Administrative Law - Fall 2006
Administrative Law and Regulatory Policy, Sixth
Edition by Stephen G. Breyer, Richard B. Stewart,
Cass R. Sunstein (2006) - ISBN: 0735556067
 You get to see what adlaw looks like from
inside the United States Supreme Court
The text focuses more on regulatory practice than
The text will be supplemented with more practical
materials on the WWW
Course WWW Site
See link:
Electronic Classroom Participation
We will use electronic polling devices as part of class
 (Assuming they work)
I will issue them next class
 You pick up yours at the beginning of class and drop it
off at the end of class
These let you answer multiple choice questions
 The answers to these questions count towards the
final grade, up to plus or minus 0.3 points
Administrative Law
Administrative law governs the
organization and functioning of
government agencies, and how their
actions are reviewed by the courts.
 Federal administrative law governs
agencies such as HHS and the IRS.
 Each state has its own version of
administrative law governing its own
state agencies.
Administrative Procedure Act (APA)
The set of laws in each state and the federal
government that specifies how the agencies in
that jurisdiction carry out basic functions such
as rule making, adjudications, and how citizens
can petition the agencies.
The APA only applies if the legislature has not
made special rules for a given agency.
Non-Agencies and Administrative
The President is not an agency.
The military is a quasi-agency
 An agency for many organizational and
procurement purposes
 Not an agency for military actions
DOJ, police departments, and courts
 Agencies for basic governance
 Not agencies for their substantive criminal
law work.
Organization and Control of
Administrative Agencies
What are the Roles of Agencies?
Agencies carry out government policy
Federal Agencies
 Department of Defense
State Agencies
 Health Department
 Department of Revenue
Local Agencies
 City Health Department
 County Hospital District
Public Health as the First
Administrative Law
The colonial governments provided
public health services that were taken
over by the states after independence.
Public health service hospitals and
quarantine stations were established by
the first US Congress.
City and state Boards of Health are
among the first government agencies.
Separation of Powers
The Constitutions of the federal and state
government establish the structure of
The US and State Governments are divided Into
three branches:
 Legislative Branch
 Executive Branch
 Judicial Branch
While state governments all follow the three
branch model, their organizations different
Agencies are Established by the
The agency enabling statute establishes the
 Powers and Duties
 Organization
 Funding
 Standards for Judicial Review of the Agency's
Some state agencies are established by the
state constitution or later constitutional
Delegation of Power to the Agency
General Grant of Power
 The legislature can give the agency broad powers with little
specific direction.
 Broad powers allow flexibility
Specific Grants of Power
 The legislature can give the agency very specific direction
powers and duties.
 This limits flexibility but assures that the legislative policy is
Contingent Grants of Power
 The legislature can give the agency powers that are triggered
by specific events.
 Some emergency powers are triggered by a disaster
Executive Control
Federal Agencies
 All enforcement agencies are in the Executive
 Congress can control agencies that only do studies
and investigations, such as the Congressional Budget
States have several elected executives that control
agencies, not a single head like the president.
 The governor controls most agencies.
 The attorney general controls the legal office.
 Other state offices, like state auditor, also have
elected heads.
Independent Agencies
Independent agencies are run by boards or commissions.
 Members have fixed terms and can only be removed for bad
 Terms are staggered
 Appointed by the President
 Securities and Exchange Commission is an example
 Can be appointed by the governor or other elected officials
 Can be statewide or local
 Boards of Health are appointed to hire and supervise the health
director to reduce political pressure on the agency.
Agencies are the Vehicle for
Carrying out Public Policy
Enforcement policy
 When does a business get a second chance
and when do they get closed?
 When do you use quarantine and isolation?
Fiscal policy
 Which diseases do you investigate when you
have limited staff?
 What programs are cut when the budget is
Changing Agency Policy
Executive branch control
 Replace the agency director
 Use Executive Orders to direct agency policy
 Change the enabling law
 Increase or eliminate the funding for agency functions
 Petition the agency to change and participate in pubic hearings
 Lobby the executive and legislature
 Elect different politicians in the executive and legislature
Federal, State, and Local Relations
Federal control of state and local government
 Congress can preempt state laws to assure
uniform policy.
 Congress can make state funding contingent
on adoption certain policies.
States have different models of local control
 The legislature determines the allocation of
 Some state health departments control the
local departments.
 Some local departments are independent.
Carrying Out Agency Policy
Administrative Rules
The Legislature can delegate the power to
make rules to the agency
 Some agencies do not have rulemaking
 Rules cannot exceed the authority in the
agency's enabling legislation or the
Properly promulgated rules have the same
effect as statutes
 Must give the public notice of proposed rules
 Must allow and consider public comment
Why Make Rules?
National standards can be adopted through
agency rules, harmonizing practice across
 National building codes
 CDC guidelines on food sanitation
 Recommendations of the Advisory Committee
on Immunization Practices
Rules give the public and regulated parties
Rules limit the issues that can be reviewed by
the courts
Public Participation in Rulemaking
Proposed rules must be published for
public comment.
The agency must take written comments.
Some states require public hearings if
requested by enough people.
Federal agencies sometimes use public
hearings on important policy issues.
The agency must review and consider the
When Agencies Make Decisions Adjudications
How is an adjudication different from a rule?
 Rules apply to everyone in the affected class.
 Adjudications decide questions in individual
cases and only bind those parties.
Parties to an adjudication are entitled to be
 Adjudications may include oral hearings.
 Some adjudications are done on written
documents only.
Administrative Law Judge (ALJ)
A fact-finder in the administrative law
ALJs usually act as inquisitorial judges
and try to assure that the case is fairly
presented and decided.
ALJ's do not make final decisions but
make recommended rulings to the
How are ALJs Different from
What does the judge know?
 Administrative law judges (ALJs) may use
their own knowledge of the subject.
 Judges can be disqualified if they know
about the subject.
Conflict of Interests
 ALJs often know the parties and may have
worked on the case.
 Judges in courts cannot know the case or the
The Adversary (Court) System
Judges act as referees and decide
whether the lawyers are proceeding by
the rules of procedure and evidence.
If the attorney makes a mistake, such as
neglecting important issues, the judge
does not intervene.
While Louisiana has a civil law tradition,
it uses common law adversarial courts.
The Inquisitorial (Agency) System
The role of the judge is to make sure that the
case is presented properly and that the result
is just.
The judge may ask questions and review the
evidence and can help an attorney to protect
the client.
 Inquisitorial courts are used in many civil law
 Agency adjudications look like the civil law
systems in Europe
How are Adjudications different
from Judicial Opinions?
ALJs are primarily fact finders.
ALJs often follow Attorney General Opinions.
Judge decide legal questions on their own.
ALJ decisions are recommendations to the
agency and may be changed by the agency.
An adjudication is not binding in other cases.
Court decisions can be binding on lower courts.
Agency Enforcement Tools
Permits and Licenses
You have to show you have met the standards set by
law or regulation before you get the license or permit.
 Standards must be clear.
 Must treat all applicants equally.
Conditioned on accepting enforcement standards
 You agree to be bound by the administrative rules.
 You must allow inspections during business hours.
 Licenses and permits can be revoked without a court
Inspections are Adjudications
The inspector determines the facts through the
The defendant may present its case explaining
the problem during the inspection.
The inspector must provide a written record.
Local government often allows appeals to the
city council.
The courts will defer to the inspector's findings
if the case is appealed to the courts.
Administrative Searches
License and permit holders may be inspected
without a warrant.
Other inspections may require an
administrative warrant.
Requirements for an administrative warrant.
 Unlike criminal warrants, administrative
warrants do not require probable cause.
 They require a list of the addresses to be
searched and the reasons for the search.
Administrative searches cannot be used when a
criminal warrant is necessary.
Administrative Orders
The first step in enforcement is to issue an order explaining the
violation and how to correct it
 Most persons comply with the order and this ends the problem
 If the person does not comply, the order proves that the person
was on notice of the problem
 In some cases there may also be a fine for not complying with
the order
If the target of the order does not comply, then the department
must seek a judicial order to force compliance
 Most agencies cannot make arrests or use force
 Violating a court order allows the courts to use their powers,
which include fines and imprisonment for contempt
Court Orders
 Orders to prevent an actions, such as operating a restaurant
 Temporary injunctions can be issued in emergencies when
there is not enough time for notice and a full hearing
 Permanent injunctions require notice to the affected party and
an opportunity for that party to be hear in court
Personal restriction orders
 These order individuals to refrain from dangerous behavior
 These can require treatment, such as participating in directly
observed TB treatment
 They can limit activities, such as preventing a typhoid carrier
from working in food service
The Advisory and Consultative Role
There are some agencies that do not have enforcement powers
 They do research and education
 They shape policy by funding other agencies or private projects
The CDC is a non-enforcement agency
 The CDC's primary role is providing guidance to state and local
health departments
 Most guidance is voluntary, but can be tied to the receipt of
grant funds
State and local health departments
 Departments with enforcement powers also have an important
research and educational role
 This includes epidemiology, health education, and technical
assistance to businesses such as restaurants
Acting in an Emergency
State and local health departments historically had
broad emergency powers.
 The courts recognize that public health powers must
be construed broadly in an emergency
 Unless limited by the legislature, they may act
without special laws.
Limits on Emergency Actions
 Knowing what to do is more important than the law.
 Emergency actions must be grounded in good public
health practice.
 Large scale restrictions, such as evacuations or
quarantine, depend on public cooperation.
Judicial Review
Standards for Judicial Review of
Agency Activities
Does the activity violate the US
constitution or treaties?
Does a state agency activity violate the
state constitution?
Is the agency activity allowed by the
agency's enabling act?
Is the activity prohibited by other laws?
Is the agency following its own rules?
What if the Law is not Clear?
Traditional public health laws give the agency broad
powers without detailed statutory guidance
Courts use a standard from an environmental law case,
Chevron v. NRDC, to decide if the agency action is legal
 The first step is to determine if the law clearly
prohibits the agency action
 If the law would allow the action, then the second
step is to decide if the agency action is reasonable in
light of the objectives of the law
 If the action is reasonable under the statute, then it
is allowed
Courts Defer to Agency Policy
"It is not the function of a court to determine
whether the public policy that finds expression
in legislation of this order is well or ill
conceived. The judicial function is exhausted
with the discovery that the relation between
means and end is not wholly vain and fanciful,
an illusory pretense. Within the field where
men of reason may reasonably differ, the
legislature must have its way." (Williams v.
Mayor of Baltimore, 289 U.S. 36, 42 (1933)
Why Do the Courts Defer to the
 Legislatures do not have the expertise to draft
detailed directions for the health department
 Broad authority lets the agency use its own
 Health departments must deal with new conditions
and emergencies that were not anticipated by the
 If the courts required specific laws for all actions, it
would take months to years to get laws passed for
new problems
Can the Court Change the Agency
If the court finds the agency action is
illegal, it can prevent the agency from
A federal court cannot change an agency
ruling, only block it and send it back to
the agency for reconsideration.
Some state courts can change the agency
ruling and substitute their new ruling.
The Legislature Sets the Standard
for Judicial Review of Facts
De Novo Review
 The court ignores the agency decision
Review on the Record
 The court uses the record of the agency proceeding
but makes an independent review
Deference to the Agency
 The court upholds the agency decision unless it is
arbitrary and capricious
 This is the usual standard for review
No Review
 In some cases, such as the smallpox compensation
fund, the legislature does not allow judicial review
of the agency decision
Exhaustion of Remedies
Many agencies provide an internal appeals or
review process for agency decisions
 The courts require that persons who want to
challenge agency actions in court first go
through all the agency appeals
 The court does not require exhaustion of the
agency process if the agency is acting
If the litigant goes directly to court and the
court decides the action was legal, it will be
too late to finish the agency process
Public Access to Agency
Freedom of Information Acts
Provide public access to information held
by agencies
Have exceptions to protect trade secrets
and information that will affect agency
function or public safety
Modified by state and federal privacy
laws to protect personal information
Open Meetings Laws
Provide for public attendance at agency
governing body meetings.
Require public notice of meetings
Allow for closed meetings on personnel
matters and other topics such as bids that
require secrecy
The Non-Delegation Doctrine - the Old
Was Congress meant to be the only source of
Were the courts meant to be the only bodies that
made trial like decisions?
The constitution is ambiguous because the
founders did not foresee a large and active federal
While the courts complained, they did not hold
laws delegating power unconstitutional
The Non-Delegation Doctrine - the New
Franklin Roosevelt was elected to end the Great
Roosevelt was bitterly hated by many business
and moneyed interests
Roosevelt was the first president to use
government spending and public works to try to
stimulate the economy
Roosevelt also set up agencies such as the SEC
to regulate business and encouraged others
such as the FCC to be more aggressive
Court Packing Plan
1935 - Supreme Court struck provisions of the
National Industrial Recovery Act, arguing that
Congress had exceeding its powers in setting up
the agency
Roosevelt Threatened to Pack the Court with
additional members until he got a majority
 "Switch in time saves nine"
The Court did not strike any more laws on a
delegation theory.
Transformation of the Delegation Question
The United States Supreme Court moved
from questions about the power to delegate
to whether Congress had given sufficiently
clear guidance to allow the agency to act
What is the Real Question?
The agency can act on a very vague delegation
The question becomes whether the statute’s
purpose is too vague to allow judicial review
 What standards must the court use to decide if
the agency has overstepped its delegated
 If the law is too broad, can the court determine
the intent of Congress?
What has Replaced the Delegation
Does the law provide an "intelligible
principle that can be judicially reviewed"
End of the Non-Delegation Wars
When we get to judicial review, we will
explore what constitutes a sufficient
intelligible principle
The Appointments Process
The ultimate control over an agency is through hiring and
firing agency personnel, or at least through having that
option available
There are few cases on the appointments process so the
constitutional limitations are unclear
More critically, all of the decisions are split courts, which
highlights the constitutional ambiguity
Most of these cases could have been decided the other
way and probably not have fundamentally changed the
Art II, sec. 2, cl 2 - the Appointments
"[The President] shall nominate, and by and with
the Advice and Consent of the Senate, shall
appoint... all other Officers of the United States,
whose Appointments are not herein otherwise
provided for, and which shall be established by
Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they
think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments.“
Officers of the United States
Appointed by the president with advice and
consent of the senate
Major policy role and answer to the
Inferior offices
Can be appointed by the president, the
department heads, or the courts
No advice and consent
Limitations in the Enabling Legislation
Congress creates and shapes the executive branch
 Without specific appropriations, there would be no
White House and the president would have to rent
space from his own pocket
Congress follows the Constitutional guidelines for
 Congress makes the close calls
Congress can impose additional requirements
 Limitations on who can be appointed as in the FEC
 Limitations on removal, as in independent agencies
Tenure of Office Act – 1867
If Congress is silent on removal, the officer serves
at the discretion of the President
This Act limited the right of presidents to remove
cabinet members without the consent of the
 President Andrew Johnson removed the
Secretary of War
 Was impeached, but not removed by one vote
There are now no limitations on removal of Cabinet
Myers v. US, 272 US 52 (1926)
Why all this concern about postmasters?
President Wilson discharged an Oregon postmaster
without cause
Postmaster sued for back pay under a law passed after
the Tenure in Office Act that required the senate to
approve appointment and removal of postmasters
Chief Justice and Ex-President Taft wrote the opinion,
which found that the Tenure in Office Act and related
acts an unconstitutional limit on presidential power.
Humphrey’s Executor v. US, 295 US 602
Less than 10 years later, Meyers is again at issue
- what is the political change over that period?
Why was the FTC controversial at that time?
What was the restriction on removing FTC
 As a post-Myer's requirement, congress only
allowed FTC commissioners to be removed for
good cause
Myers Redux
How did the lawsuit arise?
 President fired Humphrey from the FTC
 Humphrey died and his executor sued for the pay for
the rest of his term
Did the court change its view on the removal power?
 The court said this exceeded the president's power
What type of agency does this create?
 This is the first case to really recognize the
independent agency
Why did the court allow this status for the
The court explains that the FTC exists to carry out
specific policies spelled out by congress and is
not meant to an arm of the executive branch
The court focuses on the quasi-judicial functions
of the agency, which were more unusual at the
time, but are no longer limited to independent
This quasi-judicial analysis has not been
important in the latter cases
Weiner v. US, 357 US 349 (1958)
War Claims Commission
 What was the role of the commission?
What was the statutory provision for removal?
Why did Eisenhower want to remove the
What is the Justification for Limiting the
President's Removal Power?
What politically important decisions does the
commission make?
Why would congress want to limit the president's
authority over the commissioner?
What did the court decide about the President's
right to remove a commissioner?
When can the President Remove an
Independent Agency Commissioner?
In theory the president could state a cause and
fire a commissioner, but it has not happened
It has not been an issue because they get
hounded out of office if there is cause
What are the Implications of an
Independent Agency?
Who really controls an independent agency?
Does this subvert separation of powers?
What is the ultimate political control?
What would be the result of allowing the president
to remove commissioners and replace them with
his own?
How does this work in agencies under executive
Civil Service
Congress developed the Civil Service to
protect workers from losing their jobs every
time the administration changed
Most personnel are civil service and can
only be fired for cause with due process
 Limited due process for security agencies
 This was carried over and broadened in
the Homeland Security Agency
Pros and Cons of the Civil Service
Why is important to you if you want to be a
government lawyer?
What are the problems with the system?
How high should it go?
Career track problem for senior people
without lucrative outside jobs
 Health Directors
INS v. Chadha, 462 U.S. 919 (1983)
This is an important case about the relationship
between Congress and agencies
What is the legislative veto as used in this case?
Why was it efficient from the point of view of
The legislative veto was very common at the time
Chadha was decided
Background on Deportation
What is the agency?
Why did Congress give the DOJ the right to
decide whether aliens should be allowed to
stay in the U.S.?
Why did they want to retain a say in
deportation proceedings?
Why is Congress ambivalent about
Chadha’s Situation
Did Chadha enter the country legally?
How did he become deportable?
The DOJ had the discretion under 244 to
stay deportation
Statutory Standard to Stay Deportation (§
has been physically present in the United States for a
continuous period of not less than seven years
immediately preceding the date of such application,
and proves that during all of such period he was and is
a person of good moral character;
and is a person whose deportation would, in the opinion
of the Attorney General, result in extreme hardship to
the alien or to his spouse, parent, or child, who is a
citizen of the United States or an alien lawfully admitted
for permanent residence."
Legislative Veto
DOJ did stay deportation
What is the role of the House of
Representatives in the law challenged by
Chadha ?
If they had not acted, would Chadha have
been able to stay in the country?
The DOJ joined Chadha in challenging the law
 Why did this produce a "case and controversy"
 What is the purpose of the case and
controversy provision?
Who is the real adverse party in Chadha?
How Broad is the Congressional Power
over Aliens?
"To establish an uniform Rule of
Naturalization," combined with the
Necessary and Proper Clause, grants it
unreviewable authority over the regulation
of aliens.
What is the argument that this is a good
"Since 1932, when the first veto provision was
enacted into law, 295 congressional veto-type
procedures have been inserted in 196 different
statutes as follows: from 1932 to 1939, five
statutes were affected; from 1940-49, nineteen
statutes; between 1950-59, thirty-four statutes;
and from 1960-69, forty-nine. From the year 1970
through 1975, at least one hundred sixty-three
such provisions visions were included in eightynine laws."
What if it is a good law?
... the fact that a given law or procedure is
efficient, convenient, and useful in facilitating
functions of government, standing alone, will not
save it if it is contrary to the Constitution.
Convenience and efficiency are not the primary
objectives -- or the hallmarks -- of democratic
government and our inquiry is sharpened rather
than blunted by the fact that congressional veto
provisions are appearing with increasing
frequency in statutes which delegate authority to
executive and independent agencies
What is the Constitutional Process for
Enacting a Law?
What was the Great Compromise?
Why was it critical to the ratification of the
How is the senate different from the house?
Why is bicameralism key to making the
Great Compromise work?
Checks and Balances
How is does bicameralism it fit into the
checks and balances of the US
Does the constitution require the states to
have bicameral legislatures?
How does the legislative veto violate
How might presenting this to the senate
have changed the proceedings?
Presidential Veto
Why does the constitution give the president
a veto?
Who did they have in mind as president
when they put the veto in?
What can Congress do it the president
vetoes a bill?
Presentment Clause
What is the president’s role once legislation has
passed the house and senate?
What if he does not sign it?
pocket veto - The Constitution grants the
President 10 days to review a measure passed by
the Congress. If the President has not signed the
bill after 10 days, it becomes law without his
signature. However, if Congress adjourns during
the 10-day period, the bill does not become law.
When may Houses of Congress Act
(a) The House of Representatives alone was given the
power to initiate impeachments. Art. I, § 2, cl. 5;
(b) The Senate alone was given the power to conduct trials
following impeachment on charges initiated by the House
and to convict following trial. Art. I, § 3, cl. 6;
(c) The Senate alone was given final unreviewable power
to approve or to disapprove Presidential appointments.
Art. II, § 2, cl. 2;
(d) The Senate alone was given unreviewable power to
ratify treaties negotiated by the President. Art. II, § 2, cl. 2.
What is the significance of these narrow
The Ruling
Why did the court find this was a major
constitutional issue?
What did the court rule?
Has this crippled government function?
Does it strengthen agency powers?
Congress enacted a law requiring notice of
certain agency actions and created a delay
in their implementation to allow it to pass a
law to override them
It is much harder to do, which leaves the
agencies more latitude than before Chadha
Bowsher v. Synar, 478 US 714 (1986)
May Congress control the removal of an officer
with executive branch functions?
What is the general power of congress to remove
executive and judicial officers?
What is the Separation of Powers Issue?
What did the Comptroller General do that effected
the president's powers?
Why does this create a separation of powers
What if Comptroller only prepared a report to
What did the court find?
President Nixon and the Origin of the
Independent Counsel
The Saturday night massacre
Why do the liberals really hate Bork?
 He carried out Nixon's order to fire Cox
Nixon's firing of the independent prosecutor
was the background for this law
What was Clinton's biggest political
Not vetoing the renewal of the Independent
counsel law
Hubris - it had been attacking Republicans
and he was going to have the most ethical
administration in history
Morrison v. Olson, 487 US 654 (1988)
Morrison was being investigated by the
independent counsel
He claimed that the office was
unconstitutional because the independent
counsel was not under the control of the
Appointing the Independent Counsel
The AG requests an independent counsel
Who makes the appointment?
 Three judge panel appoints the counsel
Can the Independent Counsel be removed
by someone under the control of the
 The AG can remove for good cause,
mental disability, or other good reasons
What was the key issue in Olson?
Key issue is the limitation of the removal
power to good cause, rather than at-will
Does this impermissibly interfere with the
president's power to carry out the laws?
Majority says no, rejects the use of "quasilegislative/quasi-judicial" labels and focuses
on separation of powers
How did the court modify
Changed to a core function standard
 Is it an "inferior" official - yes, because of the
limited mandate
 Is this a critical area for the president to control
the exercise of discretion? - no, that is why it is
 Does the president retain enough control? yes, good cause is good enough, and this
exercised through someone (AG) the president
Intimidation by the IC
Scalia sees this as a stark limitation on the
president's power to exclusively control the
executive branch
He points out that while the IC may not intimidate
the president, it will affect executive branch
officers who are subject to what seems political
Was Scalia Right?
What was he worried about as regards the power
of the office?
 He stresses the broad powers of the IC
What would it cost you to be investigated?
Was Scalia right about the impact of the IC?
How did Reno solve the problem for Gore?
 Reno figured out how to solve the problem there is no review of her refusal to appoint an
Mistretta v. US – 1989
This case attacked the US Sentencing
Commission as an impermissible limitation
on the Judicial Branch
What was the purpose of the US Sentencing
 Meant as a liberal attack on disparate
sentencing that resulted in the poor and
minorities receiving longer sentences,
How did the Sentencing Commission
Affect Sentencing?
All sentences were made longer and the judges
lost discretion to shorten them.
While white collar criminals did more jail time,
drug offenders and the like did a lot more time.
Also limited and eliminated various ways to
shorten a sentence.
The Mistretta Ruling
The Court upheld this commission because of its
peculiar nature, finding that it did not unduly affect
the judicial branch
Is there any right to judicial discretion?
 Probably limited by the power of congress to set
sentences - nothing says judges are allowed
sentencing discretion
The sentencing guidelines have been limited in a
later case.
Summing Up
Inferring Tenure
What is the assumption if there is no term of
 If there is no term of office, the starting
assumption is that the official serves at the
pleasure of the executive
What if it says good cause?
 This is true even if there are conditions
such as good cause on removal otherwise the official could stay in office
How does this change if there is a term of
If there is a term of office, then there is stronger
argument that the executive cannot remove at will,
but this really depends on the court deciding
whether there is a policy reason that the
appointment should have some freedom from
executive control
Thus independent agencies would get more
protection than the executive's staff
Delegation of Adjudicatory Power to
This mirrors some of the issues raised by
the delegation of rulemaking powers
Can Congress delegate the right to decide
individual disputes to agencies?
This is not a critical issue for this course
Article III Judges
 Lifetime tenure
 Cannot reduce salary
 Cannot fire, only impeach
 Cannot discipline
Why do we have these protections?
How are ALJs different?
Civil service protections
 Can be fired
 Can have salary lowered, but hard to do
 Can set work standards and discipline
How are the pressures different than those
on an Article III judge?
Adjudication of Public Rights
Public rights have an evolving definition
 One definition is that these are rights created by
congress, such as the right to government land or
welfare benefits
One set of cases indicates that since Congress creates
these rights, they can set how they are awarded
 Congress can set up compensation that is not related
to real facts
 Remember this later when we see the "bitter with the
sweet" doctrine
Can an Agency Adjudicate Private
The United States Supreme Court invalidated
a law letting bankruptcy judges decide
contract issues in 1982 because it was not
reviewable by an Art. III judge
This was a narrow plurality decision driven by
the broad powers of bankruptcy courts
It has been implicitly limited by later cases
Commodity Futures Trading Commission
v. Schor
CFTC can adjudicate disputes between
clients and brokers, and award damages
Can also adjudicate counterclaims because
otherwise everything would go do court
Does Adjudication of Private Claims
Violate Separation of Powers?
A key question becomes the appeal rights to
the courts
 Orders must be enforced by the courts, so
they can be reviewed
 Decisions are subject to judicial review
We will see this in the judicial review section
as a debate over the proper record for
Right to Jury Trial
There is a right to a jury trial for certain federal
civil matters that were part of the common law
when the Constitution was adopted
The courts have construed these rights
narrowly, limiting them to their historical
antecedents, such as maritime cases
Many states do not allow adjudication of private
disputes under state constitutional open courts
 LA had to have a constitutional amendment to
allow worker's compensation
Limitations on Adjudication
An agency cannot imprison someone as a
Under federal and some state laws, a person
can be imprisoned for violating an agency
 Must get a criminal trial
 Regulation must pass the vagueness test
State v. Broom, 439 So.2d 357 (La. 1983)
Defendant was prosecuted for violating the
Louisiana Explosives Code
Challenged on void for vagueness and on nondelegation theories
On first review, the LA SC rejected the challenges
and found that he could be prosecuted for violating
an agency regulations
On rehearing, the Court found that prosecuting on an
agency rule violated separation of powers
State Separation of Powers
Wooley v. State Farm Fire and Cas. Ins. Co.,
893 So.2d 746 (La. 2005)
State Regulation of Insurance
McCarron-Ferguson Act - 1945
With a few exceptions, leaves the regulation of insurance
to the states
 Insurers are organized by state
 States do not have the information or expertise to do
the job
 Limits the risk sharing to small pools
 ERISA is the big exception - no regulation at all
Exempts insurance companies from antitrust laws
 Allows collusive action between the independent
Office of Insurance Commissioner
Who served as Insurance Commissioner prior to
What did the constitutional amendment of 1960
What powers and duties did the 1973 constitution
provide to the insurance commissioner?
Any problems with office over the past few
ALJs in LA
Prior to the creation of DAL, did the LA APA have
specific provisions authorizing ALJs?
Who employed them at this time?
Were there uniform criteria for selection?
 Should there be?
 Should they be lawyers?
Key Provisions of the DAL - 1995
The DAL shall handle all adjudications required by the LAPA,
 that the ALJ shall issue the final decision or order and
 the agency shall have no authority to override the decision or
 no agency or official thereof shall be entitled to judicial review
of an adjudication.
that the governor shall appoint, and the Senate confirm, a director
for DAL, who, in turn, shall employ the ALJs, and that the current
ALJs employed by the various affected agencies shall be
transferred to and employed in the DAL.
(Some agencies such as medical licensing are excluded)
Key Questions
Why go to a central panel of ALJs?
Why are the different backgrounds of the ALJs an
Why does finality mean now that the ALJs are
deciding legal and not just factual questions?
What do other states and the feds do?
What is the effect of having the ALJ bind the
agency without appeal, while allowing the
regulated party to appeal to the courts?
Courts in LA
Article V, sec. 1 vests the judicial power of the state in the courts
making up the judicial branch of government, the supreme court,
courts of appeal, district courts, and other constitutionallyauthorized courts.
 Further, La. Const. art. V, sec. 22(A) provides that all judges
shall be elected.
 Finally, Article V, sec. 16 grants district courts original
jurisdiction of all civil and criminal matters and appellate
jurisdiction as provided by law.
While a court's jurisdiction and judicial power traditionally flow
from these constitutional grants, Article II, secs. 1 and 2 also
establish the basis for inherent judicial powers which are not
specifically enumerated in the constitution.
How are Agencies Hybrids?
What are the legislative functions of an agency?
What are the executive functions?
What are the judicial functions?
Why are these only "quasi-judicial"?
What would be the problem if they were really
Does this make "quasi-judicial" a circular
Are DAL ALJs Judges - District Court
What factors did the district court focus on?
 Are these really legal factors?
 Why are they politically significant?
The Nature of the ALJ Decision in Wooley
What issue was before the ALJ?
Is this an appropriate question for an ALJ?
Did the court see the ALJs deciding these cases
as acting as a part of the Department of
Why is this a critical part of the opinion?
What did the LA Supreme Court Find?
DEQ decisions are not part of the traditional civil court
matters as defined in the 1973 constitution.
The testimony in the record reveals that ALJs do not
have the power to enforce their decisions and orders, a
power that unquestionably lies in Article V courts.
The ALJs simply are not constitutionally allowed to
exercise the judicial power of the state and Act 739 does
not impermissibly attempt to authorize the exercise of
judicial power.
The ALJs make administrative law rulings that are not
subject to enforcement and do not have the force of law.
Who does have the enforcement power?
What did the legislature intend for the agency to
do with the ALJ's ruling?
Did the court ignore the plain language of the
What would they have to rule if they read the law
the way legislature intended?
Why would they dodge this?
You Are Counsel for State Farm
What are you worried that the agency will do?
 How would you have to fight that?
 What court would you end up in?
Can you mandamus the agency to approve it?
 Bonvillian v. Department of Ins., 906 So.2d 596, 20040332 (La.App. 1 Cir. 05)
Do you tell them to go ahead and use the policy based on
the ALJ's ruling?
 What about the res judicata act?
Does the Res Judicata Statute, La. R.S.
13:4231, Apply?
Pursuant to this statute, then, a second action is precluded when all
of the following criteria are satisfied:
 (1) the judgment is valid;
 (2) the judgment is final;
 (3) the parties are the same;
 (4) the cause or causes of action asserted in the second suit
existed at the time of final judgment in the first litigation; and
 (5) the cause or causes of action asserted in the second suit
arose out of the transaction or occurrence that was the subject
matter of the first litigation.
 Burguieres v. Pollingue, 02-1385, p. 8 (La. 2/25/03), 843 So.2d
1049, 1053.
Judgment by whom?
Changing this Ruling
Can the legislature change the Wooley decision
by statute?
 What about the law they just passed saying we
really mean it?
What was declared unconstitutional in Moore v.
 How was that fixed?
Has the legislature tried this with Wooley?
What about Limiting Appeals by the
How does this limit the power of the
commissioner, assuming that the ALJ's opinion
means anything?
What is the commissioner's legal argument for
declaring this part of the law unconstitutional?
What does the court say about the legislature's
authority to limit the office of Insurance
Does The Commissioner Have Another
Way to Get Into Court?
What is a declaratory ruling?
Why would it be exactly on point in this case?
Has the legislature prevented the commissioner
from requesting one?
 Could the legislature block this avenue of
This was remanded to the Appeals Court
Wooley v. State Farm Fire and Cas. Ins. Co., 928
So.2d 618, 2005-1490 (La.App. 1 Cir. 2/10/06)
On Remand:
The "existing facts" of the present controversy, for our
purposes, are simply these: The ALJ made an
adjudication that the RCU form met La. R.S. 22:621's
requirement of compliance with law, an adjudication
which is not subject to judicial review at the request of
the Commissioner and with which the Commissioner is
now bound by law to comply. A litigant not asserting a
substantial existing legal right is without standing to seek
a declaratory judgment, and such lack of standing
renders any judicial opinion sought an impermissible
advisory opinion. Such is the present position of the
Where does the Remand Leave the Case?
What is at issue before the Commissioner right
Do you want an ALJ deciding these issues?
Critiques of Regulatory Policy
Regulatory Successes
FDA since 1900
Environmental regulation
 Through the 1980s
Workplace safety
Civil rights
Regulations that Did Not Work so Well
Airline rates and routes
Trucking rates and routes
Who wins and who loses in economic
 Small towns and rural areas
 Unions
 Big business
Are We Better Off?
What has improved over the past 50 years?
 Health?
 Racism?
 Do more people have more stuff?
 What does it mean to be poor in the US over the past
50 years?
What has gotten worse?
 Income disparities?
 Role of expectations?
Why Doesn't the Public Trust Agencies?
What are examples of public distrust of agencies?
Are these justified?
What is the impact of this distrust?
Why don't people want to pay taxes?
Drug lag?
What are the tradeoffs in FDA regulation?
 Safety
 Effectiveness
 Should cost be part of the equation?
Why are consumers in a poor position to judge drugs?
 Background Information?
 Timeframe of action?
 Comparison with other drugs?
Why not let the market sort it out?
Health Care as a Regulated Industry
What are the problems facing health care in the
 What has happened to nature of disease over
the past 100 years?
 How does this complicate health care policy?
 What does this tell us about the Charity
Hospital system?
What are the financial incentives in health care?
How is Ethanol a Regulatory Problem?
Cost Benefit Analysis
How much should we spend to save a life?
How much to prevent injury?
How much should personal responsibility matter?
 personal protective gear?
CBA Costs - Table 3-1 - p. 151
What is the problem with lives saved analysis?
Are they the same lives for different risks?
What about disability?
What are the most cost effective regulations?
 Interesting that vaccinations and clean drinking
water are not here
Could We Spend the Money More Wisely?
What type of risks do we spend the most on with the least
 Asbestos abatement of stable asbestos in buildings
 Superfund risks
 Overstated health risks - LA cancer corridor
What risks get the least attention?
 Smoking?
 Immunizations?
 Primary care?
What is the Cost of Unemployment?
Economic costs to the individual
 Lost opportunities for your children
 Lost of assets, making recovery harder
Health costs
 Stress
 Reduced access to care
Should we do CBA at All?
Why not prevent all possible risks?
What are the trade offs?
How does the US concern with risks affect our
cost of business production?
When can preventing one risk cause another?
 Natural pesticides
 Smaller, lighter cars
 More expensive power?
Non-Agency Regulation: Tort and
Compensation Law
How is tort law a regulatory process?
Is it a democratic process?
 What is the public input?
 Who protects the public's interest in tort cases?
What are the standards for scientific decisionmaking?
 Breast implants?
 Erin Brockovich?
What are the standards for CBA?
What if later evidence shows that the verdict or
settlement was wrong?
Should We Control Personal Risk
Should consumers have the right to buy much cheaper
and better mileage cars that are less safe?
Should consumers have the right to use unapproved
 What if they are dying?
What about not getting their kids vaccinated?
 Smoking dope?
Impossible Tasks
Why do legislatures give agencies impossible
What are the possible agency responses?
What is the conflict between LSU owning both the
charity hospital system and the medical school?
What about the state regulating state owned
Civic Republicanism
How can agencies be better representatives for the whole
population than are the elected officials?
What are the pressures on elected officials?
How are these different for agencies?
 Independent agencies?
Should there be more public participation?
Should congress and the executive have to disclose all
contacts with the agency?
Regulatory Alternatives
Economic incentives and Taxes for
Environmental Risks
Tradeable permits for a fixed amount of pollution
 Would require the government to decide how
much pollution is OK, not to just focus on
 Lets industry see who can do it the most
What if you are downwind?
 Does an aggregate reduction, which benefits
more people, make you any happier?
Collective bargaining for working
conditions and safety
What are the limits on this?
How could we change them?
Is this a good idea?
Negative income tax rather than
Government Benefits
Proposed by Nixon
Why might a conservative argue for this?
 Should we let people choose what to do with
their money?
 Who could benefit?
What are the benefits in administrative costs over
the current benefits system?
What are the problems?
What about Natural Monopolies?
What are natural monopolies?
 Why not allow cable companies to compete for
business in a given community?
How can natural monopolies change with time?
 Telephones?
 IBM mainframe computers?
Can antitrust laws be an alternative?
Agency Personnel Issues
How does political control conflict with agency
 What are the problems with attracting good people to
 Could these be changed?
Will strict conflict of interest rules make agencies work
 Do you need industry expertise in the agency?
 FDA?
 Do you want people to stay in the agency for their
whole life?
Assignment for Thursday: Should We
Rebuild New Orleans?
Would NO be in better or worse funding position if they had
properly evacuated the folks before Katrina?
 What is the CBA for real evacuations?
What is the CBA?
 What are the trade-offs?
 Who should pay
What about the responsibilities of the homeowners?
 Should we bail them out?
 How much do you want to pay?
What about coastal erosion and subsidence?
 Should we rebuild before it is safe?
 If we do not rebuild, what happens to the CBA?
Judicial Review
Key Questions
When and why should the courts defer to the
agency's decision?
What can the court do when it rejects the agency's
 Federal v. state
What is the proper standard of review for agency
What is the law versus fact distinction?
What is the Court Reviewing? - The
Agency Record
The agency develops a written record of the proceedings
before it
This is like a trial transcript in that once it is completed, it
cannot be supplemented on judicial review
 The courts review agency actions as they would trial
court rulings, unless it is de novo review
In most cases rejecting an agency's decision or action,
the court remands for that the agency can cure the record
 This means going back and supplying the missing
Types of Judicial Review of Agency Fact
Congress is free to set the standards of review for
agency fact finding
If Congress does not set a standard, then the
default is provided by the APA
Trial De Novo
You start over at the trial court
Agency findings can be used as evidence, but
there is no deference to the agency
Used more by the states than the feds
Independent Judgment on the Evidence
Decide on the agency record, but do not defer to
the agency's interpretation of the record
Sort of like appeals in LA
Clearly Erroneous
Definite and firm conviction that a mistake has
been made on the facts or policy
Same as reviewing a verdict by a trial judge
without a jury
Substantial Evidence - Formal
Adjudications and Rulemaking
Formal proceedings are rare
Could a reasonable person have reached the
same conclusion?
Standard for reviewing a jury verdict or for taking
a case from the jury
706(2)(E) - only applies to formal adjudications
and formal rulemaking
Should a jury get more or less deference than an
Substantial Evidence - Informal
Adjudications and Rulemaking
Almost everything is informal
Arbitrary and capricious or abuse of discretion
Same assessment of reasonableness as 706(2)(E),
so the result is about the same as the substantial
evidence test used for formal proceedings
Some Evidence
Scintilla test
The agency needs to show even less than in the
substantial evidence standard
Only limited use
Facts Not Reviewable At All
Congress can prevent certain types of judicial
 Compensation decisions under the Smallpox
Vaccine Compensation Act are not reviewable
Enabling law is always reviewable unless
Congress has taken away the court's subject
matter jurisdiction
Labor Politics
What is the history of labor unions?
 Coal mines
 Steel
Why would Congress want to encourage labor
unions in 1935?
Why were unions unpopular with industry?
National Labor Relations Board (NLRB)
Created by the Wagner Act of 1935
 Classic New Deal agency
 Modified by the Taft-Hartley Act and other laws
Structured to encourage unions
Independent agency run by a commission
 Presidents can only replace commissioners as their
term expire
 This means that the commission is often out of step
with the current administrative
How has the Role of Unions Changed?
Why happened in the 1960s and 1970s to discredit
labor unions?
What happened to core unionized industries?
What is the effect of global competition?
What is the only remaining stronghold of unions?
 Why?
What political issues may strengthen unions?
Effect of Politics on the NLRB
Congress is not supportive of the NLRB's original
Most of the workforce is not unionized
Congress has not changed the statutory presumptions
underlying the NLRB
Union/Management relations are very political
 Thus NLRB decisions are very political
 The NLRB does not like to make clear rules that
Congress might change
Universal Camera Corp. v. NLRB, 340 US
474 (1951)
Employer fires chairman after he testified at an
NLRB meeting
What did the hearing officer do?
 Believed the company and did not reinstate him
What did the NLRB do?
 NLRB rejects the hearing officer's finding
 Reinstated the chairman with back pay
What is the key legal issue before the
Should the court reviewing the NLRB's action
consider the hearing officer's recommendation?
 Is the agency bound by the hearing examiner's
 Should the court look only to the part of the
record that the agency relies on for their
decision or the record as a whole?
Court says you have to look at the whole record,
including the ALJ's findings
When Are the ALJ's Findings Most
What type of rulings by an ALJ carry the most
weight with the court when there is conflict
between the ALJ and the agency?
How should the agency handle such conflicts in
the record?
Deference to Agency Factfinding
Why should the courts defer to agency
How does the expertise of the ALJ and agency
decisionmakers differ from the judges?
What about the practical concerns?
How about the LA problem of final decisions
being made by non-expert ALJs?
Allentown Mack v NLRB, 522 US 359
Recertification election politics
 Why create a presumption against letting
employers force recertification elections?
 What are the pressures on employees when a
union is seeking a certification election?
What were the facts that the NLRB was reviewing?
Standard of Proof
Did the NLRB say that it had a presumption
against recertification elections and thus required
a high standard of proof for employers contesting
What was the practical effect of its factfinding?
Why did this lead the majority to reject its ruling
and remand for further review by the agency?
Why does the dissent say this is a problem for
agency factfinding?
Burden of Persuasion
 Always stays with the person who loses if that
issue is found against them
Burden of Production
 Shifts once the other side has put on evidence
of their prima facie case
While the APA is not clear on this, the courts have
held that persons challenging agency actions
retain both burdens
Zhen Li Iao v. Gonzales, 400 F3rd 530
What is the regulatory conflict for immigration
 How many people in China follow Falun Gong
 What is the implication if the court finds that
they all have a reasonable fear of persecution?
 Is this what Congress and the Administration
What did this immigration judge rule?
Reviewing Policy in the Guise of Facts
What did Posner think the judge should have
What sort of factors did Posner want considered?
In another case Posner found that delay alone
was enough to let the alien stay
 Is this the fault of the agency or does it reflect a
Congressional policy?
Should the courts use judicial review to challenge
Congressional policy?
Questions of Law
Should a Court Defer to an Agency's
Interpretation of Law?
 Why?
How should the courts treat the agency's legal
Ratemaking Cases
Very controversial in the early days
Seen as a constitutional fact problem
 Did the rate confiscate the regulated party's
No longer controversial
The courts almost always defer to the ratemaking
agency unless it is acting unlawfully
U.S. v. Fifty-Three Eclectus Parrots, 685
F2d 1131 (1982)
Is the determination of whether a parrot species is
wild a factual or a legal decision?
 Since there was a statutory definition of wild,
and the defendant could not rebut its
application, the court found that this was a
legal question
Why are mixed law and fact questions subject to
manipulation by the courts?
Skidmore v. Swift & Co., 323 U.S. 134
We consider that the rulings, interpretations and opinions
of the Administrator under this Act, while not controlling
upon the courts by reason of their authority, do
constitute a body of experience and informed judgment
to which courts and litigants may properly resort for
guidance. The weight of such a judgment in a particular
case will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and
all those factors which give it power to persuade, if
lacking power to control.
Next Stop - Chevron
Background on Rulemaking
Administrative Rules
The Legislature can delegate the power to make
rules to the agency
 Some agencies do not have rulemaking
 Rules cannot exceed the authority in the
agency's enabling legislation or the
Properly promulgated rules have the same effect
as statutes
The Agency as Legislature
The shift from adjudications to
rulemaking started in the 1950s
The courts try to allow an agency to
make rules
Parallels the growth of state and federal
How do you make a Rule?
Publish the proposed rule and what it is based on
for public comment
 The Federal Register and LA Register are where
rules are published first
Review and address public comments and publish
these along with any modifications in the rule
Codify the rule after it is effective
 Rules are Codified in Code of Federal
Regulation and the LA Administrative Code
How do Rules Differ from Adjudications?
Participation and Generality
Allow Public Participation
 Adjudications are limited to the parties
Allow Political input
 Rulemaking is a public process which allows
politicians input
Appropriate Procedure
 Adjudications are tied to specific facts and parties
 Rules are generally applicable, although they may be
very specific
Prospective v. Retrospective
 Adjudications are based on things that have
already happened
 Adjudications can be treated as treated as
precedent, but this is not binding
 Adjudications are driven by the available
Rules are prospective
 Not bound by existing facts
Adjudications, like trials, are driven by
specific facts and can treat similar situations
Rules set up a general framework that treats
all parties uniformly
Rules are the fairest way to make big
regulatory changes
Adoption of National Standards
National standards can be adopted through
agency rules, harmonizing practice across
 National building codes
 CDC guidelines on food sanitation
 Recommendations of the Advisory Committee
on Immunization Practices
LA should adopt building codes
Agency Efficiency
While a rulemaking can be expensive and time
consuming, it can settle issues across a large
number of adjudications
Rulemaking can also eliminate many hearings by
resolving factual questions
 In disability case, rules can be used to establish
what constitutes a disability, rather than making
it as case by case determination.
Better Guidance for the Public
Rules are published and codified
 State rules were hard to find, but the
Internet is making this better
Agency adjudications, especially at the state
level, are often not published
 There may be no transcript of the full
Rules are binding
Agency Oversight
You can control the outcome of rulemaking
much easier than that of adjudication
 Not Dependant on ALJs
 Why is this especially important in LA?
More input from across the agency
Directly controlled by agency policy makers
Downside of Rulemaking
Adjudications can be more flexible in the
individual cases
Rules can be so abstract or overbroad that
they are expensive or difficult to follow
Adjudications are useful when you are not
sure what the rule should be and need more
info and a chance to experiment
Does not do away with the need for
Rulemaking Ossification
Rulemaking has gotten so complex and time
consuming it has lost some of its value
Rulemaking can go on for years
 What is the legal value of a proposed rule that has
not been finalized?
 This was the problem for the anti-kickback
Complicated by regulatory conflict and incompetent
agency practice
The courts and legislature have increased the burden
on rulemaking
What is a Rule?
Definition of a Rule
APA 551(4)
(4) 'rule' means the whole or a part of an agency statement of
general or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy or describing
the organization, procedure, or practice requirements of an
agency and includes the approval or prescription for the future
of rates, wages, corporate or financial structures or
reorganizations thereof, prices, facilities, appliances, services
or allowances therefor or of valuations, costs, or accounting,
or practices bearing on any of the foregoing;
Not a clear definition
Things that are not adjudications or licensing
State Definitions
Critical term is general applicability
 Property tax assessment for your house is
an adjudication
 Standards for conducting an assement
and the tax rate are rules.
If you do not get a hearing, it is probably a
LA Definition
6) "Rule" means each agency statement, guide, or requirement for
conduct or action, exclusive of those regulating only the internal
management of the agency and those purporting to adopt, increase,
or decrease any fees imposed on the affairs, actions, or persons
regulated by the agency, which has general applicability and the
effect of implementing or interpreting substantive law or policy, or
which prescribes the procedure or practice requirements of the
"Rule" includes, but is not limited to, any provision for fines, prices
or penalties, the attainment or loss of preferential status, and the
criteria or qualifications for licensure or certification by an agency. A
rule may be of general applicability even though it may not apply to
the entire state, provided its form is general and it is capable of being
applied to every member of an identifiable class. The term includes
the amendment or repeal of an existing rule but does not include 207
declaratory rulings or orders or any fees.
What if it is not a Rule?
Interpretive Guidance
Does not need notice and comment
It is only explaining the law
Prosecution guidelines are classic examples
Is it an Interpretative Rule? (Mead)
Do they have legal effect?
 The legally binding test
Does the agency treat them as binding?
 Key - are there cases when they do not follow
Does the agency call them interpretations when it
publishes them?
Do they conflict with previous rules?
Prospectivity and Retroactivity
Legislation is often retroactive - Superfund
Rules are not supposed to be retroactive, but what does
that mean?
 I cannot go back and say that you can no longer get
paid for in office chemotheraphy and then ask for a
 I can say you can no longer get paid for in office
chemo and make your investment in your stand alone
cancer center worthless
Only real limit is ex post facto provision in the
Can Interpretative Guidance be
Why does this ban on retroactive rules not
apply to interpretive rules?
How is this like the court system when a
judge finds a new tort cause of action?
Could congress create an exception to the
APA and allow a retrospective rule?
Exemptions to Notice and Comment
Is notice and comment a constitutional
Military and foreign affairs
Why exempt these?
Limiting the term of residence for Iranian
nationals after the hostage incident
 National security issues?
Extending asylum to persons who subject to
reproductive restrictions in China
 Was this just an individual benefit or part of a
foreign policy?
Agency Procedures
Like the code of civil procedure
Does not change the substantive rights of the
Does not change the regulated behavior, only the
process in agency procedures
Actions where Secrecy is Important
Wage and price controls
Bidding on contracts
Negotiations on land purchases and sales
Emergency Proceedings
Emergency Rules
Interim Final Rules
 Published and in effect, but will be modified after
comments are in.
Calculations and other non-discretionary rules
Technical corrections
 Can require notice and comment if the correction
causes a different result
Chevron U.S.A., Inc. v. NRDC, 467 US 837
(1984) - 560
Very important case
 Deals with the review process when it is alleged that
the agency has overstepped its statutory authority
What was the issue?
 Whether the EPA had the authority under the Clean Air
Act to use the "bubble" approach to stationary
sources, i.e., treating one plant as a single source,
which gave more flexibility in trading off emissions
between different processes in the plant
Chevron Step One
Did congress give specific guidance in the
This can be positive or negative - i.e., the statute
might allow the action, or clearly prohibit it
Chevron Step Two
If congress did not speak directly to the
issue, is the agency's interpretation
reasonable under the general intent of
the enabling act?
Did Congress speak directly to this issue?
Why did Congress want to balance in enforcing
the Clean Air Act?
 The economic interest in continued industrial
development and cleaning up the environment
Why did Congress not spell out how it wanted the
law to be enforced?
 Requires changing technical expertise
 Political Hot Potato
How do you decide congressional intent?
What is in the law itself?
What is in the formal legislative history,
i.e., committee documents and the like?
What was said at hearings on the
How can legislative history be
Ever see those speeches to an empty chamber?
You can introduce reports that were never
approved or reviewed by a committee
The committee can mask its view of the law with
bogus history
Scalia usually is against legislative history and
Breyer is for it, but in some cases like the FDA
Tobacco Case they switch roles.
What did the Court Rule?
What did the court find in step two
about the legality of the EPA standard?
 The bubble was OK
How is step two very much like the
arbitrary and capricious standard?
How are Courts and Agencies Different?
What does the United States Supreme Court
say is different about the roles of courts and
agencies in resolving political questions?
 The court must be neutral
 The agency should carry out the
executive's policies
What factors indicate to the court that the
agency is probably correct?
1) Procedure - was there a full notice and
comment process, which would tend to identify
legal problems
2) Thoroughness of consideration - how well does
the agency make and document its rational for the
3) Contemporaneous Construction - does the
interpretation date back to the drafting of the law
and was the agency involved in the drafting?
4) Long-standing construction
5) Consistency - is it consistent with the agency's
interpretation of similar laws?
6) Reliance - have people been relying on the
7) Reenactment - did
congress endorse the
interpretation in some
This usually happens by
congress knowing about
the interpretation while it
is amending the law, and
not changing the law to
block the interpretation.
Does a tariff classification ruling by the United
States Customs Service deserves judicial
How the classifications done?
Customs reclassified Daytimers as diaries
This was done by a letter, which did not go
through notice and comment
Mead protested, and the circuit court said the
letter was not entitled to Chevron deference
United States Supreme Court
Adjudication and notice and comment proceeding
are clear evidence that congress expected the
agency to fill in the law and that the court should
defer to the agency
 Was this notice and comment?
The court says that there can be deference in
other circumstances, and tries to define those
How did the Agency treat its own ruling?
"Customs has regarded a classification as
conclusive only as between itself and the importer
to whom it was issued, and even then only until
Customs has given advance notice of intended
Other importers are in fact warned against
assuming any right of detrimental reliance.“
Why should this matter?
What does the ruling's "persuasiveness"
"A classification ruling in this situation may
therefore at least seek a respect proportional to
its "power to persuade." Such a ruling may surely
claim the merit of its writer's thoroughness, logic
and expertness, its fit with prior interpretations,
and any other sources of weight.“
Where does persuasiveness leave the
Circuit Court?
This leaves the appeals court with the burden of
figuring out how to deal with the ruling in a
fashion that does not defer to the agency, but
does recognize the agency's expertise and
Why does Scalia reject the majority's
Some decisions that are neither informal rulemaking nor
formal adjudication are required to be made personally
by a Cabinet Secretary, without any prescribed
Is it conceivable that decisions specifically committed to
these high-level officers are meant to be accorded no
deference, while decisions by an administrative law judge
left in place without further discretionary agency review,
see 5 U.S.C. § 557(b), are authoritative?
This seems to me quite absurd, and not at all in accord
with any plausible actual intent of Congress.
Congressional Intent
This fits with Scalia's general view that the courts
should not try to read the mind of congress and
should defer to the agency if there is an
If congress is unhappy with that, they should
change the law.
Are you comfortable with deferring as much as
Scalia wants to?
Does he really mean it?
Babbitt. Sweet Home, 515 US 687 (1995)
Spotted Owl Case
Classic question of agency interpretation of a
broad delegation of authority
Does the statutory prohibition on the taking of
endangered animals include destroying their
habitat so that it causes direct injury to the
endangered animals?
Majority Opinion
Focuses on the broad powers given the secretary
of the interior
Looks at the intent of congress to protect the
Finds that the secretary's interpretation of
protecting the animals includes protecting the
environment is reasonable
Dissent - Scalia
Scalia, the hunter, reads the statute literally:
 Taking means shooting them, putting them in
the pot, eating them.
 At least, taking means directly takings actions
against the animals, not the environment
Makes the economic argument that this was level
of disruption was not intended by congress
Says congress can by the land if it wants to
protect the habitat
What is the Balancing by Congress?
What was the endangered species act intended to
 What does it usually protect?
 Would Congress have passed a law to protect
What about environment?
Why hasn't congress "fixed" the act to overturn
this ruling?
MCI Telecommunications Corp. v. American Tel.
& Tel. Co., 512 U.S. 218 (1994)
FCC case
Agency modified tariff system (rate approval system) to
exclude smaller carriers
Majority said this failed Chevron I
 The act exceeded the agency's statutory powers
The dissent saw this as just another interpretation
 Valid under the power to improve competition
Public Citizen v. Young, 831 F.2d 1108,
(D.C.Cir. 1987)
The Delaney Clause
Can the FDA create a de minimis test to all the use
of food additives that do not satisfy the Delaney
Delaney Clause
What does the legislative history show about the
congressional intent for the Delaney Clause?
Why would Congress adopt this standard?
Is it scientifically absurd?
 Peanut butter
 Most plants
Given this intent, what must the court rule?
 Must these dyes be immediately banned?
Tobacco in the Colonies
What was the role of tobacco in the colonial
How was smoking viewed by most people in the
What happened in 1964?
Why is it so hard to quit smoking?
Federal Cigarette Labeling and
Advertising Act - 1965/1969
Required hazard labeling on cigarettes
Banned cigarette advertising in electronic medial
regulated by the FCC
 Why not ban it everywhere?
Prevented state additional requirements
 Which requirements were they worried about?
 What happened in torts in 1965?
What about non-tort concerns?
Public Health Impact of Tobacco
#1 preventable cause of illness
#1 problem is heart disease
 6 out of 7 smokers do not live to get lung
Emphysema is the big lung issue - nasty way to
live, then you die
Slow progress in limiting smoking
May have plateaued after the tobacco settlement
In Defense of Tobacco
Limits retirement
 Saves Medicare and Social Security
 Great for private pension plans as well
Tobacco will reduce life-time health care costs if
you smoke enough
 Ideally you will also eat a lot of burgers
Improves job opportunities for young, cheaper
Politics of FDA
Chairman Kessler was appointed by Bush I
 Liked publicity
 Wanted to keep his job when Clinton can into
Banned silicone breast implants - just to be safe
 Made 4.5 billion for trial lawyers and got to keep
his job
FDA v. Brown & Williamson Tobacco Corp.
The FDA decided to regulate tobacco
What was the politics?
What had it said about tobacco regulation over
the past 50 years?
FDA Authority
Anything sold in interstate commerce with the
intent to affect the structure or function of the
body is a drug
Drugs must be proven safe and effective
FDA Regulation of Tobacco
Does it fit within the definition of a drug?
What would be the effect of applying the safe and
effective test to tobacco?
Does this create a regulatory paradox?
How is it different from chemotherapy?
Statutory Provisions
The Act prohibits "[t]he introduction or delivery
for introduction into interstate commerce of any
food, drug, device, or cosmetic that is adultered
or misbranded." 21 U. S. C. §331(a)
§352(j) deems a drug or device misbranded "[i]f it
is dangerous to health when used in the dosage
or manner, or with the frequency or duration
prescribed, recommended, or suggested in the
labeling thereof."
Tobacco Labeling
Second, a drug or device is misbranded under the
Act "[u]nless its labeling bears ... adequate
directions for use ... in such manner and form, as
are necessary for the protection of users," except
where such directions are "not necessary for the
protection of the public health." §352(f)(1).
Is it possible to label tobacco so it can be used
Chevron - Step One
Does tobacco fall under the statute?
 Is it specifically named?
 Is it specifically prohibited?
Why is there a question of ambiguity in what the
statute means?
 Doesn't tobacco affect the body?
Chevron – Step Two
What was congressional intent?
What is the evidence that congress did not intend
for the FDA to regulation tobacco?
 Alternative regulatory schemes and agencies?
Renewed and expanded the FDA Act without
addressing tobacco
United States Supreme Court Opinion
The majority (Scalia) said this was evidence that
Congress did not intend for the FDA to regulate
tobacco, and that such intent trumped Chevron
Minority (Breyer) said just look at the law
Politics trumps principle
Lorillard Tobacco Company v. Reilly, 533
U.S. 525 (2001)
What is MA trying to do?
Types of Preemption
 Explicit
 Implicit
How is the United States Supreme Court's
preemption analysis similar to a Chevron
Preemption Language
Congress unequivocally precludes the
requirement of any additional statements on
cigarette packages beyond those provided in
§1333. 15 U. S. C. §1334(a).
Congress further precludes States or localities
from imposing any requirement or prohibition
based on smoking and health with respect to the
advertising and promotion of cigarettes. §1334(b).
What did Congress Intend with the
Cigarette Labeling Act?
What was MA's defense against preemption?
What did the court find was the congressional
 The context in which Congress crafted the
current pre-emption provision leads us to
conclude that Congress prohibited state
cigarette advertising regulations motivated by
concerns about smoking and health.
Justice Steven's Irony
Justice Stevens finds it ironic that we conclude that
"federal law precludes States and localities from
protecting children from dangerous products within 1,000
feet of a school," in light of our prior conclusion that the
"Federal Government lacks the constitutional authority to
impose a similarly-motivated ban" in United States v.
Lopez, 514 U. S. 549 (1995).
Why is this case different?
What could the state do?
Smokeless Tobacco and Cigars
Are these covered by the Act?
 Why?
What does the court see as the limitation on state
regulation of their advertising?
What is the state's justification for limiting
advertising near schools?
Why was 1000 feet too far?
Actions v. Speech
Could the state ban the sale of tobacco to
Can it ban the use unattended sales such as
vending machines?
Can it ban tobacco sales entirely?
Why is this different from bans on advertising?
Could Congress preempt state bans on tobacco
What Should We Do About Tobacco Use?
What is the public interest?
What are the individual liberties issues?
Are the other substances people want to use that
we ban?
Is tobacco different in any physiological, as
opposed to political sense?
How well do the other bans work?
What are the unintended consequences?
What About Obesity?
Overton Park v. Volpe - United States Supreme
Court 1971
Road through the park case
What was the protest - why did the citizens say
this was an improper decision?
 Citizens protested, said the statute only allowed
this if there was no feasible and prudent
alternative route
What was wrong with the record?
 Secretary gave no reasons
Feasible and Prudent??
What does feasible mean?
How can it conflict with prudent?
Why is it always cheaper and easier to build roads
through parks and public lands?
Who are the opposing constituencies?
What indicates that this is a compromise law?
District Court
District court gave Secretary a summary
judgment, affirmed by the Cir.
 These were based in part on briefs that went
beyond the original record
Standard of Review
Is this a rule making?
Is it an adjudication, i.e., was there a trial type
 What about the public hearings?
 Were they to make decisions or to take input?
 Were they done by the feds at all?
Did the stature require de novo review?
What is the Hard Look Review?
"thorough, probing, in-depth review"
Hard look kicks in after Chevron step 1
The court still defers to the agency's policy making role
The court looks hard to make sure the agency considered
all the relevant factors in making the policy
 Is this really meddling in policy making?
 What is the cost to the agency of reviewing lots of
factors in depth to satisfy the court?
United States Supreme Court
The United States Supreme Court said that the secretary
did not have to make formal findings
 The record needed to support the action and it could
not be supplemented by briefs.
If the secretary does not make findings, then the district
court has two alternatives:
 Remand, or
 Require testimony of agency decisionmakers,
effectively building the missing record
Why is the second alternative not attractive to the
Environmental Regulation
Permitting new stuff
 What is the effect of delay here?
Enforcing rules against old stuff
 Who pushes for delay here?
Why is it harder to push for action than for delay?
Why could the environmentalists get the court to
push the agency in the regulators?
Atomic Power
What are the fears?
 Administrative delay stopped the industry
 Hugely expensive plants whose profitability
depended on rate setting decisions that are
subject to politics
What new concerns has shifted environmental
fears since the 1980s?
The Evolution of Policy as Politics Change
The Seat Belt Saga
First, there is popular concern about accidents
Then interest groups
Individual stories - MADD is an example
Nader and Public Interest
Unsafe at any Speed - 1965
Insurance industry
The Seat Belt Saga II
Then Congress passes the Traffic and Motor
Vehicle Safety Act
1967 - regulation requiring seatbelts
1972 - realized that people were not wearing the
Regulation requiring automatic seatbelts or
airbags by 1975
The Seat Belt Saga III
Required cars between 1973 and 1975 to have
automatic seatbelts or ignition interlocks
Chrysler v. DOT affirmed the regs
Industry choose interlocks - why?
1974 - Congress passed a law banning regs
requiring interlocks and said that all future regs
on passive restraints had to be submitted to
Congress for legislative veto
 Chada killed that
The Seat Belt Saga IV
DOT under Ford withdrew the regs
DOT under Carter (a few months later) passed
new passive restraint regs for 1982 and Congress
did not veto them
1979 - Regs were affirmed in Pacific Legal
Foundation v. DOT
The Seat Belt Saga V
1981 - DOT under Reagan withdrew the regs
because the car companies were going to use
automatic seatbelts that could be disconnected.
1983 - Motor Vehicles Manufacturers Assoc. v.
State Farm hit the United States Supreme Court
Motor Vehicle Manufacturers v State Farm
Mutual Auto
Why does State Farm care?
What was the key agency law issue in this case?
 How was this relevant to the transition from
Clinton to Bush?
 How did it drive the midnight rulemaking?
What was the rationale for the court's ruling?
How is this different from saying that agencies are
bound by precedent?
The Seat Belt Saga VI
1984 - DOT (Libby Dole) promulgated a reg requiring
automatic seatbelts or airbags in all cars after 1989,
 2/3 of the population were covered by state seatbelt
laws, and
 the laws met certain criteria
What did some states do?
 $5 penalty
 No stop
 No meaningful seatbelt defense
Most State laws did not meet the criteria
The Seat Belt Saga VII
1997 - most newer cars had airbags
1998 - airbags kill grannies and little kids!
 Nothing new - known at the time
 Save many more
1999 - You can get your airbag disconnected
 Products liability issues?
What Else Affects Automobile Safety?
Drunk driving laws?
Anti-lock brakes?
Stability control systems?
 Why not lower speed limits?
 Where do most accidents happen?
Limits on teen age drivers?
Regulation of Automobile Gas Mileage
What are the benefits of reduced oil consumption?
 For individuals?
 For the country?
How do you make cars more efficient?
What are the trade-offs?
 Convenience
 Cost/safety
 What limits safety of SUVs?
Corrosion Proof Fittings v. U.S. E.P.A., 947
F.2d. 1201 (1991)
Rulemaking under the Toxic Substances Control
 This act is not self-implementing
 Nothing is regulated until the agency set
How long was this rule in process?
What are the Requirements of the Act?
"Reasonable basis" to believe that there is an
"unreasonable risk of injury"
 What do you consider to decide if the risk is
 Does this mean no risk?
The regulation must be "the least burdensome"
 What is the burden on the agency when it bans
What is asbestos really good for?
What are the potential risks for substituting other
Do we know that these materials are safe?
 Ever work with fiberglass insulation?
How many lives were they going to say?
What was this going to cost?
Why did the agency really ban asbestos?
Judicial Review
Why is it easier for the court to second-guess the agency
than for the agency to do the cost benefit analysis?
Can any risk/cost/benefit analysis be complete?
 What are the conflicts between discounting to present
day costs and trying to monetize future life savings?
What was the long term impact of the agency getting
hammered in this case?
How about when the Corp got hammered over the
environmental impact statement for Lake Pontchartrain
flood gates?
Changing the Rules
Basic Principle
Agencies are bound by their own rules and
adjudications until they change them
They are free to change them, but must explain
the reasons
The reasons must meet the arbitrary and
capricious or substantial evidence test
Civil v. Criminal Prosecutions
Criminal courts may read the law differently than
the agency
Can the agency create situations through mistake
or policy that do not follow the law, but are
Agency Personnel Give the Wrong Advice
Why should we care?
Should the agency be bound?
What problems would this cause?
 Unequal application of the law?
 Potential for corruption?
What holding the agency bound improve advice?
 What is the alternative for the agency?
The Agency Acts Against the Law
Same assumption - not binding
First, there must be reliance to raise the issue
 This happened in the S&L cases
The courts will look for another theory to support
the agency's action
In the S&L cases, the courts found that the
agency created a contractual obligation, which
was binding
Making the Case for Your Client
Is this a rule that the agency can waive?
Would allowing the exception create fairness
 Allowing a benefits application to be filed late
 Allowing a competitive license or bid to be filed
What is the impact on the client?
 More slack in immigration, for example
Res Judicata - General Rules for Private
Same parties, same facts
 You are bound
Issue preculusion - Same parties, same issue
 Bound on the issue
Res Judicata
Policy issues
 An agency can be involved in thousands of
cases around the US
 The same issue and parties can arise in
different courts
 District judges have different abilities and
What would be the impact of allowing res
The agency is bound by the decision in the district, or in
the circuit if a circuit case
The agency may disregard or relitigate the issue in other
districts or circuits, even against the same parties, if
there is jurisdiction
Once the United States Supreme Court rules, the agency
is bound
 What are the politics in deciding whether to appeal?
 When will the agency choose to not appeal?
 How should this affect their win-lose record?
Prospectivity and Retroactivity
Basic Principles
Retroactive criminal laws are unconstitutional
Retroactive civil laws are disfavored
 Congress must specifically intend retroactivity
 Can still be unconstitutional depending on what
they affect
Retroactive procedural rules are usually OK
Reinterpretations of the law with retroactive
effects are common
Older cases
 No retroactive application
 Can only change the rule going forward
 Does not apply if there is no old rule
New Cases
 More latitude for adjudications to retroactively
change rules, but still disfavored
 NLRB does not want to make rules
Intended to prospective only
 Congress can allow retrospective rules to correct
 Tax loopholes
 Less likely to be applied to innocent parties
Can reaudit and the like
Not applicable if there is no old rule
Not applicable to changes in interpretation of the law
Primary and Secondary
Primary retroactivity
 I cannot go back and say that you can no
longer get paid for in office chemotheraphy and
then ask for a refund for past payments
Secondary retroactivity
 I can stop paying for in office chemo in the
future and make your investment in your stand
alone cancer center worthless
Bowen v. Georgetown University
Feds change the way reimbursement is calculated on
Medicare costs
 What was the retroactive effect of this rule?
 Did the court accept this?
What if the "conditions of participation" say that you are
subject to retrospective rule changes which require
The court in a later case found that there could be
changes in the way that base year calculations were
done, even though these changed past bills
Exceptions to Notice and Comment
Interpretive Rules
Policy Statements
Rules of agency organization, procedure, or
Technical calculations
American Hospital Association v. Bowen,
834 F.2d 1037 (1978)
Did the agency violate notice and
comment provisions in setting out the
rules for PROs?
Interpretive Rules
Telling what the statute means
Not binding on the agency
Only binding on the parties to the extent that the
courts follow it
Substantive (legislative) rules
Grant rights, impose obligations, or change
existing rules that do so
Bind the agency and the parties until changed
Is a rule substantive just because it has a big
Policy Statements
A hypothetical plan for rationing natural gas in a
shortage was a policy statement
 Not binding
Guidelines on citing OSHA violations, with the
clear statement and policy that these were only
examples that did not bind the agency
Parole board rules that changed parole eligibility
based on good time needed notice and comment
Appalachian Power v. EPA, 208 F.3rd 1015
Guidelines for state compliance plan did not bind
EPA treated them as binding on the states
This needed notice and comment
Even if the agency can change the guidelines, if
they are binding on the field offices, this is
legislative rule
Community Nutrition Institute v. Young,
818 F.2d 943 (1987)
FDA action levels for aflatoxin
Trigger level for adulteration
Manufacturers must follow these or risk FDA action
Used as a standard for judging blending strategies
Court found that these needed notice and comment
Starr, in dissent, argued that this would make it difficult
for the FDA to carry out its role since there were so many
toxic substances and that standards could change based
on new information
Professionals & Patients for Customized
Care v. Shalala, 56 F.3d 592 (1995)
FDA issues guidelines to determine if a
pharmacy's compounding violates the drug
manufacturing rules
Based on a 9 factor analysis
Upheld because it was not binding and was just
used to evaluate practices
Might also be seen as just reminding the
pharmacies of what the law is
If the agency could enforce the content of the
regulation based on the statute or previous
regulations, it is probably interpretive
If it modifies the statute or regulation, it needs
notice and comment
Like policy statements, the use by the agency is
Cathouse Case - Hoctor v. Department of
Agriculture, 82 F.3d 165 (1996)
Congress says the USDA should require
dangerous animals to be properly confined
USDA has a rule saying animals need to be
properly confined
It has a guidance memo that says that dangerous
animals must be behind an 8 foot perimeter fence
What are plaintiff's pets and how tall is the
Plaintiff has ligons, tigers, lions, and who knows
what else behind a 6 foot fence
Why does plaintiff say the rule cannot be enforced
against him?
What do you think about the rule?
6 foot high enough for you?
What is the key issue?
Does the statute itself allow USDA to establish
standards for escape enclosures?
 If so, then the memo is just a valid
interpretation of the statute
Why does the court focus on the set height?
 Limits discretion
How does the court say the agency might have
used the number?
 We know cats can jump 8 feet, so it has to be at
least that high
What did the court do?
What if they decide to use 8 feet after notice and
What if the agency does away with the guideline
and says the inspector will use his best
Should the reviewing judge have to stand outside
the fence with a hungry cat on the inside?
Procedural Rules
Exempted from notice and comment
How far do they go in changing substantive rights?
FAA penalty rules, which also affected the adjudication
process for violates, were found to be substantive
NRC was allowed to change it process for granting
extensions for filing interventions
 Perhaps because they did not need to allow them at
OSHA could not claim a rule was not binding because the
party could escape it by changing their practices
Good Cause Exemptions
Reviewed these at the beginning of this section
Policy Issues
What is the impact of heightened judicial review of
rule making?
What did we see in the Regulators?
How is this more problematic today?
Why does spreading the process across more
than one presidency cause problems?
Negotiated Rulemaking
What is reg-neg?
How do you set it up?
Why do it?
Do you still have to do notice and comment?
How does notice and comment prevent the agency from
being bound by reg-neg agreements?
What is the representation problem in reg-neg?
Who do you think got left out in the woodstove reg-neg?
Official Notice and Information in the
(Do not worry about the individual cases)
What is judicial notice?
 How is it limited?
 Can judges take note of scientific facts such as
the best treatment for hypertension?
 How about the weather on a given day in the
Agency Notice
Why should agencies be granted greater latitude in taking
notice of information?
 Why not?
How does this affect the record?
What must the record show when the agency takes notice
so that the court can properly review the decision?
 Assume that a board of medical examiner, made of
physicians, takes note of basic medical standards in a
disciplinary action
 What would the court need to see to review this?
Off the Record Proceedings and Ex Parte
Why are these banned in trials?
How are agency proceedings different?
What is the special problem of small or
specialized agencies?
551 - (14)
'ex parte communication' means an oral or
written communication not on the public record
with respect to which reasonable prior notice to
all parties is not given, but it shall not include
requests for status reports on any matter or
proceeding covered by this subchapter.
557 - (d)
(d)(1) In any agency proceeding which is subject to subsection (a) of this
section, except to the extent required for the disposition of ex parte matters as
authorized by law  (A) no interested person outside the agency shall make or knowingly cause
to be made to any member of the body comprising the agency,
administrative law judge, or other employee who is or may reasonably be
expected to be involved in the decisional process of the proceeding, an ex
parte communication relevant to the merits of the proceeding;
 (B) no member of the body comprising the agency, administrative law judge,
or other employee who is or may reasonably be expected to be involved in
the decisional process of the proceeding, shall make or knowingly cause to
be made to any interested person outside the agency an ex parte
communication relevant to the merits of the proceeding;
 (C) a member of the body comprising the agency, administrative law judge,
or other employee who is or may reasonably be expected to be involved in
the decisional process of such proceeding who receives, or who makes or
knowingly causes to be made, a communication prohibited by this
subsection shall place on the public record of the proceeding:
556 (d) - Penalty
(d) ... The agency may, to the extent consistent
with the interests of justice and the policy of the
underlying statutes administered by the agency,
consider a violation of section 557(d) of this title
sufficient grounds for a decision adverse to a
party who has knowingly committed such
violation or knowingly caused such violation to
occur. ...
Professional Air Traffic Control Organizations v.
Federal Labor Relations Authority, 685 F.2d 547
What was the poetic justice of the PATCO strike
and dissolution?
 They were the first union to back Regan
What was the reason for the strike?
 Pay and working conditions
 Not enough controllers
 Even less afterwards - fired the ones who would
not come back to work
What are the three critical factors of the
ban in 557(d)
Only applies to "interested persons"
Excludes requests for status reports
 How can these really be nudges to the agency
in particular direction?
Applies to more than facts in issue, extends to
anything about the merits of the proceeding
What are the remedies?
Disclosure of the contact and its content
Striking the claim of the violating party if it cannot
show why the contact was not a problem
Does the court have to overturn the agency's
action or remand if there is an improper contact?
 No, it is voidable
Court has a lot of discretion to make sure that
justice is done and the agency can function
What about Shanker?
Why is he an interested person?
 AFL-CIO had filed a brief and he is tied to them
What if you, J. Random law student, sit next to
Applewhaite on the plane and urge him to fire
PATCO because it will be good for lawyers to have
another big case to fight?
The Problem of Ongoing Contacts - Louisiana
Producers v. FERC, 958 F.2d 1101 (1992)
Permit process for a big ticket pipeline
One party had contacts with the agency outside of
the hearing process
The agency argued that this was related to
general issues before the agency and not the
Court allowed this, but it is a constant problem
when a given business or person has multiple
dealings with the agency
What about Rulemaking?
Why is the ex parte problem different in rulemaking?
What was the court concerned about in Home Box Office
v. FCC?
 Why is the date of issue of the notice of rulemaking
 What can the agency do before that date?
How was this limited by ACT v. FCC?
 Competing proposals, not just policy debates
How does judging the rule on the record solve this?
DC Federation of Civic Associations v.
How did Congress lean on the agency in this
Did the APA ex parte rule apply?
Why did the court remand?
Volpe Test
The Volpe test for whether a rulemaking may
be overturned solely on evidence of
Congressional pressure
 1) was there specific pressure on the
agency to consider improper factors?
 2) did the agency in fact change its mind
because of these considerations?
How can the agency defend itself from a
Volpe attack?
Congressional Oversight
 Cannot interfere with ongoing adjudications
 Can inquire into agency practices and grill employees
Status Reports
 May ask for status reports, which tells the agency
Congress is watching
 Often done to help constituents with personal
problems such as SS - Congressional Casework
Sierra Club v. Costle
Sierra Club claimed senator Bird coerced
the EPA on coal burning power plant
 Why would Senator Bird care about this?
What should Congress do if it does not like
ex parte contacts in rulemaking?
What did the Court Rule when it applied
Volpe to this Case?
No problem with the contacts because
Congress should be involved in such policy
What if Byrd said he could cut off funding to
the agency and get everyone fired?
Portland Audubon Society
What did they rule could be done in Oregon?
Who was the ex parte contact?
Why were the plaintiffs concerned?
What is the president's role in
Controls and supervises executive branch
How is the role different in adjudications?
When should the president's contacts be
 When the statute requires that they be
 If the rule is based on factual information that
comes from such a meeting.
Takings Review
What is a "taking"?
What due process is involved?
What about compensation?
How is compensation measured?
What is a regulatory taking?
Rights v. Privileges - History
Traditional view was that you had to provide due process
and perhaps compensation for taking a right or property
Did not need to provide due process for not granting or
for terminating a government benefit
Government benefits were construed broadly - going to a
state college
 You could condition these are restrictions that would
otherwise be impermissible
 Professional licensing was more like a right
Treated government like the private sector
New Property v. Old Property
How are the rights different for new property
versus old property?
What if I take your medical license, versus taking
your land?
What if I abolish your job or your welfare
How strong is the notion of new property?
Timing of Hearings - North American Cold
What type of property is at issue?
 New property or old property?
Why does the city want to do?
Is this a taking?
 Compensation analysis
 Public use analysis
What Process was the Defendant Entitled
What process did the city provide?
What process did the defendant claim he was
entitled to?
What process does the court say is
constitutionally mandated?
What is their rationale?
What is defendant's remedy if the city is wrong?
The pre-1996 Welfare System
What is the general attitude toward people on
How was this reflected in the administration of the
welfare programs?
What was AFDC?
What were the unintended consequences of the
welfare system?
Goldberg v. Kelly
Statutory Entitlements
What makes a benefit an entitlement?
What is a matrix regulation?
Matrix Regulation
Test 1
Test 2
Claimant Status
Income less than
$3000 for family
of 2
Assets less than
Income less than x
$6000 for family
of 4
Head of
household is
Why a Hearing?
Why couldn't plaintiff hire an attorney and file
a written response to the termination letter?
What could she do at a hearing that she
could not do in writing?
Why wasn't a post-termination hearing
Why didn't the state want to give everyone a
Goldberg Rights - I
1) timely and adequate notice
2) oral presentation of arguments
3) oral presentation of evidence
4) confronting adverse witnesses
5) cross-examination of adverse witnesses
Goldberg Rights - II
6) disclosure to the claimant of opposing
7) the right to retain an attorney (no appointed
8) a determination on the record of the
9) record of reasons and evidence relied on;
10) an impartial decision maker
Costs of Goldberg
What does granting these hearings do to the cost
of removing someone from welfare?
What does this do to the global cost of the
benefits system?
What does it do to the balance of benefits costs to
administration costs?
What expectation does it create for welfare
The 1996 Act
Who pushed for welfare reform?
What does the new name for AFDC
 TANF - Temporary assistance for Needy
What does the name change tell you about the
change in philosophy?
How does this affect future Goldberg actions?
Employment Hearings
Only government employees have constitutional
rights to a hearing and due process
State rights are defined by the state law, not the
US constitution, and can be broader than the US
States can create rights to employment due
process for private employers
Boards of Regents v Roth
What were the terms of the contract?
Why did he claim he was fired?
 Is this before the court?
What process did he want?
Did the university claim he had done anything
 Could this have changed the result?
Did he get the hearing?
Goldsmith v. Board of Tax Appeals (not in
the book)
Plaintiff claims he met the set standards
 Like an entitlement
If the government has set standards you meet,
you get a hearing
Perry v. Sinderman
 Taught for 10 years
 University policy was to not fire without cause
after 7 years
 Fired without cause
What process did he want?
What did the court think?
Homeland Security and the CIA
One of the big fights over the Homeland Security Bill was
the employee rights
 Security agency personnel are subject to firing without
stated cause and get no hearing.
 The Homeland Security Act extends the definition of a
national security job to many more employees, who
thus lose civil service protection
Why do this?
Is this a good idea?
Putting Limits on the New Property
What due process limits can the state
put on new property it creates by
statute or regulations?
Cleveland Board of Education v.
What was the statutory limitation on firing these
What sort of employment expectation does this
Is this enough to create a property right?
What due process did the state provide for these
employees who were being fired?
Is this consistent with Sinderman?
Loudermill at the United States Supreme
Why did the state say it did not need to follow
How is this supported by the "bitter with the
sweet" doctrine?
Does the United States Supreme Court buy this
What would be the result if the Court had bought
the "bitter with the sweet" doctrine?
 Overrules Arnett
Job Security in Public Workplaces
What is the traditional trade-off between a public
job and a private job?
How can job security for government employees
hurt the general public?
What has been the trend for job security in private
What is the cost of reducing job security for
public employees?
Are medical and legal licenses new
What due process rights would you expect if the
state were revoking your license to practice?
Would you expect the same rights if the state did
not let you take the bar exam?
What does this tell you about your conduct before
you are licensed?
American Manufacturers Mutual Insurance Co.
v. Sullivan (1999)
PA Comp law require employers to pay reasonable
and necessary medical bills
Plaintiffs wanted them paid up front, employers
wanted them to prove the necessity and
reasonableness first
Plaintiffs say this is a termination of benefits and
they want due process
Court says they were not yet qualified and must
prove eligibility
LA Law Note - Title 49, Chapter 13, §961.
C. No revocation, suspension, annulment, or withdrawal
of any license is lawful unless, prior to the institution of
agency proceedings, the agency gives notice by mail to
the licensee of facts or conduct which warrant the
intended action, and the licensee is given an opportunity
to show compliance with all lawful requirements for the
retention of the license. If the agency finds that public
health, safety, or welfare imperatively requires emergency
action, and incorporates a finding to that effect in its
order, summary suspension of a license may be ordered
pending proceedings for revocation or other action.
These proceedings shall be promptly instituted and
Discussion Problem 1
Assume you are the state health officer
What are your alternative careers?
How would limited job security affect your ability
to protect the public's health?
What interest groups must you satisfy?
Which are strongest in LA?
Discussion Problem 2
How does electing prosecutors affect the way
they do their job?
Is the prosecutors job just to get the most
convictions as possible?
How does this lead to innocent men on death
Would it be better to have career prosecutors?
Rethinking Goldberg
When do you get your hearing?
Social Security Disability
Basic Procedure drill - I
Get a form the office
What is the illness, the work history, the doc?
SSI orders records
A doc at SSI at Disability Determination Service - run by
state as contractor - makes a determination
Sends to regional office
Regional office pays, QA, or denies
Ask for reconsideration
This is all done with records
Social Security Disability
Basic Procedure drill - II
At the state level, the examiner can call the patient's doc
At the fed level, the expert is bound by the patient's doc
Most problems arise because of poor documentation
Applicants can submit new info and get a new evaluation
After denial, you can ask for a hearing before ALJ
At the hearing stage, you ask for an expedited review if
the case is clear
ALJ's decision is final
Volume of Claims
How many claims does SSA decide every year?
How big is the disability system (SSD)?
Why is this important background for Matthews v.
Matthews v. Eldridge (1976)
Why does SSD require periodic review of
When does SSD provide a hearing?
What if the claimant is successful at the hearing?
How long can this take?
Why does the Court find this is less critical than
in Goldberg?
What does plaintiff want?
What data is used for making disability determinations?
Who would be the witnesses and how is their information
Does the claimant's testimony matter?
How does this change the equities of Goldberg?
Why is the administrative decisionmaker less prone to
make errors in this case than in Goldberg?
Cost Benefit Analysis
What are the Mathews factors?
 C = Px V
 Cost = Probability of increased accuracy versus
Value of the benefit
How would you apply these factors to Matthews?
Does plaintiff get his pre-termination hearing?
What about other administrative decisions?
Freedom of Information Act
Key Documents
President Johnson’s Proclamation on the signing
of the original act in 1967
The Congressional Guide to FOIA
Sec. 552 – FOIA
President Johnson’s Statement
This legislation springs from one of our most
essential principles: a democracy works best
when the people have all the information that the
security of the Nation permits. No one should be
able to pull curtains of secrecy around decisions
which can be revealed without injury to the public
Countervailing Interest in Privacy
At the same time, the welfare of the Nation or the
rights of individuals may require that some
documents not be made available.
National Security
As long as threats to peace exist, for example,
there must be military secrets.
Citizen Complaints and Information
A citizen must be able in confidence to complain
to his Government and to provide information,
just as he is -- and should be -- free to confide in
the press without fear of reprisal or of being
required to reveal or discuss his sources.
Personnel Information
Fairness to individuals also requires that
information accumulated in personnel files be
protected from disclosure.
Government Operations
Officials within Government must be able to
communicate with one another fully and frankly
without publicity. They cannot operate effectively
if required to disclose information prematurely or
to make public investigative files and internal
instructions that guide them in arriving at their
Who Uses FOIA and Why?
Burden of Proof
How did the passage of the FOIA change the
burden of proof for persons seeking information
from the government?
Need to Know
What are allowable purposes for requesting
information under FOIA?
What are disallowed purposes?
Interpreting the Law
The DOJ issued an opinion on 12 Oct 2001 saying
that agencies could withhold information if there
was a “sound legal basis for doing so”
Why do you think this was issued?
What did Congress say about this interpretation?
Court Ordered Discovery
Usually only in litigation
Must lead to admissible evidence
Limited ability to get info from non-parties
Puts other side on notice of what you are looking
Constrained by limits in the rules of civil procedure and
in local court rules
How is FOIA different from discovery in litigation?
The Scope of the FOIA
The Federal Freedom of Information Act applies to
documents held by agencies of the executive
branch of the Federal Government. The executive
branch includes cabinet departments, military
departments, government corporations,
government controlled corporations, independent
regulatory agencies, and other establishments in
the executive branch.
Who is Exempted?
The FOIA does not apply to elected officials of the
Federal Government, including the President, Vice
President, Senators, and Representatives.
 Papers of ex-presidents are covered to some
The FOIA does not apply to the Federal judiciary.
Private Persons
The FOIA does not apply to private companies;
persons who receive Federal contracts or grants;
private organizations; or State or local
The Shelby Amendments allow FOIA access to
data produced by universities on federal grants
Information or Records?
The FOIA provides that a requester may ask for records
rather than information.
An agency is only required to look for an existing record
or document
An agency is not obliged to create a new record to
comply with a request.
An agency is neither required to collect information it
does not have, nor must an agency do research or
analyze data for a requester.
Computer Records
When records are maintained in a computer, an agency is
required to retrieve information in response to a FOIA
The process of retrieving the information may result in
the creation of a new document when the data is printed
out on paper or written on computer tape or disk.
Since this may be the only way computerized data can be
disclosed, agencies are required to provide the data even
if it means a new document must be created.
The law requires that each request must
reasonably describe the records being sought.
This means that a request must be specific
enough to permit a professional employee of the
agency who is familiar with the subject matter to
locate the record in a reasonable period of time.
Agency Organization of Records
What if you ask for all the records about toxic
wastes 3 miles from a specific school and the
agency only has the data by state and political
How should you frame requests when you do not
know the specific records you need?
Making a Request
Is there a central clearinghouse?
The US Government Manual
The request letter should be addressed to the
agency's FOIA officer or to the head of the
The envelope containing the written request
should be marked ``Freedom of Information Act
Request'' in the lower left-hand corner.
Basic Elements of a Request
First, the letter should state that the request is
being made under the Freedom of Information Act.
Second, the request should identify the records
that are being sought as specifically as possible.
Third, the name and address of the requester
must be included.
Optional Items
Your phone number – email?
How much you are willing to pay
Why you should get a discount
The format you want
Reasons for expedited processing
First, fees can be imposed to recover the cost of
copying documents.
Second, fees can also be imposed to recover the costs
of searching for documents.
Third, fees can be charged to recover review costs.
Review is the process of examining documents to
determine whether any portion is exempt from
Categories of Requestors
News and Educational
A requester in this category who is not seeking records
for commercial use can only be billed for reasonable
standard document duplication charges.
A request for information from a representative of the
news media is not considered to be for commercial use if
the request is in support of a news gathering or
dissemination function.
The second category includes FOIA requesters
seeking records for commercial use.
Commercial use is not defined in the law, but it
generally includes profitmaking activities.
A commercial user can be charged reasonable
standard charges for document duplication,
search, and review.
Everybody Else
People seeking information for personal use,
public interest groups, and nonprofit
organizations are examples of requesters who fall
into the third group.
Charges for these requesters are limited to
reasonable standard charges for document
duplication and search. Review costs may not be
Small Requests
Small requests are free for a requester in the first
and third categories. This includes all requesters
except commercial users.
There is no charge for the first 2 hours of search
time and for the first 100 pages of documents.
A noncommercial requester who limits a request
to a small number of easily found records will
not pay any fees at all.
Fee Waivers
Fees now must be waived or reduced if disclosure
of the information is in the public interest because it
is likely to contribute significantly to public
understanding of the operations or activities of
the government and is not primarily in the
commercial interest of the requester.
How Long Does the Agency Have?
Under the 1996 amendments to the FOIA, each
agency is required to determine within 20 days
(excluding Saturdays, Sundays, and legal
holidays) after the receipt of a request whether
to comply with the request.
The FOIA permits an agency to extend the time
limits up to 10 days in unusual circumstances.
What if They Ignore You?
However, as a practical matter, there is little that a
requester can do about it. The courts have been
reluctant to provide relief solely because the
FOIA's time limits have not been met.
Administrative Appeals of Denials of
Documents or Fee Waivers
A requester may appeal the denial of a request for a
document or for a fee waiver.
A requester may contest the type or amount of fees that
were charged.
A requester may appeal any other type of adverse
A requester can also appeal because the agency failed to
conduct an adequate search for the documents that were
Filing the Administrative Appeal
An appeal is filed by sending a letter to the head
of the agency.
The letter must identify the FOIA request that is
being appealed.
The envelope containing the letter of appeal
should be marked in the lower left-hand corner
with the words “Freedom of Information Act
Form of the Appeal
An appeal will normally include the requester's
arguments supporting disclosure of the documents.
A requester may include any facts or any arguments
supporting the case for reversing the initial decision.
However, an appeal letter does not have to contain any
arguments at all.
It is sufficient to state that the agency's initial decision is
being appealed.
Judicial Appeal
When an administrative appeal is denied, a
requester has the right to appeal the denial in
A FOIA appeal lawsuit can be filed in the U.S.
District Court in the district where the requester
The requester can also file suit in the district
where the documents are located or in the District
of Columbia.
What is the Standard for Review?
In such a case the court shall determine the
matter de novo, and may examine the
contents of such agency records in camera
to determine whether such records or any
part thereof shall be withheld under any of
the exemptions set forth in subsection (b) of
this section, and the burden is on the
agency to sustain its action.
When does the Court Defer to the
In addition to any other matters to which a
court accords substantial weight, a court
shall accord substantial weight to an
affidavit of an agency concerning the
agency's determination as to technical
feasibility under paragraph (2)(C) and
subsection (b) and reproducibility under
paragraph (3)(B).
How Does the Court Decide if the
Document is Exempt?
In camera review
 This prevents the plaintiff from being able to
attack the claim because he has no information
about the documents being withheld
Vaughn list (Vaughn v. Rosen, 484 F2d 820 (1974)
 Agency must list and describe the documents
and explain why it is claiming an exemption
The Burden Of Justifying The Withholding
Of Documents Is On The Government
How does this combine with de novo review to
make this proceedings complicated and
expensive for the government?
How does this lead to the Taj Mahal of unintended
FOIA Exemptions
There are 9 classes of documents that the agency
may refuse to produce
 This is a discretionary decision unless other
law further restricts disclosure
 For example, there are additional law protecting
trade secrets and classified materials
FOIA Exclusions - What if the Agency Does Not
Want to Admit the Document Exists?
Ordinarily, any proper request must receive an answer
stating whether there is any responsive information, even
if the requested information is exempt from disclosure.
In some narrow circumstances, acknowledgement of the
existence of a record can produce consequences similar
to those resulting from disclosure of the record itself.
 Admitting you have a record about a confidential
informant would give away the identity
What if You Ask for an Excluded Record?
The exclusions allow an agency to treat certain
exempt records as if the records were not subject to
the FOIA.
An agency is not required to confirm the existence of
three specific categories of records.
If these records are requested, the agency may
respond that there are no disclosable records
responsive to the request.
Glomar Response
As you may know, a "Glomar" response is an agency's express
refusal even to confirm or deny the existence of any records
responsive to a FOIA request. This type of response was first
judicially recognized in the national security context. Phillippi v.
CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (raising issue of whether
CIA could refuse to confirm or deny its ties to Howard Hughes'
submarine retrieval ship, the Glomar Explorer). Although the
"Glomarization" principle originated in a FOIA exemption (1) case,
it can be applied in cases involving other FOIA exemptions as well,
in particular privacy exemptions (6) and (7)(C).
A "Glomar" response can be justified only when the confirmation
or denial of the existence of responsive records would, in and of
itself, reveal exempt information. (DOJ memo)
Exemption 1.--Classified Documents
The first FOIA exemption permits the withholding
of properly classified documents. Information may
be classified in the interest of national defense or
foreign policy.
The government will often refuse to confirm or
deny if the record even exists.
Exemption 2.--Internal Personnel Rules
and Practices
The second FOIA exemption covers matters that
are related solely to an agency's internal
personnel rules and practices.
2 – Types of Documents Exempted
First, information relating to personnel rules or internal
agency practices is exempt if it is a trivial administrative
matter of no genuine public interest.
Second, an internal administrative manual can be
exempt if disclosure would risk circumvention of law or
agency regulations.
In order to fall into this category, the material will
normally have to regulate internal agency conduct rather
than public behavior.
Exemption 3.--Information Exempt Under
Other Laws
The third exemption incorporates into the FOIA
other laws that restrict the availability of
information. To qualify under this exemption, a
statute must require that matters be withheld from
the public in such a manner as to leave no
discretion to the agency.
IRS records are one example
Exemption 4.--Confidential Business
Trade secrets
Confidential business information
 The courts have held that data qualifies for
withholding if disclosure by the government would
be likely to harm the competitive position of the
person who submitted the information.
 Information may also be withheld if disclosure
would be likely to impair the government's ability to
obtain similar information in the future.
(Do not worry about the Trade Secret/Critical Mass
Confidential Private Information - Chrysler
Corp. v. Brown
Chrysler wanted to enjoin the release of
info by government
Does the APA create a direct right to
enjoin such disclosures?
How could the APA be used to support
the injunction?
 Sec 10 of the APA which prohibits
agency actions contrary to law
Are trade secret protections absolute?
Court also said that the protection of the
trade secret act is not absolute, but the
agency must show some legal basis for
releasing otherwise protected info
When might the agency release trade secret
 Congress does this for toxics in some
Releasing Proprietary Corporate Data
What is the key to deciding whether the data
will be released?
 Was the data is provided voluntarily or
under compulsion?
When is voluntary info covered?
 If it would not ordinarily be available to the
When is compelled info covered?
If it would cause significant harm if not released
What are examples where Congress has
compelled disclosure?
 MSD and community notification act under EPA
Do the companies have to be notified first?
 By executive order, companies must be notified
when the agency wants to divulge their info.
Clinical Trial Data
The FDA is under pressure to release clinical trial
data submitted for new drug approvals
 There are concerns that drug companies are
overstating the benefits and understating the
risks of drugs
What are the FOIA issues?
 How could the agency solve these?
Exemption 5.--Internal Government
The FOIA's fifth exemption applies to internal
government documents.
An example is a letter from one government department
to another about a joint decision that has not yet been
Another example is a memorandum from an agency
employee to his supervisor describing options for
conducting the agency's business.
Include lawyer client privilege
Protecting Deliberation- NLRB v. Sears,
Roebuck & Co.
What does the regional office do when there is an
unfair labor practices complaint it does not want
to adjudicate?
 The office of counsel makes the final decision
in an appeal memorandum
Who does it ask for advice and what does it get?
 When the regional office is considering such a
request it gets an advice memorandum from
What did Sears want?
Sears wanted documents exchanged
between the NLRB counsel and the regional
What privilege did the NLRB claim?
 Agency claimed (b)(5) agency
memorandum privilege
Why did Sears say it did not apply?
Sears says these reflect policies already adopted
by the agency and thus are not subject to this
exception because they do not further agency
What presidential privilege does this resemble?
 Exemption 5 mirrors the executive privilege to
not disclose certain documents in litigation
When does this Exemption Apply?
To fall into the exemption, the documents must
be part of the agency decisionmaking process
What does the court want to protect?
 The courts want to protect the "frank
discussion of legal and policy matters" so
that agencies will not be completely swayed
by public opinion
What else does Exemption 5 cover?
 Exemption 5 also covers attorney work
What is the key test?
Are the they pre-decisional documents or
documents that implement or explain the
Why do advice and appeals
memos not fall under 5?
They are not sent until Counsel makes its
decision on not filing a complaint, and thus do not
fall under 5
What about memos which direct the filing of a
 They just initiate the process and are clearly
part of an ongoing transaction which includes
further decisionmaking and legal advice, thus
they are subject to 5
What if exempt materials are used as part
of a record for a ruling?
Materials that might be sec 5 exempt lose
their exemption if the agency relies on them
as part of the record for a ruling
If the agency then finds it cannot release
them, the record for the rule would fail
Exemption 6.--Personal Privacy
The sixth exemption covers personnel, medical,
and similar files the disclosure of which would
constitute a clearly unwarranted invasion of
personal privacy.
This exemption protects the privacy interests of
individuals by allowing an agency to withhold
personal data kept in government files.
 "which would constitute a clearly unwarranted
invasion of personal privacy"
 Allows release of info which is not so intrusive
Only individuals have privacy interests.
Corporations and other legal persons have no
privacy rights under the sixth exemption.
What about personnel files of supreme court
 Can the government withhold them even if the
person says it is OK to release them?
Tape of the last minutes of the space shuttle?
 Why would the paper want the tape when they
had the transcript?
Exemption 7.--Law Enforcement
The seventh exemption allows agencies to
withhold law enforcement records in order to
protect the law enforcement process from
Types of Interference I
A) could reasonably be expected to interfere with enforcement
(B) would deprive a person of a right to a fair trial or an impartial
(C) could reasonably be expected to constitute an unwarranted
invasion of personal privacy,
(D) could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on
a confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of
a criminal investigation or by an agency conducting a lawful
national security intelligence investigation, information furnished
by a confidential source,
Types of Interference II
(E) would disclose techniques and procedures for
law enforcement investigations or prosecutions,
or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure
could reasonably be expected to risk
circumvention of the law, or
(F) could reasonably be expected to endanger the
life or physical safety of any individual
Why Have This List?
This was added in 1974
 Why 1974?
The previous provision was short, but gave the
government very broad discretion to withhold
anything that touched on law enforcement
This list was meant to limit discretion and
encourage the release of information
What is a Law Enforcement Purpose?
Remember that law enforcement agencies are
also big employers with extensive non-law
enforcement activities
What are the Privacy Interests?
The FBI collects lots of raw info on people
Why not release it to the newspapers?
What about "rap" sheets?
Exemption 8.--Financial Institutions
The eighth exemption protects information that is
contained in or related to examination, operating,
or condition reports prepared by or for a bank
supervisory agency such as the Federal Deposit
Insurance Corporation, the Federal Reserve, or
similar agencies.
Exemption 9.--Geological Information
The ninth FOIA exemption covers geological and
geophysical information, data, and maps about
This exemption is rarely used - but LA and Texas
would be good places to find it used, if anywhere.
The Privacy Act - Access to Your Own
The Privacy Act of 1974 provides safeguards against an
invasion of privacy through the misuse of records by
Federal agencies.
In general, the act allows a citizen to learn how records
are collected, maintained, used, and disseminated by the
Federal Government.
The act also permits an individual to gain access to most
personal information maintained by Federal agencies and
to seek amendment of any inaccurate, incomplete,
untimely, or irrelevant information.
The Privacy Act Policy
Why is it important for you to get access to the
information the government keeps about you?
Why might you want to challenge the accuracy of
information in government files?
Why is it important that the Privacy Act requires
agencies to publish descriptions of the systems
they use to keep records?
The Computer Matching and Privacy
Protection Act of 1988
The Computer Matching and Privacy Protection
Act of 1988 amended the Privacy Act by adding
new provisions regulating the use of computer
If the government already has the information,
why is computer matching a big issue?
Can You Just Ask for All of Records the
Government Has?
There is no central index of Federal Government
records about individuals.
An individual who wants to inspect records about
himself or herself must first identify which agency
has the records.
Getting Other People’s Records
A request for access under the Privacy Act can only be
made by the subject of the record.
An individual cannot make a request under the Privacy
Act for a record about another person.
The only exception is for a parent or legal guardian who
may request records on behalf of a minor or a person
who has been declared incompetent.
It is a crime to knowingly and willfully request or obtain
records under the Privacy Act under false pretenses.
Privacy Act Process
This mirrors FOIA Process
We will not cover this in any more detail
Sunshine/Open Meeting Acts
Why have these laws?
What are the benefits?
What are the costs?
What does a Baton Rouge School Board meeting
look like?
State vs. Federal Law
How broad are the state laws as compared to the
federal law?
Federal law has 10 exemptions
 Federal law and exemptions
Most of the states are broader
How do agencies try to get around
Sunshine acts?
Work off written documents - remember the
exemption for intra-agency memos?
Meet in groups of two
Have staff do the meetings and then rubber stamp
the results
What is a meeting?
Why is this a critical definition?
What did the Moberg case find?
 The Moberg case found that the critical
definition was whether there was a quorum
present of either the governing body or its
committees, unless it was a social or chance
 Could you set the quorum very high, assuming
you could ever get them together when you
needed to act?
The United States Supreme Court used a
narrower definition under the federal law in
 They are only meeting when they are
 They can get together privately when they
are receiving information and having
informal background discussions
What do you tell your clients?
Comply with notice
Do not make the decisions at the
background sessions
Clearly separate them, at least in time.
What sanctions can you get if prevail on a
claim that a meeting should have been
 You can get attorney's fees if you prevail
on a claim that a meeting should have
been open
Can the federal court overturn actions
because of improperly closed meetings?
Federal law does not allow the court to
overturn an agency action because a
meeting was improperly closed
Some states do allow this, plus providing
other penalties
Administrative Searches
The Lessons from See and Camara
More Information on Administrative Searches
Administrative Searches and Terrorism
Post 9/11, the distinction between administrative
law and criminal law has been blurred
The Bush administration is calling for
administrative search warrant powers to
investigate terrorism
During the post-Katrina searches for bodies,
police confiscated fire-arms they found
This set of slides discusses how administrative
searches differ from criminal law searches
Fourth Amendment
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be seized."
Criminal Law
What does the 4th Amendment require for
searches to find evidence in criminal
 Warrant that specifically describes the
premises to be searched and what is being
 Probable cause based on reliable information
 Judicial approval
What are the exceptions?
Plain view
 Telephoto lenses?
 Space cameras?
 Infrared?
 How did you get where are you viewing from?
Hot pursuit
Securing the scene to prevent injuries
Camara V. Municipal Court, 387 U.S. 523
Where did this happen?
 San Francisco
What violations were the housing inspectors
looking for?
 Violation of the occupancy permit
What crime was defendant charged with?
 Not allowing the inspection
The Municipal Ordinance
Authorized employees of the City departments or
City agencies, so far as may be necessary for the
performance of their duties, shall, upon
presentation of proper credentials, have the right
to enter, at reasonable times, any building,
structure, or premises in the City to perform any
duty imposed upon them by the Municipal Code."
The Writ of Prohibition
What are the defendant's allegations of
unconstitutional actions?
 Unconstitutional search under the 4th
Amendment, as applied to the states by the
14th Amendment
Not granted by the state courts
Frank v. Maryland, 359 U.S. 360 (1959)
"In Frank v. Maryland, this Court upheld the
conviction of one who refused to permit a
warrantless inspection of private premises for the
purposes of locating and abating a suspected
public nuisance." (Camara)
The Frank Rule
...municipal fire, health, and housing inspection
programs "touch at most upon the periphery of
the important interests safeguarded by the
Fourteenth Amendment's protection against
official intrusion," because the inspections are
merely to determine whether physical conditions
exist which do not comply with minimum
standards prescribed in local regulatory
The Fourth Amendment
Does the text of the Fourth Amendment
distinguish between criminal and administrative
Were the Drafters of the Constitution familiar with
administrative searches?
 Can you think of examples of colonial
administrative law?
Why is the Intent of the Search Critical?
Since the inspector does not ask that the property
owner open his doors to a search for "evidence of
criminal action" which may be used to secure the
owner's criminal conviction, historic interests of
"self-protection" jointly protected by the Fourth
and Fifth Amendments are said not to be involved,
but only the less intense "right to be secure from
intrusion into personal privacy." (Camara)
Criminal Law Nexus
Can administrative violations lead to criminal
What bind does this put a property owned in who
wants to challenge the authority of the inspector?
How does the Camara court think this changes
the Frank balancing factors?
Does a Warrant Requirement Mean No
In assessing whether the public interest demands
creation of a general exception to the Fourth
Amendment's warrant requirement, the question
is not whether the public interest justifies the type
of search in question, but whether the authority to
search should be evidenced by a warrant, which
in turn depends in part upon whether the burden
of obtaining a warrant is likely to frustrate the
governmental purpose behind the search.
Standards for Criminal Probable Cause
"For example, in a criminal investigation, the police may
undertake to recover specific stolen or contraband
goods. But that public interest would hardly justify a
sweeping search of an entire city conducted in the hope
that these goods might be found. Consequently, a search
for these goods, even with a warrant, is "reasonable"
only when there is "probable cause" to believe that they
will be uncovered in a particular dwelling."
Government Interest in Public Health
The primary governmental interest at stake is to
prevent even the unintentional development of
conditions which are hazardous to public health
and safety. Because fires and epidemics may
ravage large urban areas, because unsightly
conditions adversely affect the economic values
of neighboring structures, numerous courts have
upheld the police power of municipalities to
impose and enforce such minimum standards
even upon existing structures.
General Versus Specific Probable Cause
There is unanimous agreement among those most
familiar with this field that the only effective way to seek
universal compliance with the minimum standards
required by municipal codes is through routine periodic
inspections of all structures.
It is here that the probable cause debate is focused, for
the agency's decision to conduct an area inspection is
unavoidably based on its appraisal of conditions in the
area as a whole, not on its knowledge of conditions in each
particular building.
Factors Supporting General Probable
First, such programs have a long history of judicial and
public acceptance.
Second, the public interest demands that all dangerous
conditions be prevented or abated, yet it is doubtful that
any other canvassing technique would achieve
acceptable results.
Finally, because the inspections are neither personal in
nature nor aimed at the discovery of evidence of crime,
they involve a relatively limited invasion of the urban
citizen's privacy.
The Frank Consensus
"Time and experience have forcefully taught that the
power to inspect dwelling places, either as a matter
of systematic area-by-area search or, as here, to
treat a specific problem, is of indispensable
importance to the maintenance of community
health; a power that would be greatly hobbled by
the blanket requirement of the safeguards
necessary for a search of evidence of criminal
Prevention v. Punishment
"The need for preventive action is great, and city after
city has seen this need and granted the power of
inspection to its health officials; and these inspections
are apparently welcomed by all but an insignificant few.
Certainly, the nature of our society has not vitiated the
need for inspections first thought necessary 158 years
ago, nor has experience revealed any abuse or inroad on
freedom in meeting this need by means that history and
dominant public opinion have sanctioned."
Standards for an Area Warrant
Such standards, which will vary with the municipal
program being enforced, may be based upon:
 the passage of time
 the nature of the building (e. g., a multi-family
apartment house)
 the condition of the entire area
[T]hey will not necessarily depend upon specific
knowledge of the condition of the particular dwelling.
Emergency Exceptions
[N]othing we say today is intended to foreclose
prompt inspections, even without a warrant, that
the law has traditionally upheld in emergency
Examples of Emergencies
North American Cold Storage Co. v. City of Chicago, 211
U.S. 306
 (seizure of unwholesome food);
Jacobson v. Massachusetts, 197 U.S. 11
 (compulsory smallpox vaccination);
Compagnie Francaise v. Board of Health, 186 U.S. 380
 (health quarantine);
Kroplin v. Truax, 119 Ohio St. 610, 165 N. E. 498
 (summary destruction of tubercular cattle)
Practical Considerations
When does the Court say is the time to get an area
Why would this be burdensome to the agency?
What would you suggest as an alternative?
See v. Seattle, 387 U.S. 541 (1967)
Routine fire inspection of a commercial
Done as part of a city-wide sweep
Owner was prosecuted for refusing to allow the
Key Question
Do business establishments have a diminished
expectation of privacy under the 4th Amendment?
 "The businessman, like the occupant of a
residence, has a constitutional right to go about
his business free from unreasonable official
entries upon his private commercial property. "
Further Gloss on Area Warrant
"But the decision to enter and inspect will not be
the product of the unreviewed discretion of the
enforcement officer in the field. "
The Dissent
Today the Court renders this municipal
experience, which dates back to Colonial days, for
naught by overruling Frank v. Maryland and by
striking down hundreds of city ordinances
throughout the country and jeopardizing thereby
the health, welfare, and safety of literally millions
of people.
Predicted Impact
But this is not all. It prostitutes the command of
the Fourth Amendment that "no Warrants shall
issue, but upon probable cause" and sets up in
the health and safety codes area inspection a
newfangled "warrant" system that is entirely
foreign to Fourth Amendment standards. It is
regrettable that the Court wipes out such a long
and widely accepted practice and creates in its
place such enormous confusion in all of our
towns and metropolitan cities in one fell swoop.
State Law Limitations
See and Camara only deal with the US
Constitutional Issues
Some state constitutions have greater
protections and the legislatures can enact greater
City of Seattle v. McCready, 123 Wash. 2d 260, 868
P.2d 134 (Wa. 1994)
 Rejects general area warrants
U.S. v. Biswell, 406 U.S. 311 (1972)
Federally licensed gun dealer
Police officer and federal treasury agent show up
and ask to see the books and the storeroom
Owner consents and they find an illegal weapon
Owner is prosecuted and attacks the search as
not having even an area warrant
Pervasively Regulated Industries
When a dealer chooses to engage in this pervasively
regulated business and to accept a federal license, he
does so with the knowledge that his business records,
firearms, and ammunition will be subject to effective
Each licensee is annually furnished with a revised
compilation of ordinances that describe his obligations
and define the inspector's authority. The dealer is not left
to wonder about the purposes of the inspector or the
limits of his task. (Biswell)
New York v. Burger, 482 U.S. 691 (1987)
Search of junk yard for stolen goods
Lower court excluding the evidence
 "the fundamental defect [of 415-a5] . . . is that [it]
authorize[s] searches undertaken solely to uncover
evidence of criminality and not to enforce a
comprehensive regulatory scheme. The asserted
'administrative schem[e]' here [is], in reality, designed
simply to give the police an expedient means of
enforcing penal sanctions for possession of stolen
Does the History of the Regulations
Firearms and alcohol have always been regulated
We pointed out that the doctrine is essentially defined by
"the pervasiveness and regularity of the federal
regulation" and the effect of such regulation upon an
owner's expectation of privacy. See id., at 600, 606. We
observed, however, that "the duration of a particular
regulatory scheme" would remain an "important factor"
in deciding whether a warrantless inspection pursuant to
the scheme is permissible. (United States Supreme Court
in Burger)
Alternative Standard
...where the privacy interests of the owner are
weakened and the government interests in
regulating particular businesses are
concomitantly heightened, a warrantless
inspection of commercial premises may well be
reasonable within the meaning of the Fourth
Amendment. (Burger)
Criteria for Searches of Regulated
Substantial Government Interests
First, there must be a "substantial" government interest
that informs the regulatory scheme pursuant to which the
inspection is made.
 ("substantial federal interest in improving the health
and safety conditions in the Nation's underground and
surface mines");
 (regulation of firearms is "of central importance to
federal efforts to prevent violent crime and to assist
the States in regulating the firearms traffic within their
 (federal interest "in protecting the revenue against
various types of fraud").
"Necessary to further [the] regulatory
For example, in Dewey we recognized that forcing
mine inspectors to obtain a warrant before every
inspection might alert mine owners or operators
to the impending inspection, thereby frustrating
the purposes of the Mine Safety and Health Act -to detect and thus to deter safety and health
Must be a constitutionally adequate
substitute for a warrant
In other words, the regulatory statute must
perform the two basic functions of a warrant:
 it must advise the owner of the commercial
premises that the search is being made
pursuant to the law and has a properly defined
 and it must limit the discretion of the inspecting
What is necessary to substitute for a
To perform this first function, the statute must be
"sufficiently comprehensive and defined that the
owner of commercial property cannot help but be
aware that his property will be subject to periodic
inspections undertaken for specific purposes."
In addition, in defining how a statute limits the
discretion of the inspectors, we have observed
that it must be "carefully limited in time, place,
and scope."
How Do These Apply to Burger?
First, the State has a substantial interest in
regulating the vehicle-dismantling and
automobile-junkyard industry because motor
vehicle theft has increased in the State and
because the problem of theft is associated with
this industry.
Second, regulation of the vehicle-dismantling
industry reasonably serves the State's substantial
interest in eradicating automobile theft. It is well
established that the theft problem can be
addressed effectively by controlling the receiver
of, or market in, stolen property.
Finally, the "time, place, and scope" of the inspection is
The officers are allowed to conduct an inspection only
"during [the] regular and usual business hours."
The inspections can be made only of vehicle-dismantling
and related industries.
And the permissible scope of these searches is narrowly
 the inspectors may examine the records, as well as
"any vehicles or parts of vehicles which are subject to
the record keeping requirements of this section and
which are on the premises."
Licenses and Permits
Restaurant license, elevator license, shellfish
processing license
 Issued on set criteria established through
stature or regulation
Can require consent to searches as a condition of
 Restaurant licenses - any time during regular
business hours
Are these pervasively regulated
Substantial Government Interests?
Necessary to further the regulatory scheme?
Must be a constitutionally adequate substitute for
a warrant?
What about Evidence of Unrelated Crime?
What if the housing inspector finds your stash of
stolen DVD players
What if the restaurant inspector finds the cook's
stash of cocaine?
What did Camara say?
Finally, because the inspections are neither personal
in nature nor aimed at the discovery of evidence of
crime, they involve a relatively limited invasion of the
urban citizen's privacy.
Administrative Searches and Terrorism
How would administrative search authority
change the way searches are done for terrorist
What is the constitutional justification for such
searches, under the See and Camara rulings?
What implications would such searches have for
later criminal prosecutions?
Carry over from last readings
Paul v. Davis
Paul v. Davis let the sheriff give out a list of "active
shoplifters" even if defendant had not been convicted
The court distinguished Constantineau:
 Said that there was a stigma because drunks could not
buy alcohol.
What did Justice Brennan say this would allow the states
to do?
 Have commissions do ex parte trials as long as all
they did was public condemnation, such as calling the
person a Communist or a traitor.
Public Child Abuse Registries
Valmonte v. Bane, 18 F.3d 992 (2nd Cir.(N.Y.) 1994)
 Plaintiff was put on the child abuse register because
of a complaint
 Employers were required to check this list
 Court found that this deserved a hearing
Siegert v. Gilley, 500 U.S. 226 (1991)
 Defamatory job recommendations from Government
 Not a constitutional violation
Perverts R/US WWW Sites
Privacy loses to security
United States Supreme Court recently ruled that persons
convicted of even minor sex related crimes, such as
public indecency as teenagers, could be put on a state
WWW site without a hearing.
 Connecticut Dept. of Public Safety v. Doe, 123 S.Ct.
1160, 71 USLW 4125, 71 USLW 4158 (2003)
 Smith v. Doe, 123 S.Ct. 1140, 71 USLW 4182 (2003)
Claimed this was police power prevention, not
What is the Role of Hearings?
How do we balance agency costs and
efficiency against individual rights and
community perception of fairness?
Social Security Disability
Basic Procedure drill - I
Get a form the office
What is the illness, the work history, the doc?
SSI orders records
A doc at SSI at Disability Determination Service - run by
state as contractor - makes a determination
Sends to regional office
Regional office pays, QA, or denies
Ask for reconsideration
This is all done with records
Social Security Disability
Basic Procedure drill - II
At the state level, the examiner can call the patient's doc
At the fed level, the expert is bound by the patient's doc
Most problems arise because of poor documentation
Applicants can submit new info and get a new evaluation
After denial, you can ask for a hearing before ALJ
At the hearing stage, you ask for an expedited review if
the case is clear
ALJ's decision is final
Volume of Claims
How many claims does SSA decide every year?
How big is the disability system (SSD)?
Why is this important background for Matthews v.
Matthews v. Eldridge (1976)
Why does SSD require periodic review of
When does SSD provide a hearing?
What if the claimant is successful at the hearing?
How long can this take?
Why does the Court find this is less critical than
in Goldberg?
What does plaintiff want?
What data is used for making disability determinations?
Who would be the witnesses and how is their information
Does the claimant's testimony matter?
How does this change the equities of Goldberg?
Why is the administrative decisionmaker less prone to
make errors in this case than in Goldberg?
Cost Benefit Analysis
What are the Mathews factors?
 C = Px V
 Cost = Probability of increased accuracy versus
Value of the benefit
How would you apply these factors to Matthews?
Does plaintiff get his pre-termination hearing?
What Other Issues are at Stake?
Is it possible to really assign numeric values to
these parameters and do a rigorous comparison?
Is accuracy the only criteria?
 Are jury trials accurate in this sense?
 Why do we have them?
Why does it matter what the public thinks of the
Right to Counsel in Administrative
Was there a right to appointed counsel in
Where there any limitations on her hiring a
Why was that unrealistic for her?
Can the government limit your ability to privately
retain counsel?
Walters v. National Ass'n of Radiation
Upholds $10 limit on attorney's fees in VA
When was this passed?
What was the intent at the time?
What is the effect in 1985?
 No attorney representation
Why does the VA not like Attorneys?
Just gum up the machine
Do not increase accuracy
Who does represent veterans?
 Lay persons from support organizations
Any evidence attorneys would do better?
Representing Veterans before the VA
This case is still good law, making it very difficult for
veterans to fight claims denials.
You can get fees when you file in Ct Ap Vet Claims
 Limit of 20% in the regulations
 Review of fee agreements by the court of vet apps
 Fees available if position of DVA was not justified hard to prove
See: if you are interested
in representing veterans before the VA.
Ingraham v. Wright
Paddling school kids
What is the alleged harm?
What are the alleged constitutional law violations?
Why isn't paddling cruel and unusual?
Administrative Costs
What do the plaintiffs really want?
How will requiring a hearing before paddling
advance their ultimate goal?
Goss Style Give and Take
Goss was the suspension case
Got informal give and take before suspension
 No confronting witnesses
 No counsel
How is Goss distinguishable from Ingram?
How is the Mathews analysis used in
What is the cost of a hearing?
What is the potential benefit?
 Was there evidence of widespread problems?
 Why did the court talk about the open nature of
 Would paddling in prison be different?
Why is there little chance for error?
Why not even a Goss hearing in Ingram?
What are Alternative Remedies?
Tort claims under state law
 Negligence
 Intentional torts
 May be immune
42 USC 1983 claims
What would you need to show to make an
alternative claim?
Tort Remedies as Due Process
What are the limitations on a tort remedy as a
substitute for due process?
 How do you pay for tort law?
 What are the potential recoveries?
 What is the timeframe?
 What about governmental immunity?
 How would tort law work in these cases?
Contract Remedies - Lujan v. G & G, 121
S.Ct. 1446 (2001)
State contract terms required contractors to pay
prevailing wage rates
If there was a dispute, the state would withhold
the payments until the dispute was settled
Plaintiff claimed this was deprivation of property
without a hearing
Do they get a hearing?
If not, what is the remedy?
Academic decisionmaking
Why is there a greater due process right for nonacademic discipline than for academic failure?
What does the Board of Curators of the U. of Mo.
V. Horowitz (Horowitz case) tell us about due
process rights for students who are flunked out
and why?
What should you do if you are representing such
a student?
Club Misty v. Lanski, 208 F2d 615 (7th Cir
Why are there special considerations in analyzing
liquor sales under the constitution?
What is local option on liquor sales?
Why was allowing local voters to cancel a specific
liquor license problematic?
What process would be necessary if the voters
elected a politician who ran on a platform of
closing the same joint?
When is a Hearing Right Meaningless?
Parratt v. Taylor
Prison negligently lost plaintiff's hobby kit
Why was a hearing meaningless in this case?
Is a state tort claim a meaningful remedy?
What remedy would you set up?
Hudson v. Palmer
Guard intentionally destroyed prisoner's stuff
Why was a hearing meaningless in this case?
How can due process be satisfied?
What are the appropriate remedies?
 Should the prison pay for the inmate's stuff?
Daniels v. Williams
Jail prisoner slips on pillow on stairs
Sues for 1983 due process deprivation for injury
What does the court say satisfies the due process
NB - Things like negligent prison health care are
actionable as cruel and unusual punishment, not
due process violations
Zinermon v. Burch
Negligence as sham to avoid due process
State fails to give mental patient statutory due process
before locking him up
Defendant hospital claimed this was negligent and thus
the only remedy was state tort law
Was he locked up for a long time?
How does this affect the defense?
What did the court say about the "I forgot to get him a
hearing defense?"
Problems - 699
Review and be prepared to discuss
Towing Dr. Smith's car
The White House Press Pass
The Suspension Hearing
Hearings and Accuracy of Agency
Assume that 60% of contested proceedings that
are appealed to an ALJ are found in the claimants'
Does this show that the decisionmaking is wrong
more often than it is right?
What other information do you need?
Why might judges have a different review
standard than the case worker?
Alternatives to Hearings
How are regulations an alternative to hearings?
 Why are they more rigid?
 In what sense are they fairer?
What about ombudsmen?
 Why do congresspersons like for agencies to
make mistakes?
 What is the separation of powers issue?
Administrative Law - 24 Oct 2006
Agency Organization
Traditional Government Functions
 Legislative (Rulemaking)
 Judicial (Adjudication)
 Executive (Prosecution)
Why are the separated by the Constitution?
What is the problem of combining them in an
Constitutional v. APA Limits on Combining
Functions in Adjudications
The APA provides that should be some separation
of functions in adjudications to reduce the conflict
between prosecuting and judging a case
This is not a constitutional requirement
 The United States Supreme Court will allow a
decisionmaker to have other roles
 There are limits - you have to argue that the
facts make the appearance of conflict
Protections for ALJs
Civil Service protections
Cannot be assigned other duties - no cleaning the
toilet if the Secretary does not like your rulings
Nash v. Bown, 869 F2d 675 (Cir2 1989)
 Can have performance goals
 Cannot have decisional quotas
What if quality control guidelines are biased
toward supporting the agency position?
Bias by Agency Heads - Withrow v. Larkin
421 US 35 (1975)
Medical board case
Same agency investigated the case, then pulled
the doc's license
No problem, at the constitutional level
Is there something special about a medical board
Who usually sits on a medical board?
What is the notice and record issue?
Criminal and Civil Law Parallels in
Criminal law judges may rule on probable cause
warrants and then also preside over the case
resulting from the warrant
Civil law judges make many decisions in pretrial
proceedings that would bias their ruling in the
The problem is that there is a jury making the final
decision in these cases, not the judge
Valley v. Rapides Parish School Bd., 118
F.3d 1047 (Cir5 1997)
Firing a school superintendent
In sum, the record in the case unfolds like a soap opera.
The respective views of the parties were regularly aired
out in the print and broadcast media in the Rapides
Parish area. One need only make a cursory review of the
exhibits and the testimony to get a clear impression of
the rancor and deeply held views of the aforementioned
school board members prior to the discharge hearing.
Indeed, the district court's sparing recitation of the facts
underlying its ruling was a tacit acknowledgment of the
general public's and the school board's awareness of the
details of the accusations in the case.
Court Ruling
Upheld an injunction reinstating the
superintendent until the board could give an
unbiased hearing
No hint from the court about how that might be
FTC v. Cement Institute, 333 US 683 (1948)
FTC issued reports criticizing a certain method of
cost analysis
Plaintiff argued that this showed that the
commissioners were biased against their
business, which relied on this method
Court said this would prevent the agency from
carrying out its legilative mandate
American Cyanmid v. FTC, 363 F2d 757
(Cir6 1966)
Chairman of the FTC had investigated drug company
while counsel of a senate committee
When the FTC investigated a complaint on the same
subject against a drug company, the hearing examiner
ruled for the drug company
The Chairman participated in the commission's
overturning of the hearing officer, but his vote was not
The court found that his participation biased the outcome
Would it have mattered if he had done the same at the
Association of National Advertisers , Inc.
v. FTC
FTC is adopting rules on TV advertising directed
at children
 Chairman has written and spoken at length on
the evils of TV ads aimed at children
 Plaintiffs seek to disqualify him because of bias
What happened in Cinderella?
 Cinderella disqualified the same Chairman from
participating in an adjudication because he had
prejudged some of the facts.
Is the Standard Different for Rulemaking?
Clear and convincing evidence that he
has an unalterably closed mind on
matters critical to the rulemaking.
Can the District Court make this into an
Said there were aspects of an adjudication
to this rule making because there was a
limited statutory right of cross examination
Did the circuit court buy this?
 Rejected because modifications of
rulemaking procedures do not make them
How did the Court Characterize the
Commissioner's Comments?
Discussion and advocacy
What is it going to take to disqualify an
agency head from a rulemaking?
Charlton Heston as head of BATF?
Pillsbury Co. v. FTC
What was the FTC concerned about?
 Monopoly power in flour
How did Congress interfere with the agency action?
 What did Senator Kefauver say?
The court found this improper meddling
 Congress may not require testimony on ongoing
Congress may request information as part of its
congressional casework
Principle of Necessity
What is the Principle of Necessity?
Why is the important for small agencies?
Gibson v. Berryhill, 411 US 564 (1973)
Optometry board was all independent practitioners
Made it unprofessional for optometrists to work for
 Why?
Court disqualified the whole agency
 Necessity does not cover illegal behavior
What if they got the legislature to pass a law preventing
employee optometrists?
Successor Cases
Gibson was an extreme case
Financial conflicts are only one factor to consider,
not the determining factor
Must make a strong factual argument
Morgan I
Statute required a formal rulemaking
 Looks like a formal adjudication
The Secretary had the power to make the decision
 Plaintiffs' submitted written briefs to the agency
 Asst. Secretary conducted the hearing and made
recommendations to the secretary
Secretary made the decision based on the
How is this Different from a Trial?
What did plaintiffs claim about the Secretary's decision?
Did the court allow the Secretary to make the decision if
he did not conduct the hearing?
What did it require him to do?
Why would this be a problem in a modern cabinet level
This was limited in subsequent cases, which found that
the court should not inquire into the thinking of the
secretary, but only look at the record
What can the Secretary Do?
Delegate the right to decide
 Not always permitted
 Adjudications often make policy, which the
secretary should control
Make the hearing officer's decision final after 30 and
intervene if the case is important to policy
Set up an internal appeal process to flag important
Decide the case on an executive summary
Approve regulations based on expert staff
Judicial Review
Basic Requirements
Court must have jurisdiction
Plaintiff must state a recognized cause of action
and seek a recognized remedy
 This is the rub in most of the environmental
cases - what is the plaintiff's interest?
Must be a real case and controversy
 Supreme Court does not give advisory opinions
 States often do
Explicit statutory review provisions in the
enabling act
Should review be by trial courts or appeals
 What do what best?
Which courts usually get rules and final
 Why?
What usually goes to the trial (district
No explicit statutory review in the
enabling act
See other examples in the book.
28 USC 1361
Gives district courts jurisdiction over
mandamus to require an officer or employee
of the US or an agency to perform a duty
owed the plaintiff
42 USC 1343
Jurisdiction to hear cases under 42 USC
1983 and other civil rights statutes (mostly
about state officials)
28 USC 2241-2255
Habeas Corpus
28 USC 1331
Actions arising under federal law, constitution,
treaties, etc.
Gets most federal agency actions
Plaintiff can sue where the defendant resides, the
cause of action arose, or the plaintiff resides,
unless real property is involved
Once 1331 is invoked, the APA 701-706 controls
No $10,000 minimum for jurisdiction for agency
law or federal questions in general
Jurisdiction as a Defendant
While not the best way to get into court, you
always get to defend yourself if the agency drags
you into court
 Unconstitutional actions?
 Beyond statutory authority?
 Arbitrary or capricious action?
Court Orders
What is an injunction?
 An order forbidding someone to do
What do you usually have to show to get a
temporary one?
 Irreparable harm
 Good chance of prevailing on the merits
You then have a hearing on the merits for a
permanent injunction
Is there a right to an injunction?
No right to an injunction
The Court balances the plaintiff's interests
with those of the government
Declaratory Judgment
What is a declaratory judgment?
Why are injunctions and declaratory
judgments the same for agencies?
 You can either enjoin the agency for
acting or ask that the agency's action be
declared illegal
If you are trying to make someone do something,
then the court may call this a mandamus
Why is making the agency do something much
more politically complicated?
 Because in most federal cases courts cannot
substitute their decisions for the agency's
 Not such a problem in state cases
Remember Marbury v. Madison?
Started with Marbury v. Madison, which
asked Madison to issue Marbury's judicial
Discretionary versus Ministerial Act
What must the agency do versus what may
the agency do
Why does this matter for both injunctions
and tort claims act cases?
 Courts will not order discretionary
actions, nor hold the agency liable for
them in damages.
 Big deal in state tort law in most states
Who has Federal Jurisdiction on
Traditionally limited to courts within the
District of Columbia
Now any court can do it, but they are
difficult to get
What is the best way for plaintiffs to force
an agency to act?
Ask for an injunction under 28 USC 1331,
using the language of APA Sec 706(1) which
allows a court to compel an agency action
unlawfully withheld.
Habeas Corpus
Literally, Bring me the body
Provided in the Constitution
Does not depend on state law
Allows someone being held by the state to require
their keeper to bring them before a judge and
justify their confinement
 Suspended by Lincoln during the civil war
 Rejected by the court
What must the State Show in a
Habeas Corpus Hearing?
The legal authority for the confinement
The factual basis for the confinement
In administrative proceedings, the standard for
review is arbitrary and capricious, unless
otherwise specified in statute
How might it be very important for bioterrorism
and homeland security?
Is there a right to bail in administrative
Tort Liability of Officials
What happens if you sue federal officials for
common law torts?
 Common law torts against federal officials
are dismissed and brought against the
government under the FTCA
When can federal officials be personally
Under Bivens, a cause of action for damages can
be brought against federal agents who violate
constitutional rights.
 Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388, 397,
91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
Constitutional torts are actions outside the scope
of employment
Ruby Ridge
Suing State Officials
What is the jurisdictional requirement for a
42 USC 1983 action?
 Acting under color of state law
State and local officials
Local government
Not state government itself
 11th Amendment
Immunity from Liability
Why is personal immunity critical to
government function?
Absolute v. qualified immunity
 1) Prosecutors and adjudicators (ALJs)
get absolute immunity from damage suits
 2) everyone else gets qualified immunity
Federal rules for qualified immunity are the
same as those for state officials under 1983
What does the president and his aides
Nixon established that the president and aids get
absolute immunity for highly sensitive activities
while in office
Clinton established that presidents are still liable
to suit for actions taken before they are president
It is assumed that presidents would be liable for
ordinary torts while in office, but the claim might
be put on hold until the term was over.
What is the test for qualified immunity?
Is the conduct "objectively reasonable"?
There can only be liability for constitutional
violations if the right is "clearly established“
You can get an injunction for a
constitutional violation when you cannot get
Thus you could enjoin a violation without
being able to collect damages
Exceptions to the Federal Tort Claims Act
Comparing 42 USC 1983 and Tort Claims
Review this table
Suing the Federal Government
Traditional Sovereign Immunity
US Constitution
 "No Money shall be drawn from the Treasury,
but in Consequence of Appropriations made by
Law." U.S. Const. art. I, § 9.
All compensation had to be by private bills
 What problems do private bills pose?
Court of Claims
Administrative tribunal to review claims and make
recommendations to Congress
Later Congress made the decisions binding
 Not an Art II court
 Like bankruptcy courts
Appeal to the Federal circuit and the United States
Supreme Court
Contracts, tax refunds, takings - not torts
Federal Tort Claims Act
Went into effect in 1945
All private bills before then
Allowed tort claims
Significant exceptions
Dalehite v. U.S., 346 U.S. 15 (1953)
Texas City Disaster
Why is the TVA producing ammonium nitrate
 Why were they producing it during the war?
Where is it going?
Why might a ship also be carrying explosives?
The General Claim
The negligence charged was that the United
States, without definitive investigation of FGAN
properties, shipped or permitted shipment to a
congested area without warning of the possibility
of explosion under certain conditions. The District
Court accepted this theory.
Specific Findings by the Trial Court
the Government had been careless in drafting and
adopting the fertilizer export plan as a whole,
specific negligence in various phases of the
manufacturing process, and
those which emphasized official dereliction of
duty in failing to police the shipboard loading.
The Statute
(a) Any claim based upon an act or omission of an
employee of the Government, exercising due care,
in the execution of a statute or regulation, whether
or not such statute or regulation be valid, or
based upon the exercise or performance or the
failure to exercise or perform a discretionary
function or duty on the part of a federal agency or
an employee of the Government, whether or not
the discretion involved be abused.
What is the Intent of this Provision?
What is a discretionary function?
Why do we limit claims based on government
 What are the consequences for allowing litigants to
challenge government polices?
 How does this mirror juridical review of rules and
What is the remedy for bad decisions?
What about compensation?
The United States Supreme Court Ruling
What did the United States Supreme Court rule
about the government's actions in this case?
Allen v. United States, 816 F.2d 1417 (10th
Cir. 1987) - The Clears up the Cloud
How did the government put these people at risk?
Did the government deny that they caused any
Was this an accident?
What did the government intend to do?
What is the discretionary authority issue and how
was it resolved?
What do you do if you do not like this?
Berkovitz by Berkovitz v. U.S., 486 U.S.
531 (1988)
What was the product in Berkovitz?
What did the FDA regulations require?
What did the plaintiffs claim the FDA failed
to do?
What was the FDA’s defense?
Polio Vaccine Cases
Salk vaccine
 Dead virus - supposedly
Sabin vaccine
 Live, attenuated vaccine
 Gives a mild infection
 Can spread to others - which is good
 What if someone is immunosuppressed?
Cutter Incident
During the first wave of vaccinations when the
vaccine became available in 1955
Some vaccine was not killed and children became
 Remember, there is still polio in the community
at this time
 First vaccine litigation
 Real injuries, but a real benefit
Post Cutter Incident
Undermined confidence in vaccines
402 A made vaccine cases easier to prove
There was some natural spread from Sabin virus
Swine Flu vaccine came along in 1975 and might
have caused a neurologic disease
Swine Flu
1974-75 flu season
New strain of flu that was thought to resemble the
1918-1919 Spanish Influenza
Feds did a massive vaccine campaign
Companies demanded immunity for lawsuits
Congress let plaintiffs substitute the feds as
plaintiff, and allowed strict liability theories
Swine Flu - Legal Consequences
Huge incentive to find injuries
Diagnosis of Guillain-Barre syndrome was ambiguous
 No lab test
 vague finding in all but the extreme cases
Docs were encouraged to make the diagnosis
Maybe the first big injury case where plaintiff's attorneys
shaped the epidemiology and perception of the disease
Berkovitz happened in this climate - 1979
Varig Airlines (in Berkovitz)
What was the injury in Varig Airlines?
What did the enabling act require the agency
to do?
What did the regs require?
How are the regs in Berkovitz different from
those in Varig Airlines?
Agency Liability
Why was the FDA liable in Berkovitz?
How could the FDA have worded the
regulations to avoid this sort of liability?
Why might that have raised a red flag during
notice and comment?
LA follows Berkovitz
 (added 31 Oct)
Bird Flu
What are the legal issues?
How can the feds deal with these?
What about rolling an experimental vaccine?
What if the feds make you take the experimental
 What does Jacobson tell us?
And it harms you?
 What does Allen tell us?
Leleux v. United States, 178 F.3d 750 (5th
Cir. 1999)
What are the facts?
What disease did she claim she caught?
Did she consent to the sex?
 Why is that critical to an FTCA claim?
Did she consent to the disease?
 Why does that cause problems with the FTCA?
Can the Government Be Liable When the
Case Involves Battery?
Sheridan v. United States, 487 U.S. 392 (1988)
 Government assumed a duty to restrain a an
intoxicated, armed serviceman
 Government did not carry out this duty properly
Did the case depend on the serviceman being a
government employee?
 What if he had been a civilian?
Contrast Leleux with Sheridan
If the recruiter were not a government employee,
would plaintiff have case against the government?
How does this differ from Sheridan?
Getting into Court
Last week we talked about the statutes that provide
jurisdiction to get into court at all
If you can get into court, then there are three more
 Preclusion - has Congress limited judicial review of
certain matters?
 Standing - does your client have the right interest to
bring the case?
 Exhaustion of remedies - are you finished with the
Basic Constitutional Question Unresolved
Except for certain cases which the Constitution
gives to the United States Supreme Court, all of
the jurisdiction of the federal courts was granted
by Congress
Can Congress take away long-standing
Can Congress take away jurisdiction over basic
constitutional rights like habeas corpus?
Preclusion of Judicial Review
What is the effect of precluding judicial
 Is this favored by the courts?
Where does Matthews v. Eldridge come in?
When would you expect the courts to be
most open to preclusion of review?
When is Preclusion a Good Policy?
The president's decision to accept or reject a list of base
An agency's decision to quit funding a health program
out of lump sum appropriations
An agency's refusal to reconsider its own decisions
The CIA director's decision to fire an employee when the
statute says he can do so whenever such termination is
necessary or advisable in the interests of the united
 (the decision was reviewable on constitutional
What are You Really Asking the Court
to Review?
The key in cases where preclusion is an
issue is what you really want reviewed.
Is it a fact found by the agency?
An exercise of agency discretion?
Whether the agency is acting beyond its
legal authority?
Whether the agency is acting
Statutory Limits on Judicial Review
The courts read statutory limits on judicial review
very narrowly
 Abbott stated the modern policy
 There should be agency review unless the
statute clearly precludes review
Even when the statute seems to preclude review,
the courts will often allow review anyway.
Bowen v. Michigan Academy of Family
Dispute over the policy on the payment rate for
Medicare Claims
 Individual claims are decided by private
contractors called fiscal intermediaries
 Why did congress preclude review of individual
claims decisions?
What is the Matthews analysis?
What is the distinction between reviewing the regs
and reviewing the individual claims?
Limiting Review of Regulations
Congress can put a statute of limitations on
the review of regs
 Often 60 days
 What if do not know about the
applicability of the reg until later?
What cannot be precluded?
Committed to Agency Discretion
The statute may also preclude judicial review by
committing the matter to agency discretion
This is a broad limitation on review and is
construed narrowly.
Classic Examples
Prosecutorial discretion
 Can you sue prosecutors to force them to bring
 Can you think of a possible exception?
Agency enforcement decisions
What was the prisoner’s claim in Heckler v. Chaney?
 (Court could have dodged on a medical practice
What will you have to show to get a court to force action?
Modern Formulation for Committed to
Agency Discretion: No Law to Apply
Judicial review must be based on some standard
 Constitutional cases are decided by reference
to the constitution
 Chevron cases are decided by looking at the
enabling act giving the agency power
If the agency action satisfies both of these, then
further review depends on finding criteria to
evaluate the agency action
Agency Discretion Implies Freedom to
Why is the problem of no law to apply the real
reason why the courts do not review discretionary
This is the key to discretion cases, esp. cases like
Heckler v Chaney, where there is no statute or
regulation to set the standard of conduct
Why does this make it nearly impossible to review
an agency's discretionary failure to act?
What Can You Do if the Agency Claims it
does not have to Act?
(i) is it really discretionary?
(ii) is it based on a erroneous legal determination?
(iii) does the statute allow a private right of action
against the regulated party, say for adverse health
(iv) you can petition the agency to promulgate a
rule requiring the action
(v) use political power to force the agency to act
The Constitutional minimum for standing Case or Controversy
1) injury in fact that is
 a) concrete and particularized and
 b) actual or imminent, not conjectural or
2) causal connection between the injury and
conduct complained of, it must not be due to the
action of some third party not before the court
3) it must be likely, not speculative, that the injury
will be redressed by a favorable decision
§ 702. Right of review
A person suffering legal wrong because of
agency action,
or adversely affected or aggrieved by
agency action within the meaning of a
relevant statute,
is entitled to judicial review thereof.
Injury in Fact and Zone of Interest Tests
How personal does the injury have to be?
This is the core of many environmental
actions, but is also a key issue in the
business world
 Should Sun have the right to contest an
FTC settlement with Microsoft?
Association of Data Processing Service
Orgs. V. Camp
Comptroller of the Currency allowed national
banks to offer data processes services.
Plaintiffs, who represent other data processors,
claim this violates the national bank act
First question - is there injury in fact?
Second question - is this interest within the
zone of interests meant to be protected by the
APA 702 - "aggrieved by agency action within the
meaning of a relevant statute"
Must the injury be economic?
 Flast - - first amendment challenges to school prayer
What is the statutory issue?
 The act says banks can only do banking services for
 Could be to protect bank customers, not competitors
of banks
What does the court say about the
purpose of the statute?
Does give standing to competitors since it directly
implicates their business
 Could the court have decided this differently?
Doesn’t every regulation that affects a business
also affects its competitors?
Third question - has judicial review been
Preclusion is an extreme result
The court will seldom find that review is precluded
unless it is specifically provided for by the statute
No preclusion provisions in the national bank act
Air Courier v. American Postal Workers
Private Express Statute - Gives USPS a monopoly
on first class mail
USPS wants to suspend it to allow courier
services like Fed Ex
Union fights this, says it will reduce jobs in the
Why is the date the act was passed important to
determining Congressional intent?
Act was passed in 1792 - no postal workers
What did the court determine was the purpose of
the act?
Why was this an important purpose?
Were the postal workers in the zone of interest?
Does Congress or the Constitution
Control Zone of Interest? (corrected)
Congress can control this aspect of
standing, making it broad or narrow in the
enabling act
If Congress is silent, then 702 controls
How was this illustrated in Sierra Club v.
Morton (1972)?
The Sierra club cannot sue to preserve historic
values just because it is interested in them.
Must show that a member has independent
What did Congress do with standing in the
Endangered Species Act?
Allowed "any citizen" to sue to enjoin
certain actions under the act
What was the effect of this provision on the
zone of interest test?
 Court said this abolished the zone of
interest test in these situations
Zone of interest is more difficult for the
courts to determine than injury in fact
Lujan v. Defenders of Wildlife
Plaintiff went to Sri Lanka and saw endangered
animals and was upset and they want to go back
and see the animals again
Plaintiffs argue ecosystem standing
 Everything is connected together so everyone
has standing
Does the court buy this?
Animal Law
Should animals have standing?
What about very smart monkeys?
What about people who empathize with animals?
 Rat Case
Could Congress grant animals standing, with a
guardian ad litem, perhaps?
Could Louisiana?
What are the requirements for an association to have
 a) at least one of their members has standing
 b) the interests the association seeks to protect are
germane to the association's purpose
 c) neither the claim nor the relief requires the
participation of individual members in the lawsuit.
Why is this critical for civil rights and environmental
Tax Payer Actions
Most states allow tax payers to contest what they
claim are illegal expenditures of tax funds
Do the federal courts?
 The feds do not, except in very narrow
Why not?
 Would be a vehicle for contesting all
government action
Standing of Government Agencies
In state law, many states allow agencies to contest the
rulings of other agencies.
 AG's Office in LA
Federal agencies can do the same only if there is specific
statutory authorization
 Otherwise, "an agency in its governmental capacity is
not "adversely affected or aggrieved" by other agency
This driven by the different separation of powers issues
in states v. the feds
Injury in fact
Zone of injury
Hospitals and Charitable Care
Economic incentives to provide care to the poor
 Hill-Burton
 IRS regulations on non-profit status
 State exemptions from property and other taxes,
based on IRS determinations
What if the IRS or the state does not try to enforce these
What is the impact of the community on tax exemption?
Simon v. Eastern Kentucky Welfare Rights
Organization, 426 US 26 (1976)
Can a citizens organization qualify for standing to
challenge an IRS policy that they claim fails to
require adequate amounts of charitable care?
The members argued that they were in the zone of
interest and had suffered individual injury
because they have been denied charitable care.
What is the Nexus with the IRS Policy?
The majority opinion found that there was no direct link
between the hospital decision to deny care in an
individual case and the IRS policy.
 Plaintiffs failed to show that the decision was based
solely on tax considerations and that it would be
different if the IRS policy was changed
Justice Brennan was worried that by resting the claim on
injury in fact that Congress could not change the result
Duke Power v. CESG, 438 US 59 (1978)
Plaintiffs lives near an atomic power plant
They claimed that the Price-Anderson Act
unconstitutionally denied them common law tort
The court found that their being exposed to the
thermal pollution and the aesthetic aspects of the
plant constituted injury in fact
They lost anyway - no constitutional right to a tort
Lujan v. Defenders of Wildlife, Round II
Plaintiffs wanted to change the policy of federal agencies
that supported programs in foreign countries that harmed
endangered animals
They argued that these programs should have to be
reviewed by EPA for compliance with the endangered
species act
The court found that forcing this review would not assure
that the US would not fund the project, and the even if the
US pulled out, whether the project would stop
Steel Company v. Citizens for a Better
Environment, 523 US 83 (1998)
This arises under the law that requires industries
to provide information to the community about
toxic chemicals they use
The company failed to provide info in the past, but
is now in compliance
The plaintiffs sue under the jurisdiction granted
by the statute for compensation for private parties
injured by industries regulated by the statute
Is there a Redressible Injury?
The act provided for fines to be paid to the government,
but since it was not a private attorney general provision,
the plaintiffs could not collect these
The plaintiffs argued that should be paid for the cost of
the litigation, but the court said that would be
Other damages were based on deterring future bad
conduct, but there was no claim of a continuing violation
The concurrence argued that punishment could be
considered compensation, but still found that these
plaintiffs did not state a redressible injury.
Friends of the Earth v. Laidlaw Environmental
Services, Inc., 528 U.S. 167 (2000)
Environmental plaintiffs who suffered injury in fact from
mercury discharges into a river had standing to seek civil
penalties that would be paid to the U.S. treasury.
Unlike Steel Company, the plaintiffs were seeking to deter
probable future misconduct and the payment of civil
penalties would be likely to deter future violations.
 The dissent argued that the deterrent came from the
availability of civil penalties, not their imposition.
The lawyering difference was making the case that the
violations were part of a long term problem, not a single
Why is Redressibility a Jurisprudential
Is the issue whether the plaintiff can show a
specific, individualized injury?
 In Laidlaw, specific plaintiffs claimed they were
harmed by the damage to river
 In Eastern Kentucky, the plaintiffs were
attacking a general policy, not a specific
revenue ruling against a specific hospital
Should the court be looking harder at the
Congressional policy behind the act? (Breyer)
In FEC v. Akins, 524 U.S. 11 (1998)
FEC refused to treat the American Israel Public Affairs
Committee (AIPAC) as a "political committee" that is
regulated under the Act
Akins filed a complaint with the FEC but the complaint
was dismissed.
The statute allowed "any person" who believes a
violation of the Act has occurred to file a complaint
before the Commission and further allowed "any person
aggrieved" by a Commission decision dismissing a
complaint to seek judicial review of the dismissal.
Is Akin's Claim Redressible?
What is the injury?
 Akins was deprived of information to which he is
entitled by statute and which he will use to evaluate
candidates for public office.
The Court held that Akins had standing to challenge the
FEC decision.
This was based on the specific statutory purpose of
providing this info and the specific injury to Akins, even
though his injury was no different than that of other
Thought Question
What is really being addressed by allowing
standing for procedural errors?
What is the injury when there is failure to file an
environmental impact statement?
Why don't plaintiffs have to show that the result
would have been different?
Is this like other due process claims?
Congressional Standing
What happened in Raines v. Byrd (1997)?
 Congressmen wanted to contest the line item
 Court said no direct interest, so no standing
What is another way the court could have avoided
deciding this case?
 Political question
Qui Tam Actions
Citizens stand in for the US
Assert the claim of the US
Collect a bounty
Review of Standing
Injury in fact
 Zone of Interest
 Congressional grant of interest
 Injury must be particularized
Associational Standing
At least on member must have standing
Must be consistent with the goals of the
Must not require specific damage calculations or
Is Your Claim Ready for Prime Time?
Ripeness, finality, and exhaustion are hard to
separate in many cases
 Ripeness is whether it is the appropriate time
for the court to review the claim
 The APA is silent on ripeness and exhaustion
 However, APA 704 only authorizes the review of
final agency actions
Instant Ripeness
The agency has brought an enforcement action
against your client
The agency has promulgated an unconstitutional
CBS v. U.S., 316 U.S. 407 (1942)
FCC issues a regulation restricting the network
exclusivity provisions in affiliate contracts with
radio stations
CBS says that this will cause the affiliates to
demand different terms in their contracts, and
thus the dispute is ripe because they are harmed
The FCC says it will not be ripe until there is an
enforcement action
Is the Regulation Ready for Review?
The FCC says it is just policy, and no more
reviewable than a press release
 Think about this in terms of the modern cases
The court finds that it is final and that it is affects
the behavior of the regulated party
 What would the affiliate station lawyer say
about the reg?
 It is self-enforcing in that the parties must
change their behavior or risk legal action
Frozen Foods Express v. US, 351 US 40
The Court found that a 71 page report detailing
the ICC's interpretation of a narrow statutory
provision was reviewable.
This was despite the agency arguing that the
interpretation was not binding
Remember, however, that getting the right to stay
in court is not the same as winning.
This is also a legal question, which the courts are
more likely to review
Abbot Labs v. Gardner
What did the statute require?
 Generic names had to be on labels and other
printed material
What did the FDA require through a regulation?
 FDA promulgated a reg that required that the
generic name of a drug be used every time the
brand name was
This is facial challenge
Why did Abbot and others want preenforcement judicial review?
Compliance would be very costly, but they could
not risk the enforcement penalty.
Abbot claimed great hardship if it had to choose
between complying and getting nailed for a
 Think about relabeling stuff in inventory, and
how much stuff you have to thow out because it
expires while you are working out the new label
What did plaintiffs argue was wrong with
the regulation?
Overstepped agency authority
Why did the FDA claim the action was not ripe?
 FDA claimed it was not ripe because it had not
been applied to any given product
What is the first question in a ripeness
First question is always - does the enabling act
limit pre-enforcement review?
What is the test?
What is the fitness of the issue for review?
What is the harm from not doing pre-enforcement
Is this a question of law or fact?
Does it depend on agency discretion?
Does defendant have a significant injury?
Must the petitioner make significant changes in its
behavior or risk severe penalties?
Is there an alternative means of review - say
through an agency process?
Toilet Goods v. Gardner
FDA required inspector access to the plants
as a condition of certification of the safety of
the agents in the product
How was the injury requirement different
in this case and Abbott?
In this case the court said the injury requirement
was not met - what would it cost to let the
inspector in?
What is the equitable problem with defendant's
 More to the point - why would you want to
exclude the inspector?
Gardner v. Toilet Goods
Companion case
Did the agency exceed its authority in a regulation
establishing definitions for food additives?
This is like Abbott
Policy Implications
How does expanding pre-enforcement review
interfere with agency practice?
Is it better for regulated parties to be allowed preenforcement review?
 What is the downside of post-enforcement
Statutory Limits
Congress can encourage pre-enforcement review
by requiring that challenges to discretionary
judgment in making a reg be brought within 60-90
days after the order is final
Can you attack the reg later?
 If the agency brings an enforcement action, you
can challenge the then
 You can ask for a new or changed reg and
appeal the denial
What if Your Client Did not Know About
the Reg?
Just not knowing is not enough
Must show that you client had a good reason for
not knowing or that the agency blocked his efforts
to get into court
What if the agency changed the definitional
section years later, make all of the reg apply to
your client?
High or Low Point – National Automatic
Laundry v. Shultz, 443 F2d 689 (1971)
The court allowed the review of an advisory letter
Why Does Hardship Matter?
If the matter is otherwise reviewable, why does it
matter if there is hardship?
Shouldn’t the court go ahead and review the
agency action when it is ready, without regard to
NPHA v. Interior, 538 US 803 (2003)
Court backs down from National Automatic
Finds the hardship is important in judicial
Finds that making the defendant wait until there is
an enforcement action allows the agency to add
more factual material to the record, facilitating
What are the requirements for a final order under
sec. 704 of the APA?
 1) the action must mark the consummation of
the agency's decisionmaking process - it must
not be tentative or interlocutory
 2) it must be one by which legal rights and
obligations have been determined or from
which legal consequences will flow
How does the court distinguish finality
from exhaustion?
You have nothing left to do, but the agency
is not finished
Court says 704 specifically allows
intermediate agency actions to be reviewed
when the final action is reviewed.
FTC v. Standard Oil of California (1980) –
(not in the book)
FTC issued a complaint saying it had reason to
believe that the oil companies were engaging in
unlawful competition
 Why does Socal want to contest this
intermediate finding?
United States Supreme Court said it had to be a
final action or otherwise reviewable under 704
Western Illinois Home Health Care v.
Herman, 150 F3rd 659 (1998)
Asst. District Director sent a letter to a regulated
party – probably an administrative order
The party moved for review
Was it final?
 Not tentative or interlocutory
 Established legal duties with penalties
 Thus was final for review purposes
What is the Catch 22 in Franklin v. MA?
What if the agency action must be approved by
the president?
The census is only a recommendation by the
agency to the president, so it is not final
The order is not final until approved
The president's decision cannot reviewed under
the APA because he is not an agency
What are the requirements for a final order under
sec. 704 of the APA?
 1) the action must mark the consummation of
the agency's decisionmaking process - it must
not be tentative or interlocutory
 2) it must be one by which legal rights and
obligations have been determined or from
which legal consequences will flow
FTC v. Standard Oil of California (1980) –
(not in the book)
FTC issued a complaint saying it had reason to
believe that the oil companies were engaging in
unlawful competition
 Why does Socal want to contest this
intermediate finding?
United States Supreme Court said it had to be a
final action or otherwise reviewable under 704
Western Illinois Home Health Care v.
Herman, 150 F3rd 659 (1998)
Asst. District Director sent a letter to a regulated
party – probably an administrative order
The party moved for review
Was it final?
 Not tentative or interlocutory
 Established legal duties with penalties
 Thus was final for review purposes
What is the Catch 22 in Franklin v. MA?
What if the agency action must be approved by
the president?
The census is only a recommendation by the
agency to the president, so it is not final
The order is not final until approved
The president's decision cannot reviewed under
the APA because he is not an agency
Is administrative delay enough to justify
Delay alone is not enough to justify finality
Congress must set some deadlines before the
court can force an agency to speed up
Agencies get to decide how to allocate their
Exhaustion of Administrative Remedies
Somewhat like the final order doctrine
The litigant still has agency appeals left and the
agency might change its mind
Questions of Law
If it is only a question of law with no facts in dispute, then
you do not need to exhaust the agency process
 Constitutional Claims
 Claims of acting beyond the statutory authority
 Claims of improper rulemaking
What is the risk?
 If the court disagrees, you have waived your right to
the agency process
How does the court distinguish finality
from exhaustion?
You have nothing left to do, but the agency
is not finished
Court says 704 specifically allows
intermediate agency actions to be reviewed
when the final action is reviewed.
McCarthy v. Madigan
(Exhaustion/Alternative Remedies)
NOTE - This case has been overruled by statute
for prisoners. It is still good law in other
Federal prisoner brought Bivens action seeking
only money damages for denial of medical care.
 Why Bivens?
Was that remedy available from the prison
administrative grievance process?
The Exhaustion Issue
What can the prisoner gain by exhausting his
administrative remedies?
How does the prison appeals process burden the
 Lots of short deadlines increase the chance he
will screw-up and lose the right to the claim
What are the twin purposes of the
exhaustion doctrine?
Preserves agency authority
Most important when the issue is one of agency
Lets the agency have a chance to rule and
perhaps correct the problem
Prevents end runs on the agency which can
weaken the agency's effectiveness
Judicial efficiency
The agency might moot the controversy
Builds the record for review
What is the most important way to know if
exhaustion applies in the federal system?
Whether Congress requires it in the enabling
Did Congress require exhaustion for
prisoner Biven's claims?
 No
Does the prisoner have to exhaust his
Why does seeking access to medical care
increase the chance that the prisoner can skip the
appeals process?
 Does not directly implicate prison discipline
Will the record of the appeals process assist the
court in making its decision?
 No, it will not develop a detailed factual record.
What is the futility doctrine and how do
you satisfy it?
You argue that there is no chance the agency will
rule for you
Need specific factual allegations, not just a hunch
or guess
What does this look like from other areas of
 The Closed Mind Problem in adjudications
Review of Exhaustion
What are the factors to balance in
exhaustion cases?
1) the nature and severity of the harm
from delay
2) the need for agency expertise in solving
the problem
3) the nature of the issues involved
4) the adequacy of the agency remedy in
relation to the plaintiff's claim
5) is the claim serious or just a delaying
6) the apparent clarity or doubt as to the
resolution of the merits of the claim
7) the extent to which exhaustion is futile
8) the plaintiff's excuse for not exhausting
the remedy, other than futility
Primary Jurisdiction
How do primary jurisdiction and
exhaustion differ?
Exhaustion is when the agency has primary
jurisdiction and the court is recognizing it
Primary jurisdiction is when the court and the
agency both could hear the case and the court
defers to the agency
What are the standards courts use to
determine primary jurisdiction?
1) need for uniform results
2) need for agency expertise
3) that the agency may resolve the issue in a way
that will obviate later judicial review.
May courts defer to agency findings in criminal
 There is no bar to the court deferring to an
agency proceeding in criminal cases.
Nader v. Allegheny Airlines, Inc., 426 U.S.
290 (1976)
Do not bump Ralph!
 There is another case where they bumped a
federal judge
Why was his fraudulent misrepresentation claim
outside of the agency's review?
 Common law remedies were preserved
 The agency did not require over-booking
 He did not attack any agency regs
End of Slides

Administrative Law