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Examples & Explanations: Administrative Law, Fourth Edition (Dec 9, 2011)
Additional materials such as cases will be posted on this WWW site.
You should check the WWW site for assignment information and course changes every day before class. Class participation points may be used, as well as quizzes during the term.
Law in a Nutshell: Administrative Law & Process, by Gellhorn, Levin, 5th ed., 2006, ISBN: 0314144366
Federal Administrative Procedure Act
Administrative Law Glossary (map view) (Word)- These are definitions prepared by Professor Donald Brodie, Emeritus, University of Oregon. They may help you understand basic terms.
Examples & Explanations: Administrative Law, Fourth Edition (Dec 9, 2011) - Required Text
Read Chapter 1
There is no course pack. All other materials will posted here or provided electronically through Moodle.
Modules are chunks of information. You will get modules before each class. A give class may have more than one module, or a module may be used in more than one class. The modules may contain notes for a presentation in class, such as this one does, or it may have questions about the reading that you have been assigned for the class. You are expected to figure out the answers to the questions before class so I can assume that everyone has the basics so that we can discuss more important matters in class. The module will also contain learning objectives and, as appropriate, questions for self-evaluation so you can determine if you have learned the key points from the class. Since this module is only intended to give you context for the course, there are no self-evaluation questions.
You should check this blog for assignment information and course changes every day before class. Class participation points may be used, as well as quizzes during the term.
Administrative law in the news - The foie gras case
This is a classic administrative law fight. Our regulatory dilemma is the conflict between animal rights advocates and gourmands. These are political/social/moral debates, but they play out in administrative law.
The controversy - http://www.upi.com/Top_News/US/2015/01/08/Judge-throws-out-California-foie-gras-ban/3531420723828/
The case - Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris
In the Appeals Court - Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 F.3d 937, 941 (9th Cir. 2013) cert. denied, 135 S. Ct. 398 (2014)
Module 02 - Delegation Doctrine - Chapter 2 to page 41
Module 03 - Limits on Congressional Control of Agencies - page 41-46 (Chadha is another module), 5. Legislative Review and Oversight, 49-52.
Adlaw in the news, part I -
Map: How much each state relies on the federal government for revenue
Louisiana higher education officials say campus closures are a possibility
Adlaw in the news, part II - Be sure to read the last paragraph of the story for the real irony.
In the news
Scientists Warn of Rising Oceans From Polar Melt
Module 00 - Introduction to the Modules
Module 04 - The Legislative Veto and Separation of Powers
INS v. Chadha, 462 U.S. 919 (1983)
Module 05 - The Appointments Clause
Background on Immigration Due Process
ACLU, AMERICAN EXILE: Rapid Deportations That Bypass the Courtroom (2014)
How the US immigration system compares with others
Crisis in France Is Seen as Sign of Social Ills
Finish reading Chapter 2.
Module 06 - Removal and the Creation of Independent Agencies
Module 07 - General Regulatory Review and Coordination
Executive orders on domestic policy
Executive orders on national security
Introduction to Adjudications
Reading assignment - Chapter 3 to p. 76, Part II, p. 84 (Part III) to p. 92, G. Ex Parte Communications.
Module 08 - Introduction to Adjudications
Background for discussion trials versus adjudications
Summary of Human Rights Watch Document on Plea Bargaining (full report for those who are interested)
Finish Module 08 - Introduction to Adjudications from last class.
Read Chapter 3, pp. 74-84
Module 09 - Formal Adjudications
Read Chapter 3, pp 92-99.
Module 10 - Limiting Bias in Adjudications
Finish Reading Chapter 3.
Module 11 - Licensing and Permitting
We will begin the discussion of Wooley v. State Farm Fire and Cas. Ins. Co., 893 So.2d 746 (La. 2005)
Read through paragraph 47, which 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.
Because so many students are out with the flu, I have prepared notes on what we will be discussing as background to Wooley.
Department of Administrative Law/Wooley Background
Regulation lags new technology
Finish reading Wooley.
Module 12 - The Department of Administrative Law and the Wooley Case
Finish Wooley. The key paragraphs for the Article V question are 90-100. The key paragraphs for the constitutionality of stripping the right to appeal from the agency are 101-110. This issue is currently before the LA and Federal courts because of the coastal erosion lawsuit:
Louisiana Levee Board Coastal Erosion Law Suit
The Legislature, at the urging of the governor, passed a law taking away the right of the levee board to sue:
Louisiana SB 469 – Killing the Coastal Erosion Lawsuit
The plaintiffs, representing the levee board, is arguing along the same lines as Wooley that the legislature does not have to power to take away the agency's right to sue.
Read the 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.
Module 13 - The Bonvillian Cases
NYTimes: Do We Really Want to Regulate Internet Providers?
The vaccine controversy as if it were foreign news:
Module 14 - Introduction to Due Process
Read Chapter 4 to page 118, b. Liberty and Correctional Facilities.
Scan his stigma plus claim to see what the basis was - van Heerden v. Bd. of Sup'rs of Louisiana State Univ. & Agr. & Mech. Coll., No. 3:10-CV-155-JJB-CN, 2011 WL 5008410 (M.D. La. Oct. 20, 2011) and the case is eventually settled.
The Flyer from Paul v. Davis, 424 U.S. 693 (1976)
We left on Thursday with the question of why Bonvillian II, which directly conflicts with Wooley, has not been appealed. Think about standing and see if you can tell why it may never be overturned.
Finish with the materials from last class.
Read Chapter 4 - 131.
Module 15 - Mathews and the Modern World (updated 3:29pm 2/9/15)
Read Mathews v. Eldridge (edited version).
Costs of SSI Disability - chart of SSI costs. SSI has become the unemployment insurance for many middle-aged low skilled workers. This is not an artifact of the administrative system, but of the loss of key jobs from the economy.
Daniel P. Moynihan’s Benign Neglect Memo to President Nixon - for reference, not assigned reading
Materials for the discussion of prisons, if we have enough time. This is in the reading before Mathews, but the cases make more sense after Mathews.
Module 16 - Prisons as Admistrative Institutions
These background materials are for use in class, you do not have to read them ahead of time.
The Congressional Hearings Problem (Pillsbury redux)
Finish Chapter 4. Finish materials from last class
Module 17 - Bias in Administrative Hearings
Bias in medical licensing boards
What did Senator Kefauver say: https://biotech.law.lsu.edu/cases/adlaw/Pillsbury.htm#Senator_Kefauver
Updates
I have updated Module 14 - Introduction to Due Process with these evaluation questions:
New Property
What is the "bitter with the sweet" doctrine?
Why did the court find that it was unconstitutional for government employment
How did this create the "new property"?
How are the rights different for new property versus old property?
As a matter of constitutional law, as opposed to potential statutory protections and contracts, what are you entitled to if the legislature abolishes your government job or your welfare entitlement?
Assume that governor and legislature of Louisiana, following the philosophy of Milton Freedman (a noted free market economist) decide to abolish law licenses and allow anyone to practice law.
Do you have any constitutional entitlement to compensation as a licensed lawyer?
Think carefully and explain the constitutional basis for this being different from welfare or a job at governmental agency, if it is.
Adlaw in the News!
Obama Immigration Policy Halted by Federal Judge in Texas
The core legal holding by the judge was that the president needed to do notice and comment rulemaking rather than an executive order. We will soon know if that was correct.
Chapter 5 to page 150, 179-183.
Rulemaking Jump Start - this and readings will set up the background for a documentary we will watch on rulemaking under the Clean Air Act.
Read Chapter 5 to 179.
The double protection removal problem comes back:
These cases raise the question of whether ALJs are unconstitutional in independent agencies. From the dissent in the Free Enterprise Fund case that created the doctrine:
The potential list of those whom today’s decision affects is . . . large[]. As Justice Scalia has observed, administrative law judges (ALJs) “are all executive officers.” Freytag, 501 U. S., at 910 (opinion concurring in part and concurring in judgment) (emphasis deleted); see also, e.g., id., at 881 (majority opinion) (“[A] [tax-court] special trial judge is an ‘inferior Officer’ ”); Edmond, supra, at 654 (“[M]ilitary trial and appellate judges are [inferior] officers”). But cf. ante, at 26, n. 10. And ALJs are each removable “only for good cause established and determined by the Merit Systems Protection Board,” 5 U. S. C. §§7521(a)–(b). But the members of the Merit Systems Protection Board are themselves protected from removal by the President absent good cause. §1202(d).
My research reflects that the Federal Government relies on 1,584 ALJs to adjudicate administrative matters in over 25 agencies. See Appendix C, infra; see also Memorandum of Juanita Love, Office of Personnel Management, to Supreme Court Library (May 28, 2010) (available in Clerk of Court’s case file). These ALJs adjudicate Social Security benefits, employment disputes, and other matters highly important to individuals. Does every losing party before an ALJ now have grounds to appeal on the basis that the decision entered against him is unconstitutional? Cf. ante, at 26, n. 10 (“[O]ur holding also does not address” this question).
The immigration case (we will look at the opinion in a later class)
District court holds executive order on immigration should have been a notice and comment rule - Texas v. United States, No. CIV. B-14-254, 2015 WL 648579 (S.D. Tex. Feb. 16, 2015); plaintiffs' request for a preliminary injunction;defendant's reply and memorandum; plaintiffs' reply; amicus brief in opposition by immigration lawyers; amicus brief in opposition by police chiefs; amicus brief in opposition by Washington State.
Example Regulation - The Proposed Greenhouse Gas Regulations
Module 18 - Introduction to Rulemaking
Module 19 - Rulemaking: When do you need notice and comment
Emergency Rules
http://doa.louisiana.gov/osr/emr/emr.htm
A perfect example of the indeterminacy of legal analysis:
In Overturning Conviction, Supreme Court Says Fish Are Not Always Tangible http://nyti.ms/1zIuUfA
Read Chapter 5 to p. 195 for discussion and analysis. Read the reminder of the chapter for general information. It describes the system of statutes and executive orders that limit rulemaking.
The Reg Map for Informal Rulemaking – original link
Module 19 - Rulemaking: When do you need notice and comment - now updated with evaluation questions.
Module 20 - The Procedures of Notice-and-Comment Rulemaking
APA 552 - publication of rules that do not need notice and comment
Adlaw in the news
King v Burwell, the ACA state exchange case is before the USSC on Wednesday morning. This case will turn on how the Court handles Chevron, the iconic and enigmatic administrative law case on deference to agency interpretation of statutes. While we do not reach Chevron in the normal course until later in the semester, I am going to do my Chevron background discussion at the beginning of class so that you will know what the court and the media are talking about after oral argument on Wednesday.
Resources, but not assigned reading:
King v. Burwell - SCOTUS Blog
Argument preview: Now, the third leg of the health-care stool
Chapter 6 to Other Widely Shared Injuries, p. 226. This should be quick as it should just recap what you learned in constitutional law.
Clapper v. Amnesty International USA, 133 S.Ct. 1138 (2013) - Edited, reformatted, and rearranged version for class discussion. We are going to read this case closely to decide how much the Supreme Court has limited standing, or whether this is a sui generis national security law case. It reviews all the key administrative law standing cases in a challenge to the FISA law. Study questions based on the edited version of the case. We will go through these as a review of standing and how the court plays games with it. We will discuss this from the study questions and the edited opinion.
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.
Will concern for states’ rights win out in subsidies battle? Today’s argument in Plain English
Background on the 1st ACA for those who are interested
‘Undue Influence?' Congressional Attacks on FCC-White House Links - An interesting essay on congressional complaints about undue presidential influence on the FCC net-neutrality rulemaking.
The real influence: John Oliver on Net-Neutrality
Continue discussing Clapper. The text reviews most of the cases used in Clapper.
Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007) - the global warming case. 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. We will read more of the case when we are reading Chapter 7.
Module - Mass v EPA - Standing
Mass v EPA - Standing - Slides
Paralyzed Veteran's is overruled (DCC holding that changing interpretative rules requires notice and comment) - Just posted for information, not class discussion.
Finish Mass v. EPA
Read to II. EXCEPTIONS TO JUDICIAL REVIEW UNDER THE APA, p. 241.
Module-21 Standing - Jurisdiction and Injury
Read Chapter 6 to Ripeness, p. 261
5 U.S.C. § 701. Judicial Review (committed to agency discretion)
5 U.S.C. § 704. Actions reviewable
Module 22 - Access to Judicial Review and Finality
Module 23 - Exhaustion of Administrative Remedies
Finish Chapter 6
Chapter 7 to 281.
Read this edited version of Mass v EPA - You have read the first part of this already. What I want you to do is look at the additional material from the majority opinion's analysis of why it thinks EPA was wrong about whether it had the authority to regulate GHGs. Then look at Scalia's dissent and figure out why he says the agency's interpretation was reasonable and should have been upheld. Remember, under Chevron, the court should be deferring to the agency's interpretation unless the law is clear or the interpretation is unreasonable. Then remember this when the ACA case comes out this summer and see if Scalia applies the same deference to the IRS interpretation of the ACA.
Module 24 - Ripeness and Wrap-up
Module 25 - Introduction to Judicial Review
Mass v. EPA - Chevron Analysis
Well Founded Fear
http://lsulaw.hosted.panopto.com/Panopto/Pages/Viewer.aspx?id=c82586a4-c086-40e8-b458-bdd13e3ceef6
We are not meeting class on March 19th. Your assignment in lieu of class is to watch this movie on administrative hearings. Watch this before class on Tuesday. We will discuss it a bit in class. (Panopto track usages, so big brother is watching.)
First-Ever Federal Fracking Rules Issued by Interior Department
Lawsuit wave challenges FCC on net neutrality
We are going to look hard at another case, one that deals with a difficult regulatory problem - tobacco.
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (U.S. 2000) (read this case carefully - it is a great review of the regulatory dilemma posed by tobacco) -study questions - use these to guide your reading. This case shows what the court does when it does not like results of Chevron.
Oral Argument before the USSC.
The 1964 Surgeon General's Report on Smoking and Health - this was the first federal recognition that smoking is bad for your health.
Nicotine without tobacco - How does this fit with Brown and Williamson?
Social Class and Life Expectancy
Scalia's theory of the Internet as a pizza - a great explanation of the mess that Brand X created.
Louisiana Cigarette Tax - More Tax, Less Smoking
Finish Brown and Williamson
Nicotine without tobacco – How does this fit with Brown and Williamson?
Chapter 7 to 293.
Module 26 - Judicial Deference to Agency Legal Interpretations after Chevron
Read Chapter 7 to 314 - V. REVIEW OF AGENCY ACTION UNLAWFULLY
WITHHELD OR UNREASONABLY DELAYED
Module 27 - Judicial Review of Facts
Prison conditions in the news - not required
NYTimes: Inside America’s Toughest Federal Prison http://nyti.ms/1D1rbRa - this is a story about a lawsuit claiming administrative law violations in assigning prisoners to supermax prisions.
NYTimes: The Radical Humaneness of Norway’s Halden Prison http://nyti.ms/1HMjNqD
NYTimes: Prison Planet http://nyti.ms/1BrI7u8
Finish materials from last class. Finish reading Chapter 7. This is not a lot of material, but given the impending holiday, I do not want to start the next area until we are back next week.
28 U.S. Code § 2401 - Time for commencing action against United States
Module 28 - Judicial Review - Procedural Issues
Armstrong v. Exceptional Child Center, Inc. (not required reading) - This United States Supreme Court case was decided on Monday. It is relevant to our discussion because the core question was whether the petitioners could use the courts to force the state Medicaid agency to pay at the rate required by the Federal Government. The court found that Congress had created a sole remedy for violations - the feds can withhold funds from the state - which prevents the petitioners from using the courts as an alternative method of forcing the state to comply. Breyer's quote from his concurrence:
I recognize that the law may give the federal agency broad discretionary authority to decide when and how to exercise or to enforce statutes and rules. See Massachusetts v. EPA, 549 U. S. 497, 527 (2007). As a result, it may be difficult for respondents to prevail on an APA claim unless it stems from an agency’s particularly egregious failure to act. But, if that is so, it is because Congress decided to vest broad discretion in the agency to interpret and to enforce §30(A). I see no reason for this Court to circumvent that congressional determination by allowing this action to proceed.
Proposed Statutory Supplement for Exams - No FOIA or Open Meeting Provisions
Administrative Searches
The popular perception of search law has been shaped by TV shows and movies, with their endless plots around whether warrants were properly obtained and executed. Law schools still focus the 4th Amendment criminal law search warrant and the exclusionary rule. Yet in the modern world, 4th Amendment probable cause warrants are only small part of the search world. Most searches are done under administrative law power, from home inspections for rat control to national security surveillance. These are done with abbreviated warrants or no warrants at all. This is a critical area of law that does not get much attention even in traditional administrative law courses. We cannot take time to do it justice - that is done in National Security and Counterterrorism Law - but over the next two classes we will do an intensive introduction to administrative search law. You have a couple of readings, but most of the class on Tuesday will be lecture because I need to present a wealth of background information.
Read:
Camara v. Municipal Court City and County, 387 U.S. 523 (1967) par. 23-56.
Chapter 8 to IV. OBTAINING DOCUMENTS AND TESTIMONY.
(You should have read Biswell and Burger in ACJ, as well as the warrant cases.)
Resource Cases
Frank v. Maryland, 359 U.S. 360 (1959)
See v. Seattle, 387 U.S. 541, 18 L. Ed. 2d 943, 87 S. Ct. 1737 (1967)
U.S. v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972)
New York v. Burger, 482 U.S. 691 (1987)
Cases on Administrative Searches - a collection of administrative search cases
Module-21 Standing - Jurisdiction and Injury - Revised (the link is now fixed)
Adlaw in the News: Gulf Restoration Network v EPA
This is a petition for rulemaking under the CWA asking EPA to promulgate a rule regulating nutrients coming down the Mississippi into the Gulf of Mexico. A great companion to Mass v. EPA, showing what the government needs to do to being overturned on a review of a denial of a petition requesting a rulemaking.
Example of a Notice for a rule - USGCRP Climate & Health Assessment
Last Week Tonight with John Oliver: Government Surveillance (HBO): https://youtu.be/XEVlyP4_11M
Finish reading Chapter 8.
Module 29 - Data Collection by Agencies
All the modules for text are revised and posted.
In the News
Bobby Jindal won’t release work-related emails, http://theadvocate.com/news/12074849-123/bobby-jindal-wont-release-emails
Obamacare Menu Labeling Laws May Pose Challenges for Small Chains
Enhance your expectation of privacy - buy curtains
Sackett Doctrine applied to wetlands jurisdictional determination by the Corps, now a circuit split on whether JDs are final agency actions subject to appeal:
Hawkes Co. v. United States Army Corps of Eng'rs.
Module 30 - FOIA and Open Meetings
Rather than reading Chapter 9, we are going to read the Congressional Guide to FOIA. The objective is to learn how FOIA and the Privacy Act work, which to use, and the basics of filing a request:
Citizens Guide to the Freedom of Information and Privacy Acts 2012 (The guide is the first 36 pages, the reminder are sample forms and legal documents.)
For Open Meetings, pp.26-28. Also p.29 as another view of the Privacy Act:
The Reporters Committee for Freedom of the Press, Federal Open Government Guide 10th Ed (2009)
For reference:
Louisiana Attorney General's Guide to the Louisiana Open Records Act
Open Records - Annotated Statute
General Info
The joys of public hearings (watch at home)
Petition in the LA public records act case against LSU on the appointment of the new president.
Assignments - Introduction to the Federal Tort Claims Act:
Introduction to Suing the Federal Government - please read the materials so you can follow the legal discussion on the FTCA that is part of this presentation.
FTCA Reader - This contains excerpts from three key FTCA cases to acquaint you with the history and basic structure of the FTCA.
Just for local color:
Louisiana Tort Claims Act: Bad Oysters - Gregor v. Argenot Great Central Insurance Co., 851 So.2d 959 (La. 2003) - scan to figure out the injury, what the health department did wrong, and why it was not a discretionary function.
Hepatitis A Transmitted by Food
Flood maps in the news:
New map, warning system gives detailed flood risk, but not for inside levees.
In the News
LA Open Records does not extent to search firms
Cir Court Opinion on Contempt - LSU President Search Case
Cir Court Opinion on Open Records - LSU President Search Case
California Parents Opposing State-Mandated Vaccinations of Children Delay Vote http://nyti.ms/1IMvHVn
Judges Hear Challenge to Proposed E.P.A. Rule to Curb Climate Change http://nyti.ms/1FNrWsM
Background on the hurricane risk for New Orleans
Natural Cycles and the Mississippi Delta
Should Katrina have been a surprise? - Washing Away
The Hurricane Pam Exercise, in which Louisiana promised FEMA that it was ready for a major hurricane.
The Mythical Hurricane Response Plan
Flood control law and Katrina Levee Breach Cases - Flood Control Law and Hurricane Katrina
Graci v. United States, 456 F.2d 20 (5th Cir. 1971)
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 Flood Control Act immunity for dual use projects. The heart of the case is paragraphs 41-45.
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.) (District court opinion for reference, you do not have to read this: In re Katrina Canal Breaches Consolidated Litigation, 647 F.Supp.2d 644 (E.D.La. Nov 18, 2009) Final opinion and appendix.)
Review and wrap up. Last day of class!!!
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