Climate Change Project

Table of Contents



Administrative Law - Fall 2001

10.1 Judicial Remedies - 612

10.1.1 Judicial Jurisdiction - 612

Explicit statutory review provisions in the enabling act

Should review be by trial courts or appeals courts?

What do what best?

Which courts usually get rules and final orders?


What usually goes to the trial (district courts?

No explicit statutory review procedures

What jurisdiction do each these laws provide for?

28 USC 1331

28 USC 1361

28 USC 1343

What is the status of federal sovereign immunity for money damages and for non-monetary relief?

Where can a plaintiff sued under 28 USC 1331?

What controls once 28 USC 1331 is invoked?

Removal to Federal Court

City of Chicago v. International College of Surgeons (1997) - 615

What sort of dispute was this?

What happened before the Chicago Landmarks Commission?

Where did the owner then turn?

What did the city?

What type of legal claim must be shown to remove a case to federal court?

Why might the City want to remove the case to federal court?

Why did Stevens and Ginsburg dissent?

10.1.2 Cause of Action and Remedy - 617

10.1.2a Injunction and Declaratory Judgment - 617

What is an injunction and what do you usually have to show to get one?

Why are injunctions and declaratory judgments the same for agencies?

What do you call it if you are trying to make the agency do something?

Why is making the agency do something much more politically complicated?

Is there a right to an injunction?

What must the court balance when hearing a request for an injunction?

10.1.2b Mandamus - 618

What is the difference between a discretionary and a ministerial act?

Why does this matter for both injunctions and tort claims act cases?

What was the mandamus issue in Marbury v. Madison?

Traditionally which courts was mandamus limited to?

Has this changed?

Since courts are still reluctant to grant injunctions, what is the best way for plaintiff to force an agency to act?

10.1.2c Certiorari - 620

What is a writ of certiorari?

Is this used to review federal agency action?

10.1.2d Other Writs - 621

What is a writ of habeas corpus?

When is it important in agency actions?

How might it be very important for bioterrorism and homeland security?

Is there a right to bail in administrative detentions?

Why or why not?

10.2 Damage Actions as a Form of Judicial Review - 621

10.2.1 Tort Liability of Government - 622

10.2.1a The Federal Tort Claims Act - 622

When is the government liable for intentional torts?

Which intentional torts is the government not liable for?

What is the big exception?

Remember Berkovitz v. US

10.2.1b State and Local Government Liability - 623

What state law allows states to be sued for torts?

What federal law allows state actors to be sued for violations of the constitution?

What does the 11th Amendment prohibit?

What about local government?

Does the 11 amendment allow injunctions?

Can you sue state officials in their individual capacity?

10.2.2 Tort Liability of Officials - 624

What happens if you sue federal officials for common law torts?

What is the exception to this rule?

10.2.2a Bases of Liability - 624

What is the jurisdictional requirement for a 42 USC 1983 action?

What is a Bivens Action?

10.2.2b Immunity from Liability - 625

Why is immunity critical? (Scheur v. Rhodes)

Absolute v. qualified immunity

Butz v. Economou, 438 U.S. 478 (1974)

What was Economou's claim?

What do prosecutors and adjudicators get?

What do other federal officials get?

What state official immunity does this resemble?

What does the president and his aids get?

What is the test for qualified immunity?

When can there be liability for constitutional violations?

Can you always get damages if you can get an injunction for a constitutional violation?

10.3 Recovery of Fees - 627

What is the American rule on fees?

Why are fee recovery statutes critical to citizen involvement?

Notes and Questions - 627

Why did the plaintiffs in Western States Petroleum Association v. EPA not qualify for attorney's fees, even though their claim against the EPA's regulation prevailed?

What is the Equal Access to Justice Act

Should it be amended to allow the government to collect fees?

10.4 Preclusion of Judicial Review - 632

Bowen  v. Michigan Academy of Family Physicians - 632

What type of regulations were at issue in this case?

How is Medicaid paid?

If there is a dispute over the amount to be paid, who conducts the hearing?

Is there judicial review of claim amounts?

What did the court say could be reviewed?

Why was the court reticent to find an implied ban on all review?

Notes and Questions -  635

How is US v. Erika different from Bowen?

Bowen was modified by Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1 (2000) which found that providers did have to exhaust their administrative review channels before going to court

What did the court allow to be reviewed in McNary v. Haitian Refuge Center (1991)?

How has immigration law been changed by   Immigration and Naturalization Service v. St. Cyr, 121 S.Ct. 2271 (2001) from the supplement?

Why did the court rule this way?  Is it saying that Congress cannot preclude judicial review?

What inconsistency does Scalia's dissent focus on?

Can Congress limit the time for contesting regulations?

10.5 Commitment to Agency Discretion - 638

Heckler v. Chaney - 638

Why did the prisoner bring this action?

What did the lower court rule?

Could have just said that this is the wrong issue - the FDA does not regulate physicians

How does 701 control this case?

Did the court find any clear legislative or regulatory requirements for review in this situation?

How does this drive the court's ruling?

When can a litigant force action?

Was there a simpler ground for dismissing this case?

Notes and Questions - 643

The expanding circle

The court continues to expand the reach of 701(a)(2)

Why is this good policy in the following cases?

The president's decision to accept or reject a list of base closings

An agency's decision to quit funding a health program out of lump sum appropriations

An agency's refusal to reconsider its own decisions

The CIA director's decision to fire an employee when the statute says he can do so whenever such termination is necessary or advisable in the interests of the united states. (the decision was reviewable on constitutional grounds)

No law to apply

Why is the problem of no law to apply the real reason why the courts do not review discretionary actions?

Why does this make it nearly impossible to review agency's failures to act?

4 What are some arguments that can be used to attack an agency's failure to act when the agency claims it is a discretionary action?



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