean Air Act (CAA) requires the Environmental Protection Agency (EPA) Administrator to promulgate national ambient air quality standards (NAAQS) for each air pollutant for which "air quality criteria" have been issued undersection 108.
1.
In 1997, Carol Browner, the Administrator of the EPA, revised the ozone and particulate matter NAAQS. 2.Afterwards, her revised NAAQS were challenged in court. 3.The District of Columbia Circuit found that section 109(b)(1), which instructs the EPA to set standards, delegated legislative power to the Administrator in contravention of the Federal Constitution because the court found that the EPA had interpreted the statute to provide no "intelligible principle" to guide the agency's exercise of authority.
4.
The court remanded the NAAQS to the EPA. 5.The courts also held to its rule that the EPA could not consider implementation costs in setting the NAAQS. 6.Additionally, the court rejected the EPA's position that the implementation provisions for ozone found in Part D, Subpart 2, of Title I of the CAA, were so tied to the existing ozone standard that the EPA lacked the power to revise the standard.
7.
Question:Does section 109(b)(1) of the Clean Air Act unconstitutionally delegate legislative power to the Administrator of the Environmental Protection Agency? May the Administrator of the EPA consider the costs of implementation in setting national ambient air quality standards under section 109(b)(1)? Does the Court of Appeals have the jurisdiction to review the EPA's interpretation of Part D of Title I of the CAA, with respect to implementing the revised ozone NAAQS?
Rule:In a delegation challenge the constitutional question is whether the statute has delegated legislative power to the agency…must have intelligible principle to guide decision making when delegating….in this case requisite means sufficient butnot more than necessary so it is okay
Analysis:It is true that the degree of agency discretion that is acceptable varies according to the scope of the power congressionallyconferred.
Conclusion:No, no, and yes. In an opinion delivered by Justice Antonin Scalia, the Court held that the CAA properly delegated legislative power to the EPA, but that the EPA could not consider implementation costs in setting primary and secondary NAAQS. Moreover, the Court held that the Court of Appeals has jurisdiction to review the EPA's interpretation of Part D of Title I of the CAA related to the implementation of the revised ozone NAAQS; however, the EPA's interpretation of Part D was unreasonable.
Kent v. Dallas S.Court 1958 -- statute appearted to give Sec. of State unconstratined discretion to decline to issue passports…Court said SOS could only do this in 2 situations (1) doubts about whether the applicant was a citizen or about whether the applicant would use the passport for illegal activitiy…thus couldn't deny peeps who were members of the communist party
○
The court has often narrowly construed statutes to avoid cons problems•
§7.2.2 The Nondelegation Doctrine & State Agencies
Notes & Questions (pg.385)•
Thygesen v. Callahan, 385 N.E.2d 699 (Ill. 1979)Facts:The currency exchange owners and operators alleged that the total absence of standards or guidelines rendered § 19.3 of the Act, codified at Ill. Rev. Stat. ch. 16 1/2, para. 49.3 (1977), unconstitutional.
1.
The court found that § 19.3 delegated the power to regulate rates to the Director. 2.The court determined that the legislative delegation was valid if it identified the persons and activities potentially subject to the regulations, the harm sought to be prevented, and the general means intended to be available to the Director to prevent the identified harm.
3.
The court concluded that the legislature in § 19.3 identified the persons and activities potentially subject to the regulations, but made no attempt to identify the harm sought to be prevented.
4.
The court further determined that there were no meaningful standards to guide the Director in setting maximum rates. 5.The court concluded that the legislature unlawfully delegated its power and that § 19.3 was unconstitutional.6.
Issue:Was this task unconstitutionally regulated in Illinois state law?
Rule:
"(1) The persons and activities potentially subject to regulations;(2) the harm sought to be prevented; and(3) the general means intended to be available to the administrator to prevent the identified harm."
In an attempt to endow the requisite of intelligible standards with a conceptual foundation, the Stofer court declared that a legislative delegation is valid if it sufficiently identifies:
Analysis:Here, as in Stofer, the legislature clearly satisfied the first prong of the test. Those subject to regulation under section 19.3 of the currency exchange act are community and ambulatory currency exchanges, and the regulation is limited to the activities ofcashing checks and issuing money orders. In contrast to Stofer, the legislature made [**702] no attempt to identify the "harm sought to be [***8] prevented" in delegating to defendant the power to set maximum rates and did not sufficiently identify the "means intended to be available * * * to prevent the identified harm." Section 19.3 is devoid of any reference to the harm to be remedied. The currency exchange act contains no other provision which indicates, explicitly or implicitly, general purposes
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to be remedied. The currency exchange act contains no other provision which indicates, explicitly or implicitly, general purposes which the legislature might have intended to foster with respect to setting rates for cashing checks and issuing money orders.Act fails to identify any purposes which the legislature might have sought to attain by providing for the establishment of maximum check-cashing and money-order rates.
Conclusion:The court reversed the judgment of the trial courtHere, where the legislature has not only failed to provide any additional standards to guide defendant's discretion, but has failed to communicate to defendant the harm it intended to prevent, it is clear that the legislature has unlawfully delegated its power to set such [***10] maximum rates. Held section 19.3 of the currency exchange act (Ill. Rev. Stat. 1977, ch. 16 1/2, par. 49.3) unconstitutional; therefore, the judgment of the circuit court is reversed.
Notes & Questions (pg.393)Delegation in the states --- Many state supreme courts insist that a delegation of authority to an agency may not be upheld absent adequate statutory sandards that constrain the agency's discretion…assuming a state strongly enforces the nondelegation doctrine, is Thygesen a persuasive app of the doctrine
•
On 1 occasion the US Supreme Court invalidated a federal statute providing that max hours and min wages agreed upon by a majority of affected miners and mine-operators would be binding upon the rest of them --> Carter v. Carter Coal Co. (1936)…Court stressed dangers inherent in a delegation of governmental authority to private parties
•
Since 1936 the fed. Courts have upheld a # of delegations of governmental authority to private enterprises…•
For example in a 1997 Texas case invalidated a leg. Scheme whereby a private foundation was empowered to establish boll weevil eradication zones and conduct elections of cotton farmers within each zone…if majority of cotton farmers in a zone voted favorably the foundation assessed each farmer a fixed amount (whether or not they agree d and whether or not their crop was infested) and spent the $ on projects to eradicate the dreaded weevil…farmers who failed to pay were guilty of a misdemeanor and their crop was destroyed whether or not infested with weevils…in ruling court noted that courts should subject private delegations to a more searching scrutiny than their public counterparts and the court employed many factors for showing invalidity of the delegation: foundation was subject to only minimal control by a state agency, foundation not only made rules it also had power to apply them to particular farmers; foundation board members (themselves cotton farmers) had a pecuniary interest in the foundation's activity; the foundation's rules were backed up by the criminal law; the delegation of authority was not limited by cost or duration; there was no guarantee that the board members would have any special training or experience; and the legislature provided few statutory standards to guide the Foundation
•in constrast, a significant # of state cases have overturned delegations to private persons or entities•
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This section examines the legitimacy of legislative delegations of adjudicatory power to agencies --- the power to determine rights or duties of particualr person based on their individual circumstances….the materials pertaining to legislative decisions are equally applicable here
•
Northern Pipeline Constr. Co. v. Marathon Pipe Line Co. US Supreme Court 1982 --> Supreme Court invalidated a statute that assigned the trial of all the issues In a bankruptcy case, including breach of contract issues, to bankruptcy judges….b/c bankruptcy judges were not appointed according to reqs of Art. III they lacked life tenure and salary protection….K cases involve private rights and must be decided by an Art. III judge
•
Crowell v. Benson, 285 U.S. 22 (1932) is the first United States Supreme Court decision which approved the adjudication of private rights by an administrative agency, not an Article III court. The Court held that the United States Employees' Compensation Commission satisfied Fifth Amendment Due Process and the requirements of Article III with its court-like procedures and because it invests the final power of decision in Article III courts
Also said something about Cromwell case here which was the case which S.Court held could be decided btw employer and employee on navigable water
•
§7.3 Delegation of Adjudicatory Power to Agencies
§7.3 Delegation of Adjudicatory Power to AgenciesFriday, August 20, 201010:29 PM
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Commodity Futures Trading Commission v. Schor478 U.S. 833 (1986)Background:
Facts.
The Commodity Exchange Act (CEA), 7 U.S.C. § 1 et seq., prohibits fraudulent conduct in the trading of futures contracts. In 1974, Congress amended the Act to create a more comprehensive regulatory framework for the trading of futures contracts. To that end, Congress created an administrative agency called the Commodity Futures Trading Commission (CFTC). One of the duties assigned to the CFTC was the administration of a quasi-judicial reparations procedure by which customers of commodities brokers could seek legal redress for brokers’ alleged violations of the Act or other CFTC regulations. One of theCFTC’s regulations also provided the agency to adjudicate counterclaims “arising out of the same transaction or occurrence orseries of transactions or occurrences set forth in the complaint”. The section of the statute and the CFTC regulation at issue in this case, both of which were intended to provide an inexpensive and expeditious method for the settlement of futures contract-related claims, were challenged by the customers of a broker as being violative of Article III of the United States Constitution.
The Commodity Futures Trading Commission (CFTC) is an independent agency that enforces the Commodity Exchange Act (CEA).
1.
The CFTC was authorized to adjudicate claims for damages, or reparations, brought by customers of brokers for brokers’ violations of the CEA or CFTC regulations.
2.
The CFTC also issued a regulation permitting itself to adjudicate counterclaims brought by brokers in reparations proceedings. 3.Schor sued his broker, ContiCommodity Services of America (Conti), claiming it was responsible for the negative balance in his trading account with Conti.
4.
Conti counterclaimed, and the CFTC ruled in its favor. 5.Schor then questioned the CFTC’s authority to adjudicate the counterclaim, and the agency rejected the challenge. 6.The Court of Appeals reversed.7.WIKI:In February 1980, respondents Schor and Mortgage Services of America, Inc. filed complaints with the CFTC against brokerage firm ContiCommodity Services, Inc. (Conti) and Richard L. Sandor, one of the firm’s employees, alleging violations of the CEA. Meanwhile, Conti filed an action under diversity jurisdiction in the United States District Court for the Northern District of Illinois to recover the debit balance in Schor’s account. Schor filed a counterclaim in the federal suit, asserting the same charges against Conti it had made in its complaint to the CFTC. Schor moved to dismiss the district court action, but the judge declined. Conti then voluntarily dismissed the suit, in order to present its counterclaim against Schor for the debit balance as a defense in the CFTC action.The Administrative Law Judge (ALJ) in the CFTC reparations proceeding ruled in Conti’s favor on both claims, and it was at that point Schor challenged the CFTC’s jurisdiction to hear Conti’s counterclaim against him. The ALJ rejected this contention, and the CFTC declined to review the decision. Schor then petitioned the United States Court of Appeals for the District of Columbia Circuit for review. The Court of Appeals held that the CFTC had jurisdiction over Schor’s claim against Conti, but not over Conti’s state-law based counterclaim against Schor for the debit balance, seeking to avoid the constitutional problems faced in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). The U.S. Supreme Court granted certiorari, vacated the judgment, and remanded the case back to the Court of Appeals for further consideration under Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568 (1985). The Court of Appeals reinstated its previous judgment, and the Supreme Court granted certiorari again.
Issue.Did CFTC’s assumption of jurisdiction over common law counterclaims violate the Constitution?
Synopsis of Rule of Law.Article III, Section:1 of the Constitution provides that the “judicial power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.” However, Courts must apply theprinciple that “practical attention to substance rather than doctrinal reliance on formal categories should inform application of Article III.”
Analysis:Justice O’Connor, writing for the majority, addressed the statutory interpretation issue first. She held that the D.C. Circuit created a false distinction between the CFTC’s jurisdiction over state law counterclaims and counterclaims arising under the CEA, simply to avoid a constitutional problem, and ignored the legislative intent of Congress in doing so. The situation faced by the litigants here was common: a claim and counterclaim arising out of the same transaction and occurrence, and it was well within the statutory jurisdiction of the CFTC to adjudicate such both actions. This is in keeping with Congress’ intent to create a
Commodity Futures Trading Commission v. SchorThursday, August 26, 20102:17 PM
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within the statutory jurisdiction of the CFTC to adjudicate such both actions. This is in keeping with Congress’ intent to create a more efficient means of adjudicating such disputes, as well as the administration’s interpretation of the statute.She then turned to the Article III issue. O’Connor chose to interpret Article III liberally, examining the underlying purposes of adjudication of cases by an independent judiciary. The right to be heard by an Article III tribunal is not absolute, and is subject to waiver by the parties. In this case, Schor waived his right to a trial with respect to Conti’s counterclaim, and elected to have the entire dispute resolved before the CFTC. It was only after the CFTC ruled against him that he challenged the agency’s jurisdiction. To O’Connor, Schor’s actions constituted an express waiver of his right to a civil trial.Additionally, O’Connor held Congress’ grant of judicial power to the CFTC for the adjudication of state-law counterclaims did not intrude on the powers of the judiciary. She concluded that while Congress could not vest administrative agencies with ancillary or pendent jurisdiction of all claims, it was not outright forbidden for them to do so. Unlike the situation in Northern Pipeline, not only were the CFTC’s orders reviewable in the U.S. district courts, the CFTC was not granted the full powers of an Article III court, and the parties were given the option of invoking the agency’s jurisdiction, rather than being compelled to use it. Furthermore, any issue of intrusion upon the powers of state courts was irrelevant, O’Connor reasoned, because federal courts may exercise ancillary jurisdiction over state law claims anyway.Justice O'Connor's majority opinion was joined by Burger, Ch. J., and White, Blackmun, Powell, Rehnquist, and Stevens, JJ.
Held.No. The limited jurisdiction that CFTC asserts over state law claims as a necessary incident to the adjudication of federal claims willingly submitted by the parties for initial agency adjudication does not contravene separation of powers principlesor Article III. The CFTC’s powers departed from the traditional agency model only in respect to its ability to adjudicate counterclaims arising from the same transaction. This did not impermissibly intrude on the providence of the judiciary.
Dissent. Article III, Section: I seems to prohibit the vesting of any judicial functions in the Legislative and Executive branches, but the court has recognized three narrow exceptions: territorial courts, courts-martial, and courts that adjudicate certain disputes concerning public rights. The judicial authority of non-Article III federal tribunals should be limited to these few, long-established exceptions. Concurrence. None.
Discussion. The CFTC’s assertion of common law counterclaims is incidental to, and dependent upon, adjudication of reparations claims created by federal law, so any intrusion on the Judicial Branch is de minimus.
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Professor's Notes:Held-In Northern Pipeline the court defined "public rights" as matters arising btw government and private
persons…private rights were defined as the liability of 1 private person to another…according to plurality in Norhtern Pipeline, Congress could not delegate authority to a non-Art. III tribunal to decide questions of private rights…but Cromwell case upheld a delegation to an agency of authority to adjudicate a dispute btw two private person over a statutory form of tort liability --- but only if a reviewiing court had power to independently review questions of law and jurisdictional fact
1.
Cromwells's jurisdictional fact holding is considered to be a relic of bygone era even though it was never formally overruled
2.
State Cases and adjudication of private rights --> a # of state decisions have insisted that adjudication of private rights of the sort traditionally handled by courts cannot be vested in admin agencies
3.
Jury Trials…Atlas Roofing Co. v. Occupation Safety & Health Rev. Comm'n 1977 S.Court --> employer challenged validity of OSHRC to impose civil $ penalties up to $10k per violation…S.Court held that the employer had no right to a jury under the 7th Am. b/c civil penalties were a means of enforcing a "public right" rather than a "private right"…Court observed that the OSHRC decisions were judicially reviewable both as to law and fact
4.
Only the judiciary may impose a sentence of imprisonmnet….Wong Wing v. US 1896 Supreme Court -> indicated that a person may be temporarily detained by an agency pending proceedings to decide whether exclusion or expulsion as an illegal alien is appropriate, and that an alien may be administratively excluded or expelled from the country…however an illegal alien may not be sentenced to prison without the protection of a judicial trial
5.
A legislature can delegate to an agency the power to adopt rules, the violation of which will be crimes punished by a court…in these situations the legislature has decided that violations of the rules will be criminal offenses….seee US v. Grimaud 1911 S.Court
Notes & Questions (pg.402)
Notes & Questions (pg.402)Monday, December 13, 20104:54 PM
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Most direct means by which a legislature may control agency action is by specifying its desires in the agency's enabling act at the onset
•§7.4 Legislative Controls
§7.4 Legislative ControlsThursday, August 26, 20101:56 PM
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A veto that allowed Congress to block a federal executive or agency action taken under congressionally delegated authority.
the Supreme Court held the legislative veto unconstitutional in INS v. Chadha, 462 U.S. 919
legislative veto.•§7.4.1 The Legislative Veto & Control of Federal Agencies
§7.4.1 The Legislative Veto & Control of Federal AgenciesThursday, August 26, 20101:57 PM
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Immigration & Naturalization Service v. Chadha462 US 919 (1983)
Facts:In one section of the Immigration and Nationality Act, Congress authorized either House of Congress to invalidate and suspend deportation rulings of the United States Attorney General.
1.
Chadha had stayed in the U.S. past his visa deadline. 2.Though Chadha conceded that he was deportable, an immigration judge suspended his deportation. 3.The House of Representatives voted without debate or recorded vote to deport Chadha. 4.This case was decided together with United States House of Representatives v. Chadha and United States Senate v. Chadha.
5.
Issue:Did the Immigration and Nationality Act, which allowed a one-House veto of executive actions, violate the separation of powers doctrine?
Rule:Congress may not promulgate a statute granting to itself a legislative veto over actions of the executive branch inconsistent with the bicameralism principle and Presentment Clause of the United States Constitution.
Analysis:The Court rebutted Congress's assertions as follows: (1) § 244(c)(2) of the Immigration and Nationality Act is severable from the rest of the act pursuant to the express severability clause § 406. The legislative history of § 244 supports the proposition that Congress, frustrated with the process of passing private laws to provide relief for deportable individuals, would likely not have been willing to retain the private law mechanism rather than ceding all power to the Attorney General. (2) The Attorney General and INS did not waive their right to challenge the constitutionality of the statute by enforcing the statute. (3) The action is a genuine case with adequate representation in favor of sustaining the act provided by the houses of Congress asamici curiae. (4) The case is a judicable question, not exempted by the political question doctrine; the constitutionality of a statute is a question for the courts.The Court then presented its affirmative reasoning: (5) When the Constitution provides express procedures, such procedures must be strictly observed. Two such provisions are bicameralism and presentment in the enactment of law. (6) The presentment process —especially the President's veto power—was intended by the Framers to provide a mechanism by which the executive branch could defend itself against legislative encroachment and could prevent ill -conceived policies. (7) Similarly, the bicameralism requirement was formulated in order to hinder congressional action and thereby prevent legislative encroachment. (8) The action of the House of Representatives is legislative in nature because (a) it modifies rights and duties of individuals outside the legislative branch; (b) the enactment would otherwise have required a private law, which is a legislative function; and (c) the nature of the action is inherently legislative. (9) When the Framers intended to authorize Congress to exercise power outside of the bicameral and presentment principles, it provided alternate procedures explicitly; other procedures cannot be admitted. (10) Because the action of the House of Representatives was legislative, but did not conform to the mode of action specifically stated by the Constitution for legislative action, it is therefore invalid, unenforceable, and not binding.
FN20. See also U.S. Const., Art. II, § 1, and Amdt. 120.
There are but four provisions in the Constitution, FN20 explicit and unambiguous, by which one House may act alone with the unreviewable force of law, not subject to the President's veto:
(a) The House of Representatives alone was given the power to initiate impeachments. Art. I, § 2, cl. 6;(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. 5;(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.
Conclusion:The Court held that the particular section of the Act in question did violate the Constitution. Recounting the debates of the Constitutional Convention over issues of bicameralism and separation of powers, Chief Justice Burger concluded that even though the Act would have enhanced governmental efficiency, it violated the "explicit constitutional standards" regarding lawmaking and congressional authority.The Supreme Court held that the resolution of the House of Representatives vetoing the Attorney General's determination is constitutionally invalid, unenforceable, and not binding.
Professor's Notes:bicameral, adj. (Of a legislature) having two legislative houses (usu. called the House of Representatives, or the Assembly, and the Senate). • The federal government and all states except Nebraska have bicameral legislatures.
-
legislative veto. A veto that allowed Congress to block a federal executive or agency action taken under congressionally delegated authority. • The Supreme Court held the legislative veto unconstitutional in INS v. Chadha, 462 U.S. 919
-
Bicameralism and presentment are the essence of the democratic process
-
Counterweight to unregulated delegation doctrine seems like Congress should be able to step in and say "that's not what we meant" … one of the justices said that the delegation doctrine is an invention akin to the legislative veto
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If head of committee is against president then nothing will get done
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INS hearing is adjudicative | AG Review is executive | Congressional Committee Review is adjudicative and herein lies the problem
-
Congress can get around this by passing a law or even a private bill/law such as a law that says "so and so shall be a citizen of the United States"
-
Immigration & Naturalization Service v. ChadhaThursday, August 26, 20101:57 PM
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Professor's Notes:Held-Legislative Acts. --- majority holds that House's veto of AG's decision to suspend deportation was
legislative and invalid b/c of a failure to atisfy the bicameralism and presentment provisions of the US constitution
1.
Extension of Chadha to rulemaking --> Court evidently intended its Chadha opinion to apply to both adjudication and rulemaking situations…only a few weeks after Charda without even pausing to write an opinion, the Court affirmed two lower court decisions that had struck down legislative veto provisions in a rulemaking context
4.
The Chadha decision has essentially eliminated the legislative veto as a tool for disapproving admin rules, but the device has not disappeared entirely…most notably, Congress has continued to enact provisions requiring agency to obtain the approval of appropriations committees for various expenditures
6.
Congressional Review Act --> put in during Contract with America Advancement Act of 1996 --> commonly called the Congressional Review Act --> applies throughout fed. Government…requires that virdually all rules of gen. applicability adopted by virtually all agencies be submitted to Congress and to the Government Accountability Office before they take effect….rule must be accompanied by a report containing various items of information about the rule…distinguishes btw major and non-major rules --> a major rule is one determined to be economically significant by OIRA under Exec. Order 12,866..there are about 75-100 major rules each year --> a non-major rule may take effect whenever the agency determines but a major rule cannot take effect for at least 60 calendar days after it is submitted to Congress (or, in some situations, a longer period)…..in case of either major or non-major rules Congress can nullify the rule by enacting a joint resolution of disapproval…a joint resolution is like a statute; it must be approved by both houses and signed by the Pres (or repassed by 2/3 of each house if Pres. Vetoes it)
7.
Seperation of powers --> post-Chadha cases from S.Court have reinforced cons. Constraints on Congress's abiilty to control admin actions but Courts doctrinal analysis has not been consistent….instead of relying squarely on textual provisions such as bicameralism and presentment clauses involved in Chardha the Court has sometimes used the separation of powers doctrine in its nontextual aspect….casees like Bowsher (discussed later) are one of these..in Bowsher Court found implicit in the Cos a command that Congress play no direct role in the execution of the laws and therefore Congress may not revmoe an officer who is engaged in executive functions even if it complies with the bicameralism and presentment clauses of the Constitution….even the possibility of such removal DQs an officer from wielding exec power…in Bowsher it meant that the Comptroller General could not perofmr executive task of determining how much spending would have to be cut from the federal budge in order to meet the deficit reduction targets of the Gramm-Rudman-Hollings balanced budget legislation
9.
Presidential Revision --> Court revisited the reasoning of Chadha when it struck down the Line Item Veto Act in Clinton v. City of New York in 1998…Court held Act uncons. Allowing for line item veto on a budget asserting that the cancellation procedure would have allowed the President, in legal and practical effect, to amend the appropriations act by repealing a portion of it; the Presentment clause did not allow him to do that unilaterally; to permit the Pres to create a different law - one whose text was not voted on by either House of Congress or presented to the Pres for his signature would alter the carefully drawn lawmaking procedures of Article 1 §7 according to the Court
10.
Notes & Questions (pg.415)
Notes & Questions (pg.415)Monday, December 13, 20105:22 PM
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Professor's Notes:Held-
Congress is in session for the bulk of each year and states are not so creative methods of facilitating legislative control over admin may be more defensible at state level than at federal level….state legl far less able than members of Congress to exercise influence through informal oversight mechanisms such as hearings or direct contract with administrators
i.
State legislative vetoes --- Many state legislatures have adopted legislative veto provisions authorizing a single legislative committee to exercise disapproval authority over agency regulations
1.§7.4.2 The Legislative Veto in the States
§7.4.2 The Legislative Veto in the StatesThursday, August 26, 20101:59 PM
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Professor's Notes:Held-
Oversight committees
Investigations and hearings
Funding measures
Direct contacts
Aside from amendment or repeal of substantive legislation and the various forms of legislative veto there are some other controls a Congress or state legislature uses:
•§7.4.3 Other Legislative Controls
§7.4.3 Other Legislative Controls - doneThursday, August 26, 20102:00 PM
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Presidents and governors indirectly control agency action by exercising their authority to appoint and discharge officials who execute the laws
•
This section considers the scope of this authority as well as the extent to which Congress or a state legislature may limit or even share in the exercise of appointment and removal powers
•
§7.5 Executive Control: Personnel Decisions
§7.5 Executive Control: Personnel DecisionsThursday, August 26, 20102:03 PM
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Professor's Notes:Held-Qualifications are usually upheld unless the infringe too much on chief executive officers power•
§7.5.1 Appointment of Officers
§7.5.1 Appointment of OfficersThursday, August 26, 20102:04 PM
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Buckley v. Valeo*US Supreme Court (1976)424 US 1
Facts of the Case:In the wake of the Watergate affair, Congress attempted to ferret out corruption in political campaigns by restricting financial contributions to candidates.
1.
Among other things, the law set limits on the amount of money an individual could contribute to a single campaign and it required reporting of contributions above a certain threshold amount.
2.
The Federal Election Commission was created to enforce the statute.3.
Issue:Did the limits placed on electoral expenditures by the Federal Election Campaign Act of 1971, and related provisions of the Internal Revenue Code of 1954, violate the First Amendment's freedom of speech and association clauses?Rule:Disclosure of association membership and contribution status are generally protected by the First Amendment. However, when this information is sought to quell potential corruption and misuse of funds, the benefit of disclosure outweighs the harm to the particular individual.
Conclusion:
First, it held that restrictions on individual contributions to political campaigns and candidates did not violate the First Amendment since the limitations of the FECA enhance the "integrity of our system of representative democracy" by guarding against unscrupulous practices. Second, the Court found that governmental restriction of independent expenditures in campaigns, the limitation on expenditures by candidates from their own personal or family resources, and the limitation on total campaign expenditures did violate the First Amendment. Since these practices do not necessarily enhance the potential for corruption that individual contributions to candidates do, the Court found that restricting them did not serve a government interest great enough to warrant a curtailment on free speech and association.
In this complicated case, the Court arrived at two important conclusions.
Professor's Notes:It is for Congress to decide which expenditures will promote the general welfare and in this case the electoral process needed cleaning up
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Principal officers are always selected by president and inferior officers may be with Congress approval but line between two is unknown at best….Morrison gets into this a bit
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The Case in our book is about appointments and strips appointing from some offices from Congress
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Footnote 162 of Bukcley states that mere employees of an agency (who do not exercise significant authority pursuant to the laws of the United States) need not be hired pursuant to the Appointments Clause at all…sometimes hard to think who is an employee as opposed to being an officer of the US
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Springer v. Government of Phillipine Islands --> legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoitn the agents charged with the duty of such enforcement…the latter are executive functions
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State appointments --> state governors appoints most executive branch officers some with and some without legislative confirmation..other exec branch officials are voted in
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Regulating Politics --> in cases that like Buckley involve regulation of the political process, state courts have displayed a variety of approaches…one being balancing test, which is on pg.438 (1) nature of power exercised by agency (2) degree of control by legislature (3) was legislature usurping exec (4) practical results of the blending
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Legislatures as appointees --> can't do it while you're in office and states follow suit for the most part (pg.439 top)
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Qualifications --> legislatures routinely prescribe the qualifications exec. Appointees must meet…usually upheld at both fed and state lvl unless too infringing
-
Buckley v. ValeoThursday, August 26, 20102:04 PM
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Professor's Notes:Held-
§7.5.2 Removal of Officers
§7.5.2 Removal of OfficersThursday, August 26, 20102:06 PM
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Professor's Notes:Held-Kansas court put in balancing test (pg.438)•
Except in its provisions on impeachment the fed Cons. Does not expressly speak to the ? Of removing admin officials from office
•
Myers v. US S.Court 1926 --> Congress could not limit Prezs removal power over any officer of US who Prez appointed…less than a decade later in Humphrey court said some of the language in Myer had been too broad
•
§7.5.2a The Rise of the Independent Agency
§7.5.2a The Rise of the Independent AgencyThursday, August 26, 20102:07 PM
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Humphrey's Executor v. United States395 U.S. 602 (1935)
Facts:President Hoover appointed, and the Senate confirmed, Humphrey as a commissioner of the Federal Trade Commission (FTC).
1.
In 1933, President Roosevelt asked for Humphrey's resignation since the latter was a conservative and had jurisdiction over many of Roosevelt's New Deal policies.
2.
When Humphrey refused to resign, Roosevelt fired him because of his policy positions. 3.However, the FTC Act only allowed a president to remove a commissioner for "inefficiency, neglect of duty, or malfeasance in office."
4.
Since Humphrey died shortly after being dismissed, his executor sued to recover Humphrey's lost salary.5.
Issue:Did section 1 of the Federal Trade Commission Act unconstitutionally interfere with the executive power of the President?
Rule:
Analysis:
Conclusion:The unanimous Court found that the FTC Act was constitutional and that Humphrey's dismissal on policy grounds was unjustified. The Court reasoned that the Constitution had never given "illimitable power of removal" to the president. Justice Sutherland dismissed the government's main line of defense in this case which relied heavily on the Court's decision in Meyers v. United States (1926). In that case the Court upheld the president's right to remove officers who were "units of the executive department." The FTC was different, argued Sutherland, because it was a body created by Congress to perform quasi -legislative and judicial functions. The Meyers precedent, therefore, did not apply in this situation.
Professor's Notes:Independent agencies such as the SEC cannot have their heads removed by the president without good cause
-
Most fundamental thing about ind. Agency is that its head or heads cannot be removed by pres except for "good cause"
○
Exec. Branch agencies on the other hand are typically cabinet depts.
○
Independent Agencies --> Red. Reserve Board, Nuc Reg. Commission, SEC, FCC are all examples…done so these agencies can make their decisions without political influence
-
Removal of adjudicators --> Wiener v. US 1958 S.Court --> court invalidated Pres removal of member of War Claims commission….congress had established comm. With 3 year life span to resolve claims of injured vets..statute said nothing about how a commish could be removed….Court held that b/c comm. Had been created to adjudicate according to law the philosophy of Humphrey precluded Pres from removing its members simply b/c he wanted his own appointees to serve instead
-
No removeal withou cause○
Heads can appoin staff on their own authority○
Greater authority to conduct litigation○
Ind. Agencies do appear to have more autonomy from pres control than executive branch agencies have
-
However, both ind. & exec. Agencies work closely with the Pres in fomulating policy and in mediateing inter -agency disputes….plus all submit budgetary request each year
-
In shorth, the de facto independence of an agency from pres control epends much more on political factors than on whether the agency is formally independent
-
Humphrey's Executor v. United StatesThursday, August 26, 20102:07 PM
Ch.7 Page 35
Professor's Notes:Held-Humphrey's Executor has always been a controversial decision•
Supreme Court responded to this in Morrison v. Olson•
§7.5.2b Removal Issues in the Modern Era
§7.5.2b Removal Issues in the Modern EraThursday, August 26, 20102:08 PM
Ch.7 Page 36
Morrison v. OlsonUS Supreme Court 1988487 U.S. 654
Relevant Facts: The Ethics in Gov't Act of 1978 in part created the office of "Independent Counsel," which would be implemented to investigate and if appropriate prosecute certain high-ranking gov't officials for violations of federal criminal laws.
1.
After being notified of a possible offense, AG has 90 days to decide whether to apply to the Circuit Court of D.C. for the appointment, which then appoints the prosecutor and defines their jurisdiction.
2.
Indep. Counsel proceeds until she reports it is "completed" or when the Circuit Court deems it as such.3.DF Olson, then head of Department's Office of Legal Counsel, was accused of providing misleading testimony to a congressional subcommittee.
4.
Indep. Counsel Alexia Morrison appointed to investigate.5.Olson moved to quash her subpoenas on the ground the above graph was unconstitutional. Court of Appeals agreed, this Court reverses.
6.
Issue:Under constitutional law, is the Ethics in Government Act of 1978 invalidated by the Attorney General's
ability to apply to the Circuit Court of D.C. for appointment of "Independent Counsel" after AG's investigation into the possibility of prosecuting certain high-ranking gov't officials is warranted?
Holding:Yes. The Independent Counsel, is , in fact, an inferior officer of the executive department, and the judicial branch has not stepped on the executive toes in the implementation of this law.
Court's Rationale/Reasoning:First off, there was no Appointments Clause violation. So is Morrison an inferior or principal officer, the latter of which makes the Act violative of the Appointments Clause. Morrison it was determined was inferior, as being subject to removal by Atty General for good cause, is empowered to perform only certain duties, and is otherwise to comply with policies of Justice Dep't, and has limited tenure.Congress can create some interbranch appointments of inferior officers, such as court -appointed commissioners, which had limited prosecutorial powers. It is understandable there might be some concern over the judiciary exerting too much power over the independent counsel, but since the Court of Appeals had no further say than appointing Counsel, there was no incongruity interbranch appointments.The Court does not see the Special Division's supervising of the Indep. counsel as a significant encroachment upon executive power or upon the prosecutorial discretion of the Indep. counsel, despite the fact that its supervision alone is not typical of traditional judicial powers. The duty of this Court is to construe the Statute narrowly, thus, their supervision over Indep. counsel is not to the extent that past legislation has undertaken, whereby powers from another branch are usurped; here the discretion to remove the appointee lies solely in the hands of the Atty General.Neither does the "good cause" removal provision in the statute. The functions by the appointee are executive as those under a law enforcement provision. Even though Indep. counsel exercises a great deal of discretion and judgment, this Court does not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will be the President.There is no judicial usurpation of properly executive functions either. There are no Federal hearings to remove officers, and the appointment of the Indep. counsel themselves is not an executive function, since Congress has vested that authority in the judicial. But the court cannot appoint special counsel themselves; the appointment must come from the Atty General, of the executive.Last, there is no impeding on the powers of the executive branch in any way that is impermissible. It can be argued that the Atty General and the rest of the executive has no power over the nominee: they cannot appoint them, the President's supervisory position in somewhat diminished, and does not determine counsel's jurisdiction. However, Atty General may remove for good cause and the term specified is small.
Rule:Appointments clause portion at work here: "...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 Head of Departments."OYEZ: Conclusion: The Court addressed a number of constitutional issues in this case and upheld the law. The near-unanimous Court held that the means of selecting the independent counsel did not violate the Appointments Clause; the powers allocated to the special court did not violate Article III; and the Act was not offensive to the separation of powers doctrine since it did not impermissibly interfere with the functions of the Executive Branch
Important Dicta:The language of the "excepting clause" admits no limitation on interbranch appointments, but "congress has what the Court calls "as they think proper" gives it significant discretion to determine whether it is proper to vest the appointment of executive officials in the "courts of Law."
Dissenting:(Justice Scalia): By application of this statute in the present case, Congress has effectively compelled a
Professor's Notes:From Youngstown: While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.
-
Note that executive can fire this person at will○
This line of thinking is not a huge burden on the president b/c it does not mess with exec power all that much
-
The Ethics in Government Act of 1978 created a special court and empowered the Attorney General to recommend to that court the appointment of an "independent counsel" to investigate, and, if necessary, prosecute government officials for certain violations of federal criminal laws.
Facts of the Case:
Did the Act violate the constitutional principal of separation of powers?
Question:
The Court addressed a number of constitutional issues in this case and upheld the law. The near-unanimous Court held that the means of selecting the independent counsel did not violate the Appointments Clause; the powers allocated to the special court did not violate Article III; and the Act was not offensive to the separation of powers doctrine since it did not impermissibly interfere with the functions of the Executive Branch.
Conclusion:
From Notes: Legislative Removal - while Humphrey, Wiener, and Morrison declare that Congress may limit the President's power to remove some agency officials, it does no follow that Congress may retain for itself the power to remove officials engaged in administrative functions….indeed Congress lacks that power, according ot Bowsher v. Synar which is discussed in Morrison
-
First, appellant is subject to removal by a higher Executive Branch official.
1.
Second, appellant is empowered by the Act to perform only certain, limited duties.
2.
Third, appellant's office is limited in jurisdiction….independent counsel can only act within the scope of the jurisdiction that has been granted by the Special Division pursuant to a request by the Attorney General
3.
Finally, appellant's office is limited in tenure. 4.
Principal vs. Inferior…in this case subject was inferior-
Bowsher only denies Congress a formal role in discharging agency officials…on an informal lvl, members of Congress can extort enormous influence on an admins decisions about whether particular agency officials will stay or go
-
Cabinet members help shape policy based on current administration's wishes
-
Question is: is the job the job of a principal officer and if you are then you ask if they were nominated by pres and confirmed by Senate
-
Modest restrictions on cabinet members are ok-
State Cons --> State cons provisions relating to the power of governor to remove public officals vary dramatically from state to state…most state cons unlike the federal one, explicitly vest removal authority in the chief executive….in many states, however, this authoity is less than absolute….the provision may limit removal to "for cause" situations or may autoritze the legislature to impose similar constraints
-
In line with Bowsher, state courts have also held or suggested that legislative removal of agency officails offends sep or powers
-
One case from Mass suggests that political differences of opinion are not good cause
○
The meaning of good cause has rarely been litigated-
Many cases rhold that in the absence of specific provisions to the contrary, the power of removal from office is incdient to
-
Morrison v. OlsonThursday, August 26, 20102:08 PM
Ch.7 Page 37
has what the Court calls "as they think proper" gives it significant discretion to determine whether it is proper to vest the appointment of executive officials in the "courts of Law."
Dissenting:(Justice Scalia): By application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President and the Legislative branch. If the following 2 questions are answered in the affirmative, then the present statute must be upheld on separation of powers doctrine:(1) is the conduct of a criminal prosecution (and the preceding investigation whether or not to do so) the exercise of a purely executive power?(2) does the statute deprive the President of the US of exclusive control over the exercise of that power?The majority says "yes" to both, but it fails to understand that the statute itself vests some purely executive power in a person who is not the President of the US, which makes the statute void.Scalia argues how much power taken away from the executive branch by the legislative and the judicial is enough, and contends there is a slippery slope which is being created. Also says special prosecutors are not inferior officers as they are not subordinate to the President.
One case from Mass suggests that political differences of opinion are not good cause
○
The meaning of good cause has rarely been litigated-
Where term of office is unspecified, courtss are stronly inclined to find that officer serves at pleasure of appointing authority…when appointed for a # of years results vary widely
○
Many cases rhold that in the absence of specific provisions to the contrary, the power of removal from office is incdient to the power of appointment but that is only a starting point
-
Inferring tenure in statutes…PA case said that staute fixing term of officer deprived governor from removing officer at will
-
In the end it is difficult to generalize about the removal power of governors over admin officers…have to look at cons.,statutes and case law to decide
-
Ch.7 Page 38
This chapter addresses stautes that relate to the issue of governmental opennes and transparency and asks whether government docs and functions should be open to public scrutiny
•
Also considers whether such openness might be viewed as political check on agency action, like legislative and exec controls discussed in ch. 7
•
This chapter concentrates on freedom of information legislation and also considers open meeting laws and Federal Advisory Committee Act
•
Chapter 8 Freedom of Information & Other Open Government Laws
Chapter 8 Freedom of Information & Other Open Government LawsThursday, December 16, 20104:10 AM
Ch.8 Page 39
Professor's Notes:Held-
If material not pubilshed person without actual and timely knowdleges cannot be adversely affected
APA 552(a)(2) (1) agency must pubic certain important info such as stmt of its organization and procedure and substantive rules of general applicability…latter category includes stmts of general policy and interpretations of general applicability
•
This material must e indexed, and for records creatd after Nov.1 1996 must be placed in computer database
APA 552(a)(2) agencies must make available (not publish) specified additional material including final opinions, staff manuals, instructions to staff that affect public, and policy stmts and interpretations of particular applicability….this req is discussed in Sears case
•
Can go to fed. District court to compel disclosure and requester can get attorneys fees
Agency has burden to justify non-disclosure on basis of nine exemption to Act's disclosure requirements contained in 552(b)…to satisfy burden agency must claim and justify an exemption for each doc or part of a doc through detailed index and itemization…court decides matter de novo or without deferring to agency's judgment
APA 552(a)(3) agency must furnish any reasonably described record requested by any person for any reason --> this is essentialy to Freedom of Info Act --> time period for furnishing is 552(a)(6)
•
1996 E-FOIA requires governmetn toput on internet after Nov. 1 1996•Comparable provisions have been adopted in every state•
8.1 Freedom of Information
8.1 Freedom of InformationThursday, December 16, 20106:59 PM
Ch.8 Page 40
Professor's Notes:Held-
8.1.1 Protecting Deliberation: §552(b)(5)
8.1.1 Protecting Deliberation: §552(b)(5)Thursday, December 16, 20107:00 PM
Ch.8 Page 41
NLRB v. Sears, Roebuck & Co.421 US 132 (1975)
Sears tried to compel disclosure of advice and appeal memos stating that it constituted final opinions and instructions to staff that affect a member of the public.Government said they were interagency memos and thus exempt.
Facts:
Are these docs exempt from disclosure?Issue:
Rule:
Since an advice or appeals memo expalins the reasons for the final disposition it plainly qualifies as an opinion and falls within 552(a)(2)(A) so public disclosure required…but advice and appeals memos which direct the filing of a complaint are exempt (i.e. attorney work product)
Analysis:
Release the docs they are not exemptConclusion:
Professor's Notes:Held-
NLRB v. Sears, Roebuck & Co.Thursday, December 16, 20107:00 PM
Ch.8 Page 42
Professor's Notes:Held-FOIA Exemption (5) -- deliberative docs --> a doc that would normall be privileged from discovery in
civil litigation is exempt from FOIA disclosure (i.e. records that would dispose its deliberative process)
•
A provisoin comparable to deliberative process exemption exists in about 1/3 of state open record laws
•
FOIA is used as a technique for discovery In pending admin or judicial litigation•"secret" government info is also exempt (i.e. CIA files) (1)•(3) FOIA exemption 3 protectts info specifically exempted by another statute if the other statute leaves no discretion on the issue or establishes particular criteria for withholding….one statute protects CIA files from disclosure
•
Exemption 7 protections government interest in confidentiality of many law enforcemnt files and manuals (i.e. ID of confidential source)
•
But doesn't protect pardon ifnfo
FOIA 5 also allows for privileged pres communication or executive privilege•
Notes & Questions (pg.485)
Notes & Questions (pg.485)Thursday, December 16, 20107:01 PM
Ch.8 Page 43
Professor's Notes:Held-
8.1.2 Confidential Private Information: §552(b)(4)
8.1.2 Confidential Private Information: §552(b)(4)Thursday, December 16, 20107:01 PM
Ch.8 Page 44
Chrysler Corp. v. Brown441 US 281 (1979)
Facts:Interested parties sought made a FOIA request for information about Chrysler’s non-discriminatory hiring practices pursuant to “regulations of the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).” Chrysler was held to federal requirements of “equal opportunity employment” because it was a military contractor. The Defense Logistics Agency informed Chrysler that it was going to honor the FOIA request. Chrysler sought an injunction under Exemption 4, or, in the alternative, under the Trade Secret Acts.
Issue:Whether the Trade Secrets Act, 18 U.S.C. Section: 1905 “is applicable to the type of disclosure threatened in this case.” Whether the Act “affords Chrysler a private right of action to obtain injunctive relief.”
Rule:“An interpretive regulation or general statement of agency policy cannot be the ‘authorization by law
required by” the Trade Secrets Act; “A private right of action under [the TSA] is not ‘necessary to make effective the congressional purpose’” of the enabling statute.
Analysis:“Any disclosure that violates 1905 is ‘not in accordance with law.’” CHAPTER VII. Procedural Due Process: Constitutional Constraints on Administrative Decisionmaking
Conclusion:The Supreme Court of the United States first found that “Congress did not design the FOIA exemptions to be mandatory bars to disclosure.” Yes. The Supreme Court first established that “properly promulgated substantive regulations have the ‘force and effect of law.’” The Court concluded that the OFCCP did not have authorization to “adopt rules having the force and effect of law on information disclosure.” OFCCP did not offer enough “substantive characteristics.” No. However, the Supreme Court did find that “review of the DLA’s decision to disclose Chrysler’s employment data is available under the APA.” The Court found that the DLA’s decision was reviewable because “Section: 1905 and any ‘authorization by law’ contemplated by that section place substantive limits on agency action.” The DLA’s decision was “reviewable agency action” and Chrysler was “a person ‘adversely affected or aggrieved.’”
Professor's Notes:Held-
Chrysler Corp. v. BrownThursday, December 16, 20107:01 PM
Ch.8 Page 45
Professor's Notes:Held-
If submitter provided voluntarily and agency disclosed it the submitted would probably refuse to provide info in the future…if, however the info was submitted under compulsion, disclsoure would not dry up future flow of info but might still affect reliability and accuracy of ino and it would break govs promise to keep info confidential
The (4) exemption…an agency usually refuses to furnish info previously submitted to in confidence…based on FOIA exemption (4) as trade secrets and commerical or financial info obtained from a person and privileged or confidential…key variable is whether info in question was provided to government voluntarily or under compulsion
•
If confidential info submitted to government voluntarily it falls under exemption (4) if it is of a kind that would cusomarily not be rleased to the public by person from whom it was obtained
•
If ino submitted under compulision (like info in Chrysler) it gets exemption if disclosure would cause substantial harm to the competitive position of the person from whom the info was obtained
•
1/3 of states have comparable exemption•Confidential security info --> info submitted to govvermnet about security flaws in dams and such not available due to terrorism
•
FOIA exemption (6) prevents disclosure of material (such as personnel or meidcal files) that would consittute a clearly unwarranted invasion of personal privacy….requires court to balance public's interest in disclosure against private interest in preserving privacy
•
Notes & Questions (pg.490)
Notes & Questions (pg.490)Thursday, December 16, 20107:01 PM
Ch.8 Page 46
8.2 The Sunshine & Advisory Committee Acts
8.2 The Sunshine & Advisory Committee ActsThursday, December 16, 20107:02 PM
Ch.8 Page 47
Professor's Notes:Held-All 50 sttaes have statutes requiring that most state or local agency meetings as well as meetings of
the legislature be held in public•
In 1976 the feds followed suit by enacting the Government in the Sunshine Act•Open meeting laws typically require that the meetings of the heads of multi-member agencies be held in public unless the meeting falls under one of the statutory exemptions….agency must publish advance pulic notice of such mtgs…chief legal officer of agency must certify that a meeting can be closed to the public
•
Benefit: serve as political check on agency action
Costs & Benefits of Sunshine Law•
In Minnesota they said meetings are a gathering of a quorum or more members of the governing body at which members discuss, decide, or receive information as a group on issues relating to the official biz of that governing body
In FCC v. ITT Supreme Court defined meeting more narrowly under federal act to exclude gatherings of an agency to receive information...meeting ocurs only when agency deliberates on matters within its formal delegated authority…informal background discussions that clarify issues and expose varying views are not meetings
Definition of meeting•
552(c)(9)(b) for information which, if prematurely disclosed, would frustrate agency action
Exemptions for this closely parallel the FOIA exemptions•
Can collect attorney fees if substantial prevailing party
Sanctions•
8.2.1 Sunshine Acts
8.2.1 Sunshine ActsThursday, December 16, 20107:02 PM
Ch.8 Page 48
Professor's Notes:Held-FACA was deisnged to formalize and routinize what was already an age old institution•
FACA requires that the membership of an advisory committee be fairly balanced in terms of the points of view represented and the functions to be performed
•
Document setting up the committee must contain apporpriate provision to assure that the advice and recommendations of the advisory committte will not be inappropriately influenced by the appointing authority or by any special interest
•
Requires that a detailed charter of each advsiory committee be filed with the agency•Notice of committee mtgs must be published in advance in the fed. Reg. and mtgs must be open to public (unless Sunshine exempted)
•
All of Committee's records and docs must be open to public (unless FOIA exempt)•Detailed minutes must be kept•Designated agency employee must be present at every mtg and must approve agenda•Detailed record keeping reqs•An advisory committee covered by FACA includes every committee or other similar group established or utilized by the President or an agency to obtain advice…definition is broad enough to cover any meeting of two or more person with agency staff
•
S.Court held that only committtees that are covered by FACA are those established directly or indirectly by the Pres, an agency, or a quasi-pubic entity
•
DC Circuit in Cheney-Energy Committee case sated that FACA does not apply where Prez has given no one other than a federal official a vote in or, if the committee acts by consensus, a veto over the committee's decisions….there was no indication here that NEPDG had any members other than federal officials so the court dismissed the info request and the case
•
8.2.2 Federal Advisory Committee Act (FACA)
8.2.2 Federal Advisory Committee Act (FACA)Thursday, December 16, 20107:02 PM
Ch.8 Page 49
Professor's Notes:High ranking lawyers in Washington D.C. are held to a different set of expectations then regional staff
-
Public○
Agency○
President○
Head of agency○
Head of office○
Government as a whole○
Branch of government○
Duty to:-
Question of the ID of the government lawyer's client has long been controversial•Government lawyers interpret a vast amount of law, from questions as profound as the circumstances under which the US may commit its troops overseas to issues as mundane as when a regulation is deemed promulgated…these interpretations are rarely subject to judicial review b/c potential PLs lack standing or b/c courts apply the political question doctrine
•
IntroductionI.
Commentators define the attorney's client either narrowly or broadly and define the attorney's role as either that of an advocate or that of a neutral adjudicator
•
Government is a composite of the people and government counsel therefore has as a client the people as a whole
•
Seldom clear what action public interest requires & is subjective◊
Arguably undermines the separation of powers◊
An approach that defines client broadly and views attorney as neutral adjudicator disserves principle of democratic accountability
◊
Lines of attack:•
The Public Interest Model1.
The narrowest definition would make the government attorney's duties run to “the officer who has the legitimate power to decide upon the course of action….The government attorney would simply owe to his or her direct supervisor the same duties that a private attorney owes to his or her client. In preparing a legal opinion, the attorney would seek to advance the supervisor's interests.
•
Zealous advocacy may be proper in a matter that could later be open to judicial review, but executive branch attorney opinions seldom are ..i.e. effects private rights of individuals
•
Courts have not fully embraced either of the two models when the issue has arisen in claims of governmental attorney-client privilege.
•
Courts stress that a lawyer representing a governmental client must seek to advance the public interest,” rather than “merely the partisan or personal interests of the government entity or officer involved
•
The Single Client Model2.
Identifying the ClientA.
related strand of debate, unique to the government attorney's counseling role, focuses on the stance the attorney should adopt in formulating an opinion for the client. Some argue for a neutral, adjudicative role, while others argue that the attorney should act as an advocate for his or her client
•
Proponents of this model view the government attorney's counseling role as that of a disinterested, impartial observer.
•
Under this model, the counselor seeks the “best” reading of the law and, since actual judicial review will likely be unavailable, prepares legal advice as one would draft a judicial opinion.
•
Neutral Model1.
opposing view would have the counselor adopt a position that attempts to advance the goals of his or her client.
•Advocate Model2.
Defining the Scope of the Attorney's DutyB.
Past proposals suffer from one common shortcoming: they fail to promote a gatekeeper role for government attorneys.
•
A gatekeeper is essentially a watchdog--an independent professional who is able to “prevent wrongdoing by withholding necessary cooperation,” thereby “clos[ing] the gate.”
•
a gatekeeper is expected to protect not only the organizational client, but innocent third parties as well
•
rue virtue of the gatekeeper model lies in the fact that it imposes reporting obligations and clear duties on attorneys
•
Shortcomings of Past ApproachesC.
Past Attempts to Define the Role of the Government AttorneyII.
collapse of Enron, along with other corporate scandals, led to changes in the role of corporate attorneys and an embrace of the gatekeeper model
•
In 2001 and 2002, however, reformers succeeded in introducing changes to the role of corporate attorneys.
•
This Part briefly summarizes the role of attorneys in the Enron bankruptcy and analyzes the response of regulators.
•
The Part concludes with a discussion of Professor Coffee's recent work on the role of gatekeepers in preventing future scandals
•
Wrongdoers inside the company benefited from the assistance of attorneys, who provided advice on tactical decisions, structured transactions, and aided in preparing required disclosures
•
attorneys failed to function as watchdogs because they took “the position that they •
Enron & Its CounselorsA.
Corporate Attorneys -- Gatekeeper Failure & ReformIII.
Government Counsel & Their Obligations
Government Counsel & Their ObligationsMonday, September 13, 201010:40 AM
G.Counsel Page 50
attorneys failed to function as watchdogs because they took “the position that they must do everything for the client that the client's managers want them to do, providing the conduct is permitted by law,” but in doing so, they “gradually adopt[ed] a mindset that ignores and may eventually assist the client's managers in illegality that harms third persons and the client entity
•
In 2002, Congress passed the Sarbanes-Oxley Act, which responded to the crisis on a number of fronts, including ethical reform for accountants and attorneys.
•
Section 307 required the SEC to issue rules to regulate the attorneys that practice before it, including a requirement that they “report evidence of a material violation of securities law or breach of fiduciary duty . . . to the chief legal counsel or the chief executive officer of the company (or the equivalent thereof)”and that they report to the audit committee or the full board of directors if the officer did not “appropriately respond to the evidence.”
•
The SEC issued rules in accordance with this “up-the-ladder” reporting requirement,and went a step further. It proposed adding a “noisy withdrawal” rule, which would require lawyers to withdraw and notify the SEC if a company has failed to respond to up-the-ladder reporting and the violation is ongoing and likely to result in financial injury to investors or the company.
•
Model Rule 1.6 that allows a lawyer to reveal information that would otherwise be confidential if the lawyer believes it necessary to prevent “a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another” and if the client had used the lawyer's services to perpetrate the misdeed
•
The Regulatory ResponseB.
The presence of a gatekeeper in an organization is a critical means of addressing the agency problem. Absent any oversight, insiders can mislead investors and regulators and engage in self-dealing or outright theft.
•
Most directly, the attorney could utilize his or her role as a counselor.•Another approach would have the attorney close the gate entirely, refusing to assist in the client's course of action if the client is not dissuaded from proceeding
•
Finally, the attorney can alert others, using the information gleaned from his or her role to involve outside authorities or to warn third parties.
•
Attorneys can fulfill their gatekeeper function in a variety of ways.•
Enhancing the Corporate Attorney's Gatekeeper FunctionC.
This Part discusses the recent controversies involving high-level government lawyers and argues for a response that strengthens their role as gatekeepers.
•
Because government lawyers' involvement in recent controversies mirrors that of the Enron attorneys, regulators and courts should adopt a new model, drawn from the lessons of Enron, to prevent future lapses.
•
Government attorneys have been implicated in a number of scandals in recent years in a manner that echoes corporate attorneys' behavior in the Enron scandal.
•
Allegations have ranged from reports of politicized hiring and firing decisions to charges that U.S. Attorneys have engaged in politically motivated prosecutions to involvement in wiretapping and involvement in the Abu Gharib tortures
•
hough many attorneys within the Bush Administration did seek to prevent violations of the law, these scandals represent a gatekeeper failure as serious as any at Enron. This failure points to a need for similarly broad reform.
•
Recent Scandals Involving Government AttorneysA.
past efforts to clarify the role of the government attorney are insufficient both because they fail to provide adequate guidance and because they fail to account fully for the gatekeeper function of the government attorney.
•
Reform should be effected through a default rule under which a government attorney in the executive branch is expected to serve three “clients”: the current President, the executive branch, and the public (through Congress)
•
To reap the benefits of up-the-ladder reporting, the attorney's obligations should also include a duty to report up the chain of command through the agency to the President and finally to Congress, if the attorney suspects that his or her assistance will be used in violating the law.
•
A rule that defines the government attorney's client along three dimensions addresses several weaknesses in the extant models. In contrast to the public interest model, it ensures that democratic accountability remains with the President or Congress, instead of allowing unelected attorneys to substitute their vision of what the public interest requires….moreover, it provides clearer guidance in the vast majority of cases, where the interests of clients other than one's direct supervisor are not implicated
•
Unlike the single client approach, a three-tiered model accounts for the realities of executive branch legal practice. Because legal opinions are numerous, completed without judicial review, and sometimes executed without anyone outside the executive branch learning of them, it would be improper for government attorneys to act solely on behalf of the President.
•
A Three-Tiered Conception of the Governmental Client.1.
government attorneys should have a duty to report up the ladder through the executive branch and to Congress if they suspect a violation. But pure up-the-ladder reporting, as practiced in the corporate world, cannot alone ensure that government attorneys fulfill their duties to the public.
•
the Attorney General should be required to report to Congress regularly on •
A New Reporting Obligation2.
The Gatekeeper Role of the Government AttorneyB.
The Government Attorney As GatekeeperIV.
G.Counsel Page 51
the Attorney General should be required to report to Congress regularly on the substance of the legal opinions his or her office has provided to the President so as not to totally destroy their career in politics since they were likely handpicked b/c of an ideological fit w/prez
•
It is important to note that there is a broad historical practice supporting interbranch reporting. Government attorneys, and the Attorney General in particular, have historically been thought of not as the President's attorneys, but as the people's.
•
One vital component of this idea is that “the leader who disregards the law should do so publicly, throwing himself at the mercy of Congress and the people so that they [can] decide whether the emergency was severe enough to warrant extralegal action.”
•
This Note proposes reforms aimed primarily at high-level government counselors. Even if a proposal of this type is not adopted, events in the past several years demonstrate the power and influence of government attorneys in American democracy. These stakes point to an urgent need to clarify their roles and obligations.
•ConclusionV.
G.Counsel Page 52
Chapter 2 (pg.65-68) The Constitutional Right to a HearingWednesday, September 15, 20109:14 AM
Ch.2 Page 53
First kind of action is called adjudication…ex. Welfare agency's decision to terminate A's benefits b/c A's income is too high
Procedural due process does not apply to ruleaking□
Second kind of action is called rulemaking…ex. Establishment of a standard for determination of the income of welfare recipients in general
This material introduces a fundamental distinction btw government action that affects specific persons and action that affects a class of persons
•§2.5 The Rulemaking-Adjudication Distinction
§2.5 The Rulemaking-Adjudication DistinctionWednesday, September 15, 20109:15 AM
Ch.2 Page 54
Londoner v. Denver210 U.S. 373
Facts:The charter of the city of Denver empowered the city to make local improvements and to assess the cost upon the properties specially benefited.
1.
The plaintiffs owned corner lots and were assessed a tax for paving done to the street which their land abutted.
2.
Under the charter, the city clerk was to notify the owners of real estate to be assessed by publication for ten days in a newspaper of general circulation.
3.
In this case, the notice did not fix the time for a hearing, but stated that written complaints filed within thirty days would be heard before the city council before the passage of any ordinance assessing the cost.
4.
The plaintiffs filed a timely paper with objections, but instead of affording them an opportunity to be heard upon their allegations, the board of the city council met and adopted a resolution to assess the tax.
5.
The plaintiffs sought relief from the tax in the State Court of Colorado, claiming the process of assessing the tax denied them due process of law.
6.
The trial court granted relief to the plaintiffs, but the Supreme Court reversed, holding that the tax assessed was in conformity with the Constitution and the laws of the State.
7.
Upon these facts, was there a denial of due process of law guaranteed by the Constitution, and was the assessment valid?
Issue:
Due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States requires that, where the legislature of a State authorizes a subordinate body to levy taxes, the taxpayer shall have an opportunity to be heard before the tax becomes irrevocably fixed. The taxpayer must have notice, either personal, by publication, or by a law fixing the time and place of the hearing.
Rule:
There are few constitutional restrictions on states’ power to assess, apportion and collect taxes. However, where the legislature authorizes a subordinate body to make a determination of the tax, due process of law guaranteed by the Fourteenth Amendment requires that the taxpayer be afforded a hearing, of which he must have notice. The hearing requirement is not satisfied by the mere right to file objections.
Analysis:
Reversed. The assessment was void, as plaintiffs were not allowed an opportunity to be heard and therefore denied due process of law. The hearing requirement was not met by plaintiffs’ submission of their brief; due process required that they have the opportunity to support their allegations by argument and, if necessary, by proof. A hearing was denied to plaintiffs in error. Dissent. None. Concurrence. None.
Conclusion:
Professor's Notes:Held-
Londoner v. DenverWednesday, September 15, 20109:14 AM
Ch.2 Page 55
Bi-Metallic Investment Co. v. State Bd. Of Equalization239 U.S. 441 (1915)
Facts:The State Board of Equalization of the state of Colorado and the Colorado Tax Commission ordered that the valuation of all taxable property in Denver be increased by forty percent.
1.
Plaintiff company brought suit alleging that it had been deprived of its due process protections because a tax had been levied against its property without it being afforded an opportunity to be heard, thereby unconstitutionally depriving it of property.
2.
The Colorado Supreme Court ordered that the suit be dismissed.3.The Supreme Court of the United States affirmed the dismissal, ruling that no due process rights are implicated in a tax levied against a large number of people.
4.
Are all property owners entitled to an opportunity to be heard prior to adoption of an administrative order that increases property taxes?
Issue:
Rule:
The result of this case is opposite to that reached in Londoner v. City and County of Denver. However, the apparent conflict between the two cases is explained by the observation that Bi-Metallic involved so-called "legislative" facts whereas the Londoner case presented an issue that required evaluating "adjudicative" facts. "Legislative" facts primarily involve determinations of broad policies or principles of general application, e.g., whether every tract of land in a large city has been under-assessed for property tax purposes.
Analysis:
The Due Process clause of the Fourteenth amendment provides that the government may not deprive an individual of life, liberty, or property without notice and an opportunity to be heard. Where an agency rule will apply to a vast number of people, the Constitution does not require that each be given an opportunity to be heard directly for the purpose of arguing in favor of or against its adoption. In cases such as this, it would be impractical to allow all individuals affected to offer a direct voice in support of or in opposition to an order. Thus, the Constitution is satisfied by the fact that, as voters, the taxpayers involved exercise power, remote or direct, over those responsible for the order. Accordingly, the judgment of the state supreme court dismissing this suit must be affirmed.
Conclusion:
Professor's Notes:City undervalued their property worth in order to save it's citizens on taxes
-
Even if property value is undervalued by 30% instead of 40% Prof said he did not think it would matter about this law
-
# of people○
General/specific○
Nature of facts○
Judicial review○
Factors we looked at as to differences btw this case and Londoner….none are dispositive:
-
“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;
○
Definition of "rule" is on pg.704-
Rules in KY are called/defined as "administrative regulation[s]"-
Bi-Metallic Investment Co. v. State Bd. Of EqualizationWednesday, September 15, 20109:15 AM
Ch.2 Page 56
Professor's Notes:Held-
Notes & Questions (pg.64)
Notes & Questions (pg.64)Wednesday, September 15, 20109:16 AM
Ch.2 Page 57
Anaconda Co. v. Ruckelshaus10th Cir. 1973482 F.2d 1301
Facts:Plaintiff smelter operator sought injunctive relief against defendant officials of the Environmental Protection Agency (EPA).
1.
Plaintiff sought relief against the promulgation of a proposed rule controlling emissions of sulfur oxide in Deer Lodge County, Montana, until defendants conducted an adjudicatory hearing and until it promulgated an environmental impact statement.
2.
The district court granted the requested relief. 3.
Should the district court have granted relief?Issue:
Rule:
The crucial aspect of the case was the validity of the proposed EPA regulation for the control of sulfur oxide emissions in Deer Lodge County where plaintiff was the only significant source of sulfur oxide pollution and so the proposed regulation would apply to plaintiff alone. In 42 U.S.C.S. § 1857h-5(b)(1), Congress provided for review in the United States District Court for the District of Columbia or the court of appeals for the appropriate circuit. The court held that the case was not ripe for review and that there was not any justification for intervention by the district court.
Analysis:
No, the district court should not have granted relief. Reversed. The judgment of the district court granting relief for plaintiff smelter operator from a proposed rule controlling emissions of sulfur oxide was reversed and the cause was remanded with directions to vacate its judgment and to dismiss the action.
Conclusion:
Professor's Notes:When deciding whether due process requires a hearing, courts often rely on Davis' legislative-adjudicative fact distinction
-
Anaconda Co. v. RuckelshausWednesday, September 15, 20109:16 AM
Ch.2 Page 58
Chapter 5 (pg.192-99) Rulemaking ProceduresWednesday, September 15, 20109:19 AM
Ch.5 Page 59
Increased use of rulemaking has changed structure of Admin. Law in the past 20-30 years•
Partipation by all affected parties…anyone who wishes to do so can particpate in rulemaking…notice is given to all concerned and anyone can submit comments
a.
Apt procecure: procedures of rulemaking have been designed for the precise purpsoe fo exploring issues of law, policy and legislative fact
b.
Retroactivity --- agency has broad but not unlimited authority to apply retroactively to parties to the proceding…as a result, the agency may upset important reliance interests…rules, in contrast, will normally apply prospectively ony, thus providin fair warning to those whose conduct is affected
c.
Uniformity----agency law made by rule addresses classes of persona dn al person falling within any such class will beocme subject to its terms at the same time and in the same way
d.
Political input----rulemaking provides a regularized opportunity for politically active persona dn groups to participate in the process and to mobilize political pressures for or against a proposed agency policy
e.
Agency agenda setting --- when agencies make law through adjudication their agenda is controlled by the happenstance of whatever cases come before them…in rulemaking the agency also avoids becoming distrated by the particular facts of each or the partcular problems of litigatnts and can focus directly on the central policy issue
f.
Definitiveness---gives the agency the opportunity to settle an issue in a single proceedingg.Accessibility----rules are published and therefore are widely available while agency case law is often unpublished and hard to track down…cases that make new law often do not clearly say they are doing so…
h.
Part of the explanation for the spread of rulemaking during the past geneartion was that agencies, courts, and legislatiures have come to understand that, in many situations at least, rulemaking has definite adavantages over adjucication as a tool for agaency lawmaking and policymaking…to generalize broaadly those advantages include the following:
•
Flexibility---adjudication leads an agency to make law on a step by step basis so that it can observe the actual operation f that law in concete situations
a.
The new and unexpetec---a case by case approach may be better where the agency is not yet in a position to make generally applicable law, due to lack of sufficient expertise or b/c the disctinctions in the area are likely to be so numerous or complex that they resist generalized treatment in a rule
b.
Resource saving---adjudication often less expensive and time consumingc.Resolution of disagreement---case by case adjudication allows agency to dipose of cases as they arised.Residual adjudiction-----there will always be ambiguitites in rules that need to be answered in individual cases thereby invevitably creating new precedents
e.
Nevertheless lawmaking through adjudication can also have advantages•
§5.1 Introduction: The Rise of Rulemaking
§5.1 Introduction: The Rise of RulemakingWednesday, September 15, 20109:20 AM
Ch.5 Page 60
Professor's Notes:Held-Rulemaking ossification----concerns about resource constraints as an impediment to rulemaking
have increased over time…during last 15 years the rulemaking process has become increasingly rigid and burdensome…an assortment of analytical reqs have been imposed on the simple rulemaking model and evolving judicial doctrines have obliged agencies to take greater pains to ensure that the technical bases for rules are capable of withstanding judicial scrutiny….referred to as ossification of rulemaking process
1.
Rulemaking authority --- b/c of the recognized advantages of rulemaking the admin process, agencies enabling statutes are normally written to allow them to exercise rulemaking power in appropriate cases….courts will alsmot alwways presume that a general rulemaking clause given an agency the otpion of making substantive policy decisions by issuing rules that have the force of law….imporant milesstone in the development of this presumption was National Petroleum Refiners Ass'n v. FTC (DC Cir. 1973) which upheld the FTCs rule requiring gas stations to post octane ratings….although the presumption embiodied in National Petroleum refinsrs and like has blong been entrenced, not everyone endorses it
2.
Scope of Rulemaking power-----conclusion that an agency has some substantive rulemaking authority does not automatically resolve the question of how broad that power is..however, the prevailing view in the federal system is that rulemaking clauses should be construed generously….where the empowering provision of a statute states simply that the agency may make such rules and regulations as may be necessary to carry out the provisions of this act have held that the validity of a regulation promulgated thereunder will be sustained so long as it is reasonably related to the purposes of the enabling legislation Mourning v. Family Publications US Supreme Court 1973
3.
Notes & Questions (pg.195)
Notes & Questions (pg.195)Wednesday, September 15, 20109:20 AM
Ch.5 Page 61
Chapter 6 (pg.342-54) Policymaking AlternativesWednesday, September 15, 20109:20 AM
Ch.6 Page 62
Although the decision to make law by rule rather than by order or vice versa has significant consequences, courts have generally been reluctant to interfere with an agency's choice of lawmaking procedures
•§6.2 Required Rulemaking
§6.2 Required RulemakingWednesday, September 15, 20109:21 AM
Ch.6 Page 63
NLRB v. Bell Aerospace Co.416 US 267 (1974)
Facts:A union representing respondent's workers requested of petitioner a representation election to determine whether the union could be certified as the bargaining representative of the buyers at respondent's plant.
1.
Respondent opposed the petition asserting the buyers, as managerial employees, were not covered under the National Labor Relations Act, 29 U.S.C.S. § 151 et seq. (the Act).
2.
Petitioner held the buyers were covered by the Act and ordered respondent to bargain with the union. 3.The appellate court denied enforcement of the order and remanded the case to petitioner so petitioner could conduct a rulemaking proceeding in conformity with § 156.
4.
Petitioner sought Supreme Court review. 5.The Court held that managerial employees were not covered under the Act but expressed no opinion as to whether the buyers fell into the category of managerial employees.
6.
Further, petitioner was not limited to rulemaking procedures under § 156 if petitioner should so determine that the buyers were not managerial employees on remand, but instead had discretion to decide that the adjudicative procedures could also produce the relevant information necessary to a mature and fair consideration of the issues.
7.
The Supreme Court heard NLRB’s appeal, and reversed in part the Court of Appeals. 8.
“[W]hether on remand the Board must invoke its rulemaking procedures if it determines, in light of our opinion, that these buyers are not ‘managerial employees’ under the Act.”
Issue:
An agency may reverse itself so long as “adverse consequences ensuing from [the] reliance [by a party on that precedence] are so substantial that the [agency] should be precluded from reconsidering the issue in an adjudicative proceeding.”
Rule:
“[S]urely the Board has discretion to decide that the relevant information necessary to mature and fair consideration of the issues.”
Analysis:
No. The Supreme Court noted that “nothing in the present case” qualified as “an abuse of discretion or a violation” of the enabling statute. Adjudication was a perfectly valid remedy.
Conclusion:
Professor's Notes:Favors presumption that agency can choose how to create a law be it through rulemaking or adjudication
-
KRC 13A100….guidelines for agencies to follow similar to this case…Prof said no free choice like this case --> KY has statutorily restrained this type of action --> statutory preference is for rulemaking and not adjudication
-
OH follows federal model and more specifically this case-
NLRB v. Bell Aerospace Co.Wednesday, September 15, 20109:21 AM
Ch.6 Page 64
Professor's Notes:Held-Bell aerospace-----this case has been overwhelming success in subsequent fed cases1.
The adverse consequence of retrospective adjudicative lawmaking would be substantial to the parties who had relied on past decisions of the agency
1.
New liability is sought to be imposed retrospectively by adjudication oindivduals for past actions which were taken in good-faith reliance on agency pronouncements
2.
Fines or dmgs are involved3.
Reliance & Retroactivity --- Bell Aerospace allutes to 3 situations in which reliance interest might require a different result
4.
i.e. Coke didn't have to pay backpay to striking workers who they did not rehire b/c they relied on prior case law
Courts also have 5 balancing factors highlighted on pg.348 to decide these types of cases•
Judicial Presumption----oregon case of Medgal which invalidated agency rule of dentist which prohibited "unprofessional conduct" b/c it was too vague
7.
A handful of federal cases have held that in some circumstnces due process requires agencies to take adverse actions against an indiidual only in accordance with standards previously expressed in statutes or rules
•
Due process….an alternative potental route to required rulemaking would be through the federal due process clause
8.
This MSAPA provsion would fundamentally change existing law in most states…•related provision requires agency to codify existing case law principles as soon as feasible and to the extent practicable
•
1981 MSAPA Section 2-104(3) of the 1981 MASAPA provides that as soon as feasible, and to extent pracicable, agencies must adopt rules, in addition to those otherwise required, embodying appropriate standards, principles, and procedural safeguards, that the agency will apply to the law it administers
10.
Presumptive rulemaking under FL law….FL has pursued a required rulemaking policy more forecefully than any other state in the USA
11.
Notes & Questions (pg.346)
Notes & Questions (pg.346)Wednesday, September 15, 20109:22 AM
Ch.6 Page 65
2.1-2.4 (pgs.14-61 & 69-91) The Constitutional Right to a HearingMonday, September 20, 20108:44 AM
2.1-2.4 Page 66
Professor's Notes:Due process trigger is a depravation of life, liberty, or property-
Equal protection problem does not trigger due process-
Rational basis interest is the threshold the state has to meet if they were to say make a law which outlawed temporary leasing agencies….probably not b/c of dormant commerce clause
-
Legislative processes are not required to get due process so when legislature passes law there is none or very little due process…in other words cannot sue for violation of due process b/c the legislature didn't give it to you before passing a right
-
Important b/c if license is a privilege than there is no trigger of due process
○
Current thought is we've abolished the right/privilege doctrine-
Subsection (j) of Problem 8 - professor says it does create entitlement --- it's "new property"
-
Subsection (c) of Problem 8 - constrains discretion but doesn't get rid of it all together…these constraints aid in making sure that is not "new property" ….
-
Liberty in the due process sense is much more difficult to define
-
Right to acquire knowledge has for about the last 100 years as a liberty interest (Myer v. Nebraska covered this concept during WWII when someone passed a law that you could not learn to speak German)
-
The 5th Amendment (which applies to the federal govn't) provides that no person shall be deprived of life, liberty, or property without due process of law…Section 1 of the 14th Amendment (which applies to State government) contains similar language
•
State constitutions also provide for due process and may provide more (but not less) protection than the federal Constitution
•
Welfare program involved in Goldberg was fundamentally altered and renamed Temporary Assistance for Needy Families (TANF) in 1996….under TANF welfare is no longer an entitlement and the states are permitted to design their own programs
•
2.1 Hearings and Welfare Termination: Due Process & Mass Justice
2.1 Hearings and Welfare Termination: Due Process & Mass JusticeMonday, September 20, 20108:53 AM
2.1-2.4 Page 67
Goldberg v. Kelly397 US 254 (1970)
Facts of the Case:John Kelly, acting on behalf of New York residents receiving financial assistance either under the federally-assisted program for Families with Dependent Children or under New York State's home relief program, challenged the constitutionality of procedures for notice and termination of such aid.
1.
Although originally offering no official notice or opportunity for hearings to those whose aid was scheduled for termination, the State of New York implemented a hearing procedure after commencement of Kelly's litigation.
2.
Does a state's termination of public aid, without affording the beneficiary a hearing prior to termination, violate notions of procedural due process as set out in the Fourteenth Amendment's Due Process Clause?
Question:
Procedural due process requires that when a right as integral as a right to welfare payments is taken away, there must be an evidentiary hearing prior to the termination of the right.
Rule:
Yes. In a 7-to-2 decision, the Court held that states must afford public aid recipients a pre-termination evidentiary hearing before discontinuing their aid. Noting that welfare benefits are statutory entitlements, rather than "privileges," the Court weighed welfare recipients' need for procedural due process against the competing considerations of the possible harm they might suffer from discontinuation and the government's interest in summary adjudication. The Court concluded that state interests in conserving administrative costs are not sufficient to override public aid recipients' interest in procedural due process. With respect to New York's newly implemented hearings, the Court found them deficient insofar as they did not permit recipients to present evidence, be heard orally in person or through counsel, or cross-examine adverse witnesses.
Conclusion:
Professor's Notes:
Oral hearing○
Timely notice○
Evidence○
Counsel○
Findings○
Right to Confront Adverse Witness○
Impartial Decision Maker○
Timely Place○
Decisions Based on the Record○
Judicial Review○
Right to Know Evidence Against You○
Right to Jury
No Transcription
No Oath Before Testifying
Not Open to Public
Differs from a regular trial b/c you don't have
Before taking away welfare benefits the agency must conduct:-
Goldberg v. KellyMonday, September 20, 20108:53 AM
2.1-2.4 Page 68
Professor's Notes:Held-The Goldberg Decision - the right to a continued flow of welfare benefits is an interest protected by
procedural due process….Due process requires a hearing before welfare benefits are terminated….a pre-termination hearing must include the ingredients specified in the last paragraphs of the opinion
1.
Adversariness & Mass Justice - in order for the due process system to be invoked, the following conditions have to be met: clients have to be aware that an injury has occurred; they have to think that the agency is at fault; they have to be aware of the existence of a remedy; they have to have the resources with which to pursue that remedy; and finally, they have to make calculation that the benefits of pursuing the remedy outweigh its costs….the final step in the process of invoking due process is to calculate whether the benefits of pursuing the remedy outweigh the costs
5.
Notes & Questions (pg.24)
Notes & Questions (pg.24)Monday, September 20, 20108:55 AM
2.1-2.4 Page 69
Professor's Notes:Held-
2.2 Interests Protected by Due Process: Liberty & Property
2.2 Interests Protected by Due Process: Liberty & PropertyMonday, September 20, 20108:55 AM
2.1-2.4 Page 70
Professor's Notes:Held-
2.2.1 "Liberty" & "Property" as defined in Roth
2.2.1 "Liberty" & "Property" as defined in RothMonday, September 20, 20108:55 AM
2.1-2.4 Page 71
Board of Regents v. Roth408 US 564 (1972)
Facts of the Case:David Roth was hired under a one-year contract to teach political science at Wisconsin State University-Oshkosh. He was informed that he would not be rehired at the end of his contract.
1.
No reasons were given for this decision. Roth brought suit against the university claiming that (1) the real reason for his non-retention was his criticism of the university administration violating his right to free speech protected by the Fourteenth Amendment; and (2) the university's failure to advise him of the reason for its decision violated his right to procedural due process.
2.
Roth won on the second claim. It was upheld on appeal.3.
Does the due process clause of the Fourteenth Amendment require that a state university provide a one-year contract employee a hearing and reasons when he is not retained after the termination of his contract?
Question:
The requirements of procedural due process, guaranteeing the right to adequate notice and a hearing concerning the denial of a constitutional right before the it can be denied, only applies to the denial of life, liberty and property. The burden for showing the existence of one of these rights, thus guaranteeing notice and a hearing, is left to the individual asserting the right, and once the individual meets this burden the Due Process Clause is triggered and rights are guaranteed by the State under the Fourteenth Amendment.
Rule:
In an opinion by Justice Potter Stewart, the court held 5-3 that Roth had no protected interest in continued employment, as he had completed his contracted term, and therefore was no Fourteenth Amendment protection.
Conclusion:
Professor's Notes:Held-
Board of Regents v. RothMonday, September 20, 20108:56 AM
2.1-2.4 Page 72
Professor's Notes:Held-Right-privileges doctrine government job was once a priviege and not a right meaning that
deprivation of job did not trigger procedureal due process ---> Bailey v. Richardson D.C> Cir. 1950 --> in this case lady was fired for allegations of being in Communist party…court held that government job is not proprety and therefore not deprivation so no due process
1.
Goldberg v. Kelly disregarded the right-privilege disctintionNew property…..procedural due process has always protected traditional forms of proprety such $ or right to own and use goods….under Roth right to receive welfare benefits is a statutory entitlement and thsu property
2.
New property depends upon entitledment created and defined by an independent source such as a state or federal statute…this is called positivist approachIn 1996 statute that abandoned AFDC and adopted TANF Congress declared that welfare is no longer an entitlementStigma as deprivation of liberty….Lawrence v. Texas invalidation TX sodomy law as a substantive due process violation…liberty protects person from unwarranted government intrusions into a dwelling or other private place
3.
In economic area there is little left of substantive due process…courts accept any rational justification fo rstatutes that limit economic rightsFree speech rights…..Roth argued he lost job b/c of cons. Protected free speech rights…Roth prevailed on 1st amendment claim in district court
4.
Discretion and due process….court held that WI infringed no liberty or prop rights so Roth was entitled to no process…nevertheless the effect of anon-renewal decision upon the career of a young professor, is quite drastic
5.
State cons law…..although langaguge of CA cons due process clause is saem as federal. The CA Supreme Court rejected Roth approach and held that a discretaionary standard can trigger due prrocess protection
6.
De facto tenure……Court held in a case that entitlement can be implied by univeristy practices even no explicit tenure system in place
7.
Deprivation…..cons requires due process only if person is deprived of life/liberty/prop….cons disctinction between beind deprive of what you already have and beind denied something you want bud do not yet have
8.
Notes & Questions (pg.31)
Notes & Questions (pg.31)Monday, September 20, 20108:56 AM
2.1-2.4 Page 73
Professor's Notes:Held-Accorrding to Roth, interests are created and limited by positive law such as state stautes….does it
folow that a statute creates property can also prescribe the procedure for taking it away•
2.2.2 Refining the Roth Approach to Property & Liberty
2.2.2 Refining the Roth Approach to Property & LibertyMonday, September 20, 20108:57 AM
2.1-2.4 Page 74
Cleveland Board of Education v. Loudermill470 US 532 (1985)
Facts of the Case:James Loudermill stated on his application for employment with the Cleveland Board of Education that he had never been convicted for a felony.
1.
After hiring him as a security guard, the board discovered that he had been convicted for grand larceny and without further consideration fired him for providing false information on his application.
2.
Since Loudermill qualified as a "classified civil servant" under Ohio law, he obtained a property right to his employment.
3.
This meant he could only be dismissed for cause and could obtain an administrative review of the causes for his termination.
4.
The Cleveland Civil Service Commission granted him an administrative review after his termination and found it valid.
5.
Loudermill filed suit in District Court alleging that the review system was unconstitutional because it only allowed him to respond to the charges against him after his termination.
6.
He argued that the board removed his property without giving him a chance to defend himself in violation of his right to Due Process under the Fourteenth Amendment.
7.
The District Court agreed that the Ohio statute gave Loudermill a property right to his job, but ruled that the board did not violate his due process rights because it followed the procedures specified by the same statute for removing the property right.
8.
In a similar case, Richard Donnelly alleged that post-dismissal hearings violated his due process rights. 9.The Court of Appeals for the Sixth Circuit heard both cases together and ruled that the board violated both defendants' due process rights by removing their property rights to employment before providing an opportunity for them to respond to charges against them.
10.
Can a state remove a civil servant's property rights to employment before providing an opportunity for that worker to respond to the charges offered for his termination?
Question:
While a State may elect not to confer a property interest in public employment, it may not constitutionally deprive one of such an interest, once conferred, without the appropriate procedural safeguards.
Rule:
No. Justice Byron White authored the opinion for an 8-1 court. The Ohio statute clearly grants civil servants property rights to their employment. In order to lawfully remove this property, the Due Process Clause requires a procedure that carefully weighs the interests of the government in removing the property against the interests of the private party in retaining the property. This procedure must incorporate the "essential requirements of due process," which "are notice and an opportunity to respond." There was no strong reason to delay the opportunity to respond until after termination. The Court found that "affording the employee an opportunity to respond prior to termination would impose neither a significant administrative burden nor intolerable delays." Accordingly, the significant interests of the employees to retain their jobs outweighed the interests of the state to remove employees quickly.
Conclusion:
Professor's Notes:Held-
Cleveland Board of Education v. LoudermillMonday, September 20, 20108:57 AM
2.1-2.4 Page 75
Professor's Notes:Held-The bitter with the sweet….some prop exists only by statue, contract, or other interest protected by
law….in portions of opinion Court held that a written pre-termination proceeding is sufficient protection for a discharged employee, if a full hearing with oral testimony is provided after the discharge
1.
Consequences of Loudermill….private companies can furnish services like garbage pick more efficiently than government b/c of protections requiring hearings for government workers
2.
Licenses are also important b/c they allow you to do what cannot be done without governmental permission
Also right topublic services such as education
Right to continued service from municipal utility
Jobs and licenses as property…..among most imporatnat forms of "new property" are government jobs that protect employee from discharge wihtout cause…many government jobholders have less protection than a tenured college professor but more protection than Roth…for example in Bishop v. Wood ordinace provided that city manage could fire policemen (who was a "permanent employee) if he failed to perform work up to standard of classification held, or continued to be negligent, inefficient, or unfit to perform his duties
3.
Remember the case of Town of Castle Rock v. Gonzales where cops didn't arrest man who violated DVRO (TRO) and he murdered kids…even though said shall no prop right deprived b/c court said it was discreationay
•
Standards plus discretion…Bishop v. Wood illustrated a larger problem with Roth entitlement anaylsis: a staute creating a benefit often contains a legal standard for granting or terminating the benefit but also gives the deicsionmaker some discretion in applying the standard
4.
Does required procedure create liberty or property….Loudermill establishes that if state law creates a property interest, the process that is duei s detemined by federal rather than state law
5.
De minimis deprivations…Goss v. Lopez (S.Court 1975) held that as long a prop deprivation is not de minimis its gravity is irrelevant to the question whether account must be taken of the Due Proces Clause…thus a 10 day suspension from school is not de minimis and may not be imposed in complete disregard of the due process clause…de minimis would be cop on paid sick leave
6.
Stigma as deprivation of liberty….where a person's good name, rep, honor, or integrist is at stake b/c of what the government is doing to him, notice and opportunity to be heard are essential --> Wisconcsin v. Constantineau (S.Court 1971)….case held that a person was entitled to a prior hearing before state posted his anme as a "pubilc drunkard"….bad comments from former supervisor do not meet stigma-plus req. (see pg.42)
7.
Prisoners rights as liberty….do prisoners deprived of liberty when prison officials make ecisions adversely affecting them?......for example do they need hearing before discipline by placing in solitary..early casew suggest athat hearing required (Wolff v. McDonnell S.Court 1974) but later the court decided that heraring required only if prison regs provided an entitlement…ultimately court decided prisoners have no liberty interest and thus no right to hearing in most situations involving prison discipline
8.
Notes & Questions (pg.38)
Notes & Questions (pg.38)Monday, September 20, 20108:57 AM
2.1-2.4 Page 76
Professor's Notes:Held-Even if government action has deprived a person of liberty or property, the question remains: what
process is due?•
Goldberg determined that a trial-type hearing must be held before termination of benefits….the timing question is often crucial
•
Mathews v. Eldridge asks whether trial-type hearings must be provided before termination of benefits to disabled person under Title II of the Social Security Act
•
2.3 Timing of Trial-Type Hearing
2.3 Timing of Trial-Type HearingWednesday, September 22, 20109:53 AM
2.1-2.4 Page 77
Mathews v. Eldridge424 US 319 (1976)
Facts of the Case:George Eldridge, who had originally been deemed disabled due to chronic anxiety and back strain, was informed by letter that his disability status was ending and that his benefits would be terminated.
1.
Social Security Administration procedures provided for ample notification and an evidentiary hearing before a final determination was made, but Eldridge's benefits were cut off until that hearing could take place.
2.
Eldridge challenged the termination of his benefits without such a hearing.3.
Did the lack of an evidentiary hearing prior to the termination of disability benefits violate the Due Process Clause of the Fifth Amendment?
Question:
The nature of the hearing must be commensurate with the interest affected, taking into account the state's administrative needs:All courts must now employ the Mathews balancing test to determine the type of procedures that are required by due process when a governmental action would deprive an individual of a constitutionally protected liberty or property interest. On the individual's side, a court must assess two factors:1) The importance of the individual liberty or property interest at stake (private interest);2) The extent to which the requested procedure may reduce the possibility of erroneous decision-making (government's interest).On the other side of the balancing scale, the court must assess the governmental interest in avoiding the increases administrative and fiscal burdens which result from increased procedural requirements. (risk that procedures used will lead to erroneous decisions)
Rule:
Unlike Goldberg, Eldridge's benefits were not based on need, but rather on other factors designated by statute. The degree of potential deprivation is significantly less than that of Goldberg as well. As to the length of wrongful deprivation exceeds one year, and is also significantly less in scope than in Goldberg. Despite the fact that a person on disability is likely to be at some hardship, the Court reasoned that it is not more than that of a welfare recipient.As to the fairness aspect, the Court found that there were numerous safeguards to prevents errors in making decisions to terminate disability benefits and argued that "[a]t some point the benefit or an additional safeguard to the individual affected by the administrative action and to society, in terms of increased assurance that the action is just, may be outweighed by the cost."As to the public interest, the burden actually weighs more on Eldridge, as the Court cites the many hearings it would take to get benefits back, as well as the increased costs of providing benefits to that person while they wait to have their day in court or in a proceeding, but not that expensive. However, the Court did find that if the government were forced to pay out to everyone whose claims were waiting, it could also be serving the interests of those who have completely ridiculous claims, thus the cost on taxpayers and the agencies would be burdened significantly from such a policy.
Analysis:
No. In an 6-to-2 decision, the Court held that the initial termination of Eldridge's benefits without a hearing did not violate due process. The Court noted that due process was "flexible" and called for "such procedural protections as the particular situation demands." The Court found that there were numerous safeguards to prevents errors in making decisions to terminate disability benefits and argued that "[a]t some point the benefit or an additional safeguard to the individual affected by the administrative action and to society, in terms of increased assurance that the action is just, may be outweighed by the cost."
Conclusion:
Professor's Notes:No hearing is required if there are no issues of factual dispute-
Nature of interest + risk of error > government interest/wrongful pymts/institutional costs
-
Risk of error in Goldberg was big deal b/c it was SS disability benefits but this would not be the case for things like a subsidy
-
Mathews v. EldridgeWednesday, September 22, 20109:54 AM
2.1-2.4 Page 78
Professor's Notes:Held-
North American Cold Storage Co. v. Chicago (211 US 306) upheld a state law providing for the destruction without prior hearing of food held in cold storage which the authorities, after inpection, believed to be rotting and creating a menace to public health - the court stated that an adequate remedy is provided by a tort action in which the authorities who destroyed the food would have to prove that the food was unfit - however under present law the officials are likely to be immune from liability….
i.
FDIC v. Mallen (486 US 230) Supreme Court has frequenly allowed an agency to act first and provide a hearing later as long as an important govn't interest accompanied by a substantial assurance that the deprivation is not baseless or unwaaranted may in limited cases deamnding prompt action justify postponing the opportunity to be heard until after the initial deprivation
ii.
Hodel v. Virginia Surface Mining Ass'n - agency closed a mine b/c inspection determined it dangerous to public safety or significant and imminent environmental harm…a hearing on the propriety of the closure was available proomptly thereafter
iii.
Barry v. Barchi (443 US 55) - state racing board acted properly when it summarily suspended license of horse trainer after test showed drugged horses…here also a prompt post-supsension hearing was available
iv.
Mathews permitted an agency to take action determining property interests prior to an evidentiary hearing in order to save the government money, not b/c of an emergency
v.
Dispensing with prior hearings in emergencies - in case of emergency, a state can deprive an individual of liberty or property without a prior hearing, even if a later remedy is inadequate…..
1.
Post Termination disability payments - after Mathews was decided, Congress enacted legislation that suspended its application…..this legislation allowed recipients of disability pymts to prevent a cutoff of their benefits until their appeal was concluded but this legislation expired in 1989…still SS grants pre-hearings
2.
Cleveland Board of Ed. v. Loudermill - Court held that pre termination procedure serves as an initial check against mistaken decisions - essentially, a determination of whehter there are reasonable grounds to believe that the charges against the employee are true and support the proposed action….this means that an employee must receive oral or written notice of the charges against him, an explanation of the employer's evidence (although it is not clear how detailed this must be) and an opportunity to present his side of the story - orally or in writing
i.
Timing & Employment decisions - Roth indicated that a prior hearing must be provided before an employee is discharged from a tenured government job…later cases have been more cautious and seem to recognize government's interest in immediate removable of an objectionable employee….in these cases the Court has accepted abbreviated pre-termination procedures designed to insure only that the government has probable cause for its decision - not that the decision was right….however a full-fledged trial-type hearing must be provided promptly after removal
3.
How long is too long? - it is difficult for a court to say how long is too long…in Mathews the Court tolerated a delay of well over one year in providing disability benefits…there is often a delay of several years btw the date that benefits are cut off or an initial app is denied and the hearing date….in Loudermill, the Court noted that a delay in the post-termination hearing could itself be a constitutional violation, but held that a wait of about 9 months was not unreasonable
4.
Gilbert v. Homar (520 US 924) - Court held that due process allows suspension of tenured campus cop who was charged with drug offenses without any pre-suspension process and without pay…applying Mathews balancing, the Court gave little weight to the cops private interest in receiving uninterrupted flow of paychecks for the relatively brief period until a post-suspension hearing was provided…on other hand, state has substantial interest in immediately suspending employees in positions of public trust who are charged with felonies….risk of erroneous deprivation was low b/c the criminal charges against the cop were independently verifiable and provided a reasonable basis for the action…similarly states often suspend a professional license b/c of exigent circumstances such as cases involving danger to patients, a medical licensing board ordinarily has power to suspend a physician's license rather than allow the physician to continue practicing until a hearing is provided
i.
Suspension or discharge? - in employment cases, a govn't employer often suspends employees with pay rather than firing them outright…it provides no procedural protection prior to the suspension but furnishes a trial-type hearing after the suspension
5.
Notes & Questions (pg.50)
Notes & Questions (pg.50)Wednesday, September 22, 20109:56 AM
2.1-2.4 Page 79
Professor's Notes:Held-Courts employ the balancing formula of Mathews v. Eldridge to determine what process is due as
well as when it is due•
Recall the list in Goldberg of the precise elements of a due process hearing•
2.4 Elements of a Hearing
2.4 Elements of a HearingWednesday, September 22, 20109:56 AM
2.1-2.4 Page 80
Ingraham v. Wright430 U.S. 651 (1977)
James Ingraham was a 14-year-old eighth grade student at Charles R. Drew Junior High School[1]
in 1970. On October 6, 1970, Ingraham was accused of failing to promptly leave "the stage of the school auditorium when asked to do so by a teacher".[2] He was then taken to the school principal's office, where he stated that he was not guilty of the accusation against him. Willie J. Wright, Jr., the principal, ordered Ingraham to bend over so that Wright could beat Ingraham with a spanking paddle. When Ingraham declined to bend over and allow himself to be beaten, he was forcibly placed face-down on the top of a table. Lemmie Deliford, the assistant principal, held Ingraham's arms and Solomon Barnes, an assistant to the principal, held Ingraham's legs. While Ingraham was being restrained, Wright used a spanking paddle to hit Ingraham more than 20 times.[3] The paddling was so severe that he suffered a hematoma requiring medical attention and keeping him out of school for several days. He and his parents sued the school, calling it "cruel and unusual punishment" and loss of liberty,
Facts:
Is corporal punishment in school constitutionally allowable?Issue:
Rule:
Analysis:
Yes. The Court held that Florida state tort laws provided sufficient remedies to satisfy Ingraham's due process loss of liberty claims. The Court also held that the U.S. Constitution's prohibition against cruel and unusual punishment does not apply to the corporal punishment of children in public schools, and that the constitution's due process clause does not require notice and a hearing prior to the imposition of corporal punishment in public schools.The Supreme Court declined to consider the plaintiffs' substantive due process claims in Ingraham v. Wright. Lower courts have adopted a variety of approaches to the substantive due process issue, none of which offer much protection for students who are subjected to corporal punishment at school. The Supreme Court has repeatedly denied certiorari (judicial review) on the issue of whether school corporal punishment constitutes a substantive due process constitutional violation.[4]
Conclusion:
Professor's Notes:Held-
Ingraham v. WrightWednesday, September 22, 20109:57 AM
2.1-2.4 Page 81
Professor's Notes:Held-
Goss decided earlier held that 10 day suspension was depviation of prop b/c state law created entitlement to public education of liberty b/c suspensions could seriously damage the students standing with fellow pupils and teachers as well as interfere with later opportunities for higher education and employment…Goss required "some" kind of notice and "some" kind of hearing….unless exigent the hearing should take place before suspension….student does not have right to counsel
•
Due process at school….Ingraham established that state common law tort remedies provide only process due to high school students deprived of liberty by infliction of corporal punishment
1.
Parratt v. Taylor…prison officials negligently lost hobby kit worth $23…court did not hold this de minimis but instead decided that a state tort action after such a random and unauthorized deprivation of property satisfied due process…same reasoning applies to intentional destruction of prisoner's property…however If pre-deprivation hearing is feasible the Parratt rule doesn't apply…Zinermon v. Burch…patient Burch was admitted to mental hospital and held for 5 months without informed consent in violation of state law…hospital claimed deprivation of liberty was random and unauthorized under Parratt so that Burch was limited to his state law tort remedy but in 5-4 decision the Court disagreed and stated that is is predictable that admittees to mental hospitals will be incapable of giving informed consent to their institutionalization and it is possible to provide a pre-deprivation hearing procedure to prevent this from happening
•
Tort remedies as a form of due process…Ingraham was first of a # of cases in which Court held due process satisfied by state law remedies as opposed to admin hearings
2.
State K remedies as due process….Lujan v. G&G Fire Sprinklers (S.Court 2001)…state terminated a K with G&G and withheld pymt…court assumed G&G had prop interest at stake but held that interest could be fully protected by a post-termination breach of K action in state court…G&G complained remedy inadequate b/c state would reatin K proceeds until suit was decided which may take years but court still held strong and said that lawsuit was how it was to be resolved so no injunctive relief in the interim
3.
Right to counsel in admin hearings….Walters v. National Ass'n of Radiation Survivors (1985 S.Court) involed statute enacted in 1862 and recently repealed that imits attorney's fees to $10 in vets benefit case…as a practical matter this statute preventd vets from retained counsel at VA informal benefits hearing…Court upheld and stated essentially that they were trying to keep these hearings nonadersarial and vets shouldn't split $ with attorneys in these types of cases
4.
Academic decisionmaking…..student at state education institution who is subject to expulsion or orther disciplinary sanctions is entitled todue precess….Matthews balancing denied student right to have consel particpate in disciplinary hearing
5.
Confrontation…..when person entitled to trial-type hearin is there always a right to confront & cross-examine one's accuser….Van karen v. City of Chicago (7th Cir. 1997) court upheld parking ticket procedure where cop didn't have to show up
6.
Due process requires no hearing at all unless there is a factual issue in dispute•
Paper hearings - or no hearings at all….Court has occassionally held that due process permits an agency to conduct a hearong in paper…prisoner case was one instance where prisoner was placed in segregation
7.
Adversary systems….one fundamental issue posed by Walter I n note 4 somewhere is whether due process means an adversasrial trial-type hearing…goldber v. kelly was high-water mark for that view…goss opened way for allowing ifnormal meetings ot substitute for tiral-type hearings…walters establishes that Congress can choose a hsarply didfferent model for disbursing government benefits: an informal investigatory meeting without lawyers, formal tesimony or cross-examination
8.
Notes & Questions (pg.57)
Notes & Questions (pg.57)Wednesday, September 22, 20109:57 AM
2.1-2.4 Page 82
Professor's Notes:
Don't forget Mathews formula is: Private Interest + Rights Effected > Government Interest THEN due process attaches○
If no liberty or property interest at stake then no Matthews required hearing but statute may still require a hearing-
Fundamental elements of due process are notice, reprimands, and allowing a response (I think)-
Chapter 2 examined cons. Right to trial-type hearing…this chapter also explores right to hearing but soruce of right is statutroy rather than cons.
-
This ch. Addresses fudnamental problems concerning agency hearing required by statute…when does a stuate require an agency to hold a hearing? What is relations btw statutory and ons required hearings? Can an agency adjudicate a case impratially when it investigated and prosecuted the very case it is about to decie? When is an agency deicsionmaker disabled by bias or by having received off-the-record communications?
-
Chapter 3 - Administrative Adjudication: Fundamental ProblemsMonday, September 27, 20109:46 AM
Ch.3 Page 83
Admin procedure statets take 2 different appraoches to gateway probelem which is determining which agency adjudicator proceedings are covered by the APA
•
Adjudication conducted under the APA grounds rules is called formal adjudication…if no external sources require an evidentiary hearing the agency is usually free to choose its own dispute resolution procedure…such adjudication is called informal adjudication
•
3.1 Statutory Rights to an Adjudicatory Hearing
3.1 Statutory Rights to an Adjudicatory HearingMonday, September 27, 20109:46 AM
Ch.3 Page 84
APA 554(a)….applies only to adjudication required by statute to be determined on the record after opportunity for an agency hearing
•
Gateway provision in the federa APA depends on an external source to trigger the APAs adjudication provisions…that external source must either provide explicitly that the APA will apply fo at least use the code words "on the record" or their equivalent
•
Fact that stuff is typed up and transcribed at a hearing doesn't mean it's "on the record"…this phrae really mean on the exlcusive record which in turn means the trier of fact is not allowed to consider any eivdecne xecept that which has been admitted at the hearing
•
Hearing must be conducted by an admin law jdge
An agency must separate its proescuting and adjuidcating functions (554(d) and no party can engage in ex parte contract with decisionmaker (557(d)
An agency must allow such cross at the hearing as maby be required for a f ull and true iscosure of the facts (556(d))
If private party wins and agencys position was not substantially justified, the private party is often entitled to recover atorney fees under the Equal Access to Justice Act
Most important APA provisions relating to formal adjudication require that:•
Courts analysis in Dominion case depends heavily on Chevron…Chevron important case relating to scope of jduicial review of an agency's interpreration of a statutes…disccussed in 9.2.2…Chevron calls for 2 step analyss: (1) if statute is clear b/c Congress has directly addressed the interpretive issue, the court must follow that inerpretation without deferring to the agency's interpretation (2) if a stuate administered by an agency is not clear, the court must defer to an agency's reasonable interpreation…in Dominiion the reviewing court reach Chevron step2 and deferred to the EPAs interpretation of the ambiugous words "public hearing" in the statute it administers
•
3.1.1 Federal Law - Right to a Hearing Under the APA
3.1.1 Federal Law - Right to a Hearing Under the APAMonday, September 27, 20109:47 AM
Ch.3 Page 85
Dominion Energy Brayton Point, LLC v. Johnson443 F.3d 12 (1st Cir. 2006)
Dominion heating water which is pollution so had to get license from EPA.EPA would not grant them hearing when license up for renewal.
Facts:
Do the words public hearing in the statute mean "on the exclusive record"Issue:
If statute is unclear and an agency's interp of statute that it admisinsters is reasonable, an inquiring court must defer to that interpretation.
Rule:
If statute is unclear and an agency's interp of statute that it admisinsters is reasonable, an inquiring court must defer to that interpretation.
Analysis:
No hearing defer to EPAs interp.Conclusion:
Professor's Notes:Held-
Dominion Energy Brayton Point, LLC v. JohnsonMonday, September 27, 20109:47 AM
Ch.3 Page 86
Professor's Notes:Held-EPAs reasonsin 2000 EPA adopted new procedural regs that dispensed with trial-type hearing in
NPDES cass and subbed rulemaing-type procedures coverd in detail on p.73…alll of this falls short of APA formal trial-type hearing
1.
Adjudication required by statute….formal procedures not required if statute states hearing or public hearing but not "on the record"
2.
Deferring to the agency's choice….key question in these cases is whethe agency is interpreting its own statute in which case Chevron applies or in interpreting the APA in which case Chvron would not apply…with seacoast ovverrruled the law now seems fairly clera: courts must defer to agency interpreations of the ambiugous words hearing or public hearing in the agency's stuate…as a result agencies will be strongly influence to adopt regs defining words hearing or public hearing in theire statutes to avoid application oft eh APA
3.
In rulemaking cases the S.Court ruled that courts cannot mandate rulemaking procedures byond those set foth in the APA…as a result the agency and not courts decides what procedure to employ if due process or a statute does not otherwise dicate the procedure
•
Note however the major difference btw rulemaking and adjuication…in the case of informal rulemaking the APA provides a series of adequate protections for the pubilc so arguable judicial tinkering is unnessary but in the case of informal adjudiction the APA provies virutally no protections at all
•
Informal adjdication…APA 558 and 555 provide a few meager protections applicable to informal adjudication but the APA otehrsise leaves agencies free to disgne their onw informal adjudication procedures
4.
Constitutaionlly requird hearings….APA does not apply to deportation cases even though cons. Required due process rights are involved for a hearing…in recent decades courts have ignored or evaded Wong Yang sung gloss on the APA
6.
Notes & Questions (pg.73)
Notes & Questions (pg.73)Monday, September 27, 20109:49 AM
Ch.3 Page 87
Professor's Notes:Held-Most state APAs follow gateway provisions of 1961 MSAPA and federal act by requiring an external
source to trigger adjudicatory procedures spelled out by the APA•
Greenwood Manor case inovlved Iowas version of 1961 Acts provison•1961 acts provision is state on pg.78•Recent state statutes provide an inclusive def of adjudication…with only narrow exceptions, all adjudicatiory decisions are covereed by thes eAPAs regardless of whetehr an external source requires a hearing….FL statuet applied in Metsch case use an inclusive def of adjudication
•
Some state statutes define contested caseto include any agency discretaionary decision to suspsend or revoke a right or privilege or to refuse to renew or ussie a licsnse, regadless of whether any other law reuies ar hearing
•
3.1.2 Rights to a Hearing Under State Law
3.1.2 Rights to a Hearing Under State LawMonday, September 27, 20109:50 AM
Ch.3 Page 88
Greenwood Manor v. Iowa Dep't of Public Health641 N.W.2d 823 (Iowa 2002)
GM applied for certificate to open open an Alzheimer's care unit.Other hospitals challenged app b/c their occupancy rates were dropping.License granted and competitors appeals
Facts:
Issue:
Rule:
This case explores what a contestsed case entails.Analysis:
Conclusion:Evaluation of an application for a cert of need by Council does not implicate contested case procedures.Leigslature did not intent to creat a contested case proceeding when it enacted the coprehensive certificate of need staute
Adjuciative relate to the specific parties and their particular cirucmstnaes…they involve individualized facts pecuilar to the parties and involve who, what when, how, why with what motive or intent.Legislative facts do not pertain to specific parties…are generlized factus proppostions often consisting of demographical datea nd statistics compiled from surveys and studies, which aid deicison maker in determining questions of policy and direstoin
Generally a preson has a right to a Contested case proceudres if the underlying proceeding involves adjudicative facts…conversely if agency deicsion rests on legislative facts the parteis are not cons. Entiteld to an evidentiary hearing
Pubilc hearing on cert of need app inovlves presentaiton of legislative facts…this case was about generlized facts and statisitical data of occupany rate
Professor's Notes:Held-
Greenwood Manor v. Iowa Dep't of Public HealthMonday, September 27, 20109:50 AM
Ch.3 Page 89
Metsch v. University of Florida550 So.2d 1149 (Fla. App. 1989)Metsch applied to UF law school but was denied admission. He requested an
administrative hearing pursuant to a Florida statute requiring one any time a state agency adjudicated the substantial interests of a citizen. His request was denied. o The second district of FL courts applied the following test for claims for hearings
hearing 1. The claimant must show an injury of immediate sufficiency to entitle him to a
2. The injury must be of a type the statute is designed to protect
made under the FL statute:
o The court held that Metsch’s interest in admission to the law school did not rise to the level of “substantial interest”, but rather was a “unilateral expectation.” ƒ To hold otherwise would entitle every unsuccessful applicant to a hearing, which is clearly impracticable o The FL statute provides a specific exemption for university decisions regarding students anyway, meaning Metsch’s challenge fails (2) as well. � Metsch’s argument that he is not yet a student, and therefore eligible, is clearly unreasonable. To believe that the legislature did not want hearings for current students but did want them for potential students is just dumb o Metsch clearly does not get a hearin
Professor's Notes:Held-
Metsch v. University of FloridaMonday, September 27, 20109:50 AM
Ch.3 Page 90
Professor's Notes:Held-Greenwood Manor…..under gateway provision of Iowa AP, which is similar to 1961 SAPA the APA
adjudiatory provision apply only to a contested case…to trigger APA there must be external source in form of statute or cons. Provision that provides an opportunity for an evidentiary hearing…however, there is no "on the record" provisoin as in the federal APA
1.
Due Process & the APA…..APA should not come into play unless due process requires a reasonably formal evidentiary hearing..for example, Goss v. Lopez held that due process applies to a brief suspension of a student from school but does not call for trial but only brief conferense btw sudent and disciplinarian
2.
FLs inclusive approach…..FL APA prvides for a hearing whenver the substantial intersests of a person are determined by an agency, regardless of whether a hearing is required by an other statute or the cons.
3.
Notes & Questions (pg.81)
Notes & Questions (pg.81)Monday, September 27, 20109:51 AM
Ch.3 Page 91
Professor's Notes:Held-
3.2 Limiting the Issues to Which Hearing Rights Apply
3.2 Limiting the Issues to Which Hearing Rights ApplyMonday, September 27, 20109:51 AM
Ch.3 Page 92
Heckler v. Campbell461 U.S. 458 (1983)
Facts:In 1978, the Secretary of Health and Human Services promulgated regulations in order to implement the statutory definition of disability.
1.
People who were disabled were separated into two groups: those who could not perform any gainful work and those with less severe impairments.
2.
physical ability, 1.age, 2.education, 3.and work experience. 4.
For this second group, the Secretary promulgated guidelines to examine whether the claimant could perform either his former work or some less demanding employment by creating a matrix that evaluated four factors that had been identified by Congress:
3.
Information was also compiled about what jobs were available.4.Carmen Campbell claimed she had a back condition that kept her from working at her former job as a hotel maid.
5.
Ms. Campbell had been born in Panama, and though she had limited ability to speak and write English, she could read and understand English fairly well.
6.
The administrative law judge in her case found that by using the guidelines, there were a significant number of jobs that existed that Ms. Campbell could perform and concluded that she was not disabled.
7.
Ms. Campbell's case was appealed to the United States Court of Appeals for the Second Circuit which reversed the decision, saying that the guidelines did not provide evidence that specific alternative jobs existed, and that the determination that Ms. Campbell was disabled was not supported by substantial evidence as required by the Social Security Act.
8.
Issue:
Rule:[w]here the statute expressly entrusts the Secretary with the responsibility for implementing a provision by regulation, review is limited to determining whether the regulations promulgated exceeded the Secretary’s statutory authority and whether they are arbitrary and capricious.A claimant who establishes that he suffers impairment so severe that he is prevented from pursuing any gainful work will be considered disabled without further inquiry. If a claimant suffers from a less severe impairment, the Secretary of Health and Human Services must determine whether the claimant retains the ability to perform either his former work or some less demanding employment. If a claimant can pursue his former occupation, he is not entitled to disability benefits.Analysis:
Conclusion:Supreme Court reversed the Second Circuit, saying that “[w]here the statute expressly entrusts the Secretary with the responsibility for implementing a provision by regulation, review is limited to determining whether the regulations promulgated exceeded the Secretary’s statutory authority and whether they are arbitrary and capricious.” The court decided that even where an agency's enabling statute expressly required that it hold a hearing, the agency could rely on its rulemaking authority to determine issues that didn't require case-by-case considerations.The court held that the Secretary’s reliance on the guidelines were not inconsistent with the Social Security Act, nor were they arbitrary and capricious.
Professor's Notes:
Constitution of the US may kick in○
Statute may have all procedures laid out within
Regulations may have been adopted if the statute doesn't specify and the Court is required to follow these regs as long as they are reasonable
Statute/Regulations○
If statute is not specific then APA kicks in (I think)…there is a good discussion of this on pg.70
Threshold questions at this level is whether the APA procedures apply all the time or only some of the time…does the statute require the hearing to be on the record…federal APA only applies some of the time and we know when that some of the time if the magic words are present in the enabling statute
APA○
No guaranteed right in Ohio that there will be a hearing○
KY APA requires them unless statute specifically excludes them
○
Where do we go to find the procedures for a hearing:-
Heckler v. CampbellMonday, September 27, 20109:51 AM
Ch.3 Page 93
Professor's Notes:Held-Foreclosure of hearing rights through rulemaking….Campbell holds than agency can resolve issue by
adopting a rule and thereby displace an individuals statutory right to an evidentiary hearing on that issue…agency can use official notice to meet its burden of prrof but opposing party has right offer a rebuttal…Court says rulemaking proceeding itself offered sufficient procedural protection
1.
No material issue of fact….an agency can deny a hearing otherwise required by statute when there are no disputed issues of aterial fact..thus, agency rules may explicitly provide for a for a form of summary judgment
4.
Notes & Questions (pg.88)
Notes & Questions (pg.88)Monday, September 27, 20109:51 AM
Ch.3 Page 94
Professor's Notes:Ex Part Hearings are addressed on pg.715 of our book in §557(d)(1)(A)
-
Judical model suggsests that an agency's adjudicative deiciosn resemples a jduges decision….adherents argue that fairness and acceptability to private litigants should be primary goals
Institutional model view an agency as if it were a single unit with the mission of implementing a regulator shcme…adherents stress accuaracy and effieiceny as dominatn values to be pursued
Students of admin process have ID'd two conflicting models of adjudicative decision making•3.3 The Conflict Between Institutional & Judicial Decision-Making
3.3 The Conflict Between Institutional & Judicial Decision-MakingWednesday, September 29, 20109:21 AM
Ch.3 Page 95
Professor's Notes:Held-In a judicial model judge hears all evidence and argument and mkes decision based on that input…in
an institutationl model, one or more preson might hear the evidence and argumetn but someone else might make the decision
•3.3.1 Personal Responsibility of Decisionmakers
3.3.1 Personal Responsibility of DecisionmakersWednesday, September 29, 20109:22 AM
Ch.3 Page 96
Morgan v. United States298 U.S. 468 (1936)
An administrator who takes responsibility for a decision must have personally heard the case.
i.
The Sec’y can delegate evidence analysis to hearing examiner to sift and analyze, but it must be presented to the Sec’y before he makes a decision.
ii.
Strongly calls for the judicial model1.
Delegate decision to a subordinatei.Delegate to ALJ and allow that decision to be final (or final subject to review (on appeal or on motion)
ii.
Intermediate Review Board to hear appeals of ALJ or subordinate’s decisionsiii.Head staff can write decisionsiv.
Four ways a decision-maker can avoid personally hearing evidence:2.
Morgan v. United States (Morgan I, 1936) •Hearing examiner, Assist. Sec’y of Ag heard hearings related to cattle ratemaking decision, but Sec’y of Ag made final decision w/o hearing arguments or seeing evidence.
•
Held: The one who decides must hear. Sec’y doesn’t have to literally hear all cases; could delegate evidence analysis as long as he could appraise the evidence before making final decision.
•
Morgan 1 (1936) – “The one who decides must hear.”(1)
Formal adjudication due process requires an intermediate report be prepared by the hearer of the evidence to focus the issues for the benefit of both the parties and the ultimate decision maker.
1.
This report must be made available to both parties and they must be given an opportunity to object to it before a final decision.
2.
Morgan II – Intermediate report(2)
A court cannot require a decision-maker (Sec’y of Ag) to come before court to testify as to his decision-making process.
1.
Makes it hard to enforce the Morgan I principle.2.Exception to Morgan IV: When the agency fails to explain its decision, the court can remand to the agency for them to provide an explanation. This is a last resort option.
3.
Morgan IV (1941) – Courts cannot probe the mind of the decision maker.(3)
Professor's Notes:Held-
Morgan v. United StatesWednesday, September 29, 20109:22 AM
Ch.3 Page 97
Professor's Notes:Held-
Notes & Questions (pg.94)
Notes & Questions (pg.94)Wednesday, September 29, 20109:22 AM
Ch.3 Page 98
Professor's Notes:Held-This section concerns communications between agency deisionmakers and person who are outside
the agency….the section on separation of fcntion, 3.3.4 concerns communications btw decisionamekres andadvisers inside the agency
•3.3.2 Ex Parte Contracts
3.3.2 Ex Parte ContractsWednesday, September 29, 20109:22 AM
Ch.3 Page 99
Professional Air Traffic Controllers Org. (Patco) v. Federal Labor Relations Authority685 F.2d 547 (D.C. Cir. 1982)
Held: (1) Where ex parte communications between decision makers and interested parties irrevocably taint the agency’s decision-making process, making the ultimate decision unfair, courts may void the decision.
o
(2) Where ex parte conduct may be improper, it must arise to “corrupt tampering with the adjudicatory process” to merit discretionary voidance.
o
Call was improper, but did not taint case; dinner was questionable but amicable and not focused on case (though they had a discussion of the case).
o
Professional Air Traffic Controllers Ord. (PATCO) v. Federal Labor Relations Authority (FLRA) (FLRA calls/dinner 1982)
Professor's Notes:Held-
Professional Air Traffic Controllers Org. (Patco) v. Federal Labor Relations AuthorityWednesday, September 29, 20109:23 AM
Ch.3 Page 100
Professor's Notes:Held-
Notes & Questions (pg.104)
Notes & Questions (pg.104)Wednesday, September 29, 20109:23 AM
Ch.3 Page 101
Professor's Notes:Held-
3.3.3 Agency Adjudication & Legislative Pressure
3.3.3 Agency Adjudication & Legislative PressureWednesday, September 29, 20109:23 AM
Ch.3 Page 102
Pillsbury Co. v. FTC5th Cir. 1966354 F.2d 952
Congress cannot intrude in some adjudicationo
In this case a senator had heard a case or somethingo
Pillsbury Co. v. FTC
Professor's Notes:Held-
Pillsbury Co. v. FTCWednesday, September 29, 20109:24 AM
Ch.3 Page 103
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Notes & Questions (pg.110)Wednesday, September 29, 20109:24 AM
Ch.3 Page 104
Professor's Notes:Held-
3.3.4 Separation of Functions & Internal Agency Communications
3.3.4 Separation of Functions & Internal Agency CommunicationsWednesday, September 29, 20109:24 AM
Ch.3 Page 105
Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board (Quintanar)145 P.3d 462 (Cal. 2006)
The court addressed how the California Administrative Procedure Act (APA), Gov. Code, § 11340 et seq., and the Due Process Clause applied to a unitary administrative agency that combined prosecutorial and adjudicative functions in resolving administrative matters. It concluded that the Department's procedure violated the APA's bar against ex parte communications. The APA did not permit ex parte contacts between the Department's prosecutor and its ultimate decisionmaker or the decisionmaker's advisors about the substance of the case, prior to the decisionmaker rendering a final decision. While agencies had considerable leeway in how they structured their adjudicatory functions, they could not disregard certain basic precepts. One fairness principle directed that in adjudicative matters, one adversary should not be permitted to bend the ear of the decisionmaker in private. Another directed that the functions of prosecution and adjudication be kept separate, carried out by distinct individuals. The court rejected the Department's argument that limits on ex parte communications extended only to communications during the trial stage, not to those during the decision stage.
OUTCOME: The intermediate appellate court's judgment was affirmed.
Professor's Notes:Held-
Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board (Quintanar)Wednesday, September 29, 20109:25 AM
Ch.3 Page 106
Professor's Notes:Held-
Notes & Questions (pg.117)
Notes & Questions (pg.117)Wednesday, September 29, 20109:25 AM
Ch.3 Page 107
Professor's Notes:Held-
3.3.5 Bias: Personal Interest, Prejudgment, Animus
3.3.5 Bias: Personal Interest, Prejudgment, AnimusWednesday, September 29, 20109:25 AM
Ch.3 Page 108
Cinderella Career & Finishing Schools, Inc. v. Federal Trade CommissionD.C. Cir. 1970425 F.2d 583
FTC ordered P to cease false advertising, then, while decision pending, FTC head gave speech highlighting P’s style of advertising (not by name) as “deception.”
o
Held: Disinterested observer would likely determine that FTC head had prejudged facts.o
Cinderella Career and Finishing Schools v. FTC (Appearance of Bias 1970)
Professor's Notes:Held-
Cinderella Career & Finishing Schools, Inc. v. Federal Trade CommissionWednesday, September 29, 20109:26 AM
Ch.3 Page 109
Professor's Notes:Held-
Notes & Questions (pg.125)
Notes & Questions (pg.125)Wednesday, September 29, 20109:26 AM
Ch.3 Page 110
This chapter assumes that an agency is conductin formal adjudicaion under the state or federal APA•Chapter 4 The Process of Administrative Adjudication
Chapter 4 The Process of Administrative AdjudicationMonday, October 04, 201010:43 AM
Ch.4 Page 111
Warrington Township v. Powell
Facts:
Commercial builiding fire inspectionIssue:
Can conduct warrantless searches in closely regulated industries and in places with open invitation to the general public…rule is on pg.11
Rule:
Analysis:
Conclusion:
Professor's Notes:Fire inspection case-
Br.Bk. - Warrington Township v. PowellMonday, October 04, 201010:53 AM
Ch.4 Page 112
Feathers v. W. Va. Bd. Medicine
Doctors fees really high compared to others…factos listed on pg.2Doc did not want to release records of patients b/c of their right to privacy
Facts:
Issue:
State can get these records without probable cause but only after initial hearing with doctroRule:
Analysis:
Doc required to release recordsConclusion:
Professor's Notes:Held-
Br.Bk. - Feathers v. W. Va. Bd. MedicineMonday, October 04, 201010:53 AM
Ch.4 Page 113
Professor's Notes:Laches = -
Unreasonable delay in pursuing a right or claim -- almost always an equitable one -- in a way that prejudices the partyagainst whom relief is sought. -- Also termed sleeping on rights.
Administrative complaints needn’t be as specific as criminal or civil complaints; just enough to adequately detail charges and allow for preparation of defense.
(a)
Nevertheless, Due Process (Goldberg v. Kelly) requires the basic norms of fairness, which includes adequate notice.
(b)
Note: In federal cases, courts have sometimes found a general five-year statute of limitations, consistent with the common law doctrine of laches.
(c)
Notice(1)The Pre-Hearing Phase: Notice, Intervention, Investigation, Discoverya)
4.1 The Pre-Hearing Phase: Notice, Investigation & Discovery
4.1 The Pre-Hearing Phase: Notice, Investigation & DiscoveryMonday, October 04, 201010:43 AM
Ch.4 Page 114
Professor's Notes:Due process at a minimum requires notice and an opportunity to be heard
-
If the 4th amendment applies you can conduct a search with a warrant, if there is an exception that permits a warrantless search of if the party being searched consents
-
Lawyers typically will not have a MPR 4.1 violation if undercover work takes place that they are a part of in their agency
-
Do need probable cause for administrative warrants but does not meet the threshold requirement of what a criminal law would amount to; in a fire inspection an annual fire inspection that hasn't been done in a year would be probable cause; also if fire marshal knows the building is run down and a threat exigent circumstances may kick in
-
Probable cause in administrative sense = resonableness-
Exclusionary rule doesn't apply to administrative proceedings unless the manner in which the evidence was obtained constituted egregious violations of the 4th Amendment or other liberties
-
(1) the subpoena is issued for a legislatively authorized purpose, (2) the information sought is relevant to the authorized purpose, (3) the information sought is not already within the agency’s possession, (4) the information sought is adequately described, and (5) proper procedures have been employed in issuing the subpoena.
In order to obtain judicial backing for the enforcement of an administrative subpoena, the agency must prove that
If these requirements are satisfied, the subpoena is presumably valid and the burden shifts to those opposing the subpoena to demonstrate its invalidity. The party seeking to quash the subpoena must disprove through facts and evidence the presumed relevance and purpose of the subpoena.
From Feathers: -
Dr. resisted the subpoena in Feathers b/c he was concerned for his patient's privacy
-
Business records cannot be used as 5th amendment defense-
Reports to regulators besides subpoenas and search/seizure that the agency can come by information
-
Best discovery tool against an agency is the open records act-
4.1.1 Notice & Parties to Adjudication
4.1.1 Notice & Parties to AdjudicationMonday, October 04, 201010:43 AM
Ch.4 Page 115
Block v. Ambach537 N.E.2d 181 (N.Y. 1989)
Physician complained that notice provided was improper because it was not specific enough to allow him to mount a defense (no dates as to incidents). This was a procedural stalling tactic on the physician’s part.
o
Held: Notice was not up to criminal standards, but it was adequate for an administrative proceeding.
o
Block v. Ambach (Sexual allegations against physician 1989)
Professor's Notes:Held-
Block v. AmbachMonday, October 04, 201010:44 AM
Ch.4 Page 116
Professor's Notes:Held-No statute of limitations on licensing…however laches may still come into play1.
Notice….due process requires person has it….prisoner sent letter which was returned to sender required state to take more steps to get it to prisoner
2.
Forching a hearing…generally in cases like Block an individual cannot force the agency to have a hearing
4.
Notes & Questions (pg.140)
Notes & Questions (pg.140)Monday, October 04, 201010:44 AM
Ch.4 Page 117
Professor's Notes:Held-
Agencys must obtain massive amounts of information to do their job•Subpoena duces tecum compels disclosure of info to find out whether the law is being broken•APA 555(c) and (d) and 556(c)(2)•
4.1.2 Investigation & Discovery: An Agency's Power to Obtain Information
4.1.2 Investigation & Discovery: An Agency's Power to Obtain InformationMonday, October 04, 201010:44 AM
Ch.4 Page 118
Craib v. Bulmash777 P.2d 1120 (Calif. 1989)
Illustrates courts’ general willingness to grant administrative subpoenas and to find them reasonable.
o
In this case, state law required recordkeeping subject to subpoena.o
Craib v. Bulmash (Cal. 1989) - p. 146
Professor's Notes:Held-
Craib v. BulmashMonday, October 04, 201010:45 AM
Ch.4 Page 119
Professor's Notes:Held-Agency cannot enforce its own subpoena•
Defendants have a very poor chance of succeeding in these challenges.(a)Lack of jurisdiction(b)Subpoena is a “fishing expedition”(c)Too expensive or inconvenient to comply(d)
Limited Grounds for Challenging Subpoenas:•
Attorney-client privilege & work product privile apply to agency investigations•Agency may compel testimony using use immunity pg.152•4 required critetria according to Burger to meet warratnless admin. Insepction of prevasively regulated businessed on pg.153
•
Exclusionary rule does not apply and illegally obtained stuff can be used in admin proceeding unless egregious violation like racial profiling
•
Notes & Questions (pg.150)
Notes & Questions (pg.150)Monday, October 04, 201010:45 AM
Ch.4 Page 120
Professor's Notes:Held-Agencies are now required to explore ADR•
4.1.3 Alternative Dispute Resolution in Administrative Adjudication
4.1.3 Alternative Dispute Resolution in Administrative AdjudicationMonday, October 04, 201010:46 AM
Ch.4 Page 121
Professor's Notes:We briefly discussed this in class even though it was not in our reading
-
He spent a lot of time (at least 30 mins) talking about hearings so I may want to read this section pgs.156-169
-
Formalities of hearings will vary from agency to agency-
may get you in the door but won't carry the day
Scintilla ○
enough to get you the search warrant but not the conviction
Probable Cause ○
sometimes we can win on this during judicial review but in most admin actions we will be either preponderance or C&C
Substantial Evidence ○
Preponderance of the Evidence○
Clear & Convincing Evidence○
Beyond a Reasonable Doubt○
Evidence (from least to most convincing):-
If feds win in OH they should win in GA BUT if feds lose in OH they may win in GA
○
Mutuality of estoppel-
Full and fair opportunity to litigate is important and if an admin case is won it doesn't mean that a criminal trial would not have to retry the issue b/c the burden of proof is higher (i.e. preponderance vs. beyond a reasonable doubt --> also what was at stake in one trial versus the other
-
Burden○
Stake○
Evidence (nature of the evidence rather than amount)○
Formality of the proceedings○
Full & Fair Opportunity factors:-
The parties introduce documentary evidence, call and examine witnesses, cross-examine the witnesses called by their adversaries, make oral arguments, and submit briefs
•4.2 Hearing
4.2 HearingWednesday, October 06, 201010:47 AM
Ch.4 Page 122
4.3 The Decision Phase: Finding Facts & Stating ReasonsFriday, December 17, 20103:18 AM
Ch.4 Page 123
Ship Creek Hydraulic Syndicate v. StateAlaska
AK found there is a requirement that administrative agencies issue robust decisionso
NOT met by restating statutory test or regurgitating factso
Reasons:o
1. Facilitates judicial review
2. Allows the losing party to plan its next steps
3. Keeps the agency within bounds
Ship Creek Hydraulic Syndicate v. Alaska (1984) - p. 170
Professor's Notes:Held-
Ship Creek AlaskaFriday, December 17, 20103:18 AM
Ch.4 Page 124
Professor's Notes:Held-
Notes (pg.173)
Notes (pg.173)Friday, December 17, 20103:18 AM
Ch.4 Page 125
4.4 Effect of Decision: Res Judicata, Stare Decisis, Equitable Estoppel
4.4 Effect of Decision: Res Judicata, Stare Decisis, Equitable EstoppelFriday, December 17, 20103:19 AM
Ch.4 Page 126
4.4.1 Res Judicata & Collateral Estoppel
4.4.1 Res Judicata & Collateral EstoppelFriday, December 17, 20103:19 AM
Ch.4 Page 127
JS v. Bethlehem(Pa)
An example of mutual defensive collateral estoppel.o
J.S. Bethlehem Area School District (2002)
Professor's Notes:Held-
JS v. BethlehemFriday, December 17, 20103:19 AM
Ch.4 Page 128
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Notes (pg.180)Friday, December 17, 20103:19 AM
Ch.4 Page 129
Professor's Notes:Held-
4.4.2 Consistency of Decisions & Stare Decisis
4.4.2 Consistency of Decisions & Stare DecisisFriday, December 17, 20103:19 AM
Ch.4 Page 130
United Automobile Workers v. NLRB7th Cir.
Agencies must adequately explain why they are departing from their prior precedence (UAWA v. NLRB)(1)The agency must explain and give a reasonable reason for the change in how it will decide issues.(2)FCC v. Fox Television Stations (2008 - Fleeting Explicatives) shows that the agency must simply explain why it changed its policy.
(3)
Professor's Notes:Held-
United Automobile Workers v. NLRBFriday, December 17, 20103:20 AM
Ch.4 Page 131
Notes (pg.184)Friday, December 17, 20103:20 AM
Ch.4 Page 132
4.4.3 Estoppel
4.4.3 EstoppelFriday, December 17, 20103:20 AM
Ch.4 Page 133
Foote's Dixie Dandy, Inc. v. McHenryArk.
Some states do allow equitable estoppel against state government (Foote’s Dixie Dandy v. McHenry (Ark. 1980)).(1)
Foote's Dixie Dandy, Inc. v. McHenryFriday, December 17, 20103:20 AM
Ch.4 Page 134
Notes (pg.187)Friday, December 17, 20103:21 AM
Ch.4 Page 135
Chapter 5 - Rulemaking ProcedresMonday, October 18, 20109:07 AM
5.8 Page 136
Value of human life vs. cost of new car safety featurea)Intensive, formal Cost-Benefit Analysis of regulations having substantial effect on economy1.
5.8 Regulatory AnalysisMonday, October 18, 20109:07 AM
5.8 Page 137
Corrosion Proof Fittings v. EPA947 F.2d 1201 (5th Cir. 1991)
Facts:
Issue:
Rule:
Analysis:
Conclusion:
PROCEDURAL POSTURE: Petitioner asbestos manufacturer challenged certain rules of respondent Environmental Protection Agency relating to the ban of asbestos products. 54 Fed. Reg. 29,460 - 513. The court held that the respondent could ban products that once were but are no longer being produced in the United States. Respondent filed a motion for clarification of the court's order.
OVERVIEW: Petitioner asbestos products manufacturer challenged certain rules of respondent Environmental Protection Agency which banned the manufacture, importation, and processing of asbestos-containing corrugated and flat sheet, asbestos clothing, flooring felt, pipeline wrap, roofing felt, and vinyl/asbestos floor tile, 40 C.F.R. §§ 763.165(a) - .167(a), which required labeling of certain products after August 27, 1990, 40 C.F.R. § 763.171(a), and which prohibited the distribution in commerce of such products after August 27, 1992, 40 C.F.R. § 763.169(a). The court held that respondent could ban products that once were but are no longer being produced in the United States. Respondent filed a motion for clarification of the court's order. The court granted respondent's motion, explaining that its holding regarding banning products applied only to products that were not being manufactured, imported, or processed on July 12, 1989, the date of the rule's promulgation.
OUTCOME: The court granted respondent Environmental Protection Agency's motion for clarification of an earlier order, and explained that its holding that respondent could ban products that once were, but no longer are, being produced in the United States, applied only to products that were not being manufactured, imported, or processed on July 12, 1989, the date of the rule's promulgation.
Professor's Notes:EPA should have computed more-
Corrosion Proof Fittings v. EPAMonday, October 18, 20109:07 AM
5.8 Page 138
Professor's Notes:Held-EPA pretty much doesn't ever ban substances in use thanks to this case.
Note (pg.283)
Note (pg.283)Monday, October 18, 201010:50 AM
5.8 Page 139
Professor's Notes:Held-The Cost-Benefit State: The Future of Regulatory Protection by Cass R. Sunstein
The Cost-Benefit State: The Future of Regulatory Protection by Cass R. SunsteinMonday, October 18, 201010:50 AM
5.8 Page 140
Professor's Notes:Held-Pricing the Priceless: Cost-Benefit Analysis of Environmental Protection by Lisa Heinzerling & Frank
Ackerman
Pricing the Priceless: Cost-Benefit Analysis of Environmental Protection by Lisa Heinzerling & Frank AckermanMonday, October 18, 201010:50 AM
5.8 Page 141
Professor's Notes:Held-
Notes & Questions (pg.288)
Notes & Questions (pg.288)Monday, October 18, 201010:51 AM
5.8 Page 142
Chapter 7 - Political ControlsMonday, October 18, 20109:29 AM
7.6 Page 143
7.6 Executive OversightMonday, October 18, 20109:29 AM
7.6 Page 144
Professor's Notes:Held-Presidents and governors often use exec orders to prescribe policies for the executive branch…not
legally bidning but can have force of law if based on stattuory or cons authroity….can exceed authority such as Youngstown case where prez issued order to take control of governments steel mills…3 categories acceptable of pres power are described on pg.466
•
Several states have executive review programs modeled on OIRAs functions•
Rules with more than $100 million annual impact on the economy(a)Formal regulatory analysis only for significant regulatory analysis(b)
Requires certain rules to go through regulatory analysis (submission to OIRA, CBA)(1)
No judicial review, no public review(2)Rules must be issued in “plain English.”(3)
E.O. 12866a)Executive Controls1.
In some states rules may not take effect without governors approval•
Executive Oversight 12,866 Regulatory Planning & Review
Executive Oversight 12,866 Regulatory Planning & ReviewMonday, October 18, 201010:52 AM
7.6 Page 145
Professor's Notes:Held-
Notes & Questions (pg.465)
Notes & Questions (pg.465)Monday, October 18, 201010:52 AM
7.6 Page 146
Chapter 5 Rulemaking ProceduresWednesday, October 20, 201010:27 AM
5.2-5.7 Page 147
Nonlegislative rules & Guidance Documents do not have to go through comments
5.2 Definition of "Rule"Wednesday, October 20, 201010:28 AM
5.2-5.7 Page 148
Professor's Notes:Held-All APAs define the term rule to which their rulemaking procedures apply…read 551(4) of the federal
APA and consider the following analysis•
5.2.1 Generality & Particularity
5.2.1 Generality & ParticularityWednesday, October 20, 201010:28 AM
5.2-5.7 Page 149
Professor's Notes:Held-
A Guide to Federal Agency Rulemaking by Jeffrey S. Lubbers
A Guide to Federal Agency Rulemaking by Jeffrey S. LubbersWednesday, October 20, 201010:28 AM
5.2-5.7 Page 150
Professor's Notes:Held-
Notes & Questions (pg.200)
Notes & Questions (pg.200)Wednesday, October 20, 201010:28 AM
5.2-5.7 Page 151
Professor's Notes:Held-Rules normally establish law or policy for the future while orders generally concern past events and
have retroactive effect•
Federal APA and those of many states explicitly define rules as having "future effect"•
5.2.2 Prospectivity & Retroactivity
5.2.2 Prospectivity & RetroactivityWednesday, October 20, 201010:29 AM
5.2-5.7 Page 152
Bowen v. Georgetown University Hospital488 US 204 (1988)
A rule can have retroactive effect only where the enabling statute expressly gives the agency the power to write retroactive rules.
o
Bowen v. Georgetown Hospital (Retroactive rule)
Retroactivity applies only to adjudication and not to rulemaking.Conclusion:
Professor's Notes:Held-
Bowen v. Georgetown University HospitalWednesday, October 20, 201010:29 AM
5.2-5.7 Page 153
Professor's Notes:Held-When an agency imposes retroactive liability throgh an adjudicative order, courst review the
decision for reasonableness or abuse of discretion…balancing test•
Notes & Questions (pg.208)
Notes & Questions (pg.208)Wednesday, October 20, 201010:30 AM
5.2-5.7 Page 154
5.3 Initiating Rulemaking ProceedingsWednesday, October 20, 201010:30 AM
5.2-5.7 Page 155
Chocolate Manufacturer's Ass'n v. Block755 F.2d 1098 (4th Cir. 1985)
Chocolate Manufacturer’s Ass’n v. Block (Logical Outgrowth Change) Removal of chocolate milk was a logical outgrowth of the scheme and comments regarding regulation of high sugar foods.
Appellant was not fairly treated nor was the administrative process well served by the drastic alteration of the rule without an opportunity for appellant to be heard.
Analysis:
Conclusion:
Professor's Notes:
Notice is adequate if the changes in the original plan are in character with the original scheme and the final rule is a logical outgrowth of the notice and comments already given.
(a)Logical Outgrowth Test(1)
-
Chocolate Manufacturer's Ass'n v. BlockWednesday, October 20, 201010:30 AM
5.2-5.7 Page 156
Professor's Notes:Held-
Notice is adequate if the changes in the original plan are in character with the original scheme and the final rule is a logical outgrowth of the notice and comments already given.
(a)Logical Outgrowth Test(1)
Notes & Questions (pg.215)
Notes & Questions (pg.215)Wednesday, October 20, 201010:31 AM
5.2-5.7 Page 157
Professor's Notes:Held-
5.4 Public Participation
5.4 Public ParticipationTuesday, October 26, 20108:12 PM
5.2-5.7 Page 158
Professor's Notes:Held-
APA § 553:
NPRM (Notice of Proposed Rulemaking) in Federal Register providing notice of content of proposed rule, authority for rulemaking, and time and place of proceeding;
o
Opportunity for interested persons to comment by written submission, OR at agency option, via oral testimony;
o
Issuance of “concise general statement” of “basis and purpose” for rules when finally promulgated;
o
Response(s) to substantial issue(s) raised by commentators;
o
See Nova Scotia Food Products; Chocolate Manufacturers
If “substantive” rule, effectiveness delayed for 30 days.
o
Exceptions:
1. Interpretive ruleso
2. General statements of policyo
3. Rules of agency organization, procedure, or practice
o
4. Where “good cause” renders Notice and Comment rulemaking “impracticable, unnecessary, or contrary to the public interest.
o
The APA represents the ceiling of the procedures that a court can require of an agency. An agency may establish greater protections than in the APA, but courts cannot second guess agencies and impose more stringent procedural standards on them.
o
But see Portland Cement (court required disclosure of technical data in Notice of Proposed Rule Making (NPRM))
o
Vermont Yankee (1978)
Informal Rulemaking (Notice & Comment Rulemaking): a)5.4.1 Informal Rulemaking
5.4.1 Informal RulemakingTuesday, October 26, 20108:13 PM
5.2-5.7 Page 159
Professor's Notes:Held-
5.4.2 Formal Rulemaking
5.4.2 Formal RulemakingTuesday, October 26, 20108:13 PM
5.2-5.7 Page 160
United States v. Florida East Coast Railway Co.410 U.S. 224 (1973)
Formal rulemaking procedures are not triggered by a requirement that the agency act “after hearing.” Congress must use the words “on the record” or their equivalent to trigger formal rulemaking.”
o
United States v. Florida East Coast Ry. (1973) (Rulemaking)
Professor's Notes:Held-
United States v. Florida East Coast Railway Co.Tuesday, October 26, 20108:13 PM
5.2-5.7 Page 161
Professor's Notes:Held-
Notes & Questions (pg.226):
Notes & Questions (pg.226)Tuesday, October 26, 20108:14 PM
5.2-5.7 Page 162
Professor's Notes:Held-
Certain statutes instruct specific agencies to make rules using procedures more elaborate than APA formal rulemaking.
a)
This was popular for a time, but it is now rare for Congress to put such procedural requirements in enabling legislation.
b)
APA § 553 contains the minimal procedural standards. (1)Agencies can grant additional procedural rights above and beyond the APA, but courts cannot impose them on agencies.
(2)
Limits on Courts Powers to Impose Procedural Protectionsc)
Hybrid Rulemaking & Limits on Courts Powers to Impose Procedural Protections1.5.4.3 Hybrid Rulemaking & the Limits on Judicial Supervision of Administrative Procedure
5.4.3 Hybrid Rulemaking & the Limits on Judicial Supervision of Administrative ProcedureTuesday, October 26, 20108:14 PM
5.2-5.7 Page 163
Vermont Yankee Nuclear Power Corp. v. NRDC435 U.S. 519 (1978)
The APA represents the ceiling of the procedures that a court can require of an agency. An agency may establish greater protections than in the APA, but courts cannot second guess agencies and impose more stringent procedural standards on them.
o
But see Portland Cement (court required disclosure of technical data in Notice of Proposed Rule Making (NPRM))
o
Vermont Yankee (1978)
Professor's Notes:Held-
Vermont Yankee Nuclear Power Corp. v. NRDCTuesday, October 26, 20108:14 PM
5.2-5.7 Page 164
Professor's Notes:Held-
Notes & Questions (pg.235)
Notes & Questions (pg.235)Tuesday, October 26, 20108:15 PM
5.2-5.7 Page 165
Professor's Notes:Held-
APA § 557 forbids ex parte communications, and if they occur, their contents must be disclosed on the public record and the party making them may need to show why they shouldn’t be prejudiced by communication.
(1)Formal Rulemakinga)
Ex parte contacts barred in informal rulemaking
o
HBO v. FCC (1977)
Ex parte contacts allowed; only needed on record if central to rulemaking. Rulemaking is a function of public policy; President needs to be able to execute administrative policy.
o
Sierra Club v. Costle
Addressed in conflicting case law, not APA.(1)Informal Rulemakingb)
Ex Parte Communications and Political Influence in Rulemaking1.5.5 Procedural Regularity in Rulemaking
5.5 Procedural Regularity in RulemakingTuesday, October 26, 20108:15 PM
5.2-5.7 Page 166
Professor's Notes:Held-
5.5.1 Role of Agency Heads
5.5.1 Role of Agency HeadsTuesday, October 26, 20108:15 PM
5.2-5.7 Page 167
Professor's Notes:Held-
5.5.2 Ex Parte Communications & Political Influence in Rulemaking
5.5.2 Ex Parte Communications & Political Influence in RulemakingTuesday, October 26, 20108:15 PM
5.2-5.7 Page 168
Home Box Offce, Inc. v. FCC567 F.2d 9 (D.C. Cir. 1977)
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Home Box Offce, Inc. v. FCCTuesday, October 26, 20108:16 PM
5.2-5.7 Page 169
Sierra Club v. Costle657 F.2d 298 (D.C. Cir. 1981)
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Sierra Club v. CostleTuesday, October 26, 20108:22 PM
5.2-5.7 Page 170
Professor's Notes:Held-
Notes & Questions (pg.249)
Notes & Questions (pg.249)Tuesday, October 26, 20108:22 PM
5.2-5.7 Page 171
Professor's Notes:Held-
A rule-maker “should be disqualified [due to bias] only when there has been a clear and convincing showing that the agency member has an unalterably closed mind on matters critical to the disposition of the proceeding.” (underline added)
(1)
Language above is from this case.
o
FTC restricted children’s advertising. Reviewing allegation of bias, the court avoided Cinderella test and used Unalterably Closed Mind Test.
o
Ass’n of National Advertisers, Inc. v. FTC (1979)
“The requirements of due process clearly recognize the necessity for rule-makers to formulate policy in a manner similar to legislative action.” Rule-makers are attempting to enact the political will of Congress and the President.
(a)Rationale:(2)
Unalterably Closed Mind Testa)Bias and Prejudgment1.
5.5.3 Bias and Prejudgment
5.5.3 Bias and PrejudgmentTuesday, October 26, 20108:23 PM
5.2-5.7 Page 172
Association of National Advertisers, Inc. v. FTC627 F.2d 1151 (D.C. Cir. 1979)
Language above is from this case.o
FTC restricted children’s advertising. Reviewing allegation of bias, the court avoided Cinderella test and used Unalterably Closed Mind Test.
o
Ass’n of National Advertisers, Inc. v. FTC (1979)
Professor's Notes:Held-
Association of National Advertisers, Inc. v. FTCTuesday, October 26, 20108:23 PM
5.2-5.7 Page 173
Professor's Notes:Held-
Notes & Questions (pg.260)
Notes & Questions (pg.260)Tuesday, October 26, 20108:23 PM
5.2-5.7 Page 174
Statement of findings and reasons should reflect the factual, legal, and policy foundations for the action taken. It should be a concise statement of basis and purpose.
(1)APA § 553(c) requires agencies to provide “a concise statement of [a rule’s] basis and purpose”a)
Agencies must show how the rule is supported by the material gathered, how conflicting interests were resolved. b)Preambles are not required, but courts have required them for purposes of judicial review. c)
Findings and Reasons1.5.6 Findings & Reasons
5.6 Findings & ReasonsTuesday, October 26, 20108:24 PM
5.2-5.7 Page 175
National Ass'n of Independent Insurers v. Texas Dep't of Insurance925 S.W.2d 667 (Tex. 1996)
Agencies must provide sufficient explanation of why they adopt regulations, the data upon which they based their decisions, and the comments (and their responses to those comments) for and against the proposed regulation.
o
Here, the Texas Supreme Court found that the Department’s statements justifying the regulations were merely conclusory statements, not explanations.
o
Nat’l Assoc. of Indep. Insurers v. Tex. Dep’t of Ins. (1996) - p. 262
Professor's Notes:Held-
National Ass'n of Independent Insurers v. Texas Dep't of InsuranceTuesday, October 26, 20108:24 PM
5.2-5.7 Page 176
Professor's Notes:Held-
Notes & Questions (pg.266)
Notes & Questions (pg.266)Tuesday, October 26, 20108:25 PM
5.2-5.7 Page 177
Professor's Notes:Held-
APA § 553 – all legislative rules with general applicability must be published in the Fed Reg.a)
Does the unpublished directive change existing rules, policy, or practice?;(1)Does it deviate from the plain meaning of the statute or regulation at issue?; or(2)
This test grants more discretion to agencies than Powderly v. Schweiker(9th Cir. 1983).
o
P suspended from being a food stamp merchant, and AJ imposed penalty based on unpublished staff instruction.
o
9th Cir. upheld the rule, finding that it passed the substantive rights test.
o
Nguyen v. United States (1987) (Substantive Rights Test) - Note 3, p. 276
Does it have binding force that narrowly limits administrative discretion?(3)
Substantive Rights Test of whether an unpublished policy or guidance “adversely affects” a member of the public’s “substantive rights,” requiring publication in the Federal Register
b)
Duty to Publish1.
Rule doesn’t take effect until 30 days after publishing in Fed. Registera)BUT E.O. 12866 suggests 60 days for any “significant” ruleb)
Rowell v. Andrus (10th Cir. 1980) - p. 277
If an agency violates this provision, courts USUALLY don’t vacate the rule; they require that the agency delay the rule’s effectiveness.
c)
APA § 553(d) – Deferred Effectiveness2.
5.7 Issuance & Publication
5.7 Issuance & PublicationTuesday, October 26, 20108:25 PM
5.2-5.7 Page 178
Powderly v. Schweiker704 F.2d 1092 (9th Cir. 1983)
Lady had to pay back SS pymts for dead husband
Contrary to her contention, the overpymt provisions in the claim manual do not change any existing law or policy, nor do these provisions remove any previously existing rights of social security recipients
Professor's Notes:Held-
Powderly v. SchweikerTuesday, October 26, 20108:25 PM
5.2-5.7 Page 179
Professor's Notes:Held-
Notes & Questions (pg.275)
Notes & Questions (pg.275)Tuesday, October 26, 20108:25 PM
5.2-5.7 Page 180
5.9 Negotiated RulemakingxxxxxxxxxTuesday, October 26, 20108:26 PM
5.9xx Page 181
Professor's Notes:Held-
A Guide to Federal Agency Rulemaking by Jeffrey S. Lubbers
A Guide to Federal Agency Rulemaking by Jeffrey S. LubbersTuesday, October 26, 20108:27 PM
5.9xx Page 182
Professor's Notes:Held-When Smoke Gets In Your Eyes: Regulatory Negotiation & the Public Interest - EPA's Woodstove Standard
by William Funk
When Smoke Gets In Your Eyes: Regulatory Negotiation & the Public Interest - EPA's Woodstove Standard by William FunkTuesday, October 26, 20108:27 PM
5.9xx Page 183
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Notes & Questions (pg.301)Tuesday, October 26, 20108:28 PM
5.9xx Page 184
Chapter 6 Policymaking AlternativesTuesday, November 09, 20101:34 PM
6.1-6.3 Page 185
Professor's Notes:Held-
6.1 Exemptions from Rulemaking Procedure
6.1 Exemptions from Rulemaking ProcedureTuesday, November 09, 20101:35 PM
6.1-6.3 Page 186
Professor's Notes:Held-
6.1.1 Good Cause Exemptions
6.1.1 Good Cause ExemptionsTuesday, November 09, 20101:35 PM
6.1-6.3 Page 187
Jifry v. Federal Aviation Administration370 F.3d 1174 (D.C. Cir. 2004)
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Jifry v. Federal Aviation AdministrationTuesday, November 09, 20101:37 PM
6.1-6.3 Page 188
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Notes & Questions (pg.308)Tuesday, November 09, 20101:37 PM
6.1-6.3 Page 189
Professor's Notes:Held-
6.1.2 Exempted Subject Matter
6.1.2 Exempted Subject MatterTuesday, November 09, 20101:38 PM
6.1-6.3 Page 190
Professor's Notes:Held-
Notes & Questions (pg.312)
Notes & Questions (pg.312)Tuesday, November 09, 20101:38 PM
6.1-6.3 Page 191
Professor's Notes:Held-
6.1.3 Procedural Rules
6.1.3 Procedural RulesTuesday, November 09, 20101:38 PM
6.1-6.3 Page 192
Public Citizen v. Department of State276 F.3d 634 (D.C. Cir. 2002)
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Public Citizen v. Department of StateTuesday, November 09, 20101:38 PM
6.1-6.3 Page 193
Professor's Notes:Held-
Notes & Questions (pg.317)
Notes & Questions (pg.317)Tuesday, November 09, 20101:39 PM
6.1-6.3 Page 194
Professor's Notes:Held-
6.1.4 Nonlegislative Rules
6.1.4 Nonlegislative RulesTuesday, November 09, 20101:40 PM
6.1-6.3 Page 195
Professor's Notes:Held-
6.1.4a Legislative & Nonlegislative Rules
6.1.4a Legislative & Nonlegislative RulesTuesday, November 09, 20101:40 PM
6.1-6.3 Page 196
Professor's Notes:Held-
6.1.4b Policy Statements
6.1.4b Policy StatementsTuesday, November 09, 20101:40 PM
6.1-6.3 Page 197
Professionals & Patients for Customized Care v. Shalala5th Cir. 1995
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Professionals & Patients for Customized Care v. ShalalaTuesday, November 09, 20101:41 PM
6.1-6.3 Page 198
Professor's Notes:Held-
Notes & Questions (pg.326)
Notes & Questions (pg.326)Tuesday, November 09, 20101:41 PM
6.1-6.3 Page 199
Professor's Notes:Held-
6.1.4c Interpretive Rules
6.1.4c Interpretive RulesTuesday, November 09, 20101:42 PM
6.1-6.3 Page 200
Hoctor v. United States Department of Agriculture7th Cir. 199682 F.3d 165
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Hoctor v. United States Department of AgricultureTuesday, November 09, 20101:43 PM
6.1-6.3 Page 201
Professor's Notes:Held-
Notes & Questions (pg.337)
Notes & Questions (pg.337)Tuesday, November 09, 20101:43 PM
6.1-6.3 Page 202
Professor's Notes:Held-
6.2 Required Rulemaking
6.2 Required RulemakingTuesday, November 09, 20101:44 PM
6.1-6.3 Page 203
NLRB v. Bell Aerospace Co.US Supreme Court 1974416 US 267
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
NLRB v. Bell Aerospace Co.Tuesday, November 09, 20101:44 PM
6.1-6.3 Page 204
Professor's Notes:Held-
Notes & Questions (pg.346)
Notes & Questions (pg.346)Tuesday, November 09, 20101:44 PM
6.1-6.3 Page 205
Professor's Notes:Held-
6.3 Rulemaking Petitions & Agency Agenda-Setting
6.3 Rulemaking Petitions & Agency Agenda-SettingTuesday, November 09, 20101:45 PM
6.1-6.3 Page 206
Massachusetts v. Environmental Protection AgencyUS Supreme Court 2007549 US 497
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Massachusetts v. Environmental Protection AgencyTuesday, November 09, 20101:45 PM
6.1-6.3 Page 207
Professor's Notes:Held-
Notes & Questions (pg.358)
Notes & Questions (pg.358)Tuesday, November 09, 20101:46 PM
6.1-6.3 Page 208
Professor's Notes:Held-
Chapter 9 Scope of Judicial Review
Chapter 9 Scope of Judicial ReviewTuesday, November 09, 20101:47 PM
Ch.9 Page 209
Professor's Notes:Held-
9.1 Scope of Review of Agency Findings of Basic Fact
9.1 Scope of Review of Agency Findings of Basic FactTuesday, November 09, 20101:47 PM
Ch.9 Page 210
Professor's Notes:Held-
9.1.1 The Substantial Evidence & Clearly Erroneous Tests
9.1.1 The Substantial Evidence & Clearly Erroneous TestsTuesday, November 09, 20101:49 PM
Ch.9 Page 211
Universall Camera Corp. v. NLRBUS Supreme Court 1951340 US 474
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Universal Camera Corp. v. NLRBTuesday, November 09, 20101:49 PM
Ch.9 Page 212
Professor's Notes:Held-
Notes & Questions (pg.510)
Notes & Questions (pg.510)Tuesday, November 09, 20101:50 PM
Ch.9 Page 213
Professor's Notes:Held-
9.1.2 Independent Judgment & De Novo Review
9.1.2 Independent Judgment & De Novo ReviewTuesday, November 09, 20101:50 PM
Ch.9 Page 214
Professor's Notes:Held-
9.2 Scope of Review of Issues of Legal Interpretation
9.2 Scope of Review of Issues of Legal InterpretationTuesday, November 09, 20101:51 PM
Ch.9 Page 215
Professor's Notes:Held-
9.2.1 State Law Approaches
9.2.1 State Law ApproachesTuesday, November 09, 20101:51 PM
Ch.9 Page 216
Connecticut State Medical Society v. Connecticut Board of Examiners in PodiatryConnecticut 1988546 A.2d 830
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Connecticut State Medical Society v. Connecticut Board of Examiners in PodiatryTuesday, November 09, 20101:51 PM
Ch.9 Page 217
Professor's Notes:Held-
Notes & Questions (pg.522)
Notes & Questions (pg.522)Tuesday, November 09, 20101:52 PM
Ch.9 Page 218
Professor's Notes:Held-
9.2.2 The Chevron Doctrine
9.2.2 The Chevron DoctrineTuesday, November 09, 20101:52 PM
Ch.9 Page 219
Chevron U.S.A. Inc. v. Natural Resources Defense CouncilUS Supreme Court 1984467 US 837
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Chevron U.S.A. Inc. v. Natural Resources Defense CouncilTuesday, November 09, 20101:52 PM
Ch.9 Page 220
Professor's Notes:Held-
Notes & Questions (pg.531)
Notes & Questions (pg.531)Tuesday, November 09, 20101:53 PM
Ch.9 Page 221
Professor's Notes:Held-
9.2.3 Statutory Interpretation and the Chevron Doctrine
9.2.3 Statutory Interpretation and the Chevron DoctrineTuesday, November 09, 20101:53 PM
Ch.9 Page 222
FDA v. Brown & Williamson Tobacco Corp.US Supreme Court 2000529 US 120
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
FDA v. Brown & Williamson Tobacco Corp.Tuesday, November 09, 20101:53 PM
Ch.9 Page 223
Professor's Notes:Held-
Notes & Questions (pg.547)
Notes & Questions (pg.547)Tuesday, November 09, 20101:54 PM
Ch.9 Page 224
Professor's Notes:Held-
9.2.4 Informal Interpretations & the Skidmore Alternative
9.2.4 Informal Interpretations & the Skidmore AlternativeTuesday, November 09, 20101:54 PM
Ch.9 Page 225
Christensen v. Harris CountyUS Supreme Court 2000529 US 576
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Christensen v. Harris CountyTuesday, November 09, 20101:55 PM
Ch.9 Page 226
United States v. Mead Corp.US Supreme Court 2001533 US 218
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
United States v. Mead Corp.Tuesday, November 09, 20101:55 PM
Ch.9 Page 227
Professor's Notes:Held-
Notes & Questions (pg.559)
Notes & Questions (pg.559)Tuesday, November 09, 20101:55 PM
Ch.9 Page 228
Professor's Notes:Held-
This review standard is referred to as the "arbitrary and capricious" (A&C) or "abuse of discretion" test
Great variety of admin action is judicially reviewed under 706(2)(A) of the APA and similar provisions in state law: "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"
•
Courts use A&C test in reviewing the discretionary element of all kinds of agency actions, including formal and informal adjudications (i.e. Salameda & Overton Park)
•
Moreover, A&C standard is often to review of fact-finding in informal proceedings….that standard largely overlaps the "reasonableness" standard applied to agency legal interpretations under Chevron step two
•
This section addresses the A&C standard in context of judicial review of agency adjudication•next section addresses standard in context of rulemaking review•
9.3 Judicial Review of Discretionary Determinations in Adjudication
9.3 Judicial Review of Discretionary Determinations in AdjudicationTuesday, November 09, 20101:57 PM
Ch.9 Page 229
Citizens to Preserve Overton Park, Inc. v. VolpeUS Supreme Court 1971401 US 402
Facts:I-40, the proposed six-lane highway, was to cut through Overton Park, a 342-acre city park located near Memphis, Tennessee.
1.
The path of the road would sever the zoo from the rest of the park. 2.Petitioners contended that the Secretary’s announced approval of the road was invalid because he did not indicate why he believed there were no feasible and prudent alternative routes.
3.
In District Court, the Respondents argued that the Secretary did not have to make formal findings, and introduced affidavits specifically prepared for litigation to support the Secretary’s decision.
4.
The District Court and the Court of Appeals held that formal findings by the Secretary were not necessary, and refused to probe the mental processes of an administrative decisionmaker.
5.
Believing the Secretary’s authority wide and the reviewing courts’ narrow, they held that the affidavits contained no basis for a determination that the Secretary exceeded his authority.
6.
Were formal findings required? Was judicial review based solely on affidavits adequate? Issue:
APA Section:706 required the court to decide: 1) whether the Secretary acted within the scope of his authority; 2) whether the choice made was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;” and 3) whether the Secretary’s action followed the necessary procedural requirements
Rule:
Analysis:This case pointed toward procedural requirements in informal adjudication that are not specified in the APA. The United States Supreme Court was less deferential to agency administrators than the lower courts. Conclusion:Remanded to the District Court for plenary review of the Secretary’s decision. No, formal findings were not required under APA Section:706. A finding based solely on affidavits prepared for trial was insufficient. The review on remand was to be based on the whole administrative record that was before the Secretary at the time he made his decision. Dissent. None. Concurrence. (Labeled “Separate Opinion”) The Court of Appeals decision was wrong, but the case should go back to the Secretary of Transportation, rather than the District Court, to hold hearings on the topic before making a determination
Professor's Notes:Held-
Citizens to Preserve Overton Park, Inc. v. VolpeTuesday, November 09, 20101:57 PM
Ch.9 Page 230
Salameda v. Immigration & Naturalization Service7th Cir. 199570 F.3d 447
Facts:
Issue:
Rule:
Analysis:
Conclusion:
OVERVIEW: At a hearing before an immigration judge (IJ), the aliens conceded deportability but requested suspension of deportation under § 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C.S. § 1254(a)(1). The IJ turned down their request and the board affirmed. The court vacated and remanded, holding that the board failed to offer a rational justification for its order. The court noted that the statute provided for suspension when deportation would result in extreme hardship to the alien or to his spouse, parent, or child, who was a citizen of the United States, and that, in considering extreme hardship, the board was also required to consider the aliens' community assistance. The court found that the board disregarded community service as a factor. The court also found that the IJ refused to consider the hardship to the aliens' noncitizen child, who would be constructively deported with his parents, or to make the child a party to the proceedings. The court held that where a noncitizen child was not made a party, the hardship to him should also be considered.
OUTCOME: The court vacated the order denying the aliens' application for suspension of deportation. The court found that the board disregarded the aliens' community assistance as a factor in determining extreme hardship, contrary to the acknowledged standard. The court suggested that the board should also consider the hardship to the aliens' noncitizen child, who was not a party to the proceedings, yet would be constructively deported with his parents.
Professor's Notes:"an efficient bureaucracy is the greatest threat to liberty" a former democratic senator
-
Salameda v. Immigration & Naturalization ServiceTuesday, November 09, 20101:58 PM
Ch.9 Page 231
Professor's Notes:Held-
Notes & Questions (pg. 575)
Notes & Questions (pg. 575)Tuesday, November 09, 20101:58 PM
Ch.9 Page 232
Professor's Notes:Held-
9.4 Judicial Review of Discretionary Decisions in Rulemaking
9.4 Judicial Review of Discretionary Decisions in RulemakingTuesday, November 09, 20101:59 PM
Ch.9 Page 233
Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Ins. Co.US Supreme Court 1983463 US 29
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Ins. Co.Tuesday, November 09, 20101:59 PM
Ch.9 Page 234
Borden, Inc. v. Commissioner of Public HealthMass. 1983448 N.E.2d 367
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Borden, Inc. v. Commissioner of Public HealthTuesday, November 09, 20102:00 PM
Ch.9 Page 235
Professor's Notes:Held-
Notes & Questions (pg.592)
Notes & Questions (pg.592)Tuesday, November 09, 20102:00 PM
Ch.9 Page 236
Professor's Notes:
ORC 119.12-
KRC 13B.140-
Agency Adjudication-
Mandamus - require action...A writ issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.
-
Habeas corpus - tests govn't authority to hold-
Prohibition - excess of jurisdiction-
Certiorari - review discretion-
Quo warranto - inquire into the authority or right to office…can also apply to the rightto hold office in a corporation
-
Proscendendo or possibly spelled procedendo - A higher court's order directing a lower court to determine and enter a judgment in a previously removed case…opposite of cert
-
Injunction - A court order commanding or preventing an action. • To get an injunction, the complainant must show that there is no plain, adequate, and complete remedy at law and that an irreparable injury will result unless the relief is granted
-
Declaratory Judgment - A binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement. • Declaratoryjudgments are often sought, for example, by insurance companies in determining whether a policy covers a given insured or peril. -
-
(1) statutes preclude judicial review; or
(2) agency action is committed to agency discretion by law.
(a) This chapter applies, according to the provisions thereof, except to the extent that -
…
§ 701. Application; definitions§701(a)(2) of the Federal Administrative Procedure Act-
Chapter 10 Reviewability of Agency Decisions
being out of an adequate remedy at law(1)Officer exercises no discretion --> if officer has discretion than we go to cert(2)
Mandamus requires
Chapter 10 Reviewability of Agency DecisionsTuesday, November 09, 20102:01 PM
Ch.10 Page 237
Professor's Notes:Held-
10.1 Procedural Elements: Jurisdiction & Cause of Action
10.1 Procedural Elements: Jurisdiction & Cause of ActionTuesday, November 09, 20102:01 PM
Ch.10 Page 238
Professor's Notes:Held-
10.1.1 Jurisdiction of Reviewing Court
10.1.1 Jurisdiction of Reviewing CourtTuesday, November 09, 20102:03 PM
Ch.10 Page 239
Professor's Notes:Held-
10.1.2 Non-Statutory Review: Forms of Action
10.1.2 Non-Statutory Review: Forms of ActionTuesday, November 09, 20102:03 PM
Ch.10 Page 240
Professor's Notes:Held-
10.1.2 Non-Statutory Review: Forms of Action
10.1.2a Injunction & Declaratory JudgmentTuesday, November 09, 20102:04 PM
Ch.10 Page 241
Professor's Notes:Held-
10.1.2b Mandamus
10.1.2b MandamusTuesday, November 09, 20102:04 PM
Ch.10 Page 242
Professor's Notes:Held-
10.1.2c Certiorari
10.1.2c CertiorariTuesday, November 09, 20102:04 PM
Ch.10 Page 243
Professor's Notes:Held-
10.1.2d Other Writs
10.1.2d Other WritsTuesday, November 09, 20102:04 PM
Ch.10 Page 244
10.2 Didn't CoverTuesday, November 09, 20102:05 PM
Ch.10 Page 245
10.3 Didn't CoverTuesday, November 09, 20102:05 PM
Ch.10 Page 246
Professor's Notes:Held-
10.4 Preclusion of Judicial Review
10.4 Preclusion of Judicial ReviewTuesday, November 09, 20102:05 PM
Ch.10 Page 247
Bowen v. Michigan Academy of Family PhysiciansUS Supreme Court 1986476 US 667
Facts:The Secretary contended that Section:1395ff(b), which authorized “appeal by individuals” impliedly foreclosed administrative or judicial review of Part B by failing to authorize such review while simultaneously authorizing administrative or judicial review of any determination under Part A.
1.
Second, the Secretary asserted that Section:1395ii, which made Section:405(h) of the Social Security Act (SSA) applicable to the Medicare program, expressly precluded review not otherwise provided in the statute.
2.
Both the District Court and the Court of Appeals rejected the Secretary’s contention of judicial preclusion.
3.
Issue:Did Congress, in either Code Section:1395ff or Section:1395ii, bar judicial review of regulations promulgated under Part B of the Medicare program?Rule:The Court begins with the strong presumption that Congress intends judicial review of administrative action. This presumption will not be overcome without “persuasive reason to believe that such was the purpose of Congress.”Analysis:This was a unanimous decision regarding express preclusion by the Supreme CourtConclusion:Affirmed. No. A careful analysis of the statutory provisions and legislative history of Section:1395ff revealed that Congress intended to bar judicial review only of determinations of the amount of benefits to be awarded under Part B. A review of the legislative history of SSA Section:405(h) and Code Section:1395ii revealed that Congress intended to foreclose review only of “amount determinations.”
Professor's Notes:Held-
Bowen v. Michigan Academy of Family PhysiciansTuesday, November 09, 20102:07 PM
Ch.10 Page 248
Professor's Notes:Held-
Notes & Questions (pg.622)
Notes & Questions (pg.622)Tuesday, November 09, 20102:07 PM
Ch.10 Page 249
Professor's Notes:Held-
10.5 Commitment to Agency Discretion
10.5 Commitment to Agency DiscretionTuesday, November 09, 20102:08 PM
Ch.10 Page 250
Heckler v. ChaneyUS Supreme Court 1985470 US 821
Facts:Several prison inmates convicted of capital offenses and sentenced to death by lethal injection petitioned the Food and Drug Administration (FDA) alleging that the drugs to be used for their executions were not approved for use in human executions and therefore violated the Federal Food, Drug and Cosmetic Act (FDCA).
1.
When the FDA denied enforcement, the inmates brought suit claiming violations of the FDCA and requesting that the FDA be required to take enforcement actions.
2.
The district court granted summary judgment to the FDA holding that decisions declining to initiate enforcement proceedings were not judicially reviewable.
3.
The Court of Appeals for the District of Columbia Circuit reversed, finding that the decision not to begin an enforcement action was judicially reviewable under 5 U.S.C. Section 701(a)(2) and an abuse of discretion.
4.
Issue:Are decisions made by the FDA not to exercise enforcement authority over the use of drugs precluded from judicial review by Section 701(a)(2) of the Administrative Procedure Act, 5 U.S.C. Section 501 et seq. (APA)?Rule:
Analysis:
Conclusion:Yes, they are presumptively unreviewable. Refusals of administrative agencies to exercise enforcement authority involve a complicated balancing of factors, including agency allocation of scarce resources, which are not suitable for judicial review. Thus, they are presumptively "committed to agency discretion by law" under Section 701(a)(2). This presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers. In the instant case, the presumption of unreviewability was not overcome by the enforcement provisions of the FDCA. The FDCA's prohibition on "misbranding" of drugs and introduction of "new drugs," absent agency approval, does not supply relevant guidelines. Neither does the FDA's "policy statement" indicating that the agency considered itself "obligated" to take certain investigative actions nor the FDCA's provision that the Secretary need not report for prosecution minor violations of the Act supply relevant guidelines.
Professor's Notes:Held-
Heckler v. ChaneyTuesday, November 09, 20102:08 PM
Ch.10 Page 251
Professor's Notes:Held-
Notes & Questions (pg.631)
Notes & Questions (pg.631)Tuesday, November 09, 20102:08 PM
Ch.10 Page 252
10.6 Didn't CoverTuesday, November 09, 20102:09 PM
Ch.10 Page 253
Professor's Notes:Held-
Chapter 11 Standing to Seek Judicial Review & The Timing of Judicial Review
Chapter 11 Standing to Seek Judicial Review & The Timing of Judicial ReviewTuesday, November 09, 20102:09 PM
Ch.11 Page 254
Professor's Notes:Held-
11.1 Standing to Seek Review
11.1 Standing to Seek ReviewTuesday, November 09, 20102:10 PM
Ch.11 Page 255
Professor's Notes:Held-
11.1.1 Background & History of Standing Law
11.1.1 Background & History of Standing LawTuesday, November 09, 20102:10 PM
Ch.11 Page 256
Professor's Notes:Held-
11.1.2 Constitutional Standing Doctrines
11.1.2 Constitutional Standing DoctrinesTuesday, November 09, 20102:11 PM
Ch.11 Page 257
Lujan v. Defenders of WildlifeUS Supreme Court 1992504 US 555
Facts:The Endangered Species Act of 1973 (S7(a)(2)) required federal agencies to consult with the Secretary of the Interior to ensure that any authorized actions did not jeopardize endangered or threatened species or critically destroy natural habitats. A 1986 amendment to the act limited it scope to actions in the United States or on the high seas. Defenders of Wildlife and other organizations dedicated to wildlife conservation filed an action seeking a declaratory judgment that the new amendment erred by providing for a geographic limit on the original law.
Issue:Do the respondents have standing to sue?
Rule:Article III, Section:1 of the United States Constitution limits the jurisdiction of federal courts to “cases” and “controversies,” known as the doctrine of standing. To have standing, a plaintiff must have an injury-in-fact; there must be a causal connection between the injury and the conduct complained of; and it must be likely, rather than speculative, that the injury will be redressable by a favorable court decision.Analysis:
Conclusion:No. Even if the Court were to assume that the agency-funded projects at issue threatened listed species, there was no proof that these actions would produce "actual or imminent" injuries to particular respondents who might some day wish to visit the foreign countries in question. The Court disregarded the proposed theory of "ecosystem nexus" which claimed that any person who used any part of of a "contiguous ecosystem" adversed affected by a funded activity had standing to sue.
Professor's Notes:Held-
Lujan v. Defenders of WildlifeTuesday, November 09, 20102:11 PM
Ch.11 Page 258
Professor's Notes:Held-
Notes & Questions (pg.650)
Notes & Questions (pg.650)Tuesday, November 09, 20102:12 PM
Ch.11 Page 259
Professor's Notes:Held-
11.1.3 Standing Under the APA & the Zone of Interests Test
11.1.3 Standing Under the APA & the Zone of Interests TestTuesday, November 09, 20102:12 PM
Ch.11 Page 260
Association of Data Processing Service Orgs. (ADPSO) v. CampUS Supreme Court 1970397 US 150
Facts:Section:4 of the Bank Service Corporation Act of 1962 (Act) provides: “No bank service corporation may engage in any activity other than performance of bank services for banks.” A prior case by the Court of Appeals for the First Circuit interpreted Section:4 broadly as sufficient statutory aid to provide standing for another data processing company to contest the legality of a national bank performing data processing services.Issue:Was judicial review of the Comptroller’s decision precluded? Did the Petitioner allege that the challenged action caused injury in fact? Was judicial review of the Comptroller’s decision precluded?Rule:The “zone of interests” test for standing requires that the interest sought to be protected be the sort of interest the statute was designed to protect. Analysis:The Court’s interpretation of APA Section:702 reference to a “relevant statute” to mean the substantive terms of the agency’s statute, rather than the terms of any special review provisions specifically targeted at standing, conferred standing upon Petitioners that they would not have had under the traditional interpretation of the sectionConclusion:Reversed and Remanded. Petitioners satisfied the injury test, not only through their allegations that competition by national banks would entail a future loss of profits, but also with proof that the American National Bank and Trust Company was servicing two of Petitioners’ prior customers. Yes. Section:4 arguably brought bank competitors within the zone of interests the statute was designed to protect. There was no evidence that Congress sought to preclude judicial review of administrative rulings by the Comptroller as to the legitimate scope of activities available to national banks under the Bank Service Corporation Act or the National Bank Act. The statutes were both clearly relevant within the meaning of APA Section:702. Petitioners had standing to sue. Dissent. None. Concurrence. None
Professor's Notes:Held-
Association of Data Processing Service Orgs. (ADPSO) v. CampTuesday, November 09, 20102:12 PM
Ch.11 Page 261
Professor's Notes:Held-
Notes & Questions (pg.660)
Notes & Questions (pg.660)Tuesday, November 09, 20102:13 PM
Ch.11 Page 262
Professor's Notes:Held-
11.2 Timing of Judicial Review
11.2 Timing of Judicial ReviewTuesday, November 09, 20102:16 PM
Ch.11 Page 263
Professor's Notes:Held-
11.2.1 Introduction
11.2.1 IntroductionTuesday, November 09, 20102:16 PM
Ch.11 Page 264
Professor's Notes:Held-
11.2.2 Final Agency Action
11.2.2 Final Agency ActionTuesday, November 09, 20102:17 PM
Ch.11 Page 265
FTC v. Standard Oil Co. of California (SOCAL)US Supreme Court 1980449 US 232
Facts:The FTC’s complaint was issued under Section:5 of the Act, which authorized the Commission to serve its complaint and notice of a hearing if it had “reason to believe” the company was “using any unfair method of competition or unfair or deceptive act or practice in or affecting commerce.” Soscal’s complaint in District Court alleged that the Commission had issued its complaint without having reason to believe Soscal was violating the Act. In short, Socal claimed that political pressure for a public explanation of the gasoline shortages of 1973 forced the Commission to issue a complaint against the major oil companies, despite insufficient investigation. The District Court dismissed the complaint, but the Court of Appeals reversedIssue:Was the FTC’s issuance of a complaint upon the oil companies a “final agency action” subject to judicial review before the administrative adjudication concluded?Rule:Agency action must be final before it is reviewable by the courts.Analysis:The Commission’s issuance of a complaint was not a definitive ruling or regulation. It had no legal force or practical effect upon Sosal’s daily operation of business, other than the disruptions that accompany any litigation. Immediate judicial review would have served neither efficiency nor enforcement of the Act. Conclusion:No. Reversed and remanded for a dismissal of the complaint. Because the Commission’s issuance of a complaint averring reason to believe that Socal had violated the Act was not a “final agency action” under Section:10(c) of the APA, it was not judicially reviewable before administrative adjudication concluded. Dissent. None. Concurrence. The initiation of a complaint is not “agency action” within the meaning of APA Section:551
Professor's Notes:Held-
FTC v. Standard Oil Co. of California (SOCAL)Tuesday, November 09, 20102:17 PM
Ch.11 Page 266
Professor's Notes:Held-
Notes & Questions (pg.668)
Notes & Questions (pg.668)Tuesday, November 09, 20102:17 PM
Ch.11 Page 267
Professor's Notes:Held-
11.2.3 Exhaustion of Administrative Remedies
11.2.3 Exhaustion of Administrative RemediesTuesday, November 09, 20102:17 PM
Ch.11 Page 268
Portela-Gonzalez v. Secretary of the Navy1st Cir. 1997109 F.3d 74
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Portela-Gonzalez v. Secretary of the NavyTuesday, November 09, 20102:18 PM
Ch.11 Page 269
Professor's Notes:Held-
Notes & Questions (pg.674)
Notes & Questions (pg.674)Tuesday, November 09, 20102:18 PM
Ch.11 Page 270
Professor's Notes:Held-
11.2.4 Ripeness
11.2.4 RipenessTuesday, November 09, 20102:19 PM
Ch.11 Page 271
Abbott Laboratories v. GardnerUS Supreme Court 1967387 US 136
Facts:Congress amended the Federal Food, Drug and Cosmetic Act in 1962 to require manufacturers of prescription drugs to print the “established name” (generic name) of the drug prominently and in type at least half as large as the type used for the “proprietary name” (brand name) on labels and other printed material. The purpose was to inform doctors and patients of drugs’ established names so that they could be purchased at lower prices. The Commissioner of Food and Drugs published proposed regulations (in addition to the Act) which required all drug labels and drug advertisements to put the established name next to the proprietary name every time the proprietary name appeared. A group of 37 drug manufacturers (the Petitioners) challenged the regulations on the grounds that the Commissioner exceeded his authority under the Act in issuing the regulations. The District Court granted injunctive and declaratory relief against the Commissioner. The Court of Appeals for the Third Circuit reversed, holding (1) that pre- enforcement review of the regulations was not permitted by the Act, and (2) that no relief was available under the Administrative Procedure Act because no actual case or controversy existed. The Supreme Court of the United States granted certiorari.Issue:Did Congress, by its Federal Food, Drug and Cosmetic Act, intend to forbid pre-enforcement review of the sort of regulations promulgated by the Commissioner? Were the issues ripe for judicial decision? Would withholding court consideration result in hardship to the parties?Rule:Pre-enforcement review is appropriate where not prohibited by the text of the Act itself, nor inconsistent with the legislative intent behind the Act. There is an actual case or controversy where there has been a “final agency decision” and withholding judicial consideration will result in hardship to the parties.Analysis:Courts should look to the text of the statute itself, along with the legislative history, to determine the intended application and scope. In this case, pre- enforcement review was not precluded by the Federal Food, Drug and Cosmetic Act. Pursuant to the Constitution of the United States, there must be an actual case or controversy in order for the Supreme Court of the United States to grant certiorari. Under the Administrative Procedure Act, “final agency actions” are considered ripe for judicial review. Here, the Petitioners would have suffered an operational and financial hardship if judicial consideration was withheldConclusion:Reversed and remanded to the Court of Appeals to review the District Court’s decision that the regulation was beyond the power of the commissioner. No. Nothing in the Act itself precludes pre-enforcement review. A review of the legislative history of the Act reveals that the specific review provisions were designed to provide an additional remedy, and not to cut down more traditional channels of review. The Act itself states, “The remedies provided for in this subsection shall be in addition to and not in substitution for any other remedies provided by law.” Yes, the issues presented were ripe for judicial consideration, and withholding judicial consideration would result in hardship to the parties. The parties agreed that the issue tendered was a purely legal one. The regulations in issue were reviewable as a “final agency action” under the Administrative Procedure Act because “when, as here, they are promulgated by order of the Commission and the expected conformity to them causes injury cognizable by a court of equity, they are appropriately the subject of attack.” The regulations would have a direct day-to-day impact on the operation of the companies, who either had to incur huge costs to comply with the regulations’ requirements or risk prosecution. Dissent. There were two unpublished dissents by Mr. Justice Fortas and Mr. Justice Clark. Concurrence. None
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Abbott Laboratories v. GardnerTuesday, November 09, 20102:19 PM
Ch.11 Page 272
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Notes & Questions (pg.686)
Notes & Questions (pg.686)Tuesday, November 09, 20102:20 PM
Ch.11 Page 273
Professor's Notes:Held-
11.2.5 Primary Jurisdiction
11.2.5 Primary JurisdictionTuesday, November 09, 20102:20 PM
Ch.11 Page 274
Farmers Insurance Exchange v. Superior CourtCal. 1992826 P.2d 730
Facts:
Issue:
Rule:
Analysis:
Conclusion:
Professor's Notes:Held-
Farmers Insurance Exchange v. Superior CourtTuesday, November 09, 20102:20 PM
Ch.11 Page 275
Professor's Notes:Held-
Notes & Questions (pg.695)
Notes & Questions (pg.695)Tuesday, November 09, 20102:21 PM
Ch.11 Page 276