Professor Peter Woll's
Administrative Law- On Line
Politics 117a
Administrative Law
Course Syllabus
Fall, 2008
Class assignments will be made from the following and will be posted on a daily basis on the WebCT course Calendar and also on the class listserv.
Text
TABLE OF CONTENTS
PREFACE iii
ACKNOWLEDGEMENTS ix
TABLE OF CASES xxxvii
TABLE OF TEXT AND PERIODICAL CITATIONS lxxi
TABLE OF STATUTES lxxxvii
CHAPTER I An Introduction to Administrative Law 1
Sec.
1. An Introductory Problem l
2. The Basics 7
3. The Development of the Administrative State 13
Robert L. Rabin, Feder:al Regulation in Historical Perspective 13
Notes 23
4. Perspectives on the Enterprise of Administrative Law 26
A Note on Teaching and Studying Administrative Law from This Casebook 34
~
CHAPTER II Agencies and the Structural Constitution 35
Sec.
1. The Constitutionality of Empowering Agencies to Make and Enforce Regulatory Policy 37
American Trucking Associations, Inc. v. Environmental Protection Agency 38
American Trucking Associations, Inc. v. Environmental Protection Agency 46
Whitman v. American Trucking Associations, Inc. 48
Notes 56
a. Nondelegation and the Problem of Taxonomy 63
b. Delegation in the Cases-The Long Road to American Trucking 66
c. The Future of Non-delegation Doctrine 77
d. Comparative Insights: The Experience of Other Jurisdictions 83
(1) Delegation in the States 84
Boreali v. Axelrod 84
Note 88
Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen 89
Note 96
(2) Delegation in Europe 96
Peter Lindseth, Delegation is Dead, Long Live Delegation: Managing the Democratic Disconnect in the European
Market-Polity 97
.
2. Assessing the Constitutionality of the Administrative State 101
a. Competing Views: Is the Regulatory State Constitutional? 102
Gary Lawson, The Rise and the Rise of the Administrative State 103
Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution 107
Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch 109
b. Contrasting Methodologies 112
Sec.3. The Constitutionality of Empowering Agencies to Adjudicate Individual Disputes 118
Commodity Futures Trading Commission v. Schor 121
Notes on the Precedent Underlying Schor 127
Notes on the Future of the Public/Private Rights Distinction, and the Relevance of the Seventh Amendment 133
4. Controlling Agency Power: Constitutional Issues in Congressional and Presidential Oversight Efforts 138
a. Controlling Policy by Controlling Who Makes It-Appointment and Removal of Agency Officials 140
(i) The Reach of Presidential Power 143
Myers v. United States 143
Notes 149
Humphrey's Executor v. United States 153
Notes 156
Morrison v. Olson 160
Notes 170
(ii) The Limits of Congressional Prerogative 176
Bowsher v. Synar 176
Notes 184
Notes on Congressional Attempts to Control Regulatory Policy via Appointment and Confirmation 186
b. Controlling Policy Through Veto, Directive, and Budget 191
(i) Efforts Directly to Override, or to Command, Regulatory Decisions 193
Immigration and Naturalization Service v. Chadha 193
Notes 203
Notes on Alternatives to the Legislative Veto: Congressional Direction via Legislation and Committee Oversight 208
Notes on Presidential Power to Direct Agency Decisions 212
(ii) Efforts to Control Policy by Controlling Spending 222
Clinton v. City of New York 224
Notes 232
Notes on Appropriations: Directing Policy With the Purse Strings 233
Concluding Thoughts 237
CHAPTER III Procedural Frameworks for Administrative Action 238
Sec.
1. The Fundamental Procedural Categories of Administrative Action: Adjudication and Rulemaking 238
a. The Constitution 238
Londoner v. Denver 238
Bi-Metallic Investment Co. v. State Bd. of Equalization of Colorado 241
Notes on Londoner-Bi-Metallic 243
Notes on Procedures' Ends and Means 247
Sec.
1. The Fundamental Procedural Categories of Administrative Action:
Adjudication and Rulemaking-Continued
. b. The Fundamental Statute 252
Administration Procedure Act of 1946 252
Notes 252
Wong Yang Sung v. McGrath 254
Notes 261
Dickinson, Acting Commissioner of Patents and Trademarks v. Mary E. Zurko et al. 264
Notes 268
Notes on Changing Approaches to the APA Over the Years 271
c. Additional Sources of Procedural Constraint 275
2. Proceedings Outside the Fundamental Procedural Categories-
Information Gathering 276
A Note on Information as Regulation-EPA's Toxic Resources Inventory 277
a. Choices of Government Regulatory Style in Inspecting 281
Notes on the Choices of Style and Their Constraints 282
Making Do With Less-Notes on a Return to. "Cooperation" and Voluntarism 288
b. Required Forms and Reports 291
c. Rights to Refuse Cooperation with Information Demands 294
Marshall v. Barlow's, Inc 295
Notes on the Cases Before Barlow's 301
Notes on the Closely Regulated Industry Exception 302
Notes on Practical Impact and Other Issues 308
Braswell v. United States 313
CHAPTER IV The Procedural Categories in Action: Adjudication 322
Sec.
1.Initial Hearings in Formal Adjudication 324
Seacoast Anti-Pollution League v. Costle 325
Notes 332
a. Who is Entitled to Participate? 334
Office of Communication of the United Church of Christ v. Federal Communications Commission 334
Note 338
Envirocare of Utah, Inc. v. Nuclear Regulatory Commission 339
Notes on Intervention 342
Notes on Public Interest Representation 345
b. Evidentiary Issues 351
Castillo- Villagra v. Immigration and Naturalization Service 353
Notes 360
Notes on Judicial and Administrative Approaches to Evidence 363
Notes on the Limited Application of the Hearsay Rule to Administrative Proceedings 366
c. The Requirement of Findings 369
Armstrong v. Commodity Futures Trading Commission 369
Notes 372
d. The Presiding Officer 374
(i)An Impartial Hearer 378
Sec.
1. Initial Hearings in Formal Adjudication-Continued
Central Platte Natural Resources Dist. v. Wyoming 378
Notes 381
(ii) Managerial Controls 384
Nash v. Bowen ; 385
Notes 388
2. Formal Adjudication at the Agency Level-Issues of Role 393
a. The Obligations of Notice and Hearing 394
Morgan v. United States 394
Morgan v. United States 397
Notes 400
b. The Impact of Multiple Roles 407
Federal Trade Commission v. Cement Institute 408
Notes 412
Withrow v. Larkin 414
Notes 417
c. Obstacles to Integrity Arising From Contacts With Others 423
Professional Air Traffic Controllers Organization v. FLRA 423
Organizational Note 433
(i) General Counsel Gordon: Interested Agency Staff 434
American Telephone & Telegraph Co. 435
Notes 439
(ii) Secretary Lewis--Pressure from Other Parts of Government 443
Portland Audubon Society v. The Endangered Species Committee 444
Note 449
Pillsbury Co. v. FTC 450
Notes 453
(iii) Albert Shanker-Relations With the Regulated and the Public 455
Idaho Historic Preservation Council, Inc. v. City Council of the City of Boise 456
Notes on Inappropriate Relationships 459
Notes on the Revolving Door 462
3. Informal Adjudication 470
5 U.S.C. § 555 470
Note 471
Pension Benefit Guaranty Corporation v. LTV Corporation 472
Notes 474
4. Alternative Dispute Resolution 478
Department of Transportation, "Statement of Policy on Alternative Dispute Resolution" 480
Note 482
CHAPTER V The Procedural Categories in Action: Rulemaking 483
Sec.
1. The Statutory Forms of Rulemaking and the Problem of Authority 484
5 U.S.C. § 553 484
Notes 485
2. Tip of the Iceberg-The Visible Rulemaking Procedures of § 553 493
a. Procedures That Must Be Used? 493
Sugar Cane Growers Cooperative of Florida v. Ann M. Veneman 493
Note 497
b. No More Than § 553 Requires? 498
Vermont Yankee Nuclear Power Cory. v. Natural Resources Defense Council, Inc. 498
Notes on Vermont Yankee and Its Impact 507
Notes on the Problems of Finding Contested "General" Fact 510
(i) "The notice shall include... (3) Either the terms or substance of the proposed rule or a description of the
subjects and issues involved" 519
Natural Resources Defense Council v. United States Environmental Protection Agency 519
Notes 522
(ii) "After notice required by this section, the agency shall give interested persons an opportunity to participate
in the rule making through submission of written data, views, or arguments with or without opportunity for
oral presentation" 524
United States v. Nova Scotia Food Products Corp. 524
Notes 532 . Notes on the Nature of a Rulemaking Record ' 536
(iii) "After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise
general statement of their basis and purpose" 540
Independent U.S. Tanker Owners Committee v. Dole 540
Notes " 546
(iv) And now, the WorldWideWeb 550
(v) "This subsection does not apply. ..(B) When the agency for good cause finds (and incorporates the finding and
a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest" 552
Utility Solid Waste Activities Group v. Environmental Protection Agency 552
Note 555
3. What Lies Beneath the Surface-The Course of Contemporary Rulemaking 556
a. "Choosing" a Mode for Policymaking 556
Securities & Exchange Commission v. Chenery Cory. 556
Notes on Chenery 563
An Organizational Note 566
(i)The Self-Conscious Use of Adjudication for Policy-Making 566
Bell Aerospace Co. v. National Labor Relations Board 567
National Labor Relations Board v. Bell Aerospace Co. 569
Notes 571
(ii) Might the Retrospectivity Resulting From Adjudication Make this Choice "Unfair"? 574
Epilepsy Foundation of Northeast Ohio v. National Labor Relations Board 574
Notes 576
Sec.
3. What Lies Beneath the Surface-The Course of Contemporary Rulemaking-Continued
(iii) Forewarned is not Enough-Limitations on Retrospective Rulemaking 578
Bowen v. Georgetown University Hospital 578
Notes 583
(iv) Limits on the Use of Rulemaking to Eliminate Issues Otherwise Requiring Adjudicatory Hearing 586
Bert M. Yetman et al. v. Jane Garvey, Administrator, FAA 587
Notes 592
b. Getting Rulemaking Started 596
(i) Public Initiation of Rulemaking 596
Professional Pilots Federation v. Federal Aviation Administration 596
Notes 602
(ii) The Decision to Initiate Rulemaking 609
Executive Order 12866 611
Small Business Regulatory Enforcement Fairness Act 614
Notes 614
Presidential Management of the Regulatory State 616
Notes 619
(iii) Regulatory Negotiation 627
Notes 630
(iv) Impact Analysis 638
Executive Order 12866 638
Presidential Management of the Regulatory State 639
A Historical Note 639
Notes on the Mechanics of E.O. 12866 642
Notes on the Extent of Presidential Authority 658
c. After the Comments are in-The Decision Process in Rulemaking 663
Home Box Office, Inc. v. Federal Communications Commission 666
Notes 669
(i) An Open-Minded Decisionmaker7 673
C & W Fish Company, Inc. v. Fox 673
Notes 676
(ii) The Contributions of Agency Staff 678
United Steelworkers of America, AFL-CIO-CLC v. Marshall 678
Notes 683
(iii) Pressure From External Government Actors 684
Sierra Club v. Costle 684
Notes 692
(iv) What Future Shape(s) for Notice-and-Comment Rulemaking? 698
4. The Publication Alternative to Notice-and-Comment Rulemaking 705
Air Transport Association of America, Inc. v. Federal Aviation Administration 706
Notes 710
General Electric Company v. Environmental Protection Agency 719
Notes 726
Chapter VI Open Government and the Freedom of Information Act 733
Sec.
1. The General Scope of the Freedom of Information Act 733
Notes 736
2. Freedom of Information and the Operational Needs of Agencies 739
a. The Flow of Information Within Agencies 739
National Labor Relations Board v. Sears, Roebuck & Co. 740
Notes 745
b. The Flow of Information From the Outside 748
Critical Mass Energy Project v. Nuclear Regulatory Commission 748
Notes 753
3. Private Parties' Desires for Secrecy of Information 753
Chrysler Corp. v. Brown 754
Notes 758
4. Government in the Sunshine 762
Section of Administrative Law and Regulatory Practice, American Bar Association,
A Blackletter Statement of Federal Administra tive Law 762
Notes 762
CHAPTER VII Procedural Due Process: Constitutional Constraints on Administrative Decision-making 767
Important Note About Scope 767
Sec.
1. Growing Pains: Due Process Encounters the Ambitions of Modern Government 770
a. The Traditional Right/Privilege Distinction and its "Demise" 770
Bailey v. Richardson 770
Notes 774
Cafeteria & Restaurant Workers Union v. McElroy 776
Notes 780
b. The Modern Watershed 783
Goldberg v. Kelly 783
Notes 791
Notes on the Ideal of Procedural Fairness and the Reality of Mass Administrative Justice 794
2. Contemporary Doctrine: What Sort of Interests Trigger Due Process Protection? '800
Board of Regents of State Colleges v. Roth 801
Perry v. Sindermann 808 Notes 811
Notes on the Theory of Entitlement Analysis 812
Notes on the Practice of Entitlement Analysis 814
Meachum v. Fano 823
Notes 827
Note on Whether Due Process Itself Requires Standards to Limit Administrative Discretion 832
Sec.
3. Contemporary Doctrine: What Process Is Due? And When? 837
Londoner v. Denver 837
Bi-Metallic Investment Co. v. State Bd. of Equalization of Colorado 838
Notes 838
Goldberg v. Kelly 839 ",J
Note 839
a. The Emergence of the Utilitarian Calculus 839
Matthews v. Eldridge 839
Notes 848
Walters v. National Association of Radiation Survivors 851
Notes 858
Notes on the Theory of Utilitarian Balancing 860
Notes on the Practice of Utilitarian Balancing 862
b. The Relevance of Statutory Process Terms 872
Cleveland Board of Education v. Loudermill 872
Note 879
Notes on the Theory of “The Bitter With the Sweet” 880
Notes on the Practice of “The Bitter With the Sweet” 881
c. The Relevance of Post-Deprivation Judicial Remedies 884
North American Cold Storage Co. v. Chicago 884
Notes 886
Ingraham v. Wnght 888
Note 895
Notes on the Question Whether Common Law or Statutory Remedies are all the Process That is Due 896
Coda 900
CHAPTER VIII Scope of Review of Administrative Action 902
Sec.
1. Perspectives on the Practice of Judicial Review 903
a. Some General Claims 903
b. A Judge's Point of View 904
Harry T. Edwards, The Judicial Function and the Elusive Goal of Principled Decision-making 904
Note 906
c. What the APA Provides 907
5 U.S.C. § 706 Scope of Review 907
Notes 907
2. The Baseline Norm of Legal Regularity 908
a. Consistency of Application 908
Shaw's Supermarkets, Inc. v. National Labor Relations Board 908
Notes 912
Butz v. Glover Livestock Commission Co., Inc. 915
Notes 919
b. Consistency of Rule Declaration 921
Stieberger v. Heckler 922
Notes 929
3. Judicial Review of Agency Factual Determinations 936
Universal Camera Corp. v. National Labor Relations Board 940
Notes 948
Allentown Mack Sales and Service, Inc. v. National Labor Relations Board 953
Notes 963
Sec.
3. Judicial Review of Agency Factual Determinations-Continued
Association of Data Processing Service Organizations, Inc. v. Board of Governors of the Federal Reserve System 965
Notes 970
Note on the Special Problem of Reviewing "Constitutional" or
"Jurisdictional" Facts 973
4. Judicial Review of Agency Determinations Beyond the Facts 978
a. Historical Building-Block Cases 978
National Labor Relations Board v. Hearst Publications, Inc. 979
Notes 984
Skidmore v. Swift & Co. 985
Notes 987
Transitional Note 988
b. The Present-Day Framework 989
Citizens to Preserve Overton Park, Inc. v. Volpe 989
Notes on the Particular Proceedings 995
Notes on Decision-Makers' Mental Processes 996
Notes on Overton Park's Standard of Review 1000
Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co. 1002
Notes on the Scope and Significance of State Farm 1012
Notes on the Wisdom (or not) of the State Farm Approach 1017
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. 1026
Notes on the Notoriety of Chevron 1032 .
Notes on the Meaning of Chevron 1033
Notes on the Wisdom of Chevron 1040
Notes on the Impact of Chevron 1045
A Final Thought on Chevron 1051
MCI Telecommunications Corp. v. American Telephone and Telegraph Co. 1052
Notes on MCI's Approach to Statutory Interpretation 1060
Notes on Broader Views of MCI 1064
United States v. Mead Corporation 1068
Notes on What Meads Means 1081
Notes on What Mead Applies To, and How 1084
Notes on Estoppel 1088
Notes on the Early Academic Returns on Mead 1089
Department of Housing and Urban Development v. Rucker 1091
Notes 1096
5. The Best There Is on Judicial Review 1098
Louis L. Jaffe, Judicial Control of Administrative Action 1098
CHAPTER IX Obtaining Judicial Review: Access to Court to Challenge Agency Action or Inaction 1099
Sec.
1. Methods of Obtaining Judicial Review 1100
a. Special Statutory Review 1101
b. General Statutory Review 1104
c. "Nonstatutory" Review 1107
(i) Damages Actions 1107
(ii) Specific Relief: Injunctions, Declarations and the Prerogative Writs 1109
Sec.
1. Methods of Obtaining Judicial Review-Continued
(iii) Special Problems of Suing States to Enforce Regulatory Obligations: State Sovereign Immunity and the Eleventh
Amendment 1112
d. Interim Relief 1116
2. Standing to Invoke Judicial Review 1117
a. Overview: The Contemporary Doctrinal Framework 1118
Allen v. Wright 1118
Note 1126
b. What Sort Of Interests Count? 1128
Association of Data Processing Service Organizations, Inc. v. Camp 1129
Note 1126
(i) “Injury in Fact” 1139
Lujan v. Defenders of Wildlife 1139
Notes 1147
Federal Election Commission v. Akins 1155
Notes 1160
(ii) "Arguably Within the Zone of Interests Protected or Regulated by the Law Invoked" 1162
National Credit Union Administration v. First National Bank & Trust Co. 1163
Notes 1171
c. Traceability and Redressability 1172
Allen v. Wright : , 1172
Notes 1172
Notes on the Relationship Between Defining the Injury and Finding Causation 1176
3. Reviewability: Agency Actions Subject to Judicial Scrutiny 1181
Abbott Laboratories v. Gardner 1182
Note 1188
a. § 701(a)(1): Statutory Preclusion of Review 1188
Block v. Community Nutrition Institute 1188
Bowen v. Michigan Academy of Family Physicians 1192
Notes on Implied Preclusion of Review 1196
Notes on Express Preclusion of Review 1200
b. § 701(a)(2): "Committed to Agency Discretion by Law" 1209
Webster v. Doe 1209
Notes 1216
Notes on Reviewability of Agency Refusals to Act 1218
Note on the Constitutionality of Precluding Review 1224
4. The Timing of Judicial Intervention 1229
Ticor Title Insurance Co. v. Federal Trade Commission 1229
Notes on Exhaustion of Administrative Remedies 1238
Notes on Finality 1246
Notes on Ripeness 1252
5. Actions for Damages as a Form of Review 1257
a. Damages Actions Against Government Officials 1258
North American Cold Storage Co. v. Chicago 1258
Butz v. Economou 1258
Notes 1268
b. Damages Actions Against Government Entities 1278
(i) The Federal Tort Claims Act 1278
Sec.
5. Actions for Damages as a Form of Review-Continued
Berkovitz v. United States 1280
United States v. Gaubert 1284
Note 1289
(ii) The Tucker Act 1289
(iii) Section 1983 1290
Owen v. City of Independence 1291
Notes 1297
APPENDIX
The Constitution of the United States 1303
Administrative Procedure Act 1321
Procedures of Consensus-Regulatory Negotiation and Alternative Dispute Resolution 1354
Negotiated Rulemaking Procedure 1355
Alternative Means of Dispute Resolution in the Administrative Process 1361
Regulatory Planning and Review 1370
Executive Order 12866 1370
INDEX 1383 *
Strauss et al