Climate Change Project

Table of Contents



Administrative Law Spring 2018 (5402)

Class blog at the LSU Law Center for Professor Richards' Administrative Law Class

January 16

Required Text: (You can buy these online if they are not available. )

Examples & Explanations: Administrative Law, by Funk, Seamon, 5th ed., 2015 – available online at Amazon and BN.COM.

Additional materials such as cases will be posted on this WWW site. Any proprietary materials will be posted on Moodle. Most class days will include a discussion of Administrative Law in the News. Check the blog the morning before class for any updated news items. I will also provide study materials (modules) for specific topics to help you prepare for class and then consolidate your knowledge after our class discussion. If you have been provided a module as part of your assignment, read it carefully. We may not cover all the included material in class.

Class participation can affect your final grade.

Administrative Law in the News

Tracking deregulation in the Trump era

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA & JANET NAPOLITANO, in her official capacity as President of the Univ. of California, Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY & KIRSTJEN NIELSEN, in her official capacity as Sec’y of the Dep’t of Homeland Sec., Defendants., No. C 17-05211 WHA, 2018 WL 339144 (N.D. Cal. Jan. 9, 2018)

This is the DACA injunction, which was just issued. It is a classic application of administrative law principles on the limits of agency action and the role of the courts –  at least as we have understood administrative law since 1946. Also see: A DACA Question: Should Judges Use Local Cases to Halt National Orders? https://nyti.ms/2EE3dhx

SEC’s In-House Judges Draw Scrutiny From U.S. Supreme Court

This raises questions about the appointment of administrative law judges, which cuts across many agencies.

Assignment for January 16th

Read Chapter 1, which is a general introduction to administrative law at the state and federal level. We will have a general discussion of the administrative law system. We will also discuss major changes in administrative law proposed by the Trump administration and Republican congressional leaders. The first year of the Trump administration has been a crazy time for administrative law.

Slides – Introduction to Administrative Law (2018)


January 18

Class is cancelled - ice day


January 23

Assignment Update

Since you should have already read the material for our class on Thursday, I am extending the assignment to finish Chapter 2. Given the time we have lost from class, I am going to cover this material through lecture, with slides. This is important structural information to understand, especially since it is at issue in some current Supreme Court cases, but it is not information that informs routine administrative law practice. We are unlikely to finish this material in one class.


Argument analysis: Justices debate the dual-officeholding ban and jurisdiction over military courts

Lucia v. Securities and Exchange Commission

Class Law Firms

We are going to divide the class into 4 groups of eight students, based on our current enrollment of 32. One of our  class law firms will be in charge of class discussion each day, meaning that we will rotate through all the law firms every two weeks. While everyone should read the assignments for class, I expect the members of the law firm to be on top of the material, prepared to discuss it, and able to help us understand how we can apply it in practice. I am giving the class a chance to divide itself into groups in class on Thursday, so think about this before you get to class.


Read Chapter 2.

In re Washington, 2007 WI 104 (Wis. 2007) – Court upholds jailing of uncooperative tuberculosis carrier.

Example of an administrative proceeding that results in someone being locked up in a jail, but without criminal protections. (Just scan for the basic situation.

Slides – Chapter 02 – revised 8:50AM 23 Jan 2018


How a bill becomes a law

Commodity Futures Trading Commn. v. Schor, 478 U.S. 833 (1986)

[1] “the extent to which the ‘essential attributes of judicial power’ are reserved to Article III courts, and

[2] conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts,

[3] the origins and importance of the right to be adjudicated, and

[4] the concerns that drove Congress to depart from the requirements of Article III.

Vesting and Take Care Clauses

“The executive Power shall be vested in a President of the United States of America.”  U.S. Const. art. II, § 1.

Article II says that the President, specifically, “shall take Care that the Laws be faithfully executed.”  Art. II, § 3.

Source of domestic power

Art II, sec. 2, cl 2 – the Appointments Clause

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… all other [principal] 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.”


Guide – Delegation Doctrine

Guide Limits on Congressional Control of Agencies – revised 20 Jan 2018 11 AM

Guide – The Appointments Process

Think about Morrison v. Olson and the current special prosecutor investigation of Trump

Removal and the Creation of Independent Agencies

General Regulatory Review and Coordination

Office of Management and Budget


January 25


The Epistemic Quandary of the FBI and Trump


We are going to finish Chapter 2. In addition, please read these materials on the special counsel:

Could Trump Remove Special Counsel Robert Mueller? Lessons from Watergate

Prof. Blackman is quite conservative, but I think he is about right on his analysis of the president’s legal authority to fire the special prosecutor, and he provides a good history of the current law.

The DOJ Regulation on the Special Counsel – 28 CFR Part 600.

The Explanation of the Special Counsel Regulation – 64 FR 37042

Slides – Chapter 02 – revised 25 Jan 9AM


January 30


The Saturday Night Massacre That Wasn’t

Complaint challenging the Medicaid work requirements rule


We will finish discussing Chapter 2. Read the executive order – Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs. This amends/partially replaces EO 12866. Read Chapter 3 Section I, skip Section II for now, then Section III to G. Ex Parte Communications.

Guide – Introduction to Adjudications

Slides – Introduction to Adjudications

APA Sections

Federal Administrative Procedure Act

Section 555 applies to all adjudications


LA – 955, et seq.

Executive Orders

Domestic Policy Orders


National Security Orders



February 1


Are Medicaid Work Requirements Legal?

A deeper look at the legal issues in the challenges to the waivers of Medicaid standards to allow work requirements. This points out that the issue is not whether this is an improper rule, but whether it is an improper extension of a limit authority to grant waivers. Another case where the administration’s interest is in having the court apply Chevron deference to HHS’s reading of the statute.

The FBI – White House fight over releasing FISA information


Finish our materials from last class. Read Chapter 3, Section II and the remainder of the chapter.

The Federal APA

The Louisiana APA

APA Adjudication Provisions

These set up the framework for Formal/APA adjudications. We will parse these. Much of the framework is also applicable to non-APA adjudications.One of the reasons we care about whether these apply is that the Equal Access to Justice Act– 28 U.S. Code § 2412 (d)(1)(D) allows attorney’s fees for APA proceedings as described in APA 504 (A)(4) which refers to 554 proceedings.)

554 – Formal Adjudications.

556 – Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision.

557 – Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record.

558 – Licensing

LA Law Note – Title 49, Chapter 13, §961. Licenses

Slides – Chapter 3 (all)  – revised 1 Feb 2018 8:26AM


Formal Adjudications

Limiting Bias in Adjudications

Licensing and Permitting


February 6


Coffee in California may soon come with a spoonful of cancer warnings

Labor Dept. Ditches Data Showing Bosses Could Skim Waiters’ Tips


Everyone needs to read all the assignments. Team A will be responsible for the class discussion. They need to be prepared to discuss the case and its implications. They can divide the issues up among themselves if they choose and manage questions and discussion as a group. I will give them a few minutes at the beginning of class coordinate.

Wooley v. State Farm Fire and Cas. Ins. Co., 893 So.2d 746 (La. 2005) – study guide for Wooley to help guide your reading

(Heads up – The opinion, through paragraph 47, lays out the lower court’s ruling. The lower court ruling is a bit disjoint, so do not expect deep legal reasoning it. Try to identify the facts that the district court based its ruling on.)

Slides – Wooley


February 8


EPA and Army Finalize “Waters of the United States” Applicability Date

The Environmental Protection Agency and U.S. Department of the Army finalized a rule adding an applicability date to the 2015 Rule defining “waters of the United States.” The 2015 Rule will not be applicable until February 6, 2020.


Team B

Bonvillian Cases: Bonvillian v. Dep’t of Insurance, 906 So.2d 596 (La.App. Cir.1 2005) and after remand and appeal – Bonvillian, round II.

Team C

Chapter 4 to to: 1. Modern Concept of ‘‘Property’’

Read Goldberg v. Kelly


Study Guide: The Bonvillian Cases

Study Guide: Introduction to Due Process

Slides – Bonvillian

Daniel P. Moynihan’s Benign Neglect Memo to President Nixon.

Louisiana TANF

Louisiana SNAP

Practice materials for summary proceedings

Filetti, Garrett. “22nd Time’s the Charm: The 2015 Revisions to Summary Judgment in Louisiana.” La. L. Rev. 77 (2016): 479-585.

Code sections for Declaratory Judgment in LA

CCP 1871 Declaratory judgments; scope
CCP 1872 Interested parties may obtain declaration of rights, status, or other legal relations
CCP 1873 Construction of contract
CCP 1874 Interested person may obtain declaration of rights; purpose
CCP 1875 Powers enumerated not exclusive
CCP 1876 Court may refuse declaratory judgment
CCP 1877 Review of judgments and decrees
CCP 1878 Supplemental relief; expedited hearing for constitutional determination; effect of pendency of other proceedings
CCP 1879 Trial and determination of issue of fact
CCP 1880 Parties
CCP 1881 Construction
CCP 1882 Provisions independent and severable
CCP 1883 Uniformity of interpretation

February 13/15

No class. Mardi Gras Break on the 13th and I am presenting at a symposia in U of Arkansas on the 15th.


February 20


‘Sloppy and careless’: courts call out Trump blitzkrieg on environmental rules


Finish Goldberg (Team C)

Team D

Read to B The Modern Rule (p. 124)

Heerden v. Bd. of Sup’rs of Louisiana State Univ. & Agr. & Mech. Coll., No. CIV.A. 10-155-JJB-CN, 2011 WL 320921 (M.D. La. Jan. 28, 2011)

Team A

Read Mathews v. Eldridge (edited version)


Slides – Chapter 4 Part II

Paul v. Davis list of shoplifters

van Heerden – Round II – LSU Settles on stigma + claims

Louisiana incarceration rate

Louisiana murder rate

Facts about SSI Disability


February 22


It is all guns and school shootings.


Team B

Finish Chapter 4.

Slides – Chapter 4 – Part III


February 27


2017 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act

The report found the annual benefits of major federal regulations from 2006 to 2016 were between $219 billion and $695 billion, while the annual costs were between $59 billion and $88 billion.

Janus v. American Federation of State, County, and Municipal Employees, Council 31,

This is a case involved public sector union, arguing that union dues are compelled speech even as regards workplace issues such as bargaining over wages and hours. The theory is that bargaining is really petitioning the government – political speech – because it affects the state/local budget. While this is fundamentally a union busting case, it turns on the traditional exemption that public employers from constitutional restrictions when acting as an employer. This case could raise the issue of every workplace rule as a constitutional issue, exploding due process rights.


Finish our Chapter 4 materials. We will do a review of due process before moving on to Chapter 5.

Read Chapter 5 to B. Rules Excepted from Section 553’s Notice-and-Comment Requirements. This is general intro material on the rulemaking process.


Slides – Chapter 4 Part II

Slides – Chapter 4 – Part III

What did Senator Kefauver say?

 Slides – Chapter 5 – Part I


March 1


Jennings v. Rodriguez

Court finds immigration statutes do not require periodic bond hearings for immigration detainees. Remanded for constitutional due process requirements, with a note that the lower court should consider whether class actions due process challenges – Matthews, etc. – should be allowed.


We are going to do a quick introduction to notice and comment rulemaking, then watch a movie, The Regulators. (this is a link to the movie online) There is no additional reading assignment.


Slides – Introduction to the Regulators

APA Procedures

APA 553 – Notice and Comment Rulemaking

The Register

The Federal Register

LA Register

Electronic Notice



March 6


NBC discovers the APA


Team C – To C. The Procedures for Formal Rulemaking, p. 176

Team D – To E. Procedures for Rules Not Subject to Formal Rulemaking or Notice-and-Comment Rulemaking, p. 187


Slides – Introduction to Rulemaking



March 8


Appeals Court Rejects Trump Administration Request to Kill Juliana – USA v. USDC-ORE, U.S. Court of Appeals for the Ninth Circuit (San Francisco)


Team A

Finish Chapter 5

Team B

2017 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act

Read the executive summary, pp. 1-4, and look at the charts of costs v. benefits.

Saving Lives: A Review of the Record

This is a great article on problems with CBA. Read 13-18  and look hard at tables 1-3 at the end. (AED – automatic external defibrillator) (BTW, fish oil

Cost benefit of armed guards in schools

Example of a proposed high cost response to an emotional risk.

2017 dog bite fatalities

For comparison, at least 3 times as many children are killed on average each by dog bites, yet it is nearly impossible to get many communities to pass regulations to address the risk.


Slides – Chapter 5 – Part II


March 13


We going to have a visitor the last 30 minutes of class. Professor Bruce Kramer is delivering the Liskow & Lewis Lecture Tuesday afternoon and he will visit with us before the lecture.


Team C

Chapter 6 to 3. Fear as Injury – p221

Team D

Clapper v. Amnesty International USA, 133 S.Ct. 1138 (2013) – Edited, reformatted, and rearranged version for class discussion.

Study questions based on the edited version of the case. 

Read carefully. Now that we are done with the structural part of the course, we are going to read some cases very deeply. This is not casebook blurb stuff, we want to dig in and figure out what the court is doing. We are reading Clapper because it reviews the basic standing cases and because it shows how the court can use factual assumptions to limit standing when it does not want to find that plaintiffs have standing.


Slides – Chapter 6 – Introduction

Administrative Orders Review Act (Hobbs Act)

Example of statute requiring agency actions to be reviewed in the court of appeals.

Standing Test from Lujan

Notice that Lujan is case of a rule changing because of administration changes in the White House:

In 1978, the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), on behalf of the Secretary of the Interior and the Secretary of Commerce respectively, promulgated a joint regulation stating that the obligations imposed by 7(a)(2) extend to actions taken in foreign nations. 43 Fed. Reg. 874 (1978). The next year, however, the Interior Department began to re-examine its position. Letter from Leo Kuliz, Solicitor, Department of the Interior, to Assistant Secretary, Fish and Wildlife and Parks, Aug. 8, 1979. A revised joint regulation, reinterpreting 7(a)(2) to require consultation only for actions taken in the United States or on the high seas, was proposed in 1983, 48 Fed. Reg. 29990 (1983), and promulgated in 1986, 51 Fed. Reg. 19926 (1986); 50 C.F.R. 402.01 (1991).

Study guides for Chapter 4, including a revision of the Introduction to Due Process Guide.

Study Guide – Introduction to Due Process 

Study Guide – Goldberg

Study Guide – The New Property

Study Guide – Mathews and Modern Due Process

Study Guide – Bias in Administrative Proceedings

March 15


Another angle on the Monsanto case


Hit the high points on Clapper as discussed at the end of class on Tuesday.

2. Third-Party Actions and Causation – 230

Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007)

Read paragraphs 23-85. This is the standing material referred to in the text. We are going to look carefully at this case and climate change as the critical regulatory dilemma of our time. Concentrate on how the court deals with the “injury to all” problem, and check out dissent’s views. Are you convinced that this is the right analysis? Read the text assignment first, then look for the special procedural standing issues in Mass v. EPA. We will finish reading the case when we are reading Chapter 7.


Slides – Chapter 6, Part II

Slides – Mass v. EPA – Standing


March 20


Pruitt is expected to restrict science. Here’s what it means

Are there Due Process Issues Raised by Firing Andrew McCabe?


Team A

Read to B. Exhaustion of Administrative Remedies – 259

Team B

Edited – Lexmark International, Inc. v. Static Control Components, Inc. , 134 S.Ct. 1377 (2014)

Lexmark is the current and controlling (9-0) case on what zone of interest really means. Read the text’s presentation of the zone of interest cases within the framework of Lexmark


Slides – Chapter 6 Part III

Study Guide – Chapter 5

I am restructuring my study guides to remove repetitive material. Use them in conjunction with your notes and the slides. The learning objectives identify the key concepts and the evaluation questions are intended to help you review the questions you need to think about when analyzing a problem based on the covered materials.


March 22



Finish Chapter 6

Slides – Chapter 6 Part IV


Past Administrative Law Exams

2017 was a take home exam, but it was a very small class.


March 27


Supreme Court shoots down Governor’s order barring LGBT discrimination against workers

Louisiana Dep’t of Justice v. Edwards, , 233 So. 3d 76 (La. App. 1 Cir. 11/1/17) – lower court


Chief Justice Bernette Johnson’s dissent

Statement from FDA Commissioner Scott Gottlieb, M.D., on pivotal public health step to dramatically reduce smoking rates by lowering nicotine in combustible cigarettes to minimally or non-addictive levels – 15 March 2018

Post-Brown and Williamson, Congress gave the FDA some regulatory authority over tobacco.


Team C

Chapter 7 to 286 (Brown and Williamson example)

Slides – Chapter 7 Part I

Team D

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (U.S. 2000) paragraphs 24-96.

Tobacco poses a classic regulatory problem. We will be looking at the conflict between the clear meaning of the words in the Act and the legislative and regulatory history of how the Act was applied. We have Scalia rejecting the plain meaning in favor of legislative history and Breyer rejecting legislative history and going for the clear meaning.

Slides – Brown and Williamson

Use these to guide your reading of the case. Be able to answer the questions.


706 – Judicial Review

The Chevron Test in Chevron

Background Information on Tobacco

The 1964 Surgeon General’s Report on Smoking and Health

Second Hand Smoke

Reduced incidence of admissions for myocardial infarction associated with public smoking ban: before and after study

Nicotine without tobacco – How does this fit with Brown and Williamson?

Social Class and Smoking

Social Class and Life Expectancy


March 29


The District of Columbia and the State of Maryland v. Donald Trump – court opinion rejecting summary judgment. (The District of Columbia and the State of Maryland v. Donald Trump – complaint)

District Court denies summary judgment in the Maryland/DC emoluments lawsuit against Trump, finding that plaintiffs have standing to bring claims based on the harm to their competing business interests by Trump’s hotels.

Complaint – California v. Department of Commerce (the Census Case)


Finish Brown and Williamson

Team A

Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007) 86-106, plus Scalia’s dissent, 150-187.

Slides – Mass v EPA – Chevron Analysis

Team B

King v. Burwell – edited exerpt

What is going on here? Why doesn’t the court defer to the IRS? Does it ultimately accept the IRS regulation?


Annotated: Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 FR 66496 Tuesday, December 15, 2009

This is the endangerment finding that resulted from Mass v. EPA. I added bookmarks and highlights.


April 3


More on Pruitt’s war on science

Will rules based on this limited use of science be properly promulgated?


Carry over from last class:

Team B

Finish King v. Burwell – edited exerpt

Team A

Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007) 86-106, plus Scalia’s dissent, 150-187.

Slides – Mass v EPA – Chevron Analysis – revised

Team C

Annotated: Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 FR 66496 Tuesday, December 15, 2009

This is the endangerment finding that resulted from Mass v. EPA. I added bookmarks and highlights to guide our reading. We are going to look at this to see what the rulemaking looks like to trigger regulatory authority under the CAA after Mass v. EPA, and what EPA will have to address to withdraw the endangerment finding.

New Material

Team D


Slides – Chapter 7 Part II


Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 116 Mich. L. Rev. 1 (2017).

Richard J. Pierce Jr. & Joshua A. Weiss, An Empirical Study of Judicial Review of Agency Interpretations of Agency Rules, Admin. L. Rev. (Forthcoming).


April 5


Breaking News – Mid-term Evaluation of Greenhouse Gas Emissions Standards for Model Year 2022-2025 Light-duty Vehicles

This is the proposed rule that will be published in the FR to modify the emissions standards established after Mass v EPA and the Endangerment Finding.

The Formaldehyde in Your E-Cigs https://nyti.ms/2H8oSkk


Team A

Read to Example, page 312.

Slides – Chapter 7 Part III


April 10


In His Haste to Roll Back Rules, Scott Pruitt, E.P.A. Chief, Risks His Agenda


We are going to take our own hard look at the current law on what an agency must do to withdraw a rule or substitute a rule that effectively stops the enforcement of an existing rule. This is the most contested area of current administrative law and the court’s application of these standards will determine how quickly the Trump administration can undo existing major regulations.

Team B

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)

Concentrate on the policy versus factual basis for a rule change.

Slides – State Farm (Seatbelts)

Team C

F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (2009)

Read [46] A. Governing Principles to [52] This is the Supreme Court’s most recent application of State Farm – does this limit State Farm?

Team D

Sierra Club v. Envtl. Prot. Agency, 884 F.3d 1185 (D.C. Cir. 2018) (edited)

This is the most recent application of State Farm. Load into Acrobat or Reader and use the bookmarks to navigate. This looks at changing the standards without distinguishing the existing rule’s factual basis.

Congressional Review Act Fact Sheet (2016)

This is a fast track congressional process for repealing recently passed rules.

Team A

Finish Chapter 7

We will do as much of this as we have time for.

Slides – Chapter 7 Part IV – corrected link, subject to revision.


Study Guide – Chapter 6

Slides – Chapter 6 – All (Final)


April 12


Opponents of new power plant in New Orleans file suit, ask city council to reconsider its decision

Pretend this is an exam question – how would you analyze it?

Updated story – a second suit has been filed under the open meetings law

Arizona legislature passes bill ending judicial deference to agencies


Remainder of Chapter 7 from last class.

Slides – Chapter 7 Part IV

Read Chapter 8

I am going to lecture on this material because I will be including some jurisprudence background and national security information that is not in the book, and because I want to keep us on track. We will finish this material on Tuesday.

Slides – Chapter 8


Geek Squad and the FBI

Example of a National Security Letter

The court has subsequently ruled that you cannot tell someone they cannot contact their lawyer.

National Security Letters sent to Google

Google has received in excess of 2000 NSLs.

Example of state administration subpoena use

Edward P. Richards, Dangerous People, Unsafe Conditions The Constitutional Basis for Public Health Surveillance. 30 Journal of Legal Medicine 25:50 (2009) (alternative source)


April 17


I have consolidated all slides and cleaned up the study guides, with some revisions. These are all posted here:


Finish materials from last class.

We are going to briefly look at the Freedom of Information Act, The Privacy Act, and the federal and state open meetings laws. These are critical in practice. This will be a quick survey to introduce you to the concepts and how to use the laws. Rather than using Chapter 9, we will read this document, which is both a practical guide and comprehensive collection of legal resources:

The Reporters Committee for Freedom of the Press, Federal Open Government Guide 10th Ed (2009).

Also look at pages 2-6 of this document to see how FOIA is used as an adjunct to discovery in litigation:

Citizen Use of Public Records Laws; Public Interest Environmental Law Conference, March 6, 2016

Watch this for fun:

The joys of public hearings


Louisiana Attorney General’s Guide to the Louisiana Open Records Act

Slides: FOIA and Open Meetings – subject to revision

Study Guide: FOIA and Open Meetings

Study Guide – Chapter 8


April 19

We will take a few minutes at the beginning of class if anyone has questions about the exam.


US Administrative Subpoenas to Follow US Companies Around the Globe


Finish materials from last class.

Federal Tort Claims Act

§ 2674 – Liability of United States
§ 2680 – Exceptions
§ 2672 – Administrative adjustment of claims

Form 95

FTCA Reader

This is a mini-casebook on the federal tort claims act.

Team B – Dalehite

Texas City Disaster – This lead to Dalehite

Team C – Allen

Team – D – Berkowitz

Text: Tort Claims Against the Government

This is a guide I prepared on suing the government. Read to p. 13, State Tort Claims Acts for class. When you have time, you should read the rest to get a good overview of suing the government for torts.

Slides – Federal Tort Claims Act


April 24

Exam Discussion

Adlaw – 2016 Exam – Compact


MRGO Takings Case – St. Bernard Par. Gov’t v. United States, No. 2016-2301, 2018 WL 1882913 (Fed. Cir. Apr. 20, 2018)

DCC dismisses MRGO takings claim.


Team A

Gregor v. Argenot Great Central Insurance Co., 851 So.2d 959 (La. 2003)

This is the lead LA case on the LA-TCA. Points to cover are how the LA-TCA is interpreted compared to the FTCA, how the court resolved the discretionary act question, and whether this case really reinterprets the Fowler case it discusses. Be sure to read the concurrences and dissents.

Vibrio Vulnificus

The Gulf’s Deadly Harvest – Part II: How an industry dodged the only strategy proven to prevent deaths caused by raw oysters

How dangerous are raw oysters? Flesh-eating bacteria case raises concerns

Note where the oysters came from.

FoodNet 2017 Preliminary Data

Note that the CDC can only do surveillance on 15% of the population for food borne illness.

Louisiana Flood of 1983 – Suing the State for Causing Flooding

Before the 2016 Baton Rouge flood was the 1983 flood, which flooded many of the same areas. The state was sued for improperly designing I-10 so that it acted as a dam and flooded neighborhoods north of the highway. The plaintiffs won a large verdict but could not collect it. Skim these materials to appreciate the issues.

Slides – Louisiana Tort Claims Act

Study Guide – Federal and State Tort Claims Acts

Team B

Central Green Co. v. United States, 531 U.S. 425 (2001)

The key Supreme Court case on Flood Control Act immunity, which is key to understanding flood cases such as the Katrina Levee Breach litigation.

Slides – The Flood Control Act of 1928 and Central Green


§10.  Suits Against the State (Louisiana)

Section 10.(A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.

(B) Waiver in Other Suits. The legislature may authorize other suits against the state, a state agency, or a political subdivision. A measure authorizing suit shall waive immunity from suit and liability.

(C) Limitations; Procedure; Judgments. Notwithstanding Paragraph (A) or (B) or any other provision of this constitution, the legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages. It shall provide a procedure for suits against the state, a state agency, or a political subdivision and provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. The legislature may provide that such limitations, procedures, and effects of judgments shall be applicable to existing as well as future claims. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered. (emphasis added)

Amended by Acts 1995, No. 1328, §1, approved Oct. 21, 1995, eff. Nov. 23, 1995.

LA RS 9:2798.1 FTCA
B.  Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.

C.  The provisions of Subsection B of this Section are not applicable:

(1)  To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or

(2)  To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.


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.


April 26

Class Evaluations

Complete these before class or during the first 10 minutes of class.


Pruitt requests comments on rule to limit the use of scientific research by the EPA


Finish materials from last class:

Slides – Louisiana Tort Claims Act

Slides – The Flood Control Act of 1928 and Central Green

Slides – A Short Introduction to the Mississippi Delta Cycle

In re Katrina Levee Breaches, 5th Cir, Round II

The very rare situation where the 3 judge panel overrules itself, rather than the case going on to en banc review. Read [51] to the end. We are reading this to see how the discretionary function exception eventually forced the court to dismiss the Katrina levee breach cases. (No new exam material)


In re Katrina Canal Breaches Consolidated Litigation, 647 F.Supp.2d 644 (E.D.La. Nov 18, 2009) Final opinion and appendix.

The district court case that found the Corps liable for flooding New Orleans.


Exam Blog

If you have questions while preparing for the exam, email me. I will answer you and share the answers here so everyone will benefit.

In response to the study question:

After a legislative rule has been in place for several months, are there limits on challenging it in court?

Your powerpoint said to challenge the procedure quickly. At what point can you no longer challenge the procedure and can only challenge the published basis?

It will be determined by the enabling statute. In many cases it is 60 days.

admin 2016 exam question 3

These are the questions you should be raising and analyzing when you have an employee firing. There is no bright line analysis – you have to use the facts to support your arguments.

In the punishment v prevention argument, punishment means being put in prison for punishment, as opposed to be put in prison to keep you from hurting other people. It does not apply to being mean to someone with administrative process.

That is what you need to think through for the question.

> The study guide for Chapter 8 asks what is the area warrant the See court came up with and when the See court said a warrant is not needed.

> I have read See and cannot find these answers. I have found the answers in Camara, but I just want to make sure that I am not missing anything from See.

Sorry for the confusion – See incorporates Camera and extends it to businesses.

> I am trying to understand the differences between the FTCA and LA tort claims. I understand that the FTCA has a broad notion of discretionary  function, and that LA’s is much narrower. Does this mean it’s easier for LA state agencies to violate their discretionary function (agency’s have less discretion), and therefore subject the state to more liability? Or is it the alternative?

While the court in Gregor says that the DFE in LA is different from in the FTCA, does it ever show us how it is different? We do know that in LA, if the court finds that an action is not subject to the TCA and is thus outside the DFE, there are no limits on liability. In the federal system, if you fall outside of the FTCA, you cannot sue at all. So there are many more situations where agencies can be sued successfully in LA.

> If Gregor was analyzed under Berkowitz, what is the LA discretionary function standard or analysis?

If Berkowitz applies, do you even get to the DFE?


Thinking about the Mead Case

In the Mead case, there were notice and comment regulations that established tariff levels for different categories of imported trade goods. For years, the Treasury Department put day-timers into a category that did not have an import tariff. It then issued a letter that moved day-timers into a different category that did have a tariff. The deference question is over the letter that moved day-timers from one category to another. It is not over whether the categories themselves can be changed. Thus we have a letter ruling that the agency can change at any time – meaning that the agency is not bound by the letter ruling. When thinking about the court’s ruling on why the agency in Mead does not get deference, think about how this letter ruling is different from notice and comment rules.

> I was having a hard time figuring out what would
> happen if we were to apply R.S. 49:992(B)(2) to
> the governor’s office. I initially thought it would turn
> out the way Moore and Pope turned out.
> But I couldn’t come up with a definitive answer.

I assume that you are looking at the guide to reading the case:


You need to read it in context for the case paragraphs discussing the issue:

[103]   In an adjudication commenced by the division, the administrative law judge shall issue the final decision or order, whether or not on rehearing, and the agency shall have no authority to override such decision or order.

[104]   The enactment of this provision represents a change in our law. It has been explained by a former professor of law as follows:

[105]   This is a remarkable provision. It makes an ALJ’s decision unreviewable by the agency itself. This means, in contrast to our years of believing that executive agencies should appropriately promulgate and enforce regulations, the ultimate power to interpret agency regulations and to enforce or not enforce laws and regulations has been turned over to the state’s ALJs. No longer do agency heads have the ability to reverse — under any circumstances, with or without explanation — an ALJ’s decision.

In the context of discussing the case, my intent was to raise the question of whether the Legislature could take away the governor’s power to contest ALJ actions. This would be pushing separation of powers.

More generally, use the final study guides as posted on the exam page for review. You do not need the level of detail that are in the guides for reading the cases.

Several students are confused over the difference between firing a public employee and not renewing the contract of a public employee. The Perry/Sinderman cases were the about whether there was a continued expectation of employment once the original term of employment had expired. That gets into the contract/practices analysis. If you fire a government employee before their normal term of employment has expired, or if they do not have a normal term of employment, they are entitled to know why they were fired, and to not be fired for an improper reason. That may or may not trigger a hearing, based on whether there are factual questions or mitigation questions. This is implied by constitutional due process rights and does not have to be part of an employment contract.

> I was looking through the study guides and I was curious as to what the
> purpose of the “Evaluation questions” is in relation to the broader questions
> asked first.

The learning objectives are general topics that you should be understand. The evaluation questions that explore those topics in specific detail to help you decide if you do understand the general topics.


#1 tip – Read the question carefully and make sure you are answering what I asked. No points for extraneous material.

#2 tip – For my exams, and probably for all length limited exams, stick to answering the question. Restating the question and reviewing the general area of the law just uses your words. I do not give points for general information, only information that answers the specific question.

#3 tip – Read the whole exam before answering any questions. Later questions may trigger thoughts that will help you answer earlier questions.




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