Required Text and Class Information

News

Why Trump Can’t Buy Greenland

DOJ Brief in the Trump Documents Subpoena Case

Response Brief of the House to the DOJ Brief in the Trump Documents Subpoena Case

Assignment

Chapter 2 to President, p. 54, and Line Item Veto, p. 69 t0 the end of the chapter. We will reserve the section on supervision through OMB/OIRA until Chapter 5, when we will discuss rulemaking.

The Delegation Doctrine section, p. 28-41, should be a review of what you covered in Constitutional Law. Skim this to refamiliarize yourself with the material. We will not review this in class, and it will not be on the exam, except as developed when we read Gundy v. US later in the course.

Resources

Slides – Remainder of Chapter 2 – revised – slide added after slide #38

News

The Power to Declare Trade War

The tariff power belongs to Congress. Congress delegated it to the president in national security situations and did not define what that meant.

Assignment

Chapter 3 – we may not get through all of the reading, but it makes more sense if you see it all at once.

554 -Adjudications.

555. Ancillary matters (General standards)

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.

Slides Chapter 3 – these are subject to revision before class. Use them to review your reading of Chapter 3. The major change from the text is that we are less interested in the nuances of determining when a formal adjudication is necessary.

News

Conflict of interest in New Orleans Criminal Courts

The case – Cain v. White, No. 18-30955, 2019 WL 3982560 (5th Cir. Aug. 23, 2019)

Wall Updates

Assignment

Finish Chapter 3

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

We are going to take a deeper dive into Louisiana separation of powers and adjudications because Louisiana has a unique approach to adjudications among the states. The Wooley 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

News

Hurricane Dorian threatens the US

Disaster management and response is a core administrative law function, combining long-term regulation and preparation and emergency powers such as orders to evacuate and curfews.

Mandamus in the Juliana Case

Assignment

Finish the Wooley materials.

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.

This is where we see how the Wooley saga played out and where this leaves adjudications in Louisiana.

Slides – Bonvillian

News

What Happens When The FEC Can’t Do Its Job?

Terrorist Screening Database inclusion a due process violation

Assignment

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

Criminal due process review – Argersinger v. Hamlin, 407 U.S. 25 (1972) – the limits of the right to delegate criminal law matters to an administrative tribunal.

Read Goldberg v. Kelly Pay particular attention to Justice Black’s dissent.

Slides – Intro to Due Process and Goldberg

Resources

Practice materials for summary proceedings in Louisiana

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

News

Recap

Three-week recap – I am going to take some time at the beginning of the class to recap what we have covered so far and to help you understand what you should be taking away from the material. I will also post review materials after class.

Assignment

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

Paul v. Davis list of shoplifters

Slides – Chapter 4 Part 2

News

Supreme Court order lifting stay on asylum limits and dissent by Sotomayor and Ginsburg.

Assignment

Finish materials from last class.

Read Mathews v. Eldridge (edited version)

We will take a hard look at this case.

Slides – Mathews v. Eldridge

Resources

The Social Security Disability Insurance Program

Information about SSI – CBPP – Information about SSI – CBPP – PDF of Charts (2019)

The application process

Checklist for Online Adult Disability Application

News

Trump Must Face Emoluments Claims, as 2nd Circuit Revives Lawsuit

Assignment

Finish materials from last class.

Finish reading Chapter 4.

Slides – Mathews v. Eldridge – updated with material for the rest of Chapter 4

Moodle video is working

News

EPA to revoke California’s power to limit vehicle emissions

This is a huge change in environmental law. The basic framework for US environmental is called shared federalism. The federal government sets baseline standards and the states are free to set higher standards. Most of the enforcement falls on the states. (This is why a state like Louisiana is so much more polluted than many other states – we have the same baseline standards, but we do not enforce them.) California started regulating automobile and other emissions before the federal Clean Air Act. The L.A. basin traps pollution and forced California to adopt air pollution standards or die. California’s program was part of the reason that the legislation allowed states to have higher standards.

Assignment

We are not meeting class on the 19th, 24th, and 26th. We will be doing out of class assignments. The first of these is to watch a documentary, Well-Founded Fear, on the administrative hearing process in the immigration court system. This documentary is several years old, but the only thing that has changed is that the system is more crowded and less effective. This will give you a sense of how administrative hearings and due process play out in the real world. The judges do not have staff to research cases, so they just do the best that they can. Just as there is no duty to provide counsel to applicants, there is also no duty to provide translators. The applicant must bring his/her own translator, which also leads to confusion. Note how confusion between the judges and the applicants can have catastrophic effects on the applicant’s cases. Some of this is hard to hear clearly in the film, so I am attaching this document which analyzes some of the linguistic problems. (Don’t worry about the jargon, focus on what leads to confusion.)

Shannahan, Jennifer. “A narrative perspective on a well-founded fear: Officer stancetaking in a political asylum documentary.” University of Hawai’I Second Langauge Studies Paper 33 (2) (2015).

This is a guide to watching the movie:

Well-Founded Fear – Facilitators Guide

The movie is posted on the class Moodle page. While I have permission from the filmmaker to show the film in class, I do not have permission to post it on the general Internet.

You have until Friday the 27th to complete watching the movie. Please email me if you have any problems viewing the movie.

Remember – we are not meeting class

News

The federal whistleblower statute contains a specific provision that requires complaints that involve serious issues at national security agencies to be reported to the Congressional oversight committees for national security matters. This is a key part of congressional oversight. (These articles are from Lawfare, an excellent and fairly non-partisan national security law blog.)

The Witness and the Whistleblower: Some Thoughts

What the Latest Reports Say About the Whistleblower Complaint

Information on the Whistleblower Act at issue

Assignment

We are going to start on our section on suing the government, which is not usually covered in administrative law classes. While it is another limit on agency discretion, which we will look at in Chapters 6 & 7, it is sufficiently different from the rest of the litigation against agencies that it can be treated without reference to administrative law in general. We are going to look at the Federal Tort Claims Act, which allows the federal government – which is usually absolutely immune to ordinary tort litigation – to be sued for torts under limited circumstances.

28 USC Ch. 171: TORT CLAIMS PROCEDURE – the originally posted version from the House has has been replaced with the statutory version that is more readable.

This is the act. Just focus on the statutory provisions, not the history. While I will refer to the history as we look at the law, you are not responsible for it.

Federal Tort Claims Act Reader

These are edited versions of the key cases setting out the construction of the FTCA.

Tort Claims Against the Federal Government – Text

This is an explanation of the FTCA that I have prepared as a supplement to our text.

Form 95 – CLAIM FOR DAMAGE, INJURY, OR DEATH

This is the form for filing an FTCA claim. Review it so you understand the required information.

Narrated Powerpoints

The video is just a different way of watching, and it has closed captioning.

Introduction to Sovereign Immunity – Narrated Slides – YouTube Video

Federal Tort Claims Act History and Procedure – Narrated Slides – YouTube Video

Federal Tort Claims Act – DFE – Youtube Video

Resource Materials

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)

United States Court of Federal Claims Brochure

Remember, these are out of classroom assignments. We do not meet class on Thursday.

News

Telephone Conversation with President Zelenskyy of Ukraine

Note – this appears to be notes, not a transcript.

The Whistle-blower Complaint

The Inspector General’s Report on the Complaint

Brittish Supreme Court decision holding proroguing Parliament to be illegal

In US adlaw terms, the decision to prorogue Parliament was arbitrary and capricious.

Assignment

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. I have included the Louisiana constitutional and statutory provisions on tort claims. Note that Louisiana abolished sovereign in the 1974 constitution. This makes it much easier to sue, but also note the LA appropriations clause language is going to make it hard to collect a judgment from a state court proceeding such as a tort claims lawsuit.

CDC Food Safety Alert for Raw Oysters

Examples of Limitation of Liability Provisions in the LA Code

The Lousiana Tort Claims Act – Narrated PowerPoint – Video

Suing the Federal Government for Flooding

We are going to look at the application of the FTCA in flood cases, including the Hurricane Katrina Levee Breach Case. The starting point is Hurricane Betsy, the 1965 hurricane that flooded New Orleans as thoroughly as Hurricane Katrina. The footprint of the city was small then – more people, less area. The city was also better prepared and had a more effective evacuation plan, so many fewer people were killed.

Hurricane Betsy

Remembering Betsy: WVUE-TV 09/1990 

Pay special attention to the levee comments at about 12:30 and the ending comments at 27.

LBJ and Russel Long right after Hurricane Betsy: https://millercenter.org/the-presidency/educational-resources/lbj-and-senator-russell-long-on-hurricane-betsy

Graci v. United States, 456 F.2d 20 (5th Cir. 1971)

This was filed under the FTCA after Betsy. It also introduces the Flood Control Act of 1928 and its statutory immunity. On remand: Graci v. U.S., 435 F.Supp. 189 (E.D.La. 1977) (short case, just finds that the Corps wins because it exercised discretionary authority)

Central Green Co. v. United States, 531 U.S. 425 (2001) – the key Supreme Court case on the application of Flood Control Act of 1920 immunity for dual-use projects. The heart of the case is paragraphs 41-45.

Slides – Suing the Government after Hurricane Betsy – Video

Resources

§10.  Suits Against the State (Louisiana Constitution)

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.

TITLE 9 – Civil Code-Ancillaries – RS 9:2798.1 – Policymaking or discretionary acts or omissions of public entities or their officers or employees

§2798.1. Policymaking or discretionary acts or omissions of public entities or their officers or employees

A. As used in this Section, “public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.

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.

D. The legislature finds and states that the purpose of this Section is not to reestablish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the Constitution of Louisiana.

Acts 1985, No. 453, §1; Acts 1995, No. 828, §1, eff. Nov. 23, 1995.

Louisiana Flood of 1983 – Suing the State for Causing Flooding

News

What are the procedures for impeachment?

Can Congress grant witnesses immunity from prosecution by the DOJ?

One of the key issues in the upcoming impeachment investigation will be whether Congress can grant willing witnesses immunity from threats of prosecution if they testify. While this article is a couple of years old, it is still relevant today.

Judge bars Trump fast-track deportation policy

The key holding is that DHS should have gone through notice and comment rulemaking to change the standing policy of fast deportation of immigrants recently captured within 100 miles of the border to quick deportation of anyone, anywhere, captured anytime. This is a long opinion that reads like an introduction to adlaw.

Assignment

We are going to finish our section on suing the government with the Katrina levee breach case. I will do an introductory session on the Mississippi delta and why it is at extreme risk from climate change and hurricanes.

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. This case finally ended the Katrina levee breach cases under the DFE exception. Think about whether they should have been ended much earlier under 702 of the FCA.

Slides – Brief Introduction to the Mississippi River Delta Cycle

Slides – Katrina Levee Breach Cases

Mississippi Delta Subsidence in Action – Fort Proctor

News

Impeachment materials, from Peter M. Shane, Harold H. Bruff, and Neil Kinkopf, Separation of Powers Law: Cases and Materials (4th ed. 2018), with permission.

Assignment

Finish materials from last class.

Begin Chapter 5 – Rulemaking

Chapter 5 to b. General Statements of Policy, p. 165

APA 553 – Notice and Comment Rulemaking

Slides – Introduction to Rulemaking

Resources

Quick review of the delta talk and more info on why mangroves protect against the tsunamis and not against hurricane surge:

Why the Master Plan will not protect Louisiana and what we should do instead

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. You do not need to read this, but you should if you are interested in the cases.

News

Witness in Trump-Ukraine Matter Ordered Not to Speak in Impeachment Inquiry

Federal judge rejects President’s claim of absolute immunity from criminal laws

We will spend a few minutes of class time on this. Please review the first few pages at least.

Statutory construction and policymaking at the Supreme Court.

There are several important cases coming up in the fall term. This is a discussion of the case on the construction of the statute banning private employers from discriminating on the basis of sex. The statute is very simple and the ambiguity cannot be clearly resolved by recourse to congressional intent. The construction is a pure policy choice, in the sense that either interpretation can be justified through the canons of construction. The Obama administration argues that the statute prevents the firing of LGBT employees. The Trump administration has reversed that finding. Who should decide? We will think about this when we read the Chevron case.

Assignment

Finish materials from last class.

Read to E. Procedures for Rules Not Subject to Formal Rulemaking or Notice-and-Comment Rulemaking, p. 187

Slides – Notice and Comment Rulemaking – subject to revision

The Reg Map for Informal Rulemaking – The Reg Map for Informal Rulemaking – Reading Version

Additional note on the FTCA

§ 2678. Attorney fees; penalty

No attorney shall charge, demand, receive, or collect for services rendered, fees in excess of 25 per centum of any judgment rendered pursuant to section 1346(b) of this title [judgement by the court] or any settlement made pursuant to section 2677 of this title [settlement], or in excess of 20 per centum of any award, compromise, or settlement made pursuant to section 2672 of this title.

New Class Feature

Course FAQ and Exam Info

If you have a question you cannot figure out, email me. I will post the question (without divulging your identity) and the answers on this page. The most recent question will be at the top of the page.

News

The White House Letter

White House letter to Congress denying it has authority to investigate the president

Is this a Constitutional crisis? If you are interested in the legal implications of this document, which include whether any lawyer should have signed it, much less the White House Counsel – who is the government’s lawyer, not Trump’s lawyer.:

National Security Law Podcast – Episode 138: “That’s Nobody’s Business But the Turks”

All the President’s Lawyer Podcast – Recognize the legitimacy of this podcast

For a good timeline on the Nixon impeachment – It Took A Long Time For Republicans To Abandon Nixon

If you are interested in the wider national security issues – Rational Security Podcasts

For the wider constitutional issues – The Amicus Podcast

On the adlaw front

Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents

No more guidance documents/legislative rules unless approved by the White House. Should not apply to independent agencies.

Quick Commentary on the Yale/ABA Adlaw Blog:

Aaron Nielson: http://yalejreg.com/nc/breaking-news-two-major-executive-orders/

Nick Parrillo: http://yalejreg.com/nc/the-new-executive-orders-on-guidance-initial-reactions-by-nicholas-r-parrillo/

Bernie Bell: http://yalejreg.com/nc/the-october-9-executive-orders-and-government-acquisition-of-information/

Assignment

No new readings. We will finish the notice and comment section and then watch a movie about the rulemaking process. I will narrate the events so you can follow the administrative law significance of what is going on. This is the best way to see what is really going when agencies make rules.

We will do a review of Chapter 5 as we finish it next week.

Slides – Notice and Comment Rulemaking  – revised

The Regulators: Our Invisible Government

News

Circuit court affirms the district court ruling that Mazars must comply with the Congressional subpoena

Trial Over Hurricane Flooding in Houston Wraps Up

Another attempt to turn am FTCA case into a takings case. If the Federal Court of Claims rules for plaintiffs, I expect to see the case overturned by the Federal Circuit.

Federal dollars as a % of the state budget

Assignment

Finish Chapter 5. I am seeking permission to use some regulatory review materials for class, so check back during the weekend to see if there are additional materials to look at.

Slides – Reminder of Chapter 5

Resource Documents

Tozzi, Jim J., OIRA’s Formative Years: The Historical Record of Centralized Review Preceding OIRA’s Founding (December 1, 2011). Administrative Law Review, Vol. 63, No. 37, 2011. Available at SSRN: https://ssrn.com/abstract=2706279 or http://dx.doi.org/10.2139/ssrn.2706279

Review Materials

I have posted on Moodle practice exams that cover our module on suing the government. As practice exams, they are ungraded. When you complete the exam, you see how you did and an explanation of the correct answers.

I will continue to add review materials to aid your exam preparation.

News

Justices to review constitutionality of CFPB structure

This is a challenge to CFPB which is an independent agency (limitations on the removal of the commissioners) but with only one commissioner. This could be a path to the court returning to the old holding that the appointments clause does not allow limitations on the removal of officers of the United States.

Assignment

We are going to talk about regulatory review and cost-benefit analysis. We will start Chapter 6 next class.

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

Saving Lives: A Review of the Record – Regulatory Costs Table

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) This is an old study, and some numbers have changed. For example, fish oil supplements look less useful at this point. It is a secured document so I cannot edit it down to the key pages.

Slides – Regulatory Review – subject to revision

Regulatory Review Flow Chart

Resource Documents

Report of the President’S Commission on an All-Volunteer Armed Force (1970)

Nixon pushed for ending the draft at the urging of Milton Friedman and other economists.

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

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.

Broughel, James and Viscusi, W. Kip, Death by Regulation: How Regulations Can Increase Mortality Risk (November 30, 2017). Mercatus Working Paper, Mercatus Center at George Mason University, Arlington, VA, 2017. Available at SSRN: https://ssrn.com/abstract=3080360 or http://dx.doi.org/10.2139/ssrn.3080360

This paper explores whether traditional cost-benefit analysis misses the adverse health effects of reduced income when looking at the costs of regulation.

Graham, John D. “Saving lives through administrative law and economics.” U. Pa. L. Rev. 157 (2008): 395.

This is an in-depth treatment of cost-benefit analysis for those who want a more theoretical treatment and guide to the literature.

News

Supreme Court Won’t Halt Climate Cases Against Oil Companies

How Exxon’s Climate Change Trial Became a Battle Over Numbers

Assignment

Read Chapter 6 to 3. Contribution as Causation (Funk 231). This should be a review of what you covered on standing in Constitutional Law I.

Slides – Jurisdiction

I will post a narrated review of standing for review on your own time.

Ctr. for Biological Diversity v. United States Envtl. Prot. Agency, No. 18-60102, 2019 WL 4126355 (5th Cir. Aug. 30, 2019

Ctr. for Biological Diversity v. United States Envtl. Prot. Agency, No. 18-60102 – standing declarations

We will discuss this recent, local case, challenging an EPA water pollution permit. We want to look at the standing declarations and compare them to the court’s ruling on whether they met the standing requirements. Is the court hostile to standing for citizen suits or did the plaintiffs not plead adequate standing facts?

You should scan the resource documents to see what a filing looking like in these permit review cases.

Resource Documents

Ctr. for Biological Diversity v. United States Envtl. Prot. Agency, No. 18-60102 – Docket

With the library’s help, I was able to get a PDF of the PACER docket.

Ctr. for Biological Diversity v. United States Envtl. Prot. Agency, No. 18-60102 – Opening Brief

This is equivalent to an original complaint in a district court.

Ctr. for Biological Diversity v. United States Envtl. Prot. Agency, No. 18-60102 – standing declarations

Ctr. for Biological Diversity v. United States Envtl. Prot. Agency, No. 18-60102 – Exhibits (Administrative Record)

This is the permit being challenged. This will give you a sense of the complexity of these documents.

Ctr. for Biological Diversity v. United States Envtl. Prot. Agency, No. 18-60102 – Reply Brief

Review Materials

These are short narrated slide decks covering the standing materials you have read in Chapter 6. We will not discuss the material separately in class, but will develop the ideas through our review of Mass. v. EPA

Standing Basics – Video

Risk and Fear as Injury – Video

Procedural Injuries – Video

Causation for Standing – Video

News

California is burning, again

Judges orders DOJ to turn over full Mueller report, including grand jury testimony to Congress

This is a far-reaching order. The judge first found that the impeachment proceedings were legally valid, holding that there is no constitutional basis for the administration’s claim that there has to be a vote of the House to authorize the committee’s investigation. The judge then ordered the complete, unredacted Mueller report to be turned over, including the relevant grand jury proceedings. Since there is grand jury secrecy precedent in other circumstances, I expect this part of the ruling to be appealed.

Education Department Secretary Voss held in contempt of court and fined $100,000 – Voss Contempt Order

This was over her not acting on a previous court order to quit trying to collect on loans to students at a defunct private college. It is very unusual.

DC Circuit rejects claim that reconsidering milage requirements needs notice and comment rulemaking

Pages 18-20 use the legal effects test for evaluating the EPA’s action.

Assignment

Chapter 6 to IV. PROBLEMS OF TIMING (Funk p. 251)

Slides – Exclusions to Judicial Review

Slides – Ice Age Cycles

Massachusetts v. E.P.A., Massachusetts v. EPA, 549 US 497 (2007) – edited for standing discussion

Slides – Mass v EPA – Standing

We are now ready to dig deeply into cases to see how these theories work. I have edited Mass. v. EPA into two parts, standing, and Chevron review. We will pick apart the standing section on Tuesday and will read the Chevron section later in the course. Mass v. EPA is an important case, whose ruling will be reviewed and challenged in future Supreme Court cases. You need to read carefully, both the opinion and the dissent, and be prepared to participate in the class discussion. The key questions are the tension between the majority and the dissents over three issues:

Whether there is any legal justification for treating states differently from individuals for standing;

Whether climate change is the classic injury to all that is not an injury to an individual, i.e., it should be managed through legislation rather than litigation; and

Whether EPA regulation of tailpipe emissions will meet the Lujan standard for redressability.

Review Materials and Exam Information

Administrative Law Exams

Study Questions – Chapters 1&2 – best viewed in Word Outline view – more to come over the next week.

The exam will include objective questions like those I posted on Moodle as a review of the Suing the Government materials.

News

Brief in the Supreme Court cross-border shooting case

This case is on behalf of a Mexican teenager shot in Mexico by a US Border Patrol agent standing in the US. The FTCA does not apply because it is outside the US, so the only avenue is to convince the Court that it should expand Bivens to cover this action.

Interview with Stuart Gerson of the conservative legal group Checks and Balances

The first part of this podcast is with Gerson, who brought the case that has succeeded in blocking part of the border fence spending as violative of the Appropriations Clause. He was an official in the Bush II justice department and he has very interesting things to say about a conservative view of the impeachment process.

Assignment

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

I have heavily edited Lexmark. While the book mentions Lexmark, it does not integrate Lexmark with the previous zone of interest cases. While zone of interest analysis is not dead, it is now just another statutory construction tool. Reread the text’s presentation of the zone of interest cases within the framework of Lexmark.

Slides – Zone of Interest (subject to revision)

Read to V. PRIMARY JURISDICTION (Funk p273). The three aspects of the Problems of Timing – final agency action, exhaustion of remedies, and ripeness – can blur a bit with the question of whether something is a final agency action sometimes/often being equally arguable as a ripeness question. Exhaustion of remedies is a simple concept, but, like forgetting to file the required notice on an FTCA case, a critical one that leads to embarrassing malpractice.

Slides – Problems of Timing (subject to revision) – I am posting the slides to help you extract the key info from the readings.

We may not finish all of this material, but we will give it a try. Problems of Timing is pretty straightforward, once you see how the pieces are sometimes interchangeable.

New class pages

Course FAQ and Exam Info

New study guides have been posted here.

Example Administrative Law Documents

News

The Federal Circuit broadens the definition of principal officer – The Federal Circuit holds that Administrative Patent Judges have not been constitutionally appointed under Edmond and Lucia

County of Maui, Hawaii v. Hawaii Wildlife Fund – Supreme Court oral argument on Nov 6

Issue: Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.

This is a pure statutory interpretation question – a Chevron question. The Clean Water Act governs discharges from point sources that flow into federal waters. Since the passage of the act, the EPA has read it as covering point source discharges onto or into the ground that run into the federal waters. In this case, Maui puts wastewater into injection wells, which connect to the Pacific through the groundwater. Maui, and now the EPA for the first time are arguing that there is no CWA jurisdiction unless the discharge is directly into the federal water. Under this reading, the polluter could dump the wastewater onto the ground next to a river and not have to have a pollution permit or be subject to federal regulation. The court has to consider the text of the statute, but also the history of enforcement, as in Brown and Williamson.

Assignment

Read to B. Interpretation of Rules (Funk 295)

Chevron in a Nutshell Video – Powerpoint

This is a short presentation on Chevron to orient you before the class.

How to read a case closely – FDA v. Brown and Williamson – Word (best viewed in outline mode)

I have annotated this case to show you how to read a case closely as you would have to if you were briefing the issues on an appeal or challenging them in a new proceeding. I am not going to go over the case in this detail in class – that would take a couple of days – and I not expect you to memorize the detail for an exam. But you should read it all the way through to see how case flows and the interplay of majority and dissent.

Slides – Chapter 7 Part I

Resource Documents

Family Smoking Prevention and Tobacco Control Act’ – 2009

News

Study Questions – Chapter 5

Unintended effects of an unfunded mandate

Trump Serves Notice to Quit Paris Climate Agreement

Nancy Pelosi and Newt Gingrich Commercial on Climate Change – 2008

Assignment

Read to III. ARBITRARY AND CAPRICIOUS REVIEW (Funk 308)

King v. Burwell – edited excerpt

This is a short piece of one of the ACA cases. We are looking at it as an example of a unique theory that some agencies do not have the appropriate expertise to merit deference.

Massachusetts v. E.P.A., Massachusetts v. EPA, 549 US 497 (2007) – edited for Chevron discussion

This is another controversial Chevron case. The definition of air pollutant is very broad, as was the definition of drug in Brown and Williamson. In this case the majority does find that greenhouses gases, in particular, CO2, does fit. As with the standing analysis, there is a bitter division and 4 judges in dissent. We will look at the dissent as well as the majority opinion because the dissent is likely to represent the current court majority. While not belabored in this case, later cases point a further parallel with Bown and Williamson – later cases show that greenhouses gases do not fit well with the Clean Airt Act regulatory scheme. Regulating CO2 across the economy, as seems to be required once you start, would be even more disruptive than banning tobacco.

Slides – Chapter 7 – Part II

Resource Documents

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

News

Deferred Action for Childhood Arrivals (DACA) at the USSC on Tuesday. This is a narrow case on whether the agency properly justified terminating the program.  The original memo from DOJ stated that the program was unconstitutional/not allowable under the law. This was also the basis for the Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA), which was rejected by the District Court. The Secretary of DHS then wrote a memorandum expanding the rationale for stopping the program, including some exercise of discretion, but retaining the position that it was illegal. This looks like Mass v. EPA – rather than asking the court to defer to the agency, it is asking the court to decide whether the program is legal. If the court finds that it is legal, is the policy justification for ending the program in the final memo enough to survive A&C review? (Even if the court finds that the policy was allowable, it could still find that it should have undergone notice and comment and was invalid.)

Mozilla Corp. v. Fed. Commc’ns Comm’n, 940 F.3d 1 (D.C. Cir. 2019)

This is the full saga of the FCC and the characterization of the Internet. If you are interested in telecommunications law, it is a good – but long – read. The key issue for us is that the agency has changed the rule twice as administrations have changed. While it has reduced federal regulation, it has opened the door to state regulation, so the changes create uncertainty in the market. One of the rationales for taking a hard look at rule changes is the disruption that rule changes can cause.

Assignment

Study Questions – Chapter 6

Finish materials from last class.

Finish reading Chapter 7. Read the materials on revising rules (State Farm) very carefully.

FCC v. Fox Television Stations, Inc., 556 U. S. 502 (2009) – edited for analysis

This is a few pages from Fox to illustrate the different standard for changing rules when the change is based on changing policy rather than changing facts.

Slides – Remainder of Chapter 7 (including material we did not finish from last class) – will be revised

Review Time

In discussions after class, I realized that there is a lot of confusion about the deference tests and related issues in thinking about how to deal with administrative issues in making and challenging rules. I want us to get this sorted before you go into exam prep mode so I am going to take time at the beginning of class to do some review and to take questions. Come prepared with your questions!! We will spend as much time as we need.

Study Questions – Chapter 7

News

RULES OF PROCEDURE AND PRACTICE IN THE SENATE WHEN SITTING ON IMPEACHMENT TRIALS

Alasaad v. Nielsen (DHS Secretary) 

This is a denial of SJ to claims by plaintiffs that port of entry searches (part of the border search doctrine) of electronic devices violate their 1st and 4th amendment rights. Warrantless border searches have been historically justified as looking for contraband. Plaintiffs are US citizens whose electronic devices have been repeatedly searched and data retained as they enter the US from foreign travel. They argue that under Carpenter, which recognizes that search an iPhone is different from searching a briefcase or suitcase, the government should have a warrant to search US citizens’ devices at ports of entry. The court found that the government needed suspicion, as with a Terry search, but did not need a warrant. Interestingly, the search had to be for contraband, so there had to be reasonable suspicion of contraband.

Assignment

Geek Squad’s Relationship with FBI Is Cozier Than We Thought

Read Chapter 8 to: B. Fourth Amendment Limits on Reporting Requirements and Subpoenas – 349

Slides – Chapter 8 (all of the chapter, but we will stop if we get to the end of the reading for today)

Quite a bit of this should be familiar from ACJ. I will lecture in more depth on the third-party doctrine and administrative searches.

Exam materials

Old Administrative Law Exams – updated

Several of the include sample answers. I have added the Fall 2018 exam, with my notes on the important issues for the essay questions so you will have sample answers to essay questions.

News

Trump grants clemency to troops in three controversial war crimes cases

What Lt. Col. Vindman’s Testimony Says About Civil-Military Relations and Military Justice

Assignment

Finish Chapter 8

Slides – Chapter 8  – revised

Study Guide – Chapter 8

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 you can use in practice and a comprehensive collection of legal resources:

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

Pages 1-12 are the basic structure of the act and how to use it. Pages 13-25 contain a detailed discussion of the exceptions and a list of key cases. Scan these, but you do not need to memorize the exceptions. Pages 26-28 is the Federal Open Meetings Act, which we will cover. Also read p. 29, the Privacy Act, which is a limitation on general access to private information about individuals. The remainder of the document contains sample documents for using these laws in practice.

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

Slides – FOIA and Open Meetings

Study Guide – FOIA and Open Meetings

Exam Prep

I have added a practice exam on the basics of administrative searches to Moodle.

News

The Commander’s Handbook on the Law of Land Warfare

If you are interested in the official military law reference on law of war and war crimes, this links to the newly revised Handbook, and the definitive Department of Defense Law of War Manual. (The original 1956 version, which this replaces.)

Assignment

Finish material from last class.

CRS, Attorney’s Fees and the Equal Access to Justice Act: Legal Framework (2019)

This is a two-page guide to collecting fees from the feds for successful challenges to federal action. The attorneys who litigated the census case received over $2,000,000 in fees from the government. This is their: PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR AWARD OF ATTORNEYS’ FEES and the final settlement.

Last part of class reserved for doing class evaluations.

Resources

Louisiana Public Records Law

Louisiana Open Meetings Law

News

House Judiciary Committee v. Donald F. McGahn II

This is the petition in the House declaratory judgment action to force McGahn to testify. The ruling is expected on Monday. You might find this interesting as an example of an adlaw litigation document.

House Judiciary Committee v. Donald F. McGahn II – District Court Opinion

Assignment

Since we finished all the material, this is a study day, not a class day. Remember to check the Course FAQ and Exam Info page for information about the structure of the exam, study materials, and updates as I answer questions from your classmates. If you have questions, send them to me by email so that I can share the answers with the class.

Remember, this test has objective questions. You will need to mark a scantron form and you have to do that with a pencil!! You should also have an eraser on the pencil or a separate eraser if you want to change any answers. The essay part of the exam will be on your computer with the exam software, just as with all exams. You will also mark a scantron sheet. At the end of the exam, you will need to return the test itself and your scantron sheet together. There will be a box provided at the front of the classroom for the exams and scantron sheets.

Be sure to check the Course FAQ and Exam Info page Friday evening for any last-minute information. I will not take questions after 7 PM Friday night.